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NEW TENNECO INC.
and
THE CHASE MANHATTAN BANK,
Trustee
--------------
INDENTURE
Dated as of November 1, 1996
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CROSS REFERENCE SHEET/1/
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BETWEEN
Provisions of Trust Indenture Act of 1939 and the Indenture to be dated as of
1, 1996 between NEW TENNECO INC. and THE CHASE MANHATTAN BANK , Trustee.
SECTION OF THE ACT SECTION OF INDENTURE
------------------ --------------------
310(a)(1) and (2).................................. 6.9
310(a)(3) and (4).................................. Inapplicable
310(b)............................................. 6.8 and 6.10(a), (b) and (d)
310(c)............................................. Inapplicable
311(a)............................................. 6.13
311(b)............................................. 6.13
311(c)............................................. Inapplicable
312(a)............................................. 4.1 and 4.2
312(b)............................................. 4.2
312(c)............................................. 4.2
313(a)............................................. 4.4
313(b)(1).......................................... Inapplicable
313(b)(2).......................................... Inapplicable
313(c)............................................. 4.4
313(d)............................................. 4.4
314(a)............................................. 4.3
314(b)............................................. Inapplicable
314(c)(1) and (2).................................. 11.5
314(c)(3).......................................... Inapplicable
314(d)............................................. Inapplicable
314(e)............................................. 11.5
314(f)............................................. Inapplicable
315(a), (c) and (d)................................ 6.1
315(b)............................................. 5.11
315(e)............................................. 5.12
316(a)(1).......................................... 5.9
316(a)(2).......................................... Not required
316(a) (last sentence)............................. 7.4
316(b)............................................. 5.7
316(c)............................................. 7.2
317(a)............................................. 5.2
317(b)............................................. 3.4(a) and (b)
318(a)............................................. 11.7
---------
/1/ This Cross Reference Sheet is not part of the Indenture.
TABLE OF CONTENTS
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PAGE
Parties................................................................... 1
Recitals
Authorization of Indenture............................................. 1
Compliance with Legal Requirements..................................... 1
Purpose of and Consideration for Indenture............................. 1
ARTICLE ONE
Definitions
Section 1.1. Certain Terms Defined....................................... 1
Attributable Debt........................................... 2
Authenticating Agent........................................ 2
Authorized Newspaper........................................ 2
Board of Directors.......................................... 3
Board Resolution............................................ 3
Business Day................................................ 3
Commission.................................................. 3
Composite Rate.............................................. 3
Consolidated Net Tangible Assets............................ 3
Corporate Trust Office...................................... 4
Coupon...................................................... 4
covenant defeasance......................................... 4
Debt........................................................ 4
Depositary.................................................. 4
Dollar...................................................... 4
ECU......................................................... 4
Event of Default............................................ 4
Exempted Debt............................................... 5
Foreign Currency............................................ 5
Holder, Holder of Securities, Securityholder................ 5
Indenture................................................... 5
Interest.................................................... 5
Issuer...................................................... 5
Issuer Order................................................ 5
Judgment Currency........................................... 5
Mortgage.................................................... 5
Net Rental Payments......................................... 5
Officers' Certificate....................................... 6
Opinion of Counsel.......................................... 6
original issue date......................................... 6
PAGE
Original Issue Discount
Security.................................................. 6
Outstanding............................................... 6
Periodic Offering......................................... 7
Permitted Mortgage........................................ 7
Person.................................................... 7
principal................................................. 8
Principal Manufacturing
Property.................................................. 8
record date............................................... 8
Registered Global
Security.................................................. 8
Registered Security....................................... 8
Required Currency......................................... 8
Responsible Officer....................................... 8
Restricted Subsidiary..................................... 8
Security or Securities.................................... 9
Subsidiary................................................ 9
Trust Indenture Act of
1939...................................................... 9
Trustee................................................... 9
Unregistered Security..................................... 9
U.S. Government
Obligations............................................... 9
Yield to Maturity......................................... 9
ARTICLE TWO
Securities
Section 2.1. Forms Generally........................................... 10
Form of Trustee's
Certificate of
Section 2.2. Authentication............................................ 10
Amount Unlimited;
Section 2.3. Issuable in Series........................................ 11
Authentication and
Section 2.4. Delivery of Securities.................................... 13
Section 2.5. Execution of Securities................................... 16
Certificate of
Section 2.6. Authentication............................................ 17
Denomination and Date of
Securities; Payments of
Section 2.7. Interest.................................................. 17
Registration, Transfer
Section 2.8. and Exchange.............................................. 18
Mutilated, Defaced,
Destroyed, Lost and
Section 2.9. Stolen Securities......................................... 22
Cancellation of
Securities; Destruction
Section 2.10. Thereof................................................... 24
Section 2.11. Temporary Securities...................................... 24
ARTICLE THREE
Covenants of the Issuer
Payment of Principal and
Section 3.1. Interest.................................................. 25
Offices for Payments,
Section 3.2. etc....................................................... 26
Appointment To Fill a
Vacancy in Office of
Section 3.3. Trustee................................................... 27
ii
PAGE
Section 3.4. Paying Agents............................................. 27
Section 3.5. Written Statement to Trustee.............................. 28
Section 3.6. Negative Pledge; Limitation on Sale and Leaseback
Transactions............................................ 29
Section 3.7. Luxembourg Publications................................... 32
ARTICLE FOUR
Securityholders Lists and Reports by the Issuer and the Trustee
Section 4.1. Issuer to Furnish Trustee Information as to Names and
Addresses of Securityholders............................ 32
Section 4.2. Preservation and Disclosure of Securityholders Lists...... 33
Section 4.3. Reports by the Issuer..................................... 33
Section 4.4. Reports by the Trustee.................................... 33
ARTICLE FIVE
Remedies of the Trustee and Securityholders on Event of Default
Section 5.1. Event of Default Defined; Acceleration of Maturity; Waiver
of Default.............................................. 33
Collection of Indebtedness by Trustee; Trustee May Prove
Section 5.2. Debt...................................................... 36
Section 5.3. Application of Proceeds................................... 39
Section 5.4. Suits for Enforcement..................................... 40
Section 5.5. Restoration of Rights on Abandonment of Proceedings....... 40
Section 5.6. Limitations on Suits by Securityholders................... 40
Unconditional Right of Securityholders to Institute
Section 5.7. Certain Suits............................................. 41
Section 5.8. Powers and Remedies Cumulative; Delay or Omission Not
Waiver of Default....................................... 41
Section 5.9. Control by Holders of Securities.......................... 42
Section 5.10. Waiver of Past Defaults................................... 42
Section 5.11. Trustee to Give Notice of Default, But May Withhold in
Certain Circumstances................................... 43
Right of Court to Require Filing of Undertaking to Pay
Section 5.12. Costs..................................................... 43
ARTICLE SIX
Concerning the Trustee
Section 6.1. Duties and Responsibilities of the Trustee; During
Default; Prior to Default............................... 44
Section 6.2. Certain Rights of the Trustee............................. 45
Section 6.3. Trustee Not Responsible for Recitals, Disposition of
Securities or Application of Proceeds Thereof........... 46
iii
PAGE
Section 6.4. Trustee and Agents May Hold Securities or Coupons;
Collections, etc. ...................................... 47
Section 6.5. Moneys Held by Trustee.................................... 47
Section 6.6. Compensation and Indemnification of Trustee and Its Prior
Claim................................................... 47
Section 6.7. Right of Trustee to Rely on Officers' Certificate, etc.... 48
Section 6.8. Indentures Not Creating Potential Conflicting Interests
for the Trustee......................................... 48
Section 6.9. Persons Eligible for Appointment as Trustee............... 48
Section 6.10. Resignation and Removal; Appointment of Successor Trustee. 49
Section 6.11. Acceptance of Appointment by Successor Trustee............ 50
Section 6.12. Merger, Conversion, Consolidation or Succession to
Business of Trustee..................................... 51
Section 6.13. Preferential Collection of Claims Against the Issuer...... 52
Section 6.14. Appointment of Authenticating Agent....................... 52
ARTICLE SEVEN
Concerning the Securityholders
Section 7.1. Evidence of Action Taken by Securityholders............... 53
Proof of Execution of Instruments and of Holding of
Section 7.2. Securities................................................ 54
Section 7.3. Holders To Be Treated as Owners........................... 55
Section 7.4. Securities Owned by Issuer Deemed Not Outstanding......... 56
Section 7.5. Right of Revocation of Action Taken....................... 56
ARTICLE EIGHT
Supplemental Indentures
Supplemental Indentures Without Consent of
Section 8.1. Securityholders........................................... 57
Section 8.2. Supplemental Indentures With Consent of Securityholders... 58
Section 8.3. Effect of Supplemental Indenture.......................... 60
Section 8.4. Documents to Be Given to Trustee.......................... 60
Notation on Securities in Respect of Supplemental
Section 8.5. Indentures................................................ 60
ARTICLE NINE
Consolidation, Merger, Sale or Conveyance
Section 9.1. Covenant Not to Merge, Consolidate, Sell or Convey
Property Except Under Certain Conditions................ 61
Section 9.2. Successor Corporation Substituted......................... 61
Section 9.3. Opinion of Counsel Delivered to Trustee................... 62
iv
PAGE
ARTICLE TEN
Satisfaction and Discharge of Indenture; Unclaimed Moneys
Section 10.1. Satisfaction and Discharge of Indenture.................. 62
Section 10.2. Application by Trustee of Funds Deposited for Payment of
Securities............................................. 67
Section 10.3. Repayment of Moneys Held by Paying Agent................. 67
Section 10.4. Return of Moneys Held by Trustee and Paying Agent
Unclaimed for Two Years................................ 67
ARTICLE ELEVEN
Miscellaneous Provisions
Section 11.1. Incorporators, Shareholders, Officers and Directors of
Issuer Exempt from Individual Liability................ 68
Section 11.2. Provisions of Indenture for the Sole Benefit of Parties
and Holders of Securities and Coupons.................. 68
Section 11.3. Successors and Assigns of Issuer Bound by Indenture...... 69
Section 11.4. Notices and Demands on Issuer, Trustee and Holders of
Securities and Coupons................................. 69
Section 11.5. Officer's Certificates and Opinions of Counsel;
Statements to Be Contained Therein..................... 69
Section 11.6. Payments Due on Saturdays, Sundays and Holidays.......... 71
Section 11.7. Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939.................................. 71
Section 11.8. New York Law to Govern................................... 71
Section 11.9. Counterparts............................................. 71
Section 11.10. Effect of Headings....................................... 71
Section 11.11. Securities in a Foreign Currency or in ECU............... 71
Section 11.12. Judgment Currency........................................ 72
ARTICLE TWELVE
Redemption of Securities and Sinking Funds
Section 12.1. Applicability of Article................................. 73
Section 12.2. Notice of Redemption; Partial Redemptions................ 73
Section 12.3. Payment of Securities Called for Redemption.............. 75
Section 12.4. Exclusion of Certain Securities from Eligibility for
Selection for Redemption............................... 76
Section 12.5. Mandatory and Optional Sinking Funds..................... 77
Testimonium.............................................................. 80
Signatures............................................................... 80
v
THIS INDENTURE, dated as of November 1, 1996 between New Tenneco Inc., a Del-
aware corporation (the "Issuer"), and The Chase Manhattan Bank, a New York
banking corporation, as trustee (the "Trustee"),
WITNESSETH:
Whereas, the Issuer has duly authorized the issue from time to time of its
unsecured debentures, notes or other evidences of indebtedness to be issued in
one or more series (the "Securities") up to such principal amount or amounts
as may from time to time be authorized in accordance with the terms of this
Indenture;
Whereas, the Issuer has duly authorized the execution and delivery of this
Indenture to provide, among other things, for the authentication, delivery and
administration of the Securities; and
Whereas, all things necessary to make this Indenture a valid indenture and
agreement according to its terms have been done;
Now, Therefore:
In consideration of the premises and the purchases of the Securities by the
holders thereof, the Issuer and the Trustee mutually covenant and agree for
the equal and proportionate benefit of the respective holders from time to
time of the Securities and of the coupons, if any, appertaining thereto as
follows:
ARTICLE ONE
Definitions
Section 1.1 Certain Terms Defined. The following terms (except as otherwise
expressly provided herein, in any indenture supplemental hereto or, as to any
Security, in such Security or unless the context otherwise clearly requires)
for all purposes of this Indenture and of any indenture supplemental hereto
shall have the respective meanings specified in this Section. All other terms
used in this Indenture that are defined in the Trust Indenture Act of 1939 or
the definitions of which in the Securities Act of 1933 are referred to in the
Trust Indenture Act of 1939, including terms defined therein by reference to
the Securities Act of 1933 (except as herein otherwise expressly provided or
unless the context otherwise requires), shall have the meanings assigned to
such terms in said Trust
Indenture Act and in said Securities Act as in force at the date of this In-
denture. All accounting terms used herein and not expressly defined shall have
the meanings assigned to such terms in accordance with generally accepted ac-
counting principles, and the term "generally accepted accounting principles"
means such accounting principles as are generally accepted in the United
States at the time of any computation. The words "herein," "hereof," "hereto"
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. The
terms defined in this Article include the plural as well as the singular.
"Attributable Debt" means, as to any particular lease under which any Person
is at the time liable, at any date as of which the amount thereof is to be de-
termined, the total net amount of rent required to be paid by such Person un-
der such lease during the remaining term thereof, discounted from the respec-
tive due dates thereof to such date at the Composite Rate. The net amount of
rent required to be paid under any such lease for any such period shall be the
aggregate amount of the rent payable by the lessee with respect to such period
after excluding amounts required to be paid on account of maintenance and re-
pairs, financing services, insurance, taxes, assessments, water or electrical
rates, contingent rents (such as those based on sales) and similar charges. In
the case of any lease which is terminable by the lessee upon the payment of a
penalty, such net amount shall also include the amount of such penalty, but no
rent shall be considered as required to be paid under such lease subsequent to
the first date upon which it may be so terminated.
"Authenticating Agent" shall have the meaning set forth in Section 6.14.
"Authorized Newspaper" means a newspaper (which, in the case of The City of
New York, will, if practicable, be The Wall Street Journal (Eastern Edition),
in the case of the United Kingdom, will, if practicable, be the Financial
Times (London Edition) and, in the case of Luxembourg, will, if practicable,
be the Luxemburger Wort) published in an official language of the country of
publication customarily published at least once a day for at least five days
in each calendar week and of general circulation in The City of New York, the
United Kingdom or in Luxembourg, as applicable. If it shall be impractical in
the opinion of the Trustee to make any publication of any notice required
hereby in an Authorized Newspaper, any publication or other notice in lieu
thereof which is made or given with the approval of the Trustee shall consti-
tute a sufficient publication of such notice.
2
"Board of Directors" means either the Board of Directors of the Issuer or any
committee or other designees of such Board duly authorized to act on its be-
half.
"Board Resolution" means a copy of one or more resolutions, certified by the
secretary or an assistant secretary of the Issuer to have been duly adopted or
consented to by the Board of Directors and to be in full force and effect, and
delivered to the Trustee.
"Business Day" means, with respect to any Security, a day that in the city
(or in any of the cities, if more than one) in which amounts are payable, as
specified in the form of such Security, is not a day on which banking institu-
tions are authorized or required by law or regulation to close.
"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 and delivery of this Indenture such Commission is
not existing and performing the duties now assigned to it under the Trust In-
denture Act of 1939, then the body performing such duties on such date.
"Composite Rate" means, at any time, the rate of interest, per annum, com-
pounded semiannually, equal to the sum of the products obtained by multiplying
the rate of interest borne by the Securities of each series (as specified on
the face of the Securities of each series, provided, that, in the case of the
Securities with variable rates of interest, the interest rate to be used in
calculating the Composite Rate shall be the interest rate applicable to such
Securities at the beginning of the year in which the Composite Rate is being
determined and, provided, further, that, in the case of Original Issue Dis-
count Securities, the interest rate to be used in calculating the Composite
Rate shall be a rate equal to the yield to maturity on such Securities, calcu-
lated at the time of issuance of such Securities) by the percentage of the ag-
gregate principal amount of the Securities of all series Outstanding repre-
sented by the Outstanding Securities of such series. For the purposes of this
calculation, the aggregate principal amount of Outstanding Securities that are
denominated in a foreign currency shall be calculated in the manner set forth
in Section 11.11, and the aggregate principal amount of Original Issue Dis-
count Securities shall be the aggregate amount then payable upon the declara-
tion of acceleration of the maturity thereof pursuant to Section 5.1.
"Consolidated Net Tangible Assets" shall mean, at any date, the total assets
appearing on the consolidated balance sheet of the Issuer and its consolidated
3
Subsidiaries for the Issuer's most recently completed fiscal quarter, prepared
in accordance with generally accepted accounting principles, less (a) all cur-
rent liabilities shown on such balance sheet and (b) Intangible Assets. "In-
tangible Assets" means the value (net of applicable reserves), as shown on or
reflected in such balance sheet, of: (i) all trade names, trademarks, li-
censes, patents, copyrights and goodwill; (ii) organizational or development
costs; (iii) deferred charges (other than prepaid items such as insurance,
taxes, interest, commissions, rents and similar items and tangible assets be-
ing amortized); and (iv) unamortized debt discount and expense, less premium.
"Corporate Trust Office" means the office of the Trustee at which the corpo-
rate trust business of the Trustee shall, at any particular time, be princi-
pally administered, which office is, at the date as of which this Indenture is
dated, located in ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, Atten-
tion: Global Trust Services.
"Coupon" means any interest coupon appertaining to a Security.
"covenant defeasance" shall have the meaning set forth in Section 10.1(C).
"Debt" of any Person shall mean any debt for money borrowed which is issued,
assumed, incurred or guaranteed in any manner by such Person.
"Depositary" means, with respect to the Securities of any series issuable or
issued in the form of one or more Registered Global Securities, the Person
designated as Depositary by the Issuer pursuant to Section 2.3 until a succes-
sor Depositary shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter "Depositary" shall mean or include each Person
who is then a Depositary hereunder, and if at any time there is more than one
such Person, "Depositary" as used with respect to the Securities of any such
series shall mean the Depositary with respect to the Registered Global Securi-
ties of that series.
"Dollar" means the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
"ECU" means the European Currency Unit as defined and revised from time to
time by the Council of European Communities.
"Event of Default" means any event or condition specified as such in
Section 5.1.
4
"Exempted Debt" shall mean the sum of (a) Debt of the Issuer and its Subsidi-
aries incurred after the date as of which this Indenture is dated and secured
by liens created, assumed or permitted to exist pursuant to Section 3.6(b) and
(b) Attributable Debt of the Issuer and its Subsidiaries in respect of all
sale and leaseback transactions entered into pursuant to Section 3.6(d).
"Foreign Currency" means a currency issued by the government of a country
other than the United States.
"Holder," "Holder of Securities," "Securityholder" or other similar terms
mean (a) in the case of any Registered Security, the person in whose name such
Security is registered in the security register kept by the Issuer for that
purpose in accordance with the terms hereof, and (b) in the case of any Unreg-
istered Security, the bearer of such Security, or any Coupon appertaining
thereto, as the case may be.
"Indenture" means this instrument as originally executed and delivered or, if
amended or supplemented as herein provided, as so amended or supplemented or
both, and shall include the forms and terms of particular series of Securities
established as contemplated hereunder.
"Interest" means, when used with respect to non-interest bearing Securities,
interest payable after maturity.
"Issuer" means New Tenneco Inc., a Delaware corporation, and, subject to Ar-
ticle Nine, its successors and assigns.
"Issuer Order" means a written statement, request or order of the Issuer
signed in its name by the chairman of the Board of Directors, the chief execu-
tive officer, the president, any vice president, the chief financial officer,
the treasurer, the controller or any other officer designated by the Board of
Directors or any of the foregoing officers of the Issuer.
"Judgment Currency" shall have the meaning set forth in Section 11.12.
"Mortgage" shall have the meaning set forth in Section 3.6(a).
"Net Rental Payments" under any lease for any period shall mean the sum of
monies and other payments required to be paid by the lessee under such lease
as rent thereunder, not including amounts payable by the lessee for mainte-
▇▇▇▇▇ and repairs, financing services, water or electrical rates, insurance,
taxes, assessments, contingent rents (such as those based on sales) and simi-
lar charges.
5
"Officer's Certificate" means a certificate signed by the chairman of the
Board of Directors, the chief executive officer, the president, the chief fi-
nancial officer, any vice president, the treasurer, the controller or any
other officer designated by the Board of Directors or any of the foregoing of-
ficers of the Issuer and delivered to the Trustee. Each such certificate shall
comply with Section 314 of the Trust Indenture Act of 1939 and include the
statements provided for in Section 11.5.
"Opinion of Counsel" means an opinion in writing signed by the General Coun-
sel of the Issuer or by such other legal counsel who may be an employee of or
counsel to the Issuer and who shall be satisfactory to the Trustee. Each such
opinion shall comply with Section 314 of the Trust Indenture Act of 1939 and
include the statements provided for in Section 11.5.
"original issue date" of any Security (or portion thereof) means the earlier
of (a) the date of such Security or (b) the date of any Security (or portion
thereof) for which such Security was issued (directly or indirectly) on regis-
tration of transfer, exchange or substitution.
"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 5.1.
"Outstanding," when used with reference to Securities, shall, subject to the
provisions of Section 7.4, mean, as of any particular time, all Securities au-
thenticated and delivered by the Trustee under this Indenture, except
(a) Securities theretofore cancelled by the Trustee or delivered to the
Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or redemption of which
moneys or U.S. Government Obligations (as provided for in Section 10.1) in
the necessary amount shall have been deposited in trust with the Trustee or
with any paying agent (other than the Issuer) or shall have been set aside,
segregated and held in trust by the Issuer for the Holders of such Securi-
ties (if the Issuer shall act as its own paying agent), provided that if
such Securities, or portions thereof, are to be redeemed prior to the matu-
rity thereof, notice of such redemption shall have been given as herein pro-
vided, or provision satisfactory to the Trustee shall have been made for
giving such notice; and
(c) Securities which shall have been paid or in substitution for which
other Securities shall have been authenticated and delivered pursuant to the
terms of Section 2.9 (except with respect to any such Security as to which
proof satis-
6
factory to the Trustee is presented that such Security is held by a person
in whose hands such Security is a legal, valid and binding obligation of the
Issuer).
In determining whether the Holders of the requisite principal amount of Out-
standing Securities of any or all series have given any request, demand, au-
thorization, direction, notice, consent or waiver hereunder, the principal
amount of an Original Issue Discount Security that shall be deemed to be Out-
standing for such purposes shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon a declara-
tion of acceleration of the maturity thereof pursuant to Section 5.1.
"Periodic Offering" means an offering of Securities of a series from time to
time, the specific terms of which Securities, including, without limitation,
the rate or rates of interest, if any, thereon, the stated maturity or maturi-
ties thereof and the redemption provisions, if any, with respect thereto, are
to be determined by the Issuer or its agents upon the issuance of such Securi-
ties.
"Permitted Mortgage" means:
(i) any governmental, mechanics', materialmen's, carriers' or similar lien
created in the ordinary course of business which is not yet due or which is
being contested in good faith by appropriate proceedings and any undeter-
mined lien which is incidental to construction;
(ii) any right reserved to, or vested in, any municipality or public au-
thority by the terms of any right, power, franchise, grant, license, permit
or by any provision of law, to purchase or recapture or to designate a pur-
chaser of, any property;
(iii) any lien of taxes and assessments which is (A) for the current year,
or (B) not at the time delinquent or (C) delinquent but the validity of
which is being contested at the time by the Issuer or any Subsidiary in good
faith;
(iv) any lien arising from or in connection with a conveyance by the Issuer
or any Subsidiary of any production payment with respect to oil, gas, natu-
ral gas, carbon dioxide, sulphur, helium, coal, metals, minerals, steam,
timber or other natural resources;
(v) any lien to secure obligations imposed by statute or governmental regu-
lations; or
(vi) any lien of, or to secure performance of, leases (other than leases
relating to a sale and leaseback transaction).
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, association, joint stock company, trust, unincorpo-
rated organization or government or any agency or political subdivision there-
of.
7
"principal," whenever used with reference to the Securities or any Security
or any portion thereof, shall be deemed to include "and premium, if any."
"Principal Manufacturing Property" shall mean any manufacturing plant or any
testing or research and development facility of the Issuer or a Subsidiary lo-
cated in the United States of America (other than its territories and posses-
sions) unless, in the opinion of the Board of Directors, such plant or facil-
ity is not of material importance to the total business conducted by the Is-
▇▇▇▇ and its consolidated Subsidiaries. Principal Manufacturing Property shall
include, without limitation, additions, improvements, replacements, repairs,
fixtures, appurtenances or component parts of any such plant or facility at-
taching to or required to be attached to property or assets pursuant to the
terms of any Mortgage (including, without limitation, pursuant to any "after-
acquired property" clause or similar term thereof).
"record date" shall have the meaning set forth in Section 2.7.
"Registered Global Security" means a Security evidencing all or a part of a
series of Registered Securities, issued to the Depositary for such series in
accordance with Section 2.4, and bearing the legend prescribed in Section 2.4.
"Registered Security" means any Security registered on the Security register
of the Issuer.
"Required Currency" shall have the meaning set forth in Section 11.12.
"Responsible Officer," when used with respect to the Trustee means the chair-
man of the board of directors, any vice chairman of the board of directors,
the chairman of the trust committee, the chairman of the executive committee,
any vice chairman of the executive committee, the president, any vice presi-
dent (whether or not designated by numbers or words added before or after the
title "vice president"), the cashier, the secretary, the treasurer, any trust
officer, any assistant trust officer, any assistant vice president, any ▇▇▇▇▇-
▇▇▇▇ cashier, any assistant secretary, any assistant treasurer, or any other
officer or assistant officer of the Trustee customarily performing functions
similar to those performed by the persons who at the time shall be such offi-
cers, respectively, or to whom any corporate trust matter is referred because
of his knowledge of and familiarity with the particular subject.
"Restricted Subsidiary" shall mean any Subsidiary that owns or is the lessee
of any Principal Manufacturing Property; provided, however, that the term "Re-
8
stricted Subsidiary" does not include any Subsidiary acquired or organized for
the purpose of acquiring the stock or business or assets of any Person other
than the Issuer or any Restricted Subsidiary, whether by merger, consolida-
tion, acquisition of stock or assets or similar transaction, so long as such
Subsidiary does not acquire all or any substantial part of the business or as-
sets of the Issuer or any other Restricted Subsidiary.
"Security" or "Securities" has the meaning stated in the first recital of
this Indenture, or, as the case may be, Securities that have been authenti-
cated and delivered under this Indenture.
"Subsidiary" means any corporation, partnership or other entity of which at
the time of determination the Issuer owns or controls directly or indirectly
more than 50% of the shares of voting stock or equivalent interest, provided
that the term "Subsidiary" shall not include Tenneco Tanker Holding Corpora-
tion, Hvide Partners, L.P., Hvide Van Ommeren Tankers I LLC, Hvide Van Ommeren
Tankers II LLC, Hvide Van Ommeren III LLC, Hvide Van Ommeren Tankers IV LLC,
Hvide Van Ommeren Tankers V LLC, and Hvide Van Ommeren Tankers Options LLC.
"Trust Indenture Act of 1939" (except as otherwise required by applicable law
or as provided in Sections 8.1 and 8.2) means the Trust Indenture Act of 1939
as in force at the date as of which this Indenture was originally executed.
"Trustee" means the Person identified as "Trustee" in the first paragraph
hereof and, subject to the provisions of Article Six, shall also include any
successor trustee. "Trustee" shall also mean or include each Person who is
then a trustee hereunder and if at any time there is more than one such Per-
son, "Trustee" as used with respect to the Securities of any series shall mean
the trustee with respect to the Securities of such series.
"Unregistered Security" means any Security other than a Registered Security.
"U.S. Government Obligations" shall have the meaning set forth in Section
10.1(A).
"Yield to Maturity" means the yield to maturity on a series of Securities,
calculated at the time of issuance of such series, or, if applicable, at the
most recent redetermination of interest on such series, and calculated in ac-
cordance with accepted financial practice.
9
ARTICLE TWO
Securities
Section 2.1 Forms Generally. The Securities of each series and the Coupons,
if any, to be attached thereto shall be substantially in such form (not incon-
sistent with this Indenture) as shall be established by or pursuant to one or
more Board Resolutions (as set forth in a Board Resolution or, to the extent
established pursuant to rather than set forth in a Board Resolution, an Offi-
cer's Certificate detailing such establishment) or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this Inden-
ture and may have imprinted or otherwise reproduced thereon such legend or
legends or endorsements, not inconsistent with the provisions of this Inden-
ture, as may be required to comply with any law or with any rules or regula-
tions pursuant thereto, or with any rules of any securities exchange or to
conform to general usage, all as may be determined by the officers executing
such Securities and Coupons, if any, as evidenced by their execution of such
Securities and Coupons.
The definitive Securities and Coupons, if any, shall be printed, lithographed
or engraved on steel engraved borders or may be produced in any other manner,
all as determined by the officers executing such Securities and Coupons, if
any, as evidenced by their execution of such Securities and Coupons, if any.
Section 2.2 Form of Trustee's Certificate of Authentication. The Trustee's
certificate of authentication on all Securities shall be in substantially the
following form:
"This is one of the Securities referred to in the within-mentioned Inden-
ture.
__________________________________________ ,
as Trustee
By _________________________________________
Authorized Officer"
If at any time there shall be an Authenticating Agent appointed with respect
to any series of Securities, then the Trustee's Certificate of Authentication
to be borne by the Securities of each such series shall be substantially as
follows:
10
"This is one of the Securities referred to in the within-mentioned Inden-
ture.
__________________________________________ ,
as Authenticating Agent
By _________________________________________
Authorized Officer"
Section 2.3 Amount Unlimited; Issuable in Series. The aggregate principal
amount of Securities which may be authenticated and delivered under this In-
denture is unlimited.
The Securities may be issued in one or more series and each such series shall
rank equally and pari passu with all other unsecured and unsubordinated debt
of the Issuer. There shall be established in or pursuant to one or more Board
Resolutions (and to the extent established pursuant to rather than set forth
in a Board Resolution, in an Officer's Certificate detailing such establish-
ment) or established in one or more indentures supplemental hereto, prior to
the initial issuance of Securities of a series,
(1) the designation of the Securities of the series, which shall distin-
guish the Securities of the series from the Securities of all other series;
(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 2.8, 2.9, 2.11, 8.5 or 12.3);
(3) if other than Dollars, the coin or currency in which the Securities of
that series are denominated (including, but not limited to, any Foreign Cur-
rency or ECU);
(4) the date or dates on which the principal of the Securities of the se-
▇▇▇▇ is payable;
(5) the rate or rates at which the Securities of the series shall bear in-
terest, if any, the date or dates from which such interest shall accrue, on
which such interest shall be payable and (in the case of Registered Securi-
ties) on which a record shall be taken for the determination of Holders to
whom interest is payable and/or the method by which such rate or rates or
date or dates shall be determined;
(6) the place or places where the principal of and any interest on Securi-
ties of the series shall be payable (if other than as provided in Section
3.2);
11
(7) the right, if any, of the Issuer to redeem Securities of the series, in
whole or in part, at its option and the period or periods within which, the
price or prices at which and any terms and conditions upon which Securities
of the series may be so redeemed, pursuant to any sinking fund or otherwise;
(8) the obligation, if any, of the Issuer to redeem, purchase or repay Se-
curities of the series pursuant to any mandatory redemption, sinking fund or
analogous provisions or at the option of a Holder thereof and the price or
prices at which and the period or periods within which and any terms and
conditions upon which Securities of the series shall be redeemed, purchased
or repaid, in whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral multiple thereof
in the case of Registered Securities, or $1,000 and $5,000 in the case of
Unregistered Securities, the denominations in which Securities of the series
shall be issuable;
(10) if other than the principal amount thereof, the portion of the princi-
pal amount of Securities of the series which shall be payable upon declara-
tion of acceleration of the maturity thereof;
(11) if other than the coin or currency in which the Securities of that se-
▇▇▇▇ are denominated, the coin or currency in which payment of the principal
of or interest on the Securities of such series shall be payable;
(12) if the principal of or interest on the Securities of such series are
to be payable, at the election of the Issuer or a Holder thereof, in a coin
or currency other than that in which the Securities are denominated, the pe-
riod or periods within which, and the terms and conditions upon which, such
election may be made;
(13) if the amount of payments of principal of and interest on the Securi-
ties of the series may be determined with reference to an index based on a
coin or currency other than that in which the Securities of the series are
denominated, the manner in which such amounts shall be determined;
(14) whether the Securities of the series will be issuable as Registered
Securities (and if so, whether such Securities will be issuable as Regis-
tered Global Securities) or Unregistered Securities (with or without Cou-
pons), or any combination of the foregoing, any restrictions applicable to
the offer, sale or delivery of Unregistered Securities or the payment of in-
terest thereon and, if other than as provided in Section 2.8, the terms upon
which Unregistered Securities of any series may be exchanged for Registered
Securities of such series and vice versa;
(15) whether and under what circumstances the Issuer will pay additional
amounts on the Securities of the series held by a person who is not a U.S.
person in respect of any tax, assessment or governmental charge withheld or
deducted and, if so, whether the Issuer will have the option to redeem such
Securities rather than pay such additional amounts;
12
(16) if the Securities of such series are to be issuable in definitive form
(whether upon original issue or upon exchange of a temporary Security of
such series) only upon receipt of certain certificates or other documents or
satisfaction of other conditions, the form and terms of such certificates,
documents or conditions;
(17) any trustees, depositaries, authenticating or paying agents, transfer
agents or registrars or any other agents with respect to the Securities of
such series;
(18) any other events of default or covenants with respect to the Securi-
ties of such series;
(19) whether the Securities of the series shall be issued in the form of
one or more Registered Global Securities and, in such case, the Depositary
for such Registered Global Security or Securities; and
(20) any other terms of the series (which terms shall not be inconsistent
with the provisions of this Indenture).
All Securities of any one series and Coupons, if any, appertaining thereto,
shall be substantially identical, except in the case of Registered Securities,
as to denomination and except as may otherwise be provided by or pursuant to
the Board Resolution or Officer's Certificate referred to above or as set
forth in any such indenture supplemental hereto. All Securities of any one se-
▇▇▇▇ need not be issued at the same time and may be issued from time to time,
consistent with the terms of this Indenture, if so provided by or pursuant to
such Board Resolution, such Officer's Certificate or in any such indenture
supplemental hereto.
Section 2.4 Authentication and Delivery of Securities. The Issuer may deliver
Securities of any series having attached thereto appropriate Coupons, if any,
executed by the Issuer to the Trustee for authentication together with the ap-
plicable documents referred to below in this Section, and the Trustee shall
thereupon authenticate and deliver such Securities to or upon the order of the
Issuer (contained in the Issuer Order referred to below in this Section) or
pursuant to such procedures acceptable to the Trustee and to such recipients
as may be specified from time to time by an Issuer Order. The maturity date,
original issue date, interest rate and any other terms of the Securities of
such series and Coupons, if any, appertaining thereto shall be determined by
or pursuant to such Issuer Order and procedures. If provided for in such pro-
cedures, such Issuer Order may authorize authentication and delivery pursuant
to oral instructions from the Issuer or its duly authorized agent, which in-
structions shall be promptly confirmed in writing. In authenticating such Se-
curities and accepting the additional responsibilities under this Indenture in
relation to such Securities, the
13
Trustee shall be entitled to receive (in the case of subparagraphs 2, 3 and 4
below only at or before the time of the first request of the Issuer to the
Trustee to authenticate Securities of such series) and (subject to Section
6.1) shall be fully protected in relying upon, unless and until such documents
have been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting forth deliv-
ery instructions if the Securities and Coupons, if any, are not to be deliv-
ered to the Issuer, provided that, with respect to Securities of a series
subject to a Periodic Offering, (a) such Issuer Order may be delivered by
the Issuer to the Trustee prior to the delivery to the Trustee of such Secu-
rities 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, pursuant to an Issuer Order or pursuant
to procedures acceptable to the Trustee as may be specified from time to
time by an Issuer Order, (c) the maturity date or dates, original issue date
or dates, interest rate or rates and any other terms of Securities of such
series shall be determined by an Issuer Order or pursuant to such procedures
and (d) if provided for in such procedures, such Issuer Order may authorize
authentication and delivery pursuant to oral or electronic instructions from
the Issuer or its duly authorized agent or agents, which oral instructions
shall be promptly confirmed in writing;
(2) any Board Resolution, Officer's Certificate and/or executed supplemen-
tal indenture referred to in Sections 2.1 and 2.3 by or pursuant to which
the forms and terms of the Securities and Coupons, if any, were established;
(3) an Officer's Certificate setting forth the form or forms and terms of
the Securities and Coupons, if any, stating that the form or forms and terms
of the Securities and Coupons, if any, have been established pursuant to
Sections 2.1 and 2.3 and comply with this Indenture, and covering such other
matters as the Trustee may reasonably request; and
(4) At the option of the Issuer, either Opinions of Counsel, or letters ad-
dressed to the Trustee permitting it to rely on Opinions of Counsel, sub-
stantially to the effect that:
(a) the forms of the Securities and Coupons, if any, have been duly au-
thorized and established in conformity with the provisions of this
Indenture;
(b) in the case of an underwritten offering, the terms of the Securities
have been duly authorized and established in conformity with the provi-
sions of this Indenture, and, in the case of an offering that is not un-
derwritten, certain terms of the Securities have been established pursuant
to a Board Resolution, an Officer's Certificate or a supplemental inden-
ture in accordance with this Indenture, and when such other terms as are
to be estab-
14
lished pursuant to procedures set forth in an Issuer Order shall have been
established, all such terms will have been duly authorized by the Issuer
and will have been established in conformity with the provisions of this
Indenture;
(c) when the Securities and Coupons, if any, have been executed by the
Issuer and authenticated by the Trustee in accordance with the provisions
of this Indenture and delivered to and duly paid for by the purchasers
thereof, they will have been duly issued under this Indenture and will be
valid and legally binding obligations of the Issuer, enforceable in accor-
dance with their respective terms, and will be entitled to the benefits of
this Indenture; and
(d) the execution and delivery by the Issuer of, and the performance by
the Issuer of its obligations under, the Securities and Coupons, if any,
will not contravene any provision of applicable law or the certificate of
incorporation or by-laws of the Issuer or, to the best of such counsel's
knowledge, any agreement or other instrument binding upon the Issuer or
any of its Subsidiaries that is material to the Issuer and its Subsidiar-
ies, considered as one enterprise, or, to the best of such counsel's
knowledge, any judgment, order or decree of any governmental body, agency
or court having jurisdiction over the Issuer or any Subsidiary, and no
consent, approval or authorization of any governmental body or agency is
required for the performance by the Issuer of its obligations under the
Securities and Coupons, if any, except such as are specified and have been
obtained and such as may be required by the securities or blue sky laws of
the various states in connection with the offer and sale of the Securities
and Coupons, if any.
In rendering such opinions, such counsel may qualify any opinions as to en-
forceability by stating that such enforceability may be limited by bankruptcy,
insolvency, reorganization, liquidation, moratorium, fraudulent conveyance and
other similar laws affecting the rights and remedies of creditors and is sub-
ject to general principles of equity (regardless of whether such enforceabil-
ity is considered in a proceeding in equity or at law). Such counsel may rely
upon opinions of other counsel (copies of which shall be delivered to the
Trustee), who shall be counsel reasonably satisfactory to the Trustee, in
which case the opinion shall state that such counsel believes such counsel and
the Trustee are entitled so to rely. Such counsel may also state that, insofar
as such opinion involves factual matters, such counsel has relied, to the ex-
tent such counsel deems proper, upon certificates of officers of the Issuer
and its Subsidiaries and certificates of public officials.
15
The Trustee shall have the right to decline to authenticate and deliver any
Securities under this Section if the Trustee, being advised by counsel, deter-
mines that such action may not lawfully be taken by the Issuer or if the
Trustee in good faith by its board of directors or board of trustees, execu-
tive committee, or a trust committee of directors or trustees or Responsible
Officers shall determine that such action would expose the Trustee to personal
liability to existing Holders or would affect the Trustee's own rights, duties
or immunities under the Securities, this Indenture or otherwise.
If the Issuer shall establish pursuant to Section 2.3 that the Securities of
a series are to be issued in the form of one or more Registered Global Securi-
ties, then the Issuer shall execute and the Trustee shall, in accordance with
this Section and the Issuer Order with respect to such series, authenticate
and deliver one or more Registered Global Securities that (i) shall represent
and shall be denominated in an amount equal to the aggregate principal amount
of all of the Securities of such series to be represented by such Registered
Global Security or Securities, (ii) shall be registered in the name of the De-
positary for such Registered Global Security or Securities or the nominee of
such Depositary, (iii) shall be delivered by the Trustee to such Depositary or
pursuant to such Depositary's instructions and (iv) shall bear a legend sub-
stantially to the following effect: "Unless this certificate is presented by
an authorized representative of a Depositary to the Issuer or its agent for
registration of transfer, exchange or payment, and any certificate issued is
registered in the name of the nominee of such Depositary or such other name as
requested by an authorized representative of such Depositary and any payment
is made to the nominee of such Depositary, ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the regis-
tered owner hereof, the nominee, has an interest herein."
Each Depositary designated pursuant to Section 2.3 must, at the time of its
designation and at all times while it serves as Depositary, be a clearing
agency registered under the Securities Exchange Act of 1934 and any other ap-
plicable statute or regulation.
Section 2.5 Execution of Securities. The Securities and, if applicable, each
Coupon appertaining thereto shall be signed on behalf of the Issuer by any two
of the chairman of its Board of Directors or its chief executive officer or
its president or any vice president or its chief financial officer or its
treasurer or its controller or any other officer designated by the Board of
Directors, under its
16
corporate seal (except in the case of Coupons), which may, but need not, be
attested. Such signatures may be the manual or facsimile signatures of the
present or any future such officers. The seal of the Issuer may be in the form
of a facsimile thereof and may be impressed, affixed, imprinted or otherwise
reproduced on the Securities. Typographical and other minor errors or defects
in any such reproduction of the seal or any such signature shall not affect
the validity or enforceability of any Security that has been duly authenti-
cated and delivered by the Trustee.
In case any officer of the Issuer who shall have signed any of the Securities
or Coupons, if any, shall cease to be such officer before the Security or Cou-
pon so signed (or the Security to which the Coupon so signed appertains) shall
be authenticated and delivered by the Trustee or disposed of by the Issuer,
such Security or Coupon nevertheless may be authenticated and delivered or
disposed of as though the person who signed such Security or Coupon had not
ceased to be such officer of the Issuer; and any Security or Coupon may be
signed on behalf of the Issuer by such persons as, at the actual date of the
execution of such Security or Coupon, shall be the proper officers of the Is-
▇▇▇▇, although at the date of the execution and delivery of this Indenture any
such person was not such an officer.
Section 2.6 Certificate of Authentication. Only such Securities as shall bear
thereon a certificate of authentication substantially in the form hereinbefore
recited, executed by the Trustee by the manual signature of one of its autho-
rized officers, shall be entitled to the benefits of this Indenture or be
valid or obligatory for any purpose. No Coupon shall be entitled to the bene-
fits of this Indenture or shall be valid and obligatory for any purpose until
the certificate of authentication on the Security to which such Coupon apper-
tains shall have been duly executed by the Trustee. The execution of such cer-
tificate by the Trustee upon any Security executed by the Issuer shall be con-
clusive evidence that the Security so authenticated has been duly authenti-
cated and delivered hereunder and that the Holder is entitled to the benefits
of this Indenture.
Section 2.7 Denomination and Date of Securities; Payments of Interest.
The Securities of each series shall be issuable as Registered Securities or
Unregistered Securities in denominations established as contemplated by Sec-
tion 2.3 or, with respect to the Registered Securities of any series, if not
so established, in denominations of $1,000 and any integral multiple thereof.
If denominations of Unregistered Securities of any series are not so estab-
lished, such Securities shall be issuable in denominations of $1,000 and
$5,000. The Securities of each
17
series shall be numbered, lettered or otherwise distinguished in such manner
or in accordance with such plan as the officers of the Issuer executing the
same may determine with the approval of the Trustee, as evidenced by the exe-
cution and authentication thereof.
Each Registered Security shall be dated the date of its authentication. Each
Unregistered Security shall be dated as provided in the resolution or resolu-
tions of the Board of Directors of the Issuer referred to in Section 2.3. The
Securities of each series shall bear interest, if any, from the date, and such
interest shall be payable on the dates, established as contemplated by Section
2.3.
Unless otherwise provided in the Registered Securities of any series, the
person in whose name any Registered Security of any series is registered at
the close of business on any record date applicable to a particular series
with respect to any interest payment date for such series shall be entitled to
receive the interest, if any, payable on such interest payment date notwith-
standing any transfer or exchange of such Registered Security subsequent to
the record date and prior to such interest payment date, except if and to the
extent the Issuer shall default in the payment of the interest due on such in-
terest payment date for such series, in which case such defaulted interest
shall be paid to the persons in whose names Outstanding Registered Securities
for such series are registered at the close of business on a subsequent record
date (which shall be not less than five Business Days prior to the date of
payment of such defaulted interest) established by notice given by mail by or
on behalf of the Issuer to the Holders of Registered Securities not less than
15 days preceding such subsequent record date. The term "record date" as used
with respect to any interest payment date (except a date for payment of de-
faulted interest) for the Securities of any series shall mean the date speci-
fied as such in the terms of the Registered Securities of such series estab-
lished as contemplated by Section 2.3, or, if no such date is so established,
if such interest payment date is the first day of a calendar month, the fif-
teenth day of the next preceding calendar month or, if such interest payment
date is the fifteenth day of a calendar month, the first day of such calendar
month, whether or not such record date is a Business Day.
Section 2.8 Registration, Transfer and Exchange. The Issuer will keep at each
office or agency to be maintained for the purpose as provided in Section 3.2
for each series of Securities a register or registers in which, subject to
such reasonable regulations as it may prescribe, it will provide for the reg-
istration of Registered Securities of such series and the registration of
transfer of Registered
18
Securities of such series. Such register shall be in written form in the En-
glish language or in any other form capable of being converted into such form
within a reasonable time. At all reasonable times such register or registers
shall be open for inspection by the Trustee.
Upon due presentation for registration of transfer of any Registered Security
of any series at any such office or agency to be maintained for the purpose as
provided in Section 3.2, the Issuer shall execute and the Trustee shall au-
thenticate and deliver in the name of the transferee or transferees a new Reg-
istered Security or Registered Securities of the same series, maturity date,
interest rate and original issue date in authorized denominations for a like
aggregate principal amount.
Unregistered Securities (except for any temporary global Unregistered Securi-
ties) and Coupons (except for Coupons attached to any temporary global Unreg-
istered Securities) shall be transferable by delivery.
At the option of the Holder thereof, Registered Securities of any series
(other than a Registered Global Security, except as set forth below) may be
exchanged for a Registered Security or Registered Securities of such series
having authorized denominations and an equal aggregate principal amount, upon
surrender of such Registered Securities to be exchanged at the agency of the
Issuer that shall be maintained for such purpose in accordance with Section
3.2 and upon payment, if the Issuer shall so require, of the charges hereinaf-
ter provided. If the Securities of any series are issued in both registered
and unregistered form, except as otherwise specified pursuant to Section 2.3,
at the option of the Holder thereof, Unregistered Securities of any series may
be exchanged for Registered Securities of such series having other authorized
denominations and an equal aggregate principal amount, upon surrender of such
Unregistered Securities to be exchanged at the agency of the Issuer that shall
be maintained for such purpose in accordance with Section 3.2, with, in the
case of Unregistered Securities that have Coupons attached, all unmatured Cou-
pons and all matured Coupons in default thereto appertaining, and upon pay-
ment, if the Issuer shall so require, of the charges hereinafter provided. At
the option of the Holder thereof, if Unregistered Securities of any series,
maturity date, interest rate and original issue date are issued in more than
one authorized denomination, except as otherwise specified pursuant to Section
2.3, such Unregistered Securities may be exchanged for Unregistered Securities
of such series having authorized denominations and an equal aggregate princi-
pal amount, upon surrender of such Unregistered Securities
19
to be exchanged at the agency of the Issuer that shall be maintained for such
purpose in accordance with Section 3.2 or as specified pursuant to Section
2.3, with, in the case of Unregistered Securities that have Coupons attached,
all unmatured Coupons and all matured Coupons in default thereto appertaining,
and upon payment, if the Issuer shall so require, of the charges hereinafter
provided. Unless otherwise specified pursuant to Section 2.3, Registered Secu-
rities of any series may not be exchanged for Unregistered Securities of such
series. Whenever any Securities are so surrendered for exchange, the Issuer
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive. All Securities
and Coupons surrendered upon any exchange or transfer provided for in this In-
denture shall be promptly cancelled and disposed of by the Trustee and the
Trustee will deliver a certificate of disposition thereof to the Issuer.
All Registered Securities presented for registration of transfer, exchange,
redemption or payment shall (if so required by the Issuer or the Trustee) be
duly endorsed by, or be accompanied by a written instrument or instruments of
transfer in form satisfactory to the Issuer and the Trustee duly executed by,
the Holder or his attorney duly authorized in writing.
The Issuer may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any exchange or
registration of transfer of Securities. No service charge shall be made for
any such transaction.
The Issuer shall not be required to exchange or register a transfer of (a)
any Securities of any series for a period of 15 days next preceding the first
mailing of notice of redemption of Securities of such series to be redeemed or
(b) any Securities selected, called or being called for redemption, in whole
or in part, except, in the case of any Security to be redeemed in part, the
portion thereof not so to be redeemed.
Notwithstanding any other provision of this Section 2.8, unless and until it
is exchanged in whole or in part for Securities in definitive registered form,
a Registered Global Security representing all or a portion of the Securities
of a series may not be transferred except as a whole by the Depositary for
such series to a nominee of such Depositary or by a nominee of such Depositary
to such Depositary or another nominee of such Depositary or by such Depositary
or any such nominee to a successor Depositary for such series or a nominee of
such successor Depositary.
20
If at any time the Depositary for any Registered Securities of a series rep-
resented by one or more Registered Global Securities notifies the Issuer that
it is unwilling or unable to continue as Depositary for such Registered Secu-
rities or if at any time the Depositary for such Registered Securities shall
no longer be eligible under Section 2.4, the Issuer shall appoint a successor
Depositary eligible under Section 2.4 with respect to such Registered Securi-
ties. If a successor Depositary eligible under Section 2.4 for such Registered
Securities is not appointed by the Issuer within 90 days after the Issuer re-
ceives such notice or becomes aware of such ineligibility, the Issuer's elec-
tion pursuant to Section 2.3 that such Registered Securities be represented by
one or more Registered Global Securities shall no longer be effective and the
Issuer will execute, and the Trustee, upon receipt of an Officer's Certificate
for the authentication and delivery of definitive Securities of such series,
will authenticate and deliver, Securities of such series in definitive regis-
tered form without coupons, in any authorized denominations, in an aggregate
principal amount equal to the principal amount of the Registered Global Secu-
rity or Securities representing such Registered Securities in exchange for
such Registered Global Security or Securities.
The Issuer may at any time and in its sole discretion determine that the Reg-
istered Securities of any series issued in the form of one or more Registered
Global Securities shall no longer be represented by a Registered Global Secu-
rity or Securities. In such event the Issuer will execute, and the Trustee,
upon receipt of an Officer's Certificate for the authentication and delivery
of definitive Securities of such series, will authenticate and deliver, Secu-
rities of such series in definitive registered form without coupons, in any
authorized denominations, in an aggregate principal amount equal to the prin-
cipal amount of the Registered Global Security or Securities representing such
Registered Securities, in exchange for such Registered Global Security or Se-
curities.
If specified by the Issuer pursuant to Section 2.3 with respect to Securities
represented by a Registered Global Security, the Depositary for such Regis-
tered Global Security may surrender such Registered Global Security in ex-
change in whole or in part for Securities of the same series in definitive
registered form on such terms as are acceptable to the Issuer and such Deposi-
tary. Thereupon, the Issuer shall execute, and the Trustee shall authenticate
and deliver, without service charge,
(i) to the Person specified by such Depositary a new Registered Security or
Securities of the same series, of any authorized denominations as requested
by such Person, in an aggregate principal amount equal to and in exchange
for such Person's beneficial interest in the Registered Global Security; and
21
(ii) to such Depositary a new Registered Global Security in a denomination
equal to the difference, if any, between the principal amount of the surren-
dered Registered Global Security and the aggregate principal amount of Reg-
istered Securities authenticated and delivered pursuant to clause (i) above.
Upon the exchange of a Registered Global Security for Securities in defini-
tive registered form without Coupons, in authorized denominations, such Regis-
tered Global Security shall be cancelled by the Trustee or an agent of the Is-
▇▇▇▇ or the Trustee. Securities in definitive registered form without coupons
issued in exchange for a Registered Global Security pursuant to this Section
2.8 shall be registered in such names and in such authorized denominations as
the Depositary for such Registered Global Security, pursuant to instructions
from its direct or indirect participants or otherwise, shall instruct the
Trustee or an agent of the Issuer or the Trustee. The Trustee or such agent
shall deliver such Securities to or as directed by the Persons in whose names
such Securities are so registered.
All Securities issued upon any transfer or exchange of Securities shall be
valid obligations of the Issuer, evidencing the same debt, and entitled to the
same benefits under this Indenture, as the Securities surrendered upon such
transfer or exchange.
Notwithstanding anything herein or in the terms of any series of Securities
to the contrary, none of the Issuer, the Trustee or any agent of the Issuer or
the Trustee (any of which, other than the Issuer, shall rely on an Officer's
Certificate and an Opinion of Counsel) shall be required to exchange any Un-
registered Security for a Registered Security if such exchange would result in
adverse Federal income tax consequences to the Issuer (such as, for example,
the inability of the Issuer to deduct from its income, as computed for Federal
income tax purposes, the interest payable on the Unregistered Securities) un-
der then applicable United States Federal income tax laws.
Section 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities. In
case any temporary or definitive Security or any Coupon appertaining to any
Security shall become mutilated, defaced or be destroyed, lost or stolen, the
Issuer in its discretion may execute, and, upon the written request of any of-
ficer of the Issuer, the Trustee shall authenticate and deliver, a new Secu-
rity of the same series, maturity date, interest rate and original issue date,
bearing a number or other distinguishing symbol not contemporaneously out-
standing, in exchange and substitution for the mutilated or defaced Security,
or in lieu of and in substitution for the Security so destroyed, lost or sto-
len, with Coupons corresponding
22
to the Coupons appertaining to the Securities so mutilated, defaced, de-
stroyed, lost or stolen, or in exchange or substitution for the Security to
which such mutilated, defaced, destroyed, lost or stolen Coupon appertained,
with Coupons appertaining thereto corresponding to the Coupons so mutilated,
defaced, destroyed, lost or stolen. In every case the applicant for a substi-
tute Security or Coupon shall furnish to the Issuer and to the Trustee and any
agent of the Issuer or the Trustee such security or indemnity as may be re-
quired by them to indemnify and defend and to save each of them harmless and,
in every case of destruction, loss or theft, evidence to their satisfaction of
the destruction, loss or theft of such Security or Coupon and of the ownership
thereof and in the case of mutilation or defacement shall surrender the Secu-
rity and related Coupons to the Trustee or such agent.
Upon the issuance of any substitute Security or Coupon, the Issuer may re-
quire 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 (includ-
ing the fees and expenses of the Trustee) or its agent connected therewith. In
case any Security or Coupon which has matured or is about to mature or has
been called for redemption in full shall become mutilated or defaced or be de-
stroyed, lost or stolen, the Issuer may instead of issuing a substitute Secu-
rity, pay or authorize the payment of the same or the relevant Coupon (without
surrender thereof except in the case of a mutilated or defaced Security or
Coupon), if the applicant for such payment shall furnish to the Issuer and to
the Trustee and any agent of the Issuer or the Trustee such security or indem-
nity as any of them may require to save each of them harmless, and, in every
case of destruction, loss or theft, the applicant shall also furnish to the
Issuer and the Trustee and any agent of the Issuer or the Trustee evidence to
their satisfaction of the destruction, loss or theft of such Security or Cou-
pon and of the ownership thereof.
Every substitute Security or Coupon of any series issued pursuant to the pro-
visions of this Section by virtue of the fact that any such Security or Coupon
is destroyed, lost or stolen shall constitute an additional contractual obli-
gation of the Issuer, whether or not the destroyed, lost or stolen Security or
Coupon shall be at any time enforceable by anyone and shall be entitled to all
the benefits of (but shall be subject to all the limitations of rights set
forth in) this Indenture equally and proportionately with any and all other
Securities or Coupons of such series duly authenticated and delivered hereun-
der. All Securities and Coupons shall be held and owned upon the express con-
dition that, to the extent permitted by law, the foregoing provisions are ex-
clusive with respect to the replacement or
23
payment of mutilated, defaced or destroyed, lost or stolen Securities and Cou-
pons and shall preclude any and all other rights or remedies notwithstanding
any law or statute existing or hereafter enacted to the contrary with respect
to the replacement or payment of negotiable instruments or other securities
without their surrender.
Section 2.10 Cancellation of Securities; Destruction Thereof. All Securities
and Coupons surrendered for payment, redemption, registration of transfer or
exchange, or for credit against any payment in respect of a sinking or analo-
gous fund, if surrendered to the Issuer or any agent of the Issuer or the
Trustee or any agent of the Trustee, shall be delivered to the Trustee or its
agent for cancellation or, if surrendered to the Trustee, shall be cancelled
by it; and no Securities or Coupons shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Indenture. The Trustee or
its agent shall dispose of cancelled Securities and Coupons held by it and de-
liver a certificate of disposition to the Issuer. If the Issuer or its agent
shall acquire any of the Securities or Coupons, such acquisition shall not op-
erate as a redemption or satisfaction of the indebtedness represented by such
Securities or Coupons unless and until the same are delivered to the Trustee
or its agent for cancellation.
Section 2.11 Temporary Securities. Pending the preparation of definitive Se-
curities for any series, the Issuer may execute and the Trustee shall authen-
ticate and deliver temporary Securities for such series (printed, litho-
graphed, typewritten or otherwise reproduced, in each case in form satisfac-
tory to the Trustee). Temporary Securities of any series shall be issuable as
Registered Securities without Coupons, or as Unregistered Securities with or
without Coupons attached thereto, of any authorized denomination, and substan-
tially in the form of the definitive Securities of such series but with such
omissions, insertions and variations as may be appropriate for temporary Secu-
rities, all as may be determined by the Issuer with the concurrence of the
Trustee as evidenced by the execution and authentication thereof. Temporary
Securities may contain such references to any provisions of this Indenture as
may be appropriate. Every temporary Security shall be executed by the Issuer
and be authenticated by the Trustee upon the same conditions and in substan-
tially the same manner, and with like effect, as the definitive Securities.
Without unreasonable delay the Issuer shall execute and shall furnish defini-
tive Securities of such series and thereupon temporary Registered Securities
of such series may be surrendered in exchange therefor without charge at each
office or agency to be maintained by the Issuer for that purpose pursuant to
Section 3.2 and, in the case of Unregistered Securities, at any agency
24
maintained by the Issuer for such purpose as specified pursuant to Section
2.3, and the Trustee shall authenticate and deliver in exchange for such tem-
porary Securities of such series an equal aggregate principal amount of defin-
itive Securities of the same series having authorized denominations and, in
the case of Unregistered Securities, having attached thereto any appropriate
Coupons. Until so exchanged, the temporary Securities of any series shall be
entitled to the same benefits under this Indenture as definitive Securities of
such series, unless otherwise established pursuant to Section 2.3. The provi-
sions of this Section are subject to any restrictions or limitations on the
issue and delivery of temporary Unregistered Securities of any series that may
be established pursuant to Section 2.3 (including any provision that Unregis-
tered Securities of such series initially be issued in the form of a single
global Unregistered Security to be delivered to a depositary or agency located
outside the United States and the procedures pursuant to which definitive or
global Unregistered Securities of such series would be issued in exchange for
such temporary global Unregistered Security).
ARTICLE THREE
Covenants of the Issuer
Section 3.1 Payment of Principal and Interest. The Issuer covenants and
agrees for the benefit of each series of Securities that it will duly and
punctually pay or cause to be paid the principal of, and interest on, each of
the Securities of such series (together with any additional amounts payable
pursuant to the terms of such Securities) at the place or places, at the re-
spective times and in the manner provided in such Securities and in the Cou-
pons, if any, appertaining thereto and in this Indenture. The interest on Se-
curities with Coupons attached (together with any additional amounts payable
pursuant to the terms of such Securities) shall be payable only upon presenta-
tion and surrender of the several Coupons for such interest installments as
are evidenced thereby as they severally mature. If any temporary Unregistered
Security provides that interest thereon may be paid while such Security is in
temporary form, the interest on any such temporary Unregistered Security (to-
gether with any additional amounts payable pursuant to the terms of such Secu-
rity) shall be paid, as to the installments of interest evidenced by Coupons
attached thereto, if any, only upon presentation and surrender thereof, and,
as to the other installments of interest, if any, only upon presentation of
such Securities for notation thereon of the payment of such interest, in each
case subject to any restrictions that may be established pursuant to Section
2.3. The interest on Registered Securities (together with any additional
25
amounts payable pursuant to the terms of such Securities) shall be payable
only to or upon the written order of the Holders thereof and, at the option of
the Issuer, may be paid by wire transfer or by mailing checks for such inter-
est payable to or upon the written order of such Holders at their last ad-
dresses as they appear on the registry books of the Issuer, unless otherwise
provided in such Securities.
Section 3.2 Offices for Payments, etc. So long as any Registered Securities
are authorized for issuance pursuant to this Indenture or are outstanding
hereunder, the Issuer will maintain in the Borough of Manhattan, The City of
New York, an office or agency where the Registered Securities of each series
may be presented for payment, where the Securities of each series may be pre-
sented for exchange as is provided in this Indenture and, if applicable, pur-
suant to Section 2.3 and where the Registered Securities of each series may be
presented for registration of transfer as in this Indenture provided.
The Issuer will maintain one or more offices or agencies in a city or cities
located outside the United States (including any city in which such an agency
is required to be maintained under the rules of any stock exchange on which
the Securities of such series are listed) where the Unregistered Securities,
if any, of each series and Coupons, if any, appertaining thereto may be pre-
sented for payment. No payment on any Unregistered Security or Coupon will be
made upon presentation of such Unregistered Security or Coupon at an agency of
the Issuer within the United States nor will any payment be made by transfer
to an account in, or by mail to an address in, the United States unless pursu-
ant to applicable United States laws and regulations then in effect such pay-
ment can be made without adverse tax consequences to the Issuer. Notwithstand-
ing the foregoing, payments in Dollars of Unregistered Securities of any se-
▇▇▇▇ and Coupons appertaining thereto which are payable in Dollars may be made
at an agency of the Issuer maintained in the Borough of Manhattan, The City of
New York if such payment in Dollars at each agency maintained by the Issuer
outside the United States for payment on such Unregistered Securities is ille-
gal or effectively precluded by exchange controls or other similar restric-
tions.
The Issuer will maintain in the Borough of Manhattan, The City of New York,
an office or agency where notices and demands to or upon the Issuer in respect
of the Securities of any series, the Coupons appertaining thereto or this In-
denture may be served.
26
The Issuer will give to the Trustee written notice of the location of each
such office or agency and of any change of location thereof. In case the Is-
▇▇▇▇ shall fail to maintain any agency required by this Section to be located
in the Borough of Manhattan, The City of New York, or shall fail to give such
notice of the location or of any change in the location of any of the above
agencies, presentations and demands may be made and notices may be served at
the Corporate Trust Office of the Trustee.
The Issuer may from time to time designate one or more additional offices or
agencies where the Securities of a series and any Coupons appertaining thereto
may be presented for payment, where the Securities of that series may be pre-
sented for exchange as provided in this Indenture and pursuant to Section 2.3
and where the Registered Securities of that series may be presented for regis-
tration of transfer as in this Indenture provided, and the Issuer may from
time to time rescind any such designation, as the Issuer may deem desirable or
expedient; provided, however, that no such designation or rescission shall in
any manner relieve the Issuer of its obligation to maintain the agencies pro-
vided for in this Section. The Issuer will give to the Trustee prompt written
notice of any such designation or rescission thereof.
Section 3.3 Appointment to Fill a Vacancy in Office of Trustee. The Issuer,
whenever necessary to avoid or fill a vacancy in the office of Trustee, will
appoint, in the manner provided in Section 6.10, a Trustee, so that there
shall at all times be a Trustee with respect to each series of Securities
hereunder.
Section 3.4 Paying Agents. Whenever the Issuer shall appoint a paying agent
other than the Trustee with respect to the Securities of any series, it will
cause such paying agent to execute and deliver to the Trustee an instrument in
which such agent shall agree with the Trustee, subject to the provisions of
this Section,
(a) that it will hold all sums received by it as such agent for the payment
of the principal of or interest on the Securities of such series (whether
such sums have been paid to it by the Issuer or by any other obligor on the
Securities of such series) in trust for the benefit of the Holders of the
Securities of such series, or Coupons appertaining thereto, if any, or of
the Trustee,
(b) that it will give the Trustee notice of any failure by the Issuer (or
by any other obligor on the Securities of such series) to make any payment
of the principal of or interest on the Securities of such series when the
same shall be due and payable, and
27
(c) that it will pay any such sums so held in trust by it to the Trustee
upon the Trustee's written request at any time during the continuance of the
failure referred to in clause (b) above.
The Issuer will, on or prior to each due date of the principal of or interest
on the Securities of such series, deposit with the paying agent a sum suffi-
cient to pay such principal or interest so becoming due, and (unless such pay-
ing agent is the Trustee) the Issuer will promptly notify the Trustee of any
failure to take such action.
If the Issuer shall act as its own paying agent with respect to the Securi-
ties of any series, it will, on or before each due date of the principal of or
interest on the Securities of such series, set aside, segregate and hold in
trust for the benefit of the Holders of the Securities of such series or the
Coupons appertaining thereto a sum sufficient to pay such principal or inter-
est so becoming due. The Issuer will promptly notify the Trustee of any fail-
ure to take such action.
Anything in this Section to the contrary notwithstanding, but subject to Sec-
tion 10.1, the Issuer may at any time, for the purpose of obtaining a satis-
faction and discharge with respect to one or more or all series of Securities
hereunder, or for any other reason, pay or cause to be paid to the Trustee all
sums held in trust for any such series by the Issuer or any paying agent here-
under, as required by this Section, such sums to be held by the Trustee upon
the trusts herein contained.
Anything in this Section to the contrary notwithstanding, the agreement to
hold sums in trust as provided in this Section is subject to the provisions of
Sections 10.3 and 10.4.
Section 3.5 Written Statement to Trustee. The Issuer will furnish to the
Trustee on or before April 30 in each year (beginning with April 30, 1997) a
brief certificate (which need not comply with Section 11.5) from the principal
executive, financial or accounting officer of the Issuer stating that in the
course of the performance by the signer of his duties as an officer of the Is-
▇▇▇▇ he would normally have knowledge of any default or non-compliance by the
Issuer in the performance of any covenants or conditions contained in this In-
denture, stating whether or not he has knowledge of any such default or non-
compliance and, if so, specifying each such default or non-compliance of which
the signer has knowledge and the nature thereof.
28
Section 3.6 Negative Pledge; Limitation on Sale and Leaseback Transactions.
(a) The Issuer will not issue, assume, incur or guarantee, and will not per-
mit any Restricted Subsidiary to issue, assume, incur or guarantee, any Debt
secured by any mortgage, pledge, lien or other encumbrance (any such mortgage,
pledge, lien and other encumbrance being hereinafter called a "Mortgage") upon
any Principal Manufacturing Property of the Issuer or any Restricted Subsidi-
ary, or upon shares of capital stock or Debt of any Restricted Subsidiary
(whether such Principal Manufacturing Property or shares of stock are now
owned or hereafter acquired or such Debt is now existing or hereafter incurred
or assumed), without in any such case effectively providing, concurrently with
the issuance or assumption of such Debt, that the Securities (together with,
if the Issuer shall so determine, any other Debt of the Issuer or such Re-
stricted Subsidiary ranking equally with the Securities and then existing or
thereafter created) shall be secured equally and ratably with such Debt; pro-
vided, however, that the foregoing restrictions shall not apply to:
(i) the creation of Mortgages on any Principal Manufacturing Property (in-
cluding any improvements on an existing property, as to which the Mortgage
may include such underlying real property as the Issuer may deem necessary
for the improvement and unnecessary for the operation of any theretofore ex-
isting Principal Manufacturing Property on the same or adjoining real prop-
erty) hereafter acquired by the Issuer or a Restricted Subsidiary prior to,
at the time of, or within 180 days after the latest of the acquisition, com-
pletion of construction or commencement of commercial operation of such
property, to secure or provide for the payment of financing of all or any
part of the purchase price thereof or construction of fixed improvements
thereon, or, in addition to assumptions in transactions contemplated by sub-
paragraph (ii) below, the assumption of any Mortgage upon any Principal Man-
ufacturing Property hereafter acquired existing at the time of such acquisi-
tions, or the acquisition of any Principal Manufacturing Property subject to
any Mortgage without the assumption thereof; provided that the aggregate
principal amount of Debt secured by any such Mortgage so issued, assumed or
existing shall not exceed 100% of the cost of such Principal Manufacturing
Property to the corporation acquiring the same or of the fair value thereof
(as determined by resolution adopted by the Board of Directors) at the time
of such acquisition, whichever is less, and, provided further, that in the
case of any such acquisition, construction or improvement the Mortgage shall
not apply to any property theretofore owned by the Issuer or a Restricted
Subsidiary, other than, in the case of any such construction or improvement,
any theretofore unimproved real property on which the property so construct-
ed, or the improvement, is located (which unimproved real property may at
the option of the Issuer be segregated by
29
legal description from other real property of the Issuer appurtenant to such
Principal Manufacturing Property and subjected to the Mortgage related to
such construction or improvement);
(ii) any Mortgages on any Principal Manufacturing Property of a corporation
which is merged into or consolidated with the Issuer or a Restricted Subsid-
iary or substantially all of the assets of which are acquired by the Issuer
or a Restricted Subsidiary (whether or not the obligations secured by any
such Mortgage are assumed by the Issuer or a Restricted Subsidiary); pro-
vided that such Mortgages were not created in contemplation of such merger,
consolidation or acquisition;
(iii) Mortgages on any Principal Manufacturing Property of the Issuer or a
Restricted Subsidiary in favor of the United States of America or any State
thereof, or any department, agency or instrumentality or political subdivi-
sion of the United States of America or any State thereof, or in favor of
any other country, or any political subdivision thereof, to secure partial,
progress, advance or other payments pursuant to any contract or statute or
to secure any Debt incurred or guaranteed for the purpose of financing all
or any part of the cost of acquiring, constructing or improving the property
subject to such Mortgages (including Mortgages incurred in connection with
financings of the type contemplated by Section 103 of the Internal Revenue
Code, maritime financings under Title XI of the United States Code or simi-
lar financings);
(iv) Mortgages on particular property (or any proceeds of the sale thereof)
to secure all or any part of the cost of exploration, drilling, mining, de-
velopment, operation or maintenance thereof (including, without limitation,
construction of facilities for field processing) intended to obtain or in-
crease the production and sale or other disposition of oil, gas, coal, natu-
ral gas, carbon dioxide, sulphur, helium, metals, minerals, steam, timber or
other natural resources, or any Debt created, issued, assumed or guaranteed
to provide funds for any or all such purposes;
(v) Mortgages securing Debt of a Restricted Subsidiary owing to the Issuer
and/or another Restricted Subsidiary;
(vi) Mortgages on any Principal Manufacturing Property of the Issuer or a
Restricted Subsidiary which Mortgages were in existence on the date of this
Indenture; provided, however, that each such Mortgage shall be limited to
all or a part of the property which secured such Mortgage at such date (plus
improvements and construction on such Property);
(vii) any extension, renewal or replacement (or successive extensions, re-
newals or replacements) in whole or in part, of any Mortgage referred to in
the foregoing clauses (i) through (vi); provided, however, that the princi-
pal amount of Debt so secured thereby shall not exceed the principal amount
of Debt so secured at the time of such extension, renewal or replacement,
and that such extension, renewal or replacement shall be limited to all or a
part of
30
the property which secured the Mortgage so extended, renewed or replaced
(plus improvements and construction on such property); and
(viii) Permited Mortgages.
(b) Notwithstanding the provisions of subsection (a) of this Section, the Is-
▇▇▇▇ or any one or more Restricted Subsidiaries may issue or assume Debt se-
cured by a Mortgage on a Principal Manufacturing Property in addition to those
permitted by subsection (a) of this Section and renew, extend or replace such
Mortgages; provided that at the time of such creation, assumption, renewal,
extension or replacement, and after giving effect thereto, Exempted Debt does
not exceed 15% of Consolidated Net Tangible Assets.
(c) The Issuer will not, nor will it permit any Restricted Subsidiary to, en-
ter into any arrangement with any Person providing for the leasing by the Is-
▇▇▇▇ or any Restricted Subsidiary of any Principal Manufacturing Property,
whether such Principal Manufacturing Property is now owned or hereafter ac-
quired (except for temporary leases for a term, including renewals at the op-
tion of the lessee, of not more than three years and except for leases between
the Issuer and a Restricted Subsidiary or between Restricted Subsidiaries),
which property has been or is to be sold or transferred by the Issuer or such
Restricted Subsidiary to such Person with the intention of taking back a lease
on such property (a "sale and leaseback transaction") unless the net proceeds
of such sale or transfer shall be at least equal to the fair value of such
property as determined by resolution adopted by the Board of Directors and ei-
ther:
(i) the Issuer or such Restricted Subsidiary would be entitled, pursuant to
the provisions of subsection (a) of this Section, to issue or assume Debt
secured by a Mortgage on such property at least equal in amount to the At-
tributable Debt in respect of such sale and leaseback transaction without
equally and ratable securing the Securities; or
(ii) since the date hereof and within a period commencing twelve months
prior to the consummation of such sale and leaseback transaction and ending
twelve months after the consummation of such sale and leaseback transaction
the Issuer or such Restricted Subsidiary, as the case may be, has expended
or will expend, or a combination of both, for facilities comprising all or a
part of a Principal Manufacturing Property an amount equal to (A) the net
proceeds of such sale and leaseback transaction and the Issuer elects to
designate such amount as a credit against such sale and leaseback transac-
tion or (B) a part of the net proceeds of such sale and leaseback transac-
tion and the Issuer elects to designate such amount as a credit against such
sale and leaseback transaction and applies an amount equal to the remainder
of the net proceeds as provided in clause (iii) hereof; or
31
(iii) such sale and leaseback transactions do not come within the excep-
tions provided in clause (i) hereof and the Issuer does not make the elec-
tion permitted by clause (ii) hereof or makes such election only as to part
of such net proceeds, in either which event the Issuer will, within 180 days
after such sale and leaseback transaction, apply an amount equal to the At-
tributable Debt in respect of such sale and leaseback transaction (less an
amount equal to the amount, if any, elected under clause (ii) hereof) to the
retirement (other than any mandatory retirement or by way of payment at ma-
turity) of Debt with a maturity of greater than one year of the Issuer or
any Restricted Subsidiary (other than Debt of the Issuer to any Restricted
Subsidiary or of any Restricted Subsidiary to the Issuer or another Re-
stricted Subsidiary).
(d) Notwithstanding the provisions of paragraph (c) of this Section, the Is-
▇▇▇▇ and any Restricted Subsidiary may enter into sale and leaseback transac-
tions in addition to those permitted by paragraph (c) of this Section and
without any obligation to make expenditures for facilities comprising a part
or all of a Principal Manufacturing Property or to retire any Debt, provided
that at the time of entering into such sale and leaseback transaction and af-
ter giving effect thereto, Exempted Debt does not exceed 15% of Consolidated
Net Tangible Assets.
Section 3.7 Luxembourg Publications. In the event of the publication of any
notice pursuant to Section 5.11, 6.10(a), 6.11, 8.2, 10.4, 12.2 or 12.5, the
party making such publication in the Borough of Manhattan, The City of New
York and London shall also, to the extent that notice is required to be given
to Holders of Securities of any series by applicable Luxembourg law or stock
exchange regulation, as evidenced by an Officer's Certificate delivered to
such party, make a similar publication in Luxembourg.
ARTICLE FOUR
Securityholders Lists and Reports by the Issuer and the Trustee
Section 4.1 Issuer to Furnish Trustee Information as to Names and Addresses
of Securityholders. If and so long as the Trustee shall not be the Security
registrar for the Securities of any series, the Issuer and any other obligor
on the Securities will furnish or cause to be furnished to the Trustee a list
in such form as the Trustee may reasonably require of the names and addresses
of the Holders of the Registered Securities of such series pursuant to Section
312 of the Trust Indenture Act of 1939 (a) semi-annually not more than 15 days
after each record date for the payment of interest on such Registered Securi-
ties, as hereinabove specified, as of such record date and on dates to be de-
termined
32
pursuant to Section 2.3 for non-interest bearing Registered Securities in each
year, and (b) at such other times as the Trustee may request in writing,
within 30 days after receipt by the Issuer of any such request as of a date
not more than 15 days prior to the time such information is furnished.
Section 4.2 Preservation and Disclosure of Securityholders Lists.
This Section intentionally left blank.
Section 4.3 Reports by the Issuer. The Issuer covenants to file with the
Trustee, within 30 days after the Issuer is required to file the same with the
Commission, copies of the annual reports and of the information, documents,
and other reports that the Issuer may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934
or pursuant to Section 314 of the Trust Indenture Act of 1939.
Section 4.4 Reports by the Trustee. Any Trustee's report required under Sec-
tion 313(a) of the Trust Indenture Act of 1939 shall be transmitted on or be-
fore January 15 in each year beginning January 15, 1997, as provided in Sec-
tion 313(c) of the Trust Indenture Act of 1939, so long as any Securities are
Outstanding hereunder, and shall be dated as of a date convenient to the
Trustee no more than 60 days prior thereto.
ARTICLE FIVE
Remedies of the Trustee and Securityholders on Event of Default
Section 5.1 Event of Default Defined; Acceleration of Maturity; Waiver of
Default. "Event of Default," with respect to Securities of any series wherever
used herein, means each one of the following events which shall have occurred
and be continuing (whatever the reason for such Event of Default and whether
it shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(a) default in the payment of any installment of interest upon any of the
Securities of such series as and when the same shall become due and payable,
and continuance of such default for a period of 30 days; or
(b) default in the payment of all or any part of the principal of any of
the Securities of such series as and when the same shall become due and pay-
able either at maturity, upon any redemption, by declaration or otherwise;
or
33
(c) failure on the part of the Issuer duly to observe or perform any other
of the covenants or agreements on the part of the Issuer in the Securities
of such series (other than a covenant or warranty in respect of the Securi-
ties of such series a default in the performance or breach of which is else-
where in this Section specifically dealt with) or in this Indenture con-
tained for a period of 60 days after the date on which written notice speci-
fying such failure, stating that such notice is a "Notice of Default" here-
under and demanding that the Issuer remedy the same, shall have been given
by registered or certified mail, return receipt requested, to the Issuer by
the Trustee, or to the Issuer and the Trustee by the holders of at least 25%
in aggregate principal amount of the Outstanding Securities of all series
affected thereby; or
(d) a court having jurisdiction in the premises shall enter a decree or or-
der for relief in respect of the Issuer in an involuntary case under any ap-
plicable bankruptcy, insolvency or other similar law now or hereafter in ef-
fect, or appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of the Issuer or for any substantial part
of its property or ordering the winding up or liquidation of its affairs,
and such decree or order shall remain unstayed and in effect for a period of
60 consecutive days; or
(e) the Issuer shall commence a voluntary case under any applicable bank-
ruptcy, insolvency or other similar law now or hereafter in effect, or con-
sent to the entry of an order for relief in an involuntary case under any
such law, or consent to the appointment or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar official)
of the Issuer or for any substantial part of its property, or make any gen-
eral assignment for the benefit of creditors; or
(f) any other Event of Default provided in the supplemental indenture under
which such series of Securities is issued or in the form of Security for
such series.
If an Event of Default described in clauses (a), (b), (c) or (f) (if the
Event of Default under clause (c) or (f), as the case may be, is with respect
to less than all series of Securities then Outstanding) occurs and is continu-
ing, then, and in each and every such case, except for any series of Securi-
ties the principal of which shall have already become due and payable, either
the Trustee or the Holders of not less than 25% in aggregate principal amount
of the Securities of each such affected series then Outstanding hereunder
(voting as a single class) by notice in writing to the Issuer (and to the
Trustee if given by Securityholders), may declare the entire principal (or, if
the Securities of any such affected series are Original Issue Discount Securi-
ties, such portion of the principal amount as may be specified in the terms of
such series) of all Securities of all such affected series, and the interest
accrued thereon, if any, to be due and payable immediately, and upon any such
declaration the same shall become immediately due and payable. If an
34
Event of Default described in clause (c) or (f) (if the Event of Default under
clause (c) or (f), as the case may be, is with respect to all series of Secu-
rities then Outstanding), (d) or (e) occurs and is continuing, then and in
each and every such case, unless the principal of all the Securities shall
have already become due and payable, either the Trustee or the Holders of not
less than 25% in aggregate principal amount of all the Securities then Out-
standing hereunder (treated as one class), by notice in writing to the Issuer
(and to the Trustee if given by Securityholders), may declare the entire prin-
cipal (or, if any Securities are Original Issue Discount Securities, such por-
tion of the principal amount as may be specified in the terms thereof) of all
the Securities then Outstanding, and interest accrued thereon, if any, to be
due and payable immediately, and upon any such declaration the same shall be-
come immediately due and payable.
The foregoing provisions, however, are subject to the condition that if, at
any time after the principal (or, if the Securities are Original Issue Dis-
count Securities, such portion of the principal as may be specified in the
terms thereof) of the Securities of any series (or of all the Securities, as
the case may be) shall have been so declared due and payable, and before any
judgment or decree for the payment of the moneys due shall have been obtained
or entered as hereinafter provided, the Issuer shall pay or shall deposit with
the Trustee a sum sufficient to pay all matured installments of interest upon
all the Securities of such series (or of all the Securities, as the case may
be) and the principal of any and all Securities of each such series (or of all
the Securities, as the case may be) which shall have become due otherwise than
by acceleration (with interest upon such principal and, to the extent that
payment of such interest is enforceable under applicable law, on overdue in-
stallments of interest, at the same rate as the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) specified in the
Securities of each such series (or at the respective rates of interest or
Yields to Maturity of all the Securities, as the case may be) to the date of
such payment or deposit) and such amount as shall be sufficient to cover rea-
sonable compensation to the Trustee and each predecessor Trustee, its agents,
attorneys and counsel, and all other expenses and liabilities incurred, and
all advances made, by the Trustee and each predecessor Trustee except as a re-
▇▇▇▇ of negligence or bad faith, and if any and all Events of Default under
the Indenture, other than the non-payment of the principal of Securities which
shall have become due by acceleration, shall have been cured, waived or other-
wise remedied as provided herein--then and in every such case the Holders of a
majority in aggregate principal amount of all the Securities of each such se-
▇▇▇▇, or of all the Securities, as the case may be, in each case voting as a
single class, then Outstanding, by
35
written notice to the Issuer and to the Trustee, may waive all defaults with
respect to each such series (or with respect to all the Securities, as the
case may be) and rescind and annul such declaration and its consequences, but
no such waiver or rescission and annulment shall extend to or shall affect any
subsequent default or shall impair any right consequent thereon.
For all purposes under this Indenture, if a portion of the principal of any
Original Issue Discount Securities shall have been accelerated and declared
due and payable pursuant to the provisions hereof, then, from and after such
declaration, unless such declaration has been rescinded and annulled, the
principal amount of such Original Issue Discount Securities shall be deemed,
for all purposes hereunder, to be such portion of the principal thereof as
shall be due and payable as a result of such acceleration, and payment of such
portion of the principal thereof as shall be due and payable as a result of
such acceleration, together with interest, if any, thereon and all other
amounts owing thereunder, shall constitute payment in full of such Original
Issue Discount Securities.
Section 5.2 Collection of Indebtedness by Trustee; Trustee May Prove
Debt. The Issuer covenants that (a) in case default shall be made in the pay-
ment of any instalment of interest on any of the Securities of any series when
such interest shall have become due and payable, and such default shall have
continued for a period of 30 days or (b) in case default shall be made in the
payment of all or any part of the principal of any of the Securities of any
series when the same shall have become due and payable, whether upon maturity
of the Securities of such series or upon any redemption or by declaration or
otherwise--then upon demand of the Trustee, the Issuer will pay to the Trustee
for the benefit of the Holders of the Securities of such series the whole
amount that then shall have become due and payable on all Securities of such
series, and such Coupons, for principal or interest, as the case may be (with
interest to the date of such payment upon the overdue principal and, to the
extent that payment of such interest is enforceable under applicable law, on
overdue installments of interest at the same rate as the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities) speci-
fied in the Securities of such series); and in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including reasonable compensation to the Trustee and each predecessor Trustee,
their respective agents, attorneys and counsel, and any expenses and liabili-
ties incurred, and all advances made, by the Trustee and each predecessor
Trustee except as a result of its negligence or bad faith.
36
Until such demand is made by the Trustee, the Issuer may pay the principal of
and interest on the Securities of any series to the Holders thereof, whether
or not the Securities of such Series be overdue.
In case the Issuer shall fail forthwith to pay such amounts upon such demand,
the Trustee, in its own name and as trustee of an express trust, shall be en-
titled and empowered to institute any action or proceedings at law or in eq-
uity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceedings to judgment or final decree, and may enforce any
such judgment or final decree against the Issuer or other obligor upon the Se-
curities and collect in the manner provided by law out of the property of the
Issuer or other obligor upon the Securities, wherever situated the moneys ad-
judged or decreed to be payable.
In case there shall be pending proceedings relative to the Issuer or any
other obligor upon the Securities under Title 11 of the United States Code or
any other applicable Federal or state bankruptcy, insolvency or other similar
law, or in case a receiver, assignee or trustee in bankruptcy or reorganiza-
tion, liquidator, sequestrator or similar official shall have been appointed
for or taken possession of the Issuer or its property or such other obligor,
or in case of any other comparable judicial proceedings relative to the Issuer
or other obligor upon the Securities, or to the creditors or property of the
Issuer or such other obligor, the Trustee, irrespective of whether the princi-
pal 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 pursuant to the provisions of this Section, shall be entitled
and empowered, by intervention in such proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount of principal
and interest (or, if the Securities of any series are Original Issue Dis-
count Securities, such portion of the principal amount as may be specified
in the terms of such series) owing and unpaid in respect of the Securities
of any series, and to file such other papers or documents as may be neces-
sary or advisable in order to have the claims of the Trustee (including any
claim for reasonable compensation to the Trustee and each predecessor Trust-
ee, and their respective agents, attorneys and counsel, and for reimburse-
ment of all expenses and liabilities incurred, and all advances made, by the
Trustee and each predecessor Trustee, except as a result of negligence or
bad faith) and of the Securityholders allowed in any judicial proceedings
relative to the Issuer or other obligor upon the Securities, or to the cred-
itors or property of the Issuer or such other obligor,
37
(b) unless prohibited by applicable law and regulations, to vote on behalf
of the holders of the Securities of any series in any election of a trustee
or a standby trustee in arrangement, reorganization, liquidation or other
bankruptcy or insolvency proceedings or person performing similar functions
in comparable proceedings, and
(c) to collect and receive any moneys or other property payable or deliver-
able on any such claims, and to distribute all amounts received with respect
to the claims of the Securityholders and of the Trustee on their behalf; and
any trustee, receiver, or liquidator, custodian or other similar official is
hereby authorized by each of the Securityholders to make payments to the
Trustee, and, in the event that the Trustee shall consent to the making of
payments directly to the Securityholders, to pay to the Trustee such amounts
as shall be sufficient to cover reasonable compensation to the Trustee, each
predecessor Trustee and their respective agents, attorneys and counsel, and
all other expenses and liabilities incurred, and all advances made, by the
Trustee and each predecessor Trustee except as a result of negligence or bad
faith.
Nothing herein contained shall be deemed to authorize the Trustee to autho-
rize or consent to or vote for or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or composi-
tion affecting the Securities of any series or the rights of any Holder there-
of, or to authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar person.
All rights of action and of asserting claims under this Indenture, or under
any of the Securities of any series or Coupons appertaining to such Securi-
ties, may be enforced by the Trustee without the possession of any of the Se-
curities of such series or Coupons appertaining to such Securities or the pro-
duction thereof on any trial or other proceedings relative thereto, and any
such action or proceedings instituted by the Trustee shall be brought in its
own name as trustee of an express trust, and any recovery of judgment, subject
to the payment of the expenses, disbursements and compensation of the Trustee,
each predecessor Trustee and their respective agents and attorneys, shall be
for the ratable benefit of the Holders of the Securities or Coupons appertain-
ing to such Securities in respect of which such action was taken.
In any proceedings brought by the Trustee (and also any proceedings involving
the interpretation of any provision of this Indenture to which the Trustee
shall be a party) the Trustee shall be held to represent all the Holders of
the Securities or Coupons appertaining to such Securities in respect to which
such action was
38
taken, and it shall not be necessary to make any Holders of such Securities or
Coupons appertaining to such Securities parties to any such proceedings.
Section 5.3 Application of Proceeds. Any moneys collected by the Trustee pur-
suant to this Article in respect of any series shall be applied in the follow-
ing order at the date or dates fixed by the Trustee and, in case of the dis-
tribution of such moneys on account of principal or interest, upon presenta-
tion of the several Securities and Coupons appertaining to such Securities in
respect of which monies have been collected and stamping (or otherwise noting)
thereon the payment, or issuing Securities of such series in reduced principal
amounts in exchange for the presented Securities of like series if only par-
tially paid, or upon surrender thereof if fully paid:
First: To the payment of costs and expenses applicable to such series in
respect of which monies have been collected, including reasonable compensa-
tion to the Trustee and each predecessor Trustee and their respective agents
and attorneys and of all expenses and liabilities incurred, and all advances
made, by the Trustee and each predecessor Trustee except as a result of neg-
ligence or bad faith;
Second: In case the principal of the Securities of such series in respect
of which moneys have been collected shall not have become and be then due
and payable, to the payment of interest on the Securities of such series in
default in the order of the maturity of the installments of such interest,
with interest (to the extent that such interest has been collected by the
Trustee) upon the overdue installments of interest at the same rate as the
rate of interest or Yield to Maturity (in the case of Original Issue Dis-
count Securities) specified in such Securities, such payments to be made
ratably to the persons entitled thereto, without discrimination or prefer-
ence;
Third: In case the principal of the Securities of such series in respect of
which moneys have been collected shall have become and shall be then due and
payable, to the payment of the whole amount then owing and unpaid upon all
the Securities of such series for principal and interest, with interest upon
the overdue principal, and (to the extent that such interest has been col-
lected by the Trustee) upon overdue installments of interest at the same
rate as the rate of interest or Yield to Maturity (in the case of Original
Issue Discount Securities) specified in the Securities of such series; and
in case such moneys shall be insufficient to pay in full the whole amount so
due and unpaid upon the Securities of such series, then to the payment of
such principal and interest or Yield to Maturity, without preference or pri-
ority of principal over interest or Yield to Maturity, or of interest or
Yield to Maturity over principal, or of any instalment of interest over any
other instalment of interest, or of any Security of such series over any
other Security of such series, ratably to the
39
aggregate of such principal and accrued and unpaid interest or Yield to Ma-
turity; and
Fourth: To the payment of the remainder, if any, to the Issuer or any other
person lawfully entitled thereto.
Section 5.4 Suits for Enforcement. In case an Event of Default has occurred,
has not been waived and is continuing, the Trustee may in its discretion pro-
ceed to protect and enforce the rights vested in it by this Indenture by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any of such rights, either at law or in equity or in bank-
ruptcy or otherwise, whether for the specific enforcement of any covenant or
agreement contained in this Indenture or in aid of the exercise of any power
granted in this Indenture or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.
Section 5.5 Restoration of Rights on Abandonment of Proceedings. In case the
Trustee shall have proceeded to enforce any right under this Indenture and
such proceedings shall have been discontinued or abandoned for any reason, or
shall have been determined adversely to the Trustee, then and in every such
case the Issuer and the Trustee shall be restored respectively to their former
positions and rights hereunder, and all rights, remedies and powers of the Is-
▇▇▇▇, the Trustee and the Securityholders shall continue as though no such
proceedings had been taken.
Section 5.6 Limitations on Suits by Securityholders. No Holder of any Secu-
rity of any series or of any Coupon appertaining thereto shall have any right
by virtue or by availing of any provision of this Indenture to institute any
action or proceeding at law or in equity or in bankruptcy or otherwise upon or
under or with respect to this Indenture, or for the appointment of a trustee,
receiver, liquidator, custodian or other similar official or for any other
remedy hereunder, unless such Holder previously shall have given to the
Trustee written notice of default and of the continuance thereof, as hereinbe-
fore provided, and unless also the Holders of not less than 25% in aggregate
principal amount of the Securities of each affected series then Outstanding
(treated as a single class) shall have made written request upon the Trustee
to institute such action or proceedings in its own name as trustee hereunder
and shall have offered to the Trustee such reasonable indemnity as it may re-
quire against the costs, expenses and liabilities to be incurred therein or
thereby and the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity shall have failed to institute any such
40
action or proceeding and no direction inconsistent with such written request
shall have been given to the Trustee pursuant to Section 5.9; it being under-
stood and intended, and being expressly covenanted by the taker and Holder of
every Security or Coupon with every other taker and Holder and the Trustee,
that no one or more Holders of Securities of any series or Coupons appertain-
ing to such Securities shall have any right in any manner whatever by virtue
or by availing of any provision of this Indenture to affect, disturb or preju-
dice the rights of any other such Holder of Securities or Coupons appertaining
to such Securities, or to obtain or seek to obtain priority over or preference
to any other such Holder or to enforce any right under this Indenture, except
in the manner herein provided and for the equal, ratable and common benefit of
all Holders of Securities of the applicable series and Coupons appertaining to
such Securities. For the protection and enforcement of the provisions of this
Section, each and every Securityholder and the Trustee shall be entitled to
such relief as can be given either at law or in equity.
Section 5.7 Unconditional Right of Securityholders to Institute Certain
Suits. Notwithstanding any other provision in this Indenture and any provision
of any Security, the right of any Holder of any Security or Coupon to receive
payment of the principal of and interest on such Security or Coupon on or af-
ter the respective due dates expressed in such Security or Coupon or any date
fixed for redemption of such Security or Coupon, or to institute suit for the
enforcement of any such payment on or after such respective dates, shall not
be impaired or affected without the consent of such Holder.
Section 5.8 Powers and Remedies Cumulative; Delay or Omission Not Waiver of
Default. Except as provided in Section 5.6, no right or remedy herein con-
ferred upon or reserved to the Trustee or to the Holders of Securities or Cou-
pons 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 addi-
tion to every other right and remedy given hereunder or now or hereafter ex-
isting at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent as-
sertion or employment of any other appropriate right or remedy.
No delay or omission of the Trustee or of any Holder of Securities or Coupons
to exercise any right or power accruing upon any Event of Default occurring
and continuing as aforesaid shall impair any such right or power or shall be
construed to be a waiver of any such Event of Default or an acquiescence
therein; and, subject to Section 5.6, every power and remedy given by this In-
denture or by
41
law to the Trustee or to the Holders of Securities or Coupons may be exercised
from time to time, and as often as shall be deemed expedient, by the Trustee
or by the Holders of Securities or Coupons.
Section 5.9 Control by Holders of Securities. The Holders of a majority in
aggregate principal amount of the Securities of each series affected (with all
such series voting as a single class) at the time Outstanding shall have the
right to direct the time, method, and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust or power con-
ferred on the Trustee with respect to the Securities of such series by this
Indenture; provided that such direction shall not be otherwise than in accor-
dance with law and the provisions of this Indenture and provided further that
(subject to the provisions of Section 6.1) the Trustee shall have the right to
decline to follow any such direction if the Trustee, being advised by counsel,
shall determine that the action or proceeding so directed may not lawfully be
taken or if the Trustee in good faith by its board of directors, the executive
committee, or a trust committee of directors or Responsible Officers of the
Trustee shall determine that the action or proceedings so directed would in-
volve the Trustee in personal liability or if the Trustee in good faith shall
so determine that the actions or forebearances specified in or pursuant to
such direction would be unduly prejudicial to the interests of Holders of the
Securities of all series so affected not joining in the giving of said direc-
tion, it being understood that (subject to Section 6.1) the Trustee shall have
no duty to ascertain whether or not such actions or forebearances are unduly
prejudicial to such Holders.
Nothing in this Indenture shall impair the right of the Trustee in its dis-
cretion to take any action deemed proper by the Trustee and which is not in-
consistent with such direction or directions by Securityholders.
Section 5.10 Waiver of Past Defaults. Prior to the acceleration of the matu-
rity of any Securities as provided in Section 5.1, the Holders of a majority
in aggregate principal amount of the Securities of all series at the time Out-
standing with respect to which an Event of Default shall have occurred and be
continuing (voting as a single class) may on behalf of the Holders of all such
Securities waive any past default or Event of Default described in Section 5.1
and its consequences, except a default in respect of a covenant or provision
hereof which cannot be modified or amended without the consent of the Holder
of each Security affected. In the case of any such waiver, the Issuer, the
Trustee and the Holders of all such Securities shall be restored to their for-
mer positions and
42
rights hereunder, respectively; but no such waiver shall extend to any subse-
quent or other default or impair any right consequent thereon.
Upon any such waiver, such default shall cease to exist and be deemed to have
been cured and not to have occurred, and any Event of Default arising there-
from shall be deemed to have been cured, and not to have occurred for every
purpose of this Indenture; but no such waiver shall extend to any subsequent
or other default or Event of Default or impair any right consequent thereon.
Section 5.11 Trustee to Give Notice of Default, But May Withhold in Certain
Circumstances. The Trustee shall, within 90 days after the occurrence of a de-
fault with respect to the Securities of any series, give notice of all de-
faults with respect to that series known to the Trustee (i) if any Unregis-
tered Securities of that series are then Outstanding, to the Holders thereof,
by publication at least once in an Authorized Newspaper in the Borough of Man-
▇▇▇▇▇▇, The City of New York, and at least once in an Authorized Newspaper in
London (and, if required by Section 3.7, at least once in an Authorized News-
paper in Luxembourg) and (ii) to all Holders of Securities of such series in
the manner and to the extent provided herein unless in each case such defaults
shall have been cured before the mailing or publication of such notice (the
term "defaults" for the purpose of this Section being hereby defined to mean
any event or condition which is, or with notice or lapse of time or both would
become, an Event of Default); provided that, except in the case of default in
the payment of the principal of or interest on any of the Securities of such
series, or in the payment of any sinking fund instalment on 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 trustees and/or Responsible Officers of the Trustee in good faith deter-
mines that the withholding of such notice is in the interests of the
Securityholders of such series.
Section 5.12 Right of Court to Require Filing of Undertaking to Pay Costs.
All parties to this Indenture agree, and each Holder of any Security or Coupon
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 at-
torneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of
43
the claims or defenses made by such party litigant; but the provisions of this
Section shall not apply to any suit instituted by the Trustee, to any suit in-
stituted by any Securityholder or group of Securityholders of any series hold-
ing in the aggregate more than 10% in aggregate principal amount of the Secu-
rities of such series, or, in the case of any suit relating to or arising un-
der clause (c) or (f) of Section 5.1 (if the suit relates to Securities of
more than one but less than all series), 10% in aggregate principal amount of
Securities then Outstanding and affected thereby, or in the case of any suit
relating to or arising under clause (c) or (f) (if the suit under clause (c)
or (f) relates to all the Securities then Outstanding), (d) or (e) of Section
5.1, 10% in aggregate principal amount of all Securities then Outstanding, or
to any suit instituted by any Securityholder for the enforcement of the pay-
ment of the principal of or interest on any Security on or after the due date
expressed in such Security or any date fixed for redemption.
ARTICLE SIX
Concerning the Trustee
Section 6.1 Duties and Responsibilities of the Trustee; During Default; Prior
to Default. With respect to the Holders of any series of Securities issued
hereunder, the Trustee, prior to the occurrence of an Event of Default with
respect to the Securities of a particular series and after the curing or waiv-
ing of all Events of Default which may have occurred with respect to such se-
▇▇▇▇, undertakes to perform such duties and only such duties as are specifi-
cally set forth in this Indenture. In case an Event of Default with respect to
the Securities of a series has occurred (which has not been cured or waived)
the Trustee shall exercise with respect to such series of Securities 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.
No provision of this Indenture shall be construed to relieve the Trustee from
liability for its own negligent action, its own negligent failure to act or
its own willful misconduct, except that
(a) prior to the occurrence of an Event of Default with respect to the Se-
curities of any series and after the curing or waiving of all such Events of
Default with respect to such series which may have occurred:
(i) the duties and obligations of the Trustee with respect to the Securi-
ties of any series shall be determined solely by the express provisions of
this
44
Indenture, and the Trustee shall not be liable except for the performance
of such duties and obligations as are specifically set forth in this In-
denture, and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the Trustee, the Trustee
may conclusively rely, as to the truth of the statements and the correct-
ness of the opinions expressed therein, upon any statements, certificates
or opinions furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such statements, certificates or
opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine the
same to determine whether or not they conform to the requirements of this
Indenture;
(b) the Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer or Responsible Officers of the Trustee, un-
less it shall be proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(c) the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of
the Holders pursuant to Section 5.9 relating to the time, method and place
of conducting any proceeding for any remedy available to the Trustee, or ex-
ercising any trust or power conferred upon the Trustee, under this Inden-
ture.
None of the provisions contained in this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur personal financial liabil-
ity in the performance of any of its duties or in the exercise of any of its
rights or powers if there shall be reasonable ground for believing that the
repayment of such funds or adequate indemnity against such liability is not
reasonably assured to it.
The provisions of this Section 6.1 are in furtherance of and subject to Sec-
tion 315 of the Trust Indenture Act of 1939.
Section 6.2 Certain Rights of the Trustee. In furtherance of and subject to
the Trust Indenture Act of 1939, and subject to Section 6.1:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, Officer's Certificate or any other certifi-
cate, statement, instrument, opinion, report, notice, request, consent, or-
der, bond, debenture, note, coupon, security or other paper or document be-
lieved by it to be genuine and to have been signed or presented by the
proper party or parties;
(b) any request, direction, order or demand of the Issuer mentioned herein
shall be sufficiently evidenced by an Officer's Certificate (unless other
evidence in respect thereof be herein specifically prescribed); and any res-
olution of the Board of Directors may be evidenced to the Trustee by a copy
thereof certified by the secretary or an assistant secretary of the Issuer;
45
(c) the Trustee may consult with counsel and any written advice or any
Opinion of Counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted to be taken by it here-
under in good faith and in reliance thereon in accordance with such advice
or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the trusts
or powers vested in it by this Indenture at the request, order or direction
of any of the Securityholders pursuant to the provisions of this Indenture,
unless such Securityholders shall have offered to the Trustee reasonable se-
curity or indemnity against the costs, expenses and liabilities which might
be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted by it
in good faith and believed by it to be authorized or within the discretion,
rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default hereunder and after the
curing or waiving of all Events of Default, the Trustee shall not be bound
to make any investigation into the facts or matters stated in any resolu-
tion, certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, appraisal, bond, debenture, note, coupon, securi-
ty, or other paper or document unless requested in writing so to do by the
Holders of a majority in aggregate principal amount of the Securities of all
series affected then Outstanding; provided that, if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely
to be incurred by it in the making of such investigation is, in the opinion
of the Trustee, not reasonably assured to the Trustee by the security af-
forded to it by the terms of this Indenture, the Trustee may require reason-
able indemnity against such expenses or liabilities as a condition to pro-
ceeding; the reasonable expenses of every such investigation shall be paid
by the Issuer or, if paid by the Trustee or any predecessor Trustee, shall
be repaid by the Issuer upon demand; and
(g) the Trustee may execute any of the trusts or powers hereunder or per-
form any duties hereunder either directly or by or through agents or attor-
neys not regularly in its employ and the Trustee shall not be responsible
for any misconduct or negligence on the part of any such agent or attorney
appointed with due care by it hereunder.
Section 6.3 Trustee Not Responsible for Recitals, Disposition of Securities
or Application of Proceeds Thereof. The recitals contained herein and in the
Securities, except the Trustee's certificates of authentication, shall be
taken as the statements of the Issuer, and the Trustee assumes no responsibil-
ity for the correctness of the same. The Trustee makes no representation as to
the validity or sufficiency of this Indenture or of the Securities or Coupons.
The Trustee shall not be accountable for the use or application by the Issuer
of any of the Securities or of the proceeds thereof.
46
Section 6.4 Trustee and Agents May Hold Securities or Coupons; Collections,
etc. The Trustee or any agent of the Issuer or the Trustee, in its individual
or any other capacity, may become the owner or pledgee of Securities or Cou-
pons with the same rights it would have if it were not the Trustee or such
agent and may otherwise deal with the Issuer and receive, collect, hold and
retain collections from the Issuer with the same rights it would have if it
were not the Trustee or such agent.
Section 6.5 Moneys Held by Trustee. Subject to the provisions of Section 10.4
hereof, all moneys received by the Trustee shall, until used or applied as
herein provided, be held in trust for the purposes for which they were re-
ceived, but need not be segregated from other funds except to the extent re-
quired by mandatory provisions of law. Neither the Trustee nor any agent of
the Issuer or the Trustee shall be under any liability for interest on any
moneys received by it hereunder.
Section 6.6 Compensation and Indemnification of Trustee and Its Prior
Claim. The Issuer covenants and agrees to pay to the Trustee from time to
time, and the Trustee shall be entitled to, reasonable compensation (which
shall not be limited by any provision of law in regard to the compensation of
a trustee of an express trust) and the Issuer covenants and agrees to pay or
reimburse the Trustee and each predecessor Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by or on be-
half of it in accordance with any of the provisions of this Indenture (includ-
ing the reasonable compensation and the expenses and disbursements of its
counsel and of all agents and other persons not regularly in its employ) ex-
cept any such expense, disbursement or advance as may arise from its negli-
gence or bad faith. Any such payments and reimbursements not made in a timely
fashion shall be made with interest at the Trustee's corporate base rate. The
Issuer also covenants to indemnify the Trustee and each predecessor Trustee
for, and to hold it harmless against, any loss, liability or expense incurred
without negligence or bad faith on its part, arising out of or in connection
with the acceptance or administration of this Indenture or the trusts hereun-
der and its duties hereunder, including the costs and expenses of defending
itself against or investigating any claim of liability in the premises. The
obligations of the Issuer under this Section to compensate and indemnify the
Trustee and each predecessor Trustee and to pay or reimburse the Trustee and
each predecessor Trustee for expenses, disbursements and advances shall con-
stitute additional indebtedness hereunder and shall survive the satisfaction
and discharge of this Indenture. Such additional indebtedness shall be a se-
nior claim to
47
that of the Securities upon all property and funds held or collected by the
Trustee as such, except funds held in trust for the benefit of the Holders of
particular Securities or Coupons, and the Securities are hereby subordinated
to such senior claim.
Section 6.7 Right of Trustee to Rely on Officer's Certificate, etc. Subject
to Sections 6.1 and 6.2, whenever in the administration of the trusts of this
Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the
part of the Trustee, be deemed to be conclusively proved and established by an
Officer's Certificate delivered to the Trustee, and such certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted by it under
the provisions of this Indenture upon the faith thereof.
Section 6.8 Indentures Not Creating Potential Conflicting Interests for the
Trustee.
This Section intentionally left blank.
Section 6.9 Persons Eligible for Appointment as Trustee. The Trustee for each
series of Securities hereunder shall at all times be a corporation organized
and doing business under the laws of the United States of America or of any
State or the District of Columbia having a combined capital and surplus of at
least $5,000,000, and which is authorized under such laws to exercise corpo-
rate trust powers and is subject to supervision or examination by Federal,
State or District of Columbia authority. If such corporation publishes reports
of condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then, for the purposes of this
Section, the combined capital and surplus of such corporation shall be deemed
to be its combined capital and surplus as set forth in its most recent report
of condition so published. In case at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, the Trustee shall
resign immediately in the manner and with the effect specified in Section
6.10.
The provisions of this Section 6.9 are in furtherance of and subject to Sec-
tion 310(a) of the Trust Indenture Act of 1939.
48
Section 6.10 Resignation and Removal; Appointment of Successor Trustee.
(a) The Trustee, or any trustee or trustees hereafter appointed, may at any
time resign and be discharged of the trusts hereby created by giving written
notice of resignation to the Issuer and (i) if any Unregistered Securities are
then Outstanding, by giving notice of such resignation to the Holders thereof,
by publication at least once in an Authorized Newspaper in the Borough of Man-
▇▇▇▇▇▇, The City of New York, and at least once in an Authorized Newspaper in
London (and, if required by Section 3.7, at least once in an Authorized News-
paper in Luxembourg), (ii) if any Unregistered Securities are then Outstand-
ing, by mailing notice of such resignation to the Holders thereof who have
filed their names and addresses with the Trustee at such addresses as were so
furnished to the Trustee and (iii) by mailing notice of such resignation to
the Holders of then Outstanding Registered Securities at their addresses as
they shall appear on the registry books. Upon receiving such notice of resig-
nation, the Issuer shall promptly appoint a successor trustee or trustees by
written instrument in duplicate, executed by authority of the Board of Direc-
tors, one copy of which instrument shall be delivered to the resigning Trustee
and one copy to the successor trustee or trustees. If no successor trustee
shall have been so appointed and have accepted appointment within 30 days af-
ter the mailing of such notice of resignation, the resigning trustee may peti-
tion any court of competent jurisdiction for the appointment of a successor
trustee, or any Securityholder who has been a bona fide Holder of a Security
or Securities for at least six months may, subject to the provisions of Sec-
tion 5.12, on behalf of himself and all others similarly situated, petition
any such court for the appointment of a successor trustee. Such court may
thereupon, after such notice, if any, as it may deem proper and prescribe, ap-
point a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of Section 310(b)
of the Trust Indenture Act of 1939 after written request therefor by the Is-
▇▇▇▇ or by any Securityholder who has been a bona fide Holder of a Security
or Securities for at least six months; or
(ii) the Trustee shall cease to be eligible in accordance with the provi-
sions of Section 6.9 and Section 310(a) of the Trust Indenture Act of 1939
and shall fail to resign after written request therefor by the Issuer or by
any Securityholder; or
49
(iii) the Trustee shall become incapable of acting or shall be adjudged a
bankrupt or insolvent, or a receiver or liquidator of the Trustee or of its
property shall be appointed, or any public officer shall take charge or con-
trol of the Trustee or of its property or affairs for the purpose of reha-
bilitation, conservation or liquidation;
then, in any such case, the Issuer may remove the Trustee and appoint a suc-
cessor trustee by written instrument, in duplicate, executed by order of the
Board of Directors of the Issuer, one copy of which instrument shall be deliv-
ered to the Trustee so removed and one copy to the successor trustee, or, sub-
ject to the provisions of Section 315(e) of the Trust Indenture Act of 1939,
any Securityholder who has been a bona fide Holder of a Security or Securities
for at least six months may on behalf of himself and all others similarly sit-
uated, petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor trustee. Such court may thereupon,
after such notice, if any, as it may deem proper and prescribe, remove the
Trustee and appoint a successor trustee.
(c) The Holders of a majority in aggregate principal amount of the Securities
of all series at the time outstanding may at any time remove the Trustee and
appoint a successor trustee by delivering to the Trustee so removed, to the
successor trustee so appointed and to the Issuer the evidence provided for in
Section 7.1 of the action in that regard taken by the Securityholders.
(d) Any resignation or removal of the Trustee and any appointment of a suc-
cessor trustee pursuant to any of the provisions of this Section 6.10 shall
become effective upon acceptance of appointment by the successor trustee as
provided in Section 6.11.
Section 6.11 Acceptance of Appointment by Successor Trustee. Any successor
trustee appointed as provided in Section 6.10 shall execute and deliver to the
Issuer and to its predecessor trustee an instrument accepting such appointment
hereunder, and thereupon the resignation or removal of the predecessor trustee
shall become effective and such successor trustee, without any further act,
deed or conveyance, shall become vested with all rights, powers, duties and
obligations of its predecessor hereunder, with like effect as if originally
named as trustee hereunder; but, nevertheless, on the written request of the
Issuer or
50
of the successor trustee, upon payment of its charges then unpaid, the trustee
ceasing to act shall, subject to Section 10.4, pay over to the successor
trustee all moneys at the time held by it hereunder and shall execute and de-
liver an instrument transferring to such successor trustee all such rights,
powers, duties and obligations. Upon request of any such successor trustee,
the Issuer shall execute any and all instruments in writing for more fully and
certainly vesting in and confirming to such successor trustee all such rights
and powers. Any trustee ceasing to act shall, nevertheless, retain a prior
claim upon all property or funds held or collected by such trustee to secure
any amounts then due it pursuant to the provisions of Section 6.6.
No successor trustee shall accept appointment as provided in this Section
6.11 unless at the time of such acceptance such successor trustee shall be
qualified under Section 310(b) of the Trust Indenture Act of 1939 and eligible
under the provisions of Section 6.9.
Upon acceptance of appointment by any successor trustee as provided in this
Section 6.11, the Issuer shall give notice thereof (a) if any Unregistered Se-
curities are then Outstanding, to the Holders thereof, by publication of such
notice at least once in an Authorized Newspaper in the Borough of Manhattan,
The City of New York and at least once in an Authorized Newspaper in London
(and, if required by Section 3.7, at least once in an Authorized Newspaper in
Luxembourg), (b) if any Unregistered Securities are then Outstanding, to the
Holders thereof who have filed their names and addresses with the Trustee, by
mailing such notice to such Holders at such addresses as were so furnished to
the Trustee (and the Trustee shall make such information available to the Is-
▇▇▇▇ for such purpose) and (c) to the Holders of Registered Securities, by
mailing such notice to such Holders at their addresses as they shall appear on
the registry books. If the acceptance of appointment is substantially contem-
poraneous with the resignation, then the notice called for by the preceding
sentence may be combined with the notice called for by Section 6.10. If the
Issuer fails to give such notice within ten days after acceptance of appoint-
ment by the successor trustee, the successor trustee shall cause such notice
to be given at the expense of the Issuer.
Section 6.12 Merger, Conversion, Consolidation or Succession to Business of
Trustee. Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merg-
er, conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to the corporate trust business of the Trustee, shall
51
be the successor of the Trustee hereunder, provided that such corporation
shall be qualified under Section 310(b) of the Trust Indenture Act of 1939 and
eligible under the provisions of Section 6.9, without the execution or filing
of any paper or any further act on the part of any of the parties hereto, any-
thing herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the trusts
created by this Indenture any of the Securities of any series shall have been
authenticated but not delivered, any such successor to the Trustee may adopt
the certificate of authentication of any predecessor Trustee and deliver such
Securities so authenticated; and, in case at that time any of the Securities
of any series shall not have been authenticated, any successor to the Trustee
may authenticate such Securities either in the name of any predecessor hereun-
der or in the name of the successor Trustee; and in all such cases such cer-
tificate shall have the full force which it is anywhere in the Securities of
such series or in this Indenture provided that the certificate of the Trustee
shall have; provided, that the right to adopt the certificate of authentica-
tion of any predecessor Trustee or to authenticate Securities of any series in
the name of any predecessor Trustee shall apply only to its successor or suc-
cessors by merger, conversion or consolidation.
Section 6.13 Preferential Collection of Claims Against the Issuer.
This Section intentionally left blank.
Section 6.14 Appointment of Authenticating Agent. As long as any Securities
of a series remain Outstanding, the Trustee may, by an instrument in writing,
appoint with the approval of the Issuer an authenticating agent (the "Authen-
ticating Agent") which shall be authorized to act on behalf of the Trustee to
authenticate Securities, including Securities issued upon exchange, registra-
tion of transfer, partial redemption or pursuant to Section 2.9. Securities of
each such series authenticated by such Authenticating Agent shall be entitled
to the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee. Whenever reference is made in
this Indenture to the authentication and delivery of Securities of any series
by the Trustee or to the Trustee's Certificate of Authentication, such refer-
ence shall be deemed to include authentication and delivery on behalf of the
Trustee by an Authenticating Agent for such series and a Certificate of Au-
thentication executed on behalf of the Trustee by such Authenticating Agent.
Such Authenticating Agent shall at all times be a corporation organized and
doing business under the laws of the United States of America or of any State,
authorized under such laws to exercise corpo-
52
rate trust powers, having a combined capital and surplus of at least
$5,000,000 (determined as provided in Section 6.9 with respect to the Trustee)
and subject to supervision or examination by Federal or State authority.
Any corporation into which any Authenticating Agent may be merged or convert-
ed, or with which it may be consolidated, or any corporation resulting from
any merger, conversion or consolidation to which any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency busi-
ness of any Authenticating Agent, shall continue to be the Authenticating
Agent with respect to all series of Securities for which it served as Authen-
ticating Agent without the execution or filing of any paper or any further act
on the part of the Trustee or such Authenticating Agent. Any Authenticating
Agent may at any time, and if it shall cease to be eligible shall, resign by
giving written notice of resignation to the Trustee and to the Issuer.
Upon receiving such a notice of resignation or upon such a termination, or in
case at any time any Authenticating Agent shall cease to be eligible in accor-
dance with the provisions of this Section 6.14 with respect to one or more se-
▇▇▇▇ of Securities, the Trustee shall upon receipt of an Issuer Order appoint
a successor Authenticating Agent and the Issuer shall provide notice of such
appointment to all Holders of Securities of such series in the manner and to
the extent provided in Section 11.4. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all rights,
powers, duties and responsibilities of its predecessor hereunder, with like
effect as if originally named as Authenticating Agent. The Issuer agrees to
pay to the Authenticating Agent for such series from time to time reasonable
compensation. The Authenticating Agent for the Securities of any series shall
have no responsibility or liability for any action taken by it as such at the
direction of the Trustee.
Sections 6.2, 6.3, 6.4, 6.6, 6.9 and 7.3 shall be applicable to any Authenti-
cating Agent.
ARTICLE SEVEN
Concerning the Securityholders
Section 7.1 Evidence of Action Taken by Securityholders. Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by a specified percentage in principal
amount of the Securityholders of any or all series may be embodied in and
53
evidenced by one or more instruments of substantially similar tenor signed
(either physically or by means of an electronic transmission) by such speci-
fied percentage of Securityholders in person or by agent duly appointed in
writing; and, except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are delivered (either
physically or by means of an electronic transmission) to the Trustee. Proof of
execution of any instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to Sections 6.1 and
6.2) conclusive in favor of the Trustee and the Issuer, if made in the manner
provided in this Article.
Section 7.2 Proof of Execution of Instruments and of Holding of Securities.
Subject to Sections 6.1 and 6.2, the execution of any instrument by a
Securityholder or his agent or proxy may be proved in the following manner:
(a) The fact and date of the execution by any Holder of any instrument may
be proved by the certificate of any notary public or other officer of any
jurisdiction authorized to take acknowledgments of deeds or administer oaths
that the person executing such instruments acknowledged to him the execution
thereof, or by an affidavit of a witness to such execution sworn to before
any such notary or other such officer. Where such execution is by or on be-
half of any legal entity other than an individual, such certificate or affi-
davit shall also constitute sufficient proof of the authority of the person
executing the same. The fact of the holding by any Holder of an Unregistered
Security of any series, and the identifying number of such Security and the
date of his holding the same, may be proved by the production of such Secu-
rity or by a certificate executed by any trust company, bank, banker or rec-
ognized securities dealer wherever situated satisfactory to the Trustee, if
such certificate shall be deemed by the Trustee to be satisfactory. Each
such certificate shall be dated and shall state that on the date thereof a
Security of such series bearing a specified identifying number was deposited
with or exhibited to such trust company, bank, banker or recognized securi-
ties dealer by the person named in such certificate. Any such certificate
may be issued in respect of one or more Unregistered Securities of one or
more series specified therein. The holding by the person named in any such
certificate of any Unregistered Securities of any series specified therein
shall be presumed to continue for a period of one year from the date of such
certificate unless at the time of any determination of such holding (1) an-
other certificate bearing a later date issued in respect of the same Securi-
ties shall be produced, or (2) the Security of such series specified in such
certificate shall be produced by some other person, or (3) the Security of
such series specified in such certificate shall have ceased to be Outstand-
ing. Subject to Sections 6.1 and 6.2, the fact and date of the execution of
any such instrument and the amount and numbers of Securities of any series
54
held by the person so executing such instrument and the amount and numbers
of any Security or Securities for such series may also be proven in accor-
dance with such reasonable rules and regulations as may be prescribed by the
Trustee for such series or in any other manner which the Trustee for such
series may deem sufficient.
(b) In the case of Registered Securities, the ownership of such Securities
shall be proved by the Security register or by a certificate of the Security
registrar.
The Issuer may set a record date for purposes of determining the identity of
Holders of Registered Securities of any series entitled to vote or consent to
any action referred to in Section 7.1, which record date may be set at any
time or from time to time by notice to the Trustee, for any date or dates (in
the case of any adjournment or reconsideration) not more than 60 days nor less
than five days prior to the proposed date of such vote or consent, and there-
after, notwithstanding any other provisions hereof, with respect to Registered
Securities of any series, only Holders of Registered Securities of such series
of record on such record date shall be entitled to so vote or give such con-
sent or revoke such vote or consent.
Section 7.3 Holders to Be Treated as Owners. The Issuer, the Trustee and any
agent of the Issuer or the Trustee may deem and treat the person in whose name
any Security shall be registered upon the Security register for such series as
the absolute owner of such Security (whether or not such Security shall be
overdue and notwithstanding any notation of ownership or other writing there-
on) for the purpose of receiving payment of or on account of the principal of
and, subject to the provisions of this Indenture, interest on such Security
and for all other purposes; and neither the Issuer nor the Trustee nor any
agent of the Issuer or the Trustee shall be affected by any notice to the con-
trary. The Issuer, the Trustee and any agent of the Issuer or the Trustee may
treat the Holder of any Unregistered Security and the Holder of any Coupon as
the absolute owner of such Unregistered Security or Coupon (whether or not
such Unregistered Security or Coupon shall be overdue) for the purpose of re-
ceiving payment thereof or on account thereof and for all other purposes and
neither the Issuer, the Trustee, nor any agent of the Issuer or the Trustee
shall be affected by any notice to the contrary. All such payments so made to
any such person, or upon his order, shall be valid, and, to the extent of the
sum or sums so paid, effectual to satisfy and discharge the liability for mon-
eys payable upon any such Security or Coupon.
55
Section 7.4 Securities Owned by Issuer Deemed Not Outstanding. In determining
whether the Holders of the requisite aggregate principal amount of Outstanding
Securities of any or all series have concurred in any direction, consent or
waiver under this Indenture, Securities which are owned by the Issuer or any
other obligor on the Securities with respect to which such determination is
being made or by any person directly or indirectly controlling or controlled
by or under direct or indirect common control with the Issuer or any other ob-
ligor on the Securities with respect to which such determination is being made
shall be disregarded and deemed not to be Outstanding for the purpose of any
such determination, except that for the purpose of determining whether the
Trustee shall be protected in relying on any such direction, consent or waiver
only Securities which the Trustee knows are 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 Issuer or any other obligor upon the Securities or any person di-
rectly or indirectly controlling or controlled by or under direct or indirect
common control with the Issuer or any other obligor on the Securities. In case
of a dispute as to such right, the advice of counsel shall be full protection
in respect of any decision made by the Trustee in accordance with such advice.
Upon request of the Trustee, the Issuer shall furnish to the Trustee promptly
an Officer's Certificate listing and identifying all Securities, if any, known
by the Issuer to be owned or held by or for the account of any of the above-
described persons; and, subject to Sections 6.1 and 6.2, the Trustee shall be
entitled to accept such Officer's Certificate as conclusive evidence of the
facts therein set forth and of the fact that all Securities not listed therein
are Outstanding for the purpose of any such determination.
Section 7.5 Right of Revocation of Action Taken. At any time prior to (but
not after) the evidencing to the Trustee, as provided in Section 7.1, of the
taking of any action by the Holders of the percentage in aggregate principal
amount of the Securities of any or all series, as the case may be, specified
in this Indenture in connection with such action, any Holder of a Security the
serial number of which is shown by the evidence to be included among the se-
rial numbers of the Securities the Holders of which have consented to such ac-
tion may, by filing written notice at the Corporate Trust Office and upon
proof of holding as provided in this Article, revoke such action so far as
concerns such Security. Except as aforesaid any such action taken by the
Holder of any Security shall be conclusive and binding upon such Holder and
upon all future Holders and owners of
56
such Security and of any Securities issued in exchange or substitution there-
for or on registration of transfer thereof, irrespective of whether or not any
notation in regard thereto is made upon any such Security. Any action taken by
the Holders of the percentage in aggregate principal amount of the Securities
of any or all series, as the case may be, specified in this Indenture in con-
nection with such action shall be conclusively binding upon the Issuer, the
Trustee and the Holders of all the Securities affected by such action.
ARTICLE EIGHT
Supplemental Indentures
Section 8.1 Supplemental Indentures Without Consent of Securityholders. The
Issuer, when authorized by a resolution of its Board of Directors (which reso-
lution 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 an Issuer Order), and the Trustee may from time to time and at any
time enter into an indenture or indentures supplemental hereto for one or more
of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the Trustee as secu-
rity for the Securities of one or more series any property or assets;
(b) to evidence the succession of another corporation to the Issuer, or
successive successions, and the assumption by the successor corporation of
the covenants, agreements and obligations of the Issuer pursuant to Article
Nine;
(c) to add to the covenants of the Issuer such further covenants, restric-
tions, conditions or provisions as the Issuer and the Trustee shall consider
to be for the protection of the Holders of Securities or Coupons, and to
make the occurrence, or the occurrence and continuance, of a default in any
such additional covenants, restrictions, conditions or provisions an Event
of Default permitting the enforcement of all or any of the several remedies
provided in this Indenture as herein set forth; provided, that in respect of
any such additional covenant, restriction, condition or provision such sup-
plemental indenture may provide for a particular period of grace after de-
fault (which period may be shorter or longer than that allowed in the case
of other defaults) or may provide for an immediate enforcement upon such an
Event of Default or may limit the remedies available to the Trustee upon
such an Event of Default or may limit the right of the Holders of a majority
in aggregate principal amount of the Securities of such series to waive such
an Event of Default;
(d) to cure any ambiguity or to correct or supplement any provision con-
tained herein or in any supplemental indenture which may be defective or in-
consistent with any other provision contained herein or in any supplemental
57
indenture, or to make any other provisions as the Issuer may deem necessary
or desirable, provided that no such action shall adversely affect the inter-
ests of the Holders of the Securities or Coupons;
(e) to establish the forms or terms of Securities of any series or of the
Coupons appertaining to such Securities as permitted by Sections 2.1 and
2.3; and
(f) to evidence and provide for the acceptance of appointment hereunder by
a successor trustee with respect to the Securities of one or more series and
to add to or change any of the provisions of this Indenture as shall be nec-
▇▇▇▇▇▇ to provide for or facilitate the administration of the trusts hereun-
der by more than one trustee, pursuant to the requirements of Section 6.11.
The Trustee is hereby authorized to join with the Issuer in the execution of
any such supplemental indenture, to make any further appropriate agreements
and stipulations which may be therein contained and to accept the conveyance,
transfer, assignment, mortgage or pledge of any property thereunder, but the
Trustee shall not be obligated to enter into any such supplemental indenture
which affects the Trustee's own rights, duties or immunities under this Inden-
ture or otherwise.
Any supplemental indenture authorized by the provisions of this Section may
be executed without the consent of the Holders of any of the Securities at the
time outstanding, notwithstanding any of the provisions of Section 8.2.
Section 8.2 Supplemental Indentures With Consent of Securityholders. With the
consent (evidenced as provided in Article Seven) of the Holders of a majority
in aggregate principal amount of the Securities at the time Outstanding of all
series affected by such supplemental indenture (voting as one class), the Is-
▇▇▇▇, when authorized by a resolution of its Board of Directors (which resolu-
tion 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 an Issuer 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; provided, that
no such supplemental indenture shall (a) extend the final maturity of any Se-
curity, or reduce the principal amount thereof, or reduce the rate or extend
the time of payment of interest thereon, or reduce any amount payable on re-
demption thereof, or make the prin-
58
cipal thereof (including any amount in respect of original issue discount), or
interest thereon, payable in any coin or currency other than that provided in
the Securities and Coupons or in accordance with the terms thereof, or reduce
the amount of the principal of an Original Issue Discount Security that would
be due and payable upon an acceleration of the maturity thereof pursuant to
Section 5.1 or the amount thereof provable in bankruptcy pursuant to Section
5.2, or alter the provisions of Section 11.11 or 11.12 or impair or affect the
right of any Securityholder to institute suit for the payment thereof or, if
the Securities provide therefor, any right of repayment or repurchase at the
option of the Securityholder, in each case without the consent of the Holder
of each Security so affected, or (b) reduce the aforesaid percentage of Secu-
rities of any series, the consent of the Holders of which is required for any
such supplemental indenture, without the consent of the Holders of each Secu-
rity so affected.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of Holders of Securities of such series, or of Coupons appertaining to
such Securities, with respect to such covenant or provision, shall be deemed
not to affect the rights under this Indenture of the Holders of Securities of
any other series or of the Coupons appertaining to such Securities.
Upon the request of the Issuer, accompanied by a copy of a resolution of the
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 an Issuer Order) certified by the
secretary or an assistant secretary of the Issuer authorizing the execution of
any such supplemental indenture, and upon the filing with the Trustee of evi-
dence of the consent of the Holders of the Securities as aforesaid and other
documents, if any, required by Section 7.1, the Trustee shall join with the
Issuer in the execution of such supplemental indenture unless such supplemen-
tal indenture affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise, in which case the Trustee may in its discretion,
but shall not be obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent of the Securityholders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such consent shall approve the substance there-
of.
59
Promptly after the execution by the Issuer and the Trustee of any supplemen-
tal indenture pursuant to the provisions of this Section, the Trustee shall
give notice thereof (i) to the Holders of then Outstanding Registered Securi-
ties of each series affected thereby, by mailing a notice thereof by first-
class mail to such Holders at their addresses as they shall appear on the Se-
curity register, (ii) if any Unregistered Securities of a series affected
thereby are then Outstanding, to the Holders thereof who have filed their
names and addresses with the Trustee, by mailing a notice thereof by first-
class mail to such Holders at such addresses as were so furnished to the
Trustee and (iii) if any Unregistered Securities of a series affected thereby
are then Outstanding, to all Holders thereof, by publication of a notice
thereof at least once in an Authorized Newspaper in the Borough of Manhattan,
The City of New York and at least once in an Authorized Newspaper in London
(and, if required by Section 3.7, at least once in an Authorized Newspaper in
Luxembourg), and in each case such notice shall set forth in general terms the
substance of such supplemental indenture. Any failure of the Issuer to give
such notice, or any defect therein, shall not, however, in any way impair or
affect the validity of any such supplemental indenture.
Section 8.3 Effect of Supplemental Indenture. Upon the execution of any sup-
plemental indenture pursuant to the provisions hereof, this Indenture shall be
and be deemed to be modified and amended in accordance therewith and the re-
spective rights, limitations of rights, obligations, duties and immunities un-
der this Indenture of the Trustee, the Issuer and the Holders of Securities of
each series affected thereby shall thereafter be determined, exercised and en-
forced hereunder subject in all respects to such modifications and amendments,
and all the terms and conditions of any such supplemental indenture shall be
and be deemed to be part of the terms and conditions of this Indenture for any
and all purposes.
Section 8.4 Documents to Be Given to Trustee. The Trustee, subject to the
provisions of Sections 6.1 and 6.2, may receive an Officer's Certificate and
an Opinion of Counsel as conclusive evidence that any supplemental indenture
executed pursuant to this Article Eight complies with the applicable provi-
sions of this Indenture.
Section 8.5 Notation on Securities in Respect of Supplemental Indentures. Se-
curities of any series authenticated and delivered after the execution of any
supplemental indenture pursuant to the provisions of this Article may bear a
notation in form approved by the Trustee for such series as to any matter pro-
60
vided for by such supplemental indenture or as to any action taken by
Securityholders. If the Issuer or the Trustee shall so determine, new Securi-
ties of any series so modified as to conform, in the opinion of the Trustee
and the Board of Directors, to any modification of this Indenture contained in
any such supplemental indenture may be prepared by the Issuer, authenticated
by the Trustee and delivered in exchange for the Securities of such series
then Outstanding.
ARTICLE NINE
Consolidation, Merger, Sale or Conveyance
Section 9.1 Covenant Not to Merge, Consolidate, Sell or Convey Property Ex-
cept Under Certain Conditions. The Issuer covenants that it will not merge or
consolidate with any other Person or sell, lease or convey all or substan-
tially all of its assets to any other Person, unless (i) either the Issuer
shall be the continuing corporation, or the successor corporation or the Per-
son which acquires by sale, lease or conveyance substantially all the assets
of the Issuer (if other than the Issuer) shall be a corporation organized un-
der the laws of the United States of America or any State thereof or the Dis-
trict of Columbia and shall expressly assume the due and punctual payment of
the principal of and interest on all the Securities and Coupons, if any, ac-
cording to their tenor, and the due and punctual performance and observance of
all of the covenants and conditions of this Indenture to be performed or ob-
served by the Issuer, by supplemental indenture satisfactory to the Trustee,
executed and delivered to the Trustee by such corporation, and (ii) the Issu-
er, such Person or such successor corporation, as the case may be, shall not,
immediately after such merger or consolidation, or such sale, lease or convey-
ance, be in default in the performance of any such covenant or condition.
Section 9.2 Successor Corporation Substituted. In case of any such consolida-
tion, merger, sale, lease or conveyance, and following such an assumption by
the successor corporation, such successor corporation shall succeed to and be
substituted for the Issuer, with the same effect as if it had been named here-
in. Such successor corporation may cause to be signed, and may issue either in
its own name or in the name of the Issuer prior to such succession any or all
of the Securities issuable hereunder which together with any Coupons apper-
taining thereto theretofore shall not have been signed by the Issuer and de-
livered to the Trustee; and, upon the order of such successor corporation, in-
stead of the Issuer, and subject to all the terms, conditions and limitations
in this Indenture pre-
61
scribed, the Trustee shall authenticate and shall deliver any Securities to-
gether with any Coupons appertaining thereto which previously shall have been
signed and delivered by the officers of the Issuer to the Trustee for authen-
tication, and any Securities which such successor corporation thereafter shall
cause to be signed and delivered to the Trustee for that purpose. All of the
Securities so issued together with any Coupons appertaining thereto shall in
all respects have the same legal rank and benefit under this Indenture as the
Securities theretofore or thereafter issued in accordance with the terms of
this Indenture as though all of such Securities had been issued at the date of
the execution hereof.
In case of any such consolidation, merger, sale, lease or conveyance such
changes in phrasing and form (but not in substance) may be made in the Securi-
ties and Coupons thereafter to be issued as may be appropriate.
In the event of any such sale or conveyance (other than a conveyance by way
of lease) the Issuer or any successor corporation which shall theretofore have
become such in the manner described in this Article shall be discharged from
all obligations and covenants under this Indenture and the Securities and may
be liquidated and dissolved.
Section 9.3 Opinion of Counsel Delivered to Trustee. The Trustee, subject to
the provisions of Sections 6.1 and 6.2, may receive an Opinion of Counsel as
conclusive evidence that any such consolidation, merger, sale, lease or con-
veyance, and any such assumption, and any such liquidation or dissolution,
complies with the applicable provisions of this Indenture.
ARTICLE TEN
Satisfaction and Discharge of Indenture; Unclaimed Moneys
Section 10.1 Satisfaction and Discharge of Indenture. (A) If at any time (a)
the Issuer shall have paid or caused to be paid the principal of and interest
on all the Securities of any series Outstanding hereunder and all unmatured
Coupons appertaining thereto (other than Securities of such series and Coupons
appertaining thereto which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 2.9) as and when the same shall
have become due and payable, or (b) the Issuer shall have delivered to the
Trustee for cancellation all Securities of any series theretofore authenti-
cated and all unmatured Coupons appertaining thereto (other than any Securi-
ties of such series and Coupons appertaining thereto which shall have been de-
stroyed, lost or stolen
62
and which shall have been replaced or paid as provided in Section 2.9) or (c)
in the case of any series of Securities where the exact amount (including the
currency of payment) of principal of and interest due on which can be deter-
mined at the time of making the deposit referred to in clause (ii) below, (i)
all the Securities of such series and all unmatured Coupons appertaining
thereto not theretofore delivered to the Trustee for cancellation shall have
become due and payable, or are by their terms to become due and payable within
one year or are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption, and (ii)
the Issuer shall have irrevocably deposited or caused to be deposited with the
Trustee as trust funds the entire amount in cash (other than moneys repaid by
the Trustee or any paying agent to the Issuer in accordance with Section 10.4)
or, in the case of any series of Securities the payments on which may only be
made in Dollars, obligations issued or guaranteed as to principal and interest
by the United States or by a Person controlled or supervised by and acting as
an instrumentality of the government of the United States pursuant to author-
ity granted by the Congress of the United States ("U.S. Government Obliga-
tions"), maturing as to principal and interest at such times and in such
amounts as will insure the availability of cash, or a combination thereof,
sufficient in the opinion of a nationally recognized firm of independent pub-
lic accountants expressed in a written certification thereof delivered to the
Trustee, to pay (A) the principal and interest on all Securities of such se-
▇▇▇▇ and Coupons appertaining thereto on each date that such principal or in-
terest is due and payable and (B) any mandatory sinking fund payments on the
dates on which such payments are due and payable in accordance with the terms
of the Indenture and the Securities of such series; and if, in any such case,
the Issuer shall also pay or cause to be paid all other sums payable hereunder
by the Issuer, then this Indenture shall cease to be of further effect (except
as to (i) rights of registration of transfer and exchange of Securities of
such series and of Coupons appertaining thereto and the Issuer's right of op-
tional redemption, if any, (ii) substitution of mutilated, defaced, destroyed,
lost or stolen Securities or Coupons, (iii) rights of holders of Securities
and Coupons appertaining thereto to receive payments of principal thereof and
interest thereon, upon the original stated due dates therefor or on the speci-
fied redemption dates therefor (but not upon acceleration), and remaining
rights of the Holders to receive mandatory sinking fund payments, if any, (iv)
the rights, obligations, duties and immunities of the Trustee hereunder, (v)
the rights of the Holders of Securities of such series and Coupons appertain-
ing thereto as beneficiaries hereof with respect to the property so deposited
with the Trustee payable to all or any
63
of them, and (vi) the obligations of the Issuer under Section 3.2) and the
Trustee, on demand of the Issuer accompanied by an Officer's Certificate and
an Opinion of Counsel and at the cost and expense of the Issuer, shall execute
proper instruments acknowledging such satisfaction of and discharging this In-
denture; provided, that the rights of Holders of the Securities and Coupons to
receive amounts in respect of principal of and interest on the Securities and
Coupons held by them shall not be delayed longer than required by then-appli-
cable mandatory rules or policies of any securities exchange upon which the
Securities are listed.
(B) The following provisions shall apply to the Securities of each series un-
less specifically otherwise provided in a Board Resolution, Officer's Certifi-
cate or indenture supplemental hereto provided pursuant to Section 2.3. In ad-
dition to discharge of the Indenture pursuant to the next preceding paragraph,
in the case of any series of Securities the exact amounts (including the cur-
rency of payment) of principal of and interest due on which can be determined
at the time of making the deposit referred to in clause (a) below, the Issuer
shall be deemed to have paid and discharged the entire indebtedness on all the
Securities of such a series and the Coupons appertaining thereto on the 91st
day after the date of the deposit referred to in subparagraph (a) below, and
the provisions of this Indenture with respect to the Securities of such series
and Coupons appertaining thereto shall no longer be in effect (except as to
(i) rights of registration of transfer and exchange of Securities of such se-
▇▇▇▇ and of Coupons appertaining thereto and the Issuer's right of optional
redemption, if any, (ii) substitution of mutilated, defaced, destroyed, lost
or stolen Securities or Coupons, (iii) rights of Holders of Securities and
Coupons appertaining thereto to receive payments of principal thereof and in-
terest thereon, upon the original stated due dates therefor or on the speci-
fied redemption dates therefor (but not upon acceleration), and remaining
rights of the Holders to receive mandatory sinking fund payments, if any, (iv)
the rights, obligations, duties and immunities of the Trustee hereunder, (v)
the rights of the Holders of Securities of such series and Coupons appertain-
ing thereto as beneficiaries hereof with respect to the property so deposited
with the Trustee payable to all or any of them, and (vi) the obligations of
the Issuer under Section 3.2) and the Trustee, at the expense of the Issuer,
shall at the Issuer's request, execute proper instruments acknowledging the
same, if
(a) with reference to this provision the Issuer has irrevocably deposited
or caused to be irrevocably deposited 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 and Coupons apper-
taining thereto (i) cash in an amount, or (ii) in the case of any series of
Securities the payments
64
on which may only be made in Dollars, U.S. Government Obligations, maturing
as to principal and interest at such times and in such amounts as will in-
sure the availability of cash, or (iii) a combination thereof, sufficient,
in the opinion of a nationally recognized firm of independent public accoun-
tants expressed in a written certification thereof delivered to the Trustee,
to pay (A) the principal and interest on all Securities of such series and
Coupons appertaining thereto on each date that such principal or interest is
due and payable and (B) any mandatory sinking fund payments on the dates on
which such payments are due and payable in accordance with the terms of the
Indenture and the Securities of such series;
(b) the Issuer has delivered to the Trustee an Opinion of Counsel based on
the fact that (x) the Issuer has received from, or there has been published
by, the Internal Revenue Service a ruling or (y) since the date hereof,
there has been a change in the applicable Federal income tax law, in either
case to the effect that, and such opinion shall confirm that, the Holders of
the Securities of such series and Coupons appertaining thereto will not rec-
ognize income, gain or loss for Federal income tax purposes as a result of
such deposit, defeasance and discharge and will be subject to Federal income
tax on the same amount and in the same manner and at the same times, as
would have been the case if such deposit, defeasance and discharge had not
occurred; and
(c) the Issuer 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 provision have been complied
with.
(C) The Issuer shall be released from its obligations under Sections 3.6 and
9.1 with respect to the Securities of any Series, and any Coupons appertaining
thereto, Outstanding on and after the date the conditions set forth below are
satisfied (hereinafter, "covenant defeasance"). For this purpose, such cove-
nant defeasance means that, with respect to the Outstanding Securities of any
Series, the Issuer may omit to comply with and shall have no liability in re-
spect of any term, condition or limitation set forth in such Section, whether
directly or indirectly by reason of any reference elsewhere herein to such
Section or by reason of any reference in such Section to any other provision
herein or in any other document and such omission to comply shall not consti-
tute an Event of Default under Section 5.1, but the remainder of this Inden-
ture and such Securities and Coupons shall be unaffected thereby. The follow-
ing shall be the conditions to application of this subsection C of this Sec-
tion 10.1:
(a) The Issuer has irrevocably deposited or caused to be deposited with the
Trustee as trust funds in trust for the purpose of making the following pay-
ments, specifically pledged as security for, and dedicated solely to, the
benefit
65
of the holders of the Securities of such series and coupons appertaining
thereto, (i) cash in an amount, or (ii) in the case of any series of Securi-
ties the payments on which may only be made in Dollars, U.S. Government Ob-
ligations maturing as to principal and interest at such times and in such
amounts as will insure the availability of cash, or (iii) a combination
thereof, sufficient, in the opinion of a nationally recognized firm of inde-
pendent public accountants expressed in a written certification thereof de-
livered to the Trustee, to pay (A) the principal and interest on all Securi-
ties of such series and Coupons appertaining thereto and (B) any mandatory
sinking fund payments on the day on which such payments are due and payable
in accordance with the terms of the Indenture and the Securities of such se-
▇▇▇▇.
(b) The Issuer shall have delivered to the Trustee an Officer's Certificate
stating that all conditions precedent provided for relating to the covenant
defeasance contemplated by this provision have been complied with.
Section 10.2 Application by Trustee of Funds Deposited for Payment of
Securities. Subject to Section 10.4, all moneys or U.S. Government Obligations
deposited with the Trustee (or other trustee) pursuant to Section 10.1 (and
all funds earned on such moneys or U.S. Government Obligations) shall be held
in trust and applied by it to the payment, either directly or through any pay-
ing agent (including the Issuer acting as its own paying agent), to the Hold-
ers of the particular Securities of such series and of Coupons appertaining
thereto for the payment or redemption of which such moneys have been deposited
with the Trustee, of all sums due and to become due thereon for principal and
interest; but such money need not be segregated from other funds except to the
extent required by law. Subject to Section 10.1, the Trustee promptly shall
pay to the Issuer upon request any excess moneys held by it at any time.
Section 10.3 Repayment of Moneys Held by Paying Agent. In connection with the
satisfaction and discharge of this Indenture with respect to Securities of any
series, all moneys then held by any paying agent under the provisions of this
Indenture with respect to such series of Securities shall, upon demand of the
Issuer, be repaid to it or paid to the Trustee and thereupon such paying agent
shall be released from all further liability with respect to such moneys.
Section 10.4 Return of Moneys Held by Trustee and Paying Agent Unclaimed for
Two Years. Any moneys deposited with or paid to the Trustee or any paying
agent for the payment of the principal of or interest on any Security of any
series or Coupons attached thereto and not applied but remaining unclaimed for
two years after the date upon which such principal or interest shall
66
have become due and payable, shall, upon the written request of the Issuer and
unless otherwise required by mandatory provisions of applicable escheat or
abandoned or unclaimed property law, be repaid to the Issuer by the Trustee
for such series or such paying agent, and the Holder of the Securities of such
series and of any Coupons appertaining thereto shall, unless otherwise re-
quired by mandatory provisions of applicable escheat or abandoned or unclaimed
property laws, thereafter look only to the Issuer for any payment which such
Holder may be entitled to collect, and all liability of the Trustee or any
paying agent with respect to such moneys shall thereupon cease; provided, how-
ever, that the Trustee or such paying agent, before being required to make any
such repayment with respect to moneys deposited with it for any payment (a) in
respect of Registered Securities of any series, shall at the expense of the
Issuer, mail by first-class mail to Holders of such Securities at their ad-
dresses as they shall appear on the Security register, and (b) in respect of
Unregistered Securities of any series, shall at the expense of the Issuer
cause to be published once, in an Authorized Newspaper in the Borough of Man-
▇▇▇▇▇▇, The City of New York and once in an Authorized Newspaper in London
(and if required by Section 3.7, once in an Authorized Newspaper in ▇▇▇▇▇-
▇▇▇▇▇), notice, that such moneys remain and that, after a date specified
therein, which shall not be less than thirty days from the date of such mail-
ing or publication, any unclaimed balance of such money then remaining will be
repaid to the Issuer.
ARTICLE ELEVEN
Miscellaneous Provisions
Section 11.1 Incorporators, Stockholders, Officers and Directors of Issuer
Exempt from Individual Liability. No recourse under or upon any obligation,
covenant or agreement contained in this Indenture, or in any Security, or be-
cause of any indebtedness evidenced thereby, shall be had against any incorpo-
rator, as such, or against any past, present or future stockholder, officer or
director, as such, of the Issuer or of any successor, either directly or
through the Issuer or any successor, under any rule of law, statute or consti-
tutional provision or by the enforcement of any assessment or by any legal or
equitable proceeding or otherwise, all such liability being expressly waived
and released by the acceptance of the Securities and the Coupons appertaining
thereto by the Holders thereof and as part of the consideration for the issue
of the Securities and the Coupons appertaining thereto.
67
Section 11.2 Provisions of Indenture for the Sole Benefit of Parties and
Holders of Securities and Coupons. Nothing in this Indenture, in the Securi-
ties or in the Coupons appertaining thereto, expressed or implied, shall give
or be construed to give to any person, firm or corporation, other than the
parties hereto and their successors and the Holders of the Securities or Cou-
pons, if any, any legal or equitable right, remedy or claim under this Inden-
ture or under any covenant or provision herein contained, all such covenants
and provisions being for the sole benefit of the parties hereto and their suc-
cessors and of the Holders of the Securities or Coupons, if any.
Section 11.3 Successors and Assigns of Issuer Bound by Indenture. All the
covenants, stipulations, promises and agreements in this Indenture contained
by or in behalf of the Issuer shall bind its successors and assigns, whether
so expressed or not.
Section 11.4 Notices and Demands on Issuer, Trustee and Holders of Securities
and Coupons. Any notice or demand which by any provision of this Indenture is
required or permitted to be given or served by the Trustee or by the Holders
of Securities or Coupons to or on the Issuer may be given or served by being
deposited postage prepaid, first-class mail (except as otherwise specifically
provided herein) addressed (until another address of the Issuer is filed by
the Issuer with the Trustee) to New Tenneco Inc., ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Chief Financial Officer. Any notice, direction,
request or demand by the Issuer or any Holder of Securities or Coupons to or
upon the Trustee shall be deemed to have been sufficiently given or served by
being deposited postage prepaid, first-class mail (except as otherwise specif-
ically provided herein) addressed (until another address of the Trustee is
filed by the Trustee with the Issuer) to ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Global Trust Services.
Where this Indenture provides for notice to Holders of Registered Securities,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each
Holder entitled thereto, at his last address as it appears in the Security
register. In any case where notice to such 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. 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
68
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 or irregularities in regular mail
service, it shall be impracticable to mail notice to the Issuer when such no-
▇▇▇▇ is required to be given pursuant to any provision of this Indenture, then
any manner of giving such notice as shall be reasonably satisfactory to the
Trustee shall be deemed to be a sufficient giving of such notice.
Section 11.5 Officer's Certificates and Opinions of Counsel; Statements to Be
Contained Therein. Upon any application or demand by the Issuer to the Trustee
to take any action under any of the provisions of this Indenture, the Issuer
shall furnish to the Trustee an Officer's Certificate stating that all condi-
tions precedent provided for in this Indenture relating to the proposed action
have been complied with and an Opinion of Counsel stating that in the opinion
of such counsel all such conditions precedent have been complied with, except
that in the case of any such application or demand as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or demand, no additional certificate
or opinion need be furnished.
Each certificate or opinion provided for in this Indenture and delivered to
the Trustee with respect to compliance with a condition or covenant provided
for in this Indenture shall include (a) a statement that the person making
such certificate or opinion has read such covenant or condition, (b) 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, (c) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an in-
formed opinion as to whether or not such covenant or condition has been com-
plied with and (d) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the Issuer may be
based, insofar as it relates to legal matters, upon a certificate or opinion
of or representations by counsel, unless such officer knows that the certifi-
cate or opinion or representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous, or
in the exercise of reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of counsel may be based, insofar as it
relates to factual matters, information with respect to which is in the pos-
session of the Issuer, upon the certificate,
69
statement or opinion of or representations by an officer or officers of the
Issuer, unless such counsel knows that the certificate, statement or opinion
or representations with respect to the matters upon which his certificate,
statement or opinion may be based as aforesaid are erroneous, or in the exer-
cise of reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of an officer of the Issuer or of coun-
sel may be based, insofar as it relates to accounting matters, upon a certifi-
cate or opinion of or representations by an accountant or firm of accountants
in the employ of the Issuer, unless such officer or counsel, as the case may
be, knows that the certificate or opinion or representations with respect to
the accounting matters upon which his certificate, statement or opinion may be
based as aforesaid are erroneous, or in the exercise of reasonable care should
know that the same are erroneous.
Any certificate or opinion of any independent firm of public accountants
filed with and directed to the Trustee shall contain a statement that such
firm is independent.
Section 11.6 Payments Due on Saturdays, Sundays and Holidays. If the date of
maturity of interest on or principal of the Securities of any series or any
Coupons appertaining thereto or the date fixed for redemption or repayment of
any such Security or Coupon shall not be a Business Day, then payment of in-
terest or principal need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on the date
of maturity or the date fixed for redemption, and no interest shall accrue for
the period after such date.
Section 11.7 Conflict of Any Provision of Indenture with Trust Indenture Act
of 1939. If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with the duties imposed by, or with another provision
(an "incorporated provision") included in this Indenture by operation of, Sec-
tions 310 to 318, inclusive, of the Trust Indenture Act of 1939, such imposed
duties or incorporated provision shall control.
Section 11.8 New York Law to Govern. This Indenture and each Security and
Coupon shall be deemed to be a contract under the laws of the State of New
York, and for all purposes shall be construed in accordance with the laws of
such State, except as may otherwise be required by mandatory provisions of
law.
Section 11.9 Counterparts. This Indenture may be executed in any number of
counterparts, each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
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Section 11.10 Effect of Headings. The Article and Section headings herein and
the Table of Contents are for convenience only and shall not affect the con-
struction hereof.
Section 11.11 Securities in a Foreign Currency or in ECU. Unless otherwise
specified in an Officer's Certificate delivered pursuant to Section 2.3 of
this Indenture with respect to a particular series of Securities, whenever for
purposes of this Indenture any action may be taken by the Holders of a speci-
fied percentage in aggregate principal amount of Securities of all series or
all series affected by a particular action at the time Outstanding and, at
such time, there are Outstanding Securities of any series which are denomi-
nated in a coin or currency other than Dollars (including ECUs), then the
principal amount of Securities of such series which shall be deemed to be Out-
standing for the purpose of taking such action shall be that amount of Dollars
that could be obtained for such amount at the Market Exchange Rate. For pur-
poses of this Section 11.11, Market Exchange Rate shall mean the noon Dollar
buying rate in New York City for cable transfers of that currency as published
by the Federal Reserve Bank of New York; provided, however, in the case of
ECUs, Market Exchange Rate shall mean the rate of exchange determined by the
Commission of the European Communities (or any successor thereto) as published
in the Official Journal of the European Communities (such publication or any
successor publication, the "Journal"). If such Market Exchange Rate is not
available for any reason with respect to such currency, the Trustee shall use,
in its sole discretion and without liability on its part, such quotation of
the Federal Reserve Bank of New York or, in the case of ECUs, the rate of ex-
change as published in the Journal, as of the most recent available date, or
quotations or, in the case of ECUs, rates of exchange from one or more major
banks in The City of New York or in the country of issue of the currency in
question, which for purposes of the ECU shall be Brussels, Belgium, or such
other quotations or, in the case of ECU, rates of exchange as the Trustee
shall deem appropriate. The provisions of this paragraph shall apply in deter-
mining the equivalent principal amount in respect of Securities of a series
denominated in a currency other than Dollars in connection with any action
taken by Holders of Securities pursuant to the terms of this Indenture.
All decisions and determinations of the Trustee regarding the Market Exchange
Rate or any alternative determination provided for in the preceding paragraph
shall be in its sole discretion and shall, in the absence of manifest error,
be conclusive to the extent permitted by law for all purposes and irrevocably
binding upon the Issuer and all Holders.
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Section 11.12 Judgment Currency. The Issuer agrees, to the fullest extent
that it may effectively do so under applicable law, that (a) if for the pur-
pose of obtaining judgment in any court it is necessary to convert the sum due
in respect of the principal of or interest on the Securities of any series
(the "Required Currency") into a currency in which a judgment will be rendered
(the "Judgment Currency"), the rate of exchange used shall be the rate at
which in accordance with normal banking procedures the Trustee could purchase
in The City of New York the Required Currency with the Judgment Currency on
the day on which final unappealable judgment is entered, unless such day is
not a New York Banking Day, then, to the extent permitted by applicable law,
the rate of exchange used shall be the rate at which in accordance with normal
banking procedures the Trustee could purchase in The City of New York the Re-
quired Currency with the Judgment Currency on the New York Banking Day preced-
ing the day on which final unappealable judgment is entered and (b) its obli-
gations under this Indenture to make payments in the Required Currency (i)
shall not be discharged or satisfied by any tender, or any recovery pursuant
to any judgment (whether or not entered in accordance with subsection (a)), in
any currency other than the Required Currency, except to the extent that such
tender or recovery shall result in the actual receipt, by the payee, of the
full amount of the Required Currency expressed to be payable in respect of
such payments, (ii) shall be enforceable as an alternative or additional cause
of action for the purpose of recovering in the Required Currency the amount,
if any, by which such actual receipt shall fall short of the full amount of
the Required Currency so expressed to be payable and (iii) shall not be af-
fected by judgment being obtained for any other sum due under this Indenture.
For purposes of the foregoing, "New York Banking Day" means any day except a
Saturday, Sunday or a legal holiday in The City of New York or a day on which
banking institutions in The City of New York are authorized or required by law
or executive order to close.
ARTICLE TWELVE
Redemption of Securities and Sinking Funds
Section 12.1 Applicability of Article. The provisions of this Article shall
be applicable to the Securities of any series which are redeemable before
their maturity or to any sinking fund for the retirement of Securities of a
series except as otherwise specified as contemplated by Section 2.3 for Secu-
rities of such series.
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Section 12.2 Notice of Redemption; Partial Redemptions. Notice of redemption
to the Holders of Registered Securities of any series to be redeemed as a
whole or in part at the option of the Issuer shall be given by mailing notice
of such redemption by first class mail, postage prepaid, at least 30 days and
not more than 60 days prior to the date fixed for redemption to such Holders
of Securities of such series at their last addresses as they shall appear upon
the registry books. Notice of redemption to the Holders of Unregistered Secu-
rities to be redeemed as a whole or in part, who have filed their names and
addresses with the Trustee, shall be given by mailing notice of such redemp-
tion, by first class mail, postage prepaid, at least 30 days and not more than
60 prior to the date fixed for redemption, to such Holders at such addresses
as were so furnished to the Trustee (and, in the case of any such notice given
by the Issuer, the Trustee shall make such information available to the Issuer
for such purpose). Notice of redemption to all other Holders of Unregistered
Securities shall be published in an Authorized Newspaper in the Borough of
Manhattan, The City of New York and in an Authorized Newspaper in London (and,
if required by Section 3.7, in an Authorized Newspaper in Luxembourg), in each
case, once in each of three successive calendar weeks, the first publication
to be not less than 30 nor more than 60 days prior to the date fixed for re-
demption. Any notice which is mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the Holder re-
ceives the notice. Failure to give notice by mail, or any defect in the notice
to the Holder of any Security of a series designated for redemption as a whole
or in part shall not affect the validity of the proceedings for the redemption
of any other Security of such series.
The notice of redemption to each such Holder shall specify the principal
amount of each Security of such series held by such Holder to be redeemed, the
date fixed for redemption, the redemption price, the place or places of pay-
ment, that payment will be made upon presentation and surrender of such Secu-
rities and, in the case of Securities with Coupons attached thereto, of all
Coupons appertaining thereto maturing after the date fixed for redemption,
that such redemption is pursuant to the mandatory or optional sinking fund, or
both, if such be the case, that interest accrued to the date fixed for redemp-
tion will be paid as specified in such notice and that on and after said date
interest thereon or on the portions thereof to be redeemed will cease to ac-
crue. In case any Security of a series is to be redeemed in part only the no-
▇▇▇▇ of redemption shall state the portion of the principal amount thereof to
be redeemed and shall state that on and after the date fixed for redemption,
upon surrender of such Security, a new Security or Securities of such series
in principal amount equal to the unredeemed portion thereof will be issued.
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The notice of redemption of Securities of any series to be redeemed at the
option of the Issuer shall be given by the Issuer or, at the Issuer's request,
by the Trustee in the name and at the expense of the Issuer.
On or before the redemption date specified in the notice of redemption given
as provided in this Section, the Issuer will deposit with the Trustee or with
one or more paying agents (or, if the Issuer is acting as its own paying
agent, set aside, segregate and hold in trust as provided in Section 3.4) an
amount of money sufficient to redeem on the redemption date all the Securities
of such series so called for redemption at the appropriate redemption price,
together with accrued interest to the date fixed for redemption. The Issuer
will deliver to the Trustee at least 70 days prior to the date fixed for re-
demption an Officer's Certificate stating the aggregate principal amount of
Securities to be redeemed. In case of a redemption at the election of the Is-
▇▇▇▇ prior to the expiration of any restriction on such redemption, the Issuer
shall deliver to the Trustee, prior to the giving of any notice of redemption
to Holders pursuant to this Section, an Officer's Certificate stating that
such restriction has been complied with.
If less than all the Securities of a series are to be redeemed, the Trustee
shall select, in such manner as it shall deem appropriate and fair, Securities
of such Series to be redeemed in whole or in part. Securities may be redeemed
in part in multiples equal to the minimum authorized denomination for Securi-
ties of such series or any multiple thereof. The Trustee shall promptly notify
the Issuer in writing of the Securities of such series selected for redemption
and, in the case of any Securities of such series selected for partial redemp-
tion, 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 of any series shall relate, in the case of any
Security redeemed or to be redeemed only in part, to the portion of the prin-
cipal amount of such Security which has been or is to be redeemed.
Section 12.3 Payment of Securities Called for Redemption. If notice of re-
demption has been given as above provided, the Securities or portions of Secu-
rities specified in such notice shall become due and payable on the date and
at the place stated in such notice at the applicable redemption price, to-
gether with interest accrued to the date fixed for redemption, and on and af-
ter said date (unless the Issuer shall default in the payment of such Securi-
ties at the redemption price, together with interest accrued to said date) in-
terest on the Securities or portions of Securities so called for redemption
shall cease to accrue, and the
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unmatured Coupons, if any, appertaining thereto shall be void, and, except as
provided in Sections 6.5 and 10.4, such Securities shall cease from and after
the date fixed for redemption to be entitled to any benefit or security under
this Indenture, and the Holders thereof shall have no right in respect of such
Securities except the right to receive the redemption price thereof and unpaid
interest to the date fixed for redemption. On presentation and surrender of
such Securities at a place of payment specified in said notice, together with
all Coupons, if any, appertaining thereto maturing after the date fixed for
redemption, said Securities or the specified portions thereof shall be paid
and redeemed by the Issuer at the applicable redemption price, together with
interest accrued thereon to the date fixed for redemption; provided that pay-
ment of interest becoming due on or prior to the date fixed for redemption
shall be payable in the case of Securities with Coupons attached thereto, to
the Holders of the Coupons for such interest upon surrender thereof, and in
the case of Registered Securities, to the Holders of such Registered Securi-
ties registered as such on the relevant record date subject to the terms and
provisions of Sections 2.3 and 2.7 hereof.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal shall, until paid or duly provided for,
bear interest from the date fixed for redemption at the rate of interest or
Yield to Maturity (in the case of an Original Issue Discount Security) borne
by such Security.
If any Security with Coupons attached thereto is surrendered for redemption
and is not accompanied by all appurtenant Coupons maturing after the date
fixed for redemption, the surrender of such missing Coupon or Coupons may be
waived by the Issuer and the Trustee, if there be furnished to each of them
such security or indemnity as they may require to save each of them harmless.
Upon presentation of any Security redeemed in part only, the Issuer shall ex-
ecute and the Trustee shall authenticate and deliver to or on the order of the
Holder thereof, at the expense of the Issuer, a new Security or Securities of
such series, of authorized denominations, in principal amount equal to the un-
redeemed portion of the Security so presented.
Section 12.4 Exclusion of Certain Securities from Eligibility for Selection
for Redemption. Securities shall be excluded from eligibility for selection
for redemption if they are identified by registration and certificate number
in an Officer's Certificate delivered to the Trustee at least 40 days prior to
the last date
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on which notice of redemption may be given as being owned of record and bene-
ficially by, and not pledged or hypothecated by either (a) the Issuer or (b)
an entity specifically identified in such written statement as directly or in-
directly controlling or controlled by or under direct or indirect common con-
trol with the Issuer.
Section 12.5 Mandatory and Optional Sinking Funds. The minimum amount of any
sinking fund payment provided for by the terms of the Securities of any series
is herein referred to as a "mandatory sinking fund payment," and any payment
in excess of such minimum amount provided for by the terms of the Securities
of any series is herein referred to as an "optional sinking fund payment." The
date on which a sinking fund payment is to be made is herein referred to as
the "sinking fund payment date."
In lieu of making all or any part of any mandatory sinking fund payment with
respect to any series of Securities in cash, the Issuer may at its option (a)
deliver to the Trustee Securities of such series theretofore purchased or oth-
erwise acquired (except upon redemption pursuant to the mandatory sinking
fund) by the Issuer or receive credit for Securities of such series (not pre-
viously so credited) theretofore purchased or otherwise acquired (except as
aforesaid) by the Issuer and delivered to the Trustee for cancellation pursu-
ant to Section 2.10, (b) receive credit for optional sinking fund payments
(not previously so credited) made pursuant to this Section, or (c) receive
credit for Securities of such series (not previously so credited) redeemed by
the Issuer through any optional redemption provision contained in the terms of
such series. Securities so delivered or credited shall be received or credited
by the Trustee at the sinking fund redemption price specified in such Securi-
ties.
On or before the 60th day next preceding each sinking fund payment date for
any series, the Issuer will deliver to the Trustee an Officer's Certificate
(which need not contain the statements required by Section 11.5) (a) specify-
ing the portion of the mandatory sinking fund payment to be satisfied by pay-
ment of cash and the portion to be satisfied by credit of Securities of such
series and the basis for such credit, (b) stating that none of the Securities
of such series has theretofore been so credited, (c) stating that no defaults
in the payment of interest or Events of Default with respect to such series
have occurred (which have not been waived or cured) and are continuing and (d)
stating whether or not the Issuer intends to exercise its right to make an op-
tional sinking fund payment with respect to such series and, if so, specifying
the amount of such optional sinking
76
fund payment which the Issuer intends to pay on or before the next succeeding
sinking fund payment date. Any Securities of such series to be credited and
required to be delivered to the Trustee in order for the Issuer to be entitled
to credit therefor as aforesaid which have not theretofore been delivered to
the Trustee shall be delivered for cancellation pursuant to Section 2.10 to
the Trustee with such Officer's Certificate (or reasonably promptly thereafter
if acceptable to the Trustee). Such Officer's Certificate shall be irrevocable
and upon its receipt by the Trustee the Issuer shall become unconditionally
obligated to make all the cash payments or payments therein referred to, if
any, on or before the next succeeding sinking fund payment date. Failure of
the Issuer, on or before any such 60th day, to deliver such Officer's Certifi-
cate and Securities specified in this paragraph, if any, shall not constitute
a default but shall constitute, on and as of such date, the irrevocable elec-
tion of the Issuer (i) that the mandatory sinking fund payment for such series
due on the next succeeding sinking fund payment date shall be paid entirely in
cash without the option to deliver or credit Securities of such series in re-
spect thereof and (ii) that the Issuer will make no optional sinking fund pay-
ment with respect to such series as provided in this Section.
If the sinking fund payment or payments (mandatory or optional or both) to be
made in cash on the next succeeding sinking fund payment date plus any unused
balance of any preceding sinking fund payments made in cash shall exceed
$50,000 (or the equivalent thereof in any Foreign Currency or ECU) or a lesser
sum in Dollars (or the equivalent thereof in any Foreign Currency or ECU) if
the Issuer shall so request with respect to the Securities of any particular
series, such cash shall be applied on the next succeeding sinking fund payment
date to the redemption of Securities of such series at the sinking fund re-
demption price together with accrued interest to the date fixed for redemp-
tion. If such amount shall be $50,000 (or the equivalent thereof in any For-
eign Currency or ECU) or less and the Issuer makes no such request then it
shall be carried over until a sum in excess of $50,000 (or the equivalent
thereof in any Foreign Currency or ECU) is available. The Trustee shall se-
lect, in the manner provided in Section 12.2, for redemption on such sinking
fund payment date a sufficient principal amount of Securities of such series
to absorb said cash, as nearly as may be, and shall (if requested in writing
by the Issuer) inform the Issuer of the serial numbers of the Securities of
such series (or portions thereof) so selected. Securities shall be excluded
from eligibility for redemption under this Section if they are identified by
registration and certificate number in an Officer's Certificate delivered to
the Trustee at least 60 days prior to the sinking fund payment date as being
owned of record and beneficially by, and not pledged or hypothecated by
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either (a) the Issuer or (b) an entity specifically identified in such Offi-
cer's Certificate as directly or indirectly controlling or controlled by or
under direct or indirect common control with the Issuer. The Trustee, in the
name and at the expense of the Issuer (or the Issuer, if it shall so request
the Trustee in writing) shall cause notice of redemption of the Securities of
such series to be given in substantially the manner provided in Section 12.2
(and with the effect provided in Section 12.3) for the redemption of Securi-
ties of such series in part at the option of the Issuer. The amount of any
sinking fund payments not so applied or allocated to the redemption of Securi-
ties of such series shall be added to the next cash sinking fund payment for
such series and, together with such payment, shall be applied in accordance
with the provisions of this Section. Any and all sinking fund moneys held on
the stated maturity date of the Securities of any particular series (or earli-
er, if such maturity is accelerated), which are not held for the payment or
redemption of particular Securities of such series shall be applied, together
with other moneys, if necessary, sufficient for the purpose, to the payment of
the principal of, and interest on, the Securities of such series at maturity.
On or before each sinking fund payment date, the Issuer shall pay to the
Trustee in cash or shall otherwise provide for the payment of all interest ac-
crued to the date fixed for redemption on Securities to be redeemed on the
next following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of a se-
▇▇▇▇ with sinking fund moneys or give any notice of redemption of Securities
for such series by operation of the sinking fund during the continuance of a
default in payment of interest on such Securities or of any Event of Default
except that, where the giving of notice of redemption of any Securities shall
theretofore have been made, the Trustee shall redeem or cause to be redeemed
such Securities, provided that it shall have received from the Issuer a sum
sufficient for such redemption. Except as aforesaid, any moneys in the sinking
fund for such series at the time when any such default or Event of Default
shall occur, and any moneys thereafter paid into the sinking fund, shall, dur-
ing the continuance of such default or Event of Default, be deemed to have
been collected under Article Five and held for the payment of all such Securi-
ties. In case such Event of Default shall have been waived as provided in Sec-
tion 5.10 or the default cured on or before the 60th day preceding the sinking
fund payment date in any year, such moneys shall thereafter be applied on the
next succeeding sinking fund payment date in accordance with this Section to
the redemption of such Securities.
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In Witness Whereof, the parties hereto have caused this Indenture to be duly
executed all as of November 1, 1996.
New Tenneco Inc.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇
By _________________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President and Treasurer
Attest:
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
________________________________
Assistant Secretary
The Chase Manhattan Bank, Trustee
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
By _________________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Second Vice President
Attest:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
________________________________
Assistant Secretary
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