EXHIBIT 4(b)
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SEARS ROEBUCK ACCEPTANCE CORP.
AND
BNY MIDWEST TRUST COMPANY,
Trustee
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Indenture
Dated as of October 1, 2002
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SEARS ROEBUCK ACCEPTANCE CORP.
INDENTURE
dated as of October 1, 2002
--------------------------
TABLE OF CONTENTS*
PAGE
PARTIES 1
RECITALS 1
ARTICLE I
DEFINITIONS OF CERTAIN TERMS
SECTION 1.1. Definitions I-1
Affiliate I-1
Authenticating Agent I-1
Board I-1
Business Day I-1
Certified Resolution I-1
Commission I-1
Company I-1
Currency I-1
Defaulted Interest I-1
Depository I-2
Dollar I-2
Eligible Obligations I-2
Euro I-2
Fixed Charge Coverage and Ownership AgreementI-2
Fixed Charge Coverage Ratio I-2
Foreign Currency I-2
Global Security I-3
Holder I-3
Indenture I-3
Interest I-3
Interest Payment Date I-3
Market Exchange Rate I-3
Maturity I-3
Officers' Certificate I-3
Opinion of Counsel I-4
Original Issue Discount Security I-4
Outstanding I-4
Person I-4
Redemption Date I-4
Redemption Price I-4
Regular Record Date I-5
Responsible Officer I-5
Sears I-5
Securities I-5
Security Register I-5
Special Record Date I-5
- ----------------
*This table of contents shall not, for any purpose, be deemed
to be a part of the Indenture.
i
Stated Maturity .............................I-5
Subsidiary; Voting Stock.....................I-5
Trustee......................................I-5
U.S. Government Obligations .................I-6
SECTION 1.2.Trust Indenture Act definitions controlling..I-6
ARTICLE II
THE SECURITIES
SECTION 2.1.Amount Unlimited; Issuable in Series; Forms
Generally; Form of Trustee's Certificateof
Authentication II-1
SECTION 2.2.Denominations II-3
SECTION 2.3.Execution,Authentication,Delivery and DatingII-3
SECTION 2.4.Temporary Securities II-4
SECTION 2.5.Registration,Registration of
Transfer and Exchange II-4
SECTION 2.6.Mutilated, Destroyed, Lost and
Stolen Securities II-5
SECTION 2.7.Payment of Interest;Interest
Rights Preserved II-6
SECTION 2.8.Persons Deemed Owners II-7
SECTION 2.9.Cancellation. II-7
SECTION 2.10.Securities Issuable as a Global Security II-7
SECTION 2.11.Currency of Payments in Respect
of Securities II-8
SECTION 2.12.Availability of Currency of Payment in
Respect of Securities II-8
ARTICLE III
COVENANTS OF THE COMPANY
SECTION 3.1.Payment of principal and interest III-1
SECTION 3.2.Maintenance of office or agency
for notices and demands III-1
SECTION 3.3.File certain reports and information
with the Trustee and the Securities and
Exchange Commission III-1
Transmit to Holders summaries of certain
documents filed with the Trustee III-2
Furnish list of Holders to the Trustee III-2
SECTION 3.4.File statement by officers annually with
the Trustee III-2
SECTION 3.5.Duties of paying agent III-2
SECTION 3.6.Certain restrictions III-3
ARTICLE IV
REDEMPTION OF SECURITIES
SECTION 4.1.Applicability of Article IV-1
SECTION 4.2.Election to Redeem; Notice to Trustee IV-1
SECTION 4.3.Selection by Trustee of Securities to Be
Redeemed IV-1
SECTION 4.4.Notice of Redemption IV-1
SECTION 4.5.Deposit of Redemption Price IV-2
SECTION 4.6.Securities Payable on Redemption Date IV-2
SECTION 4.7.Securities Redeemed in Part IV-2
ARTICLE V
SINKING FUNDS
SECTION 5.1.Applicability of Article V-l
SECTION 5.2.Satisfaction of Sinking Fund Payments
with Securities V-l
SECTION 5.3.Redemption of Securities for Sinking Fund V-l
ARTICLE VI
REMEDIES UPON DEFAULT
SECTION 6.1.Defaults defined-acceleration of maturity
upon default-waiver of Default VI-I
ii
SECTION 6.2.Covenant of Company to pay to Trustee
whole amount due on default in
payment of principal or interest-Trustee
may recover judgment for whole amount
due-application of moneys received by
the Trustee VI-3
SECTION 6.3.Trustee may enforce rights of action
without possession of Securities VI-4
SECTION 6.4.Delays or omissions not to impair any
rights or powers accruing upon Default VI-4
SECTION 6.5.In event of default Trustee may protect
and enforce its rights by appropriate
proceedings-holders of a majority in
principal amount of Securities of a
particular series may waive default VI-5
SECTION 6.6.Holders of a majority in principal
amount of Securities of a particular
series may direct exercise of remedies VI-5
SECTION 6.7.Limitation on suits by Holders VI-5
SECTION 6.8.No Securities owned or held by or for
the account of the Company to be
deemed outstanding for purpose of
payment or distribution VI-6
SECTION 6.9.Company and Trustee restored to former
position on discontinuance or abandonment
of proceedings VI-6
ARTICLE VII
CONCERNING THE HOLDERS
SECTION 7.1.Evidence of action by Holders VII-1
SECTION 7.2.Proof of execution of instruments
and holding of Securities VII-1
SECTION 7.3.Who may be deemed owners of Securities VII-2
SECTION 7.4.Securities owned by Company or its
affiliates disregarded for certain
Purposes VII-2
SECTION 7.5.Action by Holders binds future Holders VII-2
ARTICLE VIII
IMMUNITY OF INCORPORATORS, SHAREHOLDERS,
OFFICERS AND DIRECTORS
SECTION 8.1.No recourse against incorporators or othersVIII-l
ARTICLE IX
MERGER, CONSOLIDATION OR SALE
SECTION 9.1.Merger, consolidation, sale or conveyance
of property not prohibitedexcept under
certain conditions-execution of
supplemental indenture. IX-1
SECTION 9.2.Rights and duties of successor corporation IX-1
Issuance of Securities by successor
corporation IX-1
SECTION 9.3.Opinion of Counsel to Trustee IX-1
ARTICLE X
CONCERNING THE TRUSTEE
SECTION 10.1.Acceptance of Trust X-l
Trustee not relieved from liability for
negligence or misconduct X-l
Trustee not responsible for validity or
execution of Indenture or of Securities or
for recitals in Indenture or Securities X-l
Trustee may rely upon documents believed
genuine-may consult with counsel-may
accept officers' certificates-may require
indemnity-not to be liable for action taken
in good faith X-2
Prior to default and after curing of
defaults Trustee not bound to investigate
unless requested by Holders of majority in
principal amount of Securities of a
series-may require indemnification X-2
Trustee may execute trusts or powers
directly or by attorneys X-3
SECTION 10.2.Trustee to be entitled to compensation-Trustee
not to be accountable for application of
proceeds-moneys held by Trustee to be
trust funds X-3
iii
SECTION 10.3.Trustee to give Holders notice of default X-3
SECTION 10.4.Trustee acquiring conflicting interest
must eliminate it or resign; Definition
of conflicting interest; Definition of
certain terms X-3
Calculation of percentages of securities X-7
SECTION 10.5.Eligibility of Trustee X-8
SECTION 10.6.Resignation or removal of Trustee X-9
SECTION 10.7.Acceptance by successor Trustee X-9
SECTION 10.8.Successor to Trustee by merger or
consolidation X-10
SECTION 10.9.Limitations on right of Trustee as a
creditor to obtain payment of certain
Claims X-10
SECTION 10.10.Trustee to make annual report to Holders X-14
Trustee to make other reports to Holders X-14
Holders to whom reports to be transmitted X-15
SECTION 10.11.Preservation of information by Trustee X-15
Trustee to give certain information to
Holders upon application X-15
SECTION 10.12.Trustee or an Authenticating Agent may
hold Securities and otherwise deal
with Company X-16
SECTION 10.13.Trustee may comply with any rule,
regulation or order of the Securities
and Exchange Commission X-16
SECTION 10.14.Authenticating Agent X-16
ARTICLE XI
SUPPLEMENTAL INDENTURES
SECTION 11.1.Purposes for which supplemental indentures
may be entered into withoutconsent of
Holders XI-1
SECTION 11.2.Modification of Indenture with consent of
Holders of a majority in principal amount
of Securities of any series XI-2
SECTION 11.3.Effect of supplemental indentures XI-2
SECTION 11.4.Securities may bear notation of changes XI-3
SECTION 11.5.Trustee may rely upon Opinion of Counsel XI-3
SECTION 11.6.Instruments of further assurance XI-3
ARTICLE XII
MEETINGS OF HOLDERS
SECTION 12.1.Purposes for which meetings may be called XII-1
SECTION 12.2.Manner of calling meetings XII-1
SECTION 12.3.Call of meetings by Company or Holders XII-1
SECTION 12.4.Who may attend and vote at meetings XII-2
SECTION 12.5.Regulations may be made by Trustee-conduct
of the meeting-voting rights-adjournment XII-2
SECTION 12.6.Manner of voting at meetings and record
to be kept XII-3
SECTION 12.7.Exercise of rights of Trustee or Holders
may not be hindered or delayed by call of
meeting of Holders. XII-3
ARTICLE XIII
SATISFACTION AND DISCHARGE OF INDENTURE
OR CERTAIN OBLIGATIONS
SECTION 13.1.Satisfaction and discharge of Indenture XIII-1
SECTION 13.2.Deposits for payment or redemption of
Securities to be held in trust. XIII-1
SECTION 13.3.Repayment of moneys held by Trustee;
Repayment of moneys held by paying agentXIII-2
SECTION 13.4.Defeasance of Securities of any series XIII-2
SECTION 13.5.Application of Trust Money XIII-4
iv
ARTICLE XIV
MISCELLANEOUS PROVISIONS
SECTION 14.1.Rights under Indenture limited to the
parties and Holders of Securities XIV-1
SECTION 14.2.Certificate of independent accountants
conclusive XIV-1
SECTION 14.3.Remaining provisions not affected by
invalidity of any other provisions-
required provisions of Trust Indenture
Act of 1939, as amended, to Control XIV-1
SECTION 14.4.Company released from Indenture
requirements if entitled to have
Indenture cancelled XIV-1
SECTION 14.5.Date of execution XIV-1
SECTION 14.6.Officers' certificates and Opinions of
Counsel to be furnished Trustee XIV-1
SECTION 14.7.Payments and deposits due other than
on a Business Day XIV-2
SECTION 14.8.Presentation of notices and demands XIV-2
SECTION 14.9.Successors and assigns bound by Indenture XIV-3
SECTION 14.10.Descriptive headings for convenience only XIV-3
SECTION 14.11.Indenture may be executed in counterparts XIV-3
SECTION 14.12.Controlling law XIV-3
TESTIMONIUM
SIGNATURES AND SEALS
ACKNOWLEDGMENTS
v
SEARS ROEBUCK ACCEPTANCE CORP.
Reconciliation and Tie between Indenture
dated as of October 1, 2002
and
Trust Indenture Act of 1939, as amended
Trust Indenture Act Section Indenture Section
310(a)(1) 10.5
(a)(2) 10.5
(a)(3) Not applicable
(a)(4) Not applicable
(a)(5) 10.5
(b) 10.4,10.5
(c) Not applicable
311(a) 10.9(a),(c)
(b) 10.9(b)
(c) Not applicable
312(a) 3.3(d), 10.11
(b) 10.11
(c) 10.11
313(a) 10.10(a)
(b)(1) Not applicable
(b)(2) 10.10(b)
(c) 10.10(c)
(d) 10.10(c)
314(a)(1) 3.3 (a)
(a)(2) 3.3 (b)
(a)(3) 3.3 (c)
(a)(4) 3.4
(b) Not applicable
(c) 14.6
(d) Not applicable
(e) 14.6
(f) Not required
315(a)(l) 10.1(a),(b)
(a)(2) 10.1(a),(b),(d)
(b) 10.3
(c) 10.1(a)
(d) 10.1(a),(b)
(e) 6.7
316(a)(1A) 6.6
(a)(1B) 6.5
(a)(2) Not required
(b) 6.7
(c) 7.1
317(a)(1) 6.2
(a)(2) 6.2
(b) 3.5
318(a) 14.3
Note: This reconciliation and tie shall not, for any purpose,
be deemed to be a part of the Indenture.
vi
INDENTURE, dated as of the 1st day of October, 2002, between SEARS ROEBUCK
ACCEPTANCE CORP. (hereinafter called the "Company"), a corporation organized
and existing under the laws of the Stateof Delaware, and BNY MIDWEST TRUST
COMPANY (hereinafter called the "Trustee"), an Illinois trust company, as
Trustee:
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms,
have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of
series thereof, as follows
ARTICLE I
DEFINITIONS OF CERTAIN TERMS
SECTION 1.1. Unless the context otherwise requires, the terms defined in
this Article I shall for all purposes of this Indenture and of any indenture
supplemental hereto have the meaning herein specified, the following definitions
to be equally applicable to both the singular and plural forms of any of the
terms herein defined:
Affiliate
An "Affiliate" of a specified Person shall mean another Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such first Person.
Authenticating Agent
The term "Authenticating Agent" shall mean any Authenticating Agent
appointed by the Trustee pursuant to Section 10.14.
Board
The term "Board" or "Board of Directors" shall mean the Board of Directors
of the Company or the Executive Committee of such Board.
Business Day
The term "Business Day" shall mean each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a legal holiday for banking institutions in any
of the City of Wilmington, the City of Chicago, The City of New York or the city
in which the principal corporate trust office of the Trustee is located.
Certified Resolution
The term "Certified Resolution" shall mean a copy of a resolution
certified by the Secretary or an Assistant Secretary of the Company to have been
duly adopted by the Board of Directors and to be in full force and effect on the
date of such certification.
Commission
The term "Commission" shall mean the Securities and Exchange Commission.
Company
The term "Company" shall mean Sears Roebuck Acceptance Corp. and, subject
to the provisions of Article IX, shall also include its successors and assigns.
Currency
The term "Currency" shall mean Dollars or Foreign Currency.
Defaulted Interest
The term "Defaulted Interest" shall have the meaning specified in Section
2.7.
I-1
Depository
The term "Depository" shall mean, with respect to Securities of any series
for which the Company shall determine that such Securities will be issued in
whole or in part as one or more Global Securities, The Depository Trust
Company, New York, New York, another clearing agency or any successor
registered under the Securities Exchange Act of 1934, as amended, or
other applicable statute or regulation, which, in each case, shall be
designated by the Company pursuant to either Section 2.1 or 2.10.
Dollar
The term "Dollar" shall mean the currency issued by the government of the
United States.
Eligible Obligations
The term "Eligible Obligations" shall mean obligations as a result of the
deposit of which (along with the simultaneous deposit, if any, of money or U.S.
Government Obligations or both) the relevant series of Securities will be rated
in the highest generic long term debt rating category assigned by one or more
nationally recognized rating agencies to debt with respect to which the issuer
thereof has been released from its obligations to the same extent that the
Company has been released from its obligations under this Indenture pursuant to
Section 13.4 hereof.
Euro
The term "Euro" shall mean the lawful currency of the member states of the
European Economic and Monetary Union, pursuant to the Treaty establishing the
European Community, as amended by the Treaty on European Union.
Fixed Charge Coverage and Ownership Agreement
The term "Fixed Charge Coverage and Ownership Agreement" shall mean the
letter agreement between the Company and Sears dated September 24, 2002.
Fixed Charge Coverage Ratio
The term "Fixed Charge Coverage Ratio" shall mean, for any period, the
Company's ratio of earnings to fixed charges, determined for such period in
accordance with Item 503(d) of Regulation S-K promulgated by the Commission, as
in effect on the date hereof.
Foreign Currency
The term "Foreign Currency" shall mean either (i) a currency issued by the
government of any country other than the United States, including the Euro, or
(ii) any composite currency the value of which is determined by reference to the
values of the currencies of any group of countries.
I-2
Global Security
The term "Global Security" shall mean, with respect to any series of
Securities, a Security executed by the Company and authenticated and held by the
Trustee as agent for the Depository or delivered pursuant to the Depository's
instruction, all in accordance with this Indenture and pursuant to a Company
order, which (i)shall be registered in the name of the Depository or its
nominee and (ii) shall constitute, and shall be denominated in an amount equal
to the aggregate principal amount of, all or part of the Outstanding Securities
of such series.
Holder
The terms "Holder", "Holder of Securities" or other similar terms, shall
mean the person in whose name a particular Security shall be registered on the
books of the Company kept for that purpose in accordance with the terms hereof,
and the word "majority", used in connection with the terms "Holder", "Holder of
Securities", or other similar terms, shall signify the "majority in principal
amount" whether or not so expressed.
Indenture
The term "Indenture" shall mean this instrument as originally executed or,
if amended or supplemented as herein provided, as so amended or supplemented,
and shall include the terms of particular series of Securities established as
contemplated by Section 2.1.
Interest
The term "Interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, shall mean
interest payable after Maturity.
Interest Payment Date
The term "Interest Payment Date", when used with respect to any Security,
shall mean the Stated Maturity of any installment of interest on the Security.
Market Exchange Rate
The "Market Exchange Rate" on a given date for a given foreign currency
shall mean the noon buying rate in New York City for cable transfers in such
currency as certified for customs purposes by the Federal Reserve Bank of New
York on such date.
Maturity
The term "Maturity", when used with respect to any Security, shall mean
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 Stated
Maturity or by declaration of acceleration, call for redemption or otherwise.
Officers' Certificate
The term "Officers' Certificate" shall mean a certificate signed by the
Chairman of the Board, the Chief Executive Officer, the President or any Vice
President and by the Vice President, Finance, Treasurer or any Assistant
Treasurer or the Secretary or any Assistant Secretary of the Company.
I-3
Opinion of Counsel
The term "Opinion of Counsel" shall mean an opinion in writing signed by
legal counsel (who may be counsel to the Company) acceptable to the Trustee.
Original Issue Discount Security
The term "Original Issue Discount Security" shall mean any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 6.1.
Outstanding
The term "outstanding" or "principal amount outstanding", when used with
respect to the Securities, shall not, except as otherwise provided herein,
include (i) Securities held by the Company or any Affiliate of the
Company in its treasury, or (ii) Securities for the payment or redemption
of which moneys in the necessary amount shall have been deposited in
trust with the Trustee, provided that if such Securities are to be
redeemed prior to the Maturity thereof, notice of such redemption
shall have been duly given or provision satisfactory to the Trustee
shall have been made for giving such notice, or (iii) Securities in
ieu of or in substitution for which other Securities shall have been
authenticated and delivered pursuant to the terms of Section 2.3, or
(iv) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation. The term "outstanding" or "principal
amount outstanding", when used with respect to indebtedness other
than the Securities, shall not include any such indebtedness held
by the Company in its treasury or for the payment or redemption of
which moneys in the necessary amount shall have been deposited in
trust or set aside and segregated in trust by the Company, provided
that, if such other indebtedness is to be redeemed prior to the
maturity thereof, any notice of such redemption required by the
terms thereof shall have been duly given or provision satisfactory
to the trustee shall have been made for giving such notice.
Person
The term "Person" shall mean an individual, corporation,
partnership, limited liability company, joint venture, association,
joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
Redemption Date
The term "Redemption Date", when used with respect to any
Security to be redeemed, shall mean the date fixed for such
redemption by or pursuant to this Indenture.
Redemption Price
The term "Redemption Price" shall mean the amount payable
for the redemption of any Security on the Redemption Date, and
shall always include interest accrued and unpaid to the Redemption
Date, unless otherwise specifically provided.
I-4
Regular Record Date
The term "Regular Record Date" for the interest payable on any
Interest Payment Date on the Securities of any series shall mean the
date specified for that purpose as contemplated by Section 2.1.
Responsible Officer
The term "Responsible Officer", when used with respect to the Trustee,
shall mean the chairman of the board of directors, the president, every vice
president (whether or not designated by a number or a word or words
added before or after the title "vice president"), the secretary, every
trust officer, every assistant secretary or any other officer or assistant
officer of the Trustee customarily performing functions similar to those
performed by the persons who at the time shall be such officers, or to
whom any corporate trust matter is referred because of his knowledge of
and familiarity with the particular subject.
Sears
The term "Sears" shall mean Sears, Roebuck and Co.
Securities
The term "Securities" shall mean any Securities authenticated
and delivered under this Indenture.
Security Register
The term "Security Register" shall have the meaning specified
in Section 2.5.
Special Record Date
The term "Special Record Date" for the payment of any Defaulted
Interest shall mean a date fixed by the Trustee pursuant to Section 2.7.
Stated Maturity
The term "Stated Maturity", when used with respect to any Security
or any installment of interest thereon, shall mean the date specified
in such Security as the fixed date on which the principal of such
Security or such installment of interest is due and payable.
Subsidiary; Voting Stock
The term "Subsidiary" shall mean any corporation of which shares
of Voting Stock entitled to elect a majority of the directors are at
the time owned directly or indirectly by the Company and its other
Subsidiaries. The term "Voting Stock" shall mean outstanding shares
of stock having voting power for the election of directors, whether
at all times or only so long as no senior class of stock has such
voting power because of default in dividends or some other default.
Trustee
The term "Trustee" shall mean the party named as such above
until a successor becomes such pursuant hereto and thereafter shall
mean or include each party who is then a trustee hereunder, and if
at any time there is more than one such party, "Trustee" as used
with respect to the Securities of any series shall mean the Trustee
with respect to Securities of that series. If Trustees with respect
to different series of Securities are trustees hereunder, nothing
herein shall constitute the Trustees as co-trustees of the same
trust, and each Trustee shall be the trustee of a trust separate
and apart from any trust administered by any other Trustee
with respect to a different series of Securities.
I-5
U.S. Government Obligations
The term "U.S. Government Obligations" shall mean securities
which are (i) direct obligations of the United States of America
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 of
America the payment of which is unconditionally guaranteed as
a full faith and credit obligation by the United States of
America, which, in either case, are not callable or redeemable
at the option of the issuer thereof, and shall also include
a depository receipt issued by a bank or trust company as
custodian with respect to any such U.S. Government Obligations
or a specific payment of interest on or principal of any such
U.S. Government Obligations held by such custodian for the
account of the holder of a depository 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 depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligations or
the specific payment of interest on or principal of the
U.S. Government Obligations evidenced by such depository
receipt.
SECTION 1.2. All terms used in this Indenture which are
defined in the Trust Indenture Act of 1939, as amended, or
which are by reference therein defined in the Securities Act
of 1933, as amended (except as herein otherwise expressly
provided or unless the context otherwise requires), shall
have the meanings assigned to such terms in the Trust
Indenture Act of 1939, as amended, and the Securities Act of 1933,
as amended, as they were respectively in force at the date of
this Indenture.
I-6
ARTICLE II
THE SECURITIES
SECTION 2.1. (a) The aggregate principal amount of Securities
which may be authenticated and delivered under this Indenture is
unlimited. The Securities may be issued in one or more series.
There shall be established in or pursuant to a resolution of the
Board and set forth in an Officers' Certificate, or established in
one or more indentures supplemental hereto, prior to the issuance
of Securities of any series,
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 2.4, 2.5, 2.6, 4.7 or 11.4);
(3) the date or dates on which the principal of the Securities of the
series is payable;
(4) the rate or rates (which may be fixed or variable) per annum at
which the Securities of the series shall bear interest, if any, the
date or dates from which such interest shall accrue, the date or dates
on which payment of such interest shall commence, the Interest Payment
Dates on which such interest shall be payable and the Regular Record
Date for the interest payable on any Interest Payment Date;
(5) if other than as set forth in Section 3.2, the place or places
where the principal of (and premium, if any, on) 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
and the terms and conditions upon which Securities of the series may
be redeemed, in whole or in part, at the option, or as an obligation,
of the Company;
(7) the obligation or right, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof and the
period or periods within which, the price or prices at which and
the terms and conditions upon which Securities of the series
shall be redeemed or purchased, in whole or in part, pursuant to
such obligation or right;
(8) the terms, if applicable, of conversion or exchange for other
securities, at the option of the Company or the Holder, of Securities
of the series;
(9) any subordination provisions;
(10) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall
be issuable;
(11) if other than the principal amount thereof, the portion of
the principal amount of Securities of the series which shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 6.1;
(12) the terms of any warrants attached to the Securities of the
series;
II-2
(13) the currency or currencies, including composite currencies, in
which the Securities may be purchased and in which principal of (and
premium, if any) and interest, if any, on the Securities of the series
shall be payable (if other than Dollars);
(14) if the amount of payments of principal of (and premium, if any)
or interest, if any, on the Securities of the series may be determined
with reference to an index, the manner in which such amounts shall be
determined;
(15) provisions, if any, for the defeasance of Securities of a
particular series (including provisions permitting defeasance of
less than all Securities of a particular series), which provisions may
be in addition to, in substitution for, in subtraction from, or in
modification of (or any combination of the foregoing) the
provisions of Article Thirteen;
(16) whether the Securities of the series are issuable in whole or in
part as one or more Global Securities and, in such case, the identity
of the Depository for such Global Security or Securities; and
(17) any other terms of the series (which terms shall not be inconsistent
with the provisions of this Indenture but which may modify or delete any
such provision of this Indenture insofar as it applies to such
series; provided that no term thereof shall be modified or deleted if
imposed by operation of subsection (c) of Section 318 of the Trust
Indenture Act of 1939, as amended, and provided further that any
modification or deletion of the rights, duties or immunities of the
Trustee shall have been consented to in writing by the Trustee).
If any of the foregoing terms are not available at the time such
resolutions are adopted, or such Officers' Certificate or any
supplemental indenture is executed, such resolutions, Officers'
Certificate or supplemental indenture may reference the document or
documents to be created in which such terms will be set forth prior
to the issuance of such Securities.
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in
or pursuant to such resolution of the Board and set forth in such Officers'
Certificate or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken
pursuant to a resolution of the Board, a copy of an appropriate record
of such action shall be included in the Officers' Certificate setting
forth the terms of the series.
(b) The Securities of each series shall be in substantially the
form as shall be established by or pursuant to a resolution of the
Board 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 any law or with any rules made pursuant thereto or with
any rules of any securities exchange or as may, consistently herewith,
be determined by the officers executing such Securities, as evidenced
by their execution of the Securities.
The definitive Securities shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any other
manner, all as determined by the officers executing such Securities,
as evidenced by their execution of such Securities.
(c) The Trustee's certificate of authentication on all Securities
shall be in substantially the following form:
II-2
This is one of the Securities of the series referred to in
the within-mentioned Indenture.
as Trustee
By ______________________________
Authorized Officer
SECTION 2.2. The Securities of each series shall be issuable in
registered form without coupons in such denominations as shall be specified
as contemplated by Section 2.1. In the absence of any contrary provisions
with respect to the Securities of any series, the Securities of such series
shall be issuable in denominations of $1,000 and any integral multiple
thereof and shall be payable only in Dollars.
SECTION 2.3. The Securities shall be executed on behalf of the Company
by any two of its Chairman of the Board, its Chief Executive Officer, its
President or one of its Vice Presidents, under its corporate seal reproduced
thereon. The signature of any of these officers on the Securities may be
manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did
not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed
by the Company to the Trustee for authentication, together with a written
order of the Company signed by its Chairman of the Board, its Chief Executive
Officer, its President or one of its Vice Presidents for the authentication
and delivery of such Securities, and the Trustee in accordance with such
order shall authenticate and deliver such Securities. If the form or terms
of the Securities of the series have been established in or pursuant to one
or more resolutions of the Board as permitted by Section 2.1, 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 10.1) shall be fully protected in relying
upon, an Opinion of Counsel stating,
(a) if the form and terms of such Securities have been established by
or pursuant to a resolution of the Board as permitted by Section 2.1,
that such form and terms have been established in conformity with the
provisions of this Indenture; and
(b) that such Securities, when authenticated and delivered by the Trustee
and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and
binding obligations of the Company in accordance with their terms, subject
to insolvency, bankruptcy, reorganization and other laws relating to or
affecting the enforcement of creditors' rights or by general equity
principles.
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The Trustee shall have the right to decline to authenticate and deliver
any Securities under this Section if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken or if the Trustee in
good faith by its board of directors or trustees, executive committee, or a
trust committee of directors or trustees and/or responsible officers shall
determine (i) that such action would expose the Trustee to liability
to existing Holders, or (ii) in the case of Securities designated pursuant
to one or more resolutions of the Board as permitted by Section 2.1, that
such action would affect the Trustees' own rights, duties or immunities
under this Indenture or otherwise.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided
for herein executed by the Trustee by manual signature, and such certificate
upon any Security shall be conclusive evidence, and the only evidence,
that such Security has been duly authenticated and delivered hereunder
and is entitled to the benefits of this Indenture.
SECTION 2.4. Pending the preparation of definitive Securities of
any series, the Company may execute, and upon a written order of the
Company signed by its Chairman of the Board, its Chief Executive Officer,
its President or one of its Vice Presidents, the Trustee shall authenticate
and deliver, temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor 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 evidenced by their execution of such
Securities.
If temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without
unreasonable delay. After the preparation of definitive Securities of
such series, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series, without
charge to the Holder, upon surrender of the temporary Securities of
such series at the office or agency of the Company for that series
to be maintained in accordance with the provisions of Section 3.2.
Upon surrender for cancellation of any one or more temporary
Securities of any series the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor a like principal
amount of definitive Securities of the same series of authorized
denominations. Until so exchanged the temporary Securities of any
series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of such series.
SECTION 2.5. The Company shall keep or cause to be kept a register
for each series of Securities issued hereunder (herein called a
"Security Register") at any office or agency of the Company to be
maintained in accordance with the provisions of Section 3.2 in
which, subject to such reasonable regulations as it may prescribe,
the Company shall provide for the registration of Securities and
of transfers of Securities. The Security Register shall be in written
form or capable of being converted into written form within a
reasonable time. Unless otherwise specifically designated by the
Company in a written notice to the Trustee, the Security Register
shall be maintained at the principal corporate trust office of the
Trustee.
Upon surrender for registration of transfer of any Security of
any series at the office or agency for that series to be maintained
in accordance with the provisions of Section 3.2, the Company shall
execute, and the Trustee shall authenticate and deliver, in the name
of the designated transferee or transferees, one or more
Securities of the same series, of any authorized denominations
and of a like aggregate principal amount and Stated Maturity and
bearing a number not contemporaneously outstanding.
II-4
At the option of the Holder, Securities of any series may be
exchanged for other Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and Stated Maturity
and bearing a number not contemporaneously outstanding upon surrender
of the Securities to be exchanged at such office or agency. Whenever
any Securities are so 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 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 Security presented or surrendered for registration of transfer
or for exchange shall be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company 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
exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Sections 2.4, 4.7 or 11.4,
not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange Securities of any series during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of
redemption of Securities of that series selected for redemption under
Section 4.3 and ending at the close of business on the day of such mailing,
or (ii) to register the transfer of or exchange any Security theretofore
designated for redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part.
SECTION 2.6. If any mutilated Security is surrendered to the Trustee,
the Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a Security of the same series and principal amount and
Stated Maturity and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security 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
has been acquired by a bona fide purchaser, the Company shall execute
and upon its request the Trustee shall authenticate and deliver, in
lieu of any such destroyed, lost or stolen Security, a Security of the
same series and principal amount and Stated Maturity and bearing a number
not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its
discretion may, instead of issuing a Security in substitution of
such Security, pay such Security, provided the conditions set forth
in the next preceding paragraph are satisfied.
Upon the issuance of any Security pursuant to 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 counsel fees, of the Company
and the Trustee, any Authenticating Agent, and any paying agent or
Security registrar connected therewith and in addition a further
sum not exceeding two dollars for each Security so issued in substitution.
II-5
Every Security of any series issued pursuant to this Section
in lieu of any destroyed, lost or stolen Security shall constitute
an original additional contractual obligation of the Company, whether
or not the destroyed, lost or stolen Security shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of
this Indenture equally and proportionately with any and all other
Securities of that series duly issued hereunder.
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.
SECTION 2.7. Each installment of interest on any Security which is
payable, and is punctually paid or duly provided for, on any Interest
Payment Date shall be paid only to or upon the written order of the
Person in whose name that Security is registered at the close of
business on the Regular Record Date for such interest.
Any interest on any 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 Securities of such
series 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: (a) the Company shall
notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security of such series and the date
of the proposed payment which shall be at least 20 days from the
date of such notice, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory
to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such
Defaulted Interest as in this clause provided; (b) 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; and (c) 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
Securities of such series at his address as it appears
in the Security Register, not less than 10 days prior to
such Special Record Date. Notice of the proposed payment
of such Defaulted Interest and the Special
Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the
Securities of such series are registered at the close of
business on such Special Record Date; or
(2) the Company may make payment of any Defaulted
Interest on the Securities of any series in any
other lawful manner not inconsistent with the requirements
of any securities exchange on which such
Securities may be listed, and upon such notice as may be
required by such exchange, if, after notice given
by the Company to the Trustee of the proposed payment
pursuant to this clause, such manner of payment
shall be deemed practicable by the Trustee.
II-6
Subject to the foregoing provisions of this Section,
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 2.8. Prior to due presentment of a 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 Security is registered
upon the Security Register as the owner of such Security for
the purpose of receiving payment of principal of
(and premium, if any, on) and (subject to Section 2.7) interest
on such Security and for all other purposes whatsoever, whether
or not such Security be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
Notwithstanding the foregoing, nothing herein shall prevent
the Company, the Trustee, or any agent of the Company or the Trustee
from giving effect to any written certification, proxy or other
authorization furnished by the Depository or its nominee, or impair,
as between the Depository and holders of beneficial interests in
any Global Security, the operation of customary practices governing
the exercise of the rights of the Depository as holder of such
Global Security, including without limitation the granting of proxies or
other authorization, direction, notice, consent, waiver or other action
which a Holder is entitled to give or take under this Indenture.
SECTION 2.9. All Securities surrendered for payment, redemption,
registration of transfer or exchange or for credit against any
sinking fund payment shall be delivered to the Trustee and shall
be promptly cancelled by it. The Company may at any time deliver
to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Securities so delivered
shall be promptly cancelled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled
as provided in this Section, except as expressly permitted by this
Indenture. All cancelled Securities held by the Trustee shall be
disposed of as directed by a written order of the Company signed by
its Chairman of the Board, its President or one of its Vice Presidents.
SECTION 2.10. (a) If the Company shall establish pursuant to
Section 2.1 that the Securities of a particular series are to be
issued in whole or in part as one or more Global Securities, then
the Company shall execute and the Trustee shall, in accordance with
Section 2.3 and the order of the Company delivered to the Trustee
thereunder, authenticate and deliver, one or more Global Securities
which (i) shall constitute, and shall be denominated in an amount
equal to the aggregate principal amount of, all or part of the
outstanding Securities of such series, (ii) shall be registered in
the name of the Depository or its nominee, (iii) shall be
held by the Trustee as agent for the Depository or delivered
pursuant to the Depository's instruction and (iv) shall bear a
legend substantially to the following effect: "Except as otherwise
provided in Section 2.10 of the Indenture, this Security may be
transferred, in whole but not in part, only to another nominee of
the Depository or to a successor Depository or to a nominee of
such successor Depository."
II-7
(b) Notwithstanding any other provision (other than Section 2.10(c))
of this Section 2.10 or of Section 2.5, the Global Securities of a series
may be transferred, in whole but not in part and in the manner provided in
Section 2.5, only to another nominee of the Depository for such series, or
to a successor Depository for such series selected or approved by the
Company or to a nominee of such successor Depository.
(c) If (i) the Company advises the Trustee in writing that the
Depository is no longer willing or able to discharge properly its
responsibilities with respect to any Securities of any series represented
by one or more Global Securities, and the Trustee or the Company is unable
to locate a qualified successor, or (ii) the Company, at its option, advises
the Trustee in writing that it has determined that any Securities of any
series represented by one or more Global Securities shall no longer be
represented by one or more Global Securities, then in either event the
Company will execute, and the Trustee, upon receipt of an Officers'
Certificate evidencing such determination by the Company, will
authenticate and deliver, Securities of such series in definitive
registered form without coupons, in authorized denominations, and in an
aggregate principal amount equal to the principal amount of such Global
Securities in exchange for such Global Securities. Upon the exchange of
Global Securities for such Securities in definitive registered form without
coupons, in authorized denominations, the Global Securities shall be cancelled
by the Trustee and the provisions of this Section 2.10 shall no longer be
applicable to such Securities. Such Securities in definitive registered form
issued in exchange for Global Securities pursuant to this Section 2.10(c)
shall be registered in such names and in such authorized denominations
as the Depository, 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.
SECTION 2.11. (a) Except as otherwise specified pursuant to Section 2.1,
payment of the principal of (and premium, if any) and interest on Securities
of any series will be made in Dollars.
(b) For purposes of any provision of this Indenture where the Holders
of outstanding Securities of a series may perform an act which requires
that a specified percentage of the outstanding Securities of such series
perform such act and for purposes of any decision or determination by
the Trustee of amounts due and unpaid for the principal (and premium,
if any) and interest on the outstanding Securities of such series in
respect of which moneys are to be disbursed ratably, the principal of
(and premium, if any) and interest on the outstanding Securities of
such series denominated in a Foreign Currency will be the amount in
Dollars based upon the Market Exchange Rate for such Foreign Currency
on the latest date for which such rate was established on or before
the date for determining the Holders entitled to perform such act,
or the date of such decision or determination by the Trustee, as
the case may be.
SECTION 2.12. If the principal of (and premium, if any) and
interest on any Securities is payable in a Foreign Currency and such
Foreign Currency is not available for payment due to the imposition
of exchange controls or other circumstances beyond the control of
the Company, then the Company shall be entitled to satisfy its
obligations to Holders under this Indenture by making such payment
in Dollars on the basis of the Market Exchange Rate for such Foreign
Currency on the latest date for which such rate was established on or
before the date on which payment is due. Any payment made pursuant to
this Section 2.12 in Dollars where the required payment is in a
Foreign Currency shall not constitute a default under this Indenture.
II-8
ARTICLE III
COVENANTS OF THE COMPANY
Subject to the provisions of Section 13.4, so long as Securities
are outstanding hereunder, the Company covenants for the benefit of
each series of Securities that:
SECTION 3.1. The Company will punctually pay the principal
(premium, if any) and interest, if any, to become due in respect
of all the Securities of that series according to the terms of
the Securities of that series and this Indenture. Such interest on
Securities shall be payable without presentation of such
Securities and (subject to the provisions of Section 2.7) only
to or upon the written order of the Holders of such Securities.
Except as otherwise specified as contemplated by Section 2.1
for Securities of any series, payments of interest shall be
made either, at the option of the Company, by check mailed to the
address of the person entitled thereto as such address shall appear
on the Security Register for that series, or at any one or more of
the offices or agencies of the Company maintained in accordance with
Section 3.2.
SECTION 3.2. The Company will maintain in the Borough of
Manhattan of The City of New York, and may maintain in the city
in which the principal executive offices of the Company are located
or the city in which the principal corporate trust office of the
Trustee is located, an office or agency where, except as otherwise
provided herein, the Securities of that series may be presented for
payment, an office or agency where the Securities of that series
may be presented for registration of transfer and for exchange
as provided in this Indenture and an office or agency where notices
and demands to or upon the Company in respect of such Securities
or of this Indenture may be served. Until otherwise designated by
the Company in a written notice to the Trustee, such office or agency
in the Borough of Manhattan of The City of New York for all of the
above purposes shall be 101 Barclay Street, New York, New York
10286, Attention: Corporate Trust Administration.
SECTION 3.3. The Company will
(a) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports which
the Company may be required to file with the Commission pursuant
to Section 13 or Section 15(d) of the Securities Exchange Act of
1934, as amended (or copies of such portions thereof as may be
prescribed by the Commission under the provisions of the Trust
Indenture Act of 1939, as amended); or, if the Company is not
required to file with the Commission information, documents or
reports pursuant to either Section 13 or Section 15(d) of the
Securities Exchange Act of 1934, as amended,
then the Company will file with the Trustee and will file
with the Commission, in accordance with rules and regulations
prescribed by the Commission, such of the supplementary and periodic
information, documents and reports 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 in such rules and
regulations;
(b) 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 the Company with the
III-1
conditions and covenants provided for in this
Indenture as may be required by such rules and regulations,
including, in the case of annual reports, if required by such
rules and regulations, certificates or opinions of independent
public accountants, conforming to the requirements of Section 14.6,
as to compliance with conditions or covenants, compliance
with which is subject to verification by accountants;
(c) transmit to the Holders of that series of Securities, in the
manner and to the extent provided in subdivision (c) of
Section 10.10 hereof, such summaries of any information,
documents and reports required to be filed with the Trustee
pursuant to the provisions of subdivisions (a) and (b) of
this Section 3.3 as may be required by the rules and regulations
of the Commission under the provisions of the Trust Indenture Act
of 1939, as amended; and
(d) furnish or cause to be furnished to the Trustee semi-annually not
later than each Interest Payment Date for each series of Securities,
provided that interest on such Securities is payable at least
semi-annually, and at such other times as the Trustee may request
in writing, within 30 days after receipt by the Company of any
such request, a list in such form as the Trustee may reasonably
require containing all information in the possession or control
of the Company or of any paying agent, other than the Trustee,
as to the names and addresses of the Holders of such series
of Securities obtained since the date as of which the next
previous list, if any, was furnished. Any such list may be
dated as of a date not more than 15 days prior to the time
such information is furnished or caused to be furnished,
and need not include information received after such date.
SECTION 3.4. Within 120 days after the close of each
fiscal year of the Company ending after the date
hereof, the Company will file with the Trustee a statement
signed by the Chairman of the Board, the Chief
Executive Officer or its President or any Vice President
and by the Treasurer or any Assistant Treasurer or
the Secretary or any Assistant Secretary of the Company
(provided, that one of such signatories shall be the
Company's principal executive officer, principal financial
officer or principal accounting officer), stating
that in the course of the performance by the signers
of their duties as officers of the Company they would
normally obtain knowledge of any default by the Company
in the performance or fulfillment of any
covenant, agreement or condition contained in this
Indenture, and stating whether or not they have obtained
knowledge of any such default, and, if so, specifying each
such default of which the signers have knowledge and the
nature thereof. For purposes of this Section 3.4,
"default" shall mean any default defined
in Section 6.1 hereof, irrespective of the giving
of any specified notice and excluding any periods of grace
provided for therein.
SECTION 3.5. The Company will cause any paying agent
which it may appoint, other than the Trustee, to
execute and deliver to the Trustee an instrument in which
such agent shall agree with the Trustee,
(a) that it will hold all sums held by it as such agent
for the payment of the principal of and premium, if
any, or interest on the Securities of that series
(whether such sums have been paid to it by the Company
or by any other obligor on such Securities) in trust
for the benefit of the Holders of such Securities or of
the Trustee, as the case may be,
(b) that it will give the Trustee notice of any
failure by the Company (or by any other obligor on such
Securities) to make any payment of the principal
(and premium, if any, on) or interest on such Securities
when the same shall be due and payable, and
(c) that in the case of a default by the Company
hereunder, that it will deliver to the Trustee any sums
then held by it in respect of the Securities.
III-2
If the Company acts as its own paying agent, it will,
on or before each due date of principal (and
premium, if any) or of any installment of interest on
such Securities, set aside and segregate and hold in
trust for the benefit of the Holders of such Securities
or the Trustee a sum sufficient to pay such principal
(and premium, if any) or interest and will notify the
Trustee of such action.
SECTION 3.6. The Company will:
(a) maintain a Fixed Charge Coverage Ratio for
any fiscal quarter of not less than 1.10;
(b) cause Sears to continue to own and to hold all
legal title to and beneficial interest in all of the
outstanding voting stock of the Company;
(c) cause Sears to observe and perform in all material
respects all covenants or agreements of Sears
contained in the Fixed Charge Coverage and Ownership
Agreement; and
(d) not amend, waive, terminate or otherwise modify
any provision of the Fixed Charge Coverage and
Ownership Agreement.
III-3
ARTICLE IV
REDEMPTION OF SECURITIES
SECTION 4.1. Securities 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 2.1 for Securities of any series)
in accordance with this Article.
SECTION 4.2. The election of the Company to redeem
any Securities shall be evidenced by an Officers'
Certificate. In case of any redemption at the election
of the Company of less than all the Securities of any
series, the Company shall, at least 45 days prior to
the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee),
notify the Trustee of such Redemption Date and of the
principal amount of Securities of such series to be
redeemed. In the case of any redemption of Securities
which is subject to any restriction on such redemption
provided in the terms of such Securities or elsewhere
in this Indenture, the Company shall furnish the
Trustee with an Officers' Certificate evidencing compliance
with such restriction.
SECTION 4.3. If less than all the Securities of
any series are to be redeemed, the particular Securities to be
redeemed shall be selected from the outstanding Securities of
such series not previously called for redemption, by such method
as the Trustee shall deem fair and appropriate and which may provide
for the selection for redemption of portions (equal
to the minimum authorized denomination for Securities of that
series or any integral multiple thereof, if less than all
the Securities of that series are to be redeemed on the
applicable Redemption Date) of the principal amount of
Securities 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 for redemption and, in
the case of the Securities selected for partial redemption,
the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the
redemption of Securities shall relate, in the case of any
Securities redeemed or to be redeemed only in part,
to the portion of the principal amount of such Securities
which has been or is to be redeemed.
SECTION 4.4. Notice of redemption shall be given by first-class
mail, postage prepaid, mailed not less than
30 nor more than 60 days prior to the Redemption Date,
to each Holder of Securities to be redeemed, at his
address appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all the outstanding
Securities of any series are to be redeemed,
the identification (and, in the case of partial
redemption, the principal amount) of the particular
Securities to be redeemed;
(4) that on the Redemption Date the Redemption
Price will become due and payable upon each such
Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said
date;
IV-1
(5) the place or places where such Securities are to
be surrendered for payment of the Redemption Price;
and
(6) that the redemption is for a sinking fund, if such
is the case.
Notice of redemption of Securities to be redeemed
at the election of the Company 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.
Any notice which is mailed in the manner herein
provided shall be conclusively presumed to be duly
given, whether or not the Holder receives such notice;
any failure to give such notice by mail or any
defect in such notice to the Holder of a particular
Security designated for redemption as a whole or in
part shall not affect the validity of the proceedings
for the redemption of any other Security.
SECTION 4.5. On or prior to any Redemption Date,
the Company shall deposit with the Trustee or with
a paying agent (or, if the Company is acting as its
own paying agent, segregate and hold in trust as
provided in Section 3.5) an amount of money sufficient
to pay the Redemption Price of, and (except if
the Redemption Date shall be an Interest Payment Date)
accrued interest on, all the Securities which are
to be redeemed on that date.
SECTION 4.6. 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 on the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear
interest. Upon surrender of any such Security for
redemption in accordance with said notice, such
Security shall be paid by the Company at the
Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that
installments of interest whose Stated Maturity
is on or prior to the Redemption Date shall be payable to
the Holders of such Securities, registered as such at the
close of business on the relevant Regular or Special Record
Dates according to their terms and the provisions of Section 2.7.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the
principal (and premium, if any) shall, until paid, bear
interest from the Redemption Date at the rate
prescribed therefor in the Security.
SECTION 4.7. Any Security which is to be redeemed
only in part shall be surrendered at the office or
agency of the Company to be maintained pursuant to
Section 3.2 (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument
of transfer in form satisfactory to the Company
and to the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing),
and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of
such Security without service charge, a Security
or Securities of the same series and Stated
Maturity of any authorized denomination as
requested by such Holder, in aggregate
principal amount equal to and in exchange for
the unredeemed portion of the principal of
the Security so surrendered and bearing a
number not contemporaneously outstanding. If
a Global Security is so surrendered such new
Security or Securities so issued shall be a
Global Security or Global Securities.
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ARTICLE V
SINKING FUNDS
SECTION 5.1. 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 2.1 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". Unless otherwise
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 5.2.
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 5.2. The Company (1) may deliver
outstanding Securities (including for purposes of this
clause (1) any Securities held by the Company in its
treasury) of a series (other than any previously
called for redemption) and (2) may, by written notice
to the Trustee, 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; provided,
however, that such Securities have not been previously
so credited. Such Securities shall be 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 5.3. Not less than 45 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 crediting Securities of that series pursuant to
Section 5.2 and will also deliver to the Trustee any
Securities to be delivered pursuant to clause (1) of
Section 5.2. Not less than 30 days before each such
sinking fund payment date the Trustee shall select or
cause to be selected the Securities to be redeemed
upon such sinking fund payment date in the manner
specified in Section 4.3 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 4.4. Such notice having been duly
given, the redemption of such Securities shall be
made upon the terms and in the manner stated in
Sections 4.6 and 4.7
V-1
ARTICLE VI
REMEDIES UPON DEFAULT
SECTION 6.1. Subject to the provisions
of Section 2.12, the following events are hereby defined for all
purposes of this Indenture with respect to Securities
of any series (except where the term is otherwise
defined for specific purposes) as "defaults":
(a) Failure to pay the principal of (and premium,
if any, on) any of the Securities of that series, when
and as the same shall become due and payable, whether
at Stated Maturity thereof, by call for
redemption or otherwise; or
(b) Failure to pay any installment of interest
on any of the Securities of that series, when and as the
same shall become payable as therein expressed,
and such failure shall continue for a period of 30
days (it being understood that if the entire amount
of such payment of interest is deposited by the
Company with the Trustee, or with another paying
agent duly appointed hereunder, before the
expiration of such period of 30 days, such default
shall no longer be considered to be continuing
under this Indenture); or
(c) Failure to perform or observe any other of the
covenants, conditions or agreements on the part of
the Company in this Indenture (other than a covenant,
condition or agreement a default in whose
performance or whose breach is elsewhere in this
Section specifically dealt with or which has
expressly been included in this Indenture solely
for the benefit of series of Securities other than that
series) or in the Securities of that series contained,
and such failure shall continue for a period of 60
days after written notice to the Company from the
Trustee or to the Company and to the Trustee from
the Holders of not less than a majority of the
Securities of that series then outstanding under this
Indenture; or
(d) Except as a result of compliance with any court
order to which the Company or Sears is subject or
any applicable law or any government decree, if an
event of default as defined in any mortgage,
indenture or instrument, under which there may be
issued, or by which there may be secured or
evidenced, any indebtedness for borrowed money of
the Company or of Sears (including this
Indenture), whether such indebtedness now exists
or shall hereafter be created, shall happen and shall
result in such indebtedness becoming or being declared
due and payable prior to the date on which it
would otherwise become due and payable, and such
acceleration shall not be rescinded or annulled
within 30 days after written notice to the Company
from the Trustee or to the Company and to the
Trustee from the Holders of not less than a majority
of the Securities of that series then outstanding
under this Indenture; provided, however, that it
shall not be a default hereunder if the principal
amount of indebtedness the maturity of which, if
so accelerated, is less than $100,000,000; provided,
further, that if, prior to a declaration of acceleration
of the maturity of the Securities then outstanding
or the entry of judgment in favor of the Trustee in
a suit pursuant to Section 6.2, such default shall be
remedied or cured by the Company or Sears or waived by
the holders of such indebtedness, or such
indebtedness shall be discharged, then the default
hereunder by reason thereof shall be deemed
likewise to have been thereupon remedied, cured or
waived without further action upon the part of
either the Trustee or any of the Holders of the Securities; or
VI-1
(e) If the Company shall file a petition commencing
a voluntary case under any chapter of the Federal
bankruptcy laws; or the Company shall file a petition
or answer or consent seeking reorganization,
arrangement, adjustment, or composition under any
other similar applicable Federal law, or shall
consent to the filing of any such petition, answer,
or consent; or the Company shall appoint, or
consent to the appointment of a custodian, receiver,
liquidator, trustee, assignee, sequestrator or other
similar official in bankruptcy or insolvency of it or
of any substantial part of its property; or shall
make an assignment for the benefit of creditors, or
shall admit in writing its inability to pay its debts
generally as they become due; or
(f) If any order for relief against the Company shall
have been entered by a court having jurisdiction
in the premises under any chapter of the Federal
bankruptcy laws, and such order shall have
continued undischarged or unstayed for a period of
120 days; or a decree or order by a court having
jurisdiction in the premises shall have been entered
approving as properly filed a petition seeking
reorganization, arrangement, adjustment, or composition
of the Company under any other similar
applicable Federal law, and such decree or order shall
have continued undischarged or unstayed for a
period of 120 days; or a decree or order of a court
having jurisdiction in the premises for the
appointment of a custodian, receiver, liquidator,
trustee, assignee, sequestrator, or other similar
official in bankruptcy or insolvency of the Company
or of any substantial part of its property, or for
the winding up or liquidation of its affairs, shall
have been entered, and such decree or order shall
have remained in force undischarged or unstayed for
a period of 120 days; or
(g) Any other default provided with respect to Securities
of that series.
If one or more defaults with respect to Securities
of any series shall happen and be continuing, then, and in
each and every such case, either the Trustee, by notice in
writing to the Company, or the Holders of not less
than a majority in principal amount of the Securities
of that series then outstanding, by notice in writing to
the Company and to the Trustee, may declare due and payable,
if not already due and payable, the principal
amount (or, if the Securities of that series are Original
Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of that series)
of all of the Securities of that series; and upon any
such declaration all Securities of that series shall become
and be immediately due and payable, anything in
this Indenture or in any of such Securities contained to
the contrary notwithstanding. This provision,
however, is subject to the condition that if, at
any time after the principal (or portion thereof) of the
Securities of that series shall have been declared due
and payable, and prior to the Stated Maturity of the
principal thereof, all arrears of interest upon all such
Securities (with interest so far as may be lawful on any
overdue installments of interest at the rate specified in
such Securities) and the expenses of the Trustee, its
agents or attorneys shall be paid by or for the account of
the Company, and all defaults as aforesaid (other
than the payment of principal which has been so declared
due and payable) shall have been made good or
secured to the satisfaction of the Trustee and provision
deemed by the Trustee to be adequate shall be made
therefor, then and in every such case the Trustee shall,
upon the written request of the Holders of a majority
in principal amount of the Securities of that series then
outstanding, delivered to the Company and to the
Trustee, waive such default and its consequences and
rescind or annul such declaration; but no such waiver
shall extend to or affect any subsequent default, or
impair any right consequent thereon.
VI-2
Notwithstanding the foregoing, to the extent the
Company shall have been relieved of any of its obligations
under this Indenture with respect to Securities of any
series pursuant to Section 13.4 hereof, the failure of the
Company to perform any such obligations as to which it
has been relieved shall not constitute a default as
contemplated by this Indenture.
SECTION 6.2. In case the Company:
(a) shall fail to pay any installment of interest on
any Security of any series when and as it shall become
payable and such failure shall have continued for a period
of 30 days (it being understood that if the
entire amount of such payment of interest is deposited by the
Company with the Trustee, or with another
paying agent duly appointed hereunder, before the expiration
of such period of 30 days, such default
shall no longer be considered to be continuing under this
Indenture); or
(b) shall fail to pay the principal, or portion thereof,
of (or premium, if any, on) any Security of any series
when it shall have become due and payable, whether at the
Stated Maturity thereof, by call for redemption, by
declaration as authorized by this Indenture (unless
annulled pursuant to Section 6.1), or otherwise;
then, upon demand of the Trustee, the Company shall
pay to the Trustee, for the benefit of the Holders of the
Securities of that series then outstanding, the whole
amount which then shall have become due on all such
Securities for principal (or premium, if any) or interest,
as the case may be, including interest at the rate
specified in the Securities of that series on overdue
principal (and premium, if any) and, so far as may be
lawful, on overdue installments of interest; and in
case the Company shall fail to pay the same forthwith
upon such demand, the Trustee in its own name and as
trustee of an express trust, shall be entitled to recover
judgment for the whole amount so due and unpaid against
the Company or any other obligor on the
Securities of that series. The right of the Trustee to
recover such judgment shall not be affected by the
exercise of any other right, power or remedy for the
enforcement of the provisions of this Indenture.
The Trustee shall be entitled and empowered, either
in its own name or as trustee of an express trust, or as
attorney-in-fact for the Holders of the Securities of any
series, or in any one or more of such capacities, to
file such proof of debt, amendment of proof of debt, claim,
petition or other document as may be necessary
or advisable in order to have the claims of the Trustee and
of the Holders of the Securities of that series
allowed in any equity receivership, insolvency, bankruptcy,
liquidation, readjustment, reorganization or other
judicial proceedings relative to the Company or any
other obligor on such Securities or their creditors, or
affecting their property. The Trustee is hereby irrevocably
appointed (and the successive respective Holders
of the Securities of that series by taking and holding the
same shall be conclusively deemed to have so
appointed the Trustee) the true and lawful attorney-in-fact
of the respective Holders of the Securities of that
series, with authority to make and file in the respective
names of the Holders of such Securities, or on behalf
of the Holders of the Securities of that series as a class,
subject to deduction from any such claims of the
amounts of any claims filed by any of the Holders of the
Securities of that series themselves, any proof of
debt, amendment of proof of debt, claim, petition or
other document in any such proceeding and to receive
payment of any sums becoming distributable on account
thereof, and to execute any such other papers and
documents and to do and perform any and all such acts
and things including participating as a member of any
official or unofficial committee of creditors acting with
respect to such proceeding for and on behalf of such
holders of the Securities of that series, as may be
necessary or advisable in the opinion of the Trustee in order
to have the respective claims of the Trustee and of the Holders
of the Securities of that series allowed in any
such proceedings, and to receive payment of or on
account of such claims; provided, however, that nothing
contained in this Indenture shall be deemed to give the
Trustee any right to accept or consent to any plan of
reorganization or otherwise by action of any character
in any such proceedings to waive or change in any
way any right of any Holder.
VI-3
Any moneys received by the Trustee under this
Section 6.2 shall be applied in the order following, at
the date or dates fixed by the Trustee for the distribution
of such moneys, upon presentation of the several Securities
of any series, and stamping thereon the payment, if only
partially paid, and upon surrender thereof if fully paid:
First: To the payment of costs and expenses of collection,
and reasonable compensation to the Trustee,
its agents, attorneys and counsel, and of all other expenses
incurred, and all advances made, by the
Trustee except as a result of its negligence or willful
misconduct;
Second: In case the principal of (and premium, if any,
on) the outstanding Securities of that series shall
not have become due and be unpaid, to the payment of
interest on the Securities of that series, in the
order of the maturity of the installments of such interest,
with interest, so far as may be lawful, upon the
overdue installments of interest at the rate specified
in the Securities of that series, such payments to be
made ratably to the persons entitled thereto, without
discrimination or preferences;
Third: In case the principal of (or premium, if any,
on) the outstanding Securities of that series shall
have become due, by declaration or otherwise, to the
payment of the whole amount then owing and
unpaid upon such Securities of that series for principal
(and premium, if any) and interest, with interest
at the rate specified in the Securities of that series
on the overdue principal (and premium, if any) and,
so far as may be lawful, on the overdue installments
of interest; and in case such moneys shall be
insufficient to pay in full the whole amount so due and
unpaid upon such Securities, then to the payment
of such principal (and premium, if any) and interest,
without preference or priority of principal over
interest, or of interest over principal or of any
installment of interest over any other installment of
interest, ratably to the aggregate of such principal
and accrued and unpaid interest;
Fourth: In case the Trustee shall retain possession
of any funds after all obligations of the Company
hereunder have been fully paid and satisfied, such funds
shall be paid to the Company, its successors or
assigns;
provided, however, that when interest alone is to be paid,
the Trustee at its election may waive presentation
of the Securities of that series.
SECTION 6.3. All rights of action under this
Indenture or any of the Securities outstanding hereunder,
enforceable by the Trustee, may be enforced by the Trustee
without possession of any of the Securities or the
production thereof at the trial or other proceeding relative
thereto, and any such suit or proceedings instituted
by the Trustee shall be brought for the ratable benefit of
the Holders of the Securities in respect of which any
judgment has been recovered, subject to the provisions of
this Indenture.
SECTION 6.4. No delay or omission of the Trustee or of
the Holders of any Securities to exercise any rights
or powers accruing upon any default shall impair any such
right or power, or shall be construed to be a
waiver of any such default or acquiescence therein; and
every power and remedy given by this Article to the
Trustee or the Holders may be exercised from time to time
and as often as may be deemed expedient by the
Trustee or by the Holders.
VI-4
SECTION 6.5. If any one or more defaults shall
happen and be continuing, the Trustee may, in its
discretion, proceed to protect and enforce the rights
vested in it by this Indenture by such appropriate
judicial proceedings as the Trustee, being advised by
its counsel, shall deem most effectual to protect and
enforce any of said rights, either by suit in equity or
by action at law or by proceeding in bankruptcy or
otherwise, whether for the specific performance of any
covenant or agreement contained in the Indenture or
in aid of the exercise of any power granted in the Indenture,
or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.
Provided the Securities of any series shall not
then be due and payable by reason of a declaration pursuant
to Section 6.1 hereof, the Holders of a majority in principal
amount of the Securities of that series at the
time outstanding may on behalf of the Holders of all of
such Securities waive any past default hereunder
and its consequences, except a default in the payment of
interest on or the principal of (or premium, if any,
on) any of such Securities. In the case of any such waiver,
the Company, the Trustee and the Holders of
such Securities shall be restored to their former
positions and rights hereunder, respectively; but no such
waiver shall extend to any subsequent or other default or
impair any right consequent thereon.
SECTION 6.6. The Holders of a majority in principal
amount of the Securities of any series then outstanding
shall have the right, by an instrument in writing executed
and delivered to the Trustee, to direct the time,
method and place of conducting any proceeding for any
remedy available to the Trustee, or of exercising any
power or trust conferred upon the Trustee under this
Indenture; provided, however, that subject to the
provisions of Section 10.1 of this Indenture, the Trustee
shall have the right to decline to follow any such
direction if the Trustee being advised by counsel determines
that the action or proceeding so directed may
not lawfully be taken or if the Trustee in good faith shall
by responsible officers determine that the action or
proceeding so directed would involve the Trustee in liability.
SECTION 6.7. No Holder of any Security of any series shall
have the right to institute any suit, action or
proceeding, in equity or at law, for the execution of
any trust or power hereof, or for the enforcement of any
other remedy under or upon this Indenture, unless such
Holder previously shall have given to the Trustee
written notice of default with respect to the Securities
of that series, and unless also the Holders of a majority
in principal amount of the Securities of that series then
outstanding shall have made written request upon the
Trustee and shall have afforded to it a reasonable opportunity
either to proceed to exercise the powers hereinbefore granted
or to institute such action, suit or proceeding in its own name,
and shall have offered to the Trustee security and indemnity
satisfactory to it against the costs, expenses and liabilities
to be incurred therein or thereby, and the Trustee shall
have refused or neglected to comply with such request within a
reasonable time; it being understood and intended that no one
or more Holders of Securities of that series
shall have any right in any manner whatever hereunder or
under the Securities of that series by his or their
action to enforce any right hereunder except in the
manner herein provided, and that all proceedings
hereunder, at law or in equity, shall be instituted,
had and maintained in the manner herein provided and for
the ratable benefit of all Holders of such Securities.
Nothing herein contained shall, however, affect or impair
the right which is absolute and unconditional, of any
Holder of any Security to institute suit to enforce the
VI-5
payment of the principal of (or premium, if any, on) and
interest on his Security at and after the respective
due dates expressed in such Security (including Maturity
by call for redemption, declaration (unless annulled
pursuant to Section 6.1 hereof) of the acceleration of
the Maturity of such principal (or premium if any, on)
or interest, or otherwise), or the obligation of the
Company, which is also absolute and unconditional, to pay
the principal of (or premium, if any, on) and interest
on each of the Securities of that series to the respective
Holders thereof at the times and places in the Securities expressed.
Anything to the contrary notwithstanding contained in this
Section 6.7, the parties to this Indenture agree and
each Holder of any Security of any series by his acceptance
thereof shall be deemed to have agreed that any
court may in its discretion require, in any suit for the
enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action
taken or omitted by it as Trustee, the filing by any
party litigant in such suit of an undertaking to pay the costs
of such suit, and such court may in its discretion
assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having
due regard to the merit and good faith of the claims or
defenses made by such party litigant; provided,
however, that the provisions of this paragraph shall not
apply to any suit instituted, directly or through an
agent or agents, by the Trustee, to any suit instituted
by any Holder, or group of Holders, holding in the
aggregate more than 10% in principal amount of the Securities
of any series outstanding or to any suit
instituted by any Holder for the enforcement of the payment
of the principal of (or premium, if any, on) or
interest on his Securities of that series at and after
the respective due dates of such principal (premium, if
any) or interest expressed in his Securities of that series.
SECTION 6.8. No Securities of any series which are
known by the Trustee to be owned or held by, for the
account of or for the benefit of, the Company or any other
obligor under this Indenture or any Affiliate of the
Company or of such other obligor (other than Securities of
that series pledged in good faith which would be
deemed outstanding under the provisions of Section 7.4) shall
be deemed outstanding for the purpose of any
payment or distribution provided for in this Article.
SECTION 6.9. If the Trustee or any Holder shall have
proceeded to enforce any right under this Indenture,
and such proceedings shall have been discontinued or
abandoned because of waiver, or for any other reason,
or shall have been determined adversely to the Trustee
or such Holder, then, and in any such case, the
Company and the Trustee and such Holder or Holders
shall each be restored to its former position and rights
hereunder, and all rights, remedies and powers of the
Trustee and the Holders shall continue as though no
such proceedings had been taken.
VI-6
ARTICLE VII
CONCERNING THE HOLDERS
SECTION 7.1. Whenever in this Indenture it is provided
that the Holders of a specified percentage or a
majority in aggregate principal amount of the Securities of
any series may take any action (including the
making of any demand or request, the giving of any notice,
consent or waiver or the taking of any other
action) the fact that at the time of taking any such action
the Holders of such specified percentages have
joined therein may be evidenced (a) by any instrument or any
number of instruments of similar tenor
executed by Holders of Securities of that series in person or
by attorney or proxy appointed in writing, or (b)
by the record of the Holders of Securities of that series
voting in favor thereof at any meeting of such
Holders duly called and held in accordance with the
provisions of Article XII, or (c) by a combination of
such instrument or instruments and any such record of
such a meeting of such Holders. The Company or the
Trustee may (and in case of any action taken by Holders
of a specified percentage or majority in aggregate
principal amount of the Securities of any series pursuant
to Section 6.1 or 6.6 hereof, the Trustee shall) set a
record date and time for purposes of determining the identity
of Holders of any series entitled to vote or
consent to any action, which record date shall be the later
of 30 days prior to the first solicitation of such
consent or the date of the most recent list of Holders
of such series of Securities furnished to the Trustee
prior to such solicitation pursuant to Section 3.3(d)
hereof. If the Company or the Trustee sets such a record
date, only those persons who are registered Holders of
such Securities at the record date and time so fixed
shall be entitled to vote or consent with respect to
such action whether or not they are Holders at the time of
such vote or consent.
SECTION 7.2. Subject to the provisions of Section 10.1,
proof of the execution of any instrument by a
Holder of Securities of any series or his attorney or
proxy and proof of the holding by any person of any of
the Securities of that series shall be sufficient for
any purpose of this Indenture if made in the following
manner:
(a) The fact and date of the execution by any such
person of any instrument may be proved by the
certificate of any notary public, or other officer of
any jurisdiction of or within the United States of
America authorized to take acknowledgments of deeds
to be recorded in such jurisdiction, that the person
executing such instrument acknowledged to him the
execution thereof, or by an affidavit of a witness to
such execution sworn to before any such notary or
other such officer. Where such execution is by an
officer of a corporation or association or a member
of a partnership on behalf of such corporation,
association or partnership, such certificate or
affidavit shall also constitute sufficient proof of his
authority.
(b) The ownership of Securities of that series shall
be proved by the Security Register with respect to
such Securities or by a certificate of any duly appointed
registrar thereof.
The Trustee shall not be bound to recognize any person
as a Holder of Securities of any series unless and
until his authority to vote the Securities held by him
is proved in the manner in this Article VII provided.
The record of any Holders' meeting shall be proved in
the manner provided in Section 12.6.
The Trustee may require such additional proof of any
matter referred to in this Section 7.2 as it shall deem
necessary.
VII-1
SECTION 7.3. The Company, the Trustee, any
Authenticating Agent, any paying agent and any Security
registrar may deem and treat the person in whose name
any Security shall be registered upon the Security
Register as the absolute owner of such Security (whether
or not such Security shall be overdue and
notwithstanding any notice of ownership or writing thereon
made by anyone other than the Company or any
Security registrar) for the purpose of receiving
payment of or on account of the principal of (premium, if any,
on) and interest on such Security and for all other purposes;
and neither the Company nor the Trustee nor any
Authenticating Agent nor any paying agent nor any Security
registrar shall be affected by any notice to the
contrary. All such payments so made to any such registered
Holder for the time being or upon his order shall
be valid and, to the extent of the sum or sums so paid,
effectual to satisfy and discharge the liability for
moneys payable upon any such Security.
SECTION 7.4. In determining whether the Holders of
the requisite aggregate principal amount of Securities
of any series have concurred in any direction, consent
or waiver under this Indenture, Securities of that series
which are owned by or held by or for the account of or
interest of the Company or any other obligor upon the
Securities of that series, or any Affiliate of the Company
or of any other obligor upon the Securities of that
series, shall be disregarded and deemed not to be
outstanding for the purpose of any such determination,
except that for the purpose of determining whether the
Trustee shall be protected in relying on any such
direction, consent or waiver only Securities of that
series which the Trustee knows are so owned or held shall
be so disregarded. The Securities of that series so
owned or held which have been pledged in good faith may
be regarded as outstanding for the purposes of this
Section 7.4 if the pledgee shall establish to the satisfaction
of the Trustee the pledgee's right to vote such Securities
and that the pledgee is not an Affiliate of the
Company or of any such other obligor. In case of a
dispute as to such right, any decision by the Trustee taken
upon the advice of counsel shall be full protection to the Trustee.
SECTION 7.5. Any demand, request, waiver, consent or
vote of the Holder of any Security of any series
shall be conclusive and binding upon such Holder and upon
all future Holders and owners of such Security,
and of any Security issued in exchange therefor or in place
thereof, irrespective of whether or not any
notation in regard thereto is made upon such Security.
Any action taken by the Holders of the majority or
percentage in aggregate principal amount of the Securities
of that series specified in this Indenture in
connection with such action shall be conclusively
binding upon the Company, the Trustee and the Holders of
all the Securities of that series.
VII-2
ARTICLE VIII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 8.1. No recourse under or upon any obligation,
covenant or agreement of this Indenture, or of any
Security of any series, or for any claim based thereon or
otherwise in respect thereof, 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, whether by virtue of any constitution, statute
or rule of law, or by the enforcement of any assessment
or penalty or otherwise; it being expressly
understood that this Indenture and the obligations issued
hereunder are solely corporate obligations, and that
no such personal liability whatever shall attach to, or
is or shall be incurred by the incorporators,
stockholders, officers or directors, as such, of the
Company or of any successor corporation, or any of them,
because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture
or in any of the Securities of any series or implied
therefrom; and that any and all such personal liability,
either at common law or in equity or by constitution
or statute, of, and any and all such rights and claims
against, every such incorporator, stockholder, officer or
director, as such, because of the creation of the
indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this
Indenture or in any Security of any series or implied
therefrom, are hereby expressly waived and released
as a condition of, and as a consideration for, the
execution of this Indenture and the issue of such Securities.
VIII-1
ARTICLE IX
MERGER, CONSOLIDATION OR SALE
SECTION 9.1. Nothing in this Indenture shall prevent any
consolidation or merger of the Company with or
into any other corporation, or any consolidation or merger
of any other corporation with or into the
Company, or any sale or transfer of its assets and
liabilities substantially as an entirety to any other
corporation lawfully entitled to acquire the same;
provided, however, that, so long as Securities are
outstanding hereunder, the Company covenants and
agrees, that any such consolidation, merger, sale or
transfer shall be upon the condition that the due
and punctual payment of the principal of (or premium, if
any, on) and interest on, all the Securities according
to their tenor, and the due and punctual performance and
observance of all the terms, covenants and conditions of
this Indenture to be kept or performed by the
Company shall, by an indenture supplemental hereto,
executed and delivered to the Trustee, be assumed by
the corporation (if other than the Company) formed by
or resulting from any such consolidation or merger,
or which shall have received the transfer of the assets
and liabilities of the Company substantially as an
entirety, just as fully and effectually as if such
successor corporation had been the original party of the first
part hereto; and in the event of any such sale or transfer
the predecessor Company may be dissolved, wound
up and liquidated at any time thereafter.
SECTION 9.2. Every such successor corporation
upon executing an indenture supplemental hereto, as
provided in Section 9.1, in form satisfactory to the
Trustee, shall succeed to and be substituted for the
Company with the same effect as if it had been named
herein as the Company; and any order, certificate or
resolution of officers of the Company or the Board
provided for in this Indenture may be made by like
officials of such successor corporation. Such successor
corporation may thereupon cause to be signed, either
in its own name or in the name of the Company, with
such suitable reference, if any, to such consolidation,
merger, sale or transfer as may be required by the
Trustee, any or all of the Securities of any series which
shall not theretofore have been signed by the Company and
authenticated by the Trustee or an Authenticating
Agent on its behalf; and upon the written order of
such successor corporation in lieu of the Company, and
subject to all the terms, conditions and restrictions
herein prescribed with respect to the authentication and
delivery of the Securities of any series, the Trustee or
an Authenticating Agent on its behalf shall
authenticate and deliver any and all Securities of
that series which shall have been previously signed by the
proper officers of the Company and delivered to the
Trustee or an Authenticating Agent on its behalf for
authentication, and any of such Securities which such
successor corporation shall thereafter, in accordance
with the provisions of this Indenture, cause to be signed
and delivered to the Trustee or an Authenticating
Agent on its behalf for such purpose. All Securities
of that series so authenticated and delivered shall in all
respects have the same rank as the Securities of that
series theretofore or thereafter authenticated and
delivered in accordance with the terms of this Indenture.
In case of any such consolidation, merger, sale or
transfer, such changes in phraseology and form (but not in
substance) may be made in the Securities of any series
thereafter to be issued as may be appropriate.
SECTION 9.3. The Trustee may receive and shall, subject
to the provisions of Section 10.1 of this Indenture,
be fully protected in relying upon an Opinion of Counsel
or an Officers' Certificate as conclusive evidence
that any supplemental indenture executed under the
foregoing Section 9.1 complies with the foregoing
conditions and provisions of this Article.
IX-1
ARTICLE X
CONCERNING THE TRUSTEE
SECTION 10.1. (a) The Trustee undertakes, prior to
default and after the curing of all defaults which may
have occurred, to perform such duties and only such duties
as are specifically set forth in this Indenture, and
in case of default (but only during the continuance thereof)
to exercise such of the rights and powers vested
in it by this Indenture, and to use the same degree of care
and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of
his own affairs.
The Trustee, upon receipt of any resolution, certificate,
statement, opinion, report, document, order or other
instrument furnished to the Trustee pursuant to any provision
of this Indenture, shall examine them to
determine whether they conform to the requirements of this Indenture.
(b) 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:
(i) prior to default hereunder and after the
curing of all defaults which may have occurred, the Trustee
shall not be liable except for the performance of 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 but the
duties and obligations of the Trustee, prior to default
and after the curing of all defaults which may have
occurred, shall be determined solely by the express
provisions of this Indenture;
(ii) prior to default hereunder and after the
curing of all defaults which may have occurred, and in the
absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions
conforming to the requirements of this Indenture;
(iii) the Trustee shall not be liable for any error
of judgment made in good faith by the Trustee unless it
shall be proved that the Trustee was negligent in ascertaining
the pertinent facts; and
(iv) 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
not less than a majority in principal amount of the
Securities of any series then outstanding 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.
None of the provisions of this Indenture shall
require the Trustee to expend or risk its own funds or otherwise
incur any personal financial liability in the performance
of any of its duties hereunder, or in the exercise of
any of its rights or powers, if there shall be reasonable
grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not
reasonably assured to it.
(c) The Trustee shall not be responsible for the validity,
sufficiency or the execution by the Company of this
Indenture, or of any indentures supplemental hereto,
or of the Securities of any series, or for the recitals
herein or in the Securities contained (such recitals
being made solely by the Company).
X-1
(d) Subject to the limitations contained in subdivisions
(a) and (b) of this Section 10.1:
(i) the Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution,
certificate, opinion, notice, consent, request, order,
appraisal, report, bond or other paper or document
believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(ii) the Trustee may consult with counsel (who may
be counsel to the Company) and any advice or
opinion of such counsel shall be full and
complete authorization and protection in
respect of any action taken, omitted or
suffered by it hereunder in good faith and
in accordance with the advice or opinion of
such counsel;
(iii) whenever in the administration of
this Indenture, prior to a default hereunder
and after the curing of
all defaults which may have occurred, the
Trustee shall deem it necessary or desirable
that a matter be proved or established prior to
taking or suffering any action hereunder, such
matter (unless other evidence in respect
thereof be herein specifically prescribed)
may be deemed to be conclusively proved
and established by an Officers' Certificate
delivered to the Trustee, and such certificate shall be full
warrant to the Trustee for any action taken or
suffered by it under the provisions of this Indenture upon
the faith thereof;
(iv) the Trustee shall be under no obligation
to exercise any of the trusts or powers hereof at the request,
order or direction of any of the Holders of Securities
of any series, pursuant to the provisions of this
Indenture, unless such Holders shall have offered
to the Trustee security or indemnity satisfactory to it
against the costs, expenses and liabilities to be
incurred therein or thereby; and
(v) the Trustee shall not be liable for any action
taken by it in good faith and believed by it to be
authorized or within the discretion or power conferred
upon it by this Indenture.
(e) Subject to the provisions of subdivision (b)
of this Section 10.1, prior to a default hereunder and after the
curing of all defaults which may have occurred, the Trustee
shall not be bound to make any investigation into
the facts or matters stated in any resolution,
certificate, opinion, notice, consent, request,
order, appraisal, report, bond or other document
or instrument unless requested in writing so to
do by the Holders of not less than a majority in
principal amount of the Securities of any series
then outstanding; provided, however, that
if the payment within a reasonable time to the
Trustee of the costs, expenses or liabilities likely to be
incurred by it without negligence or bad faith in the
making of such investigation is, in the opinion of the
Trustee (subject to the provisions of subdivisions
(a) and (b) of this Section 10.1), not reasonably assured to
the Trustee by the security afforded to it by the
terms of this Indenture, the Trustee may require reasonable
indemnity against such costs, expenses or liabilities
as a condition to so proceeding; and provided further,
that nothing in this subdivision (e) shall require the
Trustee to give the Holders of such Securities any notice
other than that required by Section 10.3 hereof. The
reasonable expense of every such examination shall be
paid by the Company or, if paid by the Trustee, shall
be repaid by the Company upon demand.
(f) The Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either
directly or by or through agents or attorneys and
the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney
appointed with due care by it hereunder.
X-2
SECTION 10.2. The Trustee shall be entitled to
reasonable compensation (which shall not be limited by any
provision of law in regard to the compensation of a
trustee of an express trust) for services rendered by it in
the execution of the trusts hereby created. The Company
also agrees to indemnify the Trustee for and hold it
harmless against loss, liability or expense incurred
without negligence or bad faith on the part of the Trustee
arising out of or in connection with the acceptance or
administration of this trust, including the costs and
expenses of defending against any claim of liability
in the premises. The Trustee shall have a first lien on
all moneys coming into its possession hereunder, for the
payment to it of its compensation and for the
repayment to it of all expenses and disbursements
payable by the Company hereunder.
The Trustee shall not be accountable for the use or
application by the Company of any Securities of any
series authenticated and delivered hereunder or of
the proceeds of such Securities, or for the use or
application of any moneys paid over by the Trustee
in accordance with any provision of this Indenture, or for
the use or application of any moneys received by
any paying agent.
All moneys received by the Trustee under or
pursuant to any provision of this Indenture shall constitute trust
funds for the purposes for which they were paid or are held,
but need not be segregated in any manner from
any other moneys and may be deposited by the Trustee,
under such conditions as may be prescribed by law,
in its general banking department, and the Trustee
shall not be liable for any interest thereon, except that, so
long as the Company is not in default hereunder,
the Trustee will allow and credit to the Company
interest, if any, upon such moneys at such rate
as may then be customary for similar deposits.
SECTION 10.3. The Trustee shall give to the Holders
of Securities of any series notice, in the manner
and to the extent provided in subdivision (c) of Section
10.10, of the happening of all defaults known to it
with respect to Securities of such series, within 90 days
after the occurrence thereof unless such defaults
shall have been cured before the giving of such notice;
but, except in the case of a default resulting from the
failure to make any payment of principal of, premium,
if any, on or interest on the Securities of such series,
or in the payment of any sinking or purchase fund
installment of such series, the Trustee may withhold the
giving of such notice if and so long as the board of
directors, the executive committee or a trust committee of
directors and/or Responsible Officers, of the Trustee
in good faith determines that the withholding of such
notice is in the interest of the Holders of Securities
of such series. For the purposes of this Section 10.3, the
term "default" shall mean any default defined in
Section 6.1, irrespective of the giving of any specified
notice and excluding any periods of grace provided for
therein. Notwithstanding anything to the contrary
herein, the Trustee shall only be deemed to have
notice of an event of default (other the pursuant
to Sections 6. l(a) and (b)) when a Vice President,
Assistant Vice President or the officer specifically assigned to
administer the Trustee's duties under this Indenture has
actual notice of such event of default.
SECTION 10.4. If the Trustee has or shall acquire any
conflicting interest as defined in this Section 10.4,
with respect to the Securities of any series it shall,
within 90 days after ascertaining that it has such
conflicting interest if the default (as defined in
Section 10.3) to which such conflicting interest relates has not
been cured or duly waived or otherwise eliminated before
the end of such 90-day period, either eliminate
such conflicting interest or, except as otherwise provided
below, resign with respect to the Securities of that
series, such resignation to become effective upon the appointment
of a successor trustee and such successor's
acceptance of such appointment, and the Company shall take
prompt steps to have a successor appointed in
the manner provided in Section 10.6. Except in the case
of a default (as defined in Section 10.3) in
X-3
the payment of the principal of (or premium, if any) or
interest on any such Security, or in the payment of any
sinking or purchase fund installment, the Trustee shall
not be required to resign as otherwise provided by this
Section if the Trustee shall have sustained the burden
of proving, on application to the Commission and after
opportunity for hearing thereon, that: (i) the default
(as defined in Section 10.3) may be cured or waived
during a reasonable period and under the procedures
described in such application; and (ii) a stay of the
Trustee's duty to resign will not be inconsistent with
the interests of Holders of such Securities. The filing of
such an application shall automatically stay the performance
of the duty to resign until the Commission
orders otherwise. For the purposes of this Section 10.4
the Trustee shall be deemed to have a conflicting
interest with respect to the Securities of any series
if such Securities are in default (as defined in Section
10.3) and:
(1) the Trustee is trustee under another indenture under
which any other securities, or certificates of
interest or participation in any other securities, of the
Company are outstanding, or is trustee for more
than one outstanding series of securities under a single
indenture of the Company, unless such other
indenture is a collateral trust indenture under which the
only collateral consists of Securities issued and
outstanding under this Indenture, provided that there
shall be excluded from the operation of this
paragraph other series under such indenture and any
indenture or indentures under which other securities
or certificates of interest or participation in other
securities of the Company are outstanding if (i) such
other indenture or indentures (and all series of
securities issuable thereunder) are wholly unsecured and
rank equally and such other indenture or indentures
(and such series) are hereafter qualified under the
Trust Indenture Act of 1939, as amended, unless the
Commission shall have found and declared by order
pursuant to subsection (b) of Section 305 or subsection
(c) of Section 307 of the Trust Indenture Act of
1939, as amended, that differences exist between the
provisions of this Indenture (or such series) and the
provisions of such other indenture or indentures (or
such series) which are so likely to involve a material
conflict of interest as to make it necessary in the
public interest or for the protection of investors to
disqualify the Trustee from acting as such under this
Indenture and under such other indenture or
indentures, or (ii) the Company shall have sustained
the burden of proving, on application to the
Commission and after opportunity for hearing thereon,
that the trusteeship under this Indenture and such
other indenture or under more than one outstanding
series under a single indenture is not so likely to
involve a material conflict of interest as to make
it necessary in the public interest or for the protection of
investors to disqualify the Trustee from acting as
such under this Indenture and under such other
indenture or indentures;
(2) the Trustee or any of its directors or executive
officers is an underwriter for the Company;
(3) the Trustee directly or indirectly controls
or is directly or indirectly controlled by or is under direct or
indirect common control with an underwriter for the Company;
(4) the Trustee or any of its directors or executive
officers is a director, officer, partner, employee,
appointee or representative of the Company or of an
underwriter (other than the Trustee itself) for the
Company who is currently engaged in the business of
underwriting, except that (A) one individual may
be a director and/or an executive officer of the
Trustee and a director and/or an executive officer of the
Company, but may not be at the same time an executive
officer of both the Trustee and of the Company,
and (B) if and so long as the number of directors of
the Trustee in office is more than nine, one additional
individual may be a director and/or an executive officer
of the Trustee and a director of the Company,
and (C) the Trustee may be designated by the Company
or by any underwriter for the Company to act in
the capacity of transfer agent, registrar, custodian,
paying agent, fiscal agent, escrow agent, or depositary,
or in any other similar capacity, or, subject to the
provisions of subdivision (1) of this Section 10.4, to act
as trustee, whether under an indenture or otherwise;
X-4
(5) 10% or more of the voting securities of the Trustee
is beneficially owned either by the Company or
by any director, partner or executive officer of the
Company or 20% or more of such voting securities is
beneficially owned, collectively, by any two or more
of such persons; or 10% or more of the voting
securities of the Trustee is beneficially owned either
by an underwriter for the Company or by any
director, partner or executive officer of any such
underwriter, or is beneficially owned, collectively, by
any two or more such persons;
(6) the Trustee is the beneficial owner of, or holds
as collateral security for an obligation which is in
default as hereinafter in this Section 10.4 defined,
(A) 5% or more of the voting securities or 10% or
more of any other class of security of the Company,
not including the Securities issued under this
Indenture and the securities issued under any other
indenture of the Company under which the Trustee is
also trustee, or (B) 10% or more of any class of
security of any underwriter for the Company;
(7) the Trustee is the beneficial owner of, or holds
as collateral security for an obligation which is in
default as hereinafter in this Section 10.4 defined,
5% or more of any voting securities of any person
who, to the knowledge of the Trustee, owns 10% or
more of the voting securities of, or controls directly
or indirectly or is under direct or indirect common
control with, the Company;
(8) the Trustee is the beneficial owner of, or holds
as collateral security for an obligation which is in
default as hereinafter in this Section 10.4 defined,
10% or more of any class of security of any person
who, to the knowledge of the Trustee, owns 50% or
more of the voting securities of the Company;
(9) the Trustee owns, on the date of such default
(as defined in Section 10.3) or any anniversary of such
default while such default remains outstanding, in
the capacity of executor, administrator, testamentary
or inter vivos trustee, guardian, committee or conservator,
or in any other similar capacity, an aggregate
of 25% or more of the voting securities, or of any
class of security, of any person, the beneficial
ownership of a specified percentage of which would
have constituted a conflicting interest under
subdivisions (6), (7), or (8) of this Section 10.4.
As to any such securities of which the Trustee acquired
ownership through becoming executor, administrator or
testamentary trustee of an estate which included
them, the provisions of the preceding sentence shall
not apply, for a period of not more than two years
from the date of such acquisition, to the extent that
such securities included in such estate do not exceed
25% of such voting securities or 25% of any such class
of security. Promptly after the date of any such
default and annually in each succeeding year that the
Securities of any series remain in default, the
Trustee shall make a check of its holdings of such
securities in any of the above mentioned capacities as
of such dates. If the Company fails to make payment in
full of principal of, or premium, if any, on or
interest on any of the Securities issued under this
Indenture when and as the same becomes due and
payable, and such failure continues for 30 days thereafter,
the Trustee shall make a prompt check of its
holdings of such securities in any of the above mentioned
capacities as of the date of the expiration of
such 30-day period, and after such date, notwithstanding
the foregoing provisions of this subdivision (9),
all such securities so held by the Trustee, with sole or
joint control over such securities vested in it, shall,
but only so long as such failure shall continue, be
considered as though beneficially owned by the
Trustee, for the purposes of subdivisions (6), (7), and
(8) of this Section 10.4; or
X-5
(10) except under the circumstances described in paragraphs
(1), (3), (4), (5) or (6) of Section 10.9(b),
the Trustee shall be or become a creditor of the Company.
In determining whether the Trustee has a conflicting
interest with respect to any series of Securities under
this Section 10.4, each other series of Securities will be
treated as having been issued under an indenture
other than this Indenture unless such series of Securities
rank equally and are wholly unsecured.
The specification of percentages in subdivisions (5) to
(9), inclusive, of this Section 10.4 shall not be
construed as indicating that the ownership of such
percentages of the securities of a person is or is not
necessary or sufficient to constitute direct or indirect
control for the purposes of subdivision (3) or (7) of this
Section 10.4.
For the purposes of subdivisions (6), (7), (8),
and (9) of this Section 10.4, (A) the term "security" and
"securities" shall include only such securities as
are generally known as corporate securities, but shall not
include any note or other evidence of indebtedness
issued to evidence an obligation to repay moneys lent to a
person by one or more banks, trust companies, or
banking firms, or any certificate of interest or participation
in any such note or evidence of indebtedness; (B)
an obligation shall be deemed to be in default when a
default in payment of principal shall have continued
for 30 days or more, and shall not have been cured; and
(C) the Trustee shall not be deemed the owner or holder of
(i) any security which it holds as collateral
security (as trustee or otherwise) for an obligation
which is not in default as defined in clause (B) above, or
(ii) any security which it holds as collateral security
under this Indenture, irrespective of any default
hereunder, or (iii) any security which it holds as agent
for collection, or as a custodian, escrow agent or
depositary, or in any similar representative capacity.
Except as provided in the next preceding paragraph,
the word "security" or "securities" as used in this
Section 10.4 shall mean any note, stock, treasury stock,
security future, bond, debenture, evidence of
indebtedness, certificate of interest or participation in
any profit-sharing agreement, collateral trust
certificate, pre-organization certificate or subscription,
transferable share, investment contract, voting-trust
certificate, certificate of deposit for a security,
fractional undivided interest in oil, gas, or other mineral
rights, any put, call, straddle, option, or privilege
on any security, certificate of deposit, or group or index of
securities (including any interest therein or based on the
value thereof), or any put, call, straddle, option, or
privilege entered into on a national securities exchange
relating to foreign currency, or, in general, any
interest or instrument commonly known as a "security",
or any certificate of interest or participation in,
temporary or interim certificate for, receipt for,
guarantee of, or warrant or right to subscribe to or purchase,
any of the foregoing.
For the purposes of this Section 10.4:
(I) The term "underwriter" when used with reference
to the Company shall mean every person who,
within one year prior to the time as of which the
determination is made, has purchased from the
Company with a view to, or has offered or sold for
the Company in connection with, the distribution of
any security of the Company outstanding at such time,
or has participated or has had a direct or indirect
participation in any such undertaking, or has participated
or has had a participation in the direct or
indirect underwriting of any such undertaking, but such
term shall not include a person whose interest
was limited to a commission from an underwriter or dealer
not in excess of the usual and customary
distributors' or sellers' commission.
X-6
(II) The term "director" shall mean any director
of a corporation or any individual performing similar
functions with respect to any organization whether
incorporated or unincorporated.
(III) The term "person" shall mean an individual,
a corporation, a partnership, an association, a joint-
stock company, a trust, an unincorporated organization,
or a government or political subdivision thereof.
As used in this paragraph, the term "trust" shall include
only a trust where the interest or interests of the
beneficiary or beneficiaries are evidenced by a security.
(IV) The term "voting security" shall mean any security
presently entitling the owner or holder thereof to
vote in the direction or management of the affairs of a
person, or any security issued under or pursuant to
any trust, agreement, or arrangement whereby a trustee or
trustees or agent or agents for the owner or
holder of such security are presently entitled to vote
in the direction or management of the affairs of a
person.
(V) The term "Company" shall mean any obligor upon the Securities.
(VI) The term "executive officer" shall mean the president,
every vice president, every trust officer, the
cashier, the secretary, and the treasurer of a corporation,
and any individual customarily performing
similar functions with respect to any organization whether
incorporated or unincorporated but shall not
include the chairman of the board of directors.
The percentages of voting securities and other
securities specified in this Section 10.4 shall be calculated in
accordance with the following provisions:
(a) A specified percentage of the voting securities
of a person means such amount of the outstanding
voting securities of such person as entitles the
holder or holders thereof to cast such specified
percentage of the aggregate votes which the holders
of all the outstanding voting securities of such
person are entitled to cast in the direction or
management of the affairs of such person.
(b) A specified percentage of a class of securities
of a person means such percentage of the aggregate
amount of securities of the class outstanding.
(c) The term "amount", when used in regard to securities,
means the principal amount if relating to
evidences of indebtedness, the number of shares
if relating to capital shares, and the number of units
if relating to any other kind of security.
(d) The term "outstanding" means issued and
not held by or for the account of the issuer. The
following securities shall not be deemed outstanding
within the meaning of this definition:
(1) securities of an issuer held in a sinking fund
relating to securities of the issuer of the same
class;
(2) securities of an issuer held in a sinking
fund relating to another class of securities of the issuer,
if the obligation evidenced by such other class
of securities is not in default as to principal or
interest or otherwise;
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(3) securities pledged by the issuer thereof
as security for an obligation of the issuer not in default
as to principal or interest or otherwise;
(4) securities held in escrow if placed in
escrow by the issuer thereof; provided,
however, that any voting securities of an
issuer shall be deemed outstanding if any person
other than the issuer is entitled to exercise
the voting rights thereof.
(e) A security shall be deemed to be of the
same class as another security if both securities confer
upon the holder or holders thereof substantially
the same rights and privileges, provided, however,
that, in the case of secured evidences of indebtedness,
all of which are issued under a single
indenture, differences in the interest rates
or maturity dates of various series thereof shall not be
deemed sufficient to constitute such series
different classes, and provided, further, that,
in the case of
unsecured evidences of indebtedness, differences
in the interest rates or maturity dates thereof shall
not be deemed sufficient to constitute them securities
of different classes, whether or not they are
issued under a single indenture.
SECTION 10.5. There shall at all times be at least
one corporate Trustee under this Indenture which shall be
a bank or trust company in good standing, organized and
doing business under the laws of the United States,
or any state thereof or a corporation or other person
permitted to act as trustee by the Commission, and
having a combined capital and surplus of not less than
$20,000,000, which is authorized under the laws of
the jurisdiction of incorporation to exercise corporate
trust powers and is subject to supervision or
examination by Federal or state authority. No obligor
upon the Securities or Affiliate of such obligor shall
serve as Trustee. If the Trustee or any successor publishes
reports of condition at least annually, pursuant to
law or to the requirements of the aforesaid supervising
or examining authority, the combined capital and
surplus of the Trustee or of such successor Trustee shall
be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so
published. If the Trustee shall at any time cease to satisfy
the foregoing qualifications, then the Trustee shall
resign within 30 days thereafter, such resignation to
become effective upon the appointment of a successor
Trustee and such successor's acceptance of such
appointment. If the Trustee shall fail or refuse to
resign within such 30-day period, or if the Trustee has or
shall acquire any conflicting interest of the character
specified in Section 10.4 with respect to the Securities
of one or more series and shall fail or refuse either to
eliminate such conflicting interest or to resign within
the period in Section 10.4 provided in respect of such
resignation, then (i) the Trustee shall, within 10 days
after the expiration of such period, transmit notice of
such failure or refusal to the Holders of Securities of
any such series in the manner and to the extent provided
in subdivision (c) of Section 10.10; and (ii) any
Holder of Securities of such series, who has been the
bona fide Holder of a Security of such series for at least
six months, may, subject to the provisions of the last
paragraph of Section 6.7 hereof, on behalf of himself
and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee,
and the appointment of a successor, if the Trustee fails,
after written request therefor by such Holder of
Securities of such series, to comply with the
provisions of Section 10.4.
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SECTION 10.6. The Trustee may resign and be
discharged from the trust hereby created with respect to the
Securities of one or more series by giving notice
thereof to the Company specifying the date when such
resignation shall take effect, and by giving notice
thereof to the Holders of Securities of such series, in the
manner and to the extent provided in subdivision (c)
of Section 10.10. Except as otherwise provided in
Sections 10.4 and 10.5, such resignation shall take
effect on the date specified in such notice unless
previously a successor Trustee shall have been
appointed as hereinafter provided, in which event such
resignation shall take effect upon the appointment of
such successor Trustee.
The Trustee may be removed at any time with
respect to the Securities of any series by an instrument or
instruments in writing delivered to the Trustee and
to the Company signed by the Holders of a majority in
principal amount of the Securities of that series
then outstanding or by their duly authorized attorneys-in-
fact.
In case the Trustee shall resign or be removed or
otherwise shall become incapable of acting as Trustee, with
respect to the Securities of one or more series, a successor
Trustee may be appointed by the Holders of a
majority in principal amount of the Securities of any
series then outstanding by an instrument or instruments
in writing filed with the Company and with the Trustee
and signed by such Holders or by their duly
authorized attorneys-in-fact, or, in the case of the
removal of the Trustee pursuant to the provisions of
Section 10.5, by any court of competent jurisdiction
acting pursuant to the provisions of Section 10.5; but
until a new trustee shall be appointed by the Holders
of Securities of that series or a court of competent
jurisdiction as herein authorized, the Company, by an
instrument executed by order of its Board, shall
appoint a Trustee to fill the vacancy. Every such
successor Trustee so appointed by the Holders of Securities
of that series, by a court of competent jurisdiction
or by the Company, shall be a bank or trust company
meeting the requirements provided in Section 10.5.
If in a proper case no appointment of a successor
Trustee with respect to the Securities of any series shall be
made pursuant to the foregoing provisions of this Article
within six months after a vacancy shall have
occurred in the office of Trustee, the Holder of any Security
of that series or any retiring Trustee may apply
to any court of competent jurisdiction to appoint a successor
Trustee. The court may thereupon, after such
notice, if any, as it may deem proper and prescribe, appoint
a successor Trustee.
SECTION 10.7. (a) Any successor Trustee appointed
under any of the methods herein provided with respect
to all Securities shall execute, acknowledge and deliver
to its predecessor Trustee and to the Company an
instrument in writing accepting such appointment hereunder
and thereupon such successor Trustee, without
any further act, deed or conveyance, shall become fully
vested with the rights, powers, trusts, duties and
obligations of its predecessor in the trust hereunder
with like effect as if originally named as Trustee
hereunder. The predecessor Trustee shall, nevertheless,
at the written request of the successor Trustee, pay
over to the successor Trustee all moneys at the time
held by it hereunder; and the Company and the
predecessor Trustee, upon payment or provision therefor
of any amounts then due the predecessor Trustee
pursuant to the provisions of Section 10.2, shall
execute and deliver such instruments and do such other
things as may reasonably be required for more fully
and certainly vesting and confirming in the successor
Trustee all such rights, powers, trusts, duties and
obligations. The Company shall promptly give notice of the
appointment of such successor Trustee to the Holders
of all Securities in the manner and to the extent
provided in subdivision (c) of Section 10.10.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more
(but not all) series under any of the methods herein
provided, the Company, the predecessor Trustee and each
successor Trustee with respect to the Securities of one
or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee
shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable
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to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and
duties of the predecessor Trustee with respect to the
Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the
predecessor 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 predecessor
Trustee with respect to the Securities of that or
those series as to which the predecessor Trustee is not retiring
shall continue to be vested in the predecessor Trustee,
and (3) shall add to or change any of the provisions of
this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by
more than one Trustee, it being understood that nothing
herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust
and that each such Trustee shall be trustee of a trust or
trusts hereunder separate and apart from any trust or
trusts hereunder administered by any other such
Trustee; and upon the execution and delivery of such
supplemental indenture the resignation or removal of
the predecessor 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 predecessor 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 predecessor Trustee shall duly assign, transfer
and deliver to such successor Trustee all property and
money held by such predecessor Trustee hereunder with
respect to the Securities of that or those series to
which the appointment of such successor Trustee relates.
The Company shall promptly give notice of the
appointment of such successor Trustee with respect to
one or more (but not all) series of Securities to the
Holders of such series in the manner and to the extent
provided in subdivision (c) of Section 10.10.
SECTION 10.8. Any corporation into which the Trustee or
any successor to it in the trust created by this
Indenture may be merged or converted, or with which it or
any successor to it may be consolidated, or any
corporation resulting from any merger, conversion or
consolidation to which the Trustee or any successor to
it shall be a party, shall be the successor Trustee
under this Indenture without the execution or filing of any
instruments or any further act on the part of any of
the parties hereto.
SECTION 10.9. (a) Subject to the provisions
of subdivision (b) of this Section 10.9, if the Trustee, in its
individual capacity, shall be or shall become a creditor,
directly or indirectly, secured or unsecured, of the
Company or of any other obligor upon the Securities of
any series (other than a relationship of the nature
specified in subdivision (b) of this Section 10.9)
within three months prior to a default (as defined in
subdivision (c) of this Section 10.9) or subsequent
to such a default, then, unless and until such default shall
be cured, the Trustee shall set apart and hold in a
special account for the benefit of the Trustee individually,
the Holders of the Securities and the holders of
other indenture securities (as defined in subdivision (c) of
this Section 10.9):
(1) an amount equal to any and all reductions in the
amount due and owing upon any claim as such
creditor in respect of principal or interest, effected
after the beginning of such three months' period and
valid as against the Company and its other creditors,
except any such reduction resulting from the receipt
or disposition of any property described in paragraph
(2) of this subdivision, or from the exercise of any
right of set-off which the Trustee could have exercised
if a petition in bankruptcy had been filed by or
against the Company upon the date of such default; and
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(2) all property received by the Trustee in respect
of any claim as such creditor, either as security
therefor, or in satisfaction or composition thereof,
or otherwise, after the beginning of such three months'
period, or an amount equal to the proceeds of any such
property, if disposed of, subject, however, to the
rights, if any, of the Company and its other creditors
in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee:
(A) to retain for its own account (i) payments made on account
of any such claim by any person (other
than the Company) who is liable thereon, and (ii) the
proceeds of the bona fide sale of any such claim by
the Trustee to a third person, and (iii) distributions
made in cash, securities or other property in respect of
claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization
pursuant to the Federal bankruptcy laws or applicable state law;
(B) to realize, for its own account, upon any property held
by it as security for any such claim, if such
property was so held prior to the beginning of such three
months' period;
(C) to realize, for its own account, but only to the
extent of the claim hereinafter mentioned, upon any
property held by it as security for any such claim,
if such claim was created after the beginning of such
three months' period and such property was received
as security therefor simultaneously with the creation
thereof, and if the Trustee shall sustain the burden
of proving that at the time such property was so
received the Trustee had no reasonable cause to believe
that a default as defined in subdivision (c) of this
Section 10.9 would occur within three months; or
(D) to receive payment on any claim referred to in paragraph
(B) or (C), against the release of any
property held as security for such claim as provided in paragraph
(B) or (C), as the case may be, to the
extent of the fair value of such property.
For the purposes of paragraphs (B), (C) and (D),
property substituted after the beginning of such three
months' period for property held as security at the
time of such substitution shall, to the extent of fair value
of the property released, have the same status as the
property released, and, to the extent that any claim
referred to in any of such paragraphs is created in
renewal of or in substitution for or for the purpose of
repaying or refunding any pre-existing claim of the
Trustee as such creditor, such claim shall have the same
status as such pre-existing claim.
If the Trustee shall be required to account,
the funds and property held in such special account and the
proceeds thereof shall be apportioned between the
Trustee, the Holders of Securities of any series and the
holders of other indenture securities in such manner
that the Trustee, the Holders of Securities of any series
and the holders of other indenture securities realize,
as a result of payments from such special account and
payments of dividends on claims filed against the Company
in bankruptcy or receivership or in proceedings
for reorganization pursuant to the Federal bankruptcy
laws or applicable state law, the same percentage of
their respective claims, figured before crediting to
the claim of the Trustee anything on account of the receipt
by it from the Company of the funds and property in such
special account and before crediting to the
respective claims of the Trustee, the Holders of
Securities of any series and the holders of other indenture
securities dividends on claims filed against the
Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal bankruptcy
laws or applicable state law, but after crediting thereon
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receipts on account of the indebtedness represented
by their respective claims from all sources other than
from such dividends and from the funds and property
so held in such special account. As used in this
paragraph, with respect to any claim, the term
"dividends" shall include any distribution with respect to such
claim, in bankruptcy or receivership or in proceedings
for reorganization pursuant to the Federal bankruptcy
laws or applicable state law, whether such distribution
is made in cash, securities, or other property, but shall
not include any such distribution with respect to the
secured portion, if any, of such claim. The court in
which such bankruptcy, receivership or proceeding for
reorganization is pending shall have jurisdiction (i) to
apportion between the Trustee, the Holders of Securities
of any series, and the holders of other indenture
securities, in accordance with the provisions of this
paragraph, the funds and property held in such special
account and the proceeds thereof, or (ii) in lieu of
such apportionment, in whole or in part, to give to the
provisions of this paragraph due consideration in
determining the fairness of the distributions to be made to
the Trustee, the Holders of Securities of any series,
and the holders of other indenture securities, with respect
to their respective claims, in which event it shall
not be necessary to liquidate or to appraise the value of any
securities or other property held in such special
account or as security for any such claim, or to make a
specific allocation of such distributions as between
the secured and unsecured portions of such claims, or
otherwise to apply the provisions of this paragraph
as a mathematical formula.
Any trustee who has resigned or been removed
after the beginning of such three months' period shall be
subject to the provisions of this subsection as
though such resignation or removal had not occurred. If any
trustee has resigned or been removed prior to the
beginning of such three months' period, it shall be subject
to the provisions of this subdivision if and only
if the following conditions exist-
(i) the receipt of property or reduction of claim which would
have given rise to the obligation to account,
if such trustee had continued as Trustee, occurred after the
beginning of such three months' period; and
(ii) such receipt of property or reduction of
claim occurred within three months after such resignation or
removal.
(b) There shall be excluded from the operation of
subdivision (a) of this Section 10.9 a creditor
relationship arising from-
(1) the ownership or acquisition of securities
issued under any indenture, or any security or securities
having a maturity of one year or more at the time of
acquisition by the Trustee; and for the purposes of
this clause the term "security" shall mean any note,
stock, treasury stock, security future, bond,
debenture, evidence of indebtedness, certificate of
interest or participation in any profit-sharing
agreement, collateral trust certificate, pre-organization
certificate or subscription, transferable share,
investment contract, voting-trust certificate, certificate
of deposit for a security, fractional undivided
interest in oil, gas, or other mineral rights, any put,
call, straddle, option, or privilege on any security,
certificate of deposit, or group or index of securities
(including any interest therein or based on the value
thereof), or any put, call, straddle, option, or privilege
entered into on a national securities exchange
relating to foreign currency, or, in general, any interest
or instrument commonly known as a "security",
or any certificate of interest or participation in,
temporary or interim certificate for, receipt for, guarantee
of, or warrant or right to subscribe to or purchase,
any of the foregoing;
(2) advances authorized by a receivership or bankruptcy
court of competent jurisdiction, or by this
Indenture, for the purpose of preserving any property
which shall at any time be subject to the lien of
this Indenture or discharging tax liens or other prior
liens or encumbrances on the trust estate, if notice
of such advance and of the circumstances surrounding
the making thereof is given to the Holders of
Securities of the applicable series as provided in
Section 10.10;
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(3) disbursements made in the ordinary course of
business in the capacity of trustee under an indenture,
transfer agent, registrar, custodian, paying agent,
fiscal agent or depositary, or other similar capacity;
(4) an indebtedness created as a result of services
rendered or premises rented; or an indebtedness
created as a result of goods or securities sold in a
cash transaction as defined in subdivision (c) of this
Section 10.9;
(5) the ownership of stock or of other securities
of a corporation organized under the provisions of
Section 25(a) of the Federal Reserve Act, as amended,
which is directly or indirectly a creditor of the
Company; or
(6) the acquisition, ownership, acceptance or
negotiation of any drafts, bills of exchange, acceptances or
obligations which fall within the classification
of self-liquidating paper as defined in subdivision (c) of
this Section 10.9.
(c) As used in this Section 10.9:
(1) the term "default" shall mean any failure
to make payment in full of the principal of
(or premium, if any, on) or interest on any
of the Securities or upon the other indenture
securities when and as such
principal, premium, if any, or interest becomes
due and payable;
(2) the term "other indenture securities"
shall mean securities upon which the Company
is an obligor (as defined in the Trust Indenture
Act of 1939, as amended) outstanding under any
other indenture (A) under which the Trustee
is also trustee, (B) which contains provisions
substantially similar to the
provisions of subdivision (a) of this Section 10.9,
and (C) under which a default (as defined under such
indenture) exists at the time of the apportionment of
the funds and property held in said special account;
(3) the term "cash transaction" shall mean any
transaction in which full payment for goods or securities
sold is made within seven days after delivery of
the goods or securities in currency or in checks or other
orders drawn upon banks or bankers and payable upon demand;
(4) the term "self-liquidating paper" shall mean any
draft, bill of exchange, acceptance or obligation
which is made, drawn, negotiated or incurred by the
Company for the purpose of financing the purchase,
processing, manufacture, shipment, storage or sale
of goods, wares or merchandise and which is secured
by documents evidencing title to, possession of, or
a lien upon the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the
goods, wares or merchandise previously constituting
the security, provided the security is received by
the Trustee simultaneously with the creation of the
creditor relationship with the Company arising from
the making, drawing, negotiating or incurring of the
draft, bill of exchange, acceptance or obligation; and
(5) the term "Company" shall mean any obligor upon the
Securities at the time in question.
SECTION 10.10. (a) The Trustee shall, so long as
any Securities of any series are outstanding hereunder,
transmit to the Holders, as hereinafter provided, within
60 days after May 15 of each year, beginning with
the year 2003, a brief report as of such May 15 with
respect to any of the following events which may have
occurred within the previous twelve months (but if no
such event has occurred within such period no report
need be transmitted)-
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(1) any change to the eligibility under Section 10.5
and qualification under Section 10.4 of the Trustee to
serve as Trustee under this Indenture;
(2) the creation of or any material change to
a relationship specified in subsections (1) through (10) of the
first paragraph of Section 10.4 hereof;
(3) the character and amount of any advances
(and if the Trustee elects so to state the circumstances
surrounding the making thereof) made by it as Trustee
which remain unpaid on the date of such report,
and for the reimbursement of which it claims or may
claim a lien or charge, prior to that of the Securities,
on property or funds held or collected by it as a Trustee,
except that the Trustee shall not be required (but
may elect) to state such advances if such advances so
remaining unpaid aggregate not more than 1/2 of
1% of the principal amount of the Securities outstanding
on such date;
(4) any change to the amount, interest rate and
maturity date of all other indebtedness owing to it in its
individual capacity, on the date of such report,
by the Company or any other obligor under this Indenture,
with a brief description of any property held as
collateral security therefor, except an indebtedness based
upon a creditor relationship arising in any manner
described in paragraph (2), (3), (4) or (6) of
subdivision (b) of Section 10.9;
(5) any change to the property and funds
physically in the possession of the Trustee in such capacity on
the date of such report;
(6) any release, or release and substitution, of
property subject to the lien of this Indenture, and any
consideration therefor, which it has not previously reported;
(7) any additional issue of Securities which it has
not previously reported; and
(8) any action taken by the Trustee in the performance
of its duties under this Indenture which it has not
previously reported and which in the opinion of the
Trustee materially affects the Securities or the trust
estate, except action in respect of a default, notice
of which has been or is to be withheld by the Trustee
in accordance with Section 10.3.
(b) The Trustee shall, so long as any Securities
of any series shall be outstanding hereunder, also transmit to
the Holders, as hereinafter provided, within the
times hereinafter specified, a brief report with
respect to the character and amount of any advances
(and if the Trustee so elects to state the circumstances
surrounding the
making thereof) made by the Trustee, as such, since the
date of the last report transmitted pursuant to the
provisions of subdivision (a) of this Section 10.10 (or
if no such report has been so transmitted, since the date
of the execution of this Indenture), for the reimbursement
of which it claims or may claim a lien or charge
prior to that of the Securities, on the trust estate or on
property or funds held or collected by the Trustee, as
such, and which it has not previously reported pursuant to
this paragraph, if such advances remaining unpaid
at any time aggregate more than 10% of the principal amount
of Securities outstanding at such time, such
report to be so transmitted within 90 days after such time.
(c) All reports required by this Section 10.10, and all
other reports or notices which are required by any
other provision of this Indenture to be transmitted in
accordance with the provisions of this Section, shall be
transmitted by mail, first class postage pre-paid to all
Holders, as the names and addresses of such Holders
appear upon the Security Register and to such holders
as have, within the two years preceding such
transmission, filed their names and addresses with the
Trustee for that purpose.
The Trustee shall, at the time of the transmission
to the Holders of any report or notice pursuant to this
Section 10.10, file a copy thereof with each stock exchange,
if any, upon which the Securities are listed and
with the Commission. The Company will notify the
Trustee when Securities are listed on a stock exchange.
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SECTION 10.11. The Trustee shall preserve, in as current
a form as is reasonably practicable, all
information furnished it pursuant to subdivision (d)
of Section 3.3 hereof, or received by it as paying agent
hereunder. The Trustee may destroy (1) any information so
furnished to it by the Company upon receipt of
new information from the Company, (2) any information
received by it as a paying agent, by delivering to
itself, as Trustee, not earlier than 45 days after
an interest payment date on the Securities, a list containing
the names and addresses of the Holders of Securities
obtained from such information since the delivery of
the last previous list, if any, and (3) any list
delivered to itself, as Trustee, which was compiled from
information received by it as paying agent upon the
receipt of a new list so delivered.
Within five business days after receipt by
the Trustee of a written application by any three
or more Holders of Securities stating that the applicants desire
to communicate with other Holders with respect to their rights
under this Indenture or under the Securities, and
accompanied by a copy of the form of proxy or other
communication which such applicants proposed to transmit,
and by reasonable proof that each such applicant
has owned a Security or Securities for a period of at
least six months preceding such application, the Trustee
shall, at its election, either (1) afford to such
applicants access to all information so furnished to or received
by the Trustee and not destroyed pursuant to the
provisions of this Section 10.11, or (2) inform such
applicants as to the approximate number of Holders
according to the most recent information so furnished to
or received by the Trustee, and as to the approximate
cost of mailing to the Holders the form of proxy or
other communication, if any, specified in such application.
If the Trustee shall elect not to afford to such
applicants access to such information, the Trustee
shall, upon the written request of such applicants, mail to
all Holders whose names and addresses are contained
in the then current information filed with the Trustee
as aforesaid, copies of the form of proxy or other
communication which is specified in such request, with
reasonable promptness after a tender to the Trustee
of the material to be mailed and the payment, or
provision for the payment, of the reasonable expenses
of such mailing, unless within five days after such
tender, the Trustee shall mail to such applicants,
and file with the Commission, together with a copy of the
material to be mailed, a written statement to the
effect that, in the opinion of the Trustee, such
mailing would be contrary to the best interest
of the Holders or would be in violation of
applicable law. Such written
statement shall specify the basis of such opinion.
If the Commission, after granting opportunity for a hearing
upon the objections specified in said written statement
and on notice to the Trustee, shall enter an order
refusing to sustain any of such objections, or if,
after the entry of an order sustaining one or more of such
objections, the Commission shall find, after notice
and opportunity for a hearing, that all objections sustained
have been met and shall enter an order so declaring,
the Trustee shall comply with such determination with
reasonable promptness after such determination and
the renewal of the aforesaid tender; otherwise the
Trustee shall be relieved of any obligation or duty
to such applicants respecting their application.
Neither the Company nor the Trustee nor any
Authenticating Agent nor any paying agent nor any Security
registrar shall be liable or accountable to the Company
or to any Holder by reason of disclosure of any such
information as to the names and addresses of Holders in
accordance with the provisions of this Section
10.11, regardless of the source from which such
information was derived, nor by reason of the mailing of any
material pursuant to a request made under this Section 10.11.
X-15
SECTION 10.12. The Trustee or any Authenticating Agent
or any paying agent or Security registrar in its
individual or any other capacity may buy, own, hold and
sell any of the Securities or any other evidences of
indebtedness or other securities, whether heretofore or
hereafter created or issued, of the Company or any
Subsidiary or Affiliate of the Company with the same
rights it would have if it were not Trustee,
Authenticating Agent, paying agent or Security registrar;
and any Authenticating Agent and, subject to the
provisions of this Article X, the Trustee may engage or
be interested in any financial or other transaction with
the Company or any Subsidiary or Affiliate, including,
without limitation, secured and unsecured loans to the
Company or any Subsidiary or Affiliate, and may maintain
any and all other general banking and business
relations with the Company and any Subsidiary or Affiliate,
and may act as trustee under an indenture with
respect to indebtedness thereof, with like effect and in
the same manner and to the same extent as if the
Trustee were not a party to this Indenture; and no
implied covenant shall be read into this Indenture against
the Trustee in respect of any such matters.
SECTION 10.13. The Trustee may comply in good faith
with any rule, regulation or order of the Commission
made pursuant to the terms and provisions of the Trust
Indenture Act of 1939, as amended, and shall be fully
protected in so doing notwithstanding that such rule,
regulation or order may thereafter be amended or
rescinded or determined by judicial or other authority
to be invalid for any reason, but nothing herein
contained shall require the Trustee to take any action
or omit to take any action in accordance with such rule,
regulation or order, except as otherwise required by
subdivisions (a) and (b) of Section 10.1.
SECTION 10.14. At any time when any of the
Securities remain outstanding there may be an Authenticating
Agent with respect to one or more series of Securities
appointed by the Trustee to act on its behalf and subject
to its direction in connection with the authentication of
the Securities of such series as set forth in Articles II,
IV, V, IX and XI. Such Authenticating Agent shall be
acceptable to the Company and shall at all times be a
corporation organized and doing business under the laws
of the United States or of any State or Territory or of
the District of Columbia, authorized under such laws to
act as Authenticating Agent, having a combined
capital and surplus of not less than $20,000,000, and
being subject to supervision or examination by Federal,
State, Territorial, or District of Columbia authority
and (if there be such a corporation willing and able to act
as Authenticating Agent on reasonable and customary terms)
having its principal office and place of business
in the State of Delaware or in the Borough of Manhattan
of The City of New York. If such corporation
publishes reports of conditions at least annually,
pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the
purposes of this Section 10.14 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.
Any corporation into which any 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 any
Authenticating Agent shall be a party, or any corporation
succeeding to the corporate agency business of any
Authenticating Agent, shall continue to be the Authenticating
Agent without the execution or filing of any
paper or any further act on the part of the Trustee or such
Authenticating Agent.
Any Authenticating Agent with respect to one or more
series of Securities may at any time resign by giving
written notice of resignation to the Trustee and to the
Company. The Trustee may at any time terminate the
agency of any 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 any Authenticating Agent shall cease to be eligible
in accordance with the provisions of this Section
10.14, the Trustee may appoint a successor Authenticating
Agent with respect to any series of Securities
which shall be acceptable to the Company, shall give
written notice of such appointment to the Company, and
X-16
the Company shall mail notice of such appointment to
all Holders of Securities of the series with respect to
which such Authenticating Agent will serve, as the
names and addresses of such Holders appear upon the
Security Register. Any successor Authenticating Agent
upon acceptance of its appointment hereunder shall
become vested with all the rights, powers, duties and
responsibilities of its predecessor hereunder, with like
effect as if originally named as Authenticating Agent
herein. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this
Section 10.14.
The Trustee agrees to pay to each Authenticating
Agent from time to time reasonable compensation for its
services, and the Trustee shall be entitled to be
reimbursed for such payments subject to the provisions of
Section 10.2. An Authenticating Agent shall have no
responsibility or liability for any action taken by it as
such at the direction of the Trustee.
If an appointment is made pursuant to this Section,
the Securities shall have endorsed thereon, in addition to
the Trustee's Certificate, an Authenticating Agent's
Certificate in the following form:
This is one of the Securities of the series designated
and referred to in the within mentioned Indenture.
__________________________________
As Authenticating Agent
By:_________________________________
Authorized Officer
X-17
ARTICLE XI
SUPPLEMENTAL INDENTURES
SECTION 11.1. The Company, when authorized by resolution of
its Board, and the Trustee, subject to the
conditions and restrictions in this Indenture contained, may from
time to time and at any time enter into an
indenture or indentures supplemental hereto (which shall conform
to the provisions of the Trust Indenture
Act of 1939 as then in effect) for one or more of the following purposes:
(a) to evidence the succession of another corporation to the
Company, or successive successions, and the
assumption by the successor corporation of the covenants,
agreements and obligations of the Company
pursuant to Article IX;
(b) to add to the covenants and agreements of the Company
for the benefit of the Holders of all or any
series of Securities (and if such covenants and
agreements are for the benefit of less than all series of
Securities, stating that such covenants and agreements are
expressly being included solely for the benefit
of such series), and to surrender any right or power
herein reserved to or conferred upon the Company;
(c) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to
permit or facilitate the issuance of Securities in bearer
form, registrable or not registrable as to principal,
and with or without interest coupons;
(d) to change or eliminate any of the provisions of
this Indenture, provided that any such change or
elimination (i) 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 or
(ii) shall not apply to any such outstanding Security;
(e) to establish the form or terms of Securities of any
series as permitted by Section 2.1;
(f) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with
respect to the Securities of one or more series and
to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by
more than one Trustee, pursuant to the requirements
of Section 10.7(b);
(g) to cure any ambiguity or to correct or supplement
any defective or inconsistent provision contained in
this Indenture or in any supplemental indenture; or
(h) to make such provisions with respect to matters or
questions arising under this Indenture as may be
necessary or desirable and not inconsistent with this
Indenture.
The Trustee is hereby authorized to join with the
Company in the execution of any supplemental indenture
authorized or permitted by the terms of this Indenture,
to make any further appropriate agreements and
stipulations which may be therein contained, but the
Trustee shall not be obligated to enter into any such
supplemental indenture which affects the Trustee's own
rights, duties or immunities under this Indenture or
otherwise.
Any supplemental indenture authorized by the provisions
of this Section 11.1 may be executed by the
Company and the Trustee without the consent of the Holders of
any of the Securities at the time outstanding,
notwithstanding any of the provisions of Section 11.2.
XI-1
SECTION 11.2. With the consent (evidenced as provided
in Section 7.1) of the Holders (or persons entitled
to vote, or to give consents respecting the same) of not less
than a majority in principal amount of the
outstanding Securities of each series affected by such
supplemental indenture, the Company, when
authorized by a resolution of its Board, and the Trustee
may from time to time and at any time enter into an
indenture or indentures supplemental hereto (which shall
conform to the provisions of the Trust Indenture
Act of 1939 as then in effect) for the purpose of adding
any provisions to or modifying or altering in any
manner or eliminating any of the provisions of this
Indenture or of any supplemental indenture or of
modifying or altering in any manner the rights and
obligations of the Holders of such Securities and of the
Company; provided, however, that no such supplemental
indenture shall (i) change the Stated Maturity of the
principal of (premium, if any, on), or the interest on,
any Security, or reduce the principal amount of
(premium, if any, on), or the rate of interest on any
Security, or change the Currency in which the principal
of (and premium, if any) or interest on such Securities is
denominated or payable, or reduce the amount of
the principal of an Original Issue Discount Security that
would be payable upon a declaration of acceleration
of the Maturity thereof pursuant to Section 6.1 without
the consent of the Holder of each outstanding
Security so affected, or (ii) reduce the aforesaid
percentage of Securities of any series the Holders of which
are required to consent to any such supplemental indenture,
without the consent of the Holders of each
outstanding Security affected thereby.
A supplemental indenture which changes or
eliminates any covenant or other provision of this Indenture
which has expressly been included solely for the
benefit of one or more particular series of Securities, or
which modifies the rights of 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.
Upon the request of the Company accompanied by
a Certified Resolution authorizing the execution of any
such supplemental indenture and upon the filing with
the Trustee of evidence of the consent of Holders of
Securities affected thereby as aforesaid, the Trustee
shall join with the Company in the execution of such
supplemental indenture unless such supplemental
indenture affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise, in
which case the Trustee may in its discretion, but shall not be
obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent of the
Holders under this Section 11.2 to approve the particular form
of any proposed supplemental indenture, but it shall
be sufficient if such consent shall approve the substance
thereof.
Promptly after the execution by the Company and
the Trustee of any supplemental indenture pursuant to the
provisions of this Section 11.2 the Company shall mail,
first class postage prepaid, to the Holders of the
XI-2
Securities affected thereby at their last addresses as
they shall appear upon the Security Register, a notice,
setting forth in general terms the substance of such
supplemental indenture. Any failure of the Company to
mail such notice, or any defect therein, shall not, however,
in any way impair or affect the validity of any
such supplemental indenture.
SECTION 11.3. Upon the execution of any supplemental
indenture pursuant to the provisions of this Article
XI, or of Section 9.1, this Indenture shall be and be deemed
to be modified and amended in accordance
therewith and the respective rights, limitations of rights,
obligations, duties and immunities under this
Indenture of the Trustee, the Company and the Holders of
Securities affected thereby shall thereafter be
determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments,
and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
SECTION 11.4. Securities of any series authenticated and
delivered after the execution of any supplemental
indenture pursuant to the provisions of this Article XI, or
after any action taken at a Holders' meeting
pursuant to Article XII, may bear a notation in form
approved by the Trustee as to any matter provided for in
such supplemental indenture or as to any action taken at
any such meeting; and in such case, suitable
notation may be made upon outstanding Securities affected
thereby after proper presentation and demand. If
the Company shall so determine, Securities of any series
so modified as to conform, in the opinion of the
Trustee and the Board, to any modification or alteration
of this Indenture contained in any such supplemental
indenture, or to any action taken at any such meeting,
may be prepared by the Company, authenticated by the
Trustee or an Authenticating Agent on its behalf and
delivered in exchange for outstanding Securities of such
series upon demand of and without cost to, the Holders
thereof, upon surrender of such Securities.
SECTION 11.5. The Trustee may receive and shall, subject
to the provisions of Section 10.1, be fully
protected in relying upon an Opinion of Counsel as
conclusive evidence that any supplemental indenture
executed pursuant to this Article XI is authorized
or permitted by the terms of this Indenture and that it is not
inconsistent therewith.
SECTION 11.6. Nothing in this Article contained shall
affect or limit the right or obligation of the Company
to execute and deliver to the Trustee any instrument of
further assurance or other instrument which
elsewhere in this Indenture it is provided shall be
delivered to the Trustee.
XI-3
ARTICLE XII
MEETINGS OF HOLDERS
SECTION 12.1. A meeting of Holders of any series of Securities
may be called at any time and from time to
time pursuant to the provisions of this Article XII for any of the
following purposes:
(1) to give any notice to the Company or to the Trustee, or to
give any direction to the Trustee or to
waive or consent to the waiving of any default hereunder and
its consequences, or to take any other
action authorized to be taken by such Holders pursuant to any
of the provisions of Article VI;
(2) to remove the Trustee or appoint a successor trustee
pursuant to the provisions of Article X;
(3) to consent to the execution of an indenture or
indentures supplemental hereto pursuant to the
provisions of Section 11.2; or
(4) to take any other action authorized to be taken
by or on behalf of the Holders of any specified
aggregate principal amount of the Securities of that
series under any other provision of this Indenture, or
authorized or permitted by law.
SECTION 12.2. The Trustee may at any time call a
meeting of Holders of Securities of any series to take any
action specified in Section 12.1, to be held at such time
and at such place in any of the city in which the
principal executive offices of the Company are located,
the City of Wilmington, Delaware, the city in which
the principal corporate trust office of the Trustee is
located, the City of Chicago or in the Borough of
Manhattan of The City of New York, as the Trustee shall
determine. Notice of every meeting of such
Holders, setting forth the time and place of such meeting
and in general terms the action proposed to be
taken at such meeting, shall be mailed by the Trustee,
first class postage prepaid, to the Company, and to the
Holders of Securities of that series at their last
addresses as they shall appear upon the Security Register, not
less than 20 nor more than 60 days prior to the date
fixed for the meeting.
Any meeting of the Holders of Securities of any
series shall be valid without notice if the Holders of all
Securities of that series then outstanding are present
in person or by proxy, or if notice is waived before or
after the meeting by the Holders of all outstanding
Securities of that series, and if the Company and the
Trustee are either present by duly authorized
representatives or have, before or after the meeting, waived
notice.
SECTION 12.3. In case at any time the Company, pursuant
to resolution of its Board, or Holders of not less
than a majority in aggregate principal amount of the Securities
of any series then outstanding, shall have
requested the Trustee to call a meeting of Holders of Securities
of that series to take any action specified in
Section 12.1, by written request setting forth in reasonable
detail the action proposed to be taken at the
meeting, and the Trustee shall not have mailed the notice of
such meeting within 20 days after receipt of
such request, then the Company or such Holders in the amount
above specified may determine the time and
the place in any of the city in which the principal executive
offices of the Company are located, the City of
Wilmington, Delaware, the city in which the principal
corporate trust office of the Trustee is located, the
City of Chicago or in the Borough of Manhattan of The
City of New York, for such meeting and may call
such meeting for the purpose of taking such action, by
mailing or causing to be mailed notice thereof as
provided in Section 12.2.
XII-1
SECTION 12.4. To be entitled to vote at any meeting
of Holders of Securities of any series a person shall (a)
be a registered Holder of one or more Securities of that
series, or (b) be a person appointed by an instrument
in writing as proxy for the registered Holder or Holders
of Securities of that series. The only persons who
shall be entitled to be present or to speak at any meeting
of Holders shall be the persons entitled to vote at
such meeting and their counsel and any representatives of
the Trustee and its counsel and any representatives
of the Company and its counsel.
SECTION 12.5. Notwithstanding any other provisions
of this Indenture, the Trustee may make such
reasonable regulations as it may deem advisable for any
meeting of Holders of Securities of any series, in
regard to proof of the holding of Securities of that
series and of the appointment of proxies, and in regard to
the appointment and duties of inspectors of votes, and
submission and examination of proxies, certificates
and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it
shall think fit. Unless otherwise determined by the
Company pursuant to Section 7.1, such regulations may
fix a record date and time for purposes of determining
the registered Holders of any series of Securities
entitled to vote at such meeting, which record date shall
be (i) the later of 30 days prior to the first
solicitation of the vote at such meeting or the date of
the most recent list of Holders furnished to the Trustee
prior to such solicitation pursuant to Section 3.3(d)
hereof or (ii) such other date determined by the Trustee.
If the Trustee sets such a record date only those persons
who are registered Holders of such Securities at the
record date and time so fixed shall be entitled to vote
at such meeting whether or not they shall be such
Holders at the time of the meeting. Such regulations
may further provide that written instruments appointing
proxies, regular on their face, may be presumed valid
and genuine without the proof specified in Section 7.2
or other proof. Except as otherwise permitted or required
by any such regulations, the holding of such
Securities shall be proved in the manner specified in
Section 7.2 and the appointment of any proxy shall be
proved in the manner specified in Section 7.2 or by
having the signature of the person executing the proxy
witnessed or guaranteed by any bank, banker or trust
company satisfactory to the Trustee.
The Trustee shall, by an instrument in writing,
appoint a temporary chairman of the meeting, unless the
meeting shall have been called by the Company or
by Holders of Securities of any series as provided in
Section 12.3, in which case the Company or such
Holders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent
chairman and a permanent secretary of the
meeting shall be elected by vote of the Holders
of a majority in principal amount of the Securities of that
series represented at the meeting and entitled to vote.
Subject to the provisions of Section 7.4, at any meeting
each Holder of Securities of any series or proxy
shall be entitled to one vote for each $1,000 principal
amount at Stated Maturity (or the Dollar equivalent
thereof based upon the Market Exchange Rate on the latest
date for which such rate was established on or
before the date for determining the Holders entitled to
perform such act, if the principal amount of any
Securities of any series is denominated in any Foreign Currency)
of Securities of that series, provided,
however, that no vote shall be cast or counted at any meeting
in respect of any Securities of that series
challenged as not outstanding and ruled by the chairman of the
meeting to be not outstanding. The chairman
of the meeting shall have no right to vote other than by
virtue of Securities of that series held by him or
instruments in writing as aforesaid duly designating him
as the person to vote on behalf of other such
XII-2
Holders. At any meeting of Holders of Securities of
that series, the presence of persons holding or
representing any number of such Securities shall be
sufficient for a quorum. Any meeting of such Holders
duly called pursuant to the provisions of Section 12.2
or 12.3 may be adjourned from time to time by vote
of the Holders of a majority in principal amount of
the Securities of that series represented at the meeting
and entitled to vote, and the meeting may be held as
so adjourned without further notice.
SECTION 12.6. The vote upon any resolution submitted
to any meeting of Holders of Securities of any
series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of
that series or of their representatives by proxy and the
principal amount of the Securities of that series voted
by the ballot. The permanent chairman of the meeting
shall appoint two inspectors of votes, who shall count
all votes cast at the meeting for or against any
resolution and who shall make and file with the secretary of
the meeting their verified written reports in duplicate
of all votes cast at the meeting. A record in duplicate
of the proceedings of each meeting of Holders shall be
prepared by the secretary of the meeting and there
shall be attached to said record the original reports
of the inspectors of votes on any vote by ballot taken
thereat and affidavits by one or more persons having
knowledge of the facts, setting forth a copy of the
notice of the meeting and showing that said notice
was mailed as provided in Section 12.2. The record shall
be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one of
the duplicates shall be delivered to the Company and
the other to the Trustee to be preserved by the Trustee,
the latter to have attached thereto the ballots voted
at the meeting.
Any record so signed and verified shall be
conclusive evidence of the matters therein stated.
SECTION 12.7. Nothing in this Article XII contained
shall be deemed or construed to authorize or permit,
by reason of any call of a meeting of Holders of Securities
of any series or any rights expressly or impliedly
conferred hereunder to make such call, any hindrance
or delay in the exercise of any right or rights conferred
upon or reserved to the Trustee or to the Holders of
Securities of that series under any of the provisions of
this Indenture or of such Securities.
XII-3
ARTICLE XIII
SATISFACTION AND DISCHARGE OF INDENTURE
OR CERTAIN OBLIGATIONS
SECTION 13.1. If (a) the Company shall deliver to the
Trustee for cancellation all Securities theretofore
authenticated (other than any Securities which shall have
been destroyed, lost or stolen and in lieu of or in
substitution for which other Securities shall have been
authenticated and delivered) and not theretofore
cancelled, or (b) all the Securities not theretofore
cancelled or delivered to the Trustee for cancellation shall
have become due and payable, or are by their terms to become
due and payable at their Stated Maturity
within one year or are to be called for redemption within one
year under arrangements satisfactory to the
Trustee for the giving of notice of redemption, and the Company
shall deposit with the Trustee as trust funds
the entire amount sufficient to pay at Stated Maturity or upon
redemption all of the Securities (other than any
Securities which shall have been destroyed, lost or stolen
and in lieu of or in substitution for which other
Securities shall have been authenticated and delivered) not
theretofore cancelled or delivered to the Trustee
for cancellation, including principal (and premium, if any)
and interest due or to become due to such date of
Stated Maturity or Redemption Date, as the case may be, but,
excluding, however, the amount of any
moneys for the payment of principal of (and premium, if any, on)
or interest on the Securities theretofore
deposited with the Trustee and (1) repaid by the Trustee
to the Company in accordance with the provisions
of Section 13.3, or (2) paid by the Trustee to any State
pursuant to its unclaimed property or similar laws,
and if in either case the Company shall also pay or cause
to be paid all other sums payable hereunder by the
Company, then this Indenture shall cease to be of further
effect, and the Trustee, on demand of the Company
accompanied by an Officers' Certificate and an Opinion of
Counsel, each stating that in the opinion of the
signers all conditions precedent to the satisfaction and
discharge of this Indenture have been complied with,
and at the cost and expense of the Company, shall execute
proper instruments acknowledging satisfaction of
and discharging this Indenture. The Company agrees
to reimburse the Trustee for any costs or expenses
thereafter reasonably and properly incurred by the
Trustee in connection with the Indenture or the Securities,
and any such obligation for reimbursement shall survive
this Indenture.
SECTION 13.2. Any moneys, U.S. Government Obligations,
and Eligible Obligations which at any time
shall be deposited by the Company or on its behalf
with the Trustee or any paying agent (other than the
Company) for the purpose of paying or redeeming any
of the Securities shall be held in trust and applied by
the Trustee to the payment, to the Holders of the
particular Securities for the payment or redemption of
which such moneys have been deposited, of all sums due
and to become due thereon for principal (and
premium, if any) and interest, or analogous payments as
contemplated by Section 13.4, upon presentation
and surrender of such Securities at the office of the
Trustee or any paying agent, all subject, however, to the
provisions hereinafter contained in this Article XIII.
Neither the Company nor the Trustee (except as
provided in Section 10.2) nor any paying agent shall be
required to pay interest on any moneys so deposited.
The Company shall pay and shall indemnify the Trustee
against any tax, fee or other charge imposed on or
assessed against U.S. Government Obligations or Eligible
Obligations deposited pursuant to Section 13.4 or
the interest and principal received in respect of such
obligations other than any payable by or on behalf of
Holders.
XIII-1
The Trustee shall deliver or pay to the Company from
time to time upon the request of the Company any
money, U.S. Government Obligations, or Eligible Obligations
held by it as provided in Section 13.4 which,
in the opinion of any independent firm of public
accountants of recognized standing selected by the Board
expressed in a written certification thereof delivered
to the Trustee, are then in excess of the amount thereof
which then would have been required to be deposited for
the purpose for which such money, U.S.
Government Obligations, or Eligible Obligations were
deposited or received.
SECTION 13.3. Any moneys deposited with the Trustee
or any paying agent remaining unclaimed by the
Holders of Securities for three years after the date upon
which the principal of (premium if any, on) or
interest on such Securities shall have become due and payable,
shall be repaid to the Company by the Trustee
or such paying agent, upon demand, and such Holders shall
thereafter be entitled to look only to the
Company for payment thereof; provided, however, that, before
being required to make any such payment to
the Company, the Trustee may, at the expense of the Company,
cause to be mailed to the Holders of such
Securities, at their last addresses as they appear
on the Security Register, notice that such moneys remain
unclaimed and that, after a date named in said notice,
the balance of such moneys then unclaimed will be
returned to the Company.
Upon the satisfaction and discharge of this
Indenture as to the Securities of any series,
all moneys then held by any paying agent
other than the Trustee hereunder shall,
upon demand of the Company, be repaid to it and
thereupon such paying agent shall be released
from all further liability with respect to such moneys.
SECTION 13.4. Except as otherwise provided in
this Section 13.4 or pursuant to Section 2.1, the Company
may terminate its obligations as to the Securities
of any series if:
(a) all Securities of such series previously
authenticated and delivered (other than destroyed, lost or
stolen Securities which have been replaced
or Securities which are paid pursuant to Section 3.1 or
Securities for whose payment money or securities
have theretofore been held in trust and thereafter
repaid to the Company, as provided in Sections 13.2
and 13.3) have been delivered to the Trustee for
cancellation and the Company has paid all sums
payable by it hereunder; or
(b)(l) the Company has irrevocably deposited or
caused to be deposited with the Trustee or a paying
agent (and conveyed all right, title and interest
for the benefit of the Holders, under the terms of an
irrevocable trust agreement in form and substance
satisfactory to the Trustee, as trust funds in trust solely
for the benefit of the Holders for that purpose),
(A) money in an amount sufficient, or (B) U.S.
Government Obligations (if the Securities of the
series are denominated in Dollars) or Eligible
Obligations (if the Securities of the series are
denominated in a Foreign Currency) maturing as to
principal and interest in such amounts and at such
times as are sufficient in the opinion of a nationally
recognized firm of independent public accountants
expressed in a written certification thereof delivered
to the Trustee (without consideration of any
reinvestment of such interest), or (C) a combination thereof
in an amount sufficient, to pay principal (and premium,
if any) and interest on the outstanding Securities
of such series on the dates such installments are
due to redemption or maturity, and any mandatory
sinking fund payments or analogous payments
applicable to such outstanding Securities;
(2) such deposit as described in this Section 13.4
will not result in a breach or violation of, or constitute a
default under, any other agreement or instrument to
which the Company is a party or by which it is
bound;
(3) no defaults as defined in Section 6.1 shall have
occurred and be continuing on the date of such
deposit, and no default under Section 6. l(e) or 6. l(f)
shall have occurred and be continuing on the 91st
day after such date;
(4) the Company shall have delivered to the Trustee
(i) either (A) a ruling received from the Internal
Revenue Service to the effect that the Holders of
the Securities of such series will not recognize income,
gain or loss for Federal income tax purposes as a
result of the Company's exercise of its option under this
Section 13.4 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
option had not been exercised, or (B) an Opinion
of Counsel by recognized counsel who is not an employee
of the Company to the same effect as the
ruling described in clause (A) and (ii) an Opinion of
Counsel to the effect that, after the passage of 90
days following the deposit, (x) the trust funds will
not be subject to the effect of any applicable
bankruptcy, insolvency, reorganization or similar
laws affecting creditors' rights generally, or (y) if a
court was to rule under any such law in any case or
proceeding that the trust funds remained property of
the Company (AA) assuming such trust funds remained
in the Trustee's possession prior to such court
ruling to the extent not paid to Holders of Securities
of such series, the Trustee will hold, for the benefit
of the Holders of such Securities, a valid and perfected
security interest in such trust funds that is not
avoidable in bankruptcy or otherwise, and (BB) the
Holders of Securities will be entitled to receive
adequate protection of their interests in such trust
funds if such trust funds are used;
(5) the Company has paid or caused to be paid all sums
then payable by the Company hereunder and
under such Securities; and
(6) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent provided for
herein relating to the satisfaction and discharge of this
Indenture with respect to Securities of such series
have been complied with.
Notwithstanding the foregoing clause (b) prior to
the end of the 90-day period referred to in subclause
(b)(4)(ii) above, none of the Company's obligations under
this Indenture shall be discharged, and subsequent
to the end of such 90-day period only the Company's
obligations in Sections 2.5, 2.6, 3.1, 3.2, 10.2 and 13.2
shall survive until the Securities of such series are
no longer outstanding. If and when a ruling from the
Internal Revenue Service or Opinion of Counsel referred to
in subclause (b)(4)(i) above is able to be
provided specifically without regard to, and not in reliance
upon, the continuance of the Company's
obligations under Section 3.1, then the Company's obligations
under such Section 3.1 shall cease upon
delivery to the Trustee of such ruling or Opinion of Counsel
and compliance with the other conditions
precedent provided for herein relating to the satisfaction
and discharge of this Indenture with respect to
Securities of such series.
After any such irrevocable deposit the Trustee upon
request shall acknowledge in writing the discharge of
the Company's obligations under the Securities of such
series and this Indenture with respect to such
Securities except for those surviving obligations specified above.
XIII-3
SECTION 13.5. The Trustee or a paying agent (other
than the Company) shall hold, in trust, the money, U.S.
Government Obligations or Eligible Obligations deposited
with it pursuant to Section 13.4 hereof. The
Trustee or paying agent shall have been irrevocably
instructed to apply the deposited money and the
proceeds from the U.S. Government Obligations or
Eligible Obligations in accordance with the terms of this
Indenture and the terms of the Securities of the
series to the payment of principal (and premium, if any) and
interest on such Securities.
XIII-4
ARTICLE XIV
MISCELLANEOUS PROVISIONS
SECTION 14.1. Nothing in this Indenture, expressed or
implied, is intended or shall be construed to confer
upon, or to give to, any person or corporation, other than
the parties hereto, their successors and assigns, and
the Holders of the Securities of any series, any right,
remedy or claim under or by reason of this Indenture or
any provisions hereof; and the provisions of this Indenture
are for the exclusive benefit of the parties hereto,
their successors and assigns, any Authenticating Agent or
paying agent and the Holders of the Securities of
any series.
SECTION 14.2. Unless otherwise specifically provided,
the certificate or opinion of any independent firm of
public accountants of recognized standing selected by the
Board shall be conclusive evidence of the
correctness of any computation made under the provisions
of this Indenture. The Company shall furnish to
the Trustee upon its request a copy of any such
certificate or opinion.
SECTION 14.3. In case any one or more of the
provisions contained in this Indenture or in the Securities of
any series shall for any reason be held to be invalid,
illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other
provisions of this Indenture, but this Indenture shall be
construed as if such invalid or illegal or unenforceable
provisions had never been contained herein.
If any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by operation of
subsection (c) of Section 318 of the Trust Indenture Act
of 1939, as amended, the imposed duties shall
control.
SECTION 14.4. Whenever in this Indenture the
Company shall be required to do or not to do anything so
long as any of the Securities of any series shall be
outstanding, the Company shall, notwithstanding any such
provision, not be required to comply with such provisions
if it shall be entitled to have this Indenture
satisfied and discharged pursuant to the provisions
hereof, even though in either case the Holders of any of
the Securities of that series shall have failed to
present and surrender them for payment pursuant to the terms
of this Indenture.
SECTION 14.5. Although this Indenture, for
convenience and for the purpose of reference, is dated as of
October 1, 2002, the actual date of execution by the Company
and by the Trustee is as indicated by their
respective acknowledgments hereto annexed.
SECTION 14.6. Unless otherwise expressly provided,
any order, notice, request, demand, certificate or
statement of the Company required or permitted to be made
or given under any provision hereof shall be
sufficiently executed if signed by its Chairman of the
Board, its Chief Executive Officer, its President or one
of its Vice Presidents and by its Vice President, Finance,
its Treasurer or one of its Assistant Treasurers or its
Secretary or one of its Assistant Secretaries.
Upon any application, demand or request by the Company
to the Trustee to take any action under any of the
provisions of this Indenture, the Company shall furnish
to the Trustee an Officers' Certificate stating that all
conditions precedent, if any (including any covenants
compliance with which constitutes a condition
precedent), provided for in this Indenture relating to
the proposed action, have been complied with, and an
Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent have been
complied with.
Each certificate or opinion by or on behalf of
the Company with respect to compliance with a condition or
covenant provided for in this Indenture (other
than certificates provided pursuant to Section 3.4
XIV-1
of this Indenture) shall include (l) a statement that
the person making such certificate or opinion has read such
covenant or condition; (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 such person, he has made such
examination or investigation as is necessary to enable
him to express an informed opinion as to whether or
not such covenant or condition has been complied with; and (4)
a statement as to whether or not, in the opinion of
such person, such condition or covenant has been
complied with.
Any certificate, statement or opinion of an
officer of the 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 that the certificate or opinion
or representations with respect to the matters upon
which his certificate, statement or opinion may
be based as aforesaid are erroneous, or in the
exercise of reasonable care should know that
the same are erroneous.
Any certificate, statement or Opinion of Counsel
may be based, insofar as it relates to factual matters, upon
information which is in the possession of the Company,
upon the certificate, statement or opinion of or
representations by an officer or officers of the
Company, unless such counsel knows that the certificate,
statement or opinion or representations with respect
to the matters upon which his certificate, statement, or
opinion may be based as aforesaid are erroneous, or
in the exercise of reasonable care should know that the
same are erroneous.
Any certificate, statement or opinion of an officer
of the Company or of counsel may be based, insofar as it
relates to accounting matters, upon a certificate or opinion
of or representations by an accountant or firm of
accountants in the employ of the Company, unless
such officer or counsel, as the case may be, knows that
the certificate or opinion or representations with
respect to the accounting matters upon which his
certificate, statement or opinion may be based as
aforesaid are erroneous, or in the exercise of reasonable
care should know that the same are erroneous. Any
certificate or opinion of any independent firm of public
accountants filed with the Trustee shall contain a
statement that such firm is independent.
SECTION 14.7. If any Interest Payment Date or
other payment date shall fall on a day other than a
Business Day, then any payment or deposit by or on
behalf of the Company required under the terms hereof
to be made on such date may be made instead on the
next succeeding Business Day with the same force and
effect as if made on such date.
SECTION 14.8. All notices to or demands upon
the Trustee shall be in writing and may be served or
presented, and such demands may be made, at the
designated office of the Trustee, c/o The Bank of New
York, 101 Barclay St., Floor 8W, New York, NY, 10286,
attention: Corporate Trust Administration. Any
notice to or demand upon the Company shall be deemed
to have been sufficiently given or served by the
Trustee or any Holder for all purposes, by being
mailed by registered mail addressed to the Company,
attention of the President, at 3711 Kennett Pike,
Greenville, DE, 19807, or at such other address as may be
filed in writing by the Company with the Trustee.
XIV-2
SECTION 14.9. All the covenants, promises and
agreements in this Indenture contained by or on behalf of
the Company, or by or on behalf of the Trustee, shall
bind and inure to the benefit of their respective
successors and assigns, whether so expressed or not.
SECTION 14.10. The descriptive headings of the several
Articles of this Indenture are inserted for
convenience only and shall not control or affect the
meaning or construction of any of the provisions hereof.
SECTION 14.11. This Indenture may be simultaneously
executed in any number of counterparts, each of which
when so executed and delivered shall be an original; but
such counterparts shall together constitute but one and
the same instrument.
SECTION 14.12. This Indenture shall be governed
in accordance with the internal laws of the State of
Delaware.
XIV-3
IN WITNESS WHEREOF, SEARS ROEBUCK ACCEPTANCE CORP.
has caused this Indenture to be signed in its corporate
name by its President, and its corporate seal to be
affixed hereto and attested to by one of its Assistant
Secretaries, and BNY MIDWEST TRUST COMPANY has caused
this Indenture to be signed in its corporate name by
one of its Assistant Vice Presidents and impressed
with its corporate seal and attested to by one of
its Assistant Treasurers, all as of the day and
year first above written.
SEARS ROEBUCK ACCEPTANCE CO.
By /s/ KEITH E. TROST
------------------------
(CORPORATE SEAL)
Attest:
/S/ GEORGE F. SLOOK
- ---------------------------
BNY MIDWEST TRUST COMPANY
By /S/ M. CALLAHAN
- ---------------------------
(CORPORATE SEAL)
Attest:
/S/ L. GARCIA
- ---------------------------
STATE OF DELAWARE
COUNTY OF NEW CASTLE
I, DOLORES L. SMALLWOOD, a Notary Public in and
for the County and State aforesaid, DO HEREBY CERTIFY
THAT KEITH E. TROST, the President, and GEORGE F. SLOOK,
an Assistant Secretary, of SEARS ROEBUCK
ACCEPTANCE CORP., who are personally known to me
to be the same persons whose names are subscribed to
the foregoing Indenture as such President and
Assistant Secretary, appeared before me this day in person,
and acknowledged that they signed, sealed and
delivered the said Indenture as their free
and voluntary act, and as the free and voluntary
act of said Company for the uses and purposes
therein set forth, and caused the corporate seal
of said Company to be thereto affixed.
GIVEN under my hand and notarial seal,
this 1st day of October, 2002.
/S/ DOLORES L. SMALLWOOD
- ------------------------
Notary Public
My Commission Expires: 8/14/05
[SEAL]
STATE OF ILLINOIS
COUNTY OF COOK
I, K. GIBSON, a Notary Public in and for
the County and State aforesaid, DO HEREBY CERTIFY that MARY
CALLAHAN, an Assistant Vice President, and LINDA GARCIA,
an Assistant Treasurer, of BNY MIDWEST
TRUST COMPANY, Trustee under the foregoing Indenture,
who are personally known to me to be the same
persons whose names are subscribed to the foregoing
instrument as such and appeared before me this day in
person, and acknowledged that they signed, sealed and
delivered the said Indenture as their free and
voluntary act, and as the free and voluntary act of
said corporation for the uses and purposes therein set
forth, and caused the corporate seal of said
corporation to be thereto affixed.
GIVEN under my hand and notarial seal,
this 1st day of October, 2002.
/S/ K. GIBSON
- -----------------------
Notary Public
My Commission Expires: 7/8/08
[SEAL]