Exhibit 4.1
UAL CORPORATION, Issuer
to
THE BANK OF NEW YORK, Trustee
INDENTURE
Dated as of April 3, 1995
Providing for Issuance of
Subordinated Debt Securities in Series
TABLE OF CONTENTS
PAGE ARTICLE 1 - Definitions and Other Provisions of
General Application
1
1.1. Definitions
1
1.2. Compliance Certificates and Opinions
12
1.3. Form of Documents Delivered to Trustee
13
1.4. Acts of Holders
14
1.5. Notices, etc., to Trustee and Company
15
1.6. Notice to Holders; Waiver
16
1.7. Headings and Table of Contents
17
1.8. Successors and Assigns
17
1.9. Separability
17
1.10. Benefits of Indenture
17
1.11. Governing Law
17
1.12. Legal Holidays
17
1.13. Trustee to Establish Record Dates
18
1.14. No Recourse Against Others
18
Article 2 - Security Forms
18
2.1. Forms Generally
18
2.2. Form of Trustee's Certificate of Authentication
19
2.3. Securities in Global Form
19
2.4. Form of Legend for Securities in Global Form
20
Article 3 - The Securities
20
3.1. Amount Unlimited; Issuable in Series
20
3.2. Denominations
25
3.3. Execution, Authentication, Delivery and
Dating
26
3.4. Temporary Securities
29
3.5. Registration, Registration of Transfer and
Exchange
30
3.6. Replacement Securities
34
3.7 Payment of Interest; Interest Rights
Preserved
35
3.8. Persons Deemed Owners
37
3.9. Cancellation
38
3.10. Computation of Interest
38
3.11. Currency and Manner of Payment in Respect
of Securities
39
3.12. Appointment and Resignation of Exchange
Rate Agent
43
3.13. CUSIP Numbers
44
PAGE ARTICLE 4 - Satisfaction, Discharge and Defeasance
44
4.1 Termination of Company's Obligations Under
the Indenture
44
4.2 Application of Trust Funds
46
4.3 Applicability of Defeasance Provisions;
Company's Option to Effect Defeasance or
Covenant Defeasance
46
4.4. Defeasance and Discharge
46
4.5. Covenant Defeasance
47
4.6. Conditions to Defeasance or Covenant
Defeasance
48
4.7. Deposited Money and Government Obligations
to be Held in Trust
50
4.8. Transfers and Distribution at Company Request
51
ARTICLE 5 - Defaults and Remedies
52
5.1. Events of Default
52
5.2. Acceleration; Rescission and Annulment
53
5.3. Collection of Indebtedness and Suits for
Enforcement by Trustee
53
5.4. Trustee May File Proofs of Claim
54
5.5. Trustee May Enforce Claims Without Possession
of Securities
54
5.6. Delay of Omission Not Waiver
54
5.7. Waiver of Past Defaults
55
5.8. Control by Majority
55
5.9. Limitation on Suits by Holders
55
5.10. Rights of Holders to Receive Payment
56
5.11. Application of Money Collected
56
5.12. Restoration of Rights and Remedies
57
5.13. Rights and Remedies Cumulative
57
5.14. Undertaking for Costs
57
ARTICLE 6 - The Trustee
57
6.1. Certain Duties and Responsibilities
57
6.2. Rights of Trustee
59
6.3. Trustee May Hold Securities
60
6.4. Money Held in Trust
61
6.5. Trustee's Disclaimer
61
6.6. Notice of Defaults
61
6.7. Reports by Trustee to Holders
61
6.8. Securityholder Lists
62
6.9. Compensation and Indemnity
62
6.10. Replacement of Trustee
63
6.11. Acceptance of Appointment by Successor
64
6.12. Eligibility; Disqualification
66
6.13. Merger, Conversion, Consolidation or
Succession to Business
66
PAGE
6.14. Appointment of Authenticating Agent
66
6.15. Trustee's Application for Instructions
from the Company
68
ARTICLE 7 - Consolidation, Merger or Sale by the Company
69
ARTICLE 8 - Supplemental Indentures
69
8.1. Supplemental Indentures Without Consent of
Holders
69
8.2. Supplemental Indentures With Consent of
Holders
71
8.3. Compliance with Trust Indenture Act
72
8.4. Execution of Supplemental Indentures
73
8.5. Effect of Supplemental Indentures
73
8.6. Reference in Securities to Supplemental
Indentures
73
ARTICLE 9 - Covenants
73
9.1. Payment of Principal, Premium, If Any, and
Interest
73
9.2. Maintenance of Office or Agency
73
9.3. Money for Securities to Be Held in
Trust; Unclaimed Money
75
9.4. Corporate Existence
76
9.5. Insurance
76
9.6. Reports by the Company
76
9.7. Annual Review Certificate
77
9.8. Limitation on Dividends and Capital Stock
Acquisitions
78
9.9 Notice of Default
78
ARTICLE 10 - Redemption
78
10.1. Applicability of Article
78
10.2. Election to Redeem; Notice to Trustee
78
10.3. Selection of Securities to Be Redeemed
79
10.4. Notice of Redemption
79
10.5. Deposit of Redemption Price
80
10.6. Securities Payable on Redemption Date
81
10.7. Securities Redeemed in Part
82
ARTICLE 11 - Sinking Funds
82
11.1. Applicability of Article
82
11.2. Satisfaction of Sinking Fund Payments with
Securities
83
11.3. Redemption of Securities for Sinking
Fund
83
ARTICLE 12 - Subordination of Securities
83
12.1. Securities Subordinated to Senior
Indebtedness
83
12.2 Company Not to Make Payments With Respect
to Securities in Certian Circumstances;
Limitations on Acceleration of Securities
84
12.3. Securities Subordinated to Prior Payment of
All Senior Indebtedness on Dissolution,
Liquidation or Reorganization of the Company
86
12.4. Holders to Be Subrogated to Rights of
Holders of Senior Indebtedness
88
12.5. Obligation of the Company Unconditional
88
12.6. Knowledge of Trustee
89
12.7. Application by Trustee of Moneys Deposited
with It
90
12.8. Subordination Rights Not Impaired by Acts or
Omissions of Company or Holders of Senior
Indebtedness
90
12.9. Holders Authorize Trustee to Effectuate
Subordination of Securities
90
12.10. Right of Trustee to Hold Senior Indebtedness
91
12.11. Article 12 Not to Prevent Events of Default
91
12.12. Paying Agents Other Than the Trustee
91
12.13. Trustee's Compensation Not Prejudiced
91
12.14. Trust Moneys Not Subordinated
91
12.15. Reliance on Judicial Order or Certificate
of Liquidating Agent
92
12.16. Trustee Not Fiduciary for Holders or Senior
Indebtedness of the Company
92
Reconciliation and tie between Indenture dated as of April 3,
1995 and the Trust Indenture Act of 1939, as amended.
Trust Indenture Act Indenture
of 1939 Section Section
310 (a)(1)................................... 6.12
(a)(2)................................... 6.12
(a)(3)................................... TIA
(a)(4)................................... Not
Applicable
(a)(5)................................... TIA
(b) ................................... 6.10; 6.12;
TIA
311 (a) ................................... TIA
(b) ................................... TIA
312 (a) .................................... 6.8
(b) .................................... TIA
(c) .................................... TIA
313 (a) ................................... 6.7;
TIA
(b) .................................... TIA
(c) .................................... TIA
(d) .................................... TIA
314 (a) .................................... 9.6; 9.7;
TIA
(b) .................................... Not
Applicable
(c)(1).................................... 1.2
(c)(2).................................... 1.2
(c)(3).................................... Not
Applicable
(d) .................................... Not
Applicable
(e) .................................... TIA
(f) ....................................
TIA
315 (a) ....................................
TIA
(b) ....................................
6.6
(c) ....................................
TIA
(d)(1)....................................
TIA
(d)(2)....................................
TIA
(d)(3)....................................
TIA
(e) ....................................
TIA
316 (a)(last sentence)........................
1.1
(a)(1)(A)................................. 5.2;
5.8
(a)(1)(B)................................. 5.7
(b) .................................... 5.9;
5.10
(c) .................................... TIA
317 (a)(1) ................................... 5.3
(a)(2) ................................... 5.4
(b) ................................... 9.3
318 (a) .................................. 1.11
(b) .................................. TIA
(c) .................................. 1.11; TIA
This reconciliation and tie section does not constitute part of
the Indenture.
INDENTURE, dated as of April 3, 1995, among UAL
CORPORATION, a Delaware corporation (the "Company"), as issuer,
and THE BANK OF NEW YORK, a New York banking corporation, as
Trustee (the "Trustee").
Recitals
The Company has duly authorized the execution and
delivery of this Indenture to provide for the issuance from
time to time of its unsecured subordinated debentures, notes or
other evidences of indebtedness ("Securities") to be issued in
one or more series as herein provided.
All things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have
been done.
For and in consideration of the premises and the
purchase of the Securities by the Holders thereof, it is
mutually covenanted and agreed as follows for the equal and
ratable benefit of the Holders of the Securities:
ARTICLE 1
Definitions and Other Provisions
of General Application
Section 1.1. Definitions. (a) For all purposes of
this Indenture, except as otherwise expressly provided or
unless the context otherwise requires:
(1) the terms defined in this Article have the
meanings assigned to them in this Article and
include the plural as well as the singular;
(2) all other terms used herein which are defined in
the Trust Indenture Act, either directly or by
reference therein, have the meanings assigned to
them therein;
(3) all accounting terms not otherwise defined
herein have the meanings assigned to them in
accordance with generally accepted accounting
principles; and
(4) the words "herein," "hereof" and "hereunder" and
other words of similar import refer to this
Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Affiliate" of any specified Person means any Person
directly or indirectly controlling or controlled by, or under
direct or indirect common control with, such specified Person.
For 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.
"Agent" means any Paying Agent or Registrar.
"Authenticating Agent" means any authenticating agent
appointed by the Trustee pursuant to Section 6.14.
"Authorized Newspaper" means a newspaper of general
circulation, in the official language of the country of
publication or in the English language, customarily published
on each Business Day whether or not published on Saturdays,
Sundays or holidays, and of general circulation in the place in
connection with which the term is used or in the financial
community of such place. Whenever successive publications in
an Authorized Newspaper are required hereunder they may be made
(unless otherwise expressly provided herein) on any Business
Day and in the same or different Authorized Newspapers.
"Bearer Security" means any Security in the form (to
the extent applicable thereto) established pursuant to
Section 2.1 which is payable to bearer.
"Board" or "Board of Directors" means the Board of
Directors of the Company, the Executive Committee or any other
duly authorized committee thereof.
"Board Resolution" means a copy of a resolution of
the Board of Directors, certified by the Corporate Secretary or
an Assistant Secretary of the Company, to have been duly
adopted by the Board of Directors and to be in full force and
effect on the date of such certification, and delivered to the
Trustee.
"Business Day", when used with respect to any Place
of Payment or any other particular location referred to in this
Indenture or in the Securities, means, unless otherwise
specified with respect to any Securities pursuant to Section
3.1, each Monday, Tuesday, Wednesday, Thursday and Friday which
is not a day on which banking institutions in that Place of
Payment or particular location are authorized or obligated by
law or executive order to close.
"Capital Lease" means any lease obligation of a
person incurred with respect to real property or equipment
acquired or leased by such person and used in its business that
is required
to be recorded on its balance sheet as a capitalized lease in
accordance with generally accepted accounting principles
consistently applied as in effect on the date hereof.
"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 Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such
time.
"Company" means the Person named as the Company in
the first paragraph of this Indenture until one or more
successor corporations shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter means
such successors.
"Company Order" and "Company Request" mean,
respectively, a written order or request signed in the name of
the Company by the Chairman of the Board, the President, any
Executive Vice President or any Senior Vice President, signing
alone, by any Vice President signing together with the
Treasurer, any Assistant Treasurer, the Corporate Secretary or
any Assistant Secretary of the Company, or, with respect to
Sections 3.3, 3.4, 3.5 and 6.1, any other employee of the
Company named in an Officers' Certificate delivered to the
Trustee.
"Conversion Event" means the cessation of use of (i)
a Foreign Currency both by the government of the country which
issued such currency and for the settlement of transactions by
a central bank or other public institutions of or within the
international banking community, (ii) the ECU both within the
European Monetary System and for the settlement of transactions
by public institutions of or within the European Communities or
(iii) any currency unit other than the ECU for the purposes for
which it was established.
"Corporate Trust Office" means the office of the
Trustee in New York, New York at which at any particular time
its corporate trust business shall be principally administered,
which office at the date hereof is located at 101 Barclay
Street, Floor 21W, New York, New York 10286.
"Corporation" includes corporations, associations,
companies and business trusts.
"Coupon" means any interest coupon appertaining to a
Bearer Security.
"Default" means any event which is, or after notice
or passage of time, or both, would be, an Event of Default.
"Depositary", when used with respect to the
Securities of or within any series issuable or issued in whole
or in part in global form, means the Person designated as
Depositary by the Company pursuant to Section 3.1 until a
successor Depositary shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter shall
mean or include each Person which is then a Depositary
hereunder, and if at any time there is more than one such
Person, shall be a collective reference to such Persons.
"Dollar" means the coin or currency of the United
States as at the time of payment is legal tender for the
payment of public and private debts.
"ECU" means the European Currency Unit as defined and
revised from time to time by the Council of the European
Communities.
"European Communities" means the European Economic
Community, the European Coal and Steel Community and the
European Atomic Energy Community.
"European Monetary System" means the European
Monetary System established by the Resolution of December 5,
1978 of the Council of the European Communities.
"Exchange Rate Agent", when used with respect to
Securities of or within any series, means, unless otherwise
specified with respect to any Securities pursuant to Section
3.1, a New York Clearing House bank designated pursuant to
Section 3.1 or Section 3.12.
"Exchange Rate Officer's Certificate" means a
certificate setting forth (i) the applicable Market Exchange
Rate or the applicable bid quotation and (ii) the Dollar or
Foreign Currency amounts of principal (and premium, if any) and
interest, if any (on an aggregate basis and on the basis of a
Security having the lowest denomination principal amount in the
relevant currency or currency unit), payable with respect to a
Security of any series on the basis of such Market Exchange
Rate or the applicable bid quotation, signed by the Treasurer,
any Vice President or any Assistant Treasurer of the Company.
"Flight Equipment" means:
(a) aircraft of all types and classes used in
transportation and incidental services, together
with all aircraft instruments, appurtenances
parts and fixtures comprising such aircraft;
(b) aircraft engines of all types and classes used
in transportation and incidental services,
together with all accessories, appurtenances,
parts and fixtures comprising such aircraft
engines;
(c) aircraft communication equipment of all types
and classes used in transportation and
incidental services, including radio, radar,
radiophone and other aircraft communication
apparatus, together with all accessories,
appurtenances, parts and fixtures comprising
such aircraft communication equipment;
(d) miscellaneous flight equipment of all types and
classes (including miscellaneous crew flight
equipment) used in transportation and incidental
services; and
(e) spare parts, accessories and assemblies held for
use in or repair of the items described in (a)
through (d) above.
"Foreign Currency" means any currency issued by the
government of one or more countries other than the United
States or by any recognized confederation or association of
such governments.
"Government Obligations" means securities which are
(i) direct obligations of the United States or, if specified as
contemplated by Section 3.1, the government which issued the
currency in which the Securities of a particular series are
payable, for the payment of which its full faith and credit is
pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the
United States or, if specified as contemplated by Section 3.1,
such government which issued the foreign currency in which the
Securities of such series are payable, the payment of which is
unconditionally guaranteed as a full faith and credit
obligation by the United States or such other government,
which, in either case, are not callable or redeemable at the
option of the issuer thereof, and shall also include a
depositary receipt issued by a bank or trust company as
custodian with respect to any such Government Obligation or a
specific payment of interest on or principal of any such
Government Obligation held by such custodian for the account of
the holder of a depositary receipt, provided that (except as
required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such
depositary receipt from any amount received by the custodian in
respect of the Government Obligation evidenced by such
depositary receipt.
"Holder" means, with respect to a Bearer Security or
coupon, a bearer thereof and, with respect to a Registered
Security, a person in whose name a Security is registered on
the Register.
"Indebtedness" of any Person means, without
duplication, the principal of, and premium, if any, and accrued
and unpaid interest (including post-petition interest) on any
obligation, whether outstanding on the date hereof or
thereafter created, incurred or assumed, which is (i)
indebtedness of such Person for money borrowed, (ii)
Indebtedness Guarantees by such Person of indebtedness for
money borrowed by any other Person, (iii) indebtedness
evidenced by notes, debentures, bonds or other instruments of
indebtedness for payment of which such Person is responsible or
liable, (iv) obligations for the reimbursement of any obligor
on any letter of credit, bankers' acceptance or similar credit
transaction, (v) obligations of such Person under Capital
Leases and Flight Equipment leases (the amount of the Company's
obligation under such Flight Equipment leases to be computed in
accordance with Statement of Financial Accounting Standards No.
13 as if such Flight Equipment leases were Capital Leases),
(vi) obligations (net of counterparty payments) under interest
rate and currency swaps, caps, collars, options, forward or
spot contracts or similar arrangements or with respect to
foreign currency hedges, and (vii) commitment and other bank
financing fees under contractual obligations associated with
bank debt; provided, however, that Indebtedness shall not
include amounts owed to trade creditors in the ordinary course
of business.
"Indebtedness Guarantee" by any Person means any
obligation, contingent or otherwise, of such Person directly or
indirectly guaranteeing any Indebtedness or other obligation of
any other Person and, without limiting the generality of the
foregoing, any obligation, direct or indirect, contingent or
otherwise, of such Person (i) to purchase or pay (or advance or
supply funds for the purchase or payment of) such Indebtedness
or other obligation (whether arising by virtue of partnership
arrangements, by agreement to keep-well, to purchase assets,
goods, securities or services, to take-or-pay, or to maintain
financial statement conditions or otherwise) or (ii) entered
into for the purpose of assuring in any other manner the
obligee of such Indebtedness or other obligation of the payment
or performance thereof (or payment of damages in the event of
nonperformance) or to protect such obligee against loss in
respect thereof (in whole or in part); provided, however, that
the terms Indebtedness Guarantee shall not include endorsements
for collection or deposit in the ordinary course of business.
The term "Indebtedness Guarantee" used as a verb has a
corresponding meaning.
"Indenture" means this Indenture as originally
executed or as amended or supplemented from time to time and
shall include the forms and terms (but not defined terms
established in an Officers' Certificate or a Board Resolution)
of particular series of Securities established as contemplated
by Section 2.1 and Section 3.1.
"Indexed Security" means a Security the terms of
which provide that the principal amount thereof payable at
Stated Maturity may be more or less than the principal face
amount thereof at original issuance.
"Interest", when used with respect to an Original
Issue Discount Security which by its terms bears interest only
after maturity, means interest payable after maturity.
"Interest Payment Date", when used with respect to
any Security, means the Stated Maturity of an installment of
interest on such Security.
"Market Exchange Rate" means, unless otherwise
specified with respect to any Securities pursuant to Section
3.1, (i) for any conversion involving a currency unit on the
one hand and Dollars or any Foreign Currency on the other, the
exchange rate between the relevant currency unit and Dollars or
such Foreign Currency calculated by the method specified
pursuant to Section 3.1 for the Securities of the relevant
series, (ii) for any conversion of Dollars into any Foreign
Currency, the noon buying rate for such Foreign Currency for
cable transfers quoted in New York City as certified for
customs purposes by the Federal Reserve Bank of New York and
(iii) for any conversion of one Foreign Currency into Dollars
or another Foreign Currency, the spot rate at noon local time
in the relevant market at which, in accordance with normal
banking procedures, the Dollars or Foreign Currency into which
conversion is being made could be purchased with the Foreign
Currency from which conversion is being made from major banks
located in New York City, London or any other principal market
for Dollars or such purchased Foreign Currency, in each case
determined by the Exchange Rate Agent. Unless otherwise
specified with respect to any Securities pursuant to Section
3.1, in the event of the unavailability of any of the exchange
rates provided for in the foregoing clauses (i), (ii) and
(iii), the Exchange Rate Agent shall use, in its sole
discretion and without liability on its part, such quotation of
the Federal Reserve Bank of New York as of the most recent
available date, or quotations from one or more major banks in
New York City, London or other principal market for such
currency or currency unit in question (which may include any
such bank acting as Trustee under this Indenture), or such
other quotations as the Exchange Rate Agent shall deem
appropriate. Unless otherwise specified by the Exchange Rate
Agent, if there is more than one market for dealing in any
currency or currency unit by reason of foreign exchange
regulations or otherwise, the market to be used in respect of
such currency or currency unit shall be that upon which a
nonresident issuer of securities designated in such currency or
currency unit would purchase such currency or currency unit in
order to make payments in respect of such securities.
"Maturity", when used with respect to any Security
means the date on which the principal of such Security or an
installment of principal becomes due and payable as therein or
herein provided, whether at the stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Officer" means the Chairman of the Board of
Directors, the President, any Executive Vice President, any
Senior Vice President, any Vice President or the Corporate
Secretary of the Company.
"Officers' Certificate" means a certificate signed by
the Chairman of the Board, the President, any Executive Vice
President or any Senior Vice President of the Company, signing
alone, or by any Vice President signing together with the
Corporate Secretary, any Assistant Secretary, the Treasurer, or
any Assistant Treasurer of the Company.
"Opinion of Counsel" means a written opinion of legal
counsel, who may be (a) the senior attorney employed by the
Company, (b) Mayer, Brown & Platt or (c) other counsel
designated by the Company and who shall be acceptable to the
Trustee.
"Original Issue Discount Security" means any Security
which provides for an amount less than the stated principal
amount thereof to be due and payable upon declaration of
acceleration of the Maturity thereof pursuant to Section 5.2.
"Outstanding", when used with respect to Securities,
means, as of the date of determination, all Securities
theretofore authenticated and delivered under this Indenture,
except:
(i) Securities theretofore cancelled by the Trustee
or delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose
payment or redemption money in the necessary
amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the
Company) in trust or set aside and segregated in
trust by the Company (if the Company shall act
as its own Paying Agent) for the Holders of such
Securities and any coupons appertaining thereto
provided that, if such Securities are to be
redeemed, notice of such redemption has been
duly given pursuant to this Indenture or
provisions therefor satisfactory to the Trustee
have been made;
(iii) Securities, except to the extent provided in
Sections 4.4 and 4.5, with respect to which the
Company has effected defeasance and/or covenant
defeasance as provided in Article 4; and
(iv) Securities which have been paid pursuant to
Section 3.6 or in exchange for or in lieu of
which other Securities have been authenticated
and delivered pursuant to this Indenture, other
than any such Securities in respect of which
there shall have been presented to the Trustee
proof satisfactory to it that such Securities
are held by a bona fide purchaser in whose hands
such Securities are valid obligations of the
Company;
provided, however, that in determining whether the Holders of
the requisite principal amount of the Outstanding Securities
have given any request, demand, authorization, direction,
notice,
consent or waiver hereunder, or whether sufficient funds are
available for redemption or for any other purpose, and for the
purpose of making the calculations required by section 313 of
the Trust Indenture Act, (w) the principal amount of any
Original Issue Discount Securities that may be counted in
making such determination or calculation and that shall be
deemed to be Outstanding for such purpose shall be equal to the
amount of principal thereof that would be (or shall have been
declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the
maturity thereof pursuant to Section 5.2, (x) the principal
amount of any Security denominated in a Foreign Currency that
may be counted in making such determination or calculation and
that shall be deemed Outstanding for such purpose shall be
equal to the Dollar equivalent, determined as of the date such
Security is originally issued by the Company as set forth in an
Exchange Rate Officer's Certificate delivered to the Trustee,
of the principal amount (or, in the case of an Original Issue
Discount Security, the Dollar equivalent as of such date of
original issuance of the amount determined as provided in
clause (w) above) of such Security, (y) the principal amount of
any Indexed Security that may be counted in making such
determination or calculation and that shall be deemed
outstanding for such purpose shall be equal to the principal
face amount of such Indexed Security at original issuance,
unless otherwise provided with respect to such Security
pursuant to Section 3.1, and (z) Securities owned by the
Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be outstanding, except that, in
determining whether the Trustee shall be protected in making
such calculation or in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only
Securities which the Trustee knows to be so owned shall be so
disregarded. Securities so owned which have been pledged in
good faith may be regarded as outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's
right so to act with respect to such Securities and that the
pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or such other
obligor.
"Paying Agent" means any Person authorized by the
Company to pay the principal of, premium, if any, or interest,
if any, on any Securities on behalf of the Company.
"Periodic Offering" means an offering of Securities
of a series from time to time the specific terms of which
Securities, including, without limitation, the rate or rates of
interest or formula for determining the rate or rates of
interest thereon, if any, the Stated Maturity or Stated
Maturities thereof, the original issue date or dates thereof,
the redemption provisions, if any, with respect thereto, and
any other terms specified as contemplated by Section 3.1 with
respect thereto, are to be determined by the Company upon the
issuance of such Securities.
"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", when used with respect to the
Securities of or within any series, means the place or places
where, subject to the provisions of Section 9.2, the principal
of, premium, if any, and interest, if any, on such Securities
are payable as specified as contemplated by Section 3.1.
"Predecessor Security" of any particular Security
means every previous Security evidencing all or a portion of
the same debt as that evidenced by such particular Security;
and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.6 in exchange for
or in lieu of a mutilated, destroyed, lost or stolen Security
shall be deemed to evidence the same debt as the mutilated,
destroyed, lost or stolen Security.
"Redeemable Stock" means, with respect to any person,
any equity security of such person that by its terms or
otherwise (i) is required to be redeemed prior to the maturity
of any of the Securities, or is redeemable at the option of the
holder thereof at any time prior to the maturity of any of the
Securities, and (ii) creates a financial obligation on such
person if any required or optional redemption obligation is not
timely satisfied.
"Redemption Date", when used with respect to any
Security to be redeemed, means the date fixed for such
redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any
Security to be redeemed, in whole or in part, means the price
at which it is to be redeemed pursuant to this Indenture.
"Registered Security" means any Security in the form
(to the extent applicable thereto) established pursuant to
Section 2.1 which is registered as to principal and interest in
the Register.
"Regular Record Date" for the interest payable on any
Interest Payment Date on the Registered Securities of or within
any series means the date specified for that purpose as
contemplated by Section 3.1.
"Responsible Officer", when used with respect to the
Trustee, shall mean the chairman or any vice chairman of the
board of directors, the chairman or any vice chairman of the
executive committee of the board of directors, the chairman of
the trust committee, the president, any senior vice president,
any vice president, any assistant vice president, the
secretary, the treasurer, any assistant treasurer, the cashier,
any assistant cashier, any senior trust officer, any trust
officer, the controller, any assistant controller, or any other
officer of the Trustee customarily performing functions similar
to those performed by the persons who at the time shall be such
officers, respectively, and also means, with respect to a
particular corporate trust matter, any other officer to whom
such corporate trust matter is referred because of his
knowledge of and familiarity with the particular subject.
"Security" or "Securities" has the meaning stated in
the first recital of this Indenture and more particularly means
any Security or Securities of the Company issued, authenticated
and delivered under this Indenture.
"Senior Indebtedness of the Company" means all
Indebtedness of the Company (other than the Securities), unless
such Indebtedness, by its terms or the terms of the instrument
creating or evidencing it, is subordinate in right of payment
to or pari passu with the Securities.
"Special Record Date" for the payment of any
Defaulted Interest on the Registered Securities of any issue
means a date fixed by the Trustee pursuant to Section 3.7.
"Stated Maturity", when used with respect to any
Security or any installment of principal thereof or interest,
if any, thereon, means the date specified in such Security or
in a coupon representing such installment of interest as the
fixed date on which the principal of such Security or such
installment of principal or interest, if any, is due and
payable.
"Subsidiary" means any corporation of which the
Company at the time owns or controls, directly or indirectly,
more than 50% of the shares of outstanding stock having general
voting power under ordinary circumstances to elect a majority
of the Board of Directors of such corporation (irrespective of
whether or not 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).
"Trust Indenture Act" means the Trust Indenture Act
of 1939, as amended, as in effect on the date of this
Indenture, except as provided in Section 8.3.
"Trustee" means the party named as such in the first
paragraph of this Indenture until a successor Trustee replaces
it pursuant to the applicable provisions of this Indenture, and
thereafter means such successor Trustee and if, at any time,
there is more than one Trustee, "Trustee" as used with respect
to the Securities of any series shall mean the Trustee with
respect to the Securities of that series.
"United States" means, unless otherwise specified
with respect to the Securities of any series as contemplated by
Section 3.1, the United States of America (including the States
and the District of Columbia), its territories, its possessions
and other areas subject to its jurisdiction.
"U.S. Person" means, unless otherwise specified with
respect to the Securities of any series as contemplated by
Section 3.1, a citizen, national or resident of the United
States, a corporation, partnership or other entity created or
organized in or under the laws of the United States or any
political subdivision thereof, or an estate or trust the income
of which is subject to United States federal income taxation
regardless of its source.
"Yield to Maturity" means the yield to maturity,
calculated by the Company at the time of issuance of a series
of Securities or, if applicable, at the most recent
determination of interest on such series, in accordance with
accepted financial practice.
(b) The following terms shall have the meanings
specified in the Sections referred to opposite such term below:
Term Section
"Act" 1.4(a)
"Bankruptcy Law" 5.1
"Component Currency"
3.11(d)
"Conversion Date"
3.11(d)
"Custodian" 5.1
"Defaulted Interest"
3.7(b)
"Election Date"
3.11(h)
"Event of Default" 5.1
"Register" 3.5
"Registrar" 3.5
"Valuation Date"
3.7(c)
Section 1.2. 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 (other
than pursuant to Sections 2.3, 3.3 and 9.7) shall include:
(1) a statement that each individual signing such
certificate or opinion has read such condition or
covenant 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 condition or covenant has been complied with;
and
(4) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been
complied with.
Section 1.3. Form of Documents Delivered to Trustee. In
any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary
that all such matters be certified by, or covered by the opinion
of, only one such Person, or that they be so certified or covered
by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or
give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company
may be based, insofar as it relates to legal matters, upon 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, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or
officers of the Company stating that the information with respect
to such factual matters is in the possession of the Company unless
such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations as 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 1.4. Acts of Holders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Holders may be
embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by
agent duly appointed in writing. Except as herein otherwise
expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Trustee and, where
it is hereby expressly required, to the Company. Such instrument
or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments. Proof of execution
of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and
conclusive in favor of the Trustee and the Company, if made in the
manner provided in this Section.
(b) The fact and date of the execution by any Person of
any such instrument or writing may be proved by the affidavit of a
witness of such execution or by a certificate of a notary public or
other officer authorized by law to take acknowledgments of deeds,
certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Where such execution is
by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the
execution of any such instrument or writing, or the authority of
the Person executing the same, may also be proved in any other
reasonable manner which the Trustee deems sufficient.
(c) The ownership of Bearer Securities may be proved by
the production of such Bearer Securities or by a certificate
executed by any trust company, bank, banker or other depositary,
wherever situated, if such certificate shall be deemed by the
Trustee to be satisfactory, showing that at the date therein
mentioned such Person had on deposit with such depositary, or
exhibited to it, the Bearer Securities therein described; or such
facts may be proved by the certificate or affidavit of the Person
holding such Bearer Securities, if such certificate or affidavit is
deemed by the Trustee to be satisfactory. The Trustee and the
Company may assume that such ownership of any Bearer Security
continues until (i) another such certificate or affidavit bearing a
later date issued in respect of the same Bearer Security is
produced, (ii) such Bearer Security is produced to the Trustee by
some other Person, (iii) such Bearer Security is surrendered in
exchange for a Registered Security or (iv) such Bearer Security is
no longer outstanding. The ownership of Bearer Securities may also
be proved in any other reasonable manner which the Trustee deems
sufficient.
(d) The ownership of Registered Securities shall be
proved by the Register.
(e) Any request, demand, authorization, direction,
notice, consent, waiver or other Act of the Holder of any Security
shall bind every future Holder of the same Security and the holder
of every Security issued upon the registration of transfer thereof
or in exchange therefor or in lieu thereof in respect of anything
done, omitted or suffered to be done by the Trustee or the Company
in reliance thereon, whether or not notation of such action is made
upon such Security.
(f) If the Company shall solicit from the Holders any
request, demand, authorization, direction, notice, consent, waiver
or other Act, the Company may, at its option, by or pursuant to an
Officers' Certificate delivered to the Trustee, fix in advance a
record date for the determination of Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver
or other Act, but the Company shall have no obligation to do so.
If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may
be given before or after such record date, but only the Holders of
record at the close of business on such record date shall be deemed
to be Holders for the purposes of determining whether Holders of
the requisite proportion of Outstanding Securities have authorized
or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other Act, and for that
purpose the Outstanding Securities shall be computed as of such
record date; provided that no such authorization, agreement or
consent by the Holders on such record date shall be deemed
effective unless it shall become effective pursuant to the
provisions of clause (a) of this Section 1.4 not later than six
months after the record date.
Section 1.5. Notices, etc., to Trustee and Company. Any
request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made,
given, furnished or filed in writing to or with the
Trustee at its Corporate Trust Office, Attention:
Corporate Trust Trustee Administration, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless
otherwise herein expressly provided) if in writing
and mailed, first- class postage prepaid, to the
Company addressed to it at UAL Corporation, P.O. Box
66100, Chicago, Illinois 60666, Attention: Treasurer
or at any other address previously furnished in
writing to the Trustee by the Company.
Section 1.6. Notice to Holders; Waiver. Where this
Indenture provides for notice to Holders of any event, (i) if any
of the Securities affected by such event are Registered Securities,
such notice to the Holders thereof shall be sufficiently given
(unless otherwise herein expressly provided or otherwise agreed to
by a Holder) if in writing and mailed, firstclass postage prepaid,
to each such Holder affected by such event, at his address as it
appears in the Register, within the time prescribed for the giving
of such notice and (ii) if any of the Securities affected by such
event are Bearer Securities, notice to the Holders thereof shall be
sufficiently given (unless otherwise herein or in the terms of such
Bearer Securities expressly provided) if published once in an
Authorized Newspaper in New York, New York, and in such other city
or cities, if any, as may be specified as contemplated by Section
3.1(5).
In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders of
Registered Securities or the sufficiency of any notice to Holders
of Bearer Securities given as provided herein. In any case where
notice is given to Holders by publication, neither the failure to
publish such notice, nor any defect in any notice so published,
shall affect the sufficiency of such notice with respect to other
Holders of Bearer Securities or the sufficiency of any notice to
Holders of Registered Securities given as provided herein. Any
notice mailed to a Holder in the manner herein prescribed shall be
conclusively deemed to have been received by such Holder, whether
or not such Holder actually receives such notice.
If by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give such
notice as provided above, then such notification as shall be made
with the approval of the Trustee shall constitute a sufficient
notification for every purpose hereunder. If it is impossible or,
in the opinion of the Trustee, impracticable to give any notice by
publication in the manner herein required, then such publication in
lieu thereof as shall be made with the approval of the Trustee
shall constitute a sufficient publication of such notice.
Any request, demand, authorization, direction, notice,
consent or waiver required or permitted under this Indenture shall
be in the English language, except that any published notice may be
in an official language of the country of publication.
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 equivalent of such notice. Waivers of notice by
Holders shall be filed with the Trustee, but such filing shall not
be a condition precedent to the validity of any action taken in
reliance upon such waiver.
Section 1.7. 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 1.8. Successors and Assigns. All covenants and
agreements in this Indenture by the Company shall bind its
successors and assigns, whether so expressed or not.
Any act or proceeding that is required or permitted by
any provision of this Indenture and that is authorized or required
to be done or performed by any board, committee or officer of the
Company shall and may be done and performed with like force and
effect by the like board, committee or officer of any corporation
that shall at the time be the successor or assign of the Company.
Section 1.9. Separability. In case any provision of
this Indenture or the Securities shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired
thereby.
Section 1.10. Benefits of Indenture. Nothing in this
Indenture or in the Securities, expressed or implied, shall give to
any Person, other than the parties hereto and their successors
hereunder, the holders of Senior Indebtedness of the Company, and
the Holders, any benefit or any legal or equitable right, remedy or
claim under this Indenture.
Section 1.11. Governing Law. THIS INDENTURE, THE
SECURITIES AND ANY COUPONS APPERTAINING THERETO SHALL BE GOVERNED
BY AN CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS. This
ndenture is subject to the Trust Indenture Act and if any provision
hereof limits, qualifies or conflicts with the Trust Indenture Act,
the Trust Indenture Act shall control.
Section 1.12. Legal Holidays. In any case where any
Interest Payment Date, Redemption Date, sinking fund payment date,
Stated Maturity or Maturity of any Security shall not be a Business
Day at any Place of Payment, then (notwithstanding any other
provision of this Indenture or any Security or coupon other than a
provision in the Securities of any series which specifically states
that such provision shall apply in lieu of this Section) payment of
principal, premium, if any, or interest, if any, need not be made
at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same
force and effect as if made on such date; provided that no interest
shall accrue on the amount so payable for the period from and after
such Interest Payment Date, Redemption Date, sinking fund payment
date, Stated Maturity or Maturity, as the case may be.
Section 1.13. Trustee to Establish Record Dates. The
Trustee shall fix a record date for the purpose of determining the
Holders entitled to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action
provided in this Indenture to be made, given or taken by Holders.
If such a record date is fixed, the Holders on such record date,
and only such Holders, shall be entitled to make, give or take such
request, demand, authorization, direction, notice, consent, waiver
or other action, whether or not such Holders remain Holders after
such record date. No such request, demand, authorization,
direction, notice, consent, waiver or other action shall be valid
or effective if made, given or taken more than 90 days after such
record date.
Section 1.14. No Recourse Against Others. No recourse
for the payment of the principal of, premium, if any, or interest,
if any, on the Securities, or for any claim based on the Securities
or this Indenture, and no recourse under or upon any obligation,
covenant or agreement of the Company in this Indenture or any
indenture supplemental thereto or in any Security or because of the
creation of any indebtedness represented thereby, shall be had
against any incorporator, stockholder, officer or director, as
such, past, present or future, of the Company or of any successor
corporation, either directly or through the Company or any
successor corporation, whether by virtue of any constitution,
statute or rule of law or by the enforcement of any assessment or
penalty or otherwise, all such liability being, by the acceptance
of a Security by each Holder and as part of the consideration for
the issue of such Security, expressly waived and released.
ARTICLE 2
Security Forms
Section 2.1. Forms Generally. The Securities of each
series and the coupons, if any, to be attached thereto shall be in
substantially such form (including global form) as shall be
established by delivery to the Trustee of an Officers' Certificate
or in one or more indentures supplemental hereto, in each case with
such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by
this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon
as may be required to comply with the rules of any securities
exchange or as may, consistent herewith, be determined by the
officers executing such Securities and coupons, if any, as
evidenced by their execution of the Securities and coupons, if any.
If temporary Securities of any series are issued as permitted by
Section 3.4, the form thereof also shall be established as provided
in the preceding sentence. If the forms of Securities and coupons,
if any, of any series are established by an Officers' Certificate,
such Officers' Certificate shall be delivered to the Trustee at or
prior to the delivery of the Company Order contemplated by Section
3.3 for the authentication and delivery of such Securities.
Unless otherwise specified as contemplated by Section
3.1, Bearer Securities shall have interest coupons attached.
The permanent Securities and coupons, if any, shall be
printed, lithographed or engraved or produced by any combination of
these methods or may be produced in any other manner, all as
determined by the officers executing such Securities and coupons,
if any, as evidenced by their execution of such Securities and
coupons, if any.
Section 2.2. Form of Trustee's Certificate of
Authentication. The Trustee's certificate of authentication shall
be in substantially the following form:
This is one of the Securities of a series issued under
the within-mentioned Indenture.
Dated: The Bank of New York,
as Trustee
By:________________________
Authorized Signatory
Section 2.3. Securities in Global Form. If securities
of or within a series are issuable in whole or in part in temporary
or permanent global form, as specified as contemplated by Section
3.1, then, notwithstanding clause (8) of
Section 3.1(b) and the provisions of Section 3.2, any such Security
shall represent such of the outstanding securities of such series
as shall be specified therein and may provide that it shall
represent the aggregate amount of Outstanding Securities from time
to time endorsed thereon and that the aggregate amount of
Outstanding Securities represented thereby may from time to time be
reduced to reflect exchanges. Any endorsement of a Security in
global form to reflect the amount, or any increase or decrease in
the amount, or changes in the rights of Holders, of Outstanding
Securities represented thereby, shall be made by the Trustee in
such manner and upon instructions given by such Person or Persons
as shall be specified therein or in the Company Order to be
delivered to the Trustee pursuant to Section 3.3 or 3.4. Subject to
the provisions of Section 3.3 and, if applicable, Section 3.4, the
Trustee shall deliver and redeliver any Security in global form in
the manner and upon instructions given by the Person or Persons
specified therein or in the applicable Company Order. Any
instructions by the Company with respect to endorsement or delivery
or redelivery of a Security in global form shall be in writing but
need not comply with Section 1.2
hereof and need not be accompanied by an Opinion of Counsel.
The provisions of the last paragraph of Section 3.3 shall
apply to any Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the
Trustee the Security in global form together with written
instructions (which need not comply with Section 1.2 and need not
be accompanied by an Opinion of Counsel) with regard to the
reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the
last paragraph of Section 3.3.
Notwithstanding the provisions of Sections 2.1 and 3.7,
unless otherwise specified as contemplated by Section 3.1, payment
of principal of, premium, if any, and interest, if any, on any
Security in permanent global form shall be made to the Person or
Persons specified therein.
Section 2.4. Form of Legend for Securities in Global
Form. Any Security in global form authenticated and delivered
hereunder shall bear a legend in substantially the following form,
or such other form as deemed necessary or desirable by the Company
and specified in a Company Order delivered to the Trustee:
This Security is in global form within the meaning of the
Indenture hereinafter referred to and is registered in the
name of a Depositary or a nominee of a Depositary. Unless and
until Unless and until it is exchanged in whole or in part for
Securities in certificated form, this Security may not be
transferred except as a whole by the Depositary to a nominee
of the Depositary or by a nominee of the Depositary to the
Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a
nominee of such successor Depositary.
ARTICLE 3
The Securities
Section 3.1. Amount Unlimited; Issuable in Series.
(a) The aggregate principal amount of Securities which
may be authenticated and delivered under this Indenture is
unlimited. The Securities may be issued from time to time in one or
more series.
(b) The following matters shall be established and
(subject to Section 3.3) set forth, or determined in the manner
provided, in an Officers' Certificate and a Board Resolution of
the Company, or one or more indentures supplemental hereto:
(1) the title of the Securities of the series
(which title shall distinguish the Securities
of the series from all other Securities);
(2) any limit upon the aggregate principal amount
of the Securities of the series which may be
authenticated and delivered under this
Indenture (which limit shall not pertain to
(i) Securities authenticated and delivered
upon registration of transfer of, or in
exchange for, or in lieu of,
other Securities of the series pursuant to Section
3.4, 3.5, 3.6, 8.6, or 10.7 and (ii) any Securities
which, pursuant to the last paragraph of Section
3.3, are deemed never to have been authenticated
and delivered hereunder);
(3) the date or dates on which the principal of the
Securities of the series is payable or the method
of determination thereof;
(4) the rate or rates at which the Securities of the
series shall bear interest, if any, or the method
of calculating such rate or rates of interest, the date
or dates from which such interest shall accrue or the
method by which such date or dates shall be determined,
the Interest Payment Dates on which any such interest
shall be payable and, with respect to Registered
Securities, the Regular Record Date, if any, for the
interest payable on any Registered Security on any
Interest Payment Date;
(5) the place or places where, subject to the
provisions of Section 9.2, the principal of,
premium, if any, and interest, if any, on
Securities of the series shall be payable;
(6) the period or periods within which, the price or
prices at which, the currency or currencies
(including currency units) in which, and the other
terms and conditions upon which, Securities of the
series may be redeemed, in whole or in part, at the
option of the Company and, if other than as
provided in Section 10.3, the manner in which the
particular Securities of such series (if less than
all Securities of such series are to be redeemed)
are to be selected for redemption;
(7) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any
sinking fund or analogous provisions or upon the
happening of a specified event or at the option of
a Holder thereof and the period or periods within
which, the price or prices at which, and the other
terms and conditions upon which, Securities of the
series shall be redeemed or purchased, in whole or
in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any
integral multiple thereof, if Registered
Securities, and if other than denominations of
$5,000 and $100,000, if Bearer Securities, the
denominations in which Securities of the series
shall be issuable;
(9) if other than Dollars, the currency or currencies
(including currency units) in which the principal
of, premium, if any, and interest, if any, on the
Securities of the series shall be payable, or in
which the Securities of the series shall be
denominated, the particular provisions applicable
thereto in accordance with, in addition to, or in
lieu of the provisions of Section 3.11, and whether
the Securities of the series may be satisfied and
discharged other than as provided in
Article 4;
(10) if the payments of principal of, premium, if any,
or interest, if any, on the Securities of the
series are to be made, at the election of the
Company or a Holder, in a currency or currencies
(including currency units) other than that in which
such Securities are denominated or designated to be
payable, the currency or currencies (including
currency units) in which such payments are to be
made, the terms and conditions of such payments and
the manner in which the exchange rate with respect
to such payments shall be determined, the
particular provisions applicable thereto in
accordance with, in addition to, or in lieu of the
provisions of Section 3.11, and whether the
Securities of the series may be satisfied and
discharged other than as provided in Article 4;
(11) if the amount of payments of principal of, premium,
if any, and interest, if any, on the Securities of
the series shall be determined with reference to an
index, formula or other method (which index,
formula or method may be based, without limitation,
on a currency or currencies (including currency
units) other than that in which the Securities of
the series are denominated or designated to be
payable), the index, formula or other method by
which such amounts shall be determined;
(12) if other than the principal amount thereof, the
portion of the principal amount of such Securities
of the series which shall be payable upon
declaration of acceleration thereof pursuant to
Section 5.2 or the method by which such portion
shall be determined;
(13) if other than as provided in Section 3.7, the
Person to whom any interest on any Registered
Security of the series shall be payable, the manner
in which, or the Person to whom, any interest on
any Bearer Securities of the series shall be
payable, and the extent to which, or the manner in
which (including any certification requirement and
other terms and conditions under which), any
interest payable on a temporary or permanent global
Security on an Interest Payment Date will be paid
if other than in the manner provided in Section 2.3
and Section 3.4, as applicable;
(14) provisions, if any, granting special rights to the
Holders of Securities of the series upon the
occurrence of such events as may be specified;
(15) any deletions from, modifications of or additions
to the Events of Default set forth in Section 5.1
or covenants of the Company set forth in Article 9
pertaining to the Securities of the series;
(16) under what circumstances, if any, the Company will
pay additional amounts on the Securities of that
series held by a Person who is not a U.S. Person in
respect of taxes or similar charges withheld or
deducted and, if so, whether the Company will have
the option to redeem such Securities rather than
pay such additional amounts (and the terms of any
such option);
(17) whether Securities of the series shall be issuable
as Registered Securities or Bearer Securities (with
or without interest coupons), or both, and any
restrictions applicable to the offering, sale or
delivery of Bearer Securities and, if other than as
provided in Section 3.5, the terms upon which
Bearer Securities of a series may be exchanged for
Registered Securities of the same series and vice
versa;
(18) the date as of which any Bearer Securities of the
series and any temporary global Security
representing outstanding Securities of the series
shall be dated if other than the date of original
issuance of the first Security of the series to be
issued;
(19) the applicability, if any, to the Securities of or
within the series of Sections 4.4 and 4.5, or such
other means of defeasance or covenant defeasance as
may be specified for the Securities and coupons, if
any, of such series, and whether, for the purpose
of such defeasance or covenant defeasance, the term
"Government Obligations" shall include obligations
referred to in the definition of such term which
are not obligations of the United States or an
agency or instrumentality of the United States;
(20) if other than the Trustee, the identity of the
Registrar and any Paying Agent;
(21) any terms which may be related to warrants issued
by the Company in connection with, or for the
purchase of, Securities of such series, including
whether and under what circumstances the Securities
of any series may be used toward the exercise price
of any such warrants;
(22) the designation of the initial Exchange Rate Agent,
if any;
(23) whether Securities of the series shall be issued in
whole or in part in temporary or permanent global
form and, if so, (i) the initial Depositary for
such global Securities and (ii) if other than as
provided in Section 3.4 or 3.5, as applicable,
whether and the circumstance under which beneficial
owners of interests in any Securities of the series
in temporary or permanent global form may exchange
such interests for Securities of such series and of
like tenor of any authorized form and denomination;
(24) whether Securities of the Series shall be
convertible into shares of common stock of the
Company and the terms and conditions upon which the
Securities will be convertible, including the
conversion price, the conversion period and other
conversion provisions;
(25) if other than as provided in Article 12, the terms
and conditions under which the Securities will be
subordinated to the Senior Indebtedness of the
Company; and
(26) any other terms of the series (which terms shall
not be inconsistent with the provisions of this
Indenture), including any terms which may be
required by or advisable under United States laws
or regulations or advisable in connection with the
marketing of Securities of the series.
(c) All Securities of any one series and coupons, if
any, appertaining to any Bearer Securities of such series shall be
substantially identical except as to denomination and the rate or
rates of interest, if any, and Stated Maturity, and the date from
which interest, if any, shall accrue and except as may otherwise
be provided in or pursuant to an Officers' Certificate pursuant to
this Section 3.1 or in an indenture supplemental hereto. All
Securities of any one series need not be issued at the same time
and, unless otherwise provided, a series may be reopened, without
the consent of the Holders, for issuances of additional Securities
of such series or for the establishment of additional terms with
respect to the Securities of such series.
(d) If any of the terms of the Securities of any series
are established by action taken pursuant to a Board Resolution, a
copy of such Board Resolution shall be certified by the Corporate
Secretary or an Assistant Secretary of the Company and delivered
to the Trustee at or prior to the delivery of the Officers'
Certificate of the Company, setting forth, or providing the manner
for determining, the terms of the Securities of such series, and
an appropriate record of any action taken pursuant thereto in
connection with the issuance of any Securities of such series
shall be delivered to the Trustee prior to the authentication and
delivery thereof. With respect to Securities of a series subject
to a Periodic Offering, such Board Resolutions or Officers'
Certificates may provide general terms for Securities of such
series and provide either that the specific terms of particular
Securities of such series shall be specified in a Company Order,
or that such terms shall be determined by the Company, or one or
more of its agents designated in the Officers' Certificate, in
accordance with the Company Order, as contemplated by the first
proviso of the third paragraph of Section 3.3.
(e) Each Security issued hereunder shall provide that
the Company and, by its acceptance of a Security or a beneficial
interest therein, the Holder of, and any Person that acquires a
beneficial interest in, such Security agree that for United States
federal, state and local tax purposes it is intended that such
Security constitute indebtedness.
Section 3.2. Denominations. Unless otherwise provided
as contemplated by Section 3.1, any Registered Securities of a
series shall be issuable in denominations of $1,000 and any
integral multiple thereof and any Bearer Securities of a series
shall be issuable in denominations of $5,000 and $100,000.
Section 3.3. Execution, Authentication, Delivery and
Dating. Securities shall be executed on behalf of the Company by
its Chairman or President and Chief Executive Officer and attested
to by the Secretary of the Company. The Company's seal shall be
affixed to the Securities or a facsimile of such seal shall be
engraved, printed, or otherwise reproduced on the
Securities. The signatures of such officers on the Securities may
be manual or facsimile. The coupons, if any, of Bearer Securities
shall bear the facsimile signature of the Chairman or President
and Chief Executive Officer and shall be attested by the Secretary
of the Company.
Securities and coupons bearing the manual or facsimile
signatures of individuals who were at any time the proper officers
of the Company shall bind the Company notwithstanding that such
individuals or any of them have ceased to hold such offices prior
to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time, the Company may
deliver Securities and any coupons appertaining thereto of any
series executed by the Company to the Trustee for authentication,
together with a Company Order for the authentication and make
available for delivery such Securities, and the Trustee in
accordance with the Company Order shall authenticate and deliver
such Securities; provided, however, that in the case of Securities
offered in a Periodic Offering, the Trustee shall authenticate and
deliver such Securities from time to time in accordance with such
other procedures (including, without limitation, the receipt by
the Trustee of oral or electronic instructions from the Company or
its duly authorized agents, promptly confirmed in writing)
acceptable to the Trustee as may be specified by or pursuant to a
Company Order delivered to the Trustee prior to the time of the
first authentication of Securities of such series, as such form of
Company Order may be revised from time to time.
If the form or terms of the Securities of a series have
been established by or pursuant to one or more Officers'
Certificates as permitted by Sections 2.1 and 3.1, in
authenticating such Securities and accepting the additional
responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive, and (subject
to section 315(a) through (d) of the Trust Indenture Act) shall be
fully protected in relying upon, an Opinion of Counsel stating,
(1) that the forms and terms of such Securities and any
coupons have been established in conformity with the
provisions of this Indenture; and
(2) that such Securities together with any coupons
appertaining thereto, when authenticated and
delivered by the Trustee and issued by the Company
in the manner and subject to any conditions
specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of
the Company, enforceable in accordance with their
terms, subject to customary exceptions;
provided, however, that, with respect to Securities of a
series subject to a Periodic Offering, the Trustee shall
be entitled to receive such Opinion of Counsel only once
at or prior to the time of the first authentication of
Securities of such series and that the Opinion of
Counsel above may state:
(x) that the forms of such Securities have been, and the
terms of such Securities (when established in
accordance with such procedures as may be specified
from time to time in a Company Order, all as
contemplated by and in accordance with a Board
Resolution or an Officers' Certificate pursuant to
Section 3.1, as the case may be) will have been,
established in conformity with the provisions of
this Indenture; and
(y) that such Securities together with the coupons, if
any, appertaining thereto, when (1) executed by the
Company, (2) completed, authenticated and delivered
by the Trustee in accordance with this Indenture,
and (3) issued by the Company in the manner and
subject to any conditions specified in such Opinion
of Counsel, will constitute valid and legally
binding obligations of the Company, enforceable in
accordance with their terms, subject to customary
exceptions.
With respect to Securities of a series subject to a
Periodic Offering, the Trustee may conclusively rely, as to
the authorization by the Company of any of such Securities,
the form and terms thereof and the legality, validity,
binding effect and enforceability thereof, upon the Opinion
of Counsel and other documents delivered pursuant to Sections
2.1 and 3.1 of this Section, as applicable, at or prior to
the time of the first authentication of Securities of such
series unless and until it has received written notification
that such opinion or other documents have been superseded or
revoked. In connection with the authentication and delivery
of Securities of a series subject to a Periodic Offering, the
Trustee shall be entitled to assume that the Company's
instructions to authenticate and deliver such Securities do
not violate any rules, regulations or orders of any
governmental agency or commission having jurisdiction over
the Company.
If the form or terms of the Securities of a series have
been established by or pursuant to one or more Officers'
Certificates as permitted by Sections 2.1 and 3.1, the Trustee
shall have the right to decline to authenticate such Securities if
the issue of such Securities pursuant to this Indenture will
adversely affect the Trustee's own rights, duties or immunities
under this Indenture or otherwise in a manner which is not
reasonably acceptable to the Trustee. Notwithstanding the
generality of the foregoing, the Trustee will not be required to
authenticate Securities denominated in a Foreign Currency if the
Trustee reasonably believes that it would be unable to perform its
duties with respect to such Securities.
Notwithstanding the provisions of Section 3.1 and of the
two preceding paragraphs, if all of the Securities of any series
are not to be issued at one time, it shall not be necessary to
deliver the Officers' Certificate otherwise required pursuant to
Section 3.1 at or prior to the time of the authentication of each
Security of such series if such Officers' Certificate is delivered
at or prior to the authentication upon original issuance of the
first Security of such series to be issued.
If the Company shall establish pursuant to Section 3.1
that the Securities of a series are to be issued in whole or in
part in global form, then the Company shall execute and the
Trustee shall, in accordance with this Section and the Company
Order with respect to such series, authenticate and deliver one or
more Securities in global form that (i) shall represent and shall
be denominated in an amount equal to the aggregate principal
amount of the Outstanding Securities of such series to
be represented by such Security or Securities in global form, (ii)
shall be registered, if a Registered Security, in the name of the
Depositary for such Security or Securities in global form or the
nominee of such Depositary and (iii) shall be delivered by the
Trustee to such Depositary or pursuant to such Depositary's
instruction.
Each Depositary designated pursuant to Section 3.1 for a
Registered Security in global form must, at the time of its
designation and at all times while it serves as Depositary, be a
clearing agency registered under the Securities Exchange Act of
1934 and any other applicable statute or regulation. The Trustee
shall have no responsibility to determine if the Depositary is so
registered. Each Depositary shall enter into an agreement with
the Trustee governing the respective duties and rights of such
Depositary and the Trustee with regard to Securities issued in
global form.
Each Registered Security shall be dated the date of its
authentication and each Bearer Security (including a Bearer
Security represented by a temporary global Security) shall be
dated as of the date specified as contemplated by Section 3.1.
No Security or coupon appertaining thereto shall be
entitled to any benefits under this Indenture or be valid or
obligatory for any purpose until such Security is authenticated by
the manual signature of one of the authorized signatories of the
Trustee or an Authenticating Agent. Such signature upon any
Security shall be conclusive evidence, and the only evidence, that
such Security has been duly authenticated and delivered under this
Indenture and is entitled to the benefits of this Indenture.
Except as permitted by Section 3.6 or 3.7, the Trustee shall not
authenticate and deliver any Bearer Security unless all
appurtenant coupons for interest then matured have been detached
and cancelled.
Notwithstanding the foregoing, if any Security shall
have been authenticated and delivered hereunder but never issued
and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in
Section 3.9 together with a written statement (which need not
comply with Section 1.2 and need not be accompanied by an Opinion
of Counsel) stating that such Security has never been issued and
sold by the Company, for all purposes of this Indenture such
Security shall be deemed never to have been authenticated and
delivered hereunder and shall not be entitled to the benefits of
this Indenture.
Section 3.4. Temporary Securities. Pending the
preparation of definitive Securities of any series, the Company
may execute and, upon Company Order, the Trustee shall
authenticate and deliver temporary Securities of such series which
are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the
tenor and form, with or without coupons, of the definitive
Securities in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other
variations as the officers executing such Securities may
determine, as conclusively evidenced by their execution of such
Securities and coupons, if any. In the case of Securities of any
series, such temporary Securities may be in global form.
Except in the case of temporary Securities in global
form, each of which shall be exchanged in accordance with the
provisions thereof, if temporary Securities of any series are
issued, the Company will cause permanent Securities of such
series to be prepared without unreasonable delay. After
preparation of such permanent Securities, the temporary Securities
shall be exchangeable for such permanent Securities of like tenor
upon surrender of the temporary Securities of such series at the
office or agency of the Company pursuant to Section 9.2 in a Place
of Payment for such series, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities
of any series (accompanied by any unmatured coupons appertaining
thereto), the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal
amount of permanent Securities of the same series of authorized
denominations and of like tenor; provided, however, that no
permanent Bearer Security shall be delivered in exchange for a
temporary Registered Security; and provided further that no
permanent Bearer Security shall be delivered in exchange for a
temporary Bearer Security unless the Trustee shall have received
from the person entitled to receive the definitive Bearer Security
a certificate substantially in the form approved in the Officers'
Certificate relating thereto and such delivery shall occur only
outside the United States. Until so exchanged, the temporary
Securities of any series shall in all respects be entitled to the
same benefits under this Indenture as permanent Securities of such
series except as otherwise specified as contemplated by Section
3.1.
Section 3.5. Registration, Registration of Transfer and
Exchange. The Company shall cause to be kept at the Corporate
Trust Office of the Trustee or in any office or agency to be
maintained by the Company in accordance with Section 9.2 in a
Place of Payment a register (the "Register") in which, subject to
such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Registered Securities and the
registration of transfers of Registered Securities. The Register
shall be in written form or any other form capable of being
converted into written form within a reasonable time. The Trustee
is hereby appointed "Registrar" for the purpose of registering
Registered Securities and transfers of Registered Securities as
herein provided.
Upon surrender for registration of transfer of any
Registered Security of any series at the office or agency
maintained pursuant to Section 9.2 in a Place of Payment for that
series, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee
or transferees, one or more new Registered Securities of the same
series, of any authorized denominations and of a like aggregate
principal amount and tenor.
Bearer Securities or any coupons appertaining thereto
shall be transferable by delivery.
At the option of the Holder, Registered Securities of
any series (except a Registered Security in global form) may be
exchanged for other Registered Securities of the same series, of
any authorized denominations and of a like aggregate principal
amount containing identical terms and provisions, upon surrender
of the Registered Securities to be exchanged at such office or
agency. Whenever any Registered Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Registered Securities which the
Holder making the exchange is entitled to receive. Unless
otherwise specified as contemplated by Section 3.1, Bearer
Securities may not be issued in exchange for Registered
Securities.
Unless otherwise specified as contemplated by
Section 3.1, at the option of the Holder, Bearer Securities of
such series may be exchanged for Registered Securities (if the
Securities of such series are issuable in registered form) or
Bearer Securities (if Bearer Securities of such series are
issuable in more than one denomination and such exchanges are
permitted by such series) of the same series, of any authorized
denominations and of like tenor and aggregate principal amount,
upon surrender of the Bearer Securities to be exchanged at any
such office or agency, with all unmatured coupons and all matured
coupons in default thereto appertaining. If the Holder of a
Bearer Security is unable to produce any such unmatured coupon or
coupons or matured coupon or coupons in default, such exchange may
be effected if the Bearer Securities are accompanied by payment in
funds acceptable to the Company and the Trustee in an amount equal
to the face amount of such missing coupon or coupons, or the
surrender of such missing coupon or coupons may be waived by the
Company and the Trustee if there be furnished to them such
security or indemnity as they may require to save each of them and
any Paying Agent harmless. If thereafter the Holder of such
Security shall surrender to any Paying Agent any such missing
coupon in respect of which such a payment shall have been made,
such Holder shall be entitled to receive the amount of such
payment; provided, however, that, except as otherwise provided in
Section 9.2, interest represented by coupons shall be payable only
upon presentation and surrender of those coupons at an office or
agency located outside the United States. Notwithstanding the
foregoing, in case any Bearer Security of any series is
surrendered at any such office or agency in exchange for a
Registered Security of the same series after the close of business
at such office or agency on (i) any Regular Record Date and before
the opening of business at such office or agency on the relevant
Interest Payment Date, or (ii) any Special Record Date and before
the opening of business at such office or agency on the related
date for payment of Defaulted Interest, such Bearer Security shall
be surrendered without the coupon relating to such Interest
Payment Date or proposed date of payment, as the case may be (or,
if such coupon is so surrendered with such Bearer Security, such
coupon shall be returned to the person so surrendering the Bearer
Security), and interest or Defaulted Interest, as the case may be,
will not be payable on such Interest Payment Date or proposed date
for payment, as the case may be, in respect of the Registered
Security issued in exchange for such Bearer Security, but will be
payable only to the Holder of such coupon, when due in accordance
with the provisions of this Indenture.
Notwithstanding any other provision (other than the
provisions set forth in the seventh and eighth paragraphs of this
Section) of this Section, unless and until it is exchanged in
whole or in part for Securities in certificated form, a Security
in global form representing all or a portion of the Securities of
a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary or by a
nominee of such Depositary to such Depositary or another nominee
of such Depositary or by such Depositary or any such nominee to a
successor Depositary for such series or a nominee of such
successor Depositary.
If at any time the Depositary for the Securities of a
series notifies the Company that it is unwilling or unable to
continue as Depositary for the Securities of such series or if at
any time the Depositary for the Securities of such series shall no
longer be eligible under Section 3.3, the Company shall appoint a
successor Depositary with respect to the Securities of such
series. If a successor Depositary for the Securities of such
series is not appointed by the Company within 90 days after
the issuer receives such notice or becomes aware of such
ineligibility, the Company's election pursuant to Section 3.1
shall no longer be effective with respect to the Securities of
such series and the Company shall execute, and the Trustee, upon
receipt of a Company Order for the authentication and delivery of
certificated Securities of such series of like tenor, shall
authenticate and deliver Securities of such series of like tenor
in certificated form, in authorized denominations and in an
aggregate principal amount equal to the principal amount of the
Security or Securities of such series of like tenor in global form
in exchange for such Security or Securities in global form.
The Company may at any time in its sole discretion
determine that Securities of a series issued in global form shall
no longer be represented by such a Security or Securities in
global form. In such event the Company shall execute, and the
Trustee, upon receipt of a Company Order for the authentication
and delivery of certificated Securities of such series of like
tenor, shall authenticate and deliver, Securities of such series
of like tenor in certificated form, in authorized denominations
and in an aggregate principal amount equal to the principal amount
of the Security or Securities of such series of like tenor in
global form in exchange for such Security or Securities in global
form.
If specified by the Company pursuant to Section 3.1 with
respect to a series of Securities, the Depositary for such series
may surrender a Security in global form of such series in exchange
in whole or in part for Securities of such series in certificated
form on such terms as are acceptable to the Company and such
Depositary. Thereupon, the Company shall execute, and the Trustee
shall authenticate and deliver, without service charge,
(i) to each Person specified by such Depositary a new
certificated Security or Securities of the same
series of like tenor, of any authorized denomination
as requested by such Person in aggregate principal
amount equal to and in exchange for such Person's
beneficial interest in the Security in global form;
and
(ii) to such Depositary a new Security in global form of
like tenor in a denomination equal to the
difference, if any, between the principal amount of
the surrendered Security in global form and the
aggregate principal amount of certificated
Securities delivered to Holders thereof.
Upon the exchange of a Security in global form for
Securities in certificated form, such Security in global form
shall be cancelled by the Trustee. Unless expressly provided with
respect to the Securities of any series that such Security may be
exchanged for Bearer Securities, Securities in certificated form
issued in exchange for a Security in global form pursuant to this
Section shall be registered in such names and in such authorized
denominations as the Depositary for such Security in global form,
pursuant to instructions from its direct or indirect participants
or otherwise, shall instruct the Trustee. The Trustee shall
deliver such Securities to the Persons in whose names such
Securities are so registered.
Whenever any Securities are surrendered for exchange,
the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is
entitled to receive.
All Securities issued upon any registration of transfer
or upon any exchange of Securities shall be the valid obligations
of the Company, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Securities surrendered upon
such registration of transfer or exchange.
Every Registered Security presented or surrendered for
registration of transfer or for exchange shall (if so required by
the Company, the Registrar or the Trustee) be duly endorsed, or be
accompanied by a written instrument of transfer in form
satisfactory to those of the Company, the Registrar and the
Trustee requiring such written instrument of transfer duly
executed by the Holder thereof or his attorney duly authorized in
writing.
No service charge shall be made for any registration of
transfer or for any exchange of Securities, but the Company may
require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any
registration or transfer or exchange of Securities, other than
exchanges pursuant to Section 3.4 or 10.7 not involving any
transfer.
The Company shall not be required (i) to issue, register
the transfer of, or exchange any Securities for a period beginning
at the opening of business 15 days before any selection for
redemption of Securities of like tenor and of the series of which
such Security is a part and ending at the close of business on the
earliest date on which the relevant notice of redemption is deemed
to have been given to all Holders of Securities of like tenor and
of such series to be redeemed; (ii) to register the transfer of or
exchange any Registered Security so selected for redemption, in
whole or in part, except the unredeemed portion of any Security
being redeemed in part; or (iii) to exchange any Bearer Security
so selected for redemption, except that such a Bearer Security may
be exchanged for a Registered Security of that series and like
tenor; provided that such Registered Security shall be
simultaneously surrendered for redemption.
Section 3.6. Replacement Securities. If a mutilated
Security or a Security with a mutilated coupon appertaining to it
is surrendered to the Trustee, together with, in proper cases,
such security or indemnity as may be required by the Company or
the Trustee to save each of them harmless, the Company shall
execute and the Trustee shall authenticate and deliver a
replacement Registered Security, if such surrendered Security was
a Registered Security, or a replacement Bearer Security with
coupons corresponding to the coupons appertaining to the
surrendered Security, if such surrendered Security was a Bearer
Security, of the same series and date of maturity, if the
Trustee's requirements are met.
If there shall be delivered to the Company and the
Trustee (i) evidence to their satisfaction of the destruction,
loss or theft of any Security or Security with a destroyed, lost
or stolen coupon and (ii) such security or indemnity as may be
required by them to save each of them and any agent of either of
them harmless, then, in the absence of notice to the Company or
the Trustee that such Security or coupon has been acquired by a
bona fide purchaser, the Company shall execute and the Trustee
shall authenticate and deliver in lieu of any such destroyed, lost
or stolen Security or in exchange for the Security to which a
destroyed, lost or stolen coupon appertains (with all appurtenant
coupons not destroyed, lost or stolen), a replacement Registered
Security, if such Holder's claim appertains to a
Registered Security, or a replacement Bearer Security with coupons
corresponding to the coupons appertaining to the destroyed, lost
or stolen Bearer Security or the Bearer Security to which such
lost, destroyed or stolen coupon appertains, if such Holder's
claim appertains to a Bearer Security, of the same series and
principal amount, containing identical terms and provisions and
bearing a number not contemporaneously outstanding with coupons
corresponding to the coupons, if any, appertaining to the
destroyed, lost or stolen Security.
In case any such mutilated, destroyed, lost or stolen
Security or coupon has become or is about to become due and
payable, the Company in its discretion may, instead of issuing a
new Security or coupon, pay such Security or coupon; provided,
however, that payment of principal of and any premium or interest
on Bearer Securities shall, except as otherwise provided in
Section 9.2, be payable only at an office or agency located
outside the United States and, unless otherwise specified as
contemplated by Section 3.1, any interest on Bearer Securities
shall be payable only upon presentation and surrender of the
coupons appertaining thereto.
Upon the issuance of any new Security under this
Section, the Company may require the payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed
in relation thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith.
Every new Security of any series with its coupons, if
any, issued pursuant to this Section in lieu of any destroyed,
lost or stolen Security, or in exchange for a Security to which a
destroyed, lost or stolen coupon appertains, shall constitute an
original additional contractual obligation of the Company, whether
or not the destroyed, lost or stolen Security and its coupon, if
any, or the destroyed, lost or stolen coupon, shall be at any time
enforceable by anyone, and shall be entitled to all the benefits
of this Indenture equally and proportionately with any and all
other Securities of that series and their coupons, if any, duly
issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with
respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities or coupons.
Section 3.7. Payment of Interest; Interest Rights
Preserved.
(a) Unless otherwise provided as contemplated by
Section 3.1, interest, if any, on any Registered Security 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 Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for
such interest at the office or agency maintained for such purpose
pursuant to Section 9.2; provided, however, that, at the option of
the Company, interest on any series of Registered Securities that
bear interest may be paid (i) by check mailed to the address of
the Person entitled thereto as it shall appear on the Register of
Holders of Securities of such series or (ii) to the extent
specified as contemplated by Section 3.1, by wire transfer to an
account maintained by the Person entitled thereto as specified in
the Register of Holders of Securities of such series.
Unless otherwise provided as contemplated by
Section 3.1, (i) interest, if any, on Bearer Securities shall be
paid only against presentation and surrender of the coupons for
such interest installments as are evidenced thereby as they mature
and (ii) original issue discount, if any, on Bearer Securities
shall be paid only against presentation and surrender of such
Securities; in either case at the office of a Paying Agent located
outside the United States, unless the Company shall have otherwise
instructed the Trustee in writing provided that any such
instruction for payment in the United States does not cause any
Bearer Security to be treated as a "registrationrequired
obligation" under the United States law and regulations. The
interest, if any, on any temporary Bearer Security shall be paid,
as to any installment of interest evidenced by a coupon attached
thereto only upon presentation and surrender of such coupon and,
as to other installments of interest, only upon presentation of
such Security for notation thereon of the payment of such
interest. If at the time a payment of principal of or interest,
if any, on a Bearer Security or coupon shall become due, the
payment of the full amount so payable at the office or offices of
all the Paying Agents outside the United States is illegal or
effectively precluded because of the imposition of exchange
controls or other similar restrictions on the payment of such
amount in Dollars, then the Company may instruct the Trustee to
make such payments at a Paying Agent located in the United States,
provided that provision for such payment in the United States
would not cause such Bearer Security to be treated as a
"registration-required obligation" under the United States law and
regulations.
(b) Unless otherwise provided as contemplated by
Section 3.1, any interest on any Registered Security of any
series 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 election in each case, as provided in clause (1)
or (2) below:
(1) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the
Registered Securities of such series (or their
respective Predecessor Securities) are registered at
the close of business on a Special Record Date for
the payment of such Defaulted Interest, which shall
be fixed in the following manner. The Company shall
deposit with the Trustee an amount of money equal to
the aggregate amount proposed to be paid in respect
of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such
deposit prior to the date of the proposed payment,
such money when deposited to be held in trust for
the benefit of the Persons entitled to such
Defaulted Interest as in this clause (1) provided.
Thereupon the Trustee shall fix a Special Record
Date for the payment of such Defaulted Interest
which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt
by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the
Company of such Special Record Date and, in the name
and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid,
to each Holder of Registered Securities of such
series at his address as it appears in the Register,
not less than 10 days prior to such Special Record
Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date
therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names
the Securities of such series (or their respective
Predecessor Securities) are registered at the close
of business on such Special Record Date and shall no
longer be payable pursuant to the following clause
(2).
(2) The Company may make payment of any Defaulted
Interest to the Persons in whose names the
Registered Securities of such series (or their
respective Predecessor Securities) are registered at
the close of business on a specified date in any
other lawful manner not inconsistent with the
requirements of any securities exchange on which
such Securities may be listed, and upon such notice
as may be required by such exchange, if, after
notice given by the Company to the Trustee of the
proposed payment pursuant to this clause (2), such
manner of payment shall be deemed practicable by the
Trustee.
(c) Subject to the foregoing provisions of this Section
and Section 3.5, each Security delivered under this Indenture upon
registration of transfer of or in exchange for or in lieu of any
other Security shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Security.
Section 3.8. Persons Deemed Owners. Prior to due
presentment of any Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or
the Trustee may treat the Person in whose name such Registered
Security is registered as the owner of such Registered Security
for the purpose of receiving payment of principal of, premium, if
any, and (subject to Section 3.7) interest, if any, on such
Registered Security and for all other purposes whatsoever, whether
or not such Registered Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
The Company, the Trustee and any agent of the Company or
the Trustee may treat the bearer of any Bearer Security and the
bearer of any coupon as the absolute owner of such Bearer Security
or coupon for the purpose of receiving payment thereof or on
account thereof and for all other purposes whatsoever, whether or
not such Bearer Security or coupon 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.
None of the Company, the Trustee or any agent of the
Company or the Trustee shall have any responsibility or liability
for any aspect of the records relating to or payments made on
account of beneficial ownership interests of a Security in global
form, or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interests. Notwithstanding
the foregoing, with respect to any Security in global form,
nothing herein shall prevent the Company or the Trustee, or any
agent of the Company or the Trustee, from giving effect to any
written certification, proxy or other authorization furnished by
any Depositary (or its nominee), as a Holder, with respect to
such Security in global form or impair, as between such Depositary
and owners of beneficial interests in such Security in global
form, the operation of customary practices governing the exercise
of the rights of such Depositary (or its nominee) as Holder of
such Security in global form.
Section 3.9. Cancellation. The Company at any time may
deliver Securities and coupons to the Trustee for cancellation.
The Registrar and any Paying Agent shall forward to the Trustee
any Securities and coupons surrendered to them for replacement,
for registration of transfer, or for exchange or payment. The
Trustee shall cancel all Securities and coupons surrendered for
replacement, for registration of transfer, or for exchange,
payment, redemption or cancellation and shall return all such
cancelled Securities to the Company. The Company may not issue
new Securities to replace Securities that it has paid or delivered
to the Trustee for cancellation, except as expressly permitted in
the terms of Securities for any particular series or as permitted
pursuant to the terms of this Indenture.
Section 3.10. Computation of Interest. Except as
otherwise specified as contemplated by Section 3.1, (i) interest
on any Securities that bear interest at a fixed rate shall be
computed on the basis of a 360-day year of twelve 30-day months
and, for any period shorter than a full calendar month, on the
basis of the actual number of days elapsed in such period, and
(ii) interest on any Securities that bear interest at a variable
rate shall be computed on the basis of the actual number of days
in an interest period divided by 360.
Section 3.11. Currency and Manner of Payment in Respect
of Securities. (a) Unless otherwise specified with respect to
any Securities pursuant to Section 3.1, with respect to Registered
Securities of any series not permitting the election provided for
in paragraph (b) below or the Holders of which have not made the
election provided for in paragraph (b) below, and with respect to
Bearer Securities of any series, except as provided in paragraph
(d) below, payment of the principal of, premium, if any, and
interest, if any, on any Registered or Bearer Security of such
series will be made in the currency or currencies or currency unit
or units in which such Registered Security or Bearer Security, as
the case may be, is payable. The provisions of this Section 3.11
may be modified or superseded pursuant to Section 3.1 with respect
to any Securities. For all purposes of this Indenture, currency
units shall include any composite currency.
(b) It may be provided pursuant to Section 3.1, with
respect to Registered Securities of any series, that Holders shall
have the option, subject to paragraphs (d) and (e) below, to
receive payments of principal of, premium, if any, or interest, if
any, on such Registered Securities in any of the currencies or
currency units which may be designated for such election by
delivering to the Trustee (or the applicable Paying Agent) a
written election with signature guarantees and in the applicable
form established pursuant to Section 3.1, not later than the close
of business on the Election Date immediately preceding the
applicable payment date. If a Holder so elects to receive such
payments in any such currency or currency unit, such election will
remain in effect for such Holder or any transferee of such Holder
until changed by such Holder or such transferee by written notice
to the Trustee (or any applicable Paying Agent) for such series of
Registered Securities (but any such change must be made not later
than the close of business on the Election Date immediately
preceding the next payment date to be effective for the payment to
be made on such payment date, and no such
change of election may be made with respect to payments to be made
on any Registered Security of such series with respect to which an
Event of Default has occurred or with respect to which the Company
has deposited funds pursuant to Article 4 or with respect to which
a notice of redemption has been given by the Company). Any Holder
of any such Registered Security who shall not have delivered any
such election to the Trustee (or any applicable Paying Agent) not
later than the close of business on the applicable Election Date
will be paid the amount due on the applicable payment date in the
relevant currency or currency unit as provided in Section 3.11(a).
The Trustee (or the applicable Paying Agent) shall notify the
Exchange Rate Agent as soon as practicable after the Election Date
of the aggregate principal amount of Registered Securities for
which Holders have made such written election.
(c) If the election referred to in paragraph (b) above
has been provided for with respect to any Registered Securities of
a series pursuant to Section 3.1, then, unless otherwise specified
pursuant to Section 3.1 with respect to any such Registered
Securities, not later than the fourth Business Day after the
Election Date for each payment date for such Registered
Securities, the Exchange Rate Agent will deliver to the Company a
written notice specifying, in the currency or currencies or
currency unit or units in which Registered Securities of such
series are payable, the respective aggregate amounts of principal
of, premium, if any, and interest, if any, on such Registered
Securities to be paid on such payment date, and specifying the
amounts in such currency or currencies or currency unit or units
so payable in respect of such Registered Securities as to which
the Holders of Registered Securities denominated in any currency
or currencies or currency unit or units shall have elected to be
paid in another currency or currency unit as provided in paragraph
(b) above. If the election referred to in paragraph (b) above has
been provided for with respect to any Registered Securities of a
series pursuant to Section 3.1, and if at least one Holder has
made such election, then, unless otherwise specified pursuant to
Section 3.1, on the second Business Day preceding such payment
date the Company will deliver to the Trustee (or the applicable
Paying Agent) an Exchange Rate Officers' Certificate in respect of
the Dollar, Foreign Currency or Currencies, ECU or other currency
unit payments to be made on such payment date. Unless otherwise
specified pursuant to Section 3.1, the Dollar, Foreign Currency or
Currencies, ECU or other currency unit amount receivable by
Holders of Registered Securities who have elected payment in a
currency or currency unit as provided in paragraph (b) above shall
be determined by the Company on the basis of the applicable Market
Exchange Rate in effect on the second Business Day (the "Valuation
Date") immediately preceding each payment date, and such
determination shall be conclusive and binding for all purposes,
absent manifest error.
(d) If a Conversion Event occurs with respect to a
Foreign Currency, ECU or any other currency unit in which any of
the Securities are denominated or payable otherwise than pursuant
to an election provided for pursuant to paragraph (b) above, then,
with respect to each date for the payment of principal of,
premium, if any, and interest, if any, on the applicable
Securities denominated or payable in such Foreign Currency, ECU or
such other currency unit occurring after the last date on which
such Foreign Currency, ECU or such other currency unit was used
(the "Conversion Date"), the Dollar shall be the currency of
payment for use on each such payment date (but such Foreign
Currency, ECU or such other currency unit that was previously the
currency of payment shall, at the Company's election, resume
being the currency of payment on the first such payment date
preceded by 15 Business Days during which the circumstances which
gave rise to the Dollar becoming such currency no longer prevail).
Unless otherwise specified pursuant to Section 3.1, the Dollar
amount to be paid by the Company to the Trustee or any applicable
Paying Agent and by the Trustee or any applicable Paying Agent to
the Holders of such Securities with respect to such payment date
shall be, in the case of a Foreign Currency other than a currency
unit, the Dollar Equivalent of the Foreign Currency or, in the
case of a Foreign Currency that is a currency unit, the Dollar
Equivalent of the Currency Unit, in each case as determined by the
Exchange Rate Agent in the manner provided in paragraph (f) or (g)
below.
(e) Unless otherwise specified pursuant to
Section 3.1, if the Holder of a Registered Security denominated in
any currency or currency unit shall have elected to be paid in
another currency or currency unit or in other currencies as
provided in paragraph (b) above, and (i) a Conversion Event occurs
with respect to any such elected currency or currency unit, such
Holder shall receive payment in the currency or currency unit in
which payment would have been made in the absence of such election
and (ii) if a Conversion Event occurs with respect to the currency
or currency unit in which payment would have been made in the
absence of such election, such Holder shall receive payment in
Dollars as provided in paragraph (d) of this Section 3.11 (but,
subject to any contravening valid election pursuant to paragraph
(b) above, the elected payment currency or currency unit, in the
case of the circumstances described in clause (i) above, or the
payment currency or currency unit in the absence of such election,
in the case of the circumstances described in clause (ii) above,
shall, at the Company's election, resume being the currency or
currency unit of payment with respect to Holders who have so
elected, but only with respect to payments on payment dates
preceded by 15 Business Days during which the circumstances which
gave rise to such currency or currency unit, in the case of the
circumstances described in clause (i) above, or the Dollar, in the
case of the circumstances described in clause (ii) above, becoming
the currency or currency unit, as applicable, of payment, no
longer prevail).
(f) The "Dollar Equivalent of the Foreign Currency"
shall be determined by the Exchange Rate Agent and shall be
obtained for each subsequent payment date by the Exchange Rate
Agent by converting the specified Foreign Currency into Dollars at
the Market Exchange Rate on the Conversion Date.
(g) The "Dollar Equivalent of the Currency Unit" shall
be determined by the Exchange Rate Agent and, subject to the
provisions of paragraph (h) below, shall be the sum of each amount
obtained by converting the Specified Amount of each Component
Currency (as each such term is defined in paragraph (h) below)
into Dollars at the Market Exchange Rate for such Component
Currency on the Valuation Date with respect to each payment.
(h) For purposes of this Section 3.11 the following
terms shall have the following meanings:
A "Component Currency" shall mean any currency which, on
the Conversion Date, was a component currency of the relevant
currency unit, including, but not limited to, ECU.
"Election Date" shall mean the Regular Record Date for
the applicable series of Registered Securities as specified
pursuant to Section 3.1 by which the written election referred to
in Section 3.11(b) may be made.
A "Specified Amount" of a Component Currency shall mean
the number of units of such Component Currency or fractions
thereof which such Component Currency represented in the relevant
currency unit, including, but not limited to, ECU, on the
Conversion Date. If after the Conversion Date the official unit
of any Component Currency is altered by way of combination or
subdivision, the Specified Amount of such Component Currency shall
be divided or multiplied in the same proportion. If after the
Conversion Date two or more Component Currencies are consolidated
into a single currency, the respective Specified Amounts of such
Component Currencies shall be replaced by an amount in such single
currency equal to the sum of the respective Specified Amounts of
such consolidated Component Currencies expressed in such single
currency, and such amount shall thereafter be a Specified Amount
and such single currency shall thereafter be a Component Currency.
If after the Conversion Date any Component Currency shall be
divided into two or more currencies, the Specified Amount of such
Component Currency shall be replaced by specified amounts of such
two or more currencies, the sum of which, at the Market Exchange
Rate of such two or more currencies on the date of such
replacement, shall be equal to the Specified Amount of such former
Component Currency and such amounts shall thereafter be Specified
Amounts and such currencies shall thereafter be Component
Currencies. If, after the Conversion Date of the relevant
currency unit, including, but not limited to, ECU, a Conversion
Event (other than any event referred to above in this definition
of "Specified Amount") occurs with respect to any Component
Currency of such currency unit and is continuing on the applicable
Valuation Date, the Specified Amount of such Component Currency
shall, for purposes of calculating the Dollar Equivalent of the
Currency Unit, be converted into Dollars at the Market Exchange
Rate in effect on the Conversion Date of such Component Currency.
All decisions and determinations of the Exchange Rate
Agent regarding the Dollar Equivalent of the Foreign Currency, the
Dollar Equivalent of the Currency Unit, the Market Exchange Rate
and changes in the Specified Amounts as specified above shall be
in its sole discretion and shall, in the absence of manifest
error, be conclusive for all purposes and irrevocably binding upon
the Company, the Trustee (and any applicable Paying Agent) and all
Holders of Securities denominated or payable in the relevant
currency, currencies or currency units. The Exchange Rate Agent
shall promptly give written notice to the Company and the Trustee
of any such decision or determination.
In the event that the Company determines in good faith
that a Conversion Event has occurred with respect to a Foreign
Currency, the Company will promptly give written notice thereof to
the Trustee (or any applicable Paying Agent) and to the Exchange
Rate Agent (and the Trustee (or such Paying Agent) will promptly
thereafter give notice in the manner provided in Section 1.6 to
the affected Holders) specifying the Conversion Date. In the
event the Company so determines that a Conversion Event has
occurred with respect to ECU or any other currency unit in which
Securities are denominated or payable, the Company will promptly
give written notice thereof to the Trustee (or any applicable
Paying Agent) and to the Exchange Rate Agent (and the Trustee (or
such Paying Agent) will promptly thereafter give notice in the
manner provided in Section 1.6 to the affected Holders) specifying
the Conversion Date and the Specified Amount of each Component
Currency on the Conversion Date. In the event the Company
determines in good faith that any subsequent change
in any Component Currency as set forth in the definition of
Specified Amount above has occurred, the Company will similarly
give written notice to the Trustee (or any applicable Paying
Agent) and to the Exchange Rate Agent.
The Trustee of the appropriate series of Securities
shall be fully justified and protected in relying and acting upon
information received by it from the Company and the Exchange Rate
Agent and shall not otherwise have any duty or obligation to
determine the accuracy or validity of such information independent
of the Company or the Exchange Rate Agent.
Section 3.12. Appointment and Resignation of Exchange
Rate Agent. (a) Unless otherwise specified pursuant to Section
3.1, if and so long as the Securities of any series (i) are
denominated in a currency other than Dollars or (ii) may be
payable in a currency other than Dollars, or so long as it is
required under any other provision of this Indenture, then the
Company will maintain with respect to each such series of
Securities, or as so required, at least one Exchange Rate Agent.
The Company will cause the Exchange Rate Agent to make the
necessary foreign exchange determinations at the time and in the
manner specified pursuant to Section 3.11 for the purpose of
determining the applicable rate of exchange and, if applicable,
for the purpose of converting the issued currency or currencies or
currency unit or units into the applicable payment currency or
currency unit for the payment of principal, premium, if any, and
interest, if any, pursuant to Section 3.11.
(b) No resignation of the Exchange Rate Agent and no
appointment of a successor Exchange Rate Agent pursuant to this
Section shall become effective until the acceptance of appointment
by the successor Exchange Rate Agent as evidenced by a written
instrument delivered to the Company and the Trustee of the
appropriate series of Securities accepting such appointment
executed by the successor Exchange Rate Agent.
(c) If the Exchange Rate Agent shall resign, be removed
or become incapable of acting, or if a vacancy shall occur in the
office of the Exchange Rate Agent for any cause, with respect to
the Securities of one or more series, the Company, by or pursuant
to a Board Resolution, shall promptly appoint a successor Exchange
Rate Agent or Exchange Rate Agents with respect to the Securities
of that or those series (it being understood that any such
successor Exchange Rate Agent may be appointed with respect to the
Securities of one or more or all of such series and that, unless
otherwise specified pursuant to Section 3.1, at any time there
shall only be one Exchange Rate Agent with respect to the
Securities of any particular series that are originally issued by
the Company on the same date and that are initially denominated
and/or payable in the same currency or currencies or currency unit
or units).
Section 3.13. CUSIP Numbers. The Company in issuing
the Securities may use "CUSIP" numbers (if then generally in use),
and, if so, the Trustee shall use "CUSIP" numbers (in addition to
the other identification numbers printed on the Securities) in
notices of redemption as a convenience to Holders; provided that
any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or
as contained in any notice of a redemption and that reliance may
be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any
defect in or omission of such numbers.
ARTICLE 4
Satisfaction, Discharge and Defeasance
Section 4.1. Termination of Company's Obligations
Under the Indenture. Except as otherwise provided as contemplated
by Section 3.1, this Indenture shall upon Company Request cease to
be of further effect with respect to Securities of or within any
series and any coupons appertaining thereto (except as to any
surviving rights of registration of transfer or exchange of such
Securities and replacement of such Securities which may have been
lost, stolen or mutilated as herein expressly provided for) and
the Trustee, at the expense of the Company shall execute proper
instruments acknowledging satisfaction and discharge of this
Indenture with respect to such Securities and any coupons
appertaining thereto when
(1) either
(A) all such Securities previously authenticated and
delivered and all coupons appertaining thereto
(other than (i) such coupons appertaining to Bearer
Securities surrendered in exchange for Registered
Securities and maturing after such exchange,
surrender of which is not required or has been
waived as provided in Section 3.5, (ii) such
Securities and coupons which have been destroyed,
lost or stolen and which have been replaced or paid
as provided in Section 3.6, (iii) such coupons
appertaining to Bearer Securities called for
redemption and maturing after the relevant
Redemption Date, surrender of which has been waived
as provided in Section 10.6 and (iv) such Securities
and coupons 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 9.3) have been delivered to the Trustee
for cancellation; or
(B) all Securities of such series and, in the case of
(i) or (ii) below, any coupons appertaining thereto
not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable,
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) if redeemable at the option of the Company, are
to be called for redemption within one 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 irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust
for the purpose an amount in the currency or
currencies or currency unit or units in which the
Securities of such series are payable, sufficient
to pay and discharge the entire indebtedness on
such Securities and such coupons not theretofore
delivered to the Trustee for cancellation, for
principal, premium, if any, and interest, if any,
with respect thereto, to the date of such deposit
(in the case of Securities 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; and
(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 as to such series have
been complied with.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligation of the Company to the Trustee and any predecessor
Trustee under Section 6.9, the obligations of the Company to any
Authenticating Agent under Section 6.14 and, if money shall have
been deposited with the Trustee pursuant to subclause (B) of
clause (1) of this Section, the obligations of the Trustee under
Section 4.2 and the last paragraph of Section 9.3 shall survive.
Section 4.2. Application of Trust Funds. Subject to
the provisions of the last paragraph of Section 9.3, all money
deposited with the Trustee pursuant to Section 4.1 shall be held
in trust and applied by it, in accordance with the provisions of
the Securities, the coupons and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to
the Persons entitled thereto, of the principal, premium, if any,
and any interest for whose payment such money has been deposited
with or received by the Trustee, but such money need not be
segregated from other funds except to the extent required by law.
Section 4.3. Applicability of Defeasance Provisions;
Company's Option to Effect Defeasance or Covenant Defeasance. If
pursuant to Section 3.1 provision is made for either or both of
(i) defeasance of the Securities of or within a series under
Section 4.4 or (ii) covenant defeasance of the Securities of or
within a series under Section 4.5, then the provisions of such
Section or Sections, as the case may be, together with the
provisions of Sections 4.6 through 4.9 inclusive, with such
modifications thereto as may be specified pursuant to Section 3.1
with respect to any Securities, shall be applicable to such
Securities and any coupons appertaining thereto, and the Company
may at its option by Board Resolution, at any time, with respect
to such Securities and any coupons appertaining thereto, elect to
have Section 4.4 (if applicable) or Section 4.5 (if applicable) be
applied to such Outstanding Securities and any coupons
appertaining thereto upon compliance with the conditions set forth
below in this Article.
Section 4.4. Defeasance and Discharge. Upon the
Company's exercise of the option specified in Section 4.3
applicable to this Section with respect to the Securities of or
within a series, the Company shall be deemed to have been
discharged from its obligations with respect to such Securities
and any coupons appertaining thereto on the date the conditions
set forth in Section 4.6 are satisfied (hereinafter "defeasance").
For this purpose, such defeasance means that the Company shall be
deemed to have paid and discharged the entire indebtedness
represented by such Securities and any coupons
appertaining thereto which shall thereafter be deemed to be
"Outstanding" only for the purposes of Section 4.7 and the other
Sections of this Indenture referred to in clause (ii) of this
Section, and to have satisfied all its other obligations under
such Securities and any coupons appertaining thereto and this
Indenture insofar as such Securities and any coupons appertaining
thereto are concerned (and the Trustee, at the expense of the
Company, shall on Company Order execute proper instruments
acknowledging the same), except the following which shall survive
until otherwise terminated or discharged hereunder: (i) the rights
of Holders of such Securities and any coupons appertaining thereto
to receive, solely from the trust funds described in Section
4.6(a) and as more fully set forth in such Section, payments in
respect of the principal of, premium if any, and interest, if any,
on such Securities or any coupons appertaining thereto when such
payments are due; (ii) the Company's obligations with respect to
such Securities under Sections 3.5, 3.6, 9.2 and 9.3 and with
respect to the payment of additional amounts, if any, payable with
respect to such Securities as specified pursuant to Section
3.l(b)(16); (iii) the rights, powers, trusts, duties and
immunities of the Trustee hereunder; and (iv) this Article 4.
Subject to compliance with this Article 4, the Company may
exercise its option under this Section notwithstanding the prior
exercise of its option under Section 4.5 with respect to such
Securities and any coupons appertaining thereto. Following a
defeasance, payment of such Securities may not be accelerated
because of an Event of Default.
Section 4.5. Covenant Defeasance. Upon the Company's exercise
of the option specified in Section 4.3 applicable to this Section
with respect to any Securities of or within a series, the Company
shall be released from its obligations under Article 7 and
Sections 9.4 and 9.5, and, if specified pursuant to Section 3.1,
its obligations under any other covenant, with respect to such
Securities and any coupons appertaining thereto on and after the
date the conditions set forth in Section 4.6 are satisfied
(hereinafter, "covenant defeasance"), and such Securities and any
coupons appertaining thereto shall thereafter be deemed to be not
"Outstanding" for the purposes of any direction, waiver, consent
or declaration or Act of Holders (and the consequences of any
thereof) in connection with Article 7 and Sections 9.4 and
9.5, or such other covenant, but shall continue
to be deemed "Outstanding" for all other purposes hereunder. For
this purpose, such covenant defeasance means that, with respect to
such Securities and any coupons appertaining thereto, the Company
may omit to comply with and shall have no liability in respect of
any term, condition or limitation set forth in any such Section or
such other covenant, whether directly or indirectly, by reason of
any reference elsewhere herein to any such Section or such other
covenant or by reason of reference in any such Section or such
other covenant to any other provision herein or in any other
document and such omission to comply shall not constitute a
Default or an Event of Default under Section 5.1(3) or 5.1(5) or
otherwise, as the case may be, but, except as specified above, the
remainder of this Indenture and such Securities and any coupons
appertaining thereto shall be unaffected thereby.
Section 4.6. Conditions to Defeasance or Covenant
Defeasance. The following shall be the conditions to application
of Section 4.4 or Section 4.5 to any Securities of or within a
series and any coupons appertaining thereto:
(a) The Company shall have deposited or caused to be
deposited irrevocably with the Trustee (or another
trustee satisfying the requirements of Section
6.11 who shall agree to comply with, and shall be
entitled to the benefits of, the provisions of
Sections 4.3 through 4.9 inclusive and the last
paragraph of Section 9.3 applicable to the Trustee,
for purposes of such Sections also a "Trustee") as
trust funds in trust for the purpose of making the
payments referred to in clauses (x) and (y) of this
Section 4.6(a), specifically pledged as security
for, and dedicated solely to, the benefit of the
Holders of such Securities and any coupons
appertaining thereto, with instructions to the
Trustee as to the application thereof, (A) money in
an amount (in such currency, currencies or currency
unit in which such Securities and any coupons
appertaining thereto are then specified as payable
at Maturity), or (B) if Securities of such series
are not subject to repayment at the option of
Holders, Government Obligations which through the
payment of interest and principal in respect
thereof in accordance with their terms will
provide, not later than one day before the due date
of any payment referred to in clause (x) or (y) of
this Section 4.6(a), money in an amount or (C) a
combination thereof in an amount, sufficient, in
the opinion of a nationally recognized firm of
independent certified public accountants expressed
in a written certification thereof delivered to the
Trustee, to pay and discharge, and which shall be
applied by the Trustee to pay and discharge, (x)
the principal of, premium, if any, and interest, if
any, on such Securities and any coupons
appertaining thereto on the Maturity of such
principal or installment of principal or interest
and (y) any mandatory sinking fund payments
applicable to such Securities on the day on which
such payments are due and payable in accordance
with the terms of this Indenture and such
Securities and any coupons appertaining thereto.
Before such a deposit the Company may make
arrangements satisfactory to the Trustee for the
redemption of Securities at a future date or dates
in accordance with Article 10, which shall be given
effect in applying the foregoing.
(b) Such defeasance or covenant defeasance shall not
result in a breach or violation of, or constitute a
Default or Event of Default under, this Indenture
or result in a breach or violation of, or
constitute a default under, any other material
agreement or instrument to which the Company is a
party or by which it is bound.
(c) No Default or Event of Default under Section 5.1(4)
or 5.1(5) with respect to such Securities and any
coupons appertaining thereto shall have occurred
and be continuing during the period commencing on
the date of such deposit and ending on the 91st day
after such date (it being understood that this
condition shall not be deemed satisfied until the
expiration of such period).
(d) In the case of an election under Section 4.4, the
Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel to
the effect that (i) the Company has received from,
or there has been published by, the Internal
Revenue Service a ruling, or (ii) since the date of
execution of this Indenture, there has been a
change in the applicable Federal income tax law, in
either case to the effect that, and based thereon
such opinion shall confirm that, the Holders of
such Securities and any coupons appertaining
thereto will not recognize income, gain or loss for
Federal income tax purposes as a result of such
defeasance and will be subject to Federal income
tax on the same amount and in the same manner and
at the same times, as would have been the case if
such deposit, defeasance and discharge had not
occurred.
(e) In the case of an election under Section 4.5, the
Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that the Holders
of such Securities and any coupons appertaining
thereto will not recognize income, gain or loss for
Federal income tax purposes as a result of such
covenant defeasance and will be subject to Federal
income tax on the same amounts, in the same manner
and at the same times as would have been the case
if such covenant defeasance had not occurred.
(f) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel,
each stating that all conditions precedent to the
defeasance under Section 4.4 or the covenant
defeasance under Section 4.5 (as the case may be)
have been complied with and an Opinion of Counsel
to the effect that either (i) as a result of a
deposit pursuant to subsection (a) above and the,
related exercise of the Company's option under
Section 4.4 or Section 4.5 (as the case may be),
registration is not required under the Investment
Company Act of 1940, as amended, by the Company,
with respect to the trust funds representing such
deposit or by the trustee for such trust funds or
(ii) all necessary registrations under said act
have been effected.
(g) Such defeasance or covenant defeasance shall be
effected in compliance with any additional or
substitute terms, conditions or limitations which
may be imposed on the Company in connection
therewith as contemplated by Section 3.1.
Section 4.7. Deposited Money and Government Obligations
to Be Held in Trust. Subject to the provisions of the last
paragraph of Section 9.3, all money and Government Obligations (or
other property as may be provided pursuant to Section 3.1)
(including the proceeds thereof) deposited with the Trustee
pursuant to Section 4.6 in respect of any Securities of any series
and any coupons appertaining thereto shall be held in trust and
applied by the Trustee, in accordance with the provisions of such
Securities and any coupons appertaining thereto and this
Indenture, to the payment, either directly or through any Paying
Agent (including the Company acting as its own Paying Agent) as
the Trustee may determine, to the Holders of such Securities and
any coupons appertaining thereto of all sums due and to become due
thereon in respect of principal, premium, if any, and interest, if
any, but such money need not be segregated from other funds except
to the extent required by law.
Unless otherwise specified with respect to any Security
pursuant to Section 3.1, if, after a deposit referred to in
Section 4.6(a) has been made, (i) the Holder of a Security in
respect of which such deposit was made is entitled to, and does,
elect pursuant to Section 3.11(b) or the terms of such Security to
receive payment in a currency or currency unit other than that in
which the deposit pursuant to Section 4.6(a) has been made in
respect of such Security, or (ii) a Conversion Event occurs as
contemplated in Section 3.11(d) or 3.11(e) or by the terms of any
Security in respect of which the deposit pursuant to Section
4.6(a) has been made, the indebtedness represented by such
Security and any coupons appertaining thereto shall be deemed to
have been, and will be, fully discharged and satisfied through the
payment of the principal of, premium, if any, and interest, if
any, on such Security as the same becomes due out of the proceeds
yielded by converting (from time to time as specified below in the
case of any such election) the amount or other property deposited
in respect of such Security into the currency or currency unit in
which such Security becomes payable as a result of such election
or Conversion Event based on the applicable Market Exchange Rate
for such currency or currency unit in effect on the second
Business Day prior to each payment date, except in the case of a
Conversion Event with respect to such currency or currency unit
which is in effect (as nearly as feasible) at the time of the
Conversion Event.
Section 4.8. Transfers and Distribution at Company
Request. To the extent permitted by the Financial Accounting
Standards Board Statement of Financial Accounting Standards No.
76, as amended or interpreted by the Financial Accounting
Standards Board from time to time, or any successor thereto
("Standard No. 76"), or to the extent permitted by the Commission,
the Trustee shall, from time to time, take one or more of the
following actions as specified in a Company Request:
(a) Retransfer, reassign and deliver to the Company any
securities deposited with the Trustee pursuant to
Section 4.6(a), provided that the Company shall, in
substitution therefor, simultaneously transfer,
assign and deliver to the Trustee other Government
Obligations appropriate to satisfy the Company's
obligations in respect of the relevant Securities;
and
(b) The Trustee (and any Paying Agent) shall promptly
pay to the Company, upon Company Request, any
excess money or securities held by them at any
time, including, without limitation, any assets
deposited with the Trustee pursuant to Section
4.6(a) exceeding those necessary for the purposes
of Section 4.6(a).
The Trustee shall not take the actions described in subsections
(a) and (b) of this Section 4.8 unless it shall have first
received a written report of Arthur Andersen LLP, or another
nationally recognized independent public accounting firm, (i)
expressing their opinion that the contemplated action is permitted
by Standard No. 76 or the Commission, for transactions accounted
for as extinguishment of debt under the circumstances described in
paragraph 3.c of Standard No. 76 or any successor provision, and
(ii) verifying the accuracy, after giving effect to such action or
actions, of the computations which demonstrate that the amounts
remaining to be earned on the Government Obligations deposited
with the Trustee pursuant to Section 4.6(a) will be sufficient for
purposes of Section 4.6(a).
ARTICLE 5
Defaults and Remedies
Section 5.1. Events of Default. An "Event of Default"
occurs with respect to the Securities of any series if (whatever
the reason for such Event of Default and whether it shall be
occasioned by the provisions of Article 12 or be voluntary or
involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(1) the Company defaults in the payment of interest on
any Security of that series or any coupon
appertaining thereto or any additional amount
payable with respect to any Security of that series
as specified pursuant to Section 3.1(b)(16) when
the same becomes due and payable and such default
continues for a period of 30 days;
(2) the Company defaults in the payment of the
principal of or any premium on any Security of that
series when the same becomes due and payable at its
Maturity or on redemption or otherwise, or in the
payment of a mandatory sinking fund payment when
and as due by the terms of the Securities of that
series, and in each case such default continues for
a period of ten days;
(3) the Company defaults in the performance of, or
breaches, any covenant or warranty of the Company
in this Indenture, with respect to any Security of
that series (other than a covenant or warranty a
default in whose performance or whose breach is
elsewhere in this Section specifically dealt with),
and such default or breach continues for a period
of 60 days after there has been given, by
registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the
Holders of at least 25% in principal amount of the
Outstanding Securities of that series, a written
notice specifying such default or breach and
requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder;
(4) the Company pursuant to or within the meaning of
any Bankruptcy Law (A) commences a voluntary case,
(B) consents to the entry of an order for relief
against it in an involuntary case, (C) consents to
the appointment of a Custodian of it or for all or
substantially all of its property, or (D) makes a
general assignment for the benefit of its
creditors;
(5) a court of competent jurisdiction enters an order
or decree under any Bankruptcy Law that (A) is for
relief against the Company in an involuntary case,
(B) appoints a Custodian of the Company for all or
substantially all of its property, or (C) orders
the liquidation of the Company; and the order or
decree remains unstayed and in effect for 90 days;
or
(6) any other Event of Default provided as contemplated
by Section 3.1 with respect to Securities of that
series.
The term "Bankruptcy Law" means Title 11, U.S. Code, or
any similar federal or state law for the relief of debtors. The
term "Custodian" means any receiver, trustee, assignee, liquidator
or similar official under any Bankruptcy Law.
Section 5.2. Acceleration; Rescission and Annulment. If
an Event of Default with respect to the Securities of any series
at the time Outstanding occurs and is continuing, the Trustee or
the Holders of at least 25% in aggregate principal amount of all
of the outstanding Securities of that series, by written notice to
the Company (and, if given by the Holders, to the Trustee), may
declare the principal (or, if the Securities of that series are
Original Issue Discount Securities or Indexed Securities, such
portion of the principal amount as may be specified in the terms
of that series) of all the Securities of that series to be due and
payable and upon any such declaration such principal (or, in the
case of original Issue Discount Securities or Indexed Securities,
such specified amount) shall be immediately due and payable.
At any time after such a declaration of acceleration
with respect to Securities of any series has been made and before
a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter in this Article provided,
the Holders of a majority in aggregate principal amount of the
outstanding Securities of that series, by written notice to the
Trustee, may rescind and annul such declaration and its
consequences if all existing Defaults and Events of Default with
respect to Securities of that series, other than the non-payment
of the principal of Securities of that series which have become
due solely by such declaration of acceleration, have been cured or
waived as provided in Section 5.7. No such rescission shall
affect any subsequent default or impair any right consequent
thereon.
Section 5.3. Collection of Indebtedness and Suits for
Enforcement by Trustee. The Company covenants that if
(1) default is made in the payment of any interest on
any Security or coupon, if any, 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 Security at the
Maturity thereof and such default continues for a
period of 10 days, the Company will, upon demand of
the Trustee, pay to it, for the benefit of the
Holders of such Securities or coupons, if any, the
whole amount then due and payable on such
Securities for principal, premium, if any, and
interest, if any, and, to the extent that payment
of any such interest shall be legally enforceable,
interest on any overdue principal, premium, if any,
and on any overdue interest, at the rate or rates
prescribed therefor in such Securities or coupons,
if any, 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 an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its discretion
proceed to protect and enforce its rights and the rights of the
Holders of Securities of such series by such appropriate judicial
proceedings as the Trustee 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 5.4. Trustee May File Proofs of Claim. The
Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the
claims of the Trustee and the Holders of Securities allowed in any
judicial proceedings relating to the Company, its creditors or its
property.
Section 5.5. Trustee May Enforce Claims Without
Possession of Securities. All rights of action and claims under
this Indenture or the Securities may be prosecuted and enforced by
the Trustee without the possession of any of the Securities or the
production thereof in any proceeding relating thereto.
Section 5.6. Delay or Omission Not Waiver. No delay or
omission by the Trustee or any Holder of any Securities to
exercise any right or remedy accruing upon an Event of Default
shall impair any such right or remedy or constitute a waiver of or
acquiescence in any such Event of Default.
Section 5.7. Waiver of Past Defaults. The Holders of a
majority in aggregate principal amount of Outstanding Securities
of any series by notice to the Trustee may waive on behalf of the
Holders of all Securities of such series a past Default or Event
of Default with respect to that series and its consequences except
(i) a Default or Event of Default in the payment of the principal
of, premium, if any, or interest, if any, on any Security of such
series or any coupon appertaining thereto or (ii) in respect of a
covenant or provision hereof which pursuant to Section 8.2 cannot
be amended or modified without the consent of the Holder of each
outstanding Security of such series adversely 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.
Section 5.8. Control by Majority. The Holders of a
majority in aggregate principal amount of the Outstanding
Securities of each series affected (with each such series voting
as a class) 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 it with
respect to Securities of that series; provided, however, that (i)
the Trustee may refuse to follow any direction that conflicts with
law or this Indenture, (ii) the Trustee may refuse to follow any
direction that is unduly prejudicial to the rights of the Holders
of Securities of such series not consenting, or that would in the
good faith judgment of the Trustee have a substantial likelihood
of involving the Trustee in personal liability and (iii) the
Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
Section 5.9. Limitation on Suits by Holders. No Holder
of any Security of any series or any related coupons 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) the Holder has previously given written notice to
the Trustee of a continuing Event of Default with
respect to the Securities of that series;
(2) the Holders of at least 25% in aggregate principal
amount of the Outstanding Securities of that series
have made a 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
indemnity satisfactory to the Trustee against any
loss, liability or expense to be, or which may be,
incurred by the Trustee in pursuing the remedy;
(4) the Trustee for 60 days after its receipt of such
notice, request and the offer of indemnity has
failed to institute any such proceedings; and
(5) during such 60-day period, the Holders of a
majority in aggregate principal amount of the
Outstanding Securities of that series have not
given to the Trustee a direction inconsistent with
such written request.
No one or more Holders shall have any right in any
manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any
other of such Holders, or to obtain or to seek to obtain priority
or preference over any other of such Holders or to enforce any
right under this Indenture, except in the manner herein provided
and for the equal and ratable benefit of all of such Holders.
Section 5.10. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, but subject
to Section 9.2, the right of any Holder of a Security or coupon to
receive payment of principal of, premium, if any, and, subject to
Sections 3.5 and 3.7, interest, if any, on the Security, on or
after the respective due dates expressed in the Security (or, in
case of redemption, on the redemption dates) and the right of any
Holder of a coupon to receive payment of interest due as provided
in such coupon, or, subject to Section 5.9, to bring suit for the
enforcement of any such payment on or after such respective dates,
shall not be impaired or affected without the consent of such
Holder.
Section 5.11. Application of Money Collected. Subject
to Article 12, if the Trustee collects any money pursuant to this
Article, it shall pay out the money 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, premium, if
any, or interest, if any, upon presentation of the Securities and
any coupons appertaining thereto and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully
paid:
First: to the Trustee for amounts due under Section 6.9;
Second: to Holders of Securities and coupons in
respect of which or for the benefit of which such money has been
collected for amounts due and unpaid on such Securities for
principal of, premium, if any, and interest, if any,
ratably, without preference or priority of any kind, according
to the amounts due and payable on such Securities for principal,
premium, if any, and interest, if any, respectively; and
Third: to the Person or Persons entitled thereto.
Section 5.12. Restoration of Rights and Remedies. If the
Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined
adversely to the Trustee or to such Holder, then and in every such
case, subject to any determination in such proceeding, the Company,
the Trustee and the Holders shall be restored severally and
respectively to their former positions hereunder and thereafter all
rights and remedies of the Trustee and the Holders shall continue as
though no such proceeding had been instituted.
Section 5.13. Rights and Remedies Cumulative. Except as
otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last paragraph
of Section 3.6, no right or remedy herein conferred upon or reserved
to the Trustee or the Holders is intended to be exclusive of any
other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right
or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 5.14. Undertaking for Costs. In any suit for the
enforcement of any right or remedy under this Indenture, or in any
suit against the Trustee for any action taken, suffered or omitted by
it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess
costs against any such party litigant, in the manner and to the
extent provided in the Trust Indenture Act; provided that neither
this Section nor the Trust Indenture Act shall be deemed to authorize
any court to require such an undertaking or to make such an
assessment in any suit instituted by the Company, and any provision
of the Trust Indenture Act to such effect is hereby expressly
excluded from this Indenture, as permitted by the Trust Indenture
Act.
ARTICLE 6
The Trustee
Section 6.1. 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 with respect to the Securities of any
series, the Trustee shall exercise such of the
rights and powers vested in it by this Indenture
with respect to the Securities of such series, and
use the same degree of care and skill in their
exercise, as a prudent person would exercise or use
under the circumstances in the conduct of his 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 willful 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 judgment made in good faith by a
Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining
the pertinent facts; and
(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 Securities
of any series relating to the time, method and
place of conducting any proceeding for any
remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee,
under this Indenture with respect to the
Securities of such series.
(d) 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.
(e) 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 6.2. Rights of Trustee. Subject to the
provisions of the Trust Indenture Act:
(a) The Trustee may rely and shall be protected in
acting or refraining from acting upon any
resolution, certificate, statement, instrument,
opinion, report, notice, request, direction,
consent, order, bond, debenture, note or other
paper or document believed by it to be genuine and
to have been signed or presented by the proper
party or parties.
(b) Any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company
Request or Company Order (other than delivery of
any Security, and any coupons appertaining thereto,
to the Trustee for authentication and delivery
pursuant to Section 3.3, which shall be
sufficiently evidenced as provided therein), and
any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution.
(c) Whenever in the administration of this Indenture
the Trustee shall deem it desirable that a matter
be proved or established prior to taking, suffering
or omitting any action hereunder, the Trustee
(unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its
part, rely upon an Officers' Certificate.
(d) The Trustee may consult with counsel of its
selection and the written advice of such counsel or
any Opinion of Counsel shall be full and complete
authorization and protection in respect of any
action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon.
(e) The Trustee shall be under no obligation to
exercise any of the rights or powers vested in it
by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture,
unless such Holders shall have offered to the
Trustee reasonable security or indemnity against
the costs, expenses and liabilities which might be
incurred by it in compliance with such request or
direction.
(f) The Trustee shall not be bound to make any
investigation into the facts or matters stated in
any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction,
consent, order, bond, debenture, note 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.
(g) The Trustee may act through agents or attorneys and
shall not be responsible for the misconduct or
negligence of any agent or attorney appointed with
due care.
(h) The Trustee shall not be liable for any action it
takes or omits to take in good faith which it
believes to be authorized or within its rights or
powers.
(i) The Trustee shall not be required 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 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.
Section 6.3. Trustee May Hold Securities. The Trustee,
any Paying Agent, any Registrar or any other agent of the Company,
in its individual or any other capacity, may become the owner or
pledgee of Securities and coupons and, subject to Sections 310(b)
and 311 of the Trust Indenture Act, may otherwise deal with the
Company, an Affiliate or Subsidiary with the same rights it would
have if it were not Trustee, Paying Agent, Registrar or such other
agent.
Section 6.4. 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 to in writing with the Company.
Section 6.5. Trustee's Disclaimer. The recitals
contained herein and in the Securities, except the Trustee's
certificate of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representation as to the
validity or adequacy of this Indenture, the Securities or any
coupon. The Trustee shall not be accountable for the Company's
use of the proceeds from the Securities or for monies paid over to
the Company pursuant to the Indenture.
Section 6.6. Notice of Defaults. If a Default occurs
and is continuing with respect to the Securities of any series and
if it is known to the Trustee, the Trustee shall, within 90 days
after it occurs, transmit, in the manner and to the extent
provided in Section 313(c) of the Trust Indenture Act, notice of
all uncured Defaults known to it; provided, however, that, in the
case of a Default in payment on the Securities of any series, the
Trustee may withhold the notice if and so long as the board of
directors, the executive committee or a committee of its
Responsible Officers in good faith determines that withholding
such notice is in the interests of Holders of Securities of that
series; provided further that, in the case of any default or
breach of the character specified in Section 5.1(3) with respect
to the Securities and coupons of such series, no such notice to
Holders shall be given until at least 60 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 with respect to Securities of
such series.
Section 6.7. Reports by Trustee to Holders.
(a) Within 60 days after each May 15 of each year
commencing with the first May 15 after the first issuance of
Securities pursuant to this Indenture, the Trustee shall transmit by
mail to all Holders of Securities as provided in Section 313(c) of
the Trust Indenture Act a brief report dated as of such May 15 if
required by Section 313(a) of the Trust Indenture Act.
The Trustee also shall comply with Section 313(b) and (d) of the
Trust Indenture Act.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock
exchange, if any, upon which the Securities are listed, with the
Commission and with the Company. The Company will promptly notify
the Trustee when the Securities are listed on any stock exchange.
Section 6.8. Securityholder Lists. The Trustee shall
preserve in as current a form as is reasonably practicable the most
recent list available to it of the names and addresses of Holders of
Securities of each series. If the Trustee is not the Registrar, the
Company shall furnish to the Trustee semiannually on or before the
last day of June and December in each year, and at such other times
as the Trustee may request in writing, a list, in such form and as
of such date as the Trustee may reasonably require, containing all
the information in the possession of the Registrar, the Company or
any of its Paying Agents other than the Trustee as to the names and
addresses of Holders of Securities of each such series. If there
are Bearer Securities of any series outstanding, even if the Trustee
is the Registrar, the Company shall furnish to the Trustee such a
list containing such information with respect to Holders of such
Bearer Securities only.
Section 6.9. Compensation and Indemnity.
(a) The Company shall pay to the Trustee from time to time
such compensation as shall be agreed to in writing between the
Company and the Trustee for all services rendered by it hereunder.
The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable out-of-
pocket expenses incurred by it in connection with the performance of
its duties under this Indenture, except any such expense as may be
attributable to its negligence or bad faith.
(b) The Company shall indemnify the Trustee and any
predecessor Trustee for, and hold it harmless against, any loss,
liability or expense, including taxes (other than taxes based upon,
measured by or determined by the income of the Trustee), incurred by
it without negligence or bad faith on its part arising out of or in
connection with its acceptance or administration of the trust or
trusts hereunder. The Trustee shall notify the Company promptly of
any claim for which it may seek indemnity. The Company shall defend
the claim and the Trustee shall cooperate in the defense. The
Trustee may have separate counsel and the Company shall pay the
reasonable fees and expenses of such counsel. The Company need not
pay for any settlement made without its consent.
(c) The Company need not reimburse any expense or
indemnify against any loss or liability incurred by the Trustee
through negligence or bad faith.
(d) To secure the payment obligations of the Company
pursuant to this Section, the Trustee shall have a lien prior to the
Securities of any series on all money or property held or collected
by the Trustee, except that held in trust to pay principal, premium,
if any, and interest, if any, on particular
Securities.
(e) When the Trustee incurs expenses or renders services
in connection with an Event of Default specified in Section 5.1(4) or
Section 5.1(5), the expenses (including the reasonable charges and
expenses of its counsel) and the compensation for the services are
intended to constitute expenses of administration under any
applicable Federal or state bankruptcy, insolvency or other similar
law.
(f) The provisions of this Section shall survive the
termination of this Indenture.
Section 6.10. Replacement of Trustee.
(a) The resignation or removal of the Trustee and the
appointment of a successor Trustee shall become effective only upon
the successor Trustee's acceptance of appointment as provided in
Section 6.11.
(b) The Trustee may resign at any time with respect to the
Securities of any series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee
required by Section 6.11 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 with respect to the
Securities of such series.
(c) The Holders of a majority in aggregate principal
amount of the Outstanding Securities of any series may remove the
Trustee with respect to that series by so notifying the Trustee and
the Company and may appoint a successor Trustee for such series with
the Company's consent.
(d) If at any time:
(1) the Trustee fails to comply with Section 310(b) of the
Trust Indenture Act after written request therefor by
the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months;
(2) the Trustee shall cease to be eligible under Section
310(a) of the Trust Indenture Act and
shall fail to resign after written request therefor
by the Company or by any Holder of a Security who
has been a bona fide Holder of a Security for at
least six months; or
(3) the Trustee becomes incapable of acting, is
adjudged a bankrupt or an insolvent or a receiver
or public officer takes charge of the Trustee or
its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
then, in any such case, (i) the Company by or pursuant to a Board
Resolution may remove the Trustee with respect to all Securities,
or (ii) subject to Section 315(e) of the Trust Indenture Act, any
Holder who has been a bona fide Holder of a Security for at least
six months may, on behalf of himself and all other persons
similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee with respect to all Securities and
the appointment of a successor Trustee or Trustees.
(e) If the Trustee resigns or is removed or if a
vacancy exists in the office of Trustee for any reason, with
respect to Securities of one or more series, the Company, by or
pursuant to Board Resolution, shall promptly appoint a successor
Trustee with respect to the Securities of that or those series (it
being understood that any such successor Trustee may be appointed
with respect to the Securities of one or more or all of such
series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall
comply with the applicable requirements of Section 6.11. If,
within one year after such resignation, removal or incapability,
or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be appointed by Act
of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and
the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance
with the applicable requirements of Section 6.11, become the
successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by
the Company. If no successor Trustee with respect to the
Securities of any series shall have been so appointed by the
Company or the Holders and accepted appointment in the manner
required by Section 6.11, any Holder who has been a bona fide
Holder of a Security of such series for at least six months may,
on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such series.
Section 6.11. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor
Trustee with respect to all Securities, every such successor
Trustee shall execute, acknowledge and deliver to the Company and
to the retiring Trustee an instrument accepting such appointment.
Thereupon, the resignation or removal of the retiring Trustee
shall become effective, and the successor Trustee, without
further act, deed or conveyance, shall become vested with all the
rights, powers and duties of the retiring Trustee; but, on the
request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not
all) series, the Company, the retiring Trustee and such successor
Trustee shall execute and deliver an indenture supplemental hereto
wherein such successor Trustee shall accept such appointment and
which (i) shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, such
successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates,
(ii) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the
Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (iii) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for
or facilitate the administration of the trusts hereunder by more
than one Trustee, it being understood
that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that
each such Trustee shall be trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered
by any other such Trustee and upon the execution and delivery of
such supplemental indenture the resignation or removal of the
retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series to which the appointment of
such successor Trustee relates; but, on request of the Company or
any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder with respect to the
Securities of that or those series to which the appointment of
such successor Trustee relates.
(c) Upon request of any such successor Trustee, the
Company shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all
such rights, powers and trusts referred to in paragraph (a) or (b)
of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment
unless at the time of such acceptance such successor Trustee shall
be qualified and eligible under the Trust Indenture Act.
(e) The Company shall give notice of each resignation
and each removal of the Trustee with respect to the Securities of
any series and each appointment of a successor Trustee with
respect to the Securities of any series in the manner provided for
notices to the Holders of Securities in Section 1.6. Each notice
shall include the name of the successor Trustee with respect to
the securities of such series and the address of its Corporate
Trust office.
Section 6.12. Eligibility; Disqualification. There
shall at all times be a Trustee hereunder which shall be eligible
to act as Trustee under Section 310(a)(1) of the Trust Indenture
Act and shall have a combined capital and surplus of at least
$75,000,000. If such corporation publishes reports of condition
at least annually, pursuant to law or the requirements of Federal,
State, Territorial or District of Columbia 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 6.13. Merger, Conversion, Consolidation or
Succession to Business. Any corporation into which the Trustee
may be merged or converted or with which it may be consolidated,
or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such corporation shall be otherwise
qualified and eligible under this Article, without the execution
or filing of any paper or any further act on the part of any of
the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office,
any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver
the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities.
Section 6.14. Appointment of Authenticating Agent. The
Trustee may appoint an Authenticating Agent or Agents with respect
to one or more series of Securities which shall be authorized to
act on behalf of the Trustee to authenticate Securities of such
series issued upon original issue, exchange, registration of
transfer or partial redemption thereof, and Securities so
authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Any such appointment
shall be evidenced by an instrument in writing signed by a
Responsible Officer of the Trustee, a copy of which instrument
shall be promptly furnished to the Company. Wherever reference is
made in this Indenture to the authentication and delivery of
Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed
on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and,
except as may otherwise be provided pursuant to Section 3.1, shall
at all times be a bank or trust company or corporation organized
and doing business and in good standing under the laws of the
United States of America or of any State or the District of
Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than
$1,500,000 and subject to supervision or examination by Federal or
State authorities. If such Authenticating Agent publishes reports
of condition at least annually, pursuant to law or the
requirements of the aforesaid supervising or examining authority,
then, for the purposes of this Section, the combined capital and
surplus of such Authenticating Agent shall be deemed to be its
combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time an
Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in
this Section.
Any corporation into which an Authenticating Agent may
be merged or converted or with which it may be consolidated, or
any corporation resulting from any merger, conversion or
consolidation to which such Authenticating Agent shall be a party,
or any corporation succeeding to the corporate agency or corporate
trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise
eligible under this Section, without the execution or filing of
any paper or further act on the part of the Trustee or the
Authenticating Agent.
An Authenticating Agent for any series of Securities may
at any time resign by giving written notice of resignation to the
Trustee for such series and to the Company. The Trustee for any
series of Securities may at any time terminate the agency of an
Authenticating Agent by giving written notice of termination to
such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at
any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee for
such series may appoint a successor Authenticating Agent which
shall be acceptable to the Company and shall give notice of such
appointment to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve in the
manner set forth in Section 1.6. 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.
The Company agrees to pay to each Authenticating Agent
from time to time reasonable compensation including reimbursement
of its reasonable expenses for its services under this Section.
If an appointment with respect to one or more series is
made pursuant to this Section, the Securities of such series may
have endorsed thereon, in addition to or in lieu of the Trustee's
certificate of authentication, an alternate certificate of
authentication substantially in the following form:
This is one of the Securities of a series issued under the
within-mentioned Indenture.
Dated: ____________________ The Bank of New York,
as Trustee
By________________________ as
Authenticating Agent
By________________________
Authorized Signatory
Sections 6.2, 6.3, 6.5 and 6.9 shall be applicable to any
Authenticating Agent.
Section 6.15. Trustee's Application for Instructions
from the Company. Any application by the Trustee for written
instructions from the Company may, at the option of the Trustee,
set forth in writing any action proposed to be taken or omitted by
the Trustee under this Indenture and the date on and/or after
which such action shall be taken or such omission shall be
effective. The Trustee shall not be liable for any action taken
by, or omission of, the Trustee in accordance with a proposal
included in such application on or after the date specified in
such application (which date shall not be less than fifteen
Business Days after the date any officer of the Company actually
receives such application, unless any such officer shall have
consented in writing to any earlier date) unless prior to taking
any such action (or the effective date in the case of an
omission), the Trustee shall have received written instructions in
response to such application specifying the action to be taken or
omitted.
ARTICLE 7
Consolidation, Merger or Sale by the Company
The Company may merge or consolidate with or into any
other corporation or sell, convey, transfer or otherwise dispose
of all or substantially all of its assets to any person, firm or
corporation, if (i)(A) in the case of a merger or consolidation,
the Company is the surviving corporation or (B) in the case of a
merger or consolidation where the Company is not the surviving
corporation and in the case of any such sale, conveyance or other
disposition, the successor or acquiring corporation is a
corporation organized and existing under the laws of the United
States or a State thereof and such corporation expressly assumes
by supplemental indenture all the obligations of the Company under
the Securities and any coupons appertaining thereto and under this
Indenture, (ii) immediately thereafter, giving effect to such
merger or consolidation, or such sale, conveyance, transfer or
other disposition, no Default or Event of Default shall have
occurred and be continuing, and (iii) the Company has delivered to
the Trustee an Officers' Certificate and an Opinion of Counsel
each stating that such merger or consolidation, or such sale,
conveyance, transfer or other disposition complies with this
Article and that all conditions precedent herein provided for
relating to such transaction have been complied with. In the
event of the assumption by a successor corporation of the
obligations of the Company as provided in clause (i)(B) of the
immediately preceding sentence, such successor corporation shall
succeed to and be substituted for the Company hereunder and under
the Securities and any coupons appertaining thereto and all such
obligations of the Company shall terminate.
ARTICLE 8
Supplemental Indentures
Section 8.1. Supplemental Indentures Without Consent of
Holders. Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and
from time to time, may enter into indentures supplemental hereto,
in form reasonably 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 Securities;
(2) to add to the covenants of the Company for the
benefit of the Holders of all or any series of
Securities (and if such covenants are to be for the
benefit of less than all series of Securities,
stating that such covenants are expressly being
included solely for the benefit of such series) or
to surrender any right or power herein conferred
upon the Company;
(3) to add any additional Events of Default with
respect to all or any series of Securities;
(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to
facilitate the issuance of Bearer Securities
(including, without limitation, to provide that
Bearer Securities may be registrable as to
principal only) or to facilitate the issuance of
Securities in global form;
(5) to add to, change or eliminate any of the
provisions of this Indenture, provided that any
such addition, change or elimination shall become
effective only when there is no Security
Outstanding of any series created prior to the
execution of such supplemental indenture which is
entitled to the benefit of such provision;
(6) to secure the Securities;
(7) to establish the form or terms of Securities of any
series as permitted by Sections 2.1 and 3.1;
(8) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with
respect to the Securities of one or more series and
to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or
facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the
requirements of Section 6.10;
(9) if allowed without penalty under applicable laws
and regulations, to permit payment in the United
States (including any of the states and the
District of Columbia), its territories, its
possessions and other areas subject to its
jurisdiction of principal, premium, if any, or
interest, if any, on Bearer Securities or coupons,
if any;
(10) to correct or supplement any provision herein or in
any supplemental indenture which may be defective
or inconsistent with any other provision herein or
in any supplemental indenture, to cure any
ambiguity or correct any mistake or to make any
other provisions with respect to matters or
questions arising under this Indenture, provided
such action shall not adversely affect the
interests of the Holders of Securities of any
series; or
(11) to comply with any requirement of the Commission in
connection with the qualification of this Indenture
under the Trust Indenture Act.
Section 8.2. Supplemental Indentures With Consent of
Holders. With the written consent of the Holders of a majority of
the aggregate principal amount of the Outstanding Securities of
each series adversely affected by such supplemental indenture, the
Company and the Trustee may enter into an indenture or indentures
supplemental hereto to add any provisions to or to change or
eliminate any provisions of this Indenture or of any other
indenture supplemental hereto or to modify the rights of the
Holders of Securities of each such series; provided, however, that
without the consent of the Holder of each Outstanding Security
affected thereby, an amendment under this Section may not:
(1) change the Stated Maturity of the principal of, or
any installment of principal of or interest on, any
Security, or reduce the principal amount thereof or
the rate of interest thereon or any premium payable
upon the redemption thereof, or reduce the amount
of the principal of an Original Issue Discount
Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof
pursuant to Section 5.2, or change the coin or
currency in which, any Securities or any premium or
the interest thereon is payable, or impair the
right to institute suit
for the enforcement of any such payment on or after
the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date), or
modify the provisions of this indenture with
respect to the subordination of the Securities, or
adversely affect the right to convert any Security
as may be provided pursuant to Section 3.1 herein;
(2) reduce the percentage of principal amount of the
Outstanding Securities of any series, 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;
(3) change any obligation of the Company to maintain an
office or agency in the places and for the purposes
specified in Section 9.2;
(4) adversely affect the right to convert the
Securities of any series as provided in Article 12
hereof; or
(5) make any change in Section 5.7 or this Section 8.2
except to increase any percentage or to provide
that certain other provisions of this Indenture
cannot be modified or waived with the consent of
the Holders of each Outstanding Security affected
thereby.
For the purposes of this Section 8.2, if the Securities
of any series are issuable upon the exercise of warrants, any
holder of an unexercised and unexpired warrant with respect to
such series shall not be deemed to be a Holder of Outstanding
Securities of such series in the amount issuable upon the exercise
of such warrants.
A supplemental indenture that changes or eliminates any
covenant or other provision of this Indenture, which has expressly
been included solely for the benefit of one or more particular
series of Securities, or that modifies the rights of the Holders
of Securities of such series with respect to such covenant or
other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
It is not necessary under this Section 8.2 for the
Holders to consent to the particular form of any proposed
supplemental indenture, but it is sufficient if they consent to
the substance thereof.
The Company may, but shall not be obligated to, fix a
record date for the purpose of determining the Persons entitled to
consent to any indenture supplemental hereto. If a record date is
fixed, the Holders on such record date, or their duly designated
proxies, and only such Persons, shall be entitled to consent to
such supplemental indenture, whether or not such Holders remain
Holders after such record date; provided, that unless such consent
shall have become effective by virtue of the requisite percentage
having been obtained prior to the date which is 90 days after such
record date, any such consent previously given shall automatically
and without further action by any Holder be cancelled and of no
further effect.
Section 8.3. Compliance with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article shall
comply with the requirements of the Trust Indenture Act as then in
effect.
Section 8.4. Execution of Supplemental Indentures. In
executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the
modification thereby of the trusts created by this Indenture, the
Trustee shall be entitled to receive, and shall be fully protected
in relying upon, an Opinion of Counsel stating that the execution
of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter
into any such supplemental indenture which affects the Trustee's
own rights, duties or immunities under this Indenture or
otherwise.
Section 8.5. Effect of Supplemental Indentures. Upon
the execution of any supplemental indenture under this article,
this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all
purposes; and every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder and of any coupon
appertaining thereto shall be bound thereby.
Section 8.6. Reference in Securities to Supplemental
Indentures. Securities, including any coupons, of any series
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 Securities
including any coupons of any series so modified as to conform, in
the opinion of the Trustee and the Company, to any such
supplemental indenture may be prepared and executed by the Company
and authenticated and delivered by the Trustee in exchange for
Outstanding Securities including any coupons of such series.
ARTICLE 9
Covenants
Section 9.1. Payment of Principal, Premium, If Any, and
Interest. The Company covenants and agrees for the benefit of the
Holders of each series of Securities that it will duly and
punctually pay the principal of, premium, if any, and interest, if
any, on the Securities of that series in accordance with the terms
of the Securities of such series, any coupons appertaining thereto
and this Indenture. An installment of principal or interest shall
be considered paid on the date it is due if the Trustee or Paying
Agent holds on that date money designated for and sufficient to
pay the installment.
Section 9.2. Maintenance of Office or Agency. If
Securities of a series are issued as Registered Securities, the
Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may
be presented or surrendered for payment, where Securities of that
series may be surrendered for registration of transfer or
exchange, where Securities may be surrendered for conversion and
where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served. If
Securities of a series are issuable as Bearer Securities, the
Company will maintain, (i) subject to any laws or regulations
applicable thereto, an office or agency in a Place of Payment for
that series which is located outside the United States, where
Securities of that series and related coupons may be presented and
surrendered for payment; provided, however, that if the Securities
of that series are listed on The International Stock Exchange of
the United Kingdom and the Republic of Ireland Limited, the
Luxembourg Stock Exchange or any other stock exchange located
outside the United States and such stock exchange shall so
require, the Company will maintain a Paying Agent for the
Securities of that series in London, Luxembourg or any other
required city located outside the United States, as the case may
be, so long as the Securities of that series are listed on such
exchange, and (ii) subject to any laws or regulations applicable
thereto, in a Place of Payment for that series located outside the
United States, where Securities of that series may be surrendered
for exchange and where notices and demands to or upon the Company
in respect of the Securities of that series and this Indenture may
be served. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of any
such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
Unless otherwise specified as contemplated by Section
3.1, no payment of principal, premium or interest on Bearer
Securities shall be made at any office or agency of the Company in
the United States, by check mailed to any address in the United
States, by transfer to an account located in the United States or
upon presentation or surrender in the United States of a Bearer
Security or coupon for payment, even if the payment would be
credited to an account located outside the United States;
provided, however, that, if the Securities of a series are
denominated and payable in Dollars, payment of principal of and
any premium or interest on any such Bearer Security shall be made
at the office of the Company's Paying Agent in the Borough of
Manhattan, The City of New York, if (but only if) payment in
Dollars of the full amount of such principal, premium or interest,
as the case may be, at all offices or agencies outside the United
States maintained for the purpose by the Company in accordance
with this Indenture is illegal or effectively precluded by
exchange controls or other similar restrictions.
The Company may also from time to time designate one or
more other offices or agencies where the Securities (including any
coupons, if any) of one or more series may be presented or
surrendered for any or all such purposes and may from time to time
rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in each Place of
Payment for Securities (including any coupons, if any) of any
series for such purposes. The Company will give prompt written
notice to the Trustee of any such designation or rescission and of
any change in the location of any such other office or agency.
Unless otherwise specified as contemplated by Section
3.1, the Trustee shall initially serve as Paying Agent.
Section 9.3. Money for Securities to Be Held in Trust;
Unclaimed Money. If the Company shall at any time act as its own
Paying Agent with respect to any series of Securities, it will, on
or before each due date of the principal of, premium, if any,
or interest, if any, on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal, premium,
if any, or interest, if any, 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 in writing of its
action or failure so to act.
The Company will cause each Paying Agent for any series
of Securities other than the Trustee to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with
the Trustee, subject to the provisions of this Section, that such
Paying Agent will:
(1) hold all sums held by it for the payment of the
principal of, premium, if any, or interest, if any,
on Securities of that series 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 Securities
of that series) in the making of any payment of
principal, premium, if any, or interest, if any, on
the Securities; 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
any principal, premium or interest on any Security of any series
and remaining unclaimed for two years after such principal,
premium, if any, or interest, if any, has become due and payable
shall be paid to the Company on Company Request or (if then held
by the Company) shall be discharged from such trust; and the
Holder of such Security and coupon, if any, shall thereafter, as
an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided,
however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the
Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day
and of general circulation in The City of New York, or cause to be
mailed to such Holder, 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 9.4. Corporate Existence. Subject to
Article 7, the Company will at all times do or cause to be done
all things necessary to preserve and keep in full force and effect
its corporate existence; provided that nothing in this Section 9.4
shall prevent the abandonment or termination of any right or
franchise of the Company, if, in the opinion of the Company, such
abandonment or termination is in the best interests of the Company
and does not materially adversely affect the ability of the
Company to operate its business or to fulfill its obligations
hereunder.
Section 9.5. Insurance. The Company covenants and
agrees that it will maintain, and cause each of its Subsidiaries
to maintain, insurance with responsible and reputable insurance
companies or associations or through a program of self-insurance
in such amounts and covering such risks as are consistent with
sound business practice for corporations engaged in the same or a
similar business similarly situated.
Section 9.6. Reports by the Company. The Company covenants:
(a) to file with the Trustee, within 30 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 it may be required to
file with the Commission pursuant to section 13 or
section 15(d) of the Securities Exchange Act of
1934, as amended; or, if it is not required to file
information, documents or reports pursuant to
either of such sections, then to file with the
Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time
by the Commission, such of the supplementary and
periodic information, documents and reports which
may be required pursuant to section 13 of the
Securities Exchange Act of 1934, as amended, in
respect of a security listed and registered on a
national securities exchange as may be prescribed
from time to time in such rules and regulations;
(b) to file with the Trustee and the Commission, in
accordance with the rules and regulations
prescribed from time to time by the Commission,
such additional information, documents and reports
with respect to compliance by it with the
conditions and covenants provided for in this
Indenture, as may be required from time to time by
such rules and regulations; and
c) to transmit to all Holders of Securities, within
30 days after the filing thereof with the Trustee,
in the manner and to the extent provided in section
313(c) of the Trust Indenture Act, such summaries
of any information, documents and reports required
to be filed by it pursuant to subsections (a) and
(b) of this Section 9.6, as may be required by
rules and regulations prescribed from time to time
by the Commission.
Delivery of such reports, information and documents to
the Trustee is for informational purposes only and the Trustee's
receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information
contained therein, including the Company's compliance with any of
its covenants hereunder (as to which the Trustee is entitled to
rely exclusively on Officers' Certificates).
Section 9.7. Annual Review Certificate. The Company
covenants and agrees to deliver to the Trustee, within 120 days
after the end of each fiscal year of the Company, a brief
certificate from the principal executive officer, principal
financial officer, or principal accounting officer as to his or
her knowledge of the Company's compliance with all conditions and
covenants under this Indenture. For purposes of this Section 9.7,
such compliance shall be determined without regard to any period
of grace or requirement of notice provided under this Indenture.
Section 9.8. Limitation on Dividends and Capital Stock
Acquisitions. The Company covenants and agrees that, if at any
time it has failed to make any payment of interest, principal or
premium on the Securities when due (after giving effect to any
grace period for payment thereof as provided in Section 5.1), the
Company will not, until all defaulted interest on the Securities
and all principal and premium, if any, then due and payable on the
Securities shall have been paid in full, (i) declare set aside or
pay any dividend or distribution on any capital stock of the
Company (except for dividends or distributions in shares of its
capital stock or rights to acquire shares of its capital stock),
or (ii) repurchase, redeem or otherwise acquire, or make any
sinking fund payment for the purchase or redemption of, any shares
of its capital stock (except by conversion into or exchange for
shares of its capital stock and except for a redemption, purchase
or other acquisition of shares of its capital stock made for the
purpose of an employee incentive plan or benefit plan of the
Company or any of its subsidiaries); provided, however, that any
moneys theretofore deposited in any sinking fund with respect to
any preferred stock of the Company in compliance with this Section
9.8 and the provisions of such sinking fund may thereafter be
applied to the purchase or redemption of such preferred stock in
accordance with the terms of such sinking fund without regard to
the restrictions in this Section 9.8.
Section 9.9. Notice of Default. The Company shall file with
the Trustee written notice of the occurrence of any Default or
Event of Default within 30 Business Days of its becoming aware of
any such Default or Event of Default.
ARTICLE 10
Redemption
Section 10.1. Applicability of Article. Securities
(including coupons, if any) of any series which are redeemable
before their Stated Maturity shall be redeemable in accordance
with their terms and (except as otherwise specified as
contemplated by Section 3.1 for Securities of any series) in
accordance with this Article.
Section 10.2. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities, including
coupons, if any, shall be evidenced by or pursuant to a Board
Resolution or an Officers' Certificate. In the case of any
redemption at the election of the Company of less than all the
Securities or coupons, if any, of any series, the Company shall,
at least 60 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, of the
principal amount of Securities of such series to be redeemed and,
if applicable, of the tenor of the Securities to be redeemed. In
the case of any redemption of Securities (i) prior to the
expiration of any restriction on such redemption provided in the
terms of such Securities or elsewhere in this Indenture or (ii)
pursuant to an election of the Company which is subject to a
condition specified in the terms of such Securities, the Company
shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction or condition.
Section 10.3. Selection of Securities to Be Redeemed.
Unless otherwise specified as contemplated by Section 3.1, if less
than all the Securities (including coupons, if any) of a series
with the same original issue date, interest rate and Stated
Maturity are to be redeemed, the Trustee, not more than 45 days
prior to the redemption date, shall select the Securities of the
series to be redeemed in such manner as the Trustee shall deem
fair and appropriate. The Trustee shall make the selection from
Securities of the series that are Outstanding and that have not
previously been called for redemption and may provide for the
selection for redemption of portions (equal to the minimum
authorized denomination for Securities, including coupons, if any,
of that series or any integral multiple thereof) of the principal
amount of Securities, including coupons, if any, of such series of
a denomination larger than the minimum authorized denomination for
Securities of that series. The Trustee shall promptly notify the
Company in writing of the Securities selected by the Trustee for
redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.
For purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of
Securities (including coupons, if any) shall relate, in the case
of any Securities (including coupons, if any) redeemed or to be
redeemed only in part, to the portion of the principal amount of
such Securities (including coupons, if any) which has been or is
to be redeemed.
Section 10.4. Notice of Redemption. Unless otherwise
specified as contemplated by Section 3.1, notice of redemption
shall be given in the manner provided in Section 1.6 not less than
30 days nor more than 60 days prior to the Redemption Date to the
Holders of the Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if fewer than all the Outstanding Securities of a
series are to be redeemed, the identification (and,
in the case of partial redemption, the principal
amounts) of the particular Security or Securities
to be redeemed;
(4) in case any Security is to be redeemed in part
only, the notice which relates to such Security
shall state that on and after the Redemption Date,
upon surrender of such Security, the holder will
receive, without a charge; a new Security or
Securities of authorized denominations for the
principal amount thereof remaining unredeemed;
(5) the Place or Places of Payment where such
Securities, together in the case of Bearer
Securities with all coupons appertaining thereto,
if any, maturing after the Redemption Date, are to
be surrendered for payment for the Redemption
Price;
(6) that Securities of the series called for redemption
and all unmatured coupons, if any, appertaining
thereto must be surrendered to the Paying Agent to
collect the redemption price;
(7) that, on the Redemption Date, the Redemption Price
will become due and payable upon each such
Security, or the portion thereof, to be redeemed
and, if applicable, that interest thereon will
cease to accrue on and after said date;
(8) that the redemption is for a sinking fund, if such
is the case;
(9) that, unless otherwise specified in such notice,
Bearer Securities of any series, if any,
surrendered for redemption must be accompanied by
all coupons maturing subsequent to the Redemption
Date or the amount of any such missing coupon or
coupons will be deducted from the Redemption Price,
unless security or indemnity satisfactory to the
Company, the Trustee and any Paying Agent is
furnished; and
(10) CUSIP number.
Notice of redemption of Securities to be redeemed 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 10.5. Deposit of Redemption Price. On or prior
to 12:00 noon New York City time on 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 9.3) an amount of money in
the currency or currencies (including currency units or composite
currencies) in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 3.1 for the
Securities of such series) sufficient to pay on the Redemption
Date the Redemption Price of, and (unless the Redemption Date
shall be an Interest Payment Date) interest accrued to the
Redemption Date on, all Securities or portions thereof which are
to be redeemed on that date.
Unless any Security by its terms prohibits any sinking
fund payment obligation from being satisfied by delivering and
crediting Securities (including Securities redeemed otherwise than
through a sinking fund), the Company may deliver such Securities
to the Trustee for crediting against such payment obligation in
accordance with the terms of such Securities and this Indenture.
Section 10.6. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become
due and payable at the Redemption Price therein specified, and
from and after such date (unless the Company shall default in the
payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest and the coupons for any
such interest appertaining to any Bearer Security so to be
redeemed, except to the extent provided below, shall be void.
Except as provided in the next succeeding paragraph, upon
surrender of any such Security, including coupons, if any, for
redemption in accordance with said notice, such Security shall be
paid by the Company at the Redemption Price, together with accrued
interest to the Redemption Date; provided, however, that
installments of interest on Bearer Securities whose Stated
Maturity is prior to the Redemption Date shall be payable only at
an office or agency located outside the United States and its
possessions (except as otherwise provided in Section 9.2) and,
unless otherwise specified as contemplated by Section 3.1, only
upon presentation and surrender of coupons for such interest; and
provided further that, unless otherwise specified as contemplated
by Section 3.1, installments of interest on Registered Securities
whose Stated Maturity is prior to the Redemption Date shall be
payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of
business on the relevant Record Dates according to their terms and
the provisions of Section 3.7.
If any Bearer Security surrendered for redemption shall
not be accompanied by all appurtenant coupons maturing after the
Redemption Date, such Bearer Security may be paid after deducting
from the Redemption Price an amount equal to the face amount of
all such missing coupons, or the surrender of such missing coupon
or coupons may be waived by the Company and the Trustee if there
be furnished to them such security or indemnity as they may
require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Bearer Security shall surrender to
the Trustee or any Paying Agent any such missing coupon in respect
of which a deduction shall have been made from the Redemption
Price, such Holder shall be entitled to receive the amount so
deducted; provided, however, that interest represented by coupons
shall be payable only at an office or agency located outside of
the United States (except as otherwise provided pursuant to
Section 9.2) and, unless otherwise specified as contemplated by
Section 3.1, only upon presentation and surrender of those
coupons.
If any Security called for redemption shall not be so
paid upon surrender thereof for redemption, the principal (and
premium, if any) shall, until paid, bear interest from the
Redemption Date at the rate prescribed therefor in the Security.
Section 10.7. Securities Redeemed in Part. Upon
surrender of a Security that is redeemed in part at any Place of
Payment therefor (with, if the Company or the Trustee so require,
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), the
Company shall execute and the Trustee shall authenticate and
deliver to the Holder of that Security, without service charge, a
new Security or Securities of the same series, the same form and
the same Maturity in any authorized denomination equal in
aggregate principal amount to the unredeemed portion of the
principal of the Security surrendered.
ARTICLE 11
Sinking Funds
Section 11.1. Applicability of Article. The provisions
of this Article shall be applicable to any sinking fund for the
retirement of Securities of a series except as otherwise specified
as contemplated by Section 3.1 for Securities of such series.
The minimum amount of any sinking fund payment provided
for by the terms of Securities of any series is herein referred to
as a "mandatory sinking fund payment," and any payment in excess
of such minimum amount provided for by the terms of Securities of
any series is herein referred to as an "optional sinking fund
payment." If provided for by the terms of Securities of any
series, the cash amount of any sinking fund payment may be subject
to reduction as provided in Section 11.2. Each sinking fund
payment shall be applied to the redemption of Securities of any
series as provided for by the terms of Securities of such series.
Section 11.2. Satisfaction of Sinking Fund Payments
with Securities. The Company (i) may deliver Outstanding
Securities of a series (other than any previously called for
redemption) together, in the case of Bearer Securities of such
series, with all unmatured coupons appertaining thereto and (ii)
may apply as a credit Securities of a series which have been
redeemed either at the election of the Company pursuant to the
terms of such Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any
sinking fund payment with respect to the Securities of such series
required to be made pursuant to the terms of such Securities as
provided for by the terms of such series; provided that such
Securities have not been previously so credited. Such Securities
shall be received and credited for such purpose by the Trustee at
the Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such
sinking fund payment shall be reduced accordingly.
Section 11.3. Redemption of Securities for Sinking
Fund. Not less than 60 days prior to each sinking fund payment
date for any series of Securities, the Company will deliver to the
Trustee an Officers' Certificate specifying the amount of the next
ensuing sinking fund payment for that series pursuant to the terms
of that series, the portion thereof, if any, which is to be
satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of
that series pursuant to Section 11.2 and will also deliver to the
Trustee any Securities to be so delivered. Not less than 30 days
before each such sinking fund payment date, the Trustee shall
select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 10.3 and cause
notice of the redemption thereof to be given in the name of and at
the expense of the Company in the manner provided in Section 10.4.
Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated
in Sections 10.6 and 10.7.
ARTICLE 12
Subordination of Securities
SECTION 12.1. Securities Subordinated to Senior Indebtedness.
(a) The Company agrees, and each Holder of the
Securities by acceptance thereof likewise agrees, that the
payment of the principal of, premium, if any, and interest, if
any, on the Securities is subordinated, to the extent and in the
manner provided in this Article 12, to the prior payment in full
of all Senior Indebtedness of the Company.
(b) All provisions of this Article 12 shall be subject
to Section 12.14.
SECTION 12.2. Company Not to Make Payments with Respect
to Securities in Certain Circumstances; Limitations on
Acceleration of Securities.
(a) Upon the maturity of any Senior Indebtedness of the Company
by lapse of time, acceleration or otherwise, all obligations with respect
thereto shall first be paid in full, or such payment duly provided for in
cash or in a manner satisfactory to the holders of such Senior
Indebtedness, before any payment is made on account of the principal of,
premium, if any, or interest, if any, on the Securities or to
redeem, retire, purchase, deposit moneys for the defeasance of or acquire
any of the Securities.
(b) Upon the happening of (i) any default in payment of any
Senior Indebtedness of the Company or (ii) any other default on Senior
Indebtedness of the Company and the maturity of such Senior Indebtedness
is accelerated in accordance with its terms, then, unless (w) such default
relates to Senior Indebtedness of the Company in an aggregate amount equal
to or less than $20 million, (x) such default shall have been cured or
waived or shall have ceased to exist, (y) any such acceleration has been
rescinded, or (z) such Senior Indebtedness has been paid in full, no
direct or indirect payment in cash, property or securities, by set-off or
otherwise (except payment of the Securities from funds previously
deposited in accordance with Section 4.1 at any time such deposit was not
prohibited by this Indenture), shall be made or agreed to be made by the
Company on account of the principal of, premium, if any, or interest, if
any, on the Securities, or in respect of any redemption, retirement,
purchase, deposit of moneys for the defeasance or other acquisition of any
of the Securities in the case of such a default in Senior Indebtedness of
the Company, the Company shall not deposit money for any such payment or
distribution with the Trustee or any Paying Agent nor shall the Company
(if the Company is acting as its own Paying Agent) segregate and hold in
trust money for any such payment or distribution.
(c) Upon the happening of an event of default (other than under
circumstances when the terms of paragraph (b) of this Section 12.2 are
applicable) with respect to any Senior
Indebtedness of the Company pursuant to which the holders thereof are
entitled under the terms of such Senior Indebtedness to immediately
accelerate the maturity thereof (without further notice or expiration of
any applicable grace periods), upon written notice thereof given to each
of the Company and the Trustee by the trustee for or other representative
of the holders of at least $25 million of Senior Indebtedness of the
Company (a "Payment Notice"), then, unless and until such event of default
shall have been cured or waived or shall have ceased to exist, no direct
or indirect payment in cash, property or securities, by set-off or
otherwise (except payment of the Securities from funds previously
deposited in accordance with Section 4.1 at any time such deposit was not
prohibited by this Indenture), shall be made or agreed to be made by the
Company on account of the principal of or premium, if any, or interest, if
any, on the Securities, or in respect of any redemption, retirement,
purchase, deposit of moneys for the defeasance or other acquisition of any
of the Securities, and the Company shall not deposit money for any such
payment or distribution with the Trustee or any Paying Agent nor shall the
Company or a Subsidiary (if the Company or such Subsidiary is acting as
Paying Agent) segregate and hold in trust money for any such payment or
distribution (a "Payment Block"); provided, however, that this Section
12.2(c) shall not prevent the making of any payment for more than 120 days
after a Payment Notice shall have been given unless the Senior
Indebtedness in respect of which such event of default exists has been
declared due and payable in its entirety, in which case no such payment
shall be made until such acceleration has been rescinded or annulled or
such Senior Indebtedness has been paid in full in accordance with its
terms. Notwithstanding the foregoing, (i) not more than one Payment
Notice shall be given with respect to a particular event of default (which
shall not bar subsequent Payment Notices for other such events of
default), (ii) all events of default under Senior Indebtedness occurring
within any 30-day period shall be treated as one event of default to the
extent that one or more Payment Notices are issued in connection therewith
and (iii) no more than two Payment Blocks shall be permitted within any
period of 12 consecutive months. Any payment made in contravention of the
provisions of this Section 12.2(c) shall be returned to the Company.
(d) In the event that, notwithstanding the provisions of
Section 12.2(a) or 12.2(b), the Trustee or the Holder of any Security
shall have received any payment on account of the principal of or premium,
if any, or interest, if any, on the Securities in contravention of Section
12.2(a) or 12.2(b) or after the happening of a default in payment of any
Senior Indebtedness of the Company, or any acceleration of the maturity of
any Senior Indebtedness of the Company, then, in either such case, except
in the case of any such default which shall have been cured or waived or
shall have ceased to exist, such payment (subject to the provisions of
Sections 12.6 and 12.7) shall be held for the benefit of, and shall be
paid over and delivered to, the holders of such Senior Indebtedness of the
Company (pro rata as to each of such holders on the basis of the
respective amounts of Senior Indebtedness of the Company held by them) or
their representative or the trustee under the indenture or other agreement
(if any) pursuant to which Senior Indebtedness of the Company may have
been issued, as their respective interests may appear, for application to
the payment of all Senior Indebtedness of the Company remaining unpaid to
the extent necessary to pay all Senior Indebtedness of the Company in full
in accordance with its terms, after giving effect to any concurrent
payment or distribution to or for the holders of Senior Indebtedness of
the Company.
(e)(1) Upon the occurrence of an Event of Default under Section
5.1(1) through (3) and (6), the Trustee or holders of 25% of the
outstanding principal amount of the Securities of any series must give
notice of such Event of Default and the intention to accelerate to the
Company and any holders of Senior Indebtedness which have theretofore
requested of the Trustee such notice, and no acceleration of the
Securities of any series shall be effective unless and until such Event of
Default is continuing on the sixtieth day after the date of delivery of
such notice. The Company may pay the holders of the Securities of any
series any defaulted payment and all other amounts due following any such
acceleration of the maturity of the Securities if Section 12.2(a) would
not prohibit such payment to be made at that time.
(2) Nothing in this Article 12 shall prevent or delay the
Trustee or the holders of the Securities from taking any action in
connection with the acceleration of the maturity of the Securities
pursuant to Section 5.2 upon the occurrence of an
Event of Default under either of Section 5.1(4) or 5.1(5).
(3) Except as provided in Section 12.2(e)(1), a failure to make
any payment with respect to the Securities as a result of the rights of
holders of Senior Indebtedness of the Company described in Section 12.2(b)
or 12.2(c) will not have any effect on the right of holders of the
Securities to accelerate the maturities thereof as a result of such
payment default. The Company shall give prompt written notice to the
Trustee of any default in the payment of principal of or interest on any
Senior Indebtedness of the Company, and in the event of any such default,
shall provide to the Trustee, in the form of an Officers' Certificate, the
names, addresses and respective amounts due holders of such Senior
Indebtedness or the name and address of the trustee acting on their
behalf, if any. The Trustee shall be entitled to rely conclusively on such
Officers' Certificate without independent verification.
SECTION 12.3. Securities Subordinated to Prior Payment of All
Senior Indebtedness on Dissolution, Liquidation or Reorganization of the
Company. Upon the distribution of assets of the Company in any
Dissolution, winding up, liquidation (total or partial) or similar
proceeding relating to the Company (whether in bankruptcy, insolvency or
receivership proceedings or upon an assignment for the benefit of
creditors or otherwise):
(1) the holders of all Senior Indebtedness of the Company shall
first be entitled to receive payment in full of all Senior
Indebtedness (or to have such payment duly provided for in a manner
satisfactory to them) in cash or in a manner satisfactory to the
holders of Senior Indebtedness of the Company before the Holders of
the Securities, in the case of Senior Indebtedness of the Company,
are entitled to receive any payment on account of the principal of,
premium, if any, or interest, if any, on the Securities;
(2) any payment or distribution of assets of the Company of any
kind or character, whether in cash, property or securities (other
than securities of the Company as reorganized or readjusted or
securities of the Company or any other company, trust or corporation
provided for by a plan of reorganization or readjustment, the payment
of which is junior or otherwise subordinate, at least to the extent
provided in this Article 12 with respect to the Securities, to the
payment of all Senior Indebtedness of the Company at the time
outstanding and to the payment of all securities issued in exchange
therefor to the holders of the Senior Indebtedness of the Company at
the time outstanding), to which the Holders of the Securities or the
Trustee on behalf of the Holders of the Securities would be entitled
except for the provisions of this Article 12, shall be paid by the
liquidating trustee or agent or other person making such payment or
distribution directly to the holders of the Senior Indebtedness of
the Company or their representatives or to the trustee under any
indenture under which such Senior Indebtedness may have been issued
(pro rata) as to each such holder, representative or trustee on the
basis of respective amounts of unpaid Senior Indebtedness held or
represented by each), to the extent necessary to make payment in full
of all Senior Indebtedness of the Company remaining unpaid, after
giving effect to any concurrent payment or distribution or provision
therefor to the holders of such Senior Indebtedness; and
(3) in the event that notwithstanding the foregoing provisions
of this Section 12.3, any payment or distribution
of assets of the Company of any kind or character, whether in cash,
property or securities (other than securities of the Company as
reorganized or readjusted or securities of the Company or any other
company, trust or corporation provided for by a plan of
reorganization or readjustment, the payment of which is junior or
otherwise subordinate, at least to the extent provided in this
Article 12 with respect to the Securities, to the payment of all
Senior Indebtedness of the Company at the time outstanding and to the
payment of all securities issued in exchange therefor to the holders
of the Senior Indebtedness of the Company at the time outstanding),
shall be received by the Trustee or the Holders of the Securities on
account of principal of, premium, if any, or interest, if any, on the
Securities before all Senior Indebtedness of the Company is paid in
full in cash or in a manner satisfactory to the holders of such
Senior Indebtedness in accordance with its terms, or effective
provision made for its payment, such payment or distribution (subject
to the provisions of Sections 12.6 and 12.7) shall be received and
held for the benefit of and paid over to the holders of the Senior
Indebtedness of the Company remaining unpaid or unprovided for or
their representative, or to the trustee under any indenture under
which such Senior Indebtedness of the Company may have been issued
(pro rata as provided in paragraph (2) above), for application to the
payment of such Senior Indebtedness of the Company to the extent
necessary to pay all such Senior Indebtedness of the Company in full
in cash or in a manner satisfactory to the holders of Senior
Indebtedness of the Company, in accordance with its terms, after
giving effect to any concurrent payment or distribution or provision
therefor to the holders of such Senior Indebtedness of the Company.
The Company shall give prompt written notice to the Trustee of
any dissolution, winding up, liquidation or reorganization of the Company
or any assignment for the benefit of the Company's creditors tending
toward the liquidation of the business and assets of the Company.
SECTION 12.4. Holders to Be Subrogated to Rights of Holders of
Senior Indebtedness. Upon the payment in full of all Senior Indebtedness
of the Company in cash or in a manner satisfactory to the holders of such
Senior Indebtedness, the Holders of the Securities shall be subrogated
equally and ratably to the rights of the holders of Senior Indebtedness of
the Company to receive payments or distributions of assets of the Company
applicable to the Senior Indebtedness of the Company until all amounts
owing on the Securities shall be paid in full, and for the purpose of such
subrogation no payments or distributions to the holders of Senior
Indebtedness of the Company by or on behalf of the Company or by or on
behalf of Holders of the Securities by virtue of this Article 12 which
otherwise would have been made to the Holders of the Securities shall, as
between the Company and the Holders of the Securities, be deemed to be
payment by the Company to or on account of Senior Indebtedness of the
Company, it being understood that the provisions of this Article 12 are
intended solely for the purpose of defining the relative rights of the
Holders of the Securities, on the one hand, and the holders of Senior
Indebtedness of the Company, on the other hand.
SECTION 12.5. Obligation of the Company Unconditional. Nothing
contained in this Article 12 or elsewhere in this Indenture or in any
Security is intended to or shall impair, as between the Company and the
Holders of the Securities, the
obligations of the Company, which are absolute and unconditional, to pay
to the Holders of the Securities the principal of (and premium, if any)
and interest, if any, on the Securities as and when the same shall become
due and payable in accordance with their terms, or is intended to or shall
affect the relative rights of the Holders of the Securities and creditors
of the Company other than the holders of Senior Indebtedness of the
Company, nor, except as expressly provided in this Article 12, shall
anything herein or in the Securities prevent the Trustee or the Holder of
any Security from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the rights,
if any, under this Article 12 of the holders of Senior Indebtedness of the
Company in respect of cash, property or securities of the Company upon the
exercise of any such remedy. Upon any distribution of assets of the
Company referred to in this Article 12, the Trustee, subject to the
provisions of Section 6.1, and the Holders of the Securities shall be
entitled to rely upon any order or decree by any court of competent
jurisdiction in which such dissolution, winding up, liquidation or
reorganization proceedings are pending, or a certificate of the
liquidating trustee or agent or other person making any distribution to
the Trustee or the Holders of the securities, for the purpose of
ascertaining the persons entitled to participate in such distribution, the
holders of Senior Indebtedness of the Company 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 12.
Nothing contained in this Article 12 or elsewhere in this
Indenture or in any Security is intended to or shall affect the
obligations of the Company to make, or prevent the Company from making, at
any time except during the pendency of any dissolution, winding up,
liquidation (total or partial) or similar proceeding, and except during
the continuance of any event specified in Section 12.2 (not cured or
waived), payments at any time of the principal of (or premium, if any) or
interest, if any, on the Securities.
SECTION 12.6. Knowledge of Trustee. Notwithstanding any
provision of this Indenture, the Trustee shall not at any time be charged
with knowledge of the existence of any facts which would prohibit the
making of any payment of monies to or by the Trustee until three Business
Days after a Responsible Officer of the Trustee on behalf of the Trustee
shall have received at the Corporate Trust Office of the Trustee written
notice thereof from the Company, any Holder, or the holder or
representative of any class of Senior Indebtedness of the Company
identifying the specific sections of this Indenture involved and
describing in detail the facts that would obligate the Trustee to withhold
payments to Holders of Securities, and prior to such time, the Trustee,
subject to the provisions of Section 6.1, shall be entitled in all
respects conclusively to assume that no such facts exist. The Trustee
shall be entitled to rely on the delivery to it of a written notice by an
individual representing himself to be a holder of Senior Indebtedness of
the Company (or a trustee on behalf of such holder) to establish that such
notice has been given by a holder of any such Senior Indebtedness or a
trustee on behalf of any such holder.
In the event that the Trustee determines in good faith that
further evidence is required with respect to the right of any person as a
holder of Senior Indebtedness of the Company to participate in any payment
or distribution pursuant to this Article, the Trustee may request such
person to furnish evidence to the reasonable satisfaction of the Trustee
as to the amount of
Senior Indebtedness of the Company held by such person, the extent to
which such person is entitled to participate in such payment or
distribution and any other facts pertinent to the rights of such person
under this Article, and if such evidence is not furnished, the Trustee may
defer any payment to such person pending judicial determination as to the
right of such person to receive such payment.
SECTION 12.7. Application by Trustee of Moneys Deposited with
It. If two Business Days prior to the date on which by the terms of this
Indenture any moneys deposited with the Trustee or any Paying Agent (other
than the Company or a Subsidiary) may become payable for any purpose
(including, without limitation, the payment of the principal of, premium,
if any, or interest, if any, on any Security) the Trustee shall not have
received with respect to such moneys the notice provided for in Section
12.6, then 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 shall not be affected by any notice to the contrary which may be
received by it on or after such date. This Section 12.7 shall be
construed solely for the benefit of the Trustee and Paying Agent and shall
not otherwise affect the rights of holders of such Senior Indebtedness.
SECTION 12.8. Subordination Rights Not Impaired by Acts or
Omissions of Company or Holders of Senior Indebtedness. No right of any
present or future holders of any Senior Indebtedness of the Company to
enforce subordination as provided herein shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the
Company or by any act or failure to act by any such holder, or by any
noncompliance by the Company with the terms of this Indenture, regardless
of any knowledge thereof which any such holder may have or be otherwise
charged with.
SECTION 12.9. Holders Authorize Trustee to Effectuate
Subordination of Securities. Each Holder of the Securities by his
acceptance thereof authorizes and expressly directs the Trustee on his
behalf to take such action as may be necessary or appropriate in the
discretion of the Trustee to effectuate the subordination provided in this
Article 12 and appoints the Trustee his attorney in-fact for such purpose,
including, without limitation, in the event of any dissolution, winding
up, liquidation or reorganization of the Company (whether in bankruptcy,
insolvency or receivership proceedings or upon an assignment for the
benefit of creditors or otherwise) tending towards liquidation of the
business and assets of the Company, the timely filing of a claim for the
unpaid balance of its or his Securities in the form required in said
proceedings. If the Trustee does not file a proper claim or proof of debt
in the form required in such proceedings before the expiration of the time
to file such claim or claims, then the holders of Senior Indebtedness of
the Company are hereby authorized to have the right to file and are hereby
authorized to file an appropriate claim for and on behalf of the Holders
of said Securities.
SECTION 12.10. Right of Trustee to Hold Senior Indebtedness.
The Trustee shall be entitled to all of the rights set forth in this
Article 12 in respect of any Senior Indebtedness of the Company at any
time held by it to the same extent as any other holder of such Senior
Indebtedness of the Company, and nothing in this Indenture shall be
construed to deprive the Trustee of any of its rights as such holder.
With respect to the holders of Senior Indebtedness of the Company, the
Trustee undertakes to perform or to observe only such of its
covenants and obligations as are specifically set forth in this Article
12, and no implied covenants or obligations with respect to the holders of
Senior Indebtedness of the Company shall be read into this Indenture
against the Trustee. The Trustee shall not be deemed to owe any fiduciary
duty to the holders of Senior Indebtedness of the Company, and the Trustee
shall not be liable to any holder of Senior Indebtedness of the Company if
it shall mistakenly pay over or deliver to Holders of Securities, the
Company or any other Person moneys or assets to which any holder of such
Senior Indebtedness shall be entitled by virtue of this Article 12 or
otherwise.
SECTION 12.11. Article 12 Not to Prevent Events of Default.
The failure to make a payment on account of principal or interest by
reason of any provision in this Article 12 shall not be construed as
preventing the occurrence of an Event of Default under Section 5.1.
SECTION 12.12. Paying Agents Other Than the Trustee. In case at
any time any Paying Agent (including, without limitation, the Company or
any Subsidiary) other than the Trustee shall have been appointed by the
Company and be then acting hereunder, the term "Trustee" as used in this
Article 12 shall in such case (unless the context shall otherwise require)
be construed as extending to and including such Paying Agent (except the
Company and its subsidiaries in the case of Sections 12.6 and 12.7) within
its meaning as fully for all intents and purposes as if such Paying Agent
were named in this Article 12 in addition to or in place of the Trustee.
SECTION 12.13. Trustee's Compensation Not Prejudiced. Nothing
in this Article 12 shall apply to amounts due to the Trustee pursuant to
Section 6.9.
SECTION 12.14. Trust Moneys Not Subordinated.
Notwithstanding anything contained herein to the contrary, payments from
money held in trust under Article 4 by the Trustee for the payment of
principal of, premium if any, and interest, if any, on the Securities
shall not be subordinated to the prior payment of any Senior Indebtedness
of the Company or subject to the restrictions set forth in this Article 12
and none of the Holders shall be obligated to pay over any such amount to
the Company or any holder of Senior Indebtedness of the Company or any
other creditor of the Company.
SECTION 12.15. Reliance on Judicial Order or
Certificate of Liquidating Agent. Upon any payment or distribution of
assets of the Company referred to in this Article Twelve, the Trustee and
the Holders of the Securities shall be entitled to rely upon any order or
decree entered by any court of competent jurisdiction in which such
insolvency, bankruptcy, receivership, liquidation, reorganization,
dissolution, winding up or similar case or proceeding is pending, or a
certificate of the trustee in bankruptcy, liquidating trustee, custodian,
receiver, assignee for the benefit of creditors, agent or other person
making such payment or distribution, delivered to the Trustee or to the
Holders of Securities, for the purpose of ascertaining the persons
entitled to participate in such payment or distribution, the holders of
Senior Indebtedness and other indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article Twelve.
SECTION 12.16. Trustee Not Fiduciary for Holders or Senior
Indebtedness of the Company. The Trustee shall not be deemed to owe any
fiduciary duty to the Holders of any Senior
Indebtedness and shall not be liable to any such holders if the Trustee
shall in good faith mistakenly pay over or distribute to Holders of
Securities or to the Company or to any other person cash, property or
securities to which any holders of Senior Indebtedness of the Company
shall be entitled by virtue of this Article Twelve or otherwise. The
Trustee shall not be charged with knowledge of the existence of Senior
Indebtedness of the Company or of any facts that would prohibit any
payment hereunder unless a Responsible Officer of the Trustee shall have
received notice to that effect at the address of the Trustee, provided
that the Trustee shall be deemed to have knowledge of the existence of any
Senior Indebtedness to which it acts as Trustee. With respect to the
holders of Senior Indebtedness of the Company, the Trustee undertakes to
perform or to observe only such of its covenants or obligations as are
specifically set forth in this Article Twelve and no implied covenants or
obligations with respect to holders of Senior Indebtedness of the Company
shall be read into this Indenture against the Trustee.
This Indenture may be executed in any number of
counterparts, each of which shall be an original, but such counterparts
shall together constitute but one instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above
written.
UAL CORPORATION
By: /s/ Douglas A. Hacker
Title: Senior Vice President- Finance
Attest:
/s/ Francesca M. Maher
Title: Vice President - Law
and Corporate Secretary
THE BANK OF NEW YORK,
TRUSTEE
By: /s/ Helen Cotiaux
Title: Vice President
Attest:
/s/ Robert F. McIntyre
Title: Assistant Vice President