Exhibit
4.2
NEWCASTLE
INVESTMENT CORP.
----------
INDENTURE
Dated
as of
_________
__, ____
----------
LASALLE
BANK NATIONAL ASSOCIATION
Trustee
TABLE
OF CONTENTS*
PAGE
ARTICLE
I
DEFINITIONS
|
Section
1.01
|
Definitions.
|
1
|
ARTICLE
II
FORMS
OF SECURITIES
|
Section
2.01
|
Terms
of the Securities
|
11
|
|
Section
2.02
|
Form
of Trustee’s Certificate of Authentication
|
11
|
|
Section
2.03
|
Form of
Trustee’s
Certificate of Authentication by an Authenticating Agent |
12
|
ARTICLE
III
THE
DEBT SECURITIES
|
Section
3.01
|
Amount
Unlimited; Issuable in Series
|
13
|
|
Section
3.02
|
Denominations
|
15
|
|
Section
3.03
|
Execution,
Authentication, Delivery and Dating
|
15
|
|
Section
3.04
|
Temporary
Securities
|
17
|
|
Section
3.05
|
Registrar
and Paying Agent
|
18
|
|
Section
3.06
|
Transfer
and Exchange
|
18
|
|
Section
3.07
|
Mutilated,
Destroyed, Lost and Stolen Securities
|
22
|
|
Section
3.08
|
Payment
of Interest; Interest Rights Preserved
|
23
|
|
Section
3.09
|
Cancellation
|
24
|
|
Section
3.10
|
Computation
of Interest
|
24
|
|
Section
3.11
|
Currency
of Payments in Respect of Securities
|
25
|
|
Section
3.12
|
Judgments
|
25
|
|
Section
3.13
|
CUSIP
Numbers
|
26
|
ARTICLE
IV
REDEMPTION
OF SECURITIES
|
Section
4.01
|
Applicability
of Right of Redemption
|
26
|
__________________
|
*
|
The
Table of Contents is not a part of the
Indenture.
|
| Section
4.02 |
Selection
of Securities to
be Redeemed |
26
|
|
Section
4.03
|
Notice
of Redemption
|
27
|
|
Section
4.04
|
Deposit
of Redemption Price
|
27
|
|
Section
4.05
|
Securities
Payable on Redemption Date
|
27
|
|
Section
4.06
|
Securities
Redeemed in Part
|
28
|
ARTICLE
V
SINKING
FUNDS
|
Section
5.01
|
Applicability
of Sinking Fund
|
28
|
|
Section
5.02
|
Mandatory
Sinking Fund Obligation
|
29
|
|
Section
5.03
|
Optional
Redemption at Sinking Fund Redemption
Price
|
29
|
|
Section
5.04
|
Application
of Sinking Fund Payment
|
29
|
ARTICLE
VI
PARTICULAR
COVENANTS OF THE COMPANY
|
Section
6.01
|
Payments
of Securities
|
30
|
|
Section
6.02
|
Paying
Agent
|
30
|
|
Section
6.03
|
To
Hold Payment in Trust
|
31
|
|
Section
6.04
|
Merger,
Consolidation and Sale of Assets
|
32
|
|
Section
6.05
|
Compliance
Certificate
|
33
|
|
Section
6.06
|
Conditional
Waiver by Holders of Securities
|
33
|
|
Section
6.07
|
Statement
by Officers as to Default
|
34
|
ARTICLE
VII
REMEDIES
OF TRUSTEE AND SECURITYHOLDERS
|
Section
7.01
|
Events
of Default
|
34
|
|
Section
7.02
|
Acceleration;
Recission and Annulment
|
36
|
|
Section
7.03
|
Other
Remedies
|
37
|
|
Section
7.04
|
Trustee
as Attorney-in-Fact
|
38
|
|
Section
7.05
|
Priorities
|
38
|
|
Section
7.06
|
Control
by Securityholders; Waiver of Past Defaults
|
39
|
|
Section
7.07
|
Limitation
on Suits
|
39
|
|
Section
7.08
|
Undertaking
for Costs
|
40
|
|
Section
7.09
|
Remedies
Cumulative
|
40
|
ARTICLE
VIII
CONCERNING
THE SECURITYHOLDERS
|
Section
8.01
|
Evidence
of Action of Securityholders
|
41
|
|
Section
8.02
|
Proof
of Execution or Holding of Securities
|
41
|
|
Section
8.03
|
Persons
Deemed Owners
|
42
|
|
Section
8.04
|
Effect
of Consents
|
42
|
ARTICLE
IX
SECURITYHOLDERS’
MEETINGS
|
Section
9.01
|
Purposes
of Meetings
|
42
|
|
Section
9.02
|
Call
of Meetings by Trustee
|
43
|
|
Section
9.03
|
Call
of Meetings by Company or Securityholders
|
43
|
|
Section
9.04
|
Qualifications
for Voting
|
43
|
|
Section
9.05
|
Regulation
of Meetings
|
43
|
|
Section
9.07
|
No
Delay of Rights by Meeting
|
44
|
ARTICLE
X
REPORTS
BY THE COMPANY AND THE TRUSTEE AND
SECURITYHOLDERS’
LISTS
|
Section
10.01
|
Reports
by Trustee
|
45
|
|
Section
10.02
|
Reports
by the Company
|
45
|
|
Section
10.03
|
Securityholders’
Lists
|
45
|
ARTICLE
XI
CONCERNING
THE TRUSTEE
|
Section
11.01
|
Rights
of Trustees; Compensation and Indemnity
|
46
|
|
Section
11.02
|
Duties
of Trustee
|
48
|
|
Section
11.03
|
Notice
of Defaults
|
49
|
|
Section
11.04
|
Eligibility;
Disqualification
|
50
|
|
Section
11.05
|
Registration
and Notice; Removal
|
50
|
|
Section
11.06
|
Successor
Trustee by Appointment
|
51
|
|
Section
11.07
|
Successor
Trustee by Merger
|
52
|
|
Section
11.08
|
Right
to Rely on Officer’s Certificate
|
53
|
|
Section
11.09
|
Appointment
of Authenticating Agent
|
53
|
|
Section
11.10
|
Communications
by Securityholders with Other
Securityholders
|
54
|
ARTICLE
XII
SATISFACTION
AND DISCHARGE; DEFEASANCE
|
Section
12.01
|
Applicability
of Article
|
54
|
|
Section
12.02
|
Satisfaction
and Discharge of Indenture
|
55
|
|
Section
12.03
|
Defeasance
upon Deposit of Moneys or U.S Government
Obligations
|
56
|
|
Section
12.04
|
Repayment
to Company
|
57
|
|
Section
12.05
|
Indemnity
for U.S. Government Obligations
|
57
|
|
Section
12.06
|
Deposits
to Be Held in Escrow
|
57
|
|
Section
12.07
|
Application
of Trust Money
|
58
|
|
Section
12.08
|
Deposits
of Non-U.S. Currencies
|
58
|
ARTICLE
XIII
IMMUNITY
OF CERTAIN PERSONS
|
Section
13.01
|
No
Personal Liability
|
58
|
ARTICLE
XIV
SUPPLEMENTAL
INDENTURES
|
Section
14.01
|
Without
Consent of Securityholders
|
59
|
|
Section
14.02
|
With
Consent of Securityholders; Limitations
|
61
|
|
Section
14.03
|
Trustee
Protected
|
62
|
|
Section
14.04
|
Effect
of Execution of Supplemental Indenture
|
62
|
|
Section
14.05
|
Notation
on or Exchange of Securities
|
63
|
|
Section
14.06
|
Conformity
with TIA
|
63
|
ARTICLE
XV
SUBORDINATION
OF SECURITIES
|
Section
15.01
|
Agreement
to Subordinate
|
63
|
|
Section
15.02
|
Distribution
on
Dissolution, Liquidation and Reorganization; Subrogation of
Securities |
63
|
|
Section
15.03
|
No
Payment on Securities in Event of Default on Senior
Indebtedness
|
65
|
|
Section
15.04
|
Payments
on Securities Permitted
|
65
|
|
Section
15.05
|
Authorization
of Securityholders to Trustee to Effect
Subordination
|
65
|
|
Section
15.06
|
Notices
to Trustee
|
65
|
|
Section
15.07
|
Trustee
as Holder of Senior Indebtedness
|
66
|
|
Section
15.08
|
Modifications
of Terms of Senior Indebtedness
|
66
|
|
Section
15.09
|
Reliance
on Judicial Order or Certificate of Liquidating
Agent
|
67
|
|
Section
15.10
|
Satisfaction
and Discharge; Defeasance and Covenant
Defeasance
|
67
|
|
Section
15.11
|
Trustee
Not Fiduciary for Holders of Senior
Indebtedness
|
67
|
ARTICLE
XVI
MISCELLANEOUS
PROVISIONS
|
Section
16.01
|
Certificates
and Opinions as to Conditions
Precedent
|
67
|
|
Section
16.02
|
Trust
Indenture Act Controls
|
68
|
|
Section
16.03
|
Notices
to the Company and Trustee
|
69
|
|
Section
16.04
|
Notices
to Securityholders; Waiver
|
69
|
|
Section
16.05
|
Legal
Holiday
|
69
|
|
Section
16.06
|
Effects
of Headings and Table of Contents
|
70
|
|
Section
16.07
|
Successors
and Assigns
|
70
|
|
Section
16.08
|
Separability
Clause
|
70
|
|
Section
16.09
|
Benefits
of Indenture
|
70
|
|
Section
16.10
|
Counterparts
Originals
|
70
|
|
Section
16.11
|
Governing
Law; Waiver of Trial by Jury
|
70
|
INDENTURE
dated as of _________ __, ____, among Newcastle Investment
Corp., a Maryland corporation (the “Company”), and LaSalle Bank National
Association, as trustee (the “Trustee”).
WITNESSETH:
WHEREAS,
the Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance of unsecured debentures, notes,
bonds
or other evidences of indebtedness (the “Securities”) in an unlimited aggregate
principal amount to be issued from time to time in one or more series as
provided in this Indenture; and
WHEREAS,
all things necessary to make this Indenture a valid agreement of
the Company, in accordance with its terms, have been done.
NOW,
THEREFORE, THIS INDENTURE WITNESSETH:
That,
in consideration of the premises and the purchase of the Securities
by the Holders thereof for the equal and proportionate benefit of all of the
present and future Holders of the Securities, each party agrees and covenants
as
follows:
ARTICLE
I
DEFINITIONS
For
all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the
terms defined in this Article have the meanings assigned to them in
this Article and include the plural as well as the singular;
(b) all
terms used herein without definition which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein; and
(c) the
words “herein”, “hereof” and “hereunder” and other words of similar
import refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision.
(d) References
to “Article” or “Section” or other subdivision herein are
references to an Article, Section or other subdivision of the Indenture, unless
the context otherwise requires.
|
|
Section
1.01
|
Definitions.
|
(a) Unless
otherwise defined in this Indenture or the context otherwise requires, all
terms
used herein shall have the meanings assigned to them in the Trust Indenture
Act.
(b) Unless
the context otherwise requires, the terms defined in this Section 1.01(b) shall
for all purposes of this Indenture have the meanings hereinafter set forth,
the
following definitions to be equally applicable to both
the
singular and the plural forms of any of the terms herein defined:
Affiliate:
The
term “Affiliate,” with respect to any specified Person shall mean any
other Person directly or indirectly controlling or controlled by or under direct
or indirect common control with such specified Person. For the purposes of
this
definition, “control” when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract
or
otherwise; and the terms “controlling” and “controlled” have meanings
correlative to the foregoing.
Authenticating
Agent:
The
term “Authenticating Agent” shall have the meaning assigned to it in
Section 11.09.
Board
of Directors:
The
term “Board of Directors” shall mean either the board of directors of
the Company or the executive or any other committee of that board duly
authorized to act in respect hereof.
Board
Resolution:
The
term “Board Resolution” shall mean a copy of a resolution or
resolutions certified by the Secretary or an Assistant Secretary of the Company
to have been duly adopted by the Board of Directors (or by a committee of the
Board of Directors to the extent that any such other committee has been
authorized by the Board of Directors to establish or approve the matters
contemplated) and to be in full force and effect on the date of such
certification and delivered to the Trustee.
Business
Day:
The
term “Business Day,” when used with respect to any Place of Payment
or any other particular location referred to in this Indenture or in the
Securities, shall mean each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in that Place of Payment or
other location are authorized or obligated by law or executive order to close.
Capital
Stock:
The
term “Capital Stock” shall mean:
|
|
(a)
|
in
the case of a corporation, corporate
stock;
|
(b) in
the
case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate
stock;
(c) in
the
case of a partnership or limited liability company, partnership interests
(whether general or limited) or membership interests; and
(d) any
other interest or participation that confers on a Person the right to receive
a
share of the profits and losses of, or distributions of assets of, the issuing
Person, but excluding from all of the foregoing any debt securities convertible
into Capital Stock, whether or not such debt securities include any right of
participation with Capital Stock.
Code:
The
term “Code” shall mean the Internal Revenue Code of 1986 as in effect
on the date hereof.
Company:
The
term “Company” shall mean the Person named as the “Company” in the
first paragraph of this Indenture until a successor Person shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
“Company” shall mean such successor Person.
Company
Order:
The
term “Company Order” shall mean a written order signed in the name of
the Company by the Chairman, President, Executive Vice President, Senior Vice
President, Treasurer, Assistant Treasurer, Controller, Assistant Controller,
Secretary or Assistant Secretary of the Company, and delivered to the
Trustee.
Corporate
Trust Office:
The
term “Corporate Trust Office,” or other similar term, shall mean the
principal office of the Trustee at which at any particular time its corporate
trust business shall be administered, which office at the date hereof is located
at LaSalle Bank National Association, Attention: Corporate Trust Services
Division, 135 South LaSalle Street, Suite 1560, Chicago, IL 60603, or such
other
address as the Trustee may designate from time to time by notice to the Holders
and the Company, or the principal corporate trust officer of any successor
Trustee (or such other address as such successor Trustee may designate from
time
to time by notice to the Holders and the Company).
Currency:
The
term “Currency” shall mean U.S. Dollars or Foreign
Currency.
Default:
The
term “Default” shall have the meaning assigned to it in Section
11.03.
Defaulted
Interest:
The
term “Defaulted Interest” shall have the same meaning assigned to it
in Section 3.08(b).
Depositary:
The
term “Depositary” shall mean, with respect to the Securities of any
series issuable in whole or in part in the form of one or more Global
Securities, the Person designated as Depositary by the Company pursuant to
Section 3.01 until a successor 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
Securities of that series.
Designated
Currency:
The
term “Designated Currency” shall have the same meaning assigned to it
in Section 3.12.
Discharged:
The
term “Discharged” shall have the meaning assigned to it in Section
12.03.
Event
of Default:
The
term “Event of Default” shall have the meaning specified in Section
7.01.
Exchange
Act:
The
term “Exchange Act” shall mean the Securities Exchange Act of 1934,
as amended.
Exchange
Rate:
The
term “Exchange Rate” shall have the meaning assigned to it in Section
7.01.
Floating
Rate Security:
The
term “Floating Rate Security” shall mean a Security that provides for
the payment of interest at a variable rate determined periodically by reference
to an interest rate index specified pursuant to Section 3.01.
Foreign
Currency:
The
term “Foreign Currency” shall mean a currency issued by the
government of any country other than the United States or a composite currency,
the value of which is determined by reference to the values of the currencies
of
any group of countries.
GAAP:
The
term “GAAP,” with respect to any computation required or permitted
hereunder, shall mean generally accepted accounting principles in effect in
the
United States as in effect from time to time, including, without limitation,
those set forth in the opinions and pronouncements of the Accounting Principles
Board of the American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as approved by a significant segment of the
accounting profession.
Global
Security:
The
term “Global Security” shall mean any Security that evidences all or
part of a series of Securities, issued in fully-registered certificated form
to
the Depositary for such series in accordance with Section 3.03 and bearing
the
legend prescribed in Section 3.03(g).
Holder;
Holder of Securities:
The
terms “Holder” and “Holder of Securities” are defined under
“Securityholder; Holder of Securities; Holder.”
Indebtedness:
The
term “Indebtedness” shall mean any and all obligations of a Person
for money borrowed which, in accordance with GAAP, would be reflected on the
balance sheet of such Person as a liability on the date as of which Indebtedness
is to be determined.
Indenture:
The
term “Indenture” or “this Indenture” shall mean this instrument and
all indentures supplemental hereto.
Interest:
The
term “interest” shall mean, with respect to an Original Issue
Discount Security that by its terms bears interest only after Maturity, interest
payable after Maturity.
Interest
Payment Date:
The
term “Interest Payment Date” shall mean, with respect to any
Security, the Stated Maturity of an installment of interest on such
Security.
Mandatory
Sinking Fund Payment:
The
term “Mandatory Sinking Fund Payment” shall have the meaning assigned
to it in Section 5.01.
Maturity:
The
term “Maturity,” with respect to any Security, shall mean the date on
which the principal of such Security shall become due and payable as therein
and
herein provided, whether by declaration, call for redemption or
otherwise.
Members:
The
term “Members” shall have the meaning assigned to it in Section
3.03(i).
Officer’s
Certificate:
The
term “Officer’s Certificate” shall mean a certificate signed by any
of the Chairman of the Board of Directors, the President or a Vice President,
Treasurer, an Assistant Treasurer, the Controller, the Secretary or an Assistant
Secretary of the Company and delivered to the Trustee. Each such certificate
shall include the statements provided for in Section 16.01 if and to the extent
required by the provisions of such Section.
Opinion
of Counsel:
The
term “Opinion of Counsel” shall mean an opinion in writing signed by
legal counsel, who may be an employee of or of counsel to the Company, or may
be
other counsel reasonably satisfactory to the Trustee that meets the requirements
provided for in Section 16.01.
Optional
Sinking Fund Payment:
The
term “Optional Sinking Fund Payment” shall have the meaning assigned
to it in Section 5.01.
Original
Issue Discount Security:
The
term “Original Issue Discount Security” shall mean any Security that
is issued with “original issue discount” within the meaning of Section 1273(a)
of the Code and the regulations thereunder and any other Security designated
by
the Company as issued with original issue discount for United States federal
income tax purposes.
Outstanding:
The
term “Outstanding,” when used with respect to Securities means, as of
the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(a) Securities
theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(b) Securities
or portions thereof for which payment or redemption money in
the necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and segregated
in
trust by the Company (if the Company shall act as its own Paying Agent) for
the
Holders of such Securities or Securities as to which the
Company’s obligations have been Discharged; provided, however, that if such
Securities or portions thereof are to be redeemed, notice of such redemption
has
been duly given pursuant to this Indenture or provision therefor satisfactory
to
the Trustee has been made; and
(c) Securities
that have been paid pursuant to Section 3.07(b) or in exchange
for or in lieu of which other Securities have been authenticated and delivered
pursuant to this Indenture, other than any such Securities in respect of which
there shall have been presented to a Responsible Officer of the Trustee proof
satisfactory to it that such Securities are held by a protected purchaser in
whose hands such Securities are valid obligations of the Company;
provided,
however, that in determining whether the Holders of the
requisite principal amount of Securities Outstanding have performed any action
hereunder, Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such action, only
Securities that a Responsible Officer of the Trustee actually knows to be so
owned shall be so disregarded. Securities so owned that 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 to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon
the
Securities or any Affiliate of the Company or of such other obligor. In
determining whether the Holders of the requisite principal amount of Outstanding
Securities have performed any action hereunder, the principal amount of an
Original Issue Discount Security that shall be deemed to be Outstanding for
such
purpose shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon a declaration of acceleration
of the Maturity thereof pursuant to Section 7.02 and the principal amount of
a
Security denominated in a Foreign Currency that shall be deemed to be
Outstanding for such purpose shall be the amount calculated pursuant to Section
3.11(b).
Paying
Agent:
The
term “Paying Agent” shall have the meaning assigned to it in Section
6.02(a).
Person:
The
term “Person” shall mean an individual, a corporation, a limited
liability company, a partnership, an association, a joint stock company, a
trust, an unincorporated organization or a government or an agency or political
subdivision thereof.
Place
of Payment:
The
term “Place of Payment” shall mean, when used with respect to the
Securities of any series, the place or places where the principal of and
premium, if any, and interest on the Securities of that series are payable
as
specified pursuant to Section 3.01.
Predecessor
Security:
The
term “Predecessor Security” shall mean, with respect to any Security,
every previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security, and, for the purposes of this definition,
any Security authenticated and delivered under Section 3.07 in lieu of a lost,
destroyed or stolen Security shall be deemed to evidence the same debt as the
lost, destroyed or stolen Security.
Record
Date:
The
term “Record Date” shall mean, with respect to any interest payable
on any Security on any Interest Payment Date, the close of business on any
date
specified in such Security for the payment of interest pursuant to Section
3.01.
Redemption
Date:
The
term “Redemption Date” shall mean, when used with respect to any
Security to be redeemed, in whole or in part, the date fixed for such redemption
by or pursuant to this Indenture and the terms of such Security, which, in
the
case of a Floating Rate Security, unless otherwise specified pursuant to Section
3.01, shall be an Interest Payment Date only.
Redemption
Price:
The
term “Redemption Price,” when used with respect to any Security to be
redeemed, in whole or in part, shall mean the price at which it is to be
redeemed pursuant to the terms of the Security and this Indenture.
Register:
The
term “Register” shall have the meaning assigned to it in Section
3.05(a).
Registrar:
The
term “Registrar” shall have the meaning assigned to it in Section
3.05(a).
Responsible
Officers:
The
term “Responsible Officers” of the Trustee hereunder shall mean any
vice president, any assistant vice president, any trust officer, any assistant
trust officer or any other officer associated with the corporate trust
department of the Trustee customarily performing functions similar to those
performed by any of the above designated officers, and also means, with respect
to a particular corporate trust matter, any other officer of the Trustee to
when
such matter is referred because of such person's knowledge of and familiarity
with the particular subject.
SEC:
The
term “SEC” shall mean the U.S. Securities and Exchange Commission, as
constituted from time to time.
Securities
Act:
The
term “Securities Act” shall mean the Securities Act of 1933, as
amended.
Security:
The
term “Security” or “Securities” shall have the meaning stated in the
recitals and shall more particularly mean one or more of the Securities duly
authenticated by the Trustee and delivered pursuant to the provisions of this
Indenture.
Security
Custodian:
The
term “Security Custodian” shall mean the custodian with respect to
any Global Security appointed by the Depositary, or any successor Person
thereto, and shall initially be the Paying Agent.
Securityholder;
Holder of Securities; Holder:
The
term “Securityholder” or “Holder of Securities” or “Holder,” shall
mean the Person in whose name such Securities shall be registered in the
Register kept for that purpose hereunder.
Senior
Indebtedness:
The
term “Senior Indebtedness” means the principal of (and premium, if
any) and unpaid interest on (x) Indebtedness of the Company, whether outstanding
on the date hereof or thereafter created, incurred, assumed or guaranteed,
for
money borrowed other than (a) any Indebtedness of the Company which when
incurred, and without respect to any election under Section 1111(b) of the
Federal Bankruptcy Code, was without recourse to the Company, (b) any
Indebtedness of the Company to any of its Subsidiaries, (c) Indebtedness to
any
employee of the Company, (d) any liability for taxes, (e) Trade Payables and
(f)
any Indebtedness of the Company which is expressly subordinate in right of
payment to any other Indebtedness of the Company, and (y) renewals, extensions,
modifications and refundings of any such Indebtedness. For purposes of the
foregoing and the definition of “Senior Indebtedness,” the phrase “subordinated
in right of payment” means debt subordination only and not lien subordination,
and accordingly, (i) unsecured indebtedness shall not be deemed to be
subordinated in right of payment to secured indebtedness merely by virtue of
the
fact that it is unsecured, and (ii) junior liens, second liens and other
contractual arrangements that provide for priorities among Holders of the same
or different issues of indebtedness with respect to any collateral or the
proceeds of collateral shall not constitute subordination in right of payment.
This definition may be modified or superseded by a supplemental
indenture.
Special
Record Date:
The
term “Special Record Date” shall have the meaning assigned to it in
Section 3.08(b)(i).
Stated
Maturity:
The
term “Stated Maturity” when used with respect to any Security or any
installment of interest thereon, shall mean the date specified in such Security
as the fixed date on which the principal (or any portion thereof) of or premium,
if any, on such Security or such installment of interest is due and
payable.
Subsidiary:
The
term “Subsidiary,” when used with respect to any Person, shall
mean:
(a) any
corporation, association or other business entity of which more than
50% of the total voting power of shares of Capital Stock entitled (without
regard to the occurrence of any contingency and after giving effect to any
voting agreement or stockholders’ agreement that effectively transfers voting
power) to vote in the election of directors, managers or trustees of the
corporation, association or other business entity is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person (or a combination thereof); and
(b) any
partnership (i) the sole general partner or the managing general partner of
which is such Person or a Subsidiary of such Person or (ii) the only general
partners of which are that Person or one or more Subsidiaries of that Person
(or
any combination thereof).
Successor
Company:
The
term “Successor Company” shall have the meaning assigned to it in
Section 3.06(i).
Trade
Payables:
The
term “Trade Payables” means accounts payable or any other
Indebtedness or monetary obligations to trade creditors created or assumed
by
the Company or any Subsidiary of the Company in the ordinary course of business
(including guarantees thereof or instruments evidencing such
liabilities).
Trust
Indenture Act; TIA:
The
term “Trust Indenture Act” or “TIA” shall mean the Trust Indenture
Act of 1939, as amended.
Trustee:
The
term “Trustee” shall mean the Person named as the “Trustee” in the
first paragraph of this Indenture until a successor Trustee shall have become
such with respect to one or more series of Securities pursuant to the applicable
provisions of this Indenture, and thereafter “Trustee” shall mean or include
each Person who is then a Trustee hereunder, and if at any time there is more
than one such Person, “Trustee” as used with respect to the Securities of any
series shall mean the Trustee with respect to Securities of that
series.
U.S.
Dollars:
The
term “U.S. Dollars” shall mean such currency of the United States as
at the time of payment shall be legal tender for the payment of public and
private debts.
U.S.
Government Obligations:
The
term “U.S. Government Obligations” shall mean (i) direct non-callable
obligations of, or guaranteed by, the United States or (ii) obligations of
a
Person controlled or supervised by and acting as an agency or instrumentality
of
the United States, in either case, for the payment of which guarantee or
obligation the full faith and credit of the United States is
pledged.
United
States:
The
term “United States” shall mean the United States of America
(including the States and the District of Columbia), its territories and its
possessions and other areas subject to its jurisdiction.
ARTICLE
II
FORMS
OF SECURITIES
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Section
2.01
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Terms
of the Securities.
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(a) The
Securities of each series shall be substantially in one of the forms set forth
in a Company Order or in one or more indentures supplemental hereto, and shall
have such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Indenture, and may have such letters,
numbers or other marks of identification or designation and such legends or
endorsements placed thereon as the Company may deem appropriate and as are
not
inconsistent with the provisions of this Indenture, or as may be required to
comply with any law or with any rule or regulation made pursuant thereto or
with
any rule or regulation of any securities exchange on which any series of the
Securities may be listed or of any automated quotation system on which any
such
series may be quoted, or to conform to usage, all as determined by the officers
executing such Securities as conclusively evidenced by their execution of such
Securities.
(b) The
terms and provisions of the Securities shall constitute, and are hereby
expressly made, a part of this Indenture, and, to the extent applicable, the
Company and the Trustee, by their execution and delivery of this Indenture
expressly agree to such terms and provisions and to be bound
thereby.
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Section
2.02
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Form
of Trustee’s Certificate of Authentication.
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(a) Only
such of the Securities as shall bear thereon a certificate substantially in
the
form of the Trustee’s certificate of authentication hereinafter recited,
executed by the Trustee by manual signature, shall be valid or become obligatory
for any purpose or entitle the Holder thereof to any right or benefit under
this
Indenture.
(b) Each
Security shall be dated the date of its authentication, except that any Global
Security shall be dated as of the date specified as contemplated in Section
3.01.
(c) The
form
of the Trustee’s certificate of authentication to be borne by the Securities
shall be substantially as follows:
TRUSTEE’S
CERTIFICATE OF AUTHENTICATION
This
is one of the Securities issued referred to in the within-mentioned
Indenture.
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Date of
authentication:
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LaSalle National
Bank
Association, as
Trustee
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By:
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Authorized
Signatory
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Section
2.03 Form of Trustee’s Certificate of Authentication by an Authenticating
Agent. 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 by such Authenticating Agent to be borne by
Securities of each such series shall be substantially as follows:
TRUSTEE’S
CERTIFICATE OF AUTHENTICATION
This
is one of the Securities issued referred to in the within-mentioned
Indenture.
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Date of
authentication:
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as
Trustee
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By:
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[NAME OF AUTHENTICATING
AGENT]
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as Authorized
Signatory
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By:
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Authorized
Signatory
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ARTICLE
III
THE
DEBT SECURITIES
Section
3.01 Amount Unlimited; Issuable in Series. The
aggregate principal amount of Securities that may be authenticated and delivered
under this Indenture is unlimited. The Securities may be issued in one or more
series. There shall be set forth in a Company Order or in one or more indentures
supplemental hereto, prior to the issuance of Securities of any
series:
(a) the
title of the Securities of the series (which shall distinguish the Securities
of
such series from the Securities of all other series, except to the extent that
additional Securities of an existing series are being issued);
(b) 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 transfer of, or in exchange for, or in lieu
of,
other Securities of such series pursuant to Section 3.04, 3.06, 3.07, 4.06,
or
14.05);
(c) the
dates on which or periods during which the Securities of the series may be
issued, and the dates on, or the range of dates within, which the principal
of
and premium, if any, on the Securities of such series are or may be payable
or
the method by which such date or dates shall be determined or
extended;
(d) the
rate
or rates at which the Securities of the series shall bear interest, if any,
or
the method by which such rate or rates shall be determined, the date or dates
from which such interest shall accrue, or the method by which such date or
dates
shall be determined, the Interest Payment Dates on which any such interest
shall
be payable, and the Record Dates for the determination of Holders to whom
interest is payable on such Interest Payment Dates or the method by which such
date or dates shall be determined, the right, if any, to extend or defer
interest payments and the duration of such extension or deferral;
(e) if
other
than U.S. Dollars, the Currency in which Securities of the series shall be
denominated or in which payment of the principal of, premium, if any, or
interest on the Securities of the series shall be payable and any other terms
concerning such payment;
(f) if
the
amount of payment of principal of, premium, if any, or interest on the
Securities of the series may be determined with reference to an index, formula
or other method including, but not limited to, an index based on a Currency
or
Currencies other than that in which the Securities are stated to be payable,
the
manner in which such amounts shall be determined;
(g) if
the
principal of, premium, if any, or interest on Securities of the series are
to be
payable, at the election of the Company or a Holder thereof, in a Currency
other
than that in which the Securities are denominated or stated to be payable
without such election, the period or periods within which, and the terms and
conditions upon which, such election may be made and the time and the manner
of
determining the exchange rate between the Currency in which the Securities
are
denominated or payable without such election and the Currency in which the
Securities are to be paid if such election is made;
(h) the
place or places, if any, in addition to or instead of the Corporate Trust Office
of the Trustee where the principal of, premium, if any, and interest on
Securities of the series shall be payable, and where Securities of any series
may be presented for registration of transfer, exchange or conversion, and
the
place or places where notices and demands to or upon the Company in respect
of
the Securities of such series may be made;
(i) the
price or prices at which, the period or periods within which or the
date or dates on which, and the terms and conditions upon which Securities
of
the series may be redeemed, in whole or in part, at the option of the Company,
if the Company is to have that option;
(j) the
obligation or right, if any, of the Company to redeem, purchase or
repay Securities of the series pursuant to any sinking fund, amortization or
analogous provisions or at the option of a Holder thereof and the price or
prices at which, the period or periods within which or the date or dates on
which, the Currency or Currencies in which and the terms and conditions upon
which Securities of the series shall be redeemed, purchased or repaid, in whole
or in part, pursuant to such obligation;
(k) if
other
than denominations of $1,000 or any integral multiple thereof, the denominations
in which Securities of the series shall be issuable;
(l) if
other than the principal amount thereof, the portion of the principal amount
of
the Securities of the series which shall be payable upon declaration of
acceleration of the Maturity thereof pursuant to Section 7.02;
(m) whether
the
Securities of the series are to be issued as Original Issue Discount Securities
and the amount of discount with which such Securities may be
issued;
(n) provisions,
if any, for the defeasance of Securities of the series in
whole or in part and any addition or change in the provisions related to
satisfaction and discharge;
(o) whether
the Securities of the series are to be issued in whole or in part in the form
of
one or more Global Securities and, in such case, the Depositary for such Global
Security or Securities and the terms and conditions, if any, upon which
interests in such Global Security or Securities may be exchanged in whole or
in
part for the individual Securities represented thereby;
(p) the
date
as of which any Global Security of the series shall be dated if other than
the
original issuance of the first Security of the series to be issued;
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(q)
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the
form of the Securities of the
series;
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(r) if
the
Securities of the series are to be convertible into or exchangeable for any
securities or property of any Person (including the Company), the terms and
conditions upon which such Securities will be so convertible or exchangeable,
and any additions or changes, if any, to permit or facilitate such conversion
or
exchange;
(s) whether
the Securities of such series are subject to subordination and the terms of
such
subordination;
(t) any
restriction or condition on the transferability of the Securities of
such series;
(u) any
addition or change in the provisions related to compensation and reimbursement
of the Trustee which applies to Securities of such series;
(v) any
addition or change in the provisions related to supplemental indentures set
forth in Sections 14.04 and 14.02 which applies to Securities of such
series;
(w) provisions,
if
any, granting special rights to Holders upon the occurrence of specified events;
(x) any
addition to or change in the Events of Default which applies to any Securities
of the series and any change in the right of the Trustee or the requisite
Holders of such Securities to declare the principal amount thereof due and
payable pursuant to Section 7.02 and any addition or change in the provisions
set forth in Article VII which applies to Securities of the series;
(y) any
addition to or change in the covenants set forth in Article VI which applies
to
Securities of the series; and
(z) any
other terms of the Securities of such series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
Section 14.01).
All
Securities of any one series shall be substantially identical, except
as to denomination and except as may otherwise be provided herein or set forth
in a Company Order or in one or more indentures supplemental hereto.
Section
3.02 Denominations. In the absence of any
specification pursuant to Section 3.01 with respect to Securities of any series,
the Securities of such series shall be issuable only as Securities in
denominations of any integral multiple of $1,000, and shall be payable only
in
U.S. Dollars.
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Section
3.03
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Execution,
Authentication, Delivery and Dating.
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(a) The
Securities shall be executed in the name and on behalf of the Company by the
manual or facsimile signature of its Chairman of the Board of Directors, its
President, one of its Vice Presidents or Treasurer. If the Person whose
signature is on a Security no longer holds that office at the time the Security
is authenticated and delivered, the Security shall nevertheless be
valid.
(b) At
any
time and from time to time after the execution and delivery of this Indenture,
the Company may deliver Securities of any series executed by the Company to
the
Trustee for authentication, together with a Company Order for the authentication
and delivery of such Securities. The Trustee shall thereupon authenticate and
deliver such Securities without any further action by the
Company. The Company Order shall specify the amount of Securities to be
authenticated and the date on which the original issue of Securities is to
be
authenticated.
(c) In
authenticating the first Securities of any series and accepting the additional
responsibilities under this Indenture in relation to such Securities the Trustee
shall receive, and (subject to Section 11.02) shall be fully protected in
relying upon an Officer’s Certificate and an Opinion of Counsel, each prepared
in accordance with Section 16.01 stating that the conditions precedent, if
any,
provided for in the Indenture have been complied with.
(d) The
Trustee shall have the right to decline to authenticate and deliver the
Securities under this Section 3.03 if the issue of the Securities pursuant
to
this Indenture will affect the Trustee’s own rights, duties or immunities under
the Securities and this Indenture or otherwise in a manner which is not
reasonably acceptable to the Trustee.
(e) Each
Security shall be dated the date of its authentication, except as otherwise
provided pursuant to Section 3.01 with respect to the Securities of such
series.
(f) Notwithstanding
the provisions of Section 3.01 and of this Section 3.03,
if all of the Securities of any series are not to be originally issued at the
same time, then the documents required to be delivered pursuant to this Section
3.03 must be delivered only once prior to the authentication and delivery of
the
first Security of such series;
(g) If
the
Company shall establish pursuant to Section 3.01 that the Securities of a series
are to be issued in whole or in part in the form of one or more Global
Securities, then the Company shall execute and the Trustee shall authenticate
and deliver one or more Global Securities that (i) shall represent an aggregate
amount equal to the aggregate principal amount of the Outstanding Securities
of
such series to be represented by such Global Securities, (ii) shall be
registered, if in registered form, in the name of the Depositary for such 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
instruction and (iv) shall bear a legend substantially to the following effect:
“Unless
and until it is exchanged in whole or in part for the individual
Securities represented hereby, this Global Security may not be transferred
except as a whole by the Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of the Depositary
or by the Depositary or any such nominee to a successor Depositary or a nominee
of such successor Depositary.”
The
aggregate principal amount of each Global Security may from time to
time be increased or decreased by adjustments made on the records of the
Security Custodian, as provided in this Indenture.
(h) Each
Depositary designated pursuant to Section 3.01 for a Global Security in
registered form must, at the time of its designation and at all times while
it
serves as such Depositary, be a clearing agency registered under the Exchange
Act and any other applicable statute or regulation.
(i) Members
of, or participants in, the Depositary (“Members”) shall have no
rights under this Indenture with respect to any Global Security held on their
behalf by the Depositary or by the Security Custodian under such Global
Security, and the Depositary may be treated by the Company, the Trustee, the
Paying Agent and the Registrar and any of their agents as the absolute owner
of
such Global Security for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Company, the Trustee, the Paying Agent or
the
Registrar or any of their agents from giving effect to any written
certification, proxy or other authorization furnished by the Depositary or
impair, as between the Depositary and its Members, the operation of customary
practices of the Depositary governing the exercise of the rights of an owner
of
a beneficial interest in any Global Security. The Holder of a Global Security
may grant proxies and otherwise authorize any Person, including Members and
Persons that may hold interests through Members, to take any action that a
Holder is entitled to take under this Indenture or the Securities.
(j) No
Security shall be entitled to any benefit under this Indenture or be valid
or
obligatory for any purpose unless there appears on such Security a certificate
of authentication substantially in one of the forms provided for herein duly
executed by the Trustee or by an Authenticating Agent by manual or facsimile
signature of an authorized signatory of the Trustee, and such certificate upon
any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder and is entitled
to
the benefits of this Indenture.
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Section
3.04
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Temporary
Securities.
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(a) Pending
the preparation of definitive Securities of any series, the Company may execute,
and upon Company Order the Trustee shall authenticate and deliver, temporary
Securities that are printed, lithographed, typewritten, mimeographed or
otherwise reproduced, in any authorized denomination, substantially of the
tenor
of the definitive Securities in lieu of which they are issued, in registered
form and with such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Securities may determine, as
conclusively evidenced by their execution of such Securities. Any such temporary
Security may be in global form, representing all or a portion of the Outstanding
Securities of such series. Every such temporary Security shall be executed
by
the Company and shall be authenticated and delivered by the Trustee upon the
same conditions and in substantially the same manner, and with the same effect,
as the definitive Security or Securities in lieu of which it is
issued.
(b) If
temporary Securities of any series are issued, the Company will cause definitive
Securities of such series to be prepared without unreasonable delay. After
the
preparation of definitive Securities of such series, the temporary Securities
of
such series shall be exchangeable for definitive Securities of such series
upon
surrender of such temporary Securities at the office or agency of the Company
in
a Place of Payment for such series, without charge to the Holder. Upon surrender
for cancellation of any one or more temporary Securities of any series, the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Securities of the same series
of
authorized denominations and of like tenor. Until so exchanged, the temporary
Securities of any series shall in all respects be entitled
to the same benefits under this Indenture as definitive Securities of such
series.
(c) Upon
any
exchange of a portion of a temporary Global Security for a definitive Global
Security or for the individual Securities represented thereby pursuant to this
Section 3.04 or Section 3.06, the temporary Global Security shall be endorsed
by
the Trustee to reflect the reduction of the principal amount evidenced thereby,
whereupon the principal amount of such temporary Global Security shall be
reduced for all purposes by the amount so exchanged and endorsed.
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Section
3.05
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Registrar
and Paying Agent.
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(a) The
Company will keep, at an office or agency to be maintained by it in a Place
of
Payment where Securities may be presented for registration or presented and
surrendered for registration of transfer or of exchange, and where Securities
of
any series that are convertible or exchangeable may be surrendered for
conversion or exchange, as applicable (the “Registrar”), a security register for
the registration and the registration of transfer or of exchange of the
Securities (the registers maintained in such office and in any other office
or
agency of the Company in a Place of Payment being herein sometimes collectively
referred to as the “Register”), as in this Indenture provided, which Register
shall at all reasonable times be open for inspection by the Trustee. Such
Register shall be in written form or in any other form capable of being
converted into written form within a reasonable time. The Company may have
one
or more co-Registrars; the term “Registrar” includes any
co-registrar.
(b) The
Company shall enter into an appropriate agency agreement with any Registrar
or
co-Registrar not a party to this Indenture. The agreement shall implement the
provisions of this Indenture that relate to such agent. The Company shall notify
the Trustee of the name and address of each such agent. If the Company fails
to
maintain a Registrar, the Trustee shall act as such and shall be entitled to
appropriate compensation therefor pursuant to Section 11.01. The Company or
any
Affiliate thereof may act as Registrar, co-Registrar or transfer agent.
(c) The
Company hereby appoints the Trustee at its Corporate Trust Office as Registrar
in connection with the Securities and this Indenture, until such time as another
Person is appointed as such.
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Section
3.06
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Transfer
and Exchange.
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(i) Upon
surrender for
registration of transfer of any Security of any series at the Registrar the
Company shall execute, and the Trustee or any Authenticating Agent shall
authenticate and deliver, in the name of the designated transferee, one or
more
new Securities of the same series for like aggregate principal amount of any
authorized denomination or denominations. The transfer of any Security shall
not
be valid as against the Company or the Trustee unless registered at the
Registrar by the Holder, or by his, her or its attorney duly authorized in
writing.
(ii) Notwithstanding
any other
provision of this Section, unless and until it is exchanged in whole or in
part
for the individual Securities represented thereby, a 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.
(i) At
the option of the
Holder, Securities of any series (other than a Global Security, except as set
forth below) may be exchanged for other Securities of the same series for like
aggregate principal amount of any authorized denomination or denominations,
upon
surrender of the Securities to be exchanged at the Registrar.
(ii) Whenever
any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities that the Holder making the exchange
is
entitled to receive.
(c) Exchange
of Global Securities for Individual Securities. Except as provided below, owners
of beneficial interests in Global Securities will not be entitled to receive
individual Securities.
(i) Individual
Securities
shall be issued to all owners of beneficial interests in a Global Security
in
exchange for such interests if: (A) at any time the Depositary for the
Securities of a series notifies the Company that it is unwilling or unable
to
continue as Depositary for the Securities of such series or if at any time
the
Depositary for the Securities of such series shall no longer be eligible under
Section 3.03(h) and, in each case, a successor Depositary is not appointed
by
the Company within 90 days of such notice, or (B) the Company executes and
delivers to the Trustee and the Registrar an Officer’s Certificate stating that
such Global Security shall be so exchangeable.
In
connection with the exchange of an entire Global Security for
individual Securities pursuant to this subsection (c), such Global Security
shall be deemed to be surrendered to the Trustee for cancellation, and the
Company shall execute, and the Trustee, upon receipt of a Company Order for
the
authentication and delivery of individual Securities of such series, will
authenticate and deliver to each beneficial owner identified by the Depositary
in exchange for its beneficial interest in such Global Security, an equal
aggregate principal amount of individual Securities of authorized denominations.
(ii) The
owner of a beneficial interest in
a Global Security will be entitled to receive an individual Security in exchange
for such interest if an Event of Default has occurred and is continuing. Upon
receipt by the Security Custodian and Registrar of
instructions from the Holder of a Global Security directing the Security
Custodian and Registrar to (x) issue one or more individual Securities in the
amounts specified to the owner of a beneficial interest in such Global Security
and (y) debit or cause to be debited an equivalent amount of beneficial interest
in such Global Security, subject to the rules and regulations of the Depositary:
(A) the
Security
Custodian and Registrar shall notify the Company and the Trustee of such
instructions, identifying the owner and amount of such beneficial interest
in
such Global Security;
(B) the
Company
shall promptly execute and the Trustee, upon receipt of a Company Order for
the
authentication and delivery of individual Securities of such series, shall
authenticate and deliver to such beneficial owner individual Securities in
an
equivalent amount to such beneficial interest in such Global Security;
and
(C) the
Security
Custodian and Registrar shall decrease such Global Security by such amount
in
accordance with the foregoing. In the event that the individual Securities
are
not issued to each such beneficial owner promptly after the Registrar has
received a request from the Holder of a Global Security to issue such individual
Securities, the Company expressly acknowledges, with respect to the right of
any
Holder to pursue a remedy pursuant to Section 7.07 hereof, the right of any
beneficial Holder of Securities to pursue such remedy with respect to the
portion of the Global Security that represents such beneficial Holder’s
Securities as if such individual Securities had been issued.
(iii)
If
specified by the Company
pursuant to Section 3.01 with respect to a series of Securities, the Depositary
for such series of Securities may surrender a Global Security for such series
of
Securities in exchange in whole or in part for individual Securities of such
series on such terms as are acceptable to the Company and such Depositary.
Thereupon, the Company shall execute, and the Trustee shall authenticate and
deliver, without service charge,
(A) to
each Person
specified by such Depositary a new individual Security or Securities of the
same
series, of any authorized denomination as requested by such Person in aggregate
principal amount equal to and in exchange for such Person’s beneficial interest
in the Global Security; and
(B) to
such
Depositary a new Global Security in a denomination equal to the difference,
if
any, between the principal amount of the surrendered Global Security and the
aggregate principal amount of individual Securities
delivered to Holders thereof.
(iv)
In
any exchange provided for in
clauses (i) through (iii), the Company will execute and the Trustee will
authenticate and deliver individual Securities in registered form in authorized
denominations.
(v) Upon
the exchange in full of a
Global Security for individual Securities, such Global Security shall be
canceled by the Trustee. Individual Securities issued in exchange for a Global
Security pursuant to this Section shall be registered in such names and in
such
authorized denominations as the Depositary for such Global Security, pursuant
to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Securities to the Persons
in whose names such Securities are so registered.
(d) All
Securities issued upon any registration of transfer or exchange of Securities
shall be valid obligations of the Company evidencing the same debt, and entitled
to the same benefits under this Indenture, as the Securities surrendered for
such registration of transfer or exchange.
(e) Every
Security presented or surrendered for registration of transfer, or for exchange
or payment shall (if so required by the Company, the Trustee or the Registrar)
be duly endorsed, or be accompanied by a written instrument or instruments
of
transfer in form satisfactory to the Company, the Trustee and the Registrar,
duly executed by the Holder thereof or by his, her or its attorney duly
authorized in writing.
(f) No
service charge will be made for any registration of transfer or exchange of
Securities. The Company may require payment of a sum sufficient to cover any
tax, assessment or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than those
expressly provided in this Indenture to be made at the Company’s own expense or
without expense or charge to the Holders.
(g) The
Company shall not be required to (i) register, transfer or exchange Securities
of any series during a period beginning at the opening of business 15 days
before the day of the transmission of a notice of redemption of Securities
of
such series selected for redemption under Section 4.03 and ending at the close
of business on the day of such transmission, or (ii) register, transfer or
exchange any Security so selected for redemption in whole or in part, except
the
unredeemed portion of any Security being redeemed in part.
(h) Prior
to
the due presentation for registration of transfer or exchange of any Security,
the Company, the Trustee, the Paying Agent, the Registrar or any co-Registrar
may deem and treat the Person in whose name a Security is registered as the
absolute owner of such Security (whether or not such Security shall be overdue
and notwithstanding any notation of ownership or other writing thereon) for
all
purposes whatsoever, and none of the Company, the Trustee, the Paying Agent,
the
Registrar or any co-Registrar shall be affected by any notice to the
contrary.
(i) In
case a successor Company (“Successor Company”) has executed an indenture
supplemental hereto with the Trustee pursuant to Article XIV, any of the
Securities authenticated or delivered pursuant to such transaction may, from
time to time, at the request of the Successor Company, be exchanged for other
Securities executed in the name of the Successor Company with such changes
in
phraseology and form as may be appropriate, but otherwise identical to the
Securities surrendered for such exchange and of like principal amount; and
the
Trustee, upon Company Order of the Successor Company, shall authenticate and
deliver Securities as specified in such order for the purpose of such exchange.
If Securities shall at any time be authenticated and delivered in any new name
of a Successor Company pursuant to this Section 3.06 in exchange or substitution
for or upon registration of transfer of any Securities, such Successor Company,
at the option of the Holders but without expense to them, shall provide for
the
exchange of all Securities at the time Outstanding for Securities authenticated
and delivered in such new name.
(j) Each
Holder of a Security agrees to indemnify the Company and the Trustee
against any liability that may result from the transfer, exchange or assignment
of such Holder’s Security in violation of any provision of this Indenture and/or
applicable United States federal or state securities laws.
(k) The
Trustee shall have no obligation or duty to monitor, determine or inquire as
to
compliance with any restrictions on transfer imposed under this Indenture or
under applicable law with respect to any transfer of any interest in any
Security other than to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to do so if and
when
expressly required by the terms of, this Indenture, and to examine the same
to
determine substantial compliance as to form with the express requirements
hereof.
(l) Neither
the Trustee nor any agent of the Trustee shall have any
responsibility for any actions taken or not taken by the
Depositary.
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Section
3.07
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Mutilated,
Destroyed, Lost and Stolen Securities.
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(a) If
(i)
any mutilated Security is surrendered to the Trustee at its Corporate Trust
Office or (ii) the Company and the Trustee receive evidence to their
satisfaction of the destruction, loss or theft of any Security, and there is
delivered to the Company and the Trustee security or indemnity satisfactory
to
them to save each of them and any Paying Agent harmless, and neither the Company
nor the Trustee receives notice that such Security has been acquired by a
protected purchaser, then the Company shall execute and upon Company Order
the
Trustee shall authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Security, a new Security of the same series
and of like tenor, form, terms and principal amount, bearing a number not
contemporaneously outstanding, that neither gain nor loss in interest shall
result from such exchange or substitution.
(b) In
case
any such mutilated, destroyed, lost or stolen Security has become or is about
to
become due and payable, the Company in its discretion may, instead of issuing
a
new Security, pay the amount due on such Security in accordance with its terms.
(c) Upon
the
issuance of any new Security under this Section, the Company may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in respect thereto and any other expenses (including the fees
and
expenses of the Trustee) connected therewith.
(d) Every
new Security of any series issued pursuant to this Section shall constitute
an
original additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series duly issued
hereunder.
(e) The
provisions of this Section are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities.
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Section
3.08
|
Payment
of Interest; Interest Rights Preserved.
|
(a) Interest
on any Security that is payable and is punctually paid or duly provided for
on
any Interest Payment Date shall be paid to the Person in whose name such
Security (or one or more Predecessor Securities) is registered at the close
of
business on the Record Date for such interest notwithstanding the cancellation
of such Security upon any transfer or exchange subsequent to the Record Date.
Payment of interest on Securities shall be made at the Corporate Trust Office
(except as otherwise specified pursuant to Section 3.01) or, at the option
of
the Company, by check mailed to the address of the Person entitled thereto
as
such address shall appear in the Register or, if provided pursuant to Section
3.01 and in accordance with arrangements satisfactory to the Trustee, at the
option of the Holder by wire transfer to an account designated by the Holder.
(b) Any
interest on any Security that is payable but is not punctually paid or duly
provided for on any Interest Payment Date (herein called “Defaulted Interest”)
shall forthwith cease to be payable to the Holder on the relevant Record Date
by
virtue of his, her or its having been such a Holder, and such Defaulted Interest
may be paid by the Company, at its election in each case, as provided in clause
(i) or (ii) below:
(i) The
Company may elect to make
payment of any Defaulted Interest to the Persons in whose names such Securities
(or their respective Predecessor Securities) are registered at the close of
business on a special record date for the payment of such Defaulted Interest
(a
“Special Record Date”), which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each such Security and the date of the proposed payment,
and at the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee for
such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this clause provided. Thereupon the Trustee shall
fix a
Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 calendar days and not less than 10
calendar days prior to the date of the proposed payment and not less than 10
calendar days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such Special Record
Date and, in the name and at the expense of the Company, shall cause notice
of
the proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to the Holders of such
Securities at their addresses as they appear in the Register, not less than
10
calendar days prior to such Special Record Date. Notice of the proposed payment
of such Defaulted Interest and the Special Record Date therefor having been
mailed as aforesaid, such Defaulted Interest shall be paid to the Persons in
whose names such Securities (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and shall no
longer be payable pursuant to the following clause (ii).
(ii)
The
Company may make payment of any
Defaulted Interest on Securities in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such Securities may
be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant
to
this clause, such manner of payment shall be deemed practicable by the Trustee.
(c) Subject
to the provisions set forth herein relating to Record Dates, each Security
delivered pursuant to any provision of this Indenture in exchange or
substitution for, or upon registration of transfer of, any other Security shall
carry all the rights to interest accrued and unpaid, and to accrue, which were
carried by such other Security.
Section
3.09 Cancellation. Unless otherwise specified
pursuant
to Section 3.01 for Securities of any series, all Securities surrendered for
payment, redemption, registration of transfer or exchange or credit against
any
sinking fund or otherwise shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee for cancellation and shall be promptly
canceled by it and, if surrendered to the Trustee, shall be promptly canceled
by
it. The Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder that the Company
may
have acquired in any manner whatsoever, and all Securities so delivered shall
be
promptly canceled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities canceled as provided in this Section,
except as expressly permitted by this Indenture. The Trustee shall dispose
of
all canceled Securities held by it in accordance with its then customary
procedures and deliver a certificate of such disposal to the Company. The
acquisition of any Securities by the Company shall not operate as a redemption
or satisfaction of the Indebtedness represented thereby unless and until such
Securities are surrendered to the Trustee for cancellation.
Section
3.10 Computation of Interest. Except as otherwise
specified pursuant to Section 3.01 for Securities of any series, interest on
the
Securities of each series shall be computed on the basis of a 360-day year
of
twelve 30-day months.
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Section
3.11
|
Currency
of Payments in Respect of Securities.
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(a) Except
as otherwise specified pursuant to Section 3.01 for Securities of any series,
payment of the principal of and premium, if any, and interest on Securities
of
such series will be made in U.S. Dollars.
(b) For
purposes of any provision of the Indenture where the Holders of Outstanding
Securities may perform an action that requires that a specified percentage
of
the Outstanding Securities of all series perform such action and for purposes
of
any decision or determination by the Trustee of amounts due and unpaid for
the
principal of and premium, if any, and interest on the Securities of all series
in respect of which moneys are to be disbursed ratably, the principal of and
premium, if any, and interest on the Outstanding Securities denominated in
a
Foreign Currency will be the amount in U.S. Dollars based upon exchange rates,
determined as specified pursuant to Section 3.01 for Securities of such series,
as of the date for determining whether the Holders entitled to perform such
action have performed it or as of the date of such decision or determination
by
the Trustee, as the case may be.
(c) Any
decision or determination to be made regarding exchange rates shall be made
by
an agent appointed by the Company; provided, that such agent shall accept such
appointment in writing and the terms of such appointment shall, in the opinion
of the Company at the time of such appointment, require such agent to make
such
determination by a method consistent with the method provided pursuant to
Section 3.01 for the making of such decision or determination. All decisions
and
determinations of such agent regarding exchange rates shall be in its sole
discretion and shall, in the absence of manifest error, be conclusive for all
purposes and irrevocably binding upon the Company, the Trustee and all Holders
of the Securities.
Section
3.12 Judgments. The Company may provide
pursuant to
Section 3.01 for Securities of any series that (a) the obligation, if any,
of
the Company to pay the principal of, premium, if any, and interest on the
Securities of any series in a Foreign Currency or U.S. Dollars (the “Designated
Currency”) as may be specified pursuant to Section 3.01 is of the essence and
agrees that, to the fullest extent possible under applicable law, judgments
in
respect of such Securities shall be given in the Designated Currency; (b) the
obligation of the Company to make payments in the Designated Currency of the
principal of and premium, if any, and interest on such Securities shall,
notwithstanding any payment in any other Currency (whether pursuant to a
judgment or otherwise), be discharged only to the extent of the amount in the
Designated Currency that the Holder receiving such payment may, in accordance
with normal banking procedures, purchase with the sum paid in such other
Currency (after any premium and cost of exchange) on the business day in the
country of issue of the Designated Currency or in the international banking
community (in the case of a composite currency) immediately following the day
on
which such Holder receives such payment; (c) if the amount in the Designated
Currency that may be so purchased for any reason falls short of the amount
originally due, the Company shall pay such additional amounts as may be
necessary to compensate for such shortfall; and (d) any obligation of the
Company not discharged by such payment shall be due as a separate and
independent obligation and, until discharged as provided herein, shall continue
in full force and effect.
Section
3.13 CUSIP
Numbers. The Company in issuing any Securities may use
CUSIP, ISIN or other similar numbers, if then generally in use, and thereafter
with respect to such series, the Trustee may use such numbers in any notice
of
redemption or exchange with respect to such series provided that any such notice
may state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Company will promptly notify
the Trustee in writing of any change in the CUSIP, ISIN or other similar
numbers.
ARTICLE
IV
REDEMPTION
OF SECURITIES
Section
4.01 Applicability of Right of Redemption. Redemption
of Securities (other than pursuant to a sinking fund, amortization or analogous
provision) permitted by the terms of any series of Securities shall be made
in
accordance with such terms (except as otherwise specified pursuant to Section
3.01 for Securities of any series) in accordance with this Article; provided,
however, that if any such terms of a series of Securities shall conflict with
any provision of this Article, the terms of such series shall
govern.
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Section
4.02
|
Selection
of Securities to be Redeemed.
|
(a) If
the
Company shall at any time elect to redeem all or any portion of the Securities
of a series then Outstanding, it shall at least 30 days prior to the Redemption
Date fixed by the Company (unless a shorter period shall be satisfactory to
the
Trustee) notify the Trustee of such Redemption Date and of the principal amount
of Securities to be redeemed, and thereupon the Trustee shall select, by lot
or
in such other manner as the Trustee shall deem appropriate and fair and which
may provide for the selection for redemption of a portion of the principal
amount of any Security of such series; provided that the unredeemed portion
of
the principal amount of any Security shall be in an authorized denomination
(which shall not be less than the minimum authorized denomination) for such
Security. In any case where more than one Security of such series is registered
in the same name, the Trustee in its discretion may treat the aggregate
principal amount so registered as if it were represented by one Security of
such
series. The Trustee shall, as soon as practicable, notify the Company in writing
of the Securities and portions of Securities so selected.
(b) For
all
purposes of this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Securities shall relate, in the case
of
any Security redeemed or to be redeemed only in part, to the portion of the
principal amount of such Security that has been or is to be redeemed. If the
Company shall so direct, Securities registered in the name of the Company,
any
Affiliate or any Subsidiary thereof shall not be included in the Securities
selected for redemption.
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Section
4.03
|
Notice
of Redemption.
|
(a) Notice
of redemption shall be given by the Company or, at the Company’s request, by the
Trustee in the name and at the expense of the Company, not less than 30 nor
more
than 60 days prior to the Redemption Date, to the Holders of Securities of
any
series to be redeemed in whole or in part pursuant to this Article, in the
manner provided in Section 16.04. Any notice so given shall be conclusively
presumed to have been duly given, whether or not the Holder receives such
notice. Failure to give such notice, or any defect in such notice to the Holder
of any Security of a series designated for redemption, in whole or in part,
shall not affect the sufficiency of any notice of redemption with respect to
the
Holder of any other Security of such series.
(b) All
notices of redemption shall identify the Securities to be redeemed (including
CUSIP, ISIN or other similar numbers, if available) and shall state:
(i) such
election by the Company to
redeem Securities of such series pursuant to provisions contained in this
Indenture or the terms of the Securities of such series or a supplemental
indenture establishing such series, if such be the case;
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(ii)
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the
Redemption Date;
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(iii)
|
the
Redemption Price;
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(iv)
if
less than all Outstanding
Securities of any series are to be redeemed, the identification (and, in the
case of partial redemption, the principal amounts) of the Securities to be
redeemed;
(v) that
on the Redemption Date the
Redemption Price will become due and payable upon each such Security to be
redeemed, and that, if applicable, interest thereon shall cease to accrue on
and
after said date;
(vi)
the
Place or Places of Payment where
such Securities are to be surrendered for payment of the Redemption Price;
and
(vii)
that
the redemption is for a
sinking fund, if such is the case;
Section
4.04 Deposit of Redemption Price. On or prior to 11:00
a.m., New York City time, on the Redemption Date for any Securities, the Company
shall deposit with the Trustee or with a Paying Agent (or, if the Company is
acting as its own Paying Agent, segregate and hold in trust as provided in
Section 6.03) an amount of money in the Currency in which such Securities are
denominated (except as provided pursuant to Section 3.01) sufficient to pay
the
Redemption Price of such Securities or any portions thereof that are to be
redeemed on that date.
Section
4.05 Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, any Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
and from and after such date (unless the Company shall Default in the payment of the Redemption Price) such
Securities shall
cease to bear interest. Upon surrender of any such Security for redemption
in
accordance with said notice, such Security shall be paid by the Company at
the
Redemption Price; provided, however, that (unless otherwise provided pursuant
to
Section 3.01) installments of interest that have a Stated Maturity on or prior
to the Redemption Date for such Securities shall be payable according to the
terms of such Securities and the provisions of Section 3.08.
If
any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal and premium, if any, shall, until paid,
bear interest from the Redemption Date at the rate prescribed therefor in the
Security.
Section
4.06 Securities Redeemed in Part. Any Security that is
to be redeemed only in part shall be surrendered at the Corporate Trust Office
or such other office or agency of the Company as is specified pursuant to
Section 3.01 with, if the Company, the Registrar or the Trustee so requires,
due
endorsement by, or a written instrument of transfer in form satisfactory to
the
Company, the Registrar and the Trustee duly executed by the Holder thereof
or
his, her or its attorney duly authorized in writing, and the Company shall
execute, and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Security or Securities of the same
series, of like tenor and form, of any authorized denomination as requested
by
such Holder in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered; except
that
if a Global Security is so surrendered, the Company shall execute, and the
Trustee shall authenticate and deliver to the Depositary for such Global
Security, without service charge, a new Global Security in a denomination equal
to and in exchange for the unredeemed portion of the principal of the Global
Security so surrendered. In the case of a Security providing appropriate space
for such notation, at the option of the Holder thereof, the Trustee, in lieu
of
delivering a new Security or Securities as aforesaid, may make a notation on
such Security of the payment of the redeemed portion thereof.
ARTICLE
V
SINKING
FUNDS
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Section
5.01
|
Applicability
of Sinking Fund.
|
(a) Redemption
of Securities permitted or required pursuant to a sinking fund
for the retirement of Securities of a series by the terms of such series of
Securities shall be made in accordance with such terms of such series of
Securities and this Article, except as otherwise specified pursuant to Section
3.01 for Securities of such series, provided, however, that if any such terms
of
a series of Securities shall conflict with any provision of this Article, the
terms of such series shall govern.
(b) The
minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a “Mandatory Sinking Fund
Payment,” and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an “Optional Sinking
Fund Payment.” If provided for by the terms of Securities of
any series, the cash amount of any Mandatory Sinking Fund Payment may be subject
to reduction as provided in Section 5.02.
Section
5.02 Mandatory Sinking Fund Obligation. The Company
may, at its option, satisfy any Mandatory Sinking Fund Payment obligation,
in
whole or in part, with respect to a particular series of Securities by (a)
delivering to the Trustee Securities of such series in transferable form
theretofore purchased or otherwise acquired by the Company or redeemed at the
election of the Company pursuant to Section 4.03 or (b) receiving credit for
Securities of such series (not previously so credited) acquired by the Company
and theretofore delivered to the Trustee. The Trustee shall credit such
Mandatory Sinking Fund Payment obligation with an amount equal to the Redemption
Price specified in such Securities for redemption through operation of the
sinking fund and the amount of such Mandatory Sinking Fund Payment shall be
reduced accordingly. If the Company shall elect to so satisfy any Mandatory
Sinking Fund Payment obligation, it shall deliver to the Trustee not less than
45 days prior to the relevant sinking fund payment date a written notice signed
on behalf of the Company by its Chairman of the Board of Directors, its
President, one of its Vice Presidents, its Treasurer or one of its Assistant
Treasurers, which shall designate the Securities (and portions thereof, if
any)
so delivered or credited and which shall be accompanied by such Securities
(to
the extent not theretofore delivered) in transferable form. In case of the
failure of the Company, at or before the time so required, to give such notice
and deliver such Securities the Mandatory Sinking Fund Payment obligation shall
be paid entirely in moneys.
Section
5.03 Optional Redemption at Sinking Fund Redemption Price. In addition to the
sinking fund requirements of Section 5.02, to the
extent, if any, provided for by the terms of a particular series of Securities,
the Company may, at its option, make an Optional Sinking Fund Payment with
respect to such Securities. Unless otherwise provided by such terms, (a) to
the
extent that the right of the Company to make such Optional Sinking Fund Payment
shall not be exercised in any year, it shall not be cumulative or carried
forward to any subsequent year, and (b) such optional payment shall operate
to
reduce the amount of any Mandatory Sinking Fund Payment obligation as to
Securities of the same series. If the Company intends to exercise its right
to
make such optional payment in any year it shall deliver to the Trustee not
less
than 45 days prior to the relevant sinking fund payment date a certificate
signed by its Chairman of the Board of Directors, its President, one of its
Vice
Presidents, its Treasurer or one of its Assistant Treasurers stating that the
Company will exercise such optional right, and specifying the amount which
the
Company will pay on or before the next succeeding sinking fund payment date.
Such certificate shall also state that no Event of Default has occurred and
is
continuing.
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Section
5.04
|
Application
of Sinking Fund Payment.
|
(a) If
the
sinking fund payment or payments made in funds pursuant to either Section 5.02
or 5.03 with respect to a particular series of Securities plus any unused
balance of any preceding sinking fund payments made in funds with respect to
such series shall exceed $50,000 (or a lesser sum if the Company shall so
request, or such equivalent sum for Securities denominated other than in U.S.
Dollars), it shall be applied by the Trustee on the sinking fund payment date
next following the date of such payment, unless the date of such payment shall
be a sinking fund payment date, in which case such payment shall be applied
on
such sinking fund payment date, to the redemption of Securities of such series
at the redemption price specified pursuant to Section
4.03(b). The Trustee shall select, in the manner provided in Section 4.02,
for
redemption on such sinking fund payment date, a sufficient principal amount
of
Securities of such series to absorb said funds, as nearly as may be, and shall,
at the expense and in the name of the Company, thereupon cause notice of
redemption of the Securities to be given in substantially the manner provided
in
Section 4.03(a) for the redemption of Securities in part at the option of the
Company, except that the notice of redemption shall also state that the
Securities are being redeemed for the sinking fund. Any sinking fund moneys
not
so applied by the Trustee to the redemption of Securities of such series shall
be added to the next sinking fund payment received in funds by the Trustee
and,
together with such payment, shall be applied in accordance with the provisions
of this Section 5.04. Any and all sinking fund moneys held by the Trustee on
the
last sinking fund payment date with respect to Securities of such series, and
not held for the payment or redemption of particular Securities of such series,
shall be applied by the Trustee to the payment of the principal of the
Securities of such series at Maturity.
(b) On
or
prior to each sinking fund payment date, the Company shall pay to the Trustee
a
sum equal to all interest accrued to but not including the date fixed for
redemption on Securities to be redeemed on such sinking fund payment date
pursuant to this Section 5.04.
(c) The
Trustee shall not redeem any Securities of a series with sinking fund moneys
or
mail any notice of redemption of Securities of such series by operation of
the
sinking fund during the continuance of a Default in payment of interest on
any
Securities of such series or of any Event of Default (other than an Event of
Default occurring as a consequence of this paragraph) of which the Trustee
has
actual knowledge, except that if the notice of redemption of any Securities
of
such series shall theretofore have been mailed in accordance with the provisions
hereof, the Trustee shall redeem such Securities if funds sufficient for that
purpose shall be deposited with the Trustee in accordance with the terms of
this
Article. Except as aforesaid, any moneys in the sinking fund at the time any
such Default or Event of Default shall occur and any moneys thereafter paid
into
the sinking fund shall, during the continuance of such Default or Event of
Default, be held as security for the payment of all the Securities of such
series; provided, however, that in case such Default or Event of Default shall
have been cured or waived as provided herein, such moneys shall thereafter
be
applied on the next sinking fund payment date on which such moneys are required
to be applied pursuant to the provisions of this Section 5.04.
ARTICLE
VI
PARTICULAR
COVENANTS OF THE COMPANY
The
Company hereby covenants and agrees as follows:
Section
6.01 Payments of Securities. The Company will duly
and
punctually pay the principal of and premium, if any, on each series of
Securities, and the interest which shall have accrued thereon, at the dates
and
place and in the manner provided in the Securities and in this
Indenture.
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Section
6.02
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Paying
Agent.
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(a) The
Company will maintain in each Place of Payment for any series of Securities,
if
any, an office or agency where Securities may be presented or surrendered for
payment, where Securities of such series may be surrendered for registration
of
transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities and this Indenture may be served (the “Paying Agent”).
The Company will give prompt written notice to the Trustee of the location,
and
any change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of
the
Trustee, and the Company hereby appoints the Trustee as Paying Agent to receive
all presentations, surrenders, notices and demands.
(b) The
Company may also from time to time designate different or additional offices
or
agencies where the Securities of any series may be presented or surrendered
for
any or all such purposes (in or outside of such Place of Payment), and may
from
time to time rescind any such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligations described in the preceding paragraph. The Company will give prompt
written notice to the Trustee of any such additional designation or rescission
of designation and of any change in the location of any such different or
additional office or agency. The Company shall enter into an appropriate agency
agreement with any Paying Agent not a party to this Indenture. The agreement
shall implement the provisions of this Indenture that relate to such agent.
The
Company shall notify the Trustee of the name and address of each such agent.
The
Company or any Affiliate thereof may act as Paying Agent.
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Section
6.03
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To
Hold Payment in Trust.
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(a) If
the
Company or an Affiliate thereof shall at any time act as Paying Agent with
respect to any series of Securities, then, on or before the date on which the
principal of and premium, if any, or interest on any of the Securities of that
series by their terms or as a result of the calling thereof for redemption
shall
become payable, the Company or such Affiliate will segregate and hold in trust
for the benefit of the Holders of such Securities or the Trustee a sum
sufficient to pay such principal and premium, if any, or interest which shall
have so become payable until such sums shall be paid to such Holders or
otherwise disposed of as herein provided, and will notify the Trustee of its
action or failure to act in that regard. Upon any proceeding under any federal
bankruptcy laws with respect to the Company or any Affiliate thereof, if the
Company or such Affiliate is then acting as Paying Agent, the Trustee shall
replace the Company or such Affiliate as Paying Agent.
(b) If
the
Company shall appoint, and at the time have, a Paying Agent for the payment
of
the principal of and premium, if any, or interest on any series of Securities,
then prior to 11:00 a.m., New York City time, on the date on which the principal
of and premium, if any, or interest on any of the Securities of that series
shall become payable as aforesaid, whether by their terms or as a result of
the
calling thereof for redemption, the Company will deposit with such Paying Agent
a sum sufficient to pay such principal and premium, if any, or interest, such
sum to be held in trust for the benefit of the Holders of such Securities or
the
Trustee, and (unless such Paying Agent is the Trustee), the Company or any
other
obligor of such Securities will promptly notify the Trustee of its payment
or
failure to make such payment.
(c) If
the
Paying Agent shall be other than the Trustee, the Company will cause such Paying
Agent to execute and deliver to the Trustee an instrument in which such Paying
Agent shall agree with the Trustee, subject to the provisions of this Section
6.03, that such Paying Agent shall:
(i) hold
all moneys held by it for
the payment of the principal of and premium, if any, or interest on the
Securities of that series in trust for the benefit of the Holders of such
Securities until such sums shall be paid to such Holders or otherwise disposed
of as herein provided;
(ii)
give
to the Trustee notice of any
Default by the Company or any other obligor upon the Securities of that series
in the making of any payment of the principal of and premium, if any, or
interest on the Securities of that series; and
(iii)
at
any time during the continuance of
any such Default, upon the written request of the Trustee, pay to the Trustee
all sums so held in trust by such Paying Agent.
(d) Anything
in this Section 6.03 to the contrary notwithstanding, the Company may at any
time, for the purpose of obtaining a release, satisfaction or discharge of
this
Indenture or for any other reason, pay or cause to be paid to the Trustee all
sums held in trust by the Company or by any Paying Agent other than the Trustee
as required by this Section 6.03, such sums to be held by the Trustee upon
the
same trusts as those upon which such sums were held by the Company or such
Paying Agent.
(e) Any
money deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment of the principal of and premium, if any,
or
interest on any Security of any series and remaining unclaimed for two years
after such principal and premium, if any, or interest has become due and payable
shall be paid to the Company upon Company Order along with any interest that
has
accumulated thereon as a result of such money being invested at the direction
of
the Company, or (if then held by the Company) shall be discharged from such
trust, and the Holder of such Security shall thereafter, as an unsecured general
creditor, look only to the Company for payment of such amounts without interest
thereon, and all liability of the Trustee or such Paying Agent with respect
to
such trust money, and all liability of the Company as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or such Paying Agent before
being required to make any such repayment, may at the expense of the Company
cause to be published once, in a newspaper published in the English language,
customarily published on each Business Day and of general circulation in The
City of New York, notice that such money remains unclaimed and that, after
a
date specified therein, which shall not be less than 30 days from the date
of
such publication, any unclaimed balance of such money then remaining will be
repaid to the Company.
Section
6.04 Merger, Consolidation and Sale of Assets. Except
as otherwise provided as contemplated by Section 3.01 with respect to any series
of Securities:
(a) The
Company will not consolidate with any other entity or accept a merger of any
other entity into the Company or permit the Company to be merged into any other
entity, or sell other than for cash or lease all or substantially all its assets
to another entity, or purchase all or substantially all the assets of another
entity, unless (i) either the Company shall be the continuing entity, or the
successor, transferee or lessee entity (if other than the Company) shall
expressly assume, by indenture supplemental hereto satisfactory to the Trustee,
executed and delivered by such entity prior to or simultaneously with such
consolidation, merger, sale or lease, the due and punctual payment of the
principal of and interest and premium, if any, on all the Securities, according
to their tenor, and the due and punctual performance and observance of all
other
obligations to the Holders and the Trustee under this Indenture or under the
Securities to be performed or observed by the Company; and (ii) immediately
after such consolidation, merger, sale, lease or purchase the Company or the
successor, transferee or lessee entity (if other than the Company) would not
be
in Default in the performance of any covenant or condition of this Indenture.
A
purchase by a Subsidiary of all or substantially all of the assets of another
entity shall not be deemed to be a purchase of such assets by the Company.
(b) Upon
any
consolidation with or merger into any other entity, or any sale other than
for
cash, or any conveyance or lease of all or substantially all of the assets
of
the Company in accordance with this Section 6.04, the successor entity formed
by
such consolidation or into or with which the Company is merged or to which
the
Company is sold or to which such conveyance, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every right and power
of,
the Company under this Indenture with the same effect as if such successor
entity had been named as the Company herein, and thereafter, except in the
case
of a lease, the predecessor Company shall be relieved of all obligations and
covenants under this Indenture and the Securities, and from time to time such
entity may exercise each and every right and power of the Company under this
Indenture, in the name of the Company, or in its own name; and any act or
proceeding by any provision of this Indenture required or permitted to be done
by the Board of Directors or any officer of the Company may be done with like
force and effect by the like board or officer of any entity that shall at the
time be the successor of the Company hereunder. In the event of any such sale
or
conveyance, but not any such lease, the Company (or any successor entity which
shall theretofore have become such in the manner described in this Section
6.04)
shall be discharged from all obligations and covenants under this Indenture
and
the Securities and may thereupon be dissolved and liquidated.
Section
6.05 Compliance Certificate. Except as otherwise
provided as contemplated by Section 3.01 with respect to any series of
Securities, the Company shall furnish to the Trustee annually, within 120 days
after the end of each fiscal year, a brief certificate from the principal
executive officer, principal financial officer or principal accounting officer
as to his or her knowledge of the Company’s compliance with all conditions and
covenants under this Indenture (which compliance shall be determined without
regard to any period of grace or requirement of notice provided under this
Indenture) and, in the event of any Default, specifying each such Default and
the nature and status thereof of which such person may have knowledge. Such
certificates need not comply with Section 16.01 of this Indenture.
Section
6.06 Conditional Waiver by Holders of Securities.
Anything in this Indenture to the contrary notwithstanding, the Company may
fail
or omit in any particular instance to comply with a covenant or condition set
forth herein with respect to any series of Securities if the Company shall have obtained and filed with the Trustee,
prior to the time
of such failure or omission, evidence (as provided in Article VIII) of the
consent of the Holders of a majority in aggregate principal amount of the
Securities of such series at the time Outstanding, either waiving such
compliance in such instance or generally waiving compliance with such covenant
or condition, but no such waiver shall extend to or affect such covenant or
condition except to the extent so expressly waived, or impair any right
consequent thereon and, until such waiver shall have become effective, the
obligations of the Company and the duties of the Trustee in respect of any
such
covenant or condition shall remain in full force and effect.
Section
6.07 Statement by Officers as to Default. The Company
shall deliver to the Trustee as soon as possible and in any event within 30
days
after the Company becomes aware of the occurrence of any Event of Default or
an
event which, with the giving of notice or the lapse of time or both, would
constitute an Event of Default, an Officer’s Certificate setting forth the
details of such Event of Default or Default and the action which the Company
proposes to take with respect thereto.
ARTICLE
VII
REMEDIES
OF TRUSTEE AND SECURITYHOLDERS
Section
7.01 Events of Default. Except where otherwise
indicated by the context or where the term is otherwise defined for a specific
purpose, the term “Event of Default” as used in this Indenture with respect to
Securities of any series shall mean one of the following described events unless
it is either inapplicable to a particular series or it is specifically deleted
or modified in the manner contemplated in Section 3.01:
(a) the
failure of the Company to pay any installment of interest on any Security of
such series when and as the same shall become payable, which failure shall
have
continued unremedied for a period of 30 days;
(b) the
failure of the Company to pay the principal of (and premium, if any, on) any
Security of such series, when and as the same shall become payable, whether
at
Maturity as therein expressed, by call for redemption (otherwise than pursuant
to a sinking fund), by declaration as authorized by this Indenture or otherwise;
(c) the
failure of the Company to pay a sinking fund installment, if any, when and
as
the same shall become payable by the terms of a Security of such series, which
failure shall have continued unremedied for a period of 30 days;
(d) the
failure of the Company, subject to the provisions of Section 6.06, to perform
any covenants or agreements contained in this Indenture (including any indenture
supplemental hereto pursuant to which the Securities of such series were issued
as contemplated by Section 3.01) (other than a covenant or agreement which
has
been expressly included in this Indenture solely for the benefit of a series
of
Securities other than that series and other than a covenant or agreement a
default in the performance of which is elsewhere in this Section 7.01
specifically addressed), which failure shall not have been remedied, or without
provision deemed to be adequate for the remedying thereof having been made,
for
a period of 90 days after written notice shall have been
given to the Company by the Trustee or shall have been given to the Company
and
the Trustee by Holders of 25% or more in aggregate principal amount of the
Securities of such series then Outstanding, specifying such failure, requiring
the Company to remedy the same and stating that such notice is a “Notice of
Default” hereunder;
(e) the
entry by a court having jurisdiction in the premises of a decree or order for
relief in respect of the Company in an involuntary case under the federal
bankruptcy laws, as now or hereafter constituted, or any other applicable
federal or state bankruptcy, insolvency or other similar law now or hereafter
in
effect, or appointing a receiver, liquidator, assignee, custodian, trustee
or
sequestrator (or similar official) of the Company or of substantially all the
property of the Company 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
90
consecutive days;
(f) the
commencement by the Company of a voluntary case under the federal
bankruptcy laws, as now or hereafter constituted, or any other applicable
federal or state bankruptcy, insolvency or other similar law now or hereafter
in
effect, or the consent by the Company to the entry of an order for relief in
an
involuntary case under any such law, or the consent by the Company to the
appointment of or taking possession by a receiver, liquidator, assignee,
trustee, custodian or sequestrator (or similar official) of the Company or
of
substantially all the property of the Company or the making by it of an
assignment for the benefit of creditors or the admission by it in writing of
its
inability to pay its debts generally as they become due, or the taking of
corporate action by the Company in furtherance of any action; or
(g) the
occurrence of any other Event of Default with respect to Securities of such
series as provided in Section 3.01;
provided,
however, that no event described in clause (d), (e), (f) or
(other than with respect to a payment default) (g) above shall constitute an
Event of Default hereunder until a Responsible Officer assigned to and working
in the Trustee’s corporate trust department has actual knowledge thereof or
until a written notice of any such event is received by the Trustee at the
Corporate Trust Office, and such notice refers to the facts underlying such
event, the Securities generally, the Company and the Indenture.
Notwithstanding
the foregoing provisions of this Section 7.01, if the
principal or any premium or interest on any Security is payable in a Currency
other than the Currency of the United States and such Currency is not available
to the Company for making payment thereof due to the imposition of exchange
controls or other circumstances beyond the control of the Company, the Company
will be entitled to satisfy its obligations to Holders of the Securities by
making such payment in the Currency of the United States in an amount equal
to
the Currency of the United States equivalent of the amount payable in such
other
Currency, as determined by the Trustee by reference to the noon buying rate
in
The City of New York for cable transfers for such Currency (“Exchange Rate”), as
such Exchange Rate is reported or otherwise made available by the Federal
Reserve Bank of New York on the date of such payment, or, if such rate is not
then available, on the basis of the most recently available Exchange Rate.
Notwithstanding the foregoing provisions of this Section 7.01, any payment
made
under such circumstances in the Currency of the United States where the required
payment is in a Currency other than the Currency of the
United States will not constitute an Event of Default under this
Indenture.
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Section
7.02
|
Acceleration;
Recission and Annulment.
|
(a) Except
as otherwise provided as contemplated by Section 3.01 with respect to any series
of Securities, if any one or more of the above-described Events of Default
(other than an Event of Default specified in Section 7.01(e) or 7.01(f)) shall
happen with respect to Securities of any series at the time Outstanding, then,
and in each and every such case, during the continuance of any such Event of
Default, the Trustee or the Holders of 25% or more in principal amount of the
Securities of such series then Outstanding may declare the principal (or, if
the
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms of that series) of
and
all accrued but unpaid interest on all the Securities of such series then
Outstanding to be due and payable immediately by a notice in writing to the
Company (and to the Trustee if given by Holders), and upon any such declaration
such principal amount (or specified amount) shall become immediately due and
payable. If an Event of Default specified in Section 7.01(e) or 7.01(f) occurs
and is continuing, then in every such case, the principal amount of all of
the
Securities of that series then Outstanding shall automatically, and without
any
declaration or any other action on the part of the Trustee or any Holder, become
due and payable immediately. Upon payment of such amounts in the Currency in
which such Securities are denominated (subject to Section 7.01 and except as
otherwise provided pursuant to Section 3.01), all obligations of the Company
in
respect of the payment of principal of and interest on the Securities of such
series shall terminate.
(b) This
provision, however, is subject to the condition that, at any time after the
principal of all the Securities of such series, to which any one or more of
the
above-described Events of Default is applicable, shall have been so declared
to
be due and payable, and before a judgment or decree for payment of the money
due
has been obtained by the Trustee as hereinafter provided in this Article, the
Event of Default giving rise to such declaration of acceleration shall, without
further act, be deemed to have been waived, and such declaration and its
consequences shall, without further act, be deemed to have been rescinded and
annulled, if:
(i) the
Company has paid or
deposited with the Trustee or Paying Agent a sum in the Currency in which such
Securities are denominated (subject to Section 7.01 and except as otherwise
provided pursuant to Section 3.01) sufficient to pay
(A) all
amounts owing
the Trustee and any predecessor trustee hereunder under Section 11.01(a)
(provided, however, that all sums payable under this clause (A) shall be paid
in
U.S. Dollars);
(B) all
arrears of
interest, if any, upon all the Securities of such series (with interest, to
the
extent that interest thereon shall be legally enforceable, on any overdue
installment of interest at the rate borne by the Securities at the rate or
rates
prescribed therefor in such Securities); and
(C) the
principal
of and premium, if any, on any Securities of such series that have become due
otherwise than by such declaration of acceleration and interest
thereon;
(ii) every
other Default and Event
of Default with respect to Securities of that series, other than the non-payment
of the principal of Securities of that series which have become due solely
by
such declaration of acceleration, have been cured or waived as provided in
Section 7.06.
(c) No
such
rescission shall affect any subsequent default or impair any right consequent
thereon.
(d) 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
7.03 Other Remedies. If the Company shall
fail for a
period of 30 days to pay any installment of interest on the Securities of any
series or shall fail to pay the principal of and premium, if any, on any of
the
Securities of such series when and as the same shall become due and payable,
whether at Maturity, or by call for redemption (other than pursuant to the
sinking fund), by declaration as authorized by this Indenture, or otherwise,
or
shall fail for a period of 30 days to make any required sinking fund payment
as
to a series of Securities, then, upon demand of the Trustee, the Company will
pay to the Paying Agent for the benefit of the Holders of Securities of such
series then Outstanding the whole amount which then shall have become due and
payable on all the Securities of such series, with interest on the overdue
principal and premium, if any, and (so far as the same may be legally
enforceable) on the overdue installments of interest at the rate borne by the
Securities of such series, and all amounts owing the Trustee and any predecessor
trustee hereunder under Section 11.01(a).
In
case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any action or proceeding at law or in
equity for the collection of the sums so due and unpaid, and may prosecute
any
such action or proceeding to judgment or final decree, and may enforce any
such
judgment or final decree against the Company or any other obligor upon the
Securities of such series, and collect the moneys adjudged or decreed to be
payable out of the property of the Company or any other obligor upon the
Securities of such series, wherever situated, in the manner provided by law.
Every recovery of judgment in any such action or other proceeding, subject
to
the payment to the Trustee of all amounts owing the Trustee and any predecessor
trustee hereunder under Section 11.01(a), shall be for the ratable benefit
of
the Holders of such series of Securities which shall be the subject of such
action or proceeding. All rights of action upon or under any
of the Securities or this Indenture may be enforced by the Trustee without
the
possession of any of the Securities and without the production of any thereof
at
any trial or any proceeding relative thereto.
Section
7.04 Trustee as Attorney-in-Fact. The Trustee is
hereby appointed, and each and every Holder of the Securities, by receiving
and
holding the same, shall be conclusively deemed to have appointed the Trustee,
the true and lawful attorney-in-fact of such Holder, with authority to make
or
file (whether or not the Company shall be in Default in respect of the payment
of the principal of, or interest on, any of the Securities), in its own name
and
as trustee of an express trust or otherwise as it shall deem advisable, in
any
receivership, insolvency, liquidation, bankruptcy, reorganization or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or to their respective creditors or property, any and all claims,
proofs of claim, proofs of debt, petitions, consents, other papers and documents
and amendments of any thereof, as may be necessary or advisable in order to
have
the claims of the Trustee and any predecessor trustee hereunder and of the
Holders of the Securities allowed in any such proceeding and to collect and
receive any moneys or other property payable or deliverable on any such claim,
and to execute and deliver any and all other papers and documents and to do
and
perform any and all other acts and things, as it may deem necessary or advisable
in order to enforce in any such proceeding any of the claims of the Trustee
and
any predecessor trustee hereunder and of any of such Holders in respect of
any
of the Securities; and any receiver, assignee, trustee, custodian or debtor
in
any such proceeding is hereby authorized, and each and every taker or Holder
of
the Securities, by receiving and holding the same, shall be conclusively deemed
to have authorized any such receiver, assignee, trustee, custodian or debtor,
to
make any such payment or delivery only to or on the order of the Trustee, and
to
pay to the Trustee any amount due it and any predecessor trustee hereunder
under
Section 11.01(a); provided, however, that nothing herein contained shall be
deemed to authorize or empower the Trustee to consent to or accept or adopt,
on
behalf of any Holder of Securities, any plan of reorganization or readjustment
affecting the Securities or the rights of any Holder thereof, or to authorize
or
empower the Trustee to vote in respect of the claim of any Holder of any
Securities in any such proceeding.
Section
7.05 Priorities. Any moneys or properties
collected by
the Trustee with respect to a series of Securities under this Article VII shall
be applied in the order following, at the date or dates fixed by the Trustee
for
the distribution of such moneys or properties and, in the case of the
distribution of such moneys or properties on account of the Securities of any
series, upon presentation of the Securities of such series, and stamping thereon
the payment, if only partially paid, and upon surrender thereof, if fully paid:
First:
To the payment of all amounts due to the Trustee and any
predecessor trustee hereunder under Section 11.01(a).
Second:
In case the principal of the Outstanding Securities of such
series shall not have become due and be unpaid, to the payment of interest
on
the Securities of such series, in the chronological 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 rate borne by such Securities, such payments to be made ratably to the
Persons entitled thereto.
Third:
In case the principal of the Outstanding Securities of such series
shall have become due, by declaration or otherwise, to the payment of the whole
amount then owing and unpaid upon the Securities of such series for principal
and premium, if any, and interest, with interest on the overdue principal and
premium, if any, and (to the extent that such interest has been collected by
the
Trustee) upon overdue installments of interest at the rate borne by the
Securities of such series, and in case such moneys shall be insufficient to
pay
in full the whole amounts so due and unpaid upon the Securities of such series,
then to the payment of such principal and premium, if any, and interest without
preference or priority of principal and premium, if any, over interest, or
of
interest over principal and premium, if any, or of any installment of interest
over any other installment of interest, or of any Security of such series over
any other Security of such series, ratably to the aggregate of such principal
and premium, if any, and accrued and unpaid interest.
Any
surplus then remaining shall be paid to the Company or as directed by
a court of competent jurisdiction.
Section
7.06 Control by Securityholders; Waiver of Past Defaults. The Holders of a majority
in principal amount of the Securities of any
series at the time Outstanding may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee hereunder,
or
of exercising any trust or power hereby conferred upon the Trustee with respect
to the Securities of such series, provided, however, that, subject to the
provisions of Sections 11.01 and 11.02, the Trustee shall have the right to
decline to follow any such direction if the Trustee being advised by counsel
determines that the action so directed may not lawfully be taken or would be
unduly prejudicial to Holders not joining in such direction or would involve
the
Trustee in personal liability. Prior to any declaration accelerating the
Maturity of the Securities of any series, the Holders of a majority in aggregate
principal amount of such series of Securities at the time Outstanding may on
behalf of the Holders of all of the Securities of such series waive any past
Default or Event of Default hereunder and its consequences except a Default
in
the payment of interest or any premium on or the principal of the Securities
of
such series. Upon any such waiver the Company, the Trustee and the Holders
of
the Securities of such series shall be restored to their former positions and
rights hereunder, respectively; but no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any right consequent
thereon. Whenever any Default or Event of Default hereunder shall have been
waived as permitted by this Section 7.06, said Default or Event of Default
shall
for all purposes of the Securities of such series and this Indenture be deemed
to have been cured and to be not continuing.
Section
7.07 Limitation on Suits. No Holder of any Security
of
any series shall have any right to institute any action, suit or proceeding
at
law or in equity for the execution of any trust hereunder or for the appointment
of a receiver or for any other remedy hereunder, in each case with respect
to an
Event of Default with respect to such series of Securities, unless such Holder
previously shall have given to the Trustee written notice of one or more of
the
Events of Default herein specified with respect to such series of Securities,
and unless also the Holders of 25% in principal amount of the Securities of
such
series then Outstanding shall have requested the Trustee in writing to take
action in respect of the matter complained of, and unless also there shall
have
been offered to the Trustee security and indemnity satisfactory to it against
the costs, expenses and liabilities to be incurred therein
or thereby, and the Trustee, for 60 days after receipt of such notification,
request and offer of indemnity, shall have neglected or refused to institute
any
such action, suit or proceeding; and such notification, request and offer of
indemnity are hereby declared in every such case to be conditions precedent
to
any such action, suit or proceeding by any Holder of any Security of such
series; it being understood and intended that no one or more of the Holders
of
Securities of such series shall have any right in any manner whatsoever by
his,
her, its or their action to enforce any right hereunder, except in the manner
herein provided, and that every action, suit or proceeding at law or in equity
shall be instituted, had and maintained in the manner herein provided and for
the equal benefit of all Holders of the Outstanding Securities of such series;
provided, however, that nothing in this Indenture or in the Securities of such
series shall affect or impair the obligation of the Company, which is absolute
and unconditional, to pay the principal of, premium, if any, and interest on
the
Securities of such series to the respective Holders of such Securities at the
respective due dates in such Securities stated, or affect or impair the right,
which is also absolute and unconditional, of such Holders to institute suit
to
enforce the payment thereof.
Section
7.08 Undertaking for Costs. All parties to this
Indenture and each Holder of any Security, by such Holder’s acceptance thereof,
shall be deemed to have agreed that any court may in its discretion require,
in
any action, suit or proceeding for the enforcement of any right or remedy under
this Indenture, or in any action, suit or proceeding against the Trustee for
any
action taken or omitted by it as Trustee, the filing by any party litigant
in
such action, suit or proceeding of an undertaking to pay the costs of such
action, suit or proceeding, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys’ fees, against any party
litigant in such action, suit or proceeding, having due regard to the merits
and
good faith of the claims or defenses made by such party litigant; provided,
however, that the provisions of this Section 7.08 shall not apply to any action,
suit or proceeding instituted by the Trustee, to any action, suit or proceeding
instituted by any one or more Holders of Securities holding in the aggregate
more than 10% in principal amount of the Securities of any series Outstanding,
or to any action, suit or proceeding instituted by any Holder of Securities
of
any series for the enforcement of the payment of the principal of or premium,
if
any, or the interest on, any of the Securities of such series, on or after
the
respective due dates expressed in such Securities.
Section
7.09 Remedies Cumulative. No remedy herein conferred
upon or reserved to the Trustee or to the Holders of Securities of any series
is
intended to be exclusive of any other remedy or remedies, and each and every
remedy shall be cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity or by statute. No
delay or omission of the Trustee or of any Holder of the Securities of any
series to exercise any right or power accruing upon any Default or Event of
Default shall impair any such right or power or shall be construed to be a
waiver of any such Default or Event of Default or an acquiescence therein;
and
every power and remedy given by this Article VII to the Trustee and to the
Holders of Securities of any series, respectively, may be exercised from time
to
time and as often as may be deemed expedient by the Trustee or by the Holders
of
Securities of such series, as the case may be. In case the Trustee or any Holder
of Securities of any series shall have proceeded to enforce any right under
this
Indenture and the proceedings for the enforcement thereof shall have been
discontinued or abandoned because of waiver or for any other reason or shall
have been adjudicated adversely to the Trustee or to such Holder of Securities,
then and in every such case the Company, the Trustee and the
Holders of the Securities of such series shall severally and respectively be
restored to their former positions and rights hereunder, and thereafter all
rights, remedies and powers of the Trustee and the Holders of the Securities
of
such series shall continue as though no such proceedings had been taken, except
as to any matters so waived or adjudicated.
ARTICLE
VIII
CONCERNING
THE SECURITYHOLDERS
Section
8.01 Evidence of Action of Securityholders. Whenever
in this Indenture it is provided that the Holders of a specified percentage
or a
majority in aggregate principal amount of the Securities or of any series of
Securities may take any action (including the making of any demand or request,
the giving of any notice, consent or waiver or the taking of any other action),
the fact that at the time of taking any such action the Holders of such
specified percentage or majority have joined therein may be evidenced by (a)
any
instrument or any number of instruments of similar tenor executed by
Securityholders in person, by an agent or by a proxy appointed in writing,
including through an electronic system for tabulating consents operated by
the
Depositary for such series or otherwise (such action becoming effective, except
as herein otherwise expressly provided, when such instruments or evidence of
electronic consents are delivered to the Trustee and, where it is hereby
expressly required, to the Company), or (b) by the record of the Holders of
Securities voting in favor thereof at any meeting of Securityholders duly called
and held in accordance with the provisions of Article IX, or (c) by a
combination of such instrument or instruments and any such record of such a
meeting of Securityholders.
Section
8.02 Proof of Execution or Holding of Securities.
Proof of the execution of any instrument by a Securityholder or his, her or
its
agent or proxy and proof of the holding by any Person of any of the Securities
shall be sufficient if made in the following manner:
(a) The
fact
and date of the execution by any Person of any such instrument may be proved
(i)
by the certificate of any notary public or other officer in any jurisdiction
who, by the laws thereof, has power to take acknowledgments or proof of deeds
to
be recorded within such jurisdiction, that the Person who signed such instrument
did acknowledge before such notary public or other officer the execution
thereof, or (ii) by the affidavit of a witness of such execution sworn to before
any such notary or other officer. Where such execution is by a Person acting
in
other than his or her individual capacity, such certificate or affidavit shall
also constitute sufficient proof of his or her authority.
(b) The
ownership of Securities of any series shall be proved by the Register of such
Securities or by a certificate of the Registrar for such series.
(c) The
record of any Holders’ meeting shall be proved in the manner provided in Section
9.06.
(d) The
Trustee may require such additional proof of any matter referred to in this
Section 8.02 as it shall deem appropriate or necessary, so long as the request
is a reasonable one.
(e) If
the
Company shall solicit from the Holders of Securities of any series any action,
the Company may, at its option fix in advance a record date for the
determination of Holders of Securities entitled to take such action, but the
Company shall have no obligation to do so. Any such record date shall be fixed
at the Company’s discretion. If such a record date is fixed, such action may be
sought or given before or after the record date, but only the Holders of
Securities of record at the close of business on such record date shall be
deemed to be Holders of Securities for the purpose of determining whether
Holders of the requisite proportion of Outstanding Securities of such series
have authorized or agreed or consented to such action, and for that purpose
the
Outstanding Securities of such series shall be computed as of such record
date.
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Section
8.03
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Persons
Deemed Owners.
|
(a) The
Company, the Trustee and any agent of the Company or the Trustee may treat
the
Person in whose name any Security is registered as the owner of such Security
for the purpose of receiving payment of principal of and premium, if any, and
(subject to Section 3.08) interest, if any, on, such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary. All payments made to any Holder, or upon
his, her or its order, shall be valid, and, to the extent of the sum or sums
paid, effectual to satisfy and discharge the liability for moneys payable upon
such Security.
(b) None
of
the Company, the Trustee, any Paying Agent or the Registrar will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests in a Global Security
or for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
Section
8.04 Effect of Consents. After an amendment,
supplement, waiver or other action becomes effective as to any series of
Securities, a consent to it by a Holder of such series of Securities is a
continuing consent conclusive and binding upon such Holder and every subsequent
Holder of the same Securities or portion thereof, and of any Security issued
upon the transfer thereof or in exchange therefor or in place thereof, even
if
notation of the consent is not made on any such Security. An amendment,
supplement or waiver becomes effective in accordance with its terms and
thereafter binds every Holder.
ARTICLE
IX
SECURITYHOLDERS'
MEETINGS
Section
9.01 Purposes of Meetings. A meeting of
Securityholders of any or all series may be called at any time and from time
to
time pursuant to the provisions of this Article IX for any of the following
purposes:
(a) to
give
any notice to the Company or to the Trustee, or to give any directions to the
Trustee, or to consent to the waiving of any Default hereunder and its
consequences, or to take any other action authorized to be taken by
Securityholders pursuant to any of the provisions of Article VIII;
(b) to
remove the Trustee and nominate a successor trustee pursuant to the provisions
of Article XI;
(c) to
consent to the execution of an Indenture or of indentures supplemental hereto
pursuant to the provisions of Section 14.02; or
(d) to
take
any other action authorized to be taken by or on behalf of the Holders of any
specified aggregate principal amount of the Securities of any one or more or
all
series, as the case may be, under any other provision of this Indenture or
under
applicable law.
Section
9.02 Call of Meetings by Trustee. The Trustee may at
any time call a meeting of all Securityholders of all series that may be
affected by the action proposed to be taken, to take any action specified in
Section 9.01, to be held at such time and at such place as the Trustee shall
determine. Notice of every meeting of the Securityholders of a series, setting
forth the time and the place of such meeting and in general terms the action
proposed to be taken at such meeting, shall be mailed to Holders of Securities
of such series at their addresses as they shall appear on the Register of the
Company. Such notice shall be mailed not less than 20 nor more than 90 days
prior to the date fixed for the meeting.
Section
9.03 Call of Meetings by Company or Securityholders.
In case at any time the Company or the Holders of at least 10% in aggregate
principal amount of the Securities of a series (or of all series, as the case
may be) then Outstanding that may be affected by the action proposed to be
taken, shall have requested the Trustee to call a meeting of Securityholders
of
such series (or of all series), by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and the Trustee shall
not
have mailed the notice of such meeting within 20 days after receipt of such
request, then the Company or such Securityholders may determine the time and
the
place for such meeting and may call such meeting to take any action authorized
in Section 9.01, by mailing notice thereof as provided in Section
9.02.
Section
9.04 Qualifications for Voting. To be entitled to vote
at any meeting of Securityholders, a Person shall (a) be a Holder of one or
more
Securities affected by the action proposed to be taken at the meeting or (b)
be
a Person appointed by an instrument in writing as proxy by a Holder of one
or
more such Securities. The only Persons who shall be entitled to be present
or to
speak at any meeting of Securityholders shall be the Persons entitled to vote
at
such meeting and their counsel and any representatives of the Trustee and its
counsel and any representatives of the Company and its counsel.
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Section
9.05
|
Regulation
of Meetings.
|
(a) Notwithstanding
any other provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of
Securityholders, in regard to proof of the holding of Securities and of the
appointment of proxies, and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies, certificates
and
other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall deem fit.
(b) The
Trustee shall, by an instrument in writing, appoint a temporary chairman of
the
meeting, unless the meeting shall have been called by the Company or by
Securityholders as provided in Section 9.03, in which
case
the Company or the Securityholders calling the meeting, as the case may be,
shall in like manner appoint a temporary chair. A permanent chairman and a
permanent secretary of the meeting shall be elected by majority vote of the
meeting.
(c) At
any
meeting of Securityholders of a series, each Securityholder of such series
of
such Securityholder’s proxy shall be entitled to one vote for each $1,000
principal amount of Securities of such series Outstanding held or represented
by
him; provided, however, that no vote shall be cast or counted at any meeting
in
respect of any Security challenged as not Outstanding and ruled by the chairman
of the meeting to be not Outstanding. The chairman of the meeting shall have
no
right to vote other than by virtue of Securities of such series held by him
or
her or instruments in writing as aforesaid duly designating him or her as the
Person to vote on behalf of other Securityholders. At any meeting of the
Securityholders duly called pursuant to the provisions of Section 9.02 or 9.03
the presence of Persons holding or representing Securities in an aggregate
principal amount sufficient to take action upon the business for the transaction
of which such meeting was called shall be necessary to constitute a quorum,
and
any such meeting may be adjourned from time to time by a majority of those
present, whether or not constituting a quorum, and the meeting may be held
as so
adjourned without further notice.
Section
9.06 Voting. The vote upon any resolution
submitted to
any meeting of Securityholders of a series shall be by written ballots on which
shall be subscribed the signatures of the Holders of Securities of such series
or of their representatives by proxy and the principal amounts of the Securities
of such series held or represented by them. The permanent chairman of the
meeting shall appoint two inspectors of votes who shall count all votes cast
at
the meeting for or against any resolution and who shall make and file with
the
secretary of the meeting their verified written reports in duplicate of all
votes cast at the meeting. A record in duplicate of the proceedings of each
meeting of Securityholders shall be prepared by the secretary of the meeting
and
there shall be attached to said record the original reports of the inspectors
of
votes on any vote by ballot taken thereat and affidavits by one or more Persons
having knowledge of the facts setting forth a copy of the notice of the meeting
and showing that said notice was mailed as provided in Section 9.02. The record
shall show the principal amounts of the Securities voting in favor of or against
any resolution. The record shall be signed and verified by the affidavits of
the
permanent chairman and secretary of the meeting and one of the duplicates shall
be delivered to the Company and the other to the Trustee to be preserved by
the
Trustee.
Any
record so signed and verified shall be conclusive evidence of the
matters therein stated.
Section
9.07 No
Delay of Rights by Meeting. Nothing contained in this
Article IX shall be deemed or construed to authorize or permit, by reason of
any
call of a meeting of Securityholders of any series or any rights expressly
or
impliedly conferred hereunder to make such call, any hindrance or delay in
the
exercise of any right or rights conferred upon or reserved to the Trustee or
to
the Securityholders of such series under any of the provisions of this Indenture
or of the Securities of such series.
ARTICLE
X
REPORTS
BY THE COMPANY AND THE TRUSTEE AND
SECURITYHOLDERS'
LISTS
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Section
10.01
|
Reports
by Trustee.
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(a) So
long
as any Securities are outstanding, the Trustee shall transmit to Holders such
reports concerning the Trustee and its actions under this Indenture as may
be
required pursuant to the Trust Indenture Act at the times and in the manner
provided therein. If required by Section 313(a) of the Trust Indenture Act,
the
Trustee shall, within 60 days after each ___________ following the date of
this
Indenture deliver to Holders a brief report which complies with the provisions
of such Section 313(a).
(b) The
Trustee shall, at the time of the transmission to the Holders of Securities
of
any report pursuant to the provisions of this Section 10.01, file a copy of
such
report with each stock exchange upon which the Securities are listed, if any,
and also with the SEC in respect of a Security listed and registered on a
national securities exchange, if any. The Company agrees to notify the Trustee
when, as and if the Securities become listed on any stock exchange.
The
Company will reimburse the Trustee for all expenses incurred in the
preparation and transmission of any report pursuant to the provisions of this
Section 10.01 and of Section 10.02.
Section
10.02 Reports by
the Company. The Company shall file with the Trustee and
the SEC, and transmit to Holders, such information, documents and other reports,
and such summaries thereof, as may be required pursuant to the Trust Indenture
Act at the times and in the manner provided in the Trust Indenture Act; provided
that, unless available on EDGAR, any such information, documents or reports
required to be filed with the SEC pursuant to Section 13 or 15(d) of the
Exchange Act shall be filed with the Trustee within 30 days after the same is
filed with the SEC.
Section
10.03 Securityholders’ Lists. The Company covenants
and
agrees that it will furnish or cause to be furnished to the Trustee:
(a) semi-annually,
within 15 days after each Record Date, but in any event
not less frequently than semi-annually, a list in such form as the Trustee
may
reasonably require of the names and addresses of the Holders of Securities
to
which such Record Date applies, as of such Record Date, and
(b) at
such
other times as the Trustee may request in writing, within 30 days after receipt
by the Company of any such request, a list of similar form and content as of
a
date not more than 15 days prior to the time such list is
furnished;
provided,
however, that so long as the Trustee shall be the Registrar,
such lists shall not be required to be furnished.
ARTICLE
XI
CONCERNING
THE TRUSTEE
Section
11.01 Rights of
Trustees; Compensation and Indemnity. The Trustee
accepts the trusts created by this Indenture upon the terms and conditions
hereof, including the following, to all of which the parties hereto and the
Holders from time to time of the Securities agree:
(a) The
Trustee shall be entitled to such compensation as the Company and the Trustee
shall from time to time agree for all services rendered by it hereunder
(including in any agent capacity in which it acts). The compensation of the
Trustee shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust. The Company shall reimburse
the
Trustee promptly upon its request for all reasonable out-of-pocket expenses,
disbursements and advances incurred or made by the Trustee (including the
reasonable expenses and disbursements of its agents and counsel), except any
such expense, disbursement or advance as may be attributable to its negligence,
bad faith or willful misconduct.
The
Company also agrees to indemnify each of the Trustee and any
predecessor Trustee hereunder for, and to hold it harmless against, any and
all
loss, liability, damage, claim, or expense incurred without its own negligence,
bad faith or willful misconduct, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder and the
performance of its duties (including in any agent capacity in which it acts),
as
well as the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers
or
duties hereunder, except those attributable to its negligence, willful
misconduct or bad faith. The Trustee shall notify the Company promptly of any
claim for which it may seek indemnity. The Company shall defend the claim and
the Trustee shall cooperate in the defense. The Trustee may have one separate
counsel and the Company shall pay the reasonable fees and expenses of such
counsel. The Company need not pay for any settlement made without its consent,
which consent shall not be unreasonably withheld.
As
security for the performance of the obligations of the Company under
this Section 11.01(a), the Trustee shall have a lien upon all property and
funds
held or collected by the Trustee as such, except funds held in trust by the
Trustee to pay principal of and interest on any Securities. Notwithstanding
any
provisions of this Indenture to the contrary, the obligations of the Company
to
compensate and indemnify the Trustee under this Section 11.01(a) shall survive
the resignation or removal of the Trustee and any satisfaction and discharge
under Article XII. When the Trustee incurs expenses or renders services after
an
Event of Default specified in clause (e) or (f) of Section 7.01 occurs, the
expenses and compensation for the services are intended to constitute expenses
of administration under any applicable federal or state bankruptcy, insolvency
or similar laws.
(b) The
Trustee may execute any of the trusts or powers hereof and perform any duty
hereunder either directly or by its agents and attorneys and shall not be
responsible for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder.
(c) The
Trustee shall not be responsible in any manner whatsoever for the correctness
of
the recitals herein or in the Securities (except its certificates of
authentication thereon) contained, all of which are made solely by the Company;
and the Trustee shall not be responsible or accountable in any manner whatsoever
for or with respect to the validity or execution or sufficiency of this
Indenture or of the Securities (except its certificates of authentication
thereon), and the Trustee makes no representation with respect thereto, except
that the Trustee represents that it is duly authorized to execute and deliver
this Indenture, authenticate the Securities and perform its obligations
hereunder and that the statements made by it in a Statement of Eligibility
on
Form T-1 supplied to the Company are true and accurate, subject to the
qualifications set forth therein. The Trustee shall not be accountable for
the
use or application by the Company of any Securities, or the proceeds of any
Securities, authenticated and delivered by the Trustee in conformity with the
provisions of this Indenture.
(d) The
Trustee may consult with counsel of its selection, and, to the extent permitted
by Section 11.02, any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered by
the
Trustee hereunder in good faith and in accordance with such Opinion of Counsel.
(e) The
Trustee, to the extent permitted by Section 11.02, may rely upon the certificate
of the Secretary or one of the Assistant Secretaries of the Company as to the
adoption of any Board Resolution or resolution of the stockholders of the
Company, and any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by, and whenever in the administration
of
this Indenture the Trustee shall deem it desirable that a matter be proved
or
established prior to taking, offering or omitting any action hereunder, the
Trustee may rely upon, an Officer’s Certificate of the Company (unless other
evidence in respect thereof be herein specifically prescribed).
(f) Subject
to Section 11.04, the Trustee or any agent of the Trustee, in its
individual or any other capacity, may become the owner or pledgee of Securities
and, subject to Sections 310(b) and 311 of the Trust Indenture Act, may
otherwise deal with the Company with the same rights it would have had if it
were not the Trustee or such agent.
(g) Money
held by the Trustee in trust hereunder need not be segregated from other funds
except to the extent required by law. The Trustee shall be under no liability
for interest on any money received by it hereunder except as otherwise agreed
with the Company.
(h) Any
action taken by the Trustee pursuant to any provision hereof at the request
or
with the consent of any Person who at the time is the Holder of any Security
shall be conclusive and binding in respect of such Security upon all future
Holders thereof or of any Security or Securities which may be issued for or
in
lieu thereof in whole or in part, whether or not such Security shall have noted
thereon the fact that such request or consent had been made or given.
(i) Subject
to the provisions of Section 11.02, the Trustee may conclusively
rely and shall be protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond, debenture or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties.
(j) Subject
to the provisions of Section 11.02, the Trustee shall not be
under any obligation to exercise any of the rights or powers vested in it by
this Indenture at the request, order or direction of any of the Holders of
the
Securities, pursuant to any provision of this Indenture, unless one or more
of
the Holders of the Securities shall have offered to the Trustee security or
indemnity satisfactory to it against the costs, expenses and liabilities which
may be incurred by it therein or thereby.
(k) Subject
to the provisions of Section 11.02, 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 its discretion or within the rights or powers conferred upon it by
this Indenture.
(l) Subject
to the provisions of Section 11.02, the Trustee shall not be
deemed to have knowledge or notice of any Default or Event of Default unless
a
Responsible Officer of the Trustee has actual knowledge thereof or unless the
Holders of not less than 25% of the Outstanding Securities notify the Trustee
thereof.
(m) Subject
to the
provisions of the first paragraph of Section 11.02, the Trustee shall not be
bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence of
Indebtedness or other paper or document, but the Trustee, in its discretion,
may
make such further inquiry or investigation into such facts or matters as it
may
see fit.
(n) The
rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to,
and
shall be enforceable by, the Trustee in each of its capacities hereunder.
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Section
11.02
|
Duties
of Trustee.
|
(a) If
one
or more of the Events of Default specified in Section 7.01 with respect to
the
Securities of any series shall have happened, then, during the continuance
thereof, the Trustee shall, with respect to such Securities, exercise such
of
the rights and powers vested in it by this Indenture, and shall use the same
degree of care and skill in their exercise, as a prudent person would exercise
or use under the circumstances in the conduct of such person’s own
affairs.
(b) None
of
the provisions of this Indenture shall be construed as relieving the Trustee
from liability for its own negligent action, its own negligent action, negligent
failure to act, or its own willful misconduct, except that, anything in this
Indenture contained to the contrary notwithstanding,
(i) unless
and until an Event
of Default specified in Section 7.01 with respect to the Securities of any
series shall have happened which at the time is continuing,
(A) the
Trustee
undertakes to perform such duties and only such duties with respect to the
Securities of that series as are specifically set out in this Indenture, and
no
implied covenants or obligations shall be read into this Indenture against
the
Trustee, whose duties and obligations shall be determined solely by the express
provisions of this Indenture; and
(B) the
Trustee
may conclusively rely, as to the truth of the statements and the correctness
of
the opinions expressed therein, in the absence of bad faith on the part of
the
Trustee, upon certificates and opinions furnished to it pursuant to the express
provisions of this Indenture; but in the case of any such certificates or
opinions which, by the provisions of this Indenture, 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 (but need not confirm or investigate the accuracy of mathematical
calculations or other facts, statements, opinions or conclusions stated
therein);
(ii) the
Trustee shall not be liable
to any Holder of Securities or to any other Person for any error of judgment
made in good faith by a Responsible Officer or Officers of the Trustee, unless
it shall be proved that the Trustee was negligent in ascertaining the pertinent
facts; and
(iii) the
Trustee shall not be liable to any
Holder of Securities or to any other Person with respect to any action taken
or
omitted to be taken by it in good faith, in accordance with the direction of
Securityholders given as provided in Section 7.06, relating to the time, method
and place of conducting any proceeding for any remedy available to it or
exercising any trust or power conferred upon it by this Indenture.
(c) None
of
the provisions of this Indenture shall require the Trustee to expend or risk
its
own funds or otherwise to incur any financial liability in the performance
of
any of its duties hereunder, or in the exercise of any of its rights or powers,
if it shall have reasonable grounds for believing that repayment of such funds
or adequate indemnity against such risk or liability is not reasonably assured
to it.
(d) Whether
or not therein expressly so provided, every provision of this Indenture relating
to the conduct or affecting the liability of or affording protection to the
Trustee shall be subject to the provisions of this Section 11.02.
Section
11.03 Notice of
Defaults. Within 90 days after the occurrence thereof,
and if known to the Trustee, the Trustee shall give to the Holders of the
Securities of a series notice of each Default or Event of Default with respect
to the Securities of such series known to the Trustee, by transmitting such
notice to Holders at their addresses as the same shall then appear on the
Register of the Company, unless such Default shall have been cured or waived
before the giving of such notice (the term “Default” being
hereby defined to be the events specified in Section 7.01, which are, or after
notice or lapse of time or both would become, Events of Default as defined
in
said Section). Except in the case of a Default or Event of Default in payment
of
the principal of, premium, if any, or interest on any of the Securities of
such
series when and as the same shall become payable, or to make any sinking fund
payment as to Securities of the same series, the Trustee shall be protected
in
withholding such notice, if and so long as a Responsible Officer or Responsible
Officers of the Trustee in good faith determines that the withholding of such
notice is in the interests of the Holders of the Securities of such
series.
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Section
11.04
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Eligibility;
Disqualification.
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(a) The
Trustee shall at all times satisfy the requirements of TIA Section 310(a).
The
Trustee shall have a combined capital and surplus of at least $50 million as
set
forth in its most recent published annual report of condition, and shall have
a
Corporate Trust Office. If at any time the Trustee shall cease to be eligible
in
accordance with the provisions of this Section 11.04, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
(b) The
Trustee shall comply with TIA Section 310(b); provided, however, that there
shall be excluded from the operation of TIA Section 310(b)(i) any indenture
or
indentures under which other securities or certificates of interest or
participation in other securities of the Company are outstanding if the
requirements for such exclusion set forth in TIA Section 310(b)(i) are met.
If
the Trustee has or shall acquire a conflicting interest within the meaning
of
Section 310(b) of the Trust Indenture Act, the Trustee shall either eliminate
such interest or resign, to the extent and in the manner provided by, and
subject to the provisions of, the Trust Indenture Act and this Indenture. If
Section 310(b) of the Trust Indenture Act is amended any time after the date
of
this Indenture to change the circumstances under which a Trustee shall be deemed
to have a conflicting interest with respect to the Securities of any series
or
to change any of the definitions in connection therewith, this Section 11.04
shall be automatically amended to incorporate such changes.
Section
11.05 Registration
and Notice; Removal. The Trustee, or any successor to it
hereafter appointed, may at any time resign and be discharged of the trusts
hereby created with respect to any one or more or all series of Securities
by
giving to the Company notice in writing. Such resignation shall take effect
upon
the appointment of a successor Trustee and the acceptance of such appointment
by
such successor Trustee. Any Trustee hereunder may be removed with respect to
any
series of Securities at any time by the filing with such Trustee and the
delivery to the Company of an instrument or instruments in writing signed by
the
Holders of a majority in principal amount of the Securities of such series
then
Outstanding, specifying such removal and the date when it shall become
effective.
If
at any time:
(1) the
Trustee shall fail to comply with the provisions of TIA Section
310(b) after written request therefor by the Company or by any Holder who has
been a bona fide Holder of a Security for at least six months, or
(2) the
Trustee shall cease to be eligible under Section 11.04 and shall fail
to resign after written request therefor by the Company or by any Holder who
has
been a bona fide Holder of a Security for at least six months, or
(3) the
Trustee shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of the Trustee or of its property shall
be
appointed or any public officer shall take charge or control of the Trustee
or
of its property or affairs for the purpose of rehabilitation, conservation
or
liquidation,
then,
in any such case, (i) the Company by written notice to the Trustee
may remove the Trustee and appoint a successor Trustee with respect to all
Securities, or (ii) subject to TIA Section 315(e), any Securityholder who has
been a bona fide Holder of a Security for at least six months may, on behalf
of
himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all Securities
and
the appointment of a successor Trustee or Trustees.
Upon
its resignation or removal, any Trustee shall be entitled to the
payment of reasonable compensation for the services rendered hereunder by such
Trustee and to the payment of all reasonable expenses incurred hereunder and
all
moneys then due to it hereunder. The Trustee’s rights to indemnification
provided in Section 11.01(a) shall survive its resignation or
removal.
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Section
11.06
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Successor
Trustee by Appointment.
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(a) In
case
at any time the Trustee shall resign, or shall be removed (unless the Trustee
shall be removed as provided in Section 11.04(b), in which event the vacancy
shall be filled as provided in said subdivision), or shall become incapable
of
acting, or shall be adjudged bankrupt or insolvent, or if a receiver of the
Trustee or of its property shall be appointed, or if any public officer shall
take charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation with respect to the
Securities of one or more series, a successor Trustee with respect to the
Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all
of
such series and that at any time there shall be only one Trustee with respect
to
the Securities of any series) may be appointed by the Holders of a majority
in
principal amount of the Securities of that or those series then Outstanding,
by
an instrument or instruments in writing signed in duplicate by such Holders
and
filed, one original thereof with the Company and the other with the successor
Trustee; but, until a successor Trustee shall have been so appointed by the
Holders of Securities of that or those series as herein authorized, the Company,
or, in case all or substantially all the assets of the Company shall be in
the
possession of one or more custodians or receivers lawfully appointed, or of
trustees in bankruptcy or reorganization proceedings (including a trustee or
trustees appointed under the provisions of the federal bankruptcy laws, as
now
or hereafter constituted), or of assignees for the benefit of creditors, such
receivers, custodians, trustees or assignees, as the case may be, by an
instrument in writing, shall appoint a successor Trustee with respect to the
Securities of such series. Subject to the provisions of Sections 11.04 and
11.05, upon the appointment as aforesaid of a successor Trustee with respect
to
the Securities of any series, the Trustee with respect to the Securities of
such
series shall cease to be Trustee hereunder. After any such appointment other
than by the Holders of Securities of that or those series,
the Person making such appointment shall forthwith cause notice thereof to
be
mailed to the Holders of Securities of such series at their addresses as the
same shall then appear on the Register of the Company but any successor Trustee
with respect to the Securities of such series so appointed shall, immediately
and without further act, be superseded by a successor Trustee appointed by
the
Holders of Securities of such series in the manner above prescribed, if such
appointment be made prior to the expiration of one year from the date of the
mailing of such notice by the Company, or by such receivers, trustees or
assignees.
(b) If
any
Trustee with respect to the Securities of one or more series shall resign or
be
removed and a successor Trustee shall not have been appointed by the Company
or
by the Holders of the Securities of such series or, if any successor Trustee
so
appointed shall not have accepted its appointment within 30 days after such
appointment shall have been made, the resigning Trustee at the expense of the
Company may apply to any court of competent jurisdiction for the appointment
of
a successor Trustee. If in any other case a successor Trustee shall not be
appointed pursuant to the foregoing provisions of this Section 11.06 within
three months after such appointment might have been made hereunder, the Holder
of any Security of the applicable series or any retiring Trustee at the expense
of the Company may apply to any court of competent jurisdiction to appoint
a
successor Trustee. Such court may thereupon, in any such case, after such
notice, if any, as such court may deem proper and prescribe, appoint a successor
Trustee.
(c) Any
successor Trustee appointed hereunder with respect to the Securities of one
or
more series shall execute, acknowledge and deliver to its predecessor Trustee
and to the Company, or to the receivers, trustees, assignees or court appointing
it, as the case may be, an instrument accepting such appointment hereunder,
and
thereupon such successor Trustee, without any further act, deed or conveyance,
shall become vested with all the authority, rights, powers, trusts, immunities,
duties and obligations with respect to such series of such predecessor Trustee
with like effect as if originally named as Trustee hereunder, and such
predecessor Trustee, upon payment of its charges and disbursements then unpaid,
shall thereupon become obligated to pay over, and such successor Trustee shall
be entitled to receive, all moneys and properties held by such predecessor
Trustee as Trustee hereunder, subject nevertheless to its lien provided for
in
Section 11.01(a). Nevertheless, on the written request of the Company or of
the
successor Trustee or of the Holders of at least 10% in principal amount of
the
Securities of such series then Outstanding, such predecessor Trustee, upon
payment of its said charges and disbursements, shall execute and deliver an
instrument transferring to such successor Trustee upon the trusts herein
expressed all the rights, powers and trusts of such predecessor Trustee and
shall assign, transfer and deliver to the successor Trustee all moneys and
properties held by such predecessor Trustee, subject nevertheless to its lien
provided for in Section 11.01(a); and, upon request of any such successor
Trustee and the Company shall make, execute, acknowledge and deliver any and
all
instruments in writing for more fully and effectually vesting in and confirming
to such successor Trustee all such authority, rights, powers, trusts,
immunities, duties and obligations.
Section
11.07 Successor
Trustee by Merger. Any Person into which the Trustee or
any successor to it in the trusts created by this Indenture shall be merged
or
converted, or any Person with which it or any successor to it shall be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Trustee or any such successor to it shall be a
party, or any Person to which the Trustee or any successor
to it shall sell or otherwise transfer all or substantially all of the corporate
trust business of the Trustee, shall be the successor Trustee under this
Indenture without the execution or filing of any paper or any further act on
the
part of any of the parties hereto; provided that such Person shall be otherwise
qualified and eligible under this Article. In case at the time such successor
to
the Trustee shall succeed to the trusts created by this Indenture with respect
to one or more series of Securities, any of such Securities shall have been
authenticated but not delivered by the Trustee then in office, any successor
to
such 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 shall not have been authenticated, any successor to the
Trustee may authenticate such Securities either in the name of any predecessor
hereunder or in the name of the successor Trustee; and in all such cases such
certificates shall have the full force which it is anywhere in the Securities
or
in this Indenture provided that the certificate of the Trustee shall have;
provided, however, that the right to adopt the certificate of authentication
of
any predecessor Trustee or authenticate Securities in the name of any
predecessor Trustee shall apply only to its successor or successors by merger,
conversion or consolidation.
Section
11.08 Right to Rely
on Officer’s Certificate. Subject to Section 11.02, and
subject to the provisions of Section 16.01 with respect to the certificates
required thereby, whenever in the administration of the provisions of this
Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering any action hereunder, such
matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of negligence, bad faith or willful misconduct
on the part of the Trustee, be deemed to be conclusively proved and established
by an Officer’s Certificate with respect thereto delivered to the Trustee, and
such Officer’s Certificate, in the absence of negligence, bad faith or willful
misconduct 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
11.09 Appointment
of Authenticating Agent. The Trustee may appoint an
agent (the “Authenticating Agent”) reasonably acceptable to the Company to
authenticate the Securities, and the Trustee shall give written notice of such
appointment to all Holders of Securities of the series with respect to which
such Authenticating Agent will serve. Unless limited by the terms of such
appointment, any such Authenticating Agent may authenticate Securities whenever
the Trustee may do so. Each reference in this Indenture to authentication by
the
Trustee includes authentication by the Authenticating Agent. Securities so
authenticated shall be entitled to the benefits of this Indenture and shall
be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder.
Each
Authenticating Agent shall at all times be a corporation organized
and doing business and in good standing under the laws of the United States,
any
State thereof or the District of Columbia, authorized under such laws to act
as
Authenticating Agent, having a combined capital and surplus of not less than
$50,000,000 and subject to supervision or examination by Federal or State
authority. If such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Article XI, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition
so published. If at any time an Authenticating Agent shall cease to be eligible
in accordance with the provisions of this Article XI, it shall resign
immediately in the manner and with the effect specified in this Article
XI.
Any
corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Article XI, without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent.
An
Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 11.09, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall give
written notice of such appointment to all Holders of Securities of the series
with respect to which such Authenticating Agent will serve. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder,
with
like effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provisions
of
this Section 11.09.
The
Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section 11.09, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 11.01.
Section
11.10 Communications by Securityholders with Other
Securityholders. Holders of Securities may communicate
pursuant to Section 312(b) of the Trust Indenture Act with other Holders with
respect to their rights under this Indenture or the Securities. The Company,
the
Trustee, the Registrar and anyone else shall have the protection of Section
312(c) of the Trust Indenture Act with respect to such
communications.
ARTICLE
XII
SATISFACTION
AND DISCHARGE; DEFEASANCE
Section
12.01 Applicability
of Article. If, pursuant to Section 3.01, provision is
made for the defeasance of Securities of a series and if the Securities of
such
series are denominated and payable only in U.S. Dollars (except as provided
pursuant to Section 3.01), then the provisions of this Article shall be
applicable except as otherwise specified pursuant to Section 3.01 for Securities
of such series. Defeasance provisions, if any, for Securities denominated in
a
Foreign Currency may be specified pursuant to Section 3.01.
Section
12.02 Satisfaction
and Discharge of Indenture. This Indenture, with respect
to the Securities of any series (if all series issued under this Indenture
are
not to be affected), shall, upon Company Order, cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange
of
such Securities herein expressly provided for and rights to receive payments
of
principal of and premium, if any, and interest on such Securities) and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when,
(i) all
Securities of such
series theretofore authenticated and delivered (other than (A) Securities that
have been destroyed, lost or stolen and that have been replaced or paid as
provided in Section 3.07 and (B) Securities for whose payment money has
theretofore been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from such trust,
as
provided in Section 6.03) have been delivered to the Trustee for cancellation;
or
(ii) all
Securities of such series
not theretofore delivered to the Trustee for cancellation,
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(A)
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have
become due and payable,
or
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(B) will
become
due and payable at their Stated Maturity within one year, or
(C) are
to be
called for redemption within one year under arrangements satisfactory to the
Trustee for the giving of notice by the Trustee in the name, and at the expense,
of the Company, and the Company,
and
in the case of (A), (B) or (C) above, has deposited or caused to be
deposited with the Trustee or Paying Agent as trust funds in trust for the
purpose an amount in the Currency in which such Securities are denominated
(except as otherwise provided pursuant to Section 3.01) sufficient to pay and
discharge the entire Indebtedness on such Securities for principal and premium,
if any, and interest to the date of such deposit (in the case of Securities
that
have become due and payable) or to the Stated Maturity or Redemption Date,
as
the case may be; provided, however, in the event a petition for relief under
federal bankruptcy laws, as now or hereafter constituted, or any other
applicable federal or state bankruptcy, insolvency or other similar law, is
filed with respect to the Company within 91 days after the deposit and the
Trustee is required to return the moneys then on deposit with the Trustee to
the
Company, the obligations of the Company under this Indenture with respect to
such Securities shall not be deemed terminated or discharged;
(b) the
Company has paid or caused to be paid all other sums payable hereunder by the
Company; and
(c) the
Company has delivered to the Trustee an Officer’s Certificate and an Opinion of
Counsel each stating that all conditions precedent herein provided for relating
to the satisfaction and discharge of this Indenture with
respect to such series have been complied with. Notwithstanding the satisfaction
and discharge of this Indenture, the obligations of the Company to the Trustee
under Section 11.01 are, if money shall have been deposited with the Trustee
pursuant to subclause (B) of clause (a)(i) of this Section, the obligations
of
the Trustee under Section 12.07 and the last paragraph of Section 6.03(e) shall
survive.
Section
12.03 Defeasance
upon Deposit of Moneys or U.S Government Obligations. At
the Company’s option, either (a) the Company shall be deemed to have been
Discharged (as defined below) from its obligations with respect to Securities
of
any series on the first day after the applicable conditions set forth below
have
been satisfied or (b) the Company shall cease to be under any obligation to
comply with any term, provision or condition set forth in Section 6.04 with
respect to Securities of any series (and, if so specified pursuant to Section
3.01, any other restrictive covenant added for the benefit of such series
pursuant to Section 3.01) at any time after the applicable conditions set forth
below have been satisfied:
(a) The
Company shall have deposited or caused to be deposited irrevocably with the
Trustee as trust funds in trust, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of the Securities of such series
(i) money in an amount, or (ii) U.S. Government Obligations (as defined below)
that through the payment of interest and principal in respect thereof in
accordance with their terms will provide, not later than one day before the
due
date of any payment, money in an amount, or (iii) a combination of (i) and
(ii),
sufficient to pay and discharge each installment of principal (including any
mandatory sinking fund payments) of and premium, if any, and interest on, the
Outstanding Securities of such series on the dates such installments of interest
or principal and premium are due;
(b) No
Default with respect to the Securities of such series shall have occurred and
be
continuing on the date of such deposit (other than a Default resulting from
the
borrowing of funds and the grant of any related liens to be applied to such
deposit); and
(c) The
Company shall have delivered to the Trustee an Opinion of Counsel to the effect
that Holders of the Securities of such series will not recognize income, gain
or
loss for U.S. federal income tax purposes as a result of the Company’s exercise
of its option under this Section and will be subject to federal income tax
on
the same amounts and in the same manner and at the same times as would have
been
the case if such action had not been exercised and, in the case of the
Securities of such series being Discharged accompanied by a ruling to that
effect received from or published by the Internal Revenue Service.
“Discharged”
means
that the Company shall be deemed to have paid and
discharged the entire Indebtedness represented by, and obligations under, the
Securities of such series and to have satisfied all the obligations under this
Indenture relating to the Securities of such series (and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging the
same), except (A) the rights of Holders of Securities of such series to receive,
from the trust fund described in clause (a) above, payment of the principal
of
and premium, if any, and interest on such Securities when such payments are
due,
(B) the Company’s obligations with respect to Securities of such series under
Sections 3.04, 3.06, 3.07, 6.02, 12.06 and 12.07 and (C) the rights, powers,
trusts, duties and immunities of the Trustee hereunder.
“U.S.
Government Obligations” means securities that are (i) direct
obligations of the United States for the payment of which its full faith and
credit is pledged or (ii) obligations of a Person controlled or supervised
by
and acting as an agency or instrumentality of the United States the timely
of
payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States, that, in either case under clauses (i) or
(ii)
are not callable or redeemable at the action of the issuer thereof, and shall
also include a depositary receipt issued by a bank or trust company as custodian
with respect to any such U.S. Government Obligation or a specific payment of
interest on or principal of any such U.S. Government Obligation held by such
custodian for the account of the holder of a depositary receipt; provided that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depositary receipt
from
any amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of interest on or principal of the U.S.
Government Obligation evidenced by such depositary receipt.
Section
12.04 Repayment to
Company. The Trustee and any Paying Agent shall promptly
pay to the Company (or to its designee) upon Company Order any excess moneys
or
U.S. Government Obligations held by them at any time, including any such moneys
or obligations held by the Trustee under any escrow trust agreement entered
into
pursuant to Section 12.06. The provisions of the last paragraph of Section
6.03
shall apply to any money held by the Trustee or any Paying Agent under this
Article that remains unclaimed for two years after the Maturity of any series
of
Securities for which money or U.S. Government Obligations have been deposited
pursuant to Section 12.03.
Section
12.05 Indemnity for
U.S. Government Obligations. The Company shall pay and
shall indemnify the Trustee against any tax, fee or other charge imposed on
or
assessed against the deposited U.S. Government Obligations or the principal
or
interest received on such U.S. Government Obligations.
Section
12.06 Deposits to
Be Held in Escrow. Any deposits with the Trustee
referred to in Section 12.03 above shall be irrevocable (except to the extent
provided in Sections 12.04 and 12.07) and shall be made under the terms of
an
escrow trust agreement in form and substance satisfactory to the Trustee. If
any
Outstanding Securities of a series are to be redeemed prior to their Stated
Maturity, whether pursuant to any optional redemption provisions or in
accordance with any mandatory or optional sinking fund requirement, the
applicable escrow trust agreement shall provide therefor and the Company shall
make such arrangements as are satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the expense, of the
Company. The agreement shall provide that, upon satisfaction of any mandatory
sinking fund payment requirements, whether by deposit of moneys, application
of
proceeds of deposited U.S. Government Obligations or, if permitted, by delivery
of Securities, the Trustee shall pay or deliver over to the Company as excess
moneys pursuant to Section 12.04 all funds or obligations then held under the
agreement and allocable to the sinking fund payment requirements so satisfied.
If
Securities of a series with respect to which such deposits are made
may be subject to later redemption at the option of the Company or pursuant
to
optional sinking fund payments, the applicable escrow trust agreement may,
at
the option of the Company, provide therefor. In the case of an optional
redemption in whole or in part, such agreement shall require the Company to
deposit with the Trustee on or before the date notice
of
redemption is given funds sufficient to pay the Redemption Price of the
Securities to be redeemed together with all unpaid interest thereon to the
Redemption Date. Upon such deposit of funds, the Trustee shall pay or deliver
over to the Company as excess funds pursuant to Section 12.04 all funds or
obligations then held under such agreement and allocable to the Securities
to be
redeemed. In the case of exercise of optional sinking fund payment rights by
the
Company, such agreement shall, at the option of the Company, provide that upon
deposit by the Company with the Trustee of funds pursuant to such exercise
the
Trustee shall pay or deliver over to the Company as excess funds pursuant to
Section 12.04 all funds or obligations then held under such agreement for such
series and allocable to the Securities to be redeemed.
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Section
12.07
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Application
of Trust Money.
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(a) Neither
the Trustee nor any other paying agent shall be required to pay interest on
any
moneys deposited pursuant to the provisions of this Indenture, except such
as it
shall agree with the Company to pay thereon. Any moneys so deposited for the
payment of the principal of, or premium, if any, or interest on the Securities
of any series and remaining unclaimed for two years after the date of the
maturity of the Securities of such series or the date fixed for the redemption
of all the Securities of such series at the time outstanding, as the case may
be, shall be repaid by the Trustee or such other paying agent to the Company
upon its written request and thereafter, anything in this Indenture to the
contrary notwithstanding, any rights of the Holders of Securities of such series
in respect of which such moneys shall have been deposited shall be enforceable
only against the Company, and all liability of the Trustee or such other paying
agent with respect to such moneys shall thereafter cease.
(b) Subject
to the provisions of the foregoing paragraph, any moneys which at any time
shall
be deposited by the Company or on its behalf with the Trustee or any other
paying agent for the purpose of paying the principal of, premium, if any, and
interest on any of the Securities shall be and are hereby assigned, transferred
and set over to the Trustee or such other paying agent in trust for the
respective Holders of the Securities for the purpose for which such moneys
shall
have been deposited; but such moneys need not be segregated from other funds
except to the extent required by law.
Section
12.08 Deposits of
Non-U.S. Currencies. Notwithstanding the foregoing
provisions of this Article, if the Securities of any series are payable in
a
Currency other than U.S. Dollars, the Currency or the nature of the government
obligations to be deposited with the Trustee under the foregoing provisions
of
this Article shall be as set forth in the Officer’s Certificate or established
in the supplemental indenture under which the Securities of such series are
issued.
ARTICLE
XIII
IMMUNITY
OF CERTAIN PERSONS
Section
13.01 No Personal
Liability. No recourse shall be had for the payment of
the principal of, or the premium, if any, or interest on, any Security or for
any claim based thereon or otherwise in respect thereof or of the Indebtedness
represented thereby, or upon any obligation, covenant or
agreement of this Indenture, against any incorporator, stockholder, officer
or
director, as such, past, present or future, of the Company or of any successor
corporation, either directly or through the Company or any successor
corporation, whether by virtue of any constitutional provision, statute or
rule
of law, or by the enforcement of any assessment or penalty or otherwise; it
being expressly agreed and understood that this Indenture and the Securities
are
solely corporate obligations, and that no personal liability whatsoever shall
attach to, or be incurred by, any incorporator, stockholder, officer or
director, as such, past, present or future, of the Company or of any successor
corporation, either directly or through the Company or any successor
corporation, because of the incurring of the Indebtedness hereby authorized
or
under or by reason of any of the obligations, covenants, promises or agreements
contained in this Indenture or in any of the Securities, or to be implied
herefrom or therefrom, and that all liability, if any, of that character against
every such incorporator, stockholder, officer and director is, by the acceptance
of the Securities and as a condition of, and as part of the consideration for,
the execution of this Indenture and the issue of the Securities expressly waived
and released.
ARTICLE
XIV
SUPPLEMENTAL
INDENTURES
Section
14.01 Without
Consent of Securityholders. Except as otherwise provided
as contemplated by Section 3.01 with respect to any series of Securities, the
Company and the Trustee, at any time and from time to time, may enter into
one
or more indentures supplemental hereto, in form satisfactory to the Trustee,
for
any one or more of or all the following purposes:
(a) to
add
to the covenants and agreements of the Company, to be observed thereafter and
during the period, if any, in such supplemental indenture or indentures
expressed, and to add Events of Default, in each case for the protection or
benefit of the Holders of all or any series of the Securities (and if such
covenants, agreements and Events of Default are to be for the benefit of fewer
than all series of Securities, stating that such covenants, agreements and
Events of Default are expressly being included for the benefit of such series
as
shall be identified therein), or to surrender any right or power herein
conferred upon the Company;
(b) to
delete or modify any Events of Default with respect to all or any series of
the
Securities, the form and terms of which are being established pursuant to such
supplemental indenture as permitted in Section 3.01 (and, if any such Event
of
Default is applicable to fewer than all such series of the Securities,
specifying the series to which such Event of Default is applicable), and to
specify the rights and remedies of the Trustee and the Holders of such
Securities in connection therewith;
(c) to
add
to or change any of the provisions of this Indenture to provide, change or
eliminate any restrictions on the payment of principal of or premium, if any,
on
Securities; provided that any such action shall not adversely affect the
interests of the Holders of Securities of any series in any material respect;
(d) to
change or eliminate any of the provisions of this Indenture; provided that
any
such change or elimination shall become effective only when there is no
Outstanding Security of any series created prior to the execution of such
supplemental indenture that is entitled to the benefit of
such provision and as to which such supplemental indenture would apply;
(e) to
evidence the succession of another corporation to the Company, or successive
successions, and the assumption by such successor of the covenants and
obligations of the Company contained in the Securities of one or more series
and
in this Indenture or any supplemental indenture;
(f) to
evidence and provide for the acceptance of appointment hereunder by a successor
Trustee with respect to one or more series of Securities and to add to or change
any of the provisions of this Indenture as shall be necessary for or facilitate
the administration of the trusts hereunder by more than one Trustee, pursuant
to
the requirements of Section 11.06(c);
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(g)
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to
secure any series of
Securities;
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(h) to
evidence any changes to this Indenture pursuant to Sections 11.05, 11.06 or
11.07 hereof as permitted by the terms thereof;
(i) to
cure any ambiguity or to correct or supplement any provision contained herein
or
in any indenture supplemental hereto which may be defective or inconsistent
with
any other provision contained herein or in any supplemental
indenture;
(j) to
add to or change or eliminate any provision of this Indenture as shall be
necessary or desirable in accordance with any amendments to the Trust Indenture
Act, provided such action shall not adversely affect the interests of the
Holders of the Securities of any series in any material respects;
(k) to
add
guarantors or co-obligors with respect to any series of Securities;
(l)
to
make
any change in any series of Securities that does not adversely affect in any
material respect the interests of the Holders of such Securities;
(m)
to
provide for
uncertificated securities in addition to certificated securities;
(n) to
supplement any of the provisions of this Indenture to such extent as shall
be
necessary to permit or facilitate the defeasance and discharge of any series
of
Securities; provided that any such action shall not adversely affect the
interests of the Holders of Securities of such series or any other series of
Securities;
(o) to
prohibit the authentication and delivery of additional series of Securities;
or
(p) to
establish the form and terms of Securities of any series as permitted in Section
3.01, or to authorize the issuance of additional Securities of a series
previously authorized or to add to the conditions, limitations or restrictions
on the authorized amount, terms or purposes of issue, authentication or delivery
of the Securities of any series, as herein set forth, or other conditions,
limitations or restrictions thereafter to be observed.
Subject
to the provisions of Section 14.03, the Trustee is authorized to
join with the Company in the execution of any such supplemental indenture,
to
make the further agreements and stipulations which may be therein contained
and
to accept the conveyance, transfer, assignment, mortgage or pledge of any
property or assets thereunder.
Any
supplemental indenture authorized by the provisions of this Section
14.01 may be executed by the Company and the Trustee without the consent of
the
Holders of any of the Securities at the time Outstanding, notwithstanding any
of
the provisions of Section 14.02.
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Section
14.02
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With
Consent of Securityholders; Limitations.
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(a) With
the
consent of the Holders (evidenced as provided in Article VIII) of a majority
in
aggregate principal amount of the Outstanding Securities of each series affected
by such supplemental indenture voting separately, the Company 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 provisions of this Indenture or of modifying
in
any manner the rights of the Holders of the Securities of such series to be
affected; provided, however, that no such supplemental indenture shall, without
the consent of the Holder of each Outstanding Security of each such series
affected thereby,
(i) extend
the Stated Maturity
of the principal of, or any installment of interest on, any Security, or reduce
the principal amount thereof or the interest thereon or any premium payable
upon
redemption thereof, or extend the Stated Maturity of, or change the Currency
in
which the principal of and premium, if any, or interest on such Security is
denominated or payable, or reduce the amount of the principal of an Original
Issue Discount Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 7.02, or impair the
right to institute suit for the enforcement of any payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or materially adversely affect the economic terms of any
right
to convert or exchange any Security as may be provided pursuant to Section
3.01;
or
(ii) reduce
the percentage in
principal amount of the Outstanding Securities of any series, the consent of
whose Holders is required for any supplemental indenture, or the consent of
whose Holders is required for any waiver of compliance with certain provisions
of this Indenture or certain Defaults hereunder and their consequences provided
for in this Indenture; or
(iii)
modify
any of the provisions of this
Section, Section 7.06 or Section 6.06, except to increase any such percentage
or
to provide that certain other provisions of this Indenture cannot be modified
or
waived without the consent of the Holder of each Outstanding Security affected
thereby; provided, however, that this clause shall not be deemed to require
the
consent of any Holder with respect to changes in the references to “the Trustee”
and concomitant changes in this Section and Section 6.06, or the deletion of
this proviso, in accordance with the requirements of Sections 11.06 and
14.01(f); or
(iv)
modify,
without the written consent of the
Trustee, the rights, duties or immunities of the Trustee.
(b) A
supplemental indenture that changes or eliminates any provision of this
Indenture which has expressly been included solely for the benefit of one or
more particular series of Securities or which modifies the rights of the Holders
of Securities of such series with respect to such covenant or other provision,
shall be deemed not to affect the rights under this Indenture of the Holders
of
Securities of any other series.
(c) It
shall
not be necessary for the consent of the Securityholders under this Section
14.02
to approve the particular form of any proposed supplemental indenture, but
it
shall be sufficient if such consent shall approve the substance thereof.
(d) The
Company may set a record date for purposes of determining the identity of the
Holders of each series of Securities entitled to give a written consent or
waive
compliance by the Company as authorized or permitted by this Section. Such
record date shall not be more than 30 days prior to the first solicitation
of
such consent or waiver or the date of the most recent list of Holders furnished
to the Trustee prior to such solicitation pursuant to Section 312 of the Trust
Indenture Act.
(e) Promptly
after the execution by the Company and the Trustee of any supplemental indenture
pursuant to the provisions of this Section 14.02, the Company shall mail a
notice, setting forth in general terms the substance of such supplemental
indenture, to the Holders of Securities at their addresses as the same shall
then appear in the Register of the Company. Any failure of the Company to mail
such notice, or any defect therein, shall not, however, in any way impair or
affect the validity of any such supplemental indenture.
Section
14.03 Trustee
Protected. Upon the request of the Company, accompanied
by the Officer’s Certificate and Opinion of Counsel required by Section 16.01
stating that the execution of such supplemental indenture is authorized or
permitted by this Indenture, and evidence reasonably satisfactory to the Trustee
of consent of the Holders if the supplemental indenture is to be executed
pursuant to Section 14.02. the Trustee shall join with the Company in the
execution of said supplemental indenture unless said supplemental indenture
affects the Trustee’s own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into said supplemental indenture. The Trustee shall be
fully
protected in relying upon such Officer’s Certificate and an Opinion of
Counsel.
Section
14.04 Effect of
Execution of Supplemental Indenture. Upon the execution
of any supplemental indenture pursuant to the provisions of this Article XIV,
this Indenture shall be deemed to be modified and amended in accordance
therewith and, except as herein otherwise expressly provided, the respective
rights, limitations of rights, obligations, duties and immunities under this
Indenture of the Trustee, the Company and the Holders of all of the Securities
or of the Securities of any series affected, as the case may be, shall
thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
Section
14.05 Notation on
or Exchange of Securities. Securities 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 the form
approved by the Trustee as to any matter provided for in such supplemental
indenture. If the Company or the Trustee shall so determine, new Securities
so
modified as to conform, in the opinion of the Trustee and the Board of Directors
of the Company, to any modification of this Indenture contained in any such
supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for the Securities then
Outstanding in equal aggregate principal amounts, and such exchange shall be
made without cost to the Holders of the Securities.
Section
14.06 Conformity
with TIA. Every supplemental indenture executed pursuant
to the provisions of this Article shall conform to the requirements of the
Trust
Indenture Act as then in effect.
ARTICLE
XV
SUBORDINATION
OF SECURITIES
Section
15.01 Agreement to
Subordinate. In the event a series of Securities is
designated as subordinated pursuant to Section 3.01, and except as otherwise
provided in a Company Order or in one or more indentures supplemental hereto,
the Company, for itself, its successors and assigns, covenants and agrees,
and
each Holder of Securities of such series by his, her or its acceptance thereof,
likewise covenants and agrees, that the payment of the principal of (and
premium, if any) and interest, if any, on each and all of the Securities of
such
series is hereby expressly subordinated, to the extent and in the manner
hereinafter set forth, in right of payment to the prior payment in full of
all
Senior Indebtedness. In the event a series of Securities is not designated
as
subordinated pursuant to Section 3.01(s), this Article XV shall have no effect
upon the Securities.
Section
15.02 Distribution
on Dissolution, Liquidation and Reorganization; Subrogation of
Securities. Subject to Section 15.01, upon any
distribution of assets of the Company upon any dissolution, winding up,
liquidation or reorganization of the Company, whether in bankruptcy, insolvency,
reorganization or receivership proceedings or upon an assignment for the benefit
of creditors or any other marshalling of the assets and liabilities of the
Company or otherwise (subject to the power of a court of competent jurisdiction
to make other equitable provision reflecting the rights conferred in this
Indenture upon the Senior Indebtedness and the holders thereof with respect
to
the Securities and the holders thereof by a lawful plan of reorganization under
applicable bankruptcy law):
(a) the
holders of all Senior Indebtedness shall be entitled to receive payment in
full
of the principal thereof (and premium, if any) and interest due thereon before
the Holders of the Securities are entitled to receive any payment upon the
principal (or premium, if any) or interest, if any, on Indebtedness evidenced
by
the Securities; and
(b) any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, to which the Holders of the Securities
or the Trustee would be entitled except for the provisions of this Article
XV
shall be paid by the liquidation trustee or agent or other
Person making such payment or distribution, whether a trustee in bankruptcy,
a
receiver or liquidating trustee or otherwise, directly to the holders of Senior
Indebtedness or their representative or representatives or to the trustee or
trustees under any indenture under which any instruments evidencing any of
such
Senior Indebtedness may have been issued, ratably according to the aggregate
amounts remaining unpaid on account of the principal of (and premium, if any)
and interest on the Senior Indebtedness held or represented by each, to the
extent necessary to make payment in full of all Senior Indebtedness remaining
unpaid, after giving effect to any concurrent payment or distribution to the
holders of such Senior Indebtedness; and
(c) in
the
event that, notwithstanding the foregoing, any payment or distribution of assets
of the Company of any kind or character, whether in cash, property or securities
prohibited by the foregoing, shall be received by the Trustee or the Holders
of
the Securities before all Senior Indebtedness is paid in full, such payment
or
distribution shall be paid over, upon written notice to a Responsible Officer
of
the Trustee, to the holder of such Senior Indebtedness or his, her or its
representative or representatives or to the trustee or trustees under any
indenture under which any instrument evidencing any of such Senior Indebtedness
may have been issued, ratably as aforesaid, as calculated by the Company, for
application to payment of all Senior Indebtedness remaining unpaid until all
such Senior Indebtedness shall have been paid in full, after giving effect
to
any concurrent payment or distribution to the holders of such Senior
Indebtedness.
(d) Subject
to the payment in full of all Senior Indebtedness, the Holders of the Securities
shall be subrogated to the rights of the holders of Senior Indebtedness (to
the
extent that distributions otherwise payable to such holder have been applied
to
the payment of Senior Indebtedness) to receive payments or distributions of
cash, property or securities of the Company applicable to Senior Indebtedness
until the principal of (and premium, if any) and interest, if any, on the
Securities shall be paid in full and no such payments or distributions to the
Holders of the Securities of cash, property or securities otherwise
distributable to the holders of Senior Indebtedness shall, as between the
Company, its creditors other than the holders of Senior Indebtedness, and the
Holders of the Securities be deemed to be a payment by the Company to or on
account of the Securities. It is understood that the provisions of this Article
XV are and are intended solely for the purpose of defining the relative rights
of the Holders of the Securities, on the one hand, and the holders of the Senior
Indebtedness, on the other hand. Nothing contained in this Article XV or
elsewhere in this Indenture or in the Securities is intended to or shall impair,
as between the Company, its creditors other than the holders of Senior
Indebtedness, and the Holders of the Securities, the obligation of the Company,
which is unconditional and absolute, to pay to the Holders of the Securities
the
principal of (and premium, if any) and interest, if any, on the Securities
as
and when the same shall become due and payable in accordance with their terms,
or to affect the relative rights of the Holders of the Securities and creditors
of the Company other than the holders of Senior Indebtedness, nor shall anything
herein or in the Securities prevent the Trustee or the Holder of any Security
from exercising all remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under this Article XV
of
the holders of Senior Indebtedness in respect of cash, property or securities
of
the Company received upon the exercise of any such remedy. Upon any payment
or
distribution of assets of the Company referred to in this Article XV, the
Trustee, subject to the provisions of Section 15.05, shall be entitled to
conclusively rely upon a certificate of the liquidating trustee or agent or other person making any distribution to the
Trustee for the
purpose of ascertaining the Persons entitled to participate in such
distribution, the holders of Senior Indebtedness and other indebtedness of
the
Company, the amount thereof or payable thereon, the amount or amounts paid
or
distributed thereof and all other facts pertinent thereto or to this Article
XV.
Section
15.03 No Payment on
Securities in Event of Default on Senior Indebtedness.
Subject to Section 15.01, no payment by the Company on account of principal
(or
premium, if any), sinking funds or interest, if any, on the Securities shall
be
made at anytime if: (i) a default on Senior Indebtedness exists that permits
the
holders of such Senior Indebtedness to accelerate its maturity and (ii) the
default is the subject of judicial proceedings or the Company has received
notice of such default. The Company may resume payments on the Securities when
full payment of amounts then due for principal (premium, if any), sinking funds
and interest on Senior Indebtedness has been made or duly provided for in money
or money’s worth.
In
the event that, notwithstanding the foregoing, any payment shall be
received by the Trustee when such payment is prohibited by the preceding
paragraph of this Section 15.03, such payment shall be held in trust for the
benefit of, and shall be paid over or delivered to, the holders of such Senior
Indebtedness or their respective representatives, or to the trustee or trustees
under any indenture pursuant to which any of such Senior Indebtedness may have
been issued, as their respective interests may appear, as calculated by the
Company, but only to the extent that the holders of such Senior Indebtedness
(or
their representative or representatives or a trustee) notify the Trustee in
writing within 90 days of such payment of the amounts then due and owing on
such
Senior Indebtedness and only the amounts specified in such notice to the Trustee
shall be paid to the holders of such Senior Indebtedness.
Section
15.04 Payments on
Securities Permitted. Subject to Section 15.01, nothing
contained in this Indenture or in any of the Securities shall (a) affect the
obligation of the Company to make, or prevent the Company from making, at any
time except as provided in Sections 15.02 and 15.03, payments of principal
of
(or premium, if any) or interest, if any, on the Securities or (b) prevent
the
application by the Trustee of any moneys or assets deposited with it hereunder
to the payment of or on account of the principal of (or premium, if any) or
interest, if any, on the Securities, unless a Responsible Officer of the Trustee
shall have received at its Corporate Trust Office written notice of any fact
prohibiting the making of such payment from the Company or from the holder
of
any Senior Indebtedness or from the trustee for any such holder, together with
proof satisfactory to the Trustee of such holding of Senior Indebtedness or
of
the authority of such trustee more than two Business Days prior to the date
fixed for such payment.
Section
15.05 Authorization
of Securityholders to Trustee to Effect Subordination.
Subject to Section 15.01, each Holder of Securities by his acceptance thereof
authorizes and directs the Trustee on his, her or its behalf to take such action
as may be necessary or appropriate to effectuate the subordination as provided
in this Article XV and appoints the Trustee his attorney-in-fact for any and
all
such purposes.
Section
15.06 Notices to
Trustee. The Company shall give prompt written notice to
a Responsible Officer of the Trustee of any fact known to the Company that
would
prohibit the making of any payment of monies or assets to or by the Trustee
in
respect of the Securities of any series pursuant to the
provisions of this Article XV. Subject to Section 15.01, notwithstanding the
provisions of this Article XV or any other provisions of this Indenture, neither
the Trustee nor any Paying Agent (other than the Company) shall be charged
with
knowledge of the existence of any Senior Indebtedness or of any fact which
would
prohibit the making of any payment of moneys or assets to or by the Trustee
or
such Paying Agent, unless and until a Responsible Officer of the Trustee or
such
Paying Agent shall have received (in the case of a Responsible Officer of the
Trustee, at the Corporate Trust Office of the Trustee) written notice thereof
from the Company or from the holder of any Senior Indebtedness or from the
trustee for any such holder, together with proof satisfactory to the Trustee
of
such holding of Senior Indebtedness or of the authority of such trustee and,
prior to the receipt of any such written notice, the Trustee shall be entitled
in all respects conclusively to presume that no such facts exist; provided,
however, that if at least two Business Days prior to the date upon which by
the
terms hereof any such moneys or assets may become payable for any purpose
(including, without limitation, the payment of either the principal (or premium,
if any) or interest, if any, on any Security) a Responsible Officer of the
Trustee shall not have received with respect to such moneys or assets the notice
provided for in this Section 15.06, then, anything herein contained to the
contrary notwithstanding, the Trustee shall have full power and authority to
receive such moneys or assets and to apply the same to the purpose for which
they were received, and shall not be affected by any notice to the contrary
which may be received by it within two Business Days prior to such date. The
Trustee shall be entitled to rely on the delivery to it of a written notice
by a
Person representing himself to be a holder of Senior Indebtedness (or a trustee
on behalf of such holder) to establish that such a notice has been given by
a
holder of Senior Indebtedness or a trustee on behalf of any such holder. In
the
event that the Trustee determines in good faith that further evidence is
required with respect to the right of any Person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article XV, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights
of
such Person under this Article XV and, if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination
as
to the right of such Person to receive such payment.
Section
15.07 Trustee as
Holder of Senior Indebtedness. Subject to Section 15.01,
the Trustee in its individual capacity shall be entitled to all the rights
set
forth in this Article XV in respect of any Senior Indebtedness at any time
held
by it to the same extent as any other holder of Senior Indebtedness and nothing
in this Indenture shall be construed to deprive the Trustee of any of its rights
as such holder. Nothing in this Article XV shall apply to claims of, or payments
to, the Trustee under or pursuant to Sections 7.05 or 11.01.
Section
15.08 Modifications
of Terms of Senior Indebtedness. Subject to Section
15.01, any renewal or extension of the time of payment of any Senior
Indebtedness or the exercise by the holders of Senior Indebtedness of any of
their rights under any instrument creating or evidencing Senior Indebtedness,
including, without limitation, the waiver of default thereunder, may be made
or
done all without notice to or assent from the Holders of the Securities or
the
Trustee. No compromise, alteration, amendment, modification, extension, renewal
or other change of, or waiver, consent or other action in respect of, any
liability or obligation under or in respect of, or of any of the terms,
covenants or conditions of any indenture or other instrument under which any Senior Indebtedness is outstanding or
of such Senior
Indebtedness, whether or not such release is in accordance with the provisions
of any applicable document, shall in any way alter or affect any of the
provisions of this Article XV or of the Securities relating to the subordination
thereof.
Section
15.09 Reliance on
Judicial Order or Certificate of Liquidating Agent.
Subject to Section 15.01, upon any payment or distribution of assets of the
Company referred to in this Article XV, the Trustee and the Holders of the
Securities shall be entitled to conclusively rely upon any order or decree
entered by any court of competent jurisdiction in which such insolvency,
bankruptcy, receivership, liquidation, reorganization, dissolution, winding
up
or similar case or proceeding is pending, or a certificate of the trustee in
bankruptcy, liquidating trustee, custodian, receiver, assignee for the benefit
of creditors, agent or other person making such payment or distribution,
delivered to the Trustee or to the Holders of Securities, for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of Senior Indebtedness and other indebtedness of
the
Company, the amount thereof or payable thereon, the amount or amounts paid
or
distributed thereon and all other facts pertinent thereto or to this Article
XV.
Section
15.10 Satisfaction
and Discharge; Defeasance and Covenant Defeasance.
Subject to Section 15.01, amounts and U.S. Government Obligations deposited
in
trust with the Trustee pursuant to and in accordance with Article XII and not,
at the time of such deposit, prohibited to be deposited under Sections 15.02
or
15.03 shall not be subject to this Article XV.
Section
15.11 Trustee Not
Fiduciary for Holders of Senior Indebtedness. With
respect to the holders of Senior Indebtedness, the Trustee undertakes to perform
or observe only such of its covenants and obligations as are specifically set
forth in this Article XV, and no implied covenants or obligations with respect
to the holders of Senior Indebtedness shall be read into this Indenture against
the Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness. The Trustee shall not be liable to any such
holder if it shall pay over or distribute to or on behalf of Holders of
Securities or the Company, or any other Person, moneys or assets to which any
holder of Senior Indebtedness shall be entitled by virtue of this Article XV
or
otherwise.
ARTICLE
XVI
MISCELLANEOUS
PROVISIONS
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Section
16.01
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Certificates
and Opinions as to Conditions
Precedent.
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(a) Upon
any
request or application by the Company to the Trustee to take any action under
any of the provisions of this Indenture, the Company shall furnish to the
Trustee an Officer’s Certificate stating that all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent have been complied with, except that
in
the case of any such application or demand as to which the furnishing of such
document is specifically required by any provision of this Indenture relating
to
such particular application or demand, no additional certificate or opinion
need
be furnished.
(b) Each
certificate or opinion provided for in this Indenture and delivered to the
Trustee with respect to compliance with a condition or covenant provided for
in
this Indenture (other than the certificates provided pursuant to Section 6.05
of
this Indenture) shall include (i) a statement that the Person giving such
certificate or opinion has read such covenant or condition; (ii) 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; (iii) a statement that, in the view or opinion of such Person, he or
she
has made such examination or investigation as is necessary to enable such Person
to express an informed view or opinion as to whether or not such covenant or
condition has been complied with; and (iv) a statement as to whether or not,
in
the view or opinion of such Person, such condition or covenant has been complied
with.
(c) Any
certificate, statement or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise
of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his or her certificate, statement or
opinion is based are erroneous. Any certificate, statement or opinion of counsel
may be based, insofar as it relates to factual matters, upon a certificate,
statement or opinion of, or representations by, an officer or officers of the
Company stating that the information with respect to such factual matters is
in
the possession of the Company, unless such counsel knows, or in the exercise
of
reasonable care should know, that the certificate, statement or opinion or
representations with respect to such matters are erroneous.
(d) Any
certificate, statement or opinion of an officer of the Company or of counsel
to
the Company may be based, insofar as it relates to accounting matters, upon
a
certificate or opinion of, or representations by, an accountant or firm of
accountants, unless such officer or counsel, as the case may be, knows, or
in
the exercise of reasonable care should know, that the certificate or opinion
or
representations with respect to the accounting matters upon which his or her
certificate, statement or opinion may be based are erroneous. Any certificate
or
opinion of any firm of independent registered public accountants filed with
the
Trustee shall contain a statement that such firm is independent.
(e) In
any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters
be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
(f) Where
any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section
16.02 Trust
Indenture Act Controls. If and to the extent that any
provision of this Indenture limits, qualifies or conflicts with the duties
imposed by, or another provision included in this Indenture which is required
to
be included in this Indenture by any of the provisions of
Sections 310 to 318, inclusive, of the Trust Indenture Act, such imposed duties
or incorporated provision shall control.
Section
16.03 Notices to
the Company and Trustee. Any notice or demand authorized
by this Indenture to be made upon, given or furnished to, or filed with, the
Company or the Trustee shall be sufficiently made, given, furnished or filed
for
all purposes if it shall be mailed, delivered or telefaxed to:
(a) the
Company, at 1345 Avenue of the Americas, New York, New York 10105, Attention:
Debra A. Hess, Chief Financial Officer, fax: (212) 798-6060 or at such other
address or facsimile number as may have been furnished in writing to the Trustee
by the Company.
(b) the
Trustee, at the Corporate Trust Office of the Trustee, Attention: Newcastle
Investment Corp. Administrator.
Any
such notice, demand or other document shall be in the English
language.
Section
16.04 Notices to
Securityholders; Waiver. Any notice required or
permitted to be given to Securityholders shall be sufficiently given (unless
otherwise herein expressly provided),
(a) if
to
Holders, if given in writing by first class mail, postage prepaid, to such
Holders at their addresses as the same shall appear on the Register of the
Company.
(b) In
the
event of suspension of regular mail service or by reason of any other cause
it
shall be impracticable to give notice by mail, then such notification as shall
be given with the approval of the Trustee shall constitute sufficient notice
for
every purpose hereunder.
(c) Where
this Indenture provides for notice in any manner, such notice may be waived
in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers
of
notice by Holders shall be filed with the Trustee, but such filing shall not
be
a condition precedent to the validity of any action taken in reliance on such
waiver. In any case where notice to Holders is given by mail; neither the
failure to mail such notice nor any defect in any notice so mailed to any
particular Holder shall affect the sufficiency of such notice with respect
to
other Holders, and any notice that is mailed in the manner herein provided
shall
be conclusively presumed to have been duly given. In any case where notice
to
Holders is given by publication, any defect in any notice so published as to
any
particular Holder shall not affect the sufficiency of such notice with respect
to other Holders, and any notice that is published in the manner herein provided
shall be conclusively presumed to have been duly given.
Section
16.05 Legal
Holiday. Unless otherwise specified pursuant to Section
3.01, in any case where any Interest Payment Date, Redemption Date or Maturity
of any Security of any series shall not be a Business Day at any Place of
Payment for the Securities of that series, then payment of principal and
premium, if any, or interest need not be made at such Place of Payment on such
date, but may be made on the next succeeding Business Day at such Place of
Payment with the same force and effect as if made on such
Interest Payment Date, Redemption Date or Maturity and no interest shall accrue
on such payment for the period from and after such Interest Payment Date,
Redemption Date or Maturity, as the case may be, to such Business Day if such
payment is made or duly provided for on such Business Day.
Section
16.06 Effects of
Headings and Table of Contents. The Article and Section
headings herein and the Table of Contents are for convenience only and shall
not
affect the construction hereof.
Section
16.07 Successors
and Assigns. All covenants and agreements in this
Indenture by the parties hereto shall bind their respective successors and
assigns and inure to the benefit of their permitted successors and assigns,
whether so expressed or not.
Section
16.08 Separability
Clause. In case any provision in this Indenture or in
the Securities shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way
be
affected or impaired thereby.
Section
16.09 Benefits of
Indenture. Nothing in this Indenture expressed and
nothing that may be implied from any of the provisions hereof is intended,
or
shall be construed, to confer upon, or to give to, any Person or corporation
other than the parties hereto and their successors and the Holders of the
Securities any benefit or any right, remedy or claim under or by reason of
this
Indenture or any covenant, condition, stipulation, promise or agreement hereof,
and all covenants, conditions, stipulations, promises and agreements in this
Indenture contained shall be for the sole and exclusive benefit of the parties
hereto and their successors and of the Holders of the Securities.
Section
16.10 Counterparts
Originals. This Indenture may be executed in any number
of counterparts, each of which so executed shall be deemed to be an original,
but all such counterparts shall together constitute but one and the same
instrument.
Section
16.11 Governing
Law; Waiver of Trial by Jury. This Indenture and the
Securities shall be deemed to be contracts made under the law of the State
of
New York, and for all purposes shall be governed by and construed in accordance
with the law of said State.
EACH
PARTY HERETO, AND EACH HOLDER OF A SECURITY BY ACCEPTANCE THEREOF,
HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT
IT
MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY
ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS INDENTURE.
IN
WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed as of the date first written above.
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NEWCASTLE INVESTMENT
CORP.,
as Issuer
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By:
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Name:
Title:
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LASALLE BANK NATIONAL
ASSOCIATION, as Trustee
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By:
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Name:
Title:
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