Exhibit 4a
TANDY CORPORATION
AND
THE FORT WORTH NATIONAL BANK,
TRUSTEE
Indenture
Dated as of June 30, 1974
$58,000,000
10% Subordinated Debentures Due 1994
TABLE SHOWING REFLECTION IN INDENTURE OF
CERTAIN PROVISIONS OF TRUST INDENTURE ACT OF 1939
TIA Reflected in Indenture Section
303(1) .............................. 101(6)
(4) .............................. 608(d)(1)
(5) .............................. 608(d)(2)
(6) .............................. 608(d)(6)
(10) .............................. 101
(12) .............................. 608(d)(5), 613(c)(5)
(13) .............................. 101
(16) .............................. 608(d)(4), 608(e)(1)
310(a)(1) ........................... 609
(a)(2) ........................... 609
(a)(3) ........................... Not Applicable
(a)(4) ........................... Not Applicable
(b) .............................. 608
311(a) .............................. 613(a)
(b) .............................. 613(b)
(b)(2) ........................... 703(a)(2), 703(b)
312(a) .............................. 701, 702(a)
(b) .............................. 702(b)
(c) .............................. 702(c)
313(a) .............................. 703(a)
(b) .............................. 703(b)
(c) .............................. 703(a), 703(b)
(d) .............................. 703(c)
314(a) .............................. 704
(b) .............................. Not Applicable
(c)(1) ........................... 102
(c)(2) ........................... 102
(c)(3) ........................... Not Applicable
(d) .............................. Not Applicable
(e) .............................. 102
315(a) .............................. 601(a), 601(c)
(b) .............................. 602, 703(a)(6)
(c) .............................. 601(b)
(d) .............................. 601
(d)(1) ........................... 601(a)
(d)(2) ........................... 601(c)(2)
(d)(3) ........................... 601(c)(3)
(e) .............................. 514
316(a) .............................. 101
(a)(1)(A) ........................ 502, 512
(a)(1)(B) ........................ 513
(a)(2) ........................... Not Applicable
(b) .............................. 508
317(a)(1) ........................... 503
(a)(2) ........................... 504
(b) .............................. 1003
318(a) .............................. 107
TABLE OF CONTENTS
PAGE
PARTIES ............................................... 1
RECITALS OF THE COMPANY ............................... 1
ARTICLE 100
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions .............................. 1
Act ...................................... 2
accountant ............................... 2
Affiliate; control ....................... 2
Authenticating Agent ..................... 3
Authorized Newspaper ..................... 3
Board of Directors ....................... 3
Board Resolution ......................... 3
Business Day ............................. 3
Commission ............................... 3
Company .................................. 3
Company Request, Company Order, Company
Consent ................................. 4
Corporate Trust Office ................... 4
corporation .............................. 4
Debenture ................................ 4
Debentureholder .......................... 4
Debenture Register; Debenture Registrar .. 4
Defaulted Interest ....................... 4
Event of Default ......................... 4
Holder ................................... 4
indebtedness ............................. 4
Independent .............................. 5
Interest Payment Date .................... 6
long-term indebtedness ................... 6
Maturity ................................. 6
Officers' Certificate .................... 6
Opinion of Counsel ....................... 6
Outstanding .............................. 6
Paying Agent ............................. 7
Person ................................... 7
Place of Payment ......................... 7
Predecessor Debentures ................... 7
Redemption Date .......................... 7
Redemption Price ......................... 8
Regular Record Date ...................... 8
Responsible Officer ...................... 8
Special Record Date ...................... 8
Stated Maturity .......................... 8
Subsidiary ............................... 8
successor; successor corporation ......... 8
Superior Debt ............................ 9
Trustee .................................. 9
Trustee Indenture Act, TIA ............... 9
Vice President ........................... 9
SECTION 102. Compliance Certificates and Opinions ..... 9
SECTION 103. Form of Documents Delivered to Trustee ... 10
SECTION 104. Acts of Debentureholders ................. 11
SECTION 105. Notices, etc., to Trustee and Company .... 12
SECTION 106. Notices to Debentureholders; Waiver ...... 12
SECTION 107. Conflict with Trust Indenture Act ........ 13
SECTION 108. Effect of Headings and Table of Contents . 13
SECTION 109. Successors and Assigns ................... 13
SECTION 110. Separability Clause ...................... 13
SECTION 111. Benefits of Indenture .................... 13
SECTION 112. Governing Law ............................ 14
SECTION 113. Immunity of Incorporators, Stockholders,
Directors, and Officers .................. 14
SECTION 114. Payment and Redemption Dates ............. 14
ARTICLE 200
DEBENTURE FORM
SECTION 201. Forms Generally .......................... 15
SECTION 202. Form of Debenture ........................ 15
SECTION 203. Form of Trustee's Certificate of
Authentication ........................... 20
ARTICLE 300
THE DEBENTURES
SECTION 301. Title and Terms .......................... 20
SECTION 302. Denominations ............................ 21
SECTION 303. Execution, Authentication, Delivery and
Dating ................................... 21
SECTION 304. Temporary Debentures ..................... 22
SECTION 305. Registration, Transfer and Exchange ...... 22
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Debentures ............................... 24
SECTION 307. Payment of Interest; Interest Rights
Preserved ................................ 25
SECTION 308. Persons Deemed Owners .................... 27
SECTION 309. Cancellation ............................. 27
SECTION 310. Authentication and Delivery of Original
Issue .................................... 27
ARTICLE 400
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture .. 28
SECTION 402. Application of Trust Money ............... 29
ARTICLE 500
REMEDIES
SECTION 501. Events of Default ........................ 29
SECTION 502. Acceleration of Maturity; Rescission and
Annulment ................................ 31
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee ................... 32
SECTION 504. Trustee May File Proofs of Claim ......... 33
SECTION 505. Trustee May Enforce Claims Without
Possession of Debentures.................. 34
SECTION 506. Application of Money Collected ........... 34
SECTION 507. Limitation on Suits ...................... 35
SECTION 508. Unconditional Right of Debentureholders
to Receive Principal, Premium and
Interest ................................. 35
SECTION 509. Restoration of Rights and Remedies ....... 36
SECTION 510. Rights and Remedies Cumulative ........... 36
SECTION 511. Delay or Omission Not Waiver ............. 36
SECTION 512. Control by Debentureholders .............. 37
SECTION 513. Waiver of Past Defaults .................. 37
SECTION 514. Undertaking for Costs .................... 38
SECTION 515. Waiver of Stay or Extension Laws ......... 38
ARTICLE 600
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities ...... 38
SECTION 602. Notice of Defaults ....................... 40
SECTION 603. Certain Rights of Trustee ................ 40
SECTION 604. Not Responsible for Recitals or Issuance
of Debentures ............................ 41
SECTION 605. May Hold Debentures ...................... 42
SECTION 606. Money Held in Trust ...................... 42
SECTION 607. Compensation and Reimbursement ........... 42
SECTION 608. Disqualification; Conflicting Interests .. 43
(a) Elimination of Conflicting Interest
or Resignation........................ 43
(b) Notice of Failure to Eliminate
Conflicting Interest or Resign ....... 43
(c) "Conflicting Interest" Defined ....... 43
(d) Definitions of Certain Terms Used in
this Section.......................... 47
(e) Calculation of Percentages of
Securities ........................... 48
SECTION 609. Corporate Trustee Required; Eligibility .. 49
SECTION 610. Resignation and Removal; Appointment of
Successor ................................ 50
SECTION 611. Acceptance of Appointment by Successor ... 51
SECTION 612. Merger, Conversion, Consolidation or
Succession to Business ................... 52
SECTION 613. Preferential Collection of Claims Against
Company .................................. 52
(a) Segregation and Apportionment of
Certain Collections by Trustee;
Certain Exceptions.................... 52
(b) Certain Creditor Relationships
Excluded From Segregation and
Apportionment ........................ 55
(c) Definitions of Certain Terms Used in
this Section ......................... 56
SECTION 614. Appointment of Authenticating Agent ...... 57
ARTICLE 700
DEBENTUREHOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and
Addresses of Debentureholders ............ 59
SECTION 702. Preservation of Information;
Communications to Debentureholders ....... 59
SECTION 703. Reports by Trustee ....................... 61
SECTION 704. Reports by Company ....................... 63
ARTICLE 800
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company may Consolidate, etc., only on
Certain Terms ............................ 64
SECTION 802. Successor Corporation Substituted ........ 64
SECTION 803. Limitation on Lease of Properties as
Entirety ................................. 65
ARTICLE 900
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent
of Debentureholders ...................... 65
SECTION 902. Supplemental Indentures With Consent of
Debentureholders ......................... 66
SECTION 903. Execution of Supplemental Indentures ..... 67
SECTION 904. Effect of Supplemental Indentures ........ 67
SECTION 905. Conformity with Trust Indenture Act ...... 67
SECTION 906. Reference in Debentures to Supplemental
Indentures ............................... 68
SECTION 907. Officers' Certificate With Respect to
Supplemental Indentures .................. 68
ARTICLE 1000
COVENANTS
SECTION 1001. Payment of Principal, Premium and
Interest ................................ 68
SECTION 1002. Maintenance of Office or Agency ......... 68
SECTION 1003. Money for Debenture Payments to be Held
in Trust ................................ 69
SECTION 1004. Payment of Taxes and Other Claims ....... 70
SECTION 1005. Maintenance of Properties ............... 71
SECTION 1006. Statement as to Compliance .............. 71
SECTION 1007. Corporate Existence ..................... 72
SECTION 1008. Restrictions on Merger, Sale of Assets,
etc. .................................... 72
ARTICLE 1100
REDEMPTION OF DEBENTURES
SECTION 1101. Right of Redemption ..................... 72
SECTION 1102. Election to Redeem; Notice to Trustee ... 72
SECTION 1103. Selection by Trustee of Debentures to
be Redeemed ............................. 73
SECTION 1104. Notice of Redemption .................... 73
SECTION 1105. Deposit of Redemption Price ............. 74
SECTION 1106. Debentures Payable on Redemption Date ... 74
SECTION 1107. Debentures Redeemed in Part ............. 74
ARTICLE 1200
SUBORDINATION OF DEBENTURES
SECTION 1201. Debentures Subordinate to Superior Debt . 75
SECTION 1202. Payment Over of Proceeds Upon
Dissolution, etc. ....................... 75
SECTION 1203. Trustee to Effectuate Subordination ..... 79
SECTION 1204. Trustee Not Charged with Knowledge of
Prohibition ............................. 79
SECTION 1205. Rights of Trustee as Holder of Superior
Debt .................................... 80
SECTION 1206. Article Applicable to Paying Agents ..... 80
TESTIMONIUM ........................................... 81
SIGNATURES AND SEALS .................................. 81
ACKNOWLEDGMENTS ....................................... 82
THIS INDENTURE dated as of June 30, 1974, between TANDY
CORPORATION, a Delaware corporation (hereinafter called the
"Company") having its principal office at 2727 West Seventh
Street, Fort Worth, Texas 76107, and THE FORT WORTH NATIONAL
BANK, a national banking association duly incorporated under
the national banking laws of the United States of America
having its principal office at Fort Worth, Texas (hereinafter
called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue
of its Debentures (hereinafter called the "Debentures") of
substantially the tenor and amount hereinafter set forth, and
to provide therefor the Company has duly authorized the
execution and delivery of this Indenture.
All things necessary to make the Debentures, when
executed by the Company and authenticated and delivered
hereunder and duly issued by the Company, the valid
obligations of the Company, and to make this Indenture a
valid agreement of the Company, in accordance with their and
its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the
purchase of the Debentures by the Holders thereof, it is
mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Debentures, as
follows:
ARTICLE 100
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) "Indenture" means this instrument as
originally executed or as it may from time to time be
supplemented or amended by one or more indentures
supplemental thereto entered into pursuant to the
applicable provisions hereof;
(2) all references in this Indenture to the
designated "Articles", "Sections" and other subdivisions
are to the designated Articles, Sections and other
subdivisions of this Indenture as originally executed;
(3) 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;
(4) the words "the date hereof" shall mean the
date of the execution and delivery of this Indenture;
(5) the terms defined in this Article have the
meanings assigned to them in this Article, and include
the plural as well as the singular;
(6) all other terms used herein which are defined
in the Trust Indenture Act, either directly or by
reference therein, have the meanings assigned to them
therein;
(7) all accounting terms not otherwise defined
herein have the meanings assigned to them in accordance
with generally accepted accounting principles; and
(8) all computations provided for herein shall be
made in accordance with generally accepted accounting
principles, and, subject to the provisions of Section
601, a certificate of an Independent accountant shall
be conclusive evidence as to the amount of Consolidated
Net Income.
Certain terms, used principally in Article 600, are
defined in that Article.
"Act" when used with respect to any Debentureholder has
the meaning specified in Section 104.
"accountant" means a Person engaged in the practice of
accounting whether or not employed by, or in any way
affiliated with, the Company.
"Affiliate" of any specified Person means any other
Person directly or indirectly controlling or controlled by or
under direct or indirect common control with such specified
Person. For the purposes of this definition, "control" when
used with respect to any specified Person means the power to
direct the management and policies of such Person, directly
or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to
the foregoing.
"Authenticating Agent" has the meaning specified in
Section 614.
"Authorized Newspaper" means a newspaper of general
circulation in the Borough of Manhattan, The City of New
York, New York, printed in the English language and
customarily published on each Business Day, whether or not
published on Saturdays, Sundays or holidays. Whenever
successive weekly publications in an Authorized Newspaper are
required hereunder they may be made (unless otherwise
expressly provided herein) on the same or different days of
the week and in the same or in different Authorized
Newspapers.
"Board of Directors" means either the board of directors
of the Company or any duly authorized committee of that
board.
"Board Resolution" means a copy of a resolution
certified by the Secretary or an Assistant Secretary of the
Company to have been duly adopted by the Board of Directors
and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday,
Thursday and Friday, which is not a legal holiday for banking
institutions in The City of Fort Worth, Texas nor a day on
which such banking institutions are authorized to remain
closed.
"Commission" means the Securities and Exchange
Commission, as from time to time constituted, created under
the Securities Exchange Act of 1934, or if at any time after
the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties
on such date.
"Company" means Tandy Corporation, the Delaware
corporation named in the first paragraph of this Indenture
until a successor corporation shall have become such pursuant
to the applicable provisions of this Indenture, and
thereafter, subject to the provisions of Section 802,
"Company" shall mean successor corporation.
"Company Request", "Company Order" and "Company Consent"
mean, respectively, a written request, order or consent
signed in the name of the Company by its Chairman of the
Board, President or a Vice President, and by its Treasurer,
an Assistant Treasurer, Controller, an Assistant Controller,
Secretary or an Assistant Secretary, and delivered to the
Trustee.
"Corporate Trust Office" means the principal office of
the Trustee in The City of Fort Worth, Texas, at which at any
particular time its corporate trust business shall be
administered, which office is at the date of execution of
this Indenture located at 500 Throckmorton Street, Fort
Worth, Texas.
"corporation" means and includes corporations, voluntary
associations, joint stock companies, business trusts or other
similar organizations.
"Debenture" means any of the debentures referred to in
the Recitals of the Company and authenticated and delivered
hereunder.
"Debentureholder" means a Person in whose name a
Debenture is registered in the Debenture Register.
"Debenture Register" and "Debenture Registrar" have the
respective meanings specified in Section 305.
"Defaulted Interest" has the meaning specified in
Section 307.
"Event of Default" has the meaning specified in Section
501.
"Holder" when used with respect to any Debenture means a
Debentureholder.
"indebtedness" means and includes with respect to any
corporation
(i) all items which would be included on the
liability side of a balance sheet of such corporation as
of the date on which indebtedness is to be determined,
excluding capital stock, surplus, capital and earned
surplus reserves which in effect were appropriations of
surplus or offsets to asset values (other than reserves
in respect of obligations, the amount, applicability or
validity of which is at such date being contested by
such corporation), deferred credits and any amounts
representing capitalization of leases;
(ii) guarantees, other than endorsements, and
other contingent obligations in respect of, or any
obligations to purchase or otherwise acquire,
indebtedness of others;
(iii) indebtedness secured by any mortgage,
pledge, security interest or lien existing on property
owned subject to such mortgage, pledge, security
interest or lien whether or not the indebtedness secured
thereby shall have been assumed;
(iv) all proper accruals for Federal and other
taxes based on or measured by income or profits and
other proper accruals as required by good accounting
practice; and
(v) all indebtedness guaranteed, directly or
indirectly, in any manner by such corporation or in
effect guaranteed or supported, directly or indirectly,
by such corporation through an agreement, contingent or
otherwise (A) to purchase the indebtedness or (B) to
purchase, sell, transport or lease (as lessee or lessor)
property or to purchase or sell services at prices or in
amounts designed to enable the debtor to make payment of
the indebtedness or to assure the owner of the
indebtedness against loss or (C) to supply funds to or
in any other manner invest in the debtor;
provided, however, that such term shall not mean and include
any indebtedness in respect to which moneys sufficient to pay
and discharge the same in full shall be deposited with a
depositary, agency or trustee in trust for the payment
thereof.
"Independent" when used with respect to any specified
Person means such a Person who (i) is in fact independent,
(ii) does not have any direct financial interest or any
material indirect financial interest in the Company or in any
other obligor upon the Debentures or in any Affiliate of the
Company or of such other obligor, and (iii) is not connected
with the Company or such other obligor or any Affiliate of
the Company or of such other obligor, as an officer,
employee, promoter, underwriter, trustee, partner, director
or person performing similar functions. Whenever it is
herein provide that any Independent Person's opinion or
certificate shall be furnished to the Trustee, such Person
shall be appointed by a Company Order and not disapproved by
the Trustee, and such opinion or certificate shall state that
the signer has read this definition and that the signer is
independent within the meaning hereof.
"Interest Payment Date" means the Stated Maturity of an
instalment of interest on the Debentures.
"long-term indebtedness" means any indebtedness which by
its terms matures more than one year after the date it was
incurred.
"Maturity" when used with respect to any Debentures
means the date on which the principal of such Debenture
becomes due and payable as therein or herein provided,
whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by
the Chairman of the Board, the President or a Vice President,
and by the Treasurer, an Assistant Treasurer, the Controller,
an Assistant Controller, the Secretary or an Assistant
Secretary of the Company, and delivered to the Trustee.
Wherever this Indenture requires that an Officers'
Certificate be signed also by an engineer or an accountant or
other expert, such engineer, accountant or other expert
(except as otherwise expressly provided in this Indenture)
may be in the employ of the Company, and shall be acceptable
to the Trustee.
"Opinion of Counsel" means a written opinion of counsel,
who may (except as otherwise expressly provided in this
Indenture) be counsel for the Company, and shall be
acceptable to the Trustee.
"Outstanding" when used with respect to Debentures
means, as of the date of determination, all Debentures
theretofore authenticated and delivered under this Indenture,
except:
(i) Debentures theretofore cancelled by the
Trustee or delivered to the Trustee for cancellation;
(ii) Debentures for whose payment or redemption
money in the necessary amount has been theretofore
deposited with the Trustee or any Paying Agent in trust
for the Holders of such Debentures, provided that, if
such Debentures 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
(iii) Debentures in exchange for or in lieu of
which other Debentures have been authenticated and
delivered pursuant to Section 306 of this Indenture;
provided, however, that in determining whether the Holders of
the requisite principal amount of Debentures Outstanding have
given any request, demand, authorization, direction, notice,
consent or waiver hereunder, Debentures owned by the Company
or any other obligor upon the Debentures or any Affiliate of
the Company or such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice,
consent or waiver, only Debentures which the Trustee knows to
be so owned shall be so disregarded. Debentures so owned
which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of
the Trustee the pledgee's right so to act with respect to
such Debentures and that the pledgee is not the Company or
any other obligor upon the Debentures or any Affiliate of the
Company or such other obligor.
"Paying Agent" means any Person authorized by the
Company to pay the principal of (and premium, if any) or
interest on any Debentures on behalf of the Company.
"Person" means any individual, corporation, partnership,
joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or
political subdivision thereof.
"Place of Payment" means a city or any political
subdivision thereof designated as such in Section 301.
"Predecessor Debentures" of any particular Debenture
means every previous Debenture evidencing all or a portion of
the same debt as that evidenced by such particular Debenture;
and, for the purposes of this definition, any Debenture
authenticated and delivered under Section 306 in lieu of a
lost, destroyed or stolen Debenture shall be deemed to
evidence the same debt as the lost, destroyed or stolen
Debenture.
"Redemption Date" when used with respect to any
Debenture to be redeemed means the date fixed for such
redemption by or pursuant to this Indenture.
"Redemption Price" when used with respect to any
Debenture to be redeemed means the price at which it is to be
redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable, and
punctually paid or duly provided for, on any Interest Payment
Date shall be the close of business on the 15th day (whether
or not a Business Day) of the calendar month next preceding
such Interest Payment Date.
"Responsible Officer" when used with respect to the
Trustee means the chairman or vice-chairman of the board of
directors, the chairman or vice-chairman of the executive
committee of the board of directors, the chairman of the
trust committee,the president, any vice president, the
secretary, any assistant secretary, the treasurer, any
assistant treasurer, the cashier, any assistant cashier, any
trust officer or assistant trust officer, the controller and
any assistant controller or any other officer of the Trustee
customarily performing functions similar to those performed
by any of the above designated officers and also means, with
respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to
Section 307.
"Stated Maturity" when used with respect to any
Debenture or any instalment of interest thereon means the
date specified in such Debenture as the fixed date on which
the principal of such Debenture or such instalment of
interest is due and payable.
"Subsidiary" means any corporation of which the Company
and/or one or more of its Subsidiaries own more than 50% of
the outstanding stock having by its terms ordinary voting
power to elect a majority of the board of directors of such
corporation, irrespective of whether at the time stock of any
other class or classes of such corporation shall have or
might have voting power by reason of the happening of any
contingency.
"successor," or "successor corporation," when used with
respect to a particular corporation, means the corporation
successor to such corporation by consolidation or merger or
which shall have acquired the property of such corporation as
an entirety or substantially as an entirety.
"Superior Debt" means any long-term indebtedness of the
Company, any indebtedness of the Company evidenced by a bond,
debenture, note or similar evidence of indebtedness or
incurred under an agreement pursuant to which any such
security was issued, and all indebtedness, obligations and
liabilities of others in respect of which the Company is
liable contingently or otherwise to pay or advance money or
property or as guarantor, endorser or otherwise or which the
Company has agreed to purchase or otherwise acquire, in any
case either outstanding on the date of execution of this
Indenture as originally executed, or thereafter created,
incurred or assumed, other than (i) indebtedness or liability
as to which, in the instrument creating or evidencing the
same or pursuant to which the same is outstanding, it is
provided that such indebtedness or liability is not superior
in right of payment to the Debentures, (ii) the Company's 6-%
subordinated debentures due January 1, 1978 (which shall rank
on a parity with the Debentures) and (iii) the Debentures.
"Trustee" means The Fort Worth National Bank, the
national banking association named as the "Trustee" in the
first paragraph of this Indenture, until any successor
Trustee shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Trustee" shall
mean such successor Trustee.
"Trust Indenture Act" or "TIA" means the Trust Indenture
Act of 1939, as in force at the date as of which this
Indenture was executed except as otherwise specified herein.
"Vice President" when used with respect to the Company
or the Trustee means any vice president, whether or not
designated by a number or a word or words added before or
after the title "vice president".
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the
Trustee to take any action under any provision of this
Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent,
if any, provided for in this Indenture relating to the
proposed action have been complied with and an Opinion of
Counsel stating that in the opinion of such Counsel all such
conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to
which the furnishing of such documents is specifically
required by any provision of this Indenture relating to such
particular application or request, no additional certificate
or opinion need be furnished.
Every certificate or opinion with respect to compliance
with a condition or covenant provided for in this Indenture
shall include
(1) a statement that each individual signing such
certificate or opinion has read such covenant or
condition and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope
of the examination or investigation upon which the
statements or opinions contained in such certificate or
opinion are based;
(3) a statement that, in the opinion of each such
individual, he has made such examination or
investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant
or condition has been complied with; and
(4) a statement as to whether, in the opinion of
each such individual, such covenant or condition has
been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be
certified by, or covered by an opinion of, any specified
Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one
document, but one such Person may certify or give an opinion
with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several
documents.
Any certificate or opinion of an officer of the Company
may be based, in so far 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
certificate or opinion is based are erroneous. Any such
certificate or Opinion of Counsel may be based, in so far as
it relates to factual matters, upon a certificate or opinion
of, or representations by, an officer or officers of the
Company stating that the information with respect to such
factual matters is in the possession of the Company, unless
such Counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
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 104. Acts of Debentureholders.
(a) Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this
Indenture to be given or taken by Debentureholders may be
embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Debentureholders
in person or by agent duly appointed in writing; and, except
as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are
delivered to the Trustee, and, where it is hereby expressly
required, to the Company. Such instrument or instruments
(and the action embodied therein and evidenced thereby) are
herein sometimes referred to as the "Act" of the
Debentureholders signing such instrument or instruments.
Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose
of this Indenture and (subject to Section 601) conclusive in
favor of the Trustee and the Company, if made in the manner
provided in this Section.
(b) The fact and date of the execution by any Person of
any such instrument or writing may be proved by the affidavit
of a witness of such execution or by the certificate of any
notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by an officer of
a corporation or a member or a partnership, on behalf of such
corporation or partnership, such certificate or affidavit
shall also constitute sufficient proof of his authority. The
fact and date of the execution of any such instrument or
writing, or the authority of the person executing the same,
may also be proved in any other manner which the Trustee
deems sufficient.
(c) The ownership of Debentures shall be proved by the
Debenture Register.
(d) Any request, demand, authorization, direction,
notice, consent, waiver or other action by the Holder of any
Debenture shall bind the Holder of every Debenture issued
upon the transfer thereof or in exchange therefor or in lieu
thereof, in respect of anything done or suffered to be done
by the Trustee or the Company in reliance thereon, whether or
not notation of such action is made upon such Debenture.
(e) The Trustee may require such additional proof of
any matter referred to in this Section as it shall deem
necessary.
SECTION 105. Notices, etc., to Trustee and Company.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Debentureholders or other document
provided or permitted by this Indenture to be made upon,
given or furnished to, or filed with,
(1) the Trustee by any Debentureholder or by the
Company shall be sufficient for every purpose hereunder
if made, given, furnished or filed in writing to or with
the Trustee at its Corporate Trust Office, or
(2) the Company by the Trustee or by any
Debentureholder shall be sufficient for every purpose
hereunder if in writing and, except as provided in
Section 501 hereof, mailed, first-class postage prepaid,
to the Company addressed to it at the address of its
principal office specified in the first paragraph of
this Indenture or at any other address previously
furnished in writing to the Trustee by the Company.
SECTION 106. Notices to Debentureholders; Waiver.
Where this Indenture provides for notice to
Debentureholders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage
prepaid, to each Debentureholder affected by such event, at
his address as it appears in the Debenture Register, not
later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice. In any case
where notice to Debentureholders is given by mail, neither
the failure to mail such notice, nor any defect in any notice
so mailed, to any particular Debentureholder shall affect the
sufficiency of such notice with respect to other
Debentureholders. 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 Debentureholders shall be
filed with the Trustee, but such filing shall not be a
condition precedent to the validity of any action taken in
reliance upon such waiver.
In case, by reason of the suspension of publication of
any Authorized Newspaper, or by reason of any other cause, it
shall be impossible to make publication of any notice in an
Authorized Newspaper or Authorized Newspapers as required by
this Indenture, then such method of publication or
notification as shall be made with the approval of the
Trustee shall constitute a sufficient publication of such
notice.
SECTION 107. Conflict with Trust Indenture Act.
If this Indenture is qualified under TIA and any
provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this
Indenture by any of the provisions of TIA, such required
provision shall control.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the
construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the
Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the
Debentures 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 111. Benefits of Indenture.
Nothing in this Indenture or in the Debentures, expressor
implied, shall give to any Person, other than the parties
hereto and their successors hereunder and the Holders of
Debentures, any benefit or any legal or equitable right,
remedy or claim under this Indenture, except as provided in
Article 1200.
SECTION 112. Governing Law.
This Indenture shall be construed in accordance with and
governed by the laws of the State of Texas.
SECTION 113. Immunity of Incorporators, Stockholders,
Directors and Officers.
No recourse under or upon any obligation, covenant or
agreement contained in this Indenture or in any Debenture, or
because of any indebtedness evidenced thereby, shall be had
against any incorporator, or against any past, present or
future stockholder, officer or director, as such, of the
Company, the Trustee or of any successor corporation, either
directly or through the Company or the Trustee, whether by
virtue of any constitution or statute or rule of law, or by
the enforcement of any assessment or penalty or otherwise.
It is expressly understood and agreed that this Indenture and
the Debentures are solely corporate obligations, that no
personal liability whatever shall attach to, or is or shall
be incurred by, the incorporators, stockholders, officers or
directors of the Company, the Trustee, or of any successor
corporation, or any of them, because of the creation of the
indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this
Indenture or in any of the Debentures, or implied therefrom,
and that any and all such personal liability of, and any and
all such rights and claims against, every such incorporator,
stockholder, officer or director, are hereby expressly waived
as a condition of, and as a consideration for, the execution
of this Indenture and the issue of the Debentures.
SECTION 114. Payment and Redemption Dates.
In any case where an Interest Payment Date, a Redemption
Date or the date of Maturity of principal of any Debenture
shall not be a Business Day, then payment of interest or
principal (and premium, if any) shall be made on the next
succeeding Business Day with the same force and effect as if
made on the nominal date and no interest shall accrue for the
period after said date.
ARTICLE 200
DEBENTURE FORM
SECTION 201. Forms Generally.
The Debentures and the certificates of authentication
thereon shall be in substantially the forms set forth in this
Article, with such appropriate insertions, omissions,
substitutions and other variations as are required or
permitted by this Indenture and may have such letters,
numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with
the rules of any securities exchange, or as may, consistently
herewith, be determined by the officers executing such
Debentures, as evidenced by their execution of the
Debentures. Any portion of the text of any Debenture may be
set forth on the reverse thereof, with an appropriate
reference thereto on the face of the Debenture.
The definitive Debentures shall be printed, lithographed
or engraved or produced by any combination of these methods
on steel engraved borders or may be produced in any other
manner permitted by the rules of any securities exchange, all
as determined by the officers executing such Debentures, as
evidenced by their execution of such Debentures.
SECTION 202. Form of Debenture.
[FORM OF FACE OF DEBENTURE]
TANDY CORPORATION
10% SUBORDINATED DEBENTURE
DUE 1994
NO. ............. $.............
TANDY CORPORATION, a Delaware corporation (hereinafter
called the "Company", which term includes any successor
corporation under the Indenture hereinafter referred to),
for value received, hereby promises to pay to ,
or registered assigns, the sum of Dollars,
on June 30, 1994 and to pay interest thereon from July 1,
1974, or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, on January 1,
1975 and semi-annually thereafter on July 1 and January 1
in each year, and at the Stated Maturity of the principal
hereof, at the rate of 10% per annum until the principal
hereof becomes due and payable, and at the rate of 11%
per annum on any overdue principal and premium and
(to the extent that the payment of such interest shall be
legally enforceable) on any overdue instalment of interest.
The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as
provided in said Indenture, be paid to the Person in whose
name this Debenture (or one or more Predecessor Debentures,
as defined in said Indenture) is registered at the close of
business on the Regular Record Date for such interest, which
shall be the 15th day (whether or not a Business Day) of the
calendar month next preceding such Interest Payment Date.
Any such interest not so punctually paid or duly provided for
shall forthwith cease to be payable to the registered Holder
on such Regular Record Date, and may be paid to the Person in
whose name this Debenture (or one or more Predecessor
Debentures) is registered at the close of business on a
Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be
given to Debentureholders not less than 10 days prior to such
Special Record Date, or may be paid, at any time in any other
lawful manner not inconsistent with the requirements of any
securities exchange on which the Debentures may be listed,
and upon such notice as may be required by such exchange, all
as more fully provided in said Indenture. Payment of the
principal of (and premium, if any) and interest on this
Debenture will be made at the office or agency of the Company
in the Borough of Manhattan, The City of New York, New York;
provided, however, that payment of interest may be made at
the option of the Company (a) by check mailed to the address
of the Person entitled thereto as such address shall appear
on the Debenture Register or (b) in such other manner
acceptable to the Trustee as the Person entitled thereto may
have requested. All such payments shall be made in such coin
or currency of the United States of America as at the time of
payment is legal tender for payment of public and private
debts.
Reference is hereby made to the further provisions of
this Debenture set forth on the reverse hereof, and such
further provisions shall, for all purposes, have the same
effect as if fully set forth in this place.
Unless the certificate of authentication hereon has been
executed by the Trustee by manual signature, this Debenture
shall not be entitled to any benefit under the Indenture, or
be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this
Debenture to be duly executed under its corporate seal.
Dated .................
TANDY CORPORATION
By...........................
Chairman of the Board
Attest:
.........................
Secretary
[FORM OF REVERSE OF DEBENTURE]
TANDY CORPORATION
This Debenture is one of a duly authorized issue of
Debentures of the Company designated as its 10% Subordinated
Debentures Due 1994 (herein called the "Debentures"), limited
in aggregate principal amount to $58,000,000 issued and to be
issued under an Indenture dated as of June 30, 1974 (herein
called the "Indenture") between the Company and The Fort
Worth National Bank, as Trustee (herein called the "Trustee",
which term includes any successor Trustee under the
Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement
of the respective rights and duties thereunder of the
Company, the Trustee and the Holders of the Debentures, and
the terms upon which the Debentures are, and are to be,
authenticated and delivered.
The Debentures are subject to redemption on not less
than 30 nor more than 60 days' prior notice given as provided
in the Indenture at any time on or after July 1, 1976 and
prior to maturity as a whole or in part, at the option of the
Company, at the applicable percentage of the principal amount
set forth below:
If redeemed during If redeemed during
12 months' period 12 months' period
beginning beginning
July 1 Percentage July 1 Percentage
___________________ __________ _________________ __________
1976 ........ 105.00% 1985 ........ 102.75%
1977 ........ 104.75 1986 ........ 102.50
1978 ........ 104.50 1987 ........ 102.25
1979 ........ 104.25 1988 ........ 102.00
1980 ........ 104.00 1989 ........ 101.75
1981 ........ 103.75 1990 ........ 101.50
1982 ........ 103.50 1991 ........ 101.25
1983 ........ 103.25 1992 ........ 101.00
1984 ........ 103.00 1993 ........ 100.00
together in the case of any such redemption with accrued
interest to the Redemption Date.
The indebtedness evidenced by the Debentures is, to the
extent and in the manner set forth in the Indenture,
expressly subordinated and subject in right of payment to the
prior payment in full of all Superior Debt, and this
Debenture is issued subject to such provisions of the
Indentures, and each Holder of this Debenture, by accepting
the same, agrees to and shall be bound by such provisions and
authorizes the Trustee in his behalf to take such action as
may be necessary or appropriate to effectuate the
subordination as provided in the Indenture and appoints the
Trustee his attorney-in-fact for any and all such purposes.
If an Event of Default shall occur, the principal of all
the Debentures may be declared due and payable in the manner
and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the modification
of the rights and obligations of the Company and rights of
the Holders of the Debentures under the Indenture at any time
by the Company with the consent of the Holders of 66 2/3% in
aggregate principal amount of Debentures at the time
Outstanding. The Indenture also contains provisions
permitting the Holders of specified percentages in aggregate
principal amount of the Debentures at the time Outstanding,
on behalf of the Holders of all the Debentures, to waive
compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder
of this Debenture shall be conclusive and binding upon such
Holder and upon all future Holders of this Debenture and of
any Debenture issued upon the transfer hereof or in exchange
herefore or in lieu hereof whether or not notation of such
consent or waiver is made upon this Debenture.
No reference herein to the Indenture and no provision of
this Debenture or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and
unconditional, to pay the principal of (and premium, if any)
and interest on this Debenture at the times, place, and rate,
and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, this Debenture is transferable
on the Debenture Register of the Company, upon surrender of
this Debenture for registration of transfer at the office or
agency of the Company in the Borough of Manhattan, The City
of New York, New York, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the
Company and the Debenture Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Debentures, of authorized
denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees.
The Debentures are issuable only as registered
Debentures without coupons in denominations of $1,000 or such
integral multiples, if any, of $1,000 as the company may from
time to time authorize. As provided in the Indenture and
subject to certain limitations therein set forth, Debentures
are exchangeable for a like aggregate principal amount of
Debentures of any authorized denomination, as requested by
the Holder surrendering the same.
No service charge will be made for any such registration
of transfer or exchange, but the Company may require payment
of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith.
The Company, the Trustee and any agent of the Company or
the Trustee may treat the Person in whose name this Debenture
is registered as the owner hereof for the purpose of
receiving payment as herein provided and for all other
purposes whether or not this Debenture be overdue, and
neither the Company, the Trustee nor any such agent shall be
affected by notice to the contrary.
All terms used in this Debenture which are defined in
the Indenture shall have the meanings assigned to them in the
Indenture.
SECTION 203. Form of Trustee's Certificate of
Authentication.
This is one of the Debentures referred to in the within-
mentioned Indenture.
THE FORT WORTH NATIONAL BANK, THE CHASE MANHATTAN BANK
as Trustee or (National Association)
as Authenticating Agent
By ....................... for the Trustee
Authorized Officer
BY ......................
Authorized Officer
ARTICLE 300
THE DEBENTURES
SECTION 301. Titles and Terms.
The aggregate principal amount of Debentures which may
be authorized and delivered under this Indenture is limited
to $58,000,000 except for Debentures authenticated and
delivered upon registration of transfer of, or in exchange
for, or in lieu of other Debentures as provided herein.
The Debentures shall be known and designated as the "10%
Subordinated Debentures Due 1994" of the Company. Their
Stated Maturity shall be June 30, 1994 and they shall bear
interest from July 1, 1974, or from the most recent Interest
Payment Date to which interest has been paid or duly provided
for, payable on January 1, 1975 and semi-annually thereafter
on July 1 and January 1 in each year and at the Stated
Maturity of the principal hereof, at the rate of 10% per
annum until the principal hereof becomes due and payable, and
at the rate of 11% per annum on any overdue principal and
premium and (to the extent that the payment of such interest
shall be legally enforceable) on any overdue installment of
interest.
The principal (and premium, if any) and interest on the
Debentures shall be payable at the office or agency of he
Company in the Borough of Manhattan, The City of New York,
New York provided for in Section 1002 (herein called the
"Place of Payment"); provided, however, that payment of
interest may be made at the option of the Company (a) by
check mailed to the address of the Person entitled thereto at
such address as shall appear on the Debenture Register or (b)
in such other manner acceptable to the Trustee as the Person
entitled thereto may have requested.
The Debentures shall be redeemable as provided in
Article 1100.
The Debentures shall be subordinated in right of payment
to Superior Debt as provided in Article 1200.
SECTION 302. Denominations.
The Debentures may be issued in denominations of $1,000
and any integral multiple of $1,000.
SECTION 303. Execution, Authentication, Delivery and
Dating.
The Debentures shall be executed on behalf of the
Company by its Chairman of the Board, its President or one of
its Vice Presidents under its corporate seal reproduced
thereon and attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the
Debentures may be manual or facsimile.
Debentures bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the
Company shall bind the Company, notwithstanding that such
individuals or any of them have ceased to hold such offices
prior to the authentication and delivery of such Debentures
or did not hold such offices at the date of such Debentures.
At any time and from time to time after the execution
and delivery of this Indenture, the Company may deliver
Debentures executed by the Company to the Trustee for
authentication; and the Trustee shall authenticate and
deliver such Debentures as in this Indenture provided and not
otherwise.
All Debentures shall be dated the date of their
authentication.
No Debenture shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose, unless
there appears on such Debenture a certificate of
authentication substantially in the form provided for herein
executed by the Trustee or on behalf of the Trustee by the
Authenticating Agency by manual signature, and such
certificate upon any Debenture shall be conclusive evidence,
and the only evidence, that such Debenture has been duly
authenticated and delivered hereunder.
SECTION 304. Temporary Debentures.
Pending the preparation of definitive Debentures, the
Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Debentures which are
printed, lithographed, typewritten, mimeographed or otherwise
produced, in any domination, substantially of the tenor of
the definitive Debentures in lieu of which they are issued
and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing
such Debentures may determine, as evidenced by their
execution of such Debentures.
If temporary Debentures are issued, the Company will
cause definitive Debentures to be prepared without
unreasonable delay. After the preparation of definitive
Debentures, the temporary Debentures shall be exchangeable
for definitive Debentures upon surrender of the temporary
Debentures at the office or agency of the Company in the
Place of Payment, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary
Debentures, the Company shall execute and the Trustee or the
Authenticating Agent shall authenticate and deliver in
exchange therefore a like principal amount of definitive
Debentures of authorized denominations. Until so exchanged,
the temporary Debentures shall in all respects be entitled to
the same benefits under this Indenture as definitive
Debentures.
SECTION 305. Registration, Transfer and Exchange.
The Company shall cause to be kept at the Corporate
Trust Office of the Trustee a register (herein sometimes
referred to as the "Debenture Register") in which, subject to
such reasonable regulations as it may prescribe, the Company
shall provide for the registration of Debentures and the
registration of transfers of Debentures. The Trustee is
hereby appointed "Debenture Registrar" for the purpose of
registering Debentures and transfers of Debentures as herein
provided.
Upon surrender for registration of transfer of any
Debenture at the office or agency of the Company in the
Borough of Manhattan, The City of New York, New York, the
Company shall execute, and the Trustee or the Authenticating
Agent on behalf of the Trustee shall authenticate and
deliver, in the name of the designated transferee or
transferees, one or more new Debentures of any authorized
denominations, of a like aggregate principal amount.
At the option of the Holder, Debentures may be exchanged
for other Debentures of any authorized denominations, of a
like aggregate principal amount, upon surrender of the
Debentures to be exchanged at such office or agency.
Whenever any Debentures are so surrendered for exchange, the
Company shall execute, and the Trustee or the Authenticating
Agent shall authenticate and deliver, the Debentures which
the Debentureholder making the exchange is entitled to
receive.
All Debentures issued upon any registration of transfer
or exchange of Debentures shall be the valid obligations of
the Company, evidencing the same debt, and entitled to the
same benefits under this Indenture, as the Debentures
surrendered upon such registration of transfer or exchange.
Every Debenture presented or surrendered for
registration of transfer or exchange shall (if so required by
the Company or the Trustee or the Authenticating Agent) be
duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the
Debenture Registrar duly executed by he Holder thereof or his
attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Debentures, but the Company may
require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with
any registration of transfer or exchange of Debentures, other
than exchanges pursuant to Section 304 or 906 not involving
any transfer.
The Company shall not be required (i) to issue, register
the transfer of or exchange any Debenture during a period
beginning at the opening of business 15 days before the day
of the mailing of a notice of redemption of Debentures
selected for redemption and ending at the close of business
on the day of such mailing, or (ii) to register the transfer
of or exchange any Debenture so selected for redemption in
whole or in part.
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Debentures.
If (i) any mutilated Debenture is surrendered to the
Trustee, or the Company and the Trustee receive evidence to
their satisfaction of the destruction, loss or theft of any
Debenture, and (ii) there is delivered to the Company and the
Trustee such security or indemnity as may be required by them
to save each of them harmless, then, in the absence of notice
to the Company or the Trustee that such Debenture has been
acquired by a bona fide purchaser, the Company shall execute
and upon its request the Trustee or the Authenticating Agent
shall authenticate and deliver, in exchange for or in lieu of
any such mutilated, destroyed, lost or stolen Debenture, a
new Debenture of like tenor and principal amount, bearing a
number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen
Debenture has become or is about to become due and payable,
the Company in its discretion may, instead of issuing a new
Debenture, pay such Debenture without surrender thereof
except in the case of a mutilated Debenture, if the applicant
for such payment shall furnish to the Company and to the
Trustee or the Authenticating Agent such security or
indemnity as may be required by them to save each of them
harmless and evidence to the satisfaction of the Company and
the Trustee of the destruction, loss or theft of such
Debenture and of the ownership thereof.
Upon the issuance of any new Debenture 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 relation thereto and any other expenses
(including the fees and expenses of the Trustee) connected
therewith.
Every new Debenture issued pursuant to this Section in
lieu of any destroyed, lost or stolen Debenture shall
constitute an original additional contractual obligation of
the Company, whether or not the destroyed, lost or stolen
Debenture 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 Debentures
duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies
with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Debentures.
SECTION 307. Payment of Interest; Interest Rights
Preserved.
Interest on any Debenture which is payable, and is
punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name that Debenture
(or one or more Predecessor Debentures) is registered at the
close of business on the Regular Record Date for such
interest; provided, however, if any Debenture or portion
thereof is called for redemption and is payable on a date
after the close of business on a Regular Record Date next
preceding any Interest Payment Date and before the opening of
business on such Interest Payment Date, and notice of such
redemption has been mailed and funds for such redemption have
been duly provided, interest accrued to the date fixed for
the redemption of such Debenture or portion so called shall
be paid only against surrender of the Debenture.
Any interest on any Debenture which is payable, but is
not punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall
forthwith cease to be payable to the Holder on the relevant
Regular Record Date by virtue of having been such Holder; and
such Defaulted Interest may be paid by the Company, at its
option in each case, as provided in Clause (1) or Clause (2)
below:
(1) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the
Debentures (or their respective Predecessor Debentures)
are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest,
which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each
Debenture 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 i 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 nor less than 10 days prior to the
date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date and, in the name and
at the expense of the company, shall cause notice of the
proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first class
postage prepaid, to each Debentureholder at his address
as it appears in the Debenture Register, not less than
10 days prior to such Special Record Date. The Trustee
may, in its discretion, in the name and at the expense
of the Company, cause a similar notice to be published
at least once in an Authorized Newspaper in each Place
of Payment, but such publication shall not be a
condition precedent to the establishment of such Special
Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefore
having been mailed as aforesaid, such Defaulted interest
shall be paid to the Persons in whose names the
Debentures (or their respective Predecessor Debentures)
are registered on such Special Record Date and shall no
longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted
Interest in any other lawful manner not inconsistent
with the requirements of any securities exchange on
which the Debentures 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 payment shall be
deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section,
each Debenture delivered under this Indenture upon
registration of transfer of or in exchange for or in lieu of
any other Debenture shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such
other Debenture.
SECTION 308. Persons Deemed Owners.
The Company, the Trustee and any agent of the Company or
the Trustee may treat the Person in whose name any Debenture
is registered as the owner of such Debenture for the purpose
of receiving payment of principal of (and premium, if any)
and (subject to Section 307) interest on such Debenture and
for all other purposes whatsoever, whether or not such
Debenture 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.
SECTION 309. Cancellation.
All Debentures surrendered for payment, redemption,
registration of transfer or exchange shall, if surrendered to
any Person other than the Trustee, be delivered to the
Trustee and shall be promptly cancelled by it. The Company
may at any time deliver to the Trustee for cancellation any
Debentures previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever,
and all Debentures so delivered shall be promptly cancelled
by the Trustee. No Debentures shall be authenticated in lieu
of or in exchange for any Debentures cancelled as provided in
this Section, except as expressly permitted by this
Indenture. All cancelled Debentures held by the Trustee
shall be disposed of as directed by a Company Order.
SECTION 310. Authentication and Delivery of Original
Issue.
Forthwith upon the execution and delivery of this
Indenture, or from time to time thereafter, Debentures up to
the aggregate principal amount of $58,000,000 may be executed
by the Company and delivered to the Trustee for
authentication upon the original issue, and shall thereupon
be authenticated and delivered by the Trustee upon Company
Order, without any further action by the Company.
ARTICLE 400
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect
(except as to any surviving rights of transfer or exchange of
Debentures and as to the application of any funds deposited
for the payment of principal (and premium, if any) and
interest on the Debentures herein expressly provided for) and
the Trustee, on demand of and at the expense of the Company,
shall execute proper instruments acknowledging satisfaction
and discharge of this Indenture, when
(1) either
(A) all Debentures theretofore authenticated and
delivered (other than (i) Debentures which have been
destroyed, lost or stolen and which have been replaced
or paid as provided in Section 306, and (ii) Debentures
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 1003) have been
delivered to the Trustee for cancellation; or
(B) all such Debentures not theretofore delivered
to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year, or
(iii) are to be called for redemption within 1
year under arrangements satisfactory to the Trustee
for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (i), (ii) or (iii)
above, has deposited or caused to be deposited with the
Trustee as trust funds in trust for the purpose an
amount sufficient to pay and discharge the entire
indebtedness on such Debentures not theretofore
delivered to the Trustee for cancellation, for principal
(and premium, if any) and interest to the date of such
deposit (in the case of Debentures which have become due
and payable), or to the Stated Maturity or Redemption
Date, as the case may be;
(2) the Company has paid or caused to be paid all
other sums payable hereunder by the Company;
(3) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel each
stating that all conditions precedent herein provided
for relating to the satisfaction and discharge of this
Indenture have been complied with; and
(4) payment of such monies is not prohibited by
the provisions of Section 1204.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee
under Section 607 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of Article 1200, all money
deposited with the Trustee pursuant to Section 401 shall be
held in trust and applied by it, in accordance with the
provisions of the Debentures and this Indenture, to the
payment, either directly or through any Paying Agent
(including the Company acting as its owns Paying Agent) as
the Trustee may determine, to Persons entitled thereto, of
the principal (and premium, if any) and interest for whose
payment such money has been deposited with the Trustee; but
such money need not be segregated from other funds except to
the extent required by law.
ARTICLE 500
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein means any one
of the following events (whatever the reason for such Event
of Default and whether it shall be voluntary or involuntary
or be effected by operation of law pursuant to any judgment,
decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(1) default in the payment, whether or not prohibited
by Article 1200, of any interest upon any Debenture when it
becomes due and payable, and continuance of such default for
a period of 30 days; or
(2) default in the payment, whether or not prohibited
by Article 1200, of the principal of (or premium, if any, on)
any Debenture at its Maturity, except any Maturity occurring
by reason of a call for redemption; or
(3) default in the performance, or breach, of any
covenant or warranty of the Company in this Indenture (other
than a covenant or warranty a default in whose performance or
whose breach is elsewhere in this Section specifically dealt
with), and continuance of such default or breach for a period
of 30 days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 10% in
principal amount of the Outstanding Debentures, a written
notice specifying such default or breach and requiring it to
be remedied and stating that such notice is a "Notice of
Default" hereunder; or
(4) the entry of a decree or order by a court having
jurisdiction in the premises adjudging the Company a bankrupt
or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company under the Federal
Bankruptcy Act or any other applicable Federal or State law,
or appointing a receiver, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Company or of
any substantial part of its property, or ordering the winding
up or liquidation of its affairs, and the continuance of any
such decree or order unstayed and in effect for a period of
60 consecutive days; or
(5) the institution by the Company of proceedings to be
adjudicated a bankrupt, or insolvent, or the consent by it to
the institution of bankruptcy or insolvency proceedings
against it, or the filing by it of a petition or answer or
consent seeking reorganization or relief under the Federal
Bankruptcy Act or any other applicable Federal or State law,
or the consent by it to the filing of any such petition or to
the appointment of a receiver, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Company or of
any substantial part of its property, or the making by it of
an assignment for the benefit of creditors, or the admission
by it in writing of its inability to pay its debts generally
as they become due, or the taking of corporate action by the
Company in furtherance of any such action.
SECTION 502. Acceleration of Maturity; Rescission and
Annulment.
If an Event of Default occurs and is continuing, then
and in every such case the Trustee or the Holders of not less
than 25% in principal amount of the Debentures Outstanding
may declare the principal of all the Debentures to be due and
payable immediately, by a notice in writing to the Company
(and to the Trustee if given by Debentureholders), and upon
any such declaration such principal shall become immediately
due and payable.
At any time after such a declaration of acceleration has
been made and before a judgment or decree for payment of the
money due has been obtained by the Trustee as hereinafter in
this Article provided, the Holders of a majority in principal
amount of the Debentures Outstanding, by written notice to
the Company and the Trustee, may rescind and annul such
declaration and its consequences if
(1) the Company has paid or deposited with the
Trustee a sum sufficient to pay
(A) all overdue installments of interest on
all Debentures,
(B) the principal of (and premium, if any,
on) any Debentures which have become due otherwise
than by such declaration of acceleration and
interest thereon at the rate borne by the
Debentures,
(C) to the extent that payment of such
interest is lawful, interest upon overdue
installments of interest at the rate borne by the
Debentures, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation,
expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default, other than the
non-payment of the principal of Debentures which have
become due solely by such acceleration, have been cured
or waived as provided in Section 513.
No such rescission shall affect any subsequent default or
impair any right consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any
instalment of interest on any Debenture when such
interest becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the
principal of (or premium, if any, on) any Debenture at
the Maturity thereof, except any Maturity occurring by
reason of a call for redemption,
the Company will, upon demand of the Trustee, pay to it, for
the benefit of the Holders of such Debentures, the whole
amount then due and payable on such Debentures for principal
(and premium, if any) and interest, with interest upon the
overdue principal (and premium, if any) and, to the extent
that payment of such interest shall be legally enforceable,
upon overdue instalments of interest, at the rate specified
in the Debentures; and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses
of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its
agents and counsel.
If the Company fails to pay such amount forthwith upon
such demand, the Trustee, in its own name and as trustee of
an express trust, may institute a judicial proceeding for the
collection of the sums so due and unpaid, and may prosecute
such proceeding to judgment or final decree, and may enforce
the same against the Company or any other obligor upon the
Debentures and collect the moneys adjudged or decreed to be
payable in the manner provided by law out of the property of
the Company or any other obligor upon the Debentures,
wherever situated.
If an Event of Default occurs and is continuing, the
Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Debentureholders by such
appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or
agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement,
adjustment, composition or other judicial proceeding relative
to the Company or any other obligor upon the Debentures or
the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal
of the Debentures shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand on the Company
for the payment of overdue principal or interest) shall be
entitled and empowered, by intervention in such proceeding or
otherwise,
(1) to file and prove a claim for the whole amount
of principal (and premium, if any) and interest owing
and unpaid in respect of the Debentures and to file such
other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its
agents and counsel) and of the Debentureholders allowed
in such judicial proceeding, and
(2) to collect and receive any moneys or other
property payable or deliverable on any such claims and
to distribute the same;
and any receiver, assignee, trustee, liquidator, sequestrator
(or other similar official) in any such judicial proceeding
is hereby authorized by each Debentureholder to make such
payments to the Trustee, and in the event that the Trustee
shall consent to the making of such payments directly to the
Debentureholders, to pay to the Trustee any amount due to it
for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on
behalf of any Debentureholder any plan or reorganization,
arrangement, adjustment or composition affecting the
Debentures or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any
Debentureholder in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without
Possession of Debentures.
All rights of action and claims under this Indenture or
the Debentures may be prosecuted and enforced by the Trustee
without the possession of any of the Debentures or the
production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and
any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel, be for the ratable benefit of the Holders of the
Debentures in respect of which such judgment has been
recovered.
SECTION 506. Application of Money Collected.
Subject to the provisions of Article 1200, any money
collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by
the Trustee and, in case of the distribution of such money on
account of principal (or premium, if any) or interest, upon
presentation of the Debentures and the notation thereon of
the payment if only partially paid and upon surrender thereof
if fully paid:
FIRST: To the payment of all amounts due the
Trustee under Section 607;
SECOND: To the payment of the amounts then due and
unpaid upon the Debentures for principal (and premium,
if any) and interest, in respect of which or for the
benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to
the amounts due and payable on such Debentures for
principal (and premium, if any) and interest,
respectively.
SECTION 507. Limitation on Suits.
No Holder of any Debentures shall have any right to
institute any proceeding, judicial or otherwise, with respect
to this Indenture, or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written
notice to the Trustee of a continuing Event of Default;
(2) the Holders of not less than 25% in principal
amount of the Outstanding Debentures shall have made
written request to the Trustee to institute proceedings
in respect of such Event of Default in its own name as
Trustee hereunder;
(3) such Holder or Holders have offered to the
Trustee reasonable indemnity against the costs
(including reasonable counsel fees), expenses and
liabilities to be incurred in compliance with such
request;
(4) the Trustee for 60 days after its receipt of
such notice, request and offer of indemnity has failed
to institute any such proceeding; and
(5) no direction inconsistent with such written
request has been given to the Trustee during such 60 day
period by the Holders of a majority in principal amount
of the Outstanding Debentures;
it being understood and intended that no one or more Holders
of Debentures shall have any rights in any manner whatever by
virtue of, or by availing of, any provision of this Indenture
to affect, disturb or prejudice the rights of any other
Holders of Debentures, or to obtain or to seek to obtain
priority or preference over any other Holders or to enforce
any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the
Holders of Debentures.
SECTION 508. Unconditional Right of Debentureholders to
Receive Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture,
the Holder of any Debenture shall have the right which is
absolute and unconditional to receive payment of the
principal of (and premium, if any) and (subject to Section
307) interest on such Debenture on the respective Stated
Maturities expressed in such Debenture (or, in the case of
redemption, on the Redemption Date) and to institute suit for
the enforcement of any such rights, and such rights shall not
be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Debentureholder has instituted any
proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to
the Trustee or to such Debentureholder, then and in every
such case the Company, the Trustee an the Debentureholders
shall, subject to any determination in such proceeding, be
restored severally and respectively to their former positions
hereunder, and thereafter all rights and remedies of the
Trustee an the Debentureholders shall continue as though no
such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
No right or remedy herein conferred upon or reserved to
the Trustee or to the Debentureholders is intended to be
exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative
and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate
right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of
any Debenture to exercise any right or remedy accruing upon
any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Debentureholders
may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Debentureholders,
as the case may be.
SECTION 512. Control by Debentureholders.
The Holders of a majority in principal amount of the
Outstanding Debentures shall have the right to direct the
time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or
power conferred on the Trustee, provided that
(1) such direction shall not be in conflict with
any rule of law or with this Indenture, and
(2) subject to the provisions of Section 601, 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 may involve the Trustee in personal
liability, or if the Trustee in good faith shall
determine that the action so directed would be unjustly
prejudicial to the Holders of the Debentures not taking
part in such direction; and provided, further, that
nothing in this Indenture contained shall impair the
right of the Trustee in its discretion to take any
action deemed proper by the Trustee which is not
inconsistent with such direction by the Holders of
Debentures.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than 66 2/3% in principal amount
of the Outstanding Debentures may on behalf of the Holders of
all the Debentures waive any past default hereunder and its
consequences, except a default
(1) in the payment of the principal of (or
premium, if any) or interest on any Debenture, or
(2) in respect of a covenant or provision hereof
which under Article 900 cannot be modified or amended
without the consent of the Holder of each Outstanding
Debenture affected.
Upon any such waiver, such default shall cease to exist,
and any Event of Default arising therefrom shall be deemed to
have been cured, for every purpose of this Indenture; but no
such waiver shall extend to any subsequent or other default
or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of
any Debenture by his acceptance thereof shall be deemed to
have agreed, that any court may in its discretion require, in
any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any
action taken or omitted by it as Trustee, the filing by any
part litigant in such suit of an undertaking to pay the costs
of such suit, and that such court may in its discretion
assess reasonable costs, including reasonable attorneys'
fees, against any party litigant in such suit, having due
regard to the merits and good faith of the claims or defenses
made by such party litigant; but the provisions of this
Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Debentureholder, or
group of Debentureholders, holding in the aggregate more than
10% in principal amount of the Outstanding Debentures, or to
any suit instituted by any Debentureholder for the
enforcement of the payment of the principal of (or premium,
if any) or interest on any Debenture on or after the
respective Stated Maturities expressed in such Debenture (or,
in the case of redemption, on or after the Redemption Date).
SECTION 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, or
plead, or in any manner whatsoever claim or take the benefit
or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the
Company (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law,
and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as
though no such law had been enacted.
ARTICLE 600
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of
Default,
(1) the Trustee undertakes to perform such duties
and only such duties as are specifically set forth in
this Indenture, and no implied covenants or obligations
shall be read into this Indenture against the Trustee;
and
(2) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this
Indenture; but in the case of any such certificates or
opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this
Indenture.
(b) In case an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and
powers vested in it by this Indenture, and use the same
degree of care and skill in their exercise, as a prudent man
would exercise or use under the circumstances in the conduct
of his own affairs.
(c) No provision of this Indenture shall be construed
to relieve the Trustee from liability for its own negligent
action, its own negligent failure to act, or its own wilful
misconduct, except that
(1) this Subsection shall not be construed to
limit the effect of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error
of judgement made in good faith by a Responsible
Officer, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good
faith in accordance with the direction of the Holders of
a majority in principal amount of the Outstanding
Debentures relating to the time, method and place of
conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Indenture; and
(4) no provision of this Indenture shall require
the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any
of its duties hereunder, or in the exercise of any of
its rights or powers, if it 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.
SECTION 602. Notice of Defaults.
Within 90 days after the occurrence of any default
hereunder, the Trustee shall transmit by mail to all
Debentureholders, as their names and addresses appear in the
Debenture Register, notice of such default hereunder known to
the Trustee, unless such default shall have been cured or
waived; provided, however, that, except in the case of a
default in the payment of the principal of (or premium, if
any) or interest on any Debenture, the Trustee shall be
protected in withholding such notice if and so long as the
board of directors, the executive committee or a trust
committee of directors and/or Responsible Officers of the
Trustee in good faith determine that the withholding of such
notice is in the interests of the Debentureholders; and
provided, further, that in the case of any default of the
character specified in Section 501(3) no such notice to
Debentureholders shall be given until at least 30 days after
the occurrence thereof. For the purpose of this Section, the
term "default" means any event which is, or after notice or
lapse of time or both would become, an Event of Default.
SECTION 603. Certain Rights of Trustee.
Except as otherwise provided in Section 601:
(1) the Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture or other
paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(2) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request
or Company Order and any resolution of the Board of Directors
may be sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture
the Trustee shall deem it desirable that a matter be proved
or established prior to taking, suffering or omitting any
action hereunder, the Trustee (unless other evidence be
herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel and the
written advice of such counsel or any Opinion of Counsel
shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Indenture at the request or direction of any of the
Debentureholders pursuant to this Indenture, unless such
Debentureholders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with
such request or direction;
(6) 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 or other paper or document, but the Trustee, in its
discretion may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent
or attorney; and
(7) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or
by or through agents or attorneys and the Trustee shall not
be responsible for any misconduct or negligence on the part
of any agent or attorney appointed with due care by it
hereunder.
SECTION 604. Not Responsible for Recitals or Issuance
of Debentures.
The recitals contained herein and in the Debentures,
except the certificates of authentication, shall be taken as
the statements of the Company, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this
Indenture or of the Debentures. The Trustee shall not be
accountable for the use or application by the Company of
Debentures or the proceeds thereof.
SECTION 605. May Hold Debentures.
The Trustee, any Paying Agent, Debenture Registrar or
any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Debentures
and, subject to Sections 608 and 613, if operative, may
otherwise deal with the Company with the same rights it would
have if it were not Trustee, Paying Agent, Debenture
Registrar or such other agent.
SECTION 606. Money Held in Trust.
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.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time
reasonable compensation for all services rendered by it
hereunder (which compensation shall not be limited by
any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein,
to reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred
or made by the Trustee in accordance with any provision
of this Indenture including the reasonable compensation
and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or
advances as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Trustee for, and to hold it
harmless against, any loss, liability or expenses
incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or
administration of this trust, including the costs and
expenses of defending itself against any claim or
liability in connection with the exercise or performance
of any of its powers or duties hereunder.
As security for the performance of the obligations of
the Company under this Section the Trustee shall have a lien
prior to the Debentures upon all property and funds held or
collected by the Trustee as such, except funds held in trust
for the payment of principal of (and premium, if any) or
interest on Debentures.
SECTION 608. Disqualification; Conflicting Interests.
(a) If the Trustee has or shall acquire any conflicting
interest, as defined in this Section, it shall, within 90
days after ascertaining that it has such conflicting
interest, either eliminate such conflicting interest or
resign in the manner and with the effect hereinafter
specified in this Article.
(b) In the event that the Trustee shall fail to comply
with the provisions of Subsection (a) of this Section the
Trustee shall, within 10 days after the expiration of such
90-day period, transmit by mail to all Debentureholders, as
their names and addresses appear in the Debenture Register,
notice of such failure.
(c) For the purposes of this Section, the Trustee shall
be deemed to have a conflicting interest if
(1) the Trustee is trustee under another indenture
under which any other securities, or certificates of
interest or participation in any other securities, of
the Company are outstanding, unless such other indenture
is a collateral trust indenture under which the only
collateral consists of Debentures issued under this
Indenture, provided that there shall be excluded from
the operation of this paragraph any indenture or
indentures under which other securities, or certificates
of interest or participation in other securities, of the
Company are outstanding, if
(i) this Indenture and such other indenture
or indentures are wholly unsecured and such other
indenture or indentures are hereafter qualified
under TIA, as then in force, unless the Commission
shall have found and declared by order pursuant to
Section 305(b) or Section 307(c) of TIA that
differences exist between the provisions of this
Indenture and the provisions of such other
indenture or indentures which are so likely to
involve a material conflict of interest as to make
it necessary in the public interest or for the
protection of investors to disqualify the Trustee
from acting as such under this Indenture and such
other indenture or indentures, or
(ii) the Company shall have sustained the
burden of proving, on application to the Commission
and after opportunity for hearing thereon, that
trusteeship under this Indenture and such other
indenture or indentures is not so likely to involve
a material conflict of interest as to make it
necessary in the public interest or for the
protection of investors to disqualify the Trustee
from acting as such under one of such indentures;
(2) the Trustee or any of its directors or
executive officers is an obligor upon the Debentures or
an underwriter for the Company;
(3) the Trustee directly or indirectly controls or
is directly or indirectly controlled by or is under
direct or indirect common control with the Company or an
underwriter for the Company;
(4) the Trustee or any of its directors or
executive officers is a director, officer, partner,
employee, appointee or representative of the Company, or
of an underwriter (other than the Trustee itself) for
the Company who is currently engaged in the business of
underwriting, except that (i) one individual may be a
director or an executive officer, or both, of the
Trustee and a director or an executive officer, or both,
of the Company but may not be at the same time an
executive officer of both the Trustee and the Company;
(ii) if and so long as the number of directors of the
Trustee in office is more than nine, one additional
individual may be a director or an executive officer, or
both, of the Trustee and a director of the Company; and
(iii) the Trustee may be designated by the Company or by
any underwriter for the Company to act in the capacity
of transfer agent, registrar, custodian, paying agent,
fiscal agent, escrow agent, or depositary, or in any
other similar capacity, or, subject to the provisions of
paragraph (1) of this Subsection, to act as trustee,
whether under an indenture or otherwise;
(5) 10% or more of the voting securities of the
Trustee is beneficially owned either by the Company or
by any director, partner, or executive officer thereof,
or 20% or more of such voting securities is beneficially
owned, collectively, by any two or more of such persons;
or 10% or more of the voting securities of the Trustee
is beneficially owned either by an underwriter for the
Company or by any director, partner or executive officer
thereof, or is beneficially owned, collectively, by any
two or more such persons;
(6) the Trustee is the beneficial owner of, or
holds as collateral security for an obligation which is
in default (as hereinafter in this Subsection defined),
(i) 5% or more of the voting securities, or 10% or more
of any other class of security of the Company not
including the Debentures issued under this Indenture and
securities issued under any other indenture under
which the Trustee is also trustee, or (ii) 10% or more
of any class of security of an underwriter for the
Company;
(7) the Trustee is the beneficial owner of, or
holds as collateral security for an obligation which is
in default (as hereinafter in this Subsection defined),
5% or more of the voting securities of any person who,
to the knowledge of the Trustee, owns 10% or more of the
voting securities of, or controls directly or indirectly
or is under direct or indirect common control with, the
Company;
(8) the Trustee is the beneficial owner of, or
holds as collateral security for an obligation which is
in default (as hereinafter in this Subsection defined),
10% or more of any class of security of any person who,
to the knowledge of the Trustee, owns 50% or more of the
voting securities of the Company; or
(9) the Trustee owns, on May 15 in any calendar
year, in the capacity of executor, administrator,
testamentary or inter vivos trustee, guardian, committee
or conservator, or in any other similar capacity, an
aggregate of 25% or more of the voting securities, or of
any class of security, of any person, the beneficial
ownership of a specified percentage of which would have
constituted a conflicting interest under paragraphs (6),
(7) or (8) of this Subsection. As to any such
securities of which the Trustee acquired ownership
through becoming executor, administrator, or
testamentary trustee of an estate which included them,
the provisions of the preceding sentence shall not
apply, for a period of two years from the date of such
acquisition, to the extent that such securities included
in such estate do not exceed 25% of such voting
securities or 25% of any such class of security.
Promptly after May 15 in each calendar year, the Trustee
shall make a check of its holdings of such securities in
any of the above-mentioned capacities as of such May 15.
If the Company fails to make payment in full of the
principal of, or the premium , if any, or interest on,
any of the Debentures when and as the same becomes due
and payable, and such failure continues for 30 days
thereafter, the Trustee shall make a prompt check of its
holdings of such securities in any of the
above-mentioned capacities as of the date of the
expiration os such 30 day period, and after such date,
notwithstanding the foregoing provisions of this
paragraph, all such securities so held by the Trustee,
with sole or joint control over such securities vested
in it, shall, but only so long as such failure shall
continue, be considered as though beneficially owned by
the Trustee for the purposes of paragraphs (6), (7) and
(8) of this Subsection.
The specification of percentages in paragraphs (5) to
(9) inclusive, of this Subsection, shall not be construed as
indicating that the ownership of such percentages of the
securities of a person is or is not necessary or sufficient
to constitute direct or indirect control for the purposes of
paragraph (3) or (7) of this Subsection.
For the purposes of paragraphs (6), (7), (8) and (9) of
this Subsection only, (i) the terms "security" and
"securities" shall include only such securities as are
generally known as corporate securities, but shall not
include any note or other evidence of indebtedness issued to
evidence an obligation to repay monies lent to a person by
one or more banks, trust companies or banking firms, or any
certificate of interest or participation in any such note or
evidence of indebtedness; (ii) an obligation shall be deemed
to be "in default" when a default in payment of principal
shall have continued for 30 days or more and shall not have
been cured; and (iii) the Trustee shall not be deemed to be
the owner or holder of (A) any security which it holds as
collateral security, as trustee or otherwise, for an
obligation which is not in default as defined in clause (ii)
above, or (B) any security which it holds as collateral
security under this Indenture, irrespective of any default
hereunder, or (C) any security which it holds as agent for
collection, or as custodian, escrow agent, or depositary, or
in any similar representative capacity.
(d) For the purposes of this Section:
(1) The term "underwriter" when used with
reference to the Company means every person who, within
three years prior to the time as of which the
determination is made, has purchased from the Company
with a view to, or has offered or sold for the Company
in connection with, the distribution of any security of
the Company outstanding at such time, or has
participated or has had a direct or indirect
participation in any such undertaking, or has
participated or has had a participation in the direct or
indirect underwriting of any such undertaking, but such
term shall not include a person whose interest was
limited to a commission from an underwriter or dealer
not in excess of the usual and customary distributors'
or sellers' commission.
(2) The term "director" means any director of a
corporation, or any individual performing similar
functions with respect to any organization whether
incorporated or unincorporated.
(3) The term "person" means an individual, a
corporation, a partnership, an association, a
joint-stock company, a trust, an unincorporated
organization, or a government or political subdivision
thereof. As used in this paragraph, the term "trust"
shall include only a trust where the interest or
interests of the beneficiary or beneficiaries are
evidenced by a security.
(4) The term "voting security" means any security
presently entitling the owner or holder thereof to vote
in the direction or management of the affairs of a
person, or any security issued under or pursuant to any
trust, agreement or arrangement whereby a trustee or
trustees or agent or agents for the owner or holder of
such security are presently entitled to vote in the
direction or management of the affairs of a person.
(5) The term "Company" means any obligor upon the
Debentures.
(6) The term "executive officer" means the
president, every vice president, every trust officer,
the cashier, the secretary, and the treasurer of a
corporation, and any individual customarily performing
similar functions with respect to any organization
whether incorporated or unincorporated, but shall not
include the chairman of the board of directors.
(e) The percentages of voting securities and other
securities specified in this Section shall be calculated in
accordance with the following provisions:
(1) A specified percentage of the voting
securities of the Trustee, the Company or any other
person referred to in this Section (each of whom is
referred to as a "person" in this paragraph) means such
amount of the outstanding voting securities of such
person as entitles the holder or holders thereof to cast
such specified percentage of the aggregate votes which
the holders of all the outstanding voting securities of
such person are entitled to cast in the direction or
management of the affairs of such person.
(2) A specified percentage of a class of
securities of a person means such percentage of the
aggregate amount of securities of the class outstanding.
(3) The term "amount", when used in regard to
securities, means the principal amount if relating to
evidences of indebtedness, the number of shares if
relating to capital shares, and the number of units if
relating to any other kind of security.
(4) The term "outstanding" means issued and not
held by or for the account of the issuer. The following
securities shall not be deemed outstanding within the
meaning of this definition:
(i) securities of an issuer held in a sinking
fund relating to securities of the issuer of the
same class;
(ii) securities of an issuer held in a
sinking fund relating to another class of
securities of the issuer, if the obligation
evidenced by such other class of securities is not
in default as to principal or interest or
otherwise;
(iii) securities pledged by the issuer
thereof as security for an obligation of the issuer
not in default as to principal or interest or
otherwise; and
(iv) securities held in escrow if placed in
escrow by the issuer thereof.
provided, however, that any voting securities of an
issuer shall be deemed outstanding if any person other
than the issuer is entitled to exercise the voting
rights thereof.
(5) A security shall be deemed to be of the same
class as another security if both securities confer upon
the holder or holders thereof substantially the same
rights and privileges; provided, however, that, in the
case of secured evidences of indebtedness, all of which
are issued under a single indenture, differences in the
interest rates or maturity dates of various series
thereof shall not be deemed sufficient to constitute
such series different classes and provided, further,
that, in the case of unsecured evidences of
indebtedness, differences in the interest rates or
maturity dates thereof shall not be deemed sufficient to
constitute them securities of different classes, whether
or not they are issued under a single indenture.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which
shall be a corporation organized and doing business under the
laws of the United States of America or of any State,
authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least
$5,000,000, 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 the aforesaid supervising or examining
authority, then for the purposes of this Section, the
combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. If at any
time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter
specified in this Article.
SECTION 610. Resignation and Removal; Appointment of
Successor.
(a) No resignation or removal of the Trustee and no
appointment of a succesor Trustee pursuant to this Article
shall become effective until the acceptance of appointment by
the successor Trustee under Section 611.
(b) the Trustee may resign at any time by giving
written notice thereof to the Company. If an instrument of
acceptance by a successor Trustee shall not have been
delivered to the Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of
the Holders of a majority in principal amount of the
Outstanding Debentures, delivered to the Trustee and to the
Company.
(d) If at any time:
(1) the Trustee, after this Indenture shall have
been qualified under TIA, shall fail to comply with
Section 608(a) after written request therefor by the
Company or by any Debentureholder who has been a bona
fide Holder of a Debenture for at least 6 months, or
(2) the Trustee shall cease to be eligible under
Section 609 and shall fail to resign after written
request therefor by the Company or by any such
Debentureholder, 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 a Board Resolution
may remove the Trustee, or (ii) subject to Section 514, any
Debentureholder who has been a bona fide Holder of a
Debenture for at least 6 months may, on behalf of himself and
all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the
office of Trustee for any cause, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee. If,
within 1 year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor
Trustee shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Debentures
delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment, become the successor Trustee
and supersede the successor Trustee appointed by the Company.
If no successor Trustee shall have been so appointed by the
Company or the Debentureholders and accepted appointment in
the manner hereinafter provided, any Debentureholder who has
been a bona fide Holder of a Debenture for at least 6 months
may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(f) The Company shall give notice of each resignation
and each removal of the Trustee and each appointment of a
successor Trustee by mailing written notice of such event by
first-class mail, postage prepaid, to the Holders of
Debentures as their names and addresses appear in the
Debenture Register. Each notice shall include the name of
the successor Trustee and the address of its principal
corporate trust office.
SECTION 611. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall
execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment,
and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the
retiring Trustee; but, on request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment
of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers
and trusts of the retiring Trustee, and shall duly assign,
transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder, subject
nevertheless to its lien, if any, provided for in Section
607. Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more full and
certainly vesting in and confirming to such successor Trustee
all such rights, powers and trusts.
No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall
be qualified and eligible under this Article, to the extent
operative.
SECTION 612. Merger, Conversion, Consolidation or
Succession to Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided such corporation
shall be otherwise qualified and eligible under this Article,
to the extent operative, without the execution or filing of
any paper or any further act on the part of any of the
parties hereto. In case any Debentures shall have been
authenticated, but not delivered, by the Trustee then in
office, any successor by merger, conversion or consolidation
to such authenticating Trustee may adopt such authentication
and deliver the Debentures so authenticated with the same
effect as if such successor Trustee had itself authenticated
such Debentures.
SECTION 613. Preferential Collection of Claims against
Company.
(a) Subject to Subsection (b) of this Section, if the
Trustee shall be or shall become a creditor, directly or
indirectly, secured or unsecured, of the Company within 4
months prior to a default, as defined in Subsection (c) of
this Section, or subsequent to such a default, then, unless
and until such default shall be cured, the Trustee shall set
apart, and hold in a special account for the benefit of the
Trustee individually, the Holders of the Debentures and the
holders of other indenture securities (as defined in
Subsection (c) of the Section):
(1) an amount equal to any and all reductions in
the amount due and owing upon any claim as such creditor
in respect of principal or interest, effected after the
beginning of such 4 months period and valid as against
the Company and its other creditors, except any such
reduction resulting from the receipt or disposition of
any property described in paragraph (2) of this
Subsection, or from the exercise of any right of set-off
which the Trustee could have exercised if a petition in
bankruptcy had been filed by or against the Company upon
the date of such default; and
(2) all property received by the Trustee in
respect of any claim as such creditor, either as
security therefor, or in satisfaction or composition
thereof, or otherwise, after the beginning of such 4
months period, or an amount equal to the proceeds of any
such property, if disposed of, subject, however, to the
rights, if any, of the Company and its other creditors
in such property or such proceeds.
Nothing herein contained, however, shall affect the right of
the Trustee
(A) to retain for its own account (i) payments
made on account of any such claim by any Person (other
than the Company) who is liable thereon, and (ii) the
proceeds of the bona fide sale of any such claim by the
Trustee to a third person, and (iii) distributions made
in cash, securities or other property in respect of
claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization
pursuant to the Federal Bankruptcy Act or applicable
State law;
(B) to realize, for its own account, upon any
property held by it as security for any such claim, if
such property was so held prior to the beginning of such
4 months period;
(C) to realize, for its own account, but only to
the extent of the claim hereinafter mentioned, upon any
property held by it as security for any such claim, if
such claim was created after the beginning of such 4
months period and such property was received as security
therefor simultaneously with the creation thereof, and
if the Trustee shall sustain the burden of proving that
at the time such property was so received the Trustee
had no reasonable cause to believe that a default as
defined in Subsection (c) of this Section would occur
within 4 months; or
(D) to receive payment on any claim referred to in
paragraph (B) or (C), against the release of any
property held as security for such claims as provided in
paragraph (B) or (C), as the case may be, to the extent
of the fair value of such property.
For the purposes of paragraphs (B), (C) and (D),
property substituted after the beginning of such 4 months
period for property held as security at the time of such
substitution shall, to the extent of the fair value of the
property released, have the same status as the property
released, and, to the extent that any claim referred to in
any of such paragraphs is created in renewal of or in
substitution for or for the purpose of repaying or refunding
any pre-existing claim of the Trustee as such creditor, such
claim shall have the same status as such pre-existing claim.
If the Trustee hall be required to account, the funds
and property held in such special account and the proceeds
thereof shall be apportioned between the Trustee, the
Debentureholders and the holders of other indenture
securities in such manner that the Trustee, the
Debentureholders and the holders of other indenture
securities realize, as a result of payments from such special
account and payments of dividends on claims filed against the
Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal Bankruptcy Act or
applicable State law, the same percentage of their respective
claims, figured before crediting to the claim of the Trustee
anything on account of the receipt by it from the Company of
the funds and property in such special account and before
crediting to the respective claims of the Trustee and the
Debentureholders and the holders of other indenture
securities dividends on claims filed against the Company in
bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal Bankruptcy Act or
applicable State law, but after crediting thereon receipts on
account of the indebtedness represented by their respective
claims from all sources other than from such dividends and
from the funds and property so held in such special account.
As used in this paragraph, with respect to any claim, the
term "dividends" shall include any distribution with respect
to such claim, in bankruptcy or receivership or proceedings
for reorganization pursuant to the Federal Bankruptcy Act or
applicable State law, whether such distribution is made in
cash, securities, or other property, but shall not include
any such distribution with respect to the secure portion, if
any, of such claim. The court in which such bankruptcy,
receivership or proceedings for reorganization is pending
shall have jurisdiction (i) to apportion between the Trustee
and the Debentureholders and the holders of other indenture
securities, in accordance with the provisions of this
paragraph, the funds and property held in such special
account and proceeds thereof, or (ii) in lieu of such
apportionment, in whole or in part, to give to the provisions
of this paragraph due consideration in determining the
fairness of the distributions to be made to the Trustee and
the Debentureholders and the holders of other indenture
securities with respect to their respective claims, in which
event it shall not be necessary to liquidate or to appraise
the value of any securities or other property held in such
special account or as security for any such claim, or to make
a specific allocation of such distributions as between the
secured and unsecured portions of such claims, or otherwise
to apply the provisions of this paragraph as a mathematical
formula.
Any Trustee which has resigned or been removed after the
beginning of such 4 months period shall be subject to the
provisions of this Subsection as though such resignation or
removal had not occurred. If any Trustee has resigned or
been removed prior to the beginning of such 4 months period,
it shall be subject to the provisions of this Subsection if
and only if the following conditions exist:
(i) the receipt of property or reduction of claim,
which would have given rise to the obligation to
account, if such Trustee had continued as Trustee,
occurred after the beginning of such 4 months period;
and
(ii) such receipt of property or reduction of
claim occurred with 4 months after such resignation or
removal.
(b) There shall be excluded from the operation of
Subsection (a) of this Section a creditor relationship
arising from
(1) the ownership or acquisition of securities
issued under any indenture, or any security or
securities having a maturity of one year or more at the
time of acquisition by the Trustee;
(2) advances authorized by a receivership or
bankruptcy court of competent jurisdiction, or by this
Indenture, for the purpose of preserving any property
which shall at any time be subject to the lien of this
Indenture or of discharging tax liens or other prior
liens or encumbrances thereon, if notice of such
advances and of the circumstances surrounding the making
thereof is given to the Debenture holders at the time
and in the manner provided in this Indenture;
(3) disbursements made in the ordinary course of
business in the capacity of trustee under an indenture,
transfer agent, registrar, custodian, paying agent,
fiscal agent or depositary, or other similar capacity;
(4) an indebtedness created as a result of
services rendered or premises rented; or an indebtedness
created as a result of goods or securities sold in a
cash transaction as defined in Subsection (c) of this
Section;
(5) the ownership of stock or of other securities
of a corporation organized under the provisions of
Section 25(a) of the Federal Reserve Act, as amended,
which is directly or indirectly a creditor of the
Company; or
(6) the acquisition, ownership, acceptance or
negotiation of any drafts, bills of exchange,
acceptances or obligations which fall within the
classification of self-liquidating paper as defined in
Subsection (c) of this Section.
(c) For the purposes of this Section only:
(1) The term "default" means any failure to make
payment in full of the principal or of interest on any
of the Debentures or upon the other indenture securities
when and as such principal or interest becomes due and
payable.
(2) The term "other indenture securities" means
securities upon which the Company is an obligor
outstanding under any other indenture (i) under which
the Trustee is also trustee, (ii) which contains
provisions substantially similar to the provisions of
this Section, and (iii) under which a default exists at
the time of the apportionment of the funds and property
held in such special account.
(3) The term "cash transaction" means any
transaction in which full payment for goods or
securities sold is made within 7 days after delivery of
the goods or securities in currency or in checks or
other orders drawn upon banks or bankers and payable
upon demand.
(4) The term "self-liquidating paper" means any
draft, bill of exchange, acceptance or obligation which
is made, drawn, negotiated or incurred by the Company
for the purpose of financing the purchase, processing,
manufacturing, shipment, storage or sale of goods, wares
or merchandise and which is secured by documents
evidencing title to, possession of, or a lien upon, the
goods, wares or merchandise or the receivables or
proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security,
provided the security is received by the Trustee
simultaneously with the creation of the creditor
relationship with the Company arising from the making,
drawing, negotiating or incurring of the draft, bill
of exchange, acceptance or obligation.
(5) The term "Company" means any obligor upon the
Debentures.
SECTION 614. Appointment of Authenticating Agent.
At any time when any of the Debentures remain
Outstanding, the Trustee will appoint an Authenticating Agent
in the Borough of Manhattan, The City of New York, which
shall be authorized to act on behalf of the Trustee to
authenticate Debentures issued upon exchange, transfer or
partial redemption thereof or pursuant to Section 306, and
Debentures 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.
Wherever reference is made in this Indenture to the
authentication and delivery of Debentures by the Trustee or
the Trustee's certificate of authentication, such reference
shall be deemed to include authentication and delivery on
behalf of the Trustee by an Authenticating Agent and a
certificate of authentication executed on behalf of the
Trustee by an Authenticating Agent. Each Authenticating
Agent shall be acceptable to the Company and shall at all
times be a corporation organized and doing business under the
laws of the United States of America or of any State,
authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus of not less than
$1,500,000 and subject to supervision or examination by
Federal or State authorities. If such corporation publishes
reports of condition at least annually, pursuant to law or to
the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section 614, the
combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. In case at
any time an Authenticating Agent shall cease to be eligible
in accordance with the provisions of this Section 614, such
Authenticating Agent shall resign immediately in the manner
and with the effect specified in this Section 614.
The Trustee hereby initially appoints The Chase
Manhattan Bank (National Association) as its Authenticating
Agent in the Borough of Manhattan, The City of New York.
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 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 at any time resign by giving
written notice of resignation to the Trustee and to the
Company. The Trustee may at any time terminate the agency of
an Authenticating Agent by giving written notice of
termination to such authenticating Agent an 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 614, the Trustee promptly shall appoint a
successor Authenticating Agent which shall be acceptable to
the Company and shall mail notice of such appointment to all
Holders, as their names and addresses appear on the Debenture
Register. 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
herein. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section 614.
The Trustee agrees to pay to each Authenticating Agent
from time to time reasonable compensation for its services
under this Section 614, and the Trustee shall be entitled to
be reimbursed for such payments, subject to the provisions of
Section 607.
ARTICLE 700
DEBENTUREHOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and
Addresses of Debentureholders.
The Company will furnish or cause to be furnished to the
Trustee
(a) semi-annually, not more than 15 days after
each Regular Record Date, a list, in such form as the
Trustee may reasonably require, of the names and
addresses of the Holders of Debentures as of such
Regular Record Date, and
(b) at such other times as the Trustee may request
in writing, within 30 days after the receipt by the
Company of any such request, a list of similar form and
content as of a date not more than 15 days prior to the
time such list is furnished.
provided, however, so long as the Trustee is the Debenture
Registrar, no such list need be furnished.
SECTION 702. Preservation of Information;
Communications to Debentureholders.
(a) The Trustee shall preserve, in as current a form as
is reasonably practicable, the names and addresses of Holders
of Debentures contained in the most recent list furnished to
the Trustee as provided in Section 701 and the names and
addresses of Holders of Debentures received by the Trustee in
its capacity as Debenture Registrar. The Trustee may destroy
any list furnished to it as provided in Section 701 upon
receipt of a new list so furnished.
(b) If 3 or more Holders of Debentures (hereinafter
referred to as "applicants") apply in writing to the Trustee,
and furnish to the Trustee reasonable proof that each such
applicant has owned a Debenture for a period of at least six
months preceding the date of such application, and such
application states that the applicants desire to communicate
with other Holders of Debentures with respect to their rights
under this Indenture or under the Debentures and is
accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then
the Trustee shall, within five business days after the
receipt of such application, at its election, either
(1) afford such applicants access to the
information preserved at the time by the Trustee in
accordance with Section 702(a), or
(2) inform such applicants as to the approximate
number of Holders of Debentures whose names and
addresses appear in the information preserved at the
time by the Trustee in accordance with Section 702(a),
and as to the approximate cost of mailing to such
Debentureholders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants
access to such information, the Trustee shall, upon the
written request of such applicants, mail to each
Debentureholder whose name and address appear in the
information preserved at the time by the Trustee in
accordance with Section 702(a), a copy of the form of proxy
or other communication which is specified in such request,
with reasonable promptness after a tender to the Trustee of
the material to be mailed and of payment, or provision for
the payment, of the reasonable expenses of mailing, unless
within five days after such tender, the Trustee shall mail to
such applicants and file with the Commission, together with a
copy of the material to be mailed, a written statement to the
effect that, in the opinion of the Trustee, such mailing
would be contrary to the best interests of the Holders of
Debentures or would be in violation of applicable law. Such
written statement shall specify the basis of such opinion.
If the Commission, after opportunity for a hearing upon the
objections specified in the written statement so filed, shall
enter an order refusing to sustain any of such objections or
if, after the entry of an order sustaining one or more of
such objections, the Commission shall find, after notice and
opportunity for hearing, that all the objections so sustained
have been met and shall enter an order so declaring, the
Trustee shall mail copies of such material to all such
Debentureholders with reasonable promptness after the entry
of such order and the renewal of such tender; otherwise the
Trustee shall be relieved of any obligation or duty to such
applicants respecting their application.
(c) Every Holder of debentures, by receiving and
holding the same, agrees with the Company and the Trustee
that neither the Company nor the Trustee shall be held
accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders of
Debentures in accordance with Section 702(b), regardless of
the source from which such information was derived, and that
the Trustee shall not be held accountable by reason of
mailing any material pursuant to a request made under Section
702(b).
SECTION 703. Reports by Trustee.
(a) The term "reporting date", as used in this Section,
means June 30 in each year commencing with June 30, 1975.
Within 60 days after the reporting date in each year, the
Trustee shall transmit by mail to all Debentureholders, as
their names and addresses appear in the Debenture Register, a
brief report dated as of such reporting date with respect to:
(1) its eligibility under Section 609 and its
qualifications under Section 608, or in lieu thereof, if
to the best of its knowledge it has continued to be
eligible and qualified under said Sections, a written
statement to such effect;
(2) the character and amount of any advances (and
if the Trustee elects so to state, the circumstances
surrounding the making thereof) made by the Trustee (as
such) which remain unpaid on the date of such report,
and for the reimbursement of which it claims or may
claim a lien or charge, prior to that of the Debentures,
on any property or funds held or collected by it as
Trustee, except that the Trustee shall not be required
(but may elect) to report such advances if such advances
so remaining unpaid aggregate not more than - of 1% of
the principal amount of the Debentures Outstanding on
the date of such report;
(3) the amount, interest rate and maturity date of
all other indebtedness owing by the Company (or by any
other obligor on the Debentures) to the Trustee in its
individual capacity, on the date of such report, with a
brief description of any property held as collateral
security therefor, except an indebtedness based upon a
creditor relationship arising in any manner described in
Section 613(b)(2), (3), (4) or (6);
(4) the property and funds, if any, physically
in the possession of the Trustee as such on the date of
such report;
(5) any additional issue of Debentures which the
Trustee has not previously reported; and
(6) any action taken by the Trustee in the
performance of its duties hereunder which it has
not previously reported and which in its opinion
materially affects the Debentures, except action in
respect of a default, notice of which has been or is to
be withheld by the Trustee in accordance with Section
602.
(b) The Trustee shall transmit by mail to all
Debentureholders, as their names and addresses appear in the
Debenture Register, a brief report with respect to the
character and amount of any advances (and if the Trustee
elects so to state, the circumstances surrounding he making
hereof) made by the Trustee (as such) since the date of the
last report transmitted pursuant to Subsection (a) of this
Section (or if no such report has yet been so transmitted,
since the date of execution of this instrument) for the
reimbursement of which it claims or may claim a lien or
charge, prior to that of the Debentures, on property or funds
held or collected by it as Trustee, and which it has not
previously reported pursuant to this Subsection, except that
the Trustee shall not be required (but may elect) to report
such advances if such advances remaining unpaid at any time
aggregate 10% or less of the principal amount of the
Debentures Outstanding at such time, such report to be
transmitted within 90 days after such time.
(c) A copy of each such report shall, at the time of
such transmission to Debentureholders, to be filed by the
Trustee with each stock exchange upon which the Debentures
are listed, and also with the Commission. The Company will
notify the Trustee when the Debentures are listed on any
stock exchange.
SECTION 704. Reports by Company
The Company will
(1) file with the Trustee, within 15 days after
the Company is required to file the same with the
Commission, copies of the annual reports and of the
information, documents and other reports (or copies of
such portions of any of the foregoing as the Commission
may from time to time by rules and regulations
prescribe) which the Company may be required to file
with the Commission pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934; or, if the
Company is not required to file information, documents
or reports pursuant to either of said Sections, then it
will file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from
time to time by the Commission, such of the
supplementary and periodic information, documents and
reports which may be required pursuant to Section 13 of
the Securities Exchange Act of 1934 in respect to a
security listed and registered on a National Securities
Exchange as may be prescribed from time to time in such
rules and regulations;
(2) file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from
time to time by the Commission, such additional
information, documents and reports with respect to
compliance by the Company with the conditions and
covenants of this Indenture as may be required from time
to time by such rules and regulations; and
(3) transmit by mail to all Debentureholders, as
their names and addresses appear in the Debenture
Register, within 30 days after the filing thereof with
the Trustee, such summaries of any information,
documents and reports required to be filed by the
Company pursuant to paragraphs (1) and (2) of this
Section as may be required by rules and regulations
prescribed from time to time by the Commission.
ARTICLE 800
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, etc., only on
Certain Terms.
The Company shall not consolidate with or merge into any
other corporation or convey or transfer its properties and
assets substantially as an entirety to any Person, unless;
(1) the corporation formed by such consolidation
or into which the Company is merged or the Person which
acquires by conveyance or transfer the properties and
assets of the Company substantially as an entirety shall
be a corporation organized and existing under the laws
of the United States of America or any state or the
District of Columbia, and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to
the Trustee, in form satisfactory to the Trustee, the
due and punctual payment of the principal of (and
premium, if any) and interest on all the Debentures and
the performance of every covenant of this Indenture on
the part of the Company to be performed or observed;
(2) immediately after giving effect to such
transaction, no Event of Default, and no event which,
after notice or lapse of time, or both, would become an
Event of Default, shall have happened and be continuing;
and
(3) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel each
stating that such consolidation, merger, conveyance or
transfer and such supplemental indenture comply with
this Article and that all conditions precedent herein
provided for relating to such transaction have been
complied with.
SECTION 802. Successor Corporation Substituted.
Upon any consolidation or merger, or any conveyance or
transfer of the properties and assets of the Company
substantially as an entirety in accordance with Section 801,
the successor corporation formed by such consolidation or
into which the Company is merged or to which such conveyance
or transfer is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor
corporation had been named as the Company herein; provided,
however, that no such conveyance or transfer shall have the
effect of releasing the Person named as the "Company" in the
first paragraph of this instrument or any successor
corporation which shall theretofore have become such in the
manner prescribed in this Article from its liability as
obligor and maker on any of the Debentures.
SECTION 803. Limitation on Lease of Properties as
Entirety.
The Company shall not lease its properties and assets
substantially as an entirety to any Person.
ARTICLE 900
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of
Debentureholders.
Without the consent of the Holders of any Debentures,
the Company, when authorized by a Board Resolution, and the
Trustee, at any time, and from time to time, may enter into
one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following
purposes;
(1) to evidence the succession of another
corporation to the Company, and the assumption by any
such successor of the covenants of the Company herein
and in the Debentures contained; or
(2) to add to the covenants of the Company, for
the benefit of the Holders of the Debentures, or to
surrender any right or power herein conferred upon the
Company; or
(3) to cure any ambiguity, to correct or
supplement any provision herein which may be
inconsistent with any other provision herein, or to make
any other provisions with respect to matters or
questions arising under this Indenture which shall not
be inconsistent with the provisions of this Indenture,
provided such action shall not adversely affect the
interest of the Holders of the Debentures; or
(4) to modify, eliminate or add to the provisions
of this Indenture to such extent as shall be necessary
to effect the qualification of this Indenture under TIA,
as then in force, or under any similar federal statute
hereafter enacted, and to add to this Indenture such
other provisions as may be expressly permitted by TIA,
excluding however, the provisions referred to in Section
316(a)(2) of TIA or any corresponding provision in any
similar federal statute hereafter enacted.
SECTION 902. Supplemental Indentures With Consent of
Debentureholders.
With the consent of the Holders of not less than 66 2/3%
in principal amount of the Outstanding Debentures, by Act of
said Holders delivered to the Company and the Trustee, the
Company, when authorized by a Board Resolution, and the
Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions
to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner
the rights of the Holders of the Debentures under this
Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the Holder of each
Outstanding Debenture affected thereby,
(1) change the Stated Maturity of the Principal
of, or any instalment of interest on, any Debenture, or
reduce the principal amount thereof or the interest
thereon or any premium payable upon the redemption
thereof, or change any Place of Payment where, or the
coin or currency in which, any Debenture or the interest
thereon is payable, or impair the right to institute
suit for the enforcement of any such payment on or after
the State Maturity thereof (or, in the case of
redemption, on or after the Redemption Date), or
(2) reduce the percentage in principal amount of
the Outstanding Debentures, the consent of whose Holders
is required for any such supplemental indenture, or the
consent of whose Holders is required for any waiver (of
compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences)
provided for in this Indenture, or
(3) modify any of the provisions of this Section
or Section 513, 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 Debenture affected
thereby.
It shall not be necessary for any Act of
Debentureholders under this Section to approve the particular
form of any proposed supplemental indenture, but it shall be
sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created
by, any supplemental indenture permitted by this Article or
the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and
(subject to Section 601) shall be full protected in relying
upon, an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by
this Indenture. The Trustee may, but shall not (except to
the extent required in the case of a supplemental indenture
entered into under Section 901(4) be obligated to, enter into
any such supplemental indenture which affects the Trustee's
own rights, duties or immunities under this Indenture or
otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under
this Article, this Indenture shall be modified in accordance
therewith, and such supplemental indenture shall form a part
of this Indenture for all purposes; and every Holder of
Debentures theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this
Article shall conform to the requirements of TIA as then in
effect if this Indenture shall then be qualified under TIA.
SECTION 906. Reference in Debentures to Supplemental
Indentures.
Debentures authenticated and delivered after the
execution of any supplemental indenture pursuant to this
Article may, and shall if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company
shall so determine, new Debentures so modified as to conform,
in the opinion of the Trustee and the Board of Directors, to
any such supplemental indenture may be prepared and executed
by the Company and authenticated and delivered by the Trustee
in exchange for Outstanding Debentures.
SECTION 907. Officers' Certificate With Respect to
Supplemental Indentures.
The Trustee shall not be obliged to join in the
execution of any supplemental indenture unless it shall
receive an Officers' Certificate stating that no consent to
the execution thereof is required of any holder of any
Superior Debt outstanding at the time.
ARTICLE 1000
COVENANTS
SECTION 1001. Payment of Principal, Premium and
Interest.
The Company will duly and punctually pay the principal
of (and premium, if any) and interest on the Debentures in
accordance with the terms of the Debentures and this
Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain an office or agency in the
Borough of Manhattan, The City of New York, New York, where
Debentures may be presented or surrendered for payment, where
Debentures may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company
in respect of the Debentures and this Indenture may be
served. The Company initially appoints The Chase Manhattan
Bank (National Association) as agent for such purposes. The
Company will give prompt written notice to the Trustee of the
location, and of any change in the location, of such office
or agency. If at any time the Company shall fail to maintain
such office or agency or shall fail to furnish the Trustee
with the address thereof, such presentation, surrenders,
notices and demands may be made or served at the Corporate
Trust Office of the Trustee, and the Company hereby appoints
the Trustee its agent to receive all such presentations,
surrenders, notices and demands.
SECTION 1003. Money for Debenture Payments to be Held
in Trust.
If the Company shall at any time act as its own Paying
Agent, it will, on or before each due date of the principal
of (and premium, if any) or interest on any of the
Debentures, segregate and hold in trust for the benefit of
the Persons entitled thereto a sum sufficient to pay the
principal (and premium, if any) or interest so becoming due
until such sums shall be paid to such Persons or otherwise
disposed of as herein provided, and will promptly notify the
Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying
Agents, it will, prior to each due date of the principal of
(and premium, if any) or interest on, any Debentures, deposit
with a Paying Agent a sum sufficient to pay the principal
(and premium, if any) or interest so becoming due, such sum
to be held in trust for the benefit of the Persons entitled
to such principal, premium or interest, and (unless such
Paying Agent is the Trustee) the Company will promptly notify
the Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the
Trustee to execute and deliver to the Trustee an instrument
in which such Paying Agent shall agree with the Trustee,
subject to the provisions of this Section, that such Paying
Agent will
(1) hold all sums held by it for the payment of
principal of (and premium, if any) or interest on
Debentures in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the
Company (or any other obligor upon the Debentures) in
the making of any such payment of principal (and
premium, if any) or interest; and
(3) at any time during the continuance of any such
default, upon the written request of the Trustee,
forthwith pay to the Trustee all sums so held in trust
by such Paying Agent.
The Company may at any time, for the purpose of
obtaining the satisfaction and discharge of this Indenture or
for any other purpose, pay, or by Company Order direct any
Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums
were held by the Company or such Paying Agent; and, upon such
payment by any Paying Agent to the Trustee, such Paying Agent
shall be released from all further liability with respect to
such money.
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
Debenture and remaining unclaimed for 6 years after such
principal (and premium, if any) or interest has become due
and payable shall be paid to the Company on Company Request,
or (if then held by the Company) shall be discharged from
such trust; and the Holder of such Debenture shall
thereafter, as an unsecured general creditor, look only to
the Company for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof,
shall thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being require to make any such
repayment, may at the expense of the Company cause to be
published once, in an Authorized Newspaper in the Place of
Payment, notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than
30 days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the
Company.
SECTION 1004. Payment of Taxes and Other Claims.
The Company will, and will cause each Subsidiary to, pay
or discharge or cause to be paid or discharged, before the
same shall become delinquent; (1) all taxes, assessments and
governmental charges levied or imposed upon it or upon its
income, profits or property, and (2) all lawful claims for
labor, materials and supplies which, if unpaid, might by law
become a lien upon its property; provided, however, that
neither the Company nor any Subsidiary be required to pay or
discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or
validity is being contested in good faith by appropriate
proceedings.
SECTION 1005. Maintenance of Properties.
The Company will, and will cause each Subsidiary to,
cause all its properties used or useful in the conduct of its
business to be maintained and kept in good condition, repair
and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in
the judgment of the Company may be necessary so that the
business carried on in connection therewith may be properly
and advantageously conducted at all times; provided, however,
that nothing in this Section shall prevent the Company from
discontinuing the operation and maintenance of any of its
properties if such discontinuance is, in the judgment of the
Company, desirable in the conduct of its business and not
disadvantageous in any material respect to the
Debentureholders.
SECTION 1006. Statement as to Compliance.
The Company will deliver to the Trustee, within 120 days
after the end of each fiscal year commencing with the fiscal
year ending June 30, 1975, a written statement signed by the
Chairman of the Board or President or a Vice President and by
the Treasurer, an Assistant Treasurer, the Controller or an
Assistant Controller of the Company, stating, as to each
signer thereof, that
(1) a review of the activities of the Company
during such year and of performance under this Indenture
has been made under his supervision and
(2) to the best of his knowledge, based on such
review, the Company has fulfilled all its obligations
under this Indenture throughout such year, or, if there
has been a default in the fulfillment of any such
obligation, specifying each such default known to him
and the nature and status thereof.
SECTION 1007. Corporate Existence.
Subject to Article 800, the Company will, and will cause
each Subsidiary to, do or cause to be done all things
necessary to preserve and keep in full force and effect its
corporate existence, rights (charter and statutory) and
franchise; provided, however, that the Company shall not be
required to preserve any right or franchise if the Board of
Directors shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the
Company or such Subsidiary and that the loss thereof is not
disadvantageous in any material respect to the
Debentureholders.
SECTION 1008. Restrictions on Merger, Sale of Assets,
etc.
The Company will not sell or transfer its property as an
entirety or substantially as an entirety, or consolidate with
or merge into any other corporation, or permit any other
corporation to merge into it, in any manner which is
prohibited by Article 800.
ARTICLE 1100
REDEMPTION OF DEBENTURES
SECTION 1101. Right of Redemption.
The Company may, at its option, redeem all or any part
of the Debentures at any time on and after July 1, 1976 and
prior to Maturity by payment of the applicable percentages of
the principal amount thereof set forth in the form of
Debenture contained in Section 202 hereof, together with
accrued interest to the Redemption Date.
SECTION 1102. Election to Redeem; Notice to Trustee.
The determination of the Company to exercise its option
to redeem any Debentures shall be evidenced by a Board
Resolution. In case of any redemption at the option of the
Company of less than all of the Debentures, the Company
shall, at least 45 days prior to the Redemption Date fixed by
the Company (unless a shorter notice shall be satisfactory to
the Trustee), notify the Trustee of such Redemption Date and
of the principal amount of Debentures to be redeemed.
SECTION 1103. Selection by Trustee of Debentures to be
Redeemed.
If less than all the Debentures are to be redeemed, the
particular Debentures or portions thereof to be redeemed
shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding
Debentures not previously called for redemption, by such
method as the Trustee shall deem fair and appropriate and
which may provide for the selection for redemption of
portions of the principal of Debentures of a denomination
larger than $1,000. The portions of the principal of
Debentures so selected for partial redemption shall be equal
to $1,000 or an integral multiple thereof.
The Trustee shall promptly notify the Company in writing
of the Debentures selected for redemption and, in the case of
any Debenture selected for partial redemption, the principal
amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption
of Debentures shall relate, in the case of any Debenture
redeemed or to be redeemed only in part, to the portion of
the principal of such Debenture which has been or is to be
redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail,
postage prepaid, mailed not less than 30 nor more than 60
days prior to the Redemption Date, to each Holder of
Debentures to be redeemed, at his address appearing in the
Debenture Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Debentures are to
be redeemed, the identification (and, in the case of
partial redemption, the respective principal amounts) of
the Debentures to be redeemed.
(4) that on the Redemption Date the Redemption
Price will become due and payable upon each such
Debenture, together with interest accrued thereon to
such date, and that interest thereon shall cease to
accrue from and after said date, and
(5) the place where such Debentures are to be
surrendered for payment of the Redemption Price, which
shall be the office or agency of the Company in each
Place of Payment.
Notice of redemption of Debentures 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.
SECTION 1105. Deposit of Redemption Price.
Prior to any Redemption Date, 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 1003) an amount of money
sufficient to pay the Redemption Price of and accrued
interest, if any, on all the Debentures which are to be
redeemed on that date.
SECTION 1106. Debentures Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Debentures so to be redeemed shall, on the Redemption Date,
become due and payable at the Redemption Price therein
specified and on and after such date (unless the Company
shall default in the payment of the Redemption Price and
accrued interest, if any) such Debentures shall cease to bear
interest. Upon surrender of such Debentures for redemption
in accordance with said notice, such Debentures shall be paid
by the Company at the Redemption Price. Instalments of
interest whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders of such
Debentures registered as such on the relevant Record Dates
according to their terms and the provisions of Section 307.
SECTION 1107. Debentures Redeemed in Part.
Any Debenture which is to be redeemed only in part shall
be surrendered at a Place of Payment (with, if the Company or
the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company
and the Trustee duly executed by, the Holder thereof or his
attorney duly authorized in writing) and the Company shall
execute and the Trustee shall authenticate and deliver to the
Holder of such Debenture, without service charge, a new
Debenture or Debentures, 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 Debenture so surrendered.
ARTICLE 1200
SUBORDINATION OF DEBENTURES
SECTION 1201. Debentures Subordinate to Superior Debt.
The Company, for itself, its successors and assigns,
covenants and agrees, and each Holder of Debentures, by his
acceptance thereof, likewise covenants and agrees, that the
indebtedness evidenced by the Debentures, including the
principal thereof (and premium, if any) and interest thereon,
shall be subordinated and subject, to the extent and in the
manner herein set forth, in right of payment to the prior
payment in full of all Superior Debt. The provisions of this
Article are made for the benefit of all holders of Superior
Debt and any such holder may proceed to enforce such
provisions.
SECTION 1202. Payment Over of Proceeds Upon
Dissolution, etc.
In the event of any insolvency or bankruptcy
proceedings, and any receivership, liquidation,
reorganization or other similar proceedings in connection
therewith, relative to the Company or to its creditors, as
such, or to its property, and in the event of any proceedings
for voluntary liquidation, dissolution or other winding up of
the Company, whether or not involving insolvency or
bankruptcy, then the holders of Superior Debt shall be
entitled to receive payment in full of all principal of (and
premium, if any) and interest on all Superior Debt before the
Holders are entitled to receive any payment on account of
principal of (or premium, if any) or interest on the
Debentures, and to that end the holders of Superior Debt or
the trustee or trustees under any indenture pursuant to which
any instrument evidencing any of such Superior Debt may have
been issued, as their respective interests may appear, shall
be entitled to receive directly from the trustee in
bankruptcy, receiver, assignee for benefit or creditors or
other liquidating agent or person making such payment or
distribution, any payment or distribution of any kind or
character, whether in cash or property or securities which
may be payable or deliverable in any such proceedings with
respect of the Debentures (other than securities which are
subordinate and junior in right of payment, at least to the
extent provided in this Article with respect to the
Debentures, to the payment of all Superior Debt then
outstanding, provided that the rights of the holders of
Superior Debt are not altered by such proceedings) for the
application to the pro rata payment of all Superior Debt
remaining unpaid.
In the event and during the continuation of any default
by the Company in the payment of the principal of (or
premium, if any) or interest on any Superior Debt, or any
default which with notice or the passage of time, or both,
would permit any holder or holders of the Superior Debt to
accelerate the maturity thereof, of which such default
written notice shall have been given to the Company by any
holder of Superior Debt, the Company shall not make any
payments on account of the principal of (or premium, if any)
or interest on the Debentures.
In the event that the Debentures are declared due and
payable before their Stated Maturity because of the
occurrence of an Event of Default (under circumstances when
the provisions of the preceding paragraphs shall not be
applicable), the holders of the Superior Debt outstanding at
the time the Debentures so become due and payable because of
such occurrence of such an Event of Default shall be entitled
to receive payment in full of all principal of (and premium,
if any) and interest on all Superior Debt before the Holders
of the Debentures are entitled to receive any payment on
account of the principal of (or premium, if any) or interest
on the Debentures.
In the event any payment or distribution (other than
securities provided for in any proceeding referred to in the
first paragraph of this Section, the payment of which are
subordinate and junior, at least to the extent provided for
in this Article with respect to the Debentures, to the
payment of all Superior Debt then outstanding, provided that
the rights of the holders of Superior Debt are not altered by
such proceeding) prohibited by this Section shall be received
by the Trustee or the Holders of Debentures before all
Superior Debt is paid in full, such payment and distribution
shall be held in trust for the benefit of, and shall be paid
over or delivered to, the holders of such Superior Debt or
their representative or representatives, or to the trustee or
trustees under any indenture pursuant to which any instrument
evidencing any of such Superior Debt may have been issued, as
their respective interests may appear, for application to the
pro rat payment of all Superior Debt remaining unpaid to the
extent necessary to pay all such Superior Debt in full after
giving effect to any concurrent payment or distribution to
the holders of such Superior Debt.
The restrictions in this Section on payments on account
of the principal of the Debentures shall include, but without
limitation, purchases of Debentures by the Company.
Subject to the payment in full of all Superior Debt, the
Holders of Debentures shall be subrogated (equally and
ratably with the holders of all indebtedness of the Company
which by its express terms ranks on a parity with the
Debentures and is entitled to like rights of subrogation) to
the rights of the holders of Superior Debt to receive
payments or distributions of assets of the Company applicable
to the Superior Debt until the Debentures shall be paid in
full, and no payments or distributions on the Superior Debt
pursuant to this Section shall, as between the Company, its
creditors other than the holders of Superior Debt, and the
Holders of the Debentures, be deemed to be a payment by the
Company to or on account of the Debentures, it being
understood that the provisions of this Article are and are
intended solely for the purpose of defining the relative
rights of the Holders of the Debentures, on the one hand, and
the holders of Superior Debt, on the other hand, and nothing
contained in this Article or elsewhere in this Indenture or
in the Debentures is intended to or shall impair, as between
the Company, its creditors other than the holders of Superior
Debt, and the Holders of the Debentures, the obligation of
the Company, which is unconditional and absolute, to pay the
principal of (and premium, if any) and interest on the
Debentures as and when the same shall become due and payable
in accordance with their terms, or affect the relative rights
of the Holders of the Debentures and creditors of the Company
other than the holders of Superior Debt, nor shall anything
herein or therein prevent the Trustee or the Holder of any
Debenture from exercising all remedies otherwise permitted by
applicable law or upon default under this Indenture, subject
to the rights, if any, under this Article, of the holders of
Superior Debt in respect of cash, property or securities of
the Company otherwise payable or delivered to the Trustee or
such Holder upon the exercise of any such remedy.
The Company shall give prompt written notice to the
Trustee of any dissolution, winding-up, liquidation or
reorganization of the Company within the meaning of this
Article. The Trustee, subject to the provisions of Section
601, shall be entitled to assume that no such event has
occurred unless the Company or any one or more holders of
Superior Debt or any trustee therefor or representative
thereof has given notice thereof to the Trustee at its
Corporate Trust Office. Upon any payment or distribution
pursuant to this Section, the Trustee shall be entitled to
rely upon any order or decree of a court of competent
jurisdiction in which any proceedings of the nature referred
to in this Section are pending, and the Trustee, subject as
between the Trustee and the Holders to the provisions of
Section 601, shall be entitled to rely upon a certificate of
the liquidating trustee or agent or other person making such
payment or distribution to the Trustee or to the holders for
the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of
the Superior Debt 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. 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
Superior Debt to participate in any payment or distribution
pursuant to this section, the Trustee may request such Person
to furnish evidence to the reasonable satisfaction of the
Trustee as to the amount of Superior Debt held by such
Person, as to the extent to which such Person is entitled to
participate in such payment or distribution, and as to other
facts pertinent to the rights of such Person under this
Article, 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. The trustee, subject to the provisions of Section
601, shall not be deemed to owe any fiduciary duty to the
holders of Superior Debt, and shall not be liable to any such
holders if it shall mistakenly pay over or distribute to
Holders of Debentures or the Company or any other person,
monies or assets to which any holder of Superior Debt shall
be entitled by virtue of this Article or otherwise.
Nothing in this Article shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 607.
SECTION 1203. Trustee to Effectuate Subordination.
The Holder of each Debenture by his acceptance thereof
authorizes the Trustee in his behalf to take such action as
may be necessary or appropriate to acknowledge or effectuate
the subordination as provided in this Article and appoints
the Trustee as attorney-in-fact for any and all such
purposes.
SECTION 1204. Trustee Not Charged with Knowledge of
Prohibition.
Notwithstanding the provisions of this Article or any
other provision of this Indenture, but subject as between the
Trustee and the Holders to the provisions of Section 601, the
Trustee shall not be charged with knowledge of the existence
of any Superior Debt, or of any facts which would prohibit
the making of any payment of monies to or by the Trustee
unless and until the Trustee shall have received written
notice thereof at its Corporate Trust Office from the Company
or from one or more holders of Superior Debt or from any
trustee therefor or representative thereof who shall have
been certified to be such by the Company or who shall have
otherwise established to the reasonable satisfaction of the
Trustee that he is such a holder, trustee or representative;
and, prior to the receipt of any such written notice, the
Trustee, subject to the provisions of Section 601, shall be
entitled in all respect to assume that no such facts exist;
provided, that, if on a date not less than three Business
Days prior to the date upon which by the terms hereof any
such monies may become payable for any purpose (including,
without limitation, the payment of either the principal,
premium, if any, or interest on any Debenture), or if on a
date not less than three Business Days prior to the date of
the execution of an instrument pursuant to Section 401
acknowledging satisfaction and discharge of this Indenture,
the Trustee shall not have received the notice provided for
in this Section, then, anything herein contained to the
contrary notwithstanding, the Trustee shall have full power
and authority to receive such monies and to apply the same to
the purpose for which they were received, and, in the case of
such instrument, to execute the same, and shall not be
affected by any notice to the contrary, which may be received
by it on or after such prior date; nor shall the Trustee be
charged with knowledge of the curing of any such default or
of the elimination of the act or condition preventing any
such default or of the elimination of the act or condition
preventing any such payment unless and until the Trustee
shall have received an Officers' Certificate to such effect.
SECTION 1205. Rights of Trustee as Holder of Superior
Debt.
The Trustee shall be entitled to all the rights set
forth in this Article with respect to any Superior Debt which
may at any time be held by it in its individual capacity, to
the same extent as any other holder of Superior Debt; and
nothing in Section 613, or elsewhere in this Indenture, shall
deprive the Trustee of any of its rights as such holder.
SECTION 1206. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the
Trustee shall have been appointed by the Company and be then
acting hereunder, the term "Trustee" as used in this Article
shall in such case (unless the context shall otherwise
require) be construed as extending to and including such
Paying Agent within its meaning as fully for all intents and
purposes as if such Paying Agent were named in this Article
in addition to or in place of the Trustee; provided, however,
that Sections 1204 and 1205 shall not apply to the Company or
any Affiliate of the Company if it or such Affiliate acts as
Paying Agent.
* * * *
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 Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed and acknowledged, and their
respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
TANDY CORPORATION
By /s/ C. D. Tandy
Chairman of the Board
Attest:
/s/ W. H. Michero
Secretary
THE FORT WORTH NATIONAL BANK
By /s/ J. D. Buckman
Vice President and Trust
Officer
Attest:
/s/
Assistant Cashier
STATE OF TEXAS
} SS.:
COUNTY OF TARRANT
On the 28th day of June, 1974, before me personally came
CHARLES D. TANDY, to me known, who, being by me duly sworn,
did depose and say that he resides at 1400 Shady Oaks Lane,
Fort Worth, Texas; that he is the Chairman of the Board of
TANDY CORPORATION, one of the corporations described in and
which executed the foregoing instrument; that he knows the
seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by
order of the Board of Directors of said corporation, and that
he signed his name thereto by like order.
/s/ Janet Small
[NOTARIAL SEAL]
STATE OF TEXAS
} SS.:
COUNTY OF TARRANT
On the 28th day of June, 1974, before me personally came
J. D. Buckman, to me known, who, being by me duly sworn, did
depose and say that he resides at 1805 Martel Ave., Fort
Worth, Texas; that he is a Vice President and Trust Officer
of the FORT WORTH NATIONAL BANK, one of the corporations
described in and which executed the foregoing instrument;
that he knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it
was so affixed by order of the Board of Directors of said
corporation, and that he signed his name thereto by like
order.
/s/ Ruth Ragon Mayo
[NOTARIAL SEAL] Ruth Ragon Mayo, Notary Public
Tarrant County, Texas
My Commission Expires June 1, 1975