The Neiman Marcus Group, Inc.
and
The Bank of New York
Trustee
INDENTURE
Dated as of May 27, 1998
Providing for issuance of Securities in Series
TABLE OF CONTENTS
Page
Recitals of the Company . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Agreements of the Parties . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE 1. Definitions and Other Provisions of General Application . . . 1
Section 101. Definitions . . . . . . . . . . . . . . . . . . . . 1
Section 102. Compliance Certificates and Opinions . . . . . . . 9
Section 103. Form of Documents Delivered to Trustee . . . . . . 9
Section 104. Acts of Securityholders . . . . . . . . . . . . . . 10
Section 105. Notices, etc., to Trustee and Company . . . . . . . 11
Section 106. Notices to Securityholders; Waiver . . . . . . . . 11
Section 107. Conflict with Trust Indenture Act . . . . . . . . . 12
Section 108. Effect of Headings and Table of Contents . . . . . 12
Section 109. Successors and Assigns . . . . . . . . . . . . . . 12
Section 110. Separability Clause . . . . . . . . . . . . . . . . 12
Section 111. Benefits of Indenture . . . . . . . . . . . . . . . 12
Section 112. Governing Law . . . . . . . . . . . . . . . . . . . 12
Section 113. Counterparts . . . . . . . . . . . . . . . . . . . 13
ARTICLE 2. Security Forms . . . . . . . . . . . . . . . . . . . . . . . 13
Section 201. Forms Generally . . . . . . . . . . . . . . . . . . 13
Section 202. Forms of Securities . . . . . . . . . . . . . . . . 13
Section 203. Form of Trustee's Certificate of Authentication . . 13
Section 204. Securities Issuable in the Form of a Global Security 14
ARTICLE 3. The Securities . . . . . . . . . . . . . . . . . . . . . . . 16
Section 301. General Title; General Limitations; Issuable in
Series; Terms of
Particular Series . . . . . . . . . . . . . . . . . . . . 16
Section 302. Denominations . . . . . . . . . . . . . . . . . . . 18
Section 303. Execution, Authentication and Delivery and Dating . 18
Section 304. Temporary Securities . . . . . . . . . . . . . . . 20
Section 305. Registration, Transfer and Exchange . . . . . . . . 20
Section 306. Mutilated, Destroyed, Lost and Stolen Securities . 21
Section 307. Payment of Interest; Interest Rights Preserved . . 22
Section 308. Persons Deemed Owners . . . . . . . . . . . . . . . 23
Section 309. Cancellation . . . . . . . . . . . . . . . . . . . 23
Section 310. Computation of Interest . . . . . . . . . . . . . . 23
Section 311. Medium-Term . . . . . . . . . . . . . . . . . . . . 24
Section 312. CUSIP Numbers . . . . . . . . . . . . . . . . . . . 24
ARTICLE 4. Satisfaction and Discharge . . . . . . . . . . . . . . . . . 24
Section 401. Satisfaction and Discharge of Indenture . . . . . . 24
Section 402. Application of Trust Money . . . . . . . . . . . . 26
Section 403. Defeasance Upon Deposit of Funds or Government
Obligations . . . . . . . . . . . . . . . . . . . . . . . . . 26
ARTICLE 5. Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . 27
i
Section 501. Events of Default . . . . . . . . . . . . . . . . . 27
Section 502. Acceleration of Maturity; Rescission and Annulment 29
Section 503. Collection of Indebtedness and Suits for Enforcement
by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 504. Trustee May File Proofs of Claim . . . . . . . . . 31
Section 505. Trustee May Enforce Claims Without Possession of
Securities . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 506. Application of Money Collected . . . . . . . . . . 32
Section 507. Limitation on Suits . . . . . . . . . . . . . . . . 32
Section 508. Unconditional Right of Securityholders To Receive
Principal,
Premium and Interest . . . . . . . . . . . . . . . . . . 33
Section 509. Restoration of Rights and Remedies . . . . . . . . 33
Section 510. Rights and Remedies Cumulative . . . . . . . . . . 33
Section 511. Delay or Omission Not Waiver . . . . . . . . . . . 34
Section 512. Control by Securityholders . . . . . . . . . . . . 34
Section 513. Waiver of Past Defaults . . . . . . . . . . . . . . 34
Section 514. Undertaking for Costs . . . . . . . . . . . . . . . 35
ARTICLE 6. The Trustee . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 601. Certain Duties and Responsibilities . . . . . . . . 35
Section 602. Notice of Defaults . . . . . . . . . . . . . . . . 36
Section 603. Certain Rights of Trustee . . . . . . . . . . . . . 37
Section 604. Not Responsible for Recitals or Issuance of
Securities . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 605. May Hold Securities . . . . . . . . . . . . . . . . 38
Section 606. Money Held in Trust . . . . . . . . . . . . . . . . 38
Section 607. Compensation and Reimbursement . . . . . . . . . . 38
Section 608. Disqualification; Conflicting Interests . . . . . . 39
Section 609. Corporate Trustee Required; Eligibility . . . . . . 39
Section 610. Resignation of Successor . . . . . . . . . . . . . 40
Section 611. Acceptance of Appointment by Successor . . . . . . 42
Section 612. Merger, Conversion, Consolidation or Succession to
Business . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 613. Preferential Collection of Claims Against Company . 43
Section 614. Appointment of Authentication Agent . . . . . . . . 46
ARTICLE 7. Securityholders' Lists and Reports by Trustee and Company . . 48
Section 701. Company To Furnish Trustee Names and Addresses of
Securityholders . . . . . . . . . . . . . . . . . . . . . 48
Section 702. Preservation of Information; Communications to
Securityholders . . . . . . . . . . . . . . . . . . . . . . . 48
Section 703. Reports by Trustee . . . . . . . . . . . . . . . . 50
Section 704. Reports by Company . . . . . . . . . . . . . . . . 51
ARTICLE 8. Consolidation, Merger, Conveyance or Transfer . . . . . . . . 52
Section 801. When Company May Merge or Transfer Assets . . . . . 52
ARTICLE 9. Supplemental Indentures . . . . . . . . . . . . . . . . . . . 53
Section 901. Supplemental Indentures Without Consent of
Securityholders . . . . . . . . . . . . . . . . . . . . . . . 53
ii
Section 902. Supplemental Indentures with Consent of
Securityholders . . . . . . . . . . . . . . . . . . . . . . . 54
Section 903. Execution of Supplemental Indentures. . . . . . . . 55
Section 904. Effect of Supplemental Indentures. . . . . . . . . 55
Section 905. Conformity with Trust Indenture Act . . . . . . . . 55
Section 906. Reference in Securities to Supplemental Indentures. 55
ARTICLE 10. Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 1001. Payment of Principal, Premium and Interest . . . . 56
Section 1002. Maintenance of Office or Agency . . . . . . . . . . 56
Section 1003. Money for Security Payments To Be Held in Trust . . 56
Section 1004. Statement as to Compliance . . . . . . . . . . . . 57
Section 1005. Legal Existence . . . . . . . . . . . . . . . . . . 58
Section 1006. Limitation on Liens . . . . . . . . . . . . . . . . 58
Section 1007. Limitation on Sale and Leasebacks . . . . . . . . . 60
Section 1008. Waiver of Certain Covenants . . . . . . . . . . . . 61
Section 1009. Calculation of Original Issue Discount. . . . . . . 61
ARTICLE 11. Redemption of Securities . . . . . . . . . . . . . . . . . . 61
Section 1101. Applicability of Article . . . . . . . . . . . . . 61
Section 1102. Election To Redeem; Notice to Trustee . . . . . . . 61
Section 1103. Selection by Trustee of Securities To Be Redeemed . 62
Section 1104. Notice of Redemption . . . . . . . . . . . . . . . 62
Section 1105. Deposit of Redemption Price . . . . . . . . . . . . 63
Section 1106. Securities Payable on Redemption Date . . . . . . . 63
Section 1107. Securities Redeemed in Part . . . . . . . . . . . . 64
Section 1108. Provisions with Respect to any Sinking Funds . . . 64
iii
Table Showing Reflection in Indenture of Certain Provisions of Trust
Indenture Act of 1939, as amended by the Trust Indenture Reform Act of 1990.
Reflected In
Indenture
TIA Section
Section 310(a)(1) . . . . . . . . . . . . . . . . . . 609
(a)(2) . . . . . . . . . . . . . . . . . . 609
(a)(3) . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . Not Applicable
(a)(5) . . . . . . . . . . . . . . . . . . 609
(b) . . . . . . . . . . . . . . . . . . . . 608; 610
(c) . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 311(a) . . . . . . . . . . . . . . . . . . . 613
(b) . . . . . . . . . . . . . . . . . . . . 613
(b)(2) . . . . . . . . . . . . . . . . . . 703
Section 312(a) . . . . . . . . . . . . . . . . . . . 701; 702
(b) . . . . . . . . . . . . . . . . . . . . 702
(c) . . . . . . . . . . . . . . . . . . . . 702
Section 313(a) . . . . . . . . . . . . . . . . . . . 703
(b) . . . . . . . . . . . . . . . . . . . . 703
(c) . . . . . . . . . . . . . . . . . . . . 703
(d) . . . . . . . . . . . . . . . . . . . . 703
Section 314(a)(1) . . . . . . . . . . . . . . . . . . 704
(a)(2) . . . . . . . . . . . . . . . . . . 704
(a)(3) . . . . . . . . . . . . . . . . . . 704
(a)(4) . . . . . . . . . . . . . . . . . . 1004
(b) . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . 102
Section 315(a) . . . . . . . . . . . . . . . . . . . 601
(b) . . . . . . . . . . . . . . . . . . . . 602; 703
(c) . . . . . . . . . . . . . . . . . . . . 601
(d) . . . . . . . . . . . . . . . . . . . . 601
(d)(1) . . . . . . . . . . . . . . . . . . 601
(d)(2) . . . . . . . . . . . . . . . . . . 601
(d)(3) . . . . . . . . . . . . . . . . . . 601
(e) . . . . . . . . . . . . . . . . . . . . 514
Section 316(a) . . . . . . . . . . . . . . . . . . . 101
(a)(1)(A) . . . . . . . . . . . . . . . . . 502; 512
(a)(1)(B) . . . . . . . . . . . . . . . . . 513
iv
(a)(2) . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . 508
(c) . . . . . . . . . . . . . . . . . . . . 104
Section 317(a)(1) . . . . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . . . . . . . 1003
Section 318(a) . . . . . . . . . . . . . . . . . . . 107
v
THIS INDENTURE between THE NEIMAN MARCUS GROUP,
INC., a Delaware corporation (hereinafter called the
"Company"), having its principal office at 27 Boylston
Street, Box 1000, Chestnut Hill, MA 02167, and THE
BANK OF NEW YORK, a New York banking corporation, as
trustee (hereinafter called the "Trustee"), is made
and entered into as of the 27th day of May, 1998.
Recitals of the Company
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance of its unsecured and unsubordinated
debentures, notes, bonds or other evidences of indebtedness, to be issued in
one or more fully registered series.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
Agreements of the Parties
To set forth or to provide for the establishment of the terms and
conditions upon which the Securities are and are to be authenticated, issued
and delivered, and in consideration of the premises and the purchase of
Securities by the Holders thereof, it is mutually covenanted and agreed as
follows, for the equal and proportionate benefit of all Holders of the
Securities or of a series thereof, as the case may be:
ARTICLE 1. Definitions and Other Provisions of General Application
Section 1.11. Definitions. For all purposes of this Indenture and
of any indenture supplemental hereto, except as otherwise expressly provided
or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned
to them in this Article, and include the plural as well as the singular;
(b) all other terms used herein which are defined in the Trust
Indenture Act or by Commission rule under the Trust Indenture Act,
either directly or by reference therein, have the meanings assigned to
them therein;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall mean
such accounting principles as are generally accepted in the United
States of America at the date of such computation; and
(d) all references in this instrument to designated "Articles",
"Sections" and other subdivisions are to the designated Articles,
Sections and other subdivisions of this instrument as originally
executed. The words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in that
Article.
"Act", when used with respect to any Securityholder, has the meaning
specified in Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee to
authenticate Securities under Section 614.
"Board of Directors" means either the board of directors of the Company
or any duly authorized committee of that board or any officers of the Company
acting pursuant to authority granted by the board of directors of the Company
or any committee of such board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of
such certification, and delivered to the Trustee.
"Business Day" means, with respect to any series of Securities, each day
which is neither a Saturday, Sunday or other day on which banking institutions
in the pertinent Place or Places of Payment are authorized or required by law
or executive order to be closed.
"Capital Stock" means, with respect to any corporation, any and all
shares, interests, rights to purchase, warrants, options, participations or
other equivalents of or interests (however designated) in stock issued by that
corporation.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, or, if
at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first paragraph
of this instrument until a successor shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor.
2
"Company Request", "Company Order" and "Company Consent" mean a written
request, order or consent, respectively, signed in the name of the Company by
its Chairman of the Board, a Vice Chairman, its President or a Vice President,
and by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant
Secretary, and delivered to the Trustee.
"Consolidated Net Assets" means the total amount of all assets appearing
on the consolidated balance sheet of the Company and its Restricted
Subsidiaries (at their net book values, after deducting related depreciation,
amortization and all other valuation reserves which have been set aside in
connection with the business conducted and which are reflected on the
aforementioned consolidated balance sheet), less total current liabilities
other than long-term liabilities due within one year.
"Corporate Trust Office" means the office of the Trustee in New York,
New York at which at any particular time its corporate trust business shall be
principally administered, which office at the date hereof is located at 101
Barclay Street, Floor 21 West, New York, New York 10286.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, unless otherwise specified by the Company pursuant
to either Section 204 or 301, with respect to securities of any series
issuable or issued as a Global Security, The Depository Trust Company, New
York, New York, or any successor thereto registered as a clearing agency under
the Securities Exchange Act of 1934, as amended, or other applicable statute
or regulation.
"Event of Default" has the meaning specified in Article Five.
"Funded Debt" means indebtedness of the Company or a Restricted
Subsidiary that matures by its terms one year or more after its creation or
that is extendable or renewable at the option of the obligor to a date one
year or more after the date of the incurrence or assumption of such
indebtedness, and indebtedness classified as long-term debt under generally
accepted accounting principles, in each case ranking in right of payment at
least pari passu with the Securities.
"Global Security", when used with respect to any series of Securities
issued hereunder, means a Security which is executed by the Company and
authenticated and delivered by the Trustee to the Depositary or pursuant to
the Depositary's instruction, all in accordance with this Indenture and an
indenture supplemental hereto, if any, or Board Resolution and pursuant to a
Company Request, which shall be registered in the name of the Depositary or
its nominee and which shall represent, and shall be denominated in an amount
equal to the aggregate principal amount of, all of the Outstanding Securities
of such series or any portion thereof, in either case having the same terms,
including, without limitation, the same original issue date, date or dates on
which principal is due, and interest rate or method of determining interest.
"Holder", when used with respect to any Security, means a
Securityholder.
3
"Indenture" or "this Indenture" means this instrument as originally
executed or as it may from time to time be supplemented or amended by one or
more indentures supplemental hereto entered into pursuant to the applicable
provisions hereof and shall include the terms of particular series of
Securities established as contemplated by Section 301.
"Independent", when used with respect to any specified Person, means
such a Person who (1) is in fact independent, (2) does not have any direct
financial interest or any material indirect financial interest in the Company
or in any other obligor upon the Securities or in any Affiliate of the Company
or of such other obligor, and (3) is not connected with the Company or such
other obligor or any Affiliate of the Company or of such other obligor, as an
officer, employee, promoter, underwriter, trustee, partner, director or person
performing similar functions. Whenever it is herein provided that any
Independent Person's opinion or certificate shall be furnished to the Trustee,
such Person shall be appointed by a Company Order and approved by the Trustee
in the exercise of reasonable care, and such opinion or certificate shall
state that the signer has read this definition and that the signer is
independent within the meaning hereof.
"Interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date", when used with respect to any series of
Securities, means the Stated Maturity of any installment of interest on those
Securities.
"Lien" means any mortgage, pledge, lien, encumbrance, charge or security
interest.
"Maturity", when used with respect to any Securities, means the date on
which the principal of any such Security becomes due and payable as therein or
herein provided, whether on a Repayment Date, at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, a Vice Chairman, the President or a Vice President, and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of
the Company, and delivered to the Trustee. Wherever this Indenture requires
that an Officers' Certificate be signed also by an accountant or other expert,
such accountant or other expert (except as otherwise expressly provided in
this Indenture) may be in the employ of the Company, and shall be acceptable
to the Trustee, which acceptance shall not be unreasonably withheld.
"Opinion of Counsel" means a written opinion of counsel, who may (except
as otherwise expressly provided in this Indenture) be an employee of or of
counsel to the Company (who shall be at least at the level of senior
attorney). Such counsel shall be acceptable to the Trustee, whose acceptance
shall not be unreasonably withheld.
4
"Original Issue Discount Security" means (i) 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, and (ii) any other
Security deemed an Original Issue Discount Security for United States Federal
income tax purposes.
"Outstanding", when used with respect to Securities or Securities of any
series, means, as of the date of determination, all such Securities
theretofore authenticated and delivered under this Indenture, except:
(i) such Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) such Securities for whose payment or redemption money
in the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Company) in trust or
set aside and segregated in trust by the Company (if the Company
shall act as its own paying agent) for the Holders of such
Securities; provided that, if such Securities are to be redeemed,
notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has
been made; and
(iii) such Securities in exchange for or in lieu of which
other Securities have been authenticated and delivered pursuant to
this Indenture, or which shall have been paid pursuant to the
terms of Section 306 (except with respect to any such Security as
to which proof satisfactory to the Trustee is presented that such
Security is held by a person in whose hands such Security is a
legal, valid and binding obligation of the Company).
In determining whether the Holders of the requisite principal amount of
such Securities outstanding have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, (i) the principal amount of
any Original Issue Discount Security that shall be deemed to be Outstanding
shall be the amount of the principal thereof that would be due and payable as
of the date of the taking of such action upon a declaration of acceleration of
the Maturity thereof and (ii) Securities owned by the Company or any other
obligor upon the Securities or any Affiliate of the Company or of such other
obligor shall be disregarded and deemed not to be Outstanding. In determining
whether the Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only Securities
which a Responsible Officer assigned to the corporate trust department of the
Trustee actually knows to be owned by the Company or any other obligor upon
the Securities or any Affiliate of the Company or such other obligor shall be
so disregarded. Securities so owned which have been pledged in good faith may
be regarded as Outstanding if the pledgee establishes to the satisfaction of
the Trustee the pledgee's right to act as owner with respect to such
Securities and that the pledgee is not the Company or any other obligor upon
the Securities or any Affiliate of the Company or such other obligor.
5
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company. The Company initially authorizes the Trustee to act as Paying
Agent for the Securities on its behalf. The Company may at any time and from
time to time authorize one or more Persons, including the Company, to act as
Paying Agent in addition to or in place of the Trustee with respect to any
series of Securities issued under this Indenture.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment" means with respect to any series of Securities issued
hereunder the city or political subdivision so designated with respect to the
series of Securities in question in accordance with the provisions of Section
301.
"Predecessor Securities" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by
such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in lieu of a lost,
destroyed or stolen Security shall be deemed to evidence the same debt as the
lost, destroyed or stolen Security.
"Preferred Stock" means, as to any Person, capital stock of such Person
that has a preference as to dividends or upon liquidation over the common
stock of such Person.
"Principal Property" of a Person means all land, buildings, machinery
and equipment, and leasehold interests and improvements in respect of the
foregoing, that are located in the United States of America and that would be
reflected on a consolidated balance sheet of such Person provided that the
term "Principal Property" shall not include any land, building, machinery,
equipment, leasehold interest or improvements which the Board of Directors of
the Company by resolution determines not to be of material importance to the
total business conducted by the Company and its Subsidiaries as an entirety.
Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price specified in the Security at which it is to be
redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Security on any
Interest Payment Date means the date specified in such Security as the Regular
Record Date.
"Repayment Date", when used with respect to any Security to be repaid,
means the date fixed for such repayment pursuant to such Security.
6
"Repayment Price", when used with respect to any Security to be repaid,
means the price at which it is to be repaid pursuant to such Security.
"Responsible Officer", when used with respect to the Trustee, means any
vice president, any assistant secretary, any assistant treasurer, any senior
trust officer or trust officer or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Restricted Subsidiary" means any Subsidiary of the Company (other than
a Subsidiary that is principally engaged in the business of owning or
investing in real estate (a 'Real Estate Subsidiary'), finance, credit,
leasing, financial services or other similar operations, or any combination
thereof), which itself, or with one or more other Restricted Subsidiaries,
owns or leases a Principal Property; PROVIDED, HOWEVER, that in the event that
any Restricted Subsidiary, in a single transaction or through a series of
related transactions, shall (i) be consolidated with or merge with or into a
Real Estate Subsidiary or any of its subsidiaries or (ii) transfer (by lease,
assignment, sale or otherwise) all or substantially all of its properties and
assets to a Real Estate Subsidiary, then the term 'Restricted Subsidiary'
shall include such Real Estate Subsidiary.
"Sale and Leaseback Transaction" means any arrangement with any Person
pursuant to which the Company or any Restricted Subsidiary leases any
Principal Property that has been or is to be sold or transferred by the
Company or the Restricted Subsidiary to such Person, other than (1) temporary
leases for a term, including renewals at the option of the lessee, of not more
than three years, (2) leases between the Company and a Restricted Subsidiary
or between Restricted Subsidiaries and (3) arrangements pursuant to any
provision of law with an effect similar to the former Section 168(f)(8) of the
Internal Revenue Code of 1954.
"Security" or "Securities" means any note or notes, bond or bonds,
debenture or debentures, or any other evidences of indebtedness, as the case
may be, of any series authenticated and delivered from time to time under this
Indenture.
"Security Register" shall have the meaning specified in Section 305.
"Security Registrar" means the Person who keeps the Security Register
specified in Section 305. The Company initially appoints the Trustee to act
as Security Registrar for the Securities on its behalf. The Company may at
any time and from time to time authorize any Person, including the Company, to
act as Security Registrar in place of the Trustee with respect to any series
of Securities issued under this Indenture.
"Securityholder" means a Person in whose name a Security is registered
in the Security Register.
7
"Special Record Date" for the payment of any Defaulted Interest (as
defined in Section 307) means a date fixed by the Trustee pursuant to Section
307.
"Stated Maturity" when used with respect to any Security or any
installment of principal thereof or interest thereon means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" of any corporation means a corporation, a majority of whose
Capital Stock with voting power (other than Capital Stock having such power
only by reason of the happening of a contingency) to elect a majority of the
directors of such corporation is, at the date of determination, directly or
indirectly owned by such corporation, by one or more Subsidiaries of such
corporation or by such corporation and one or more Subsidiaries of such
corporation.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939, as
amended by the Trust Indenture Reform Act of 1990, and as in force at the date
as of which this instrument was executed except as provided in Section 905.
"Trustee" means the Person named as the Trustee in the first paragraph
of this instrument until a successor Trustee shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter "Trustee" shall
mean and include each Person who is then a Trustee hereunder. If at any time
there is more than one such Person, "Trustee" as used with respect to the
Securities of any series shall mean the Trustee with respect to Securities of
that series.
"U.S. Government Obligations" shall have the meaning specified in
Section 403.
"Value" means, with respect to a Sale and Leaseback Transaction, as of
any particular time, an amount equal to the greater of (i) the net proceeds of
the sale or transfer of the property leased pursuant to such Sale and
Leaseback Transaction or (ii) the fair value, as determined by the Company, of
such property at the time of entering into such Sale and Leaseback
Transaction, in either case divided by the number of full years of the term of
the lease and then multiplied by the number of full years of such term
remaining at the time of determination, without regard to any renewal or
extension options contained in the lease.
"Vice President" when used with respect to the Company or the Trustee
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president", including, without
limitation, an assistant vice president.
Section 1.12. Compliance Certificates and Opinions. Upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any (including
any covenants compliance with which constitutes a condition precedent),
8
provided for in this Indenture relating to the proposed action have been
complied with and an opinion of Counsel stating that in the opinion of such
Counsel all such conditions precedent, if any (including any covenants
compliance with which constitutes a condition precedent), have been complied
with, except that in the case of any such application or request as to which
the furnishing of such documents is specifically required by any provision of
this Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (other than annual statements of
compliance provided pursuant to Section 1004) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable him
to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.13. Form of Documents Delivered to Trustee. In any case
where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may
certify or give an opinion with respect to some matters and one or more other
such Persons may certify or give an opinion as to the other matters, and any
such Person may certify or give an opinion as to such matters in one or
several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel
may be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company
stating that the information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or repre-
sentations with respect to such matters are erroneous.
9
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 1.14. Acts of Securityholders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given
or taken by Securityholders or Securityholders of any series may be
embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Securityholders in person or by an agent
duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee, and, where it is hereby
expressly required, to the Company. Such instrument or instruments (and
the action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Securityholders signing such instrument
or instruments. Proof of execution of any such instrument or of a
writing appointing any such agent shall be sufficient for any purpose of
this Indenture and (subject to Section 601) conclusive in favor of the
Trustee and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness to
such execution or by the certificate of any notary public or other
officer authorized by law to take acknowledgments of deeds, certifying
that the individual signing such instrument or writing acknowledged to
him the execution thereof. Where such execution is by an officer of a
corporation or a member of a partnership, on behalf of such corporation
or partnership, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the execution
of any such instrument or writing, or the authority of the person
executing the same, may also be proved in any other manner which the
Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the Security
Register.
(d) If the Company shall solicit from the Holders any request,
demand, authorization, direction, notice, consent, waiver or other
action, the Company may, at its option, by Board Resolution, fix in
advance a record date for the determination of Holders entitled to give
such request, demand, authorization, direction, notice, consent, waiver
or other action, but the Company shall have no obligation to do so.
Such record date shall be not more than 30 days prior to the date of its
determination. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other action may be
given before or after the record date, but only the Holders of record at
the close of business on the record date shall be deemed to be Holders
for the purposes of determining whether Holders of the requisite
proportion of Securities Outstanding have authorized or agreed or
10
consented to such request, demand, authorization, direction, notice,
consent, waiver or other action, and for that purpose the Securities
Outstanding shall be computed as of the record date; provided that no
such authorization, agreement or consent by the Holders on the record
date shall be deemed effective unless it shall become effective pursuant
to the provisions of this Indenture not later than six months after the
record date, and that no such authorization, agreement or consent may be
amended, withdrawn or revoked once given by a Holder, unless the Company
shall provide for such amendment, withdrawal or revocation in
conjunction with such solicitation of authorizations, agreements or
consents or unless and to the extent required by applicable law.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Security shall bind
the Holder of every Security issued upon the transfer thereof or in
exchange therefor or in lieu thereof, in respect of anything done or
suffered to be done by the Trustee or the Company in reliance thereon
whether or not notation of such action is made upon such Security.
Section 1.15. Notices, etc., to Trustee and Company. Any request,
demand, authorization, direction, notice, consent, waiver or Act of
Securityholders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Securityholder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Trustee Administration, or
(2) the Company by the Trustee or by any Securityholder shall be
sufficient for every purpose hereunder (except as provided in Section
501(4) or, in the case of a request for repayment, as specified in the
Security carrying the right to repayment) if in writing and mailed,
first-class postage prepaid, to the Company addressed to it at the
address of its principal office specified in the first paragraph of this
instrument, Attention: General Counsel, or at any other address
previously furnished in writing to the Trustee by the Company.
Section 1.16. Notices to Securityholders; Waiver. Where this
Indenture or any Security provides for notice to Securityholders of any event,
such notice shall be sufficiently given (unless otherwise herein or in such
Security expressly provided) if in writing and mailed, first-class postage
prepaid, to each Securityholder affected by such event, at his address as it
appears in the Security Register, not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice. In
any case where notice to Securityholders is given by mail, neither the failure
to mail such notice, nor any defect in any notice so mailed, to any particular
Securityholder shall affect the sufficiency of such notice with respect to
other Securityholders. Where this Indenture or any Security provides for
notice in any manner, such notice may be waived in writing by the Person
entitled to receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice by
11
Securityholders shall be filed with the Trustee, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon
such waiver.
In case, by reason of the suspension of regular mail service as a result
of a strike, work stoppage or otherwise, it shall be impractical to mail
notice of any event to any Securityholder when such notice is required to be
given pursuant to any provision of this Indenture, then any method of
notification as shall be satisfactory to the Trustee and the Company shall be
deemed to be a sufficient giving of such notice.
Section 1.17. Conflict with Trust Indenture Act. If any provision
hereof limits, qualifies or conflicts with the duties imposed by any of
Sections 310 to 317, inclusive, of the Trust Indenture Act through operation
of Section 318(c) thereof, such imposed duties shall control.
Section 1.18. Effect of Headings and Table of Contents. The Article
and Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
Section 1.19. Successors and Assigns. All covenants and agreements
in this Indenture by the Company shall bind its successors and assigns,
whether so expressed or not.
Section 1.110. Separability Clause. In case any provision in this
Indenture or in the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 1.111. Benefits of Indenture. Nothing in this Indenture or
in any Securities, express or implied, shall give to any Person, other than
the parties hereto and their successors hereunder, any Authenticating Agent or
Paying Agent, the Security Registrar and the Holders of Securities (or such of
them as may be affected thereby), any benefit or any legal or equitable right,
remedy or claim under this Indenture.
Section 1.112. Governing Law. This Indenture and the Securities
shall be construed in accordance with and governed by the laws of the State of
New York, without regard to conflicts of laws principles thereof.
Section 1.113. Counterparts. This instrument may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
ARTICLE 2. Security Forms.
Section 2.11. Forms Generally. The Securities shall have such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture and may have such letters, numbers or
other marks of identification and such legends or endorsements placed thereon,
as may be required to comply with the rules of any securities exchange, or as
12
may, consistently herewith, be determined by the officer executing such
Securities, as evidenced by such officer's execution of the Securities. Any
portion of the text of any Security may be set forth on the reverse thereof,
with an appropriate reference thereto on the face of the Security.
The definitive Securities shall be printed, lithographed or engraved or
produced by any combination of these methods on steel engraved borders or may
be produced in any other manner, all as determined by the officer executing
such Securities, as evidenced by such officer's execution of such Securities,
subject, with respect to the Securities of any series, to the rules of any
securities exchange on which such Securities are listed.
Section 2.12. Forms of Securities. Each Security shall be in one of
the forms approved from time to time by or pursuant to a Board Resolution, or
established in one or more indentures supplemental hereto. Prior to the
delivery of a Security to the Trustee for authentication in any form approved
by or pursuant to a Board Resolution, the Company shall deliver to the Trustee
the Board Resolution by or pursuant to which such form of Security has been
approved, which Board Resolution shall have attached thereto a true and
correct copy of the form of Security which has been approved thereby or, if a
Board Resolution authorizes a specific officer or officers to approve a form
of Security, a certificate of such officer or officers approving the form of
Security attached thereto. Any form of Security approved by or pursuant to a
Board Resolution must be acceptable as to form to the Trustee, such acceptance
to be evidenced by the Trustee's authentication of Securities in that form.
13
Section 2.13. Form of Trustee's Certificate of Authentication. The
form of Trustee's Certificate of Authentication for any Security issued
pursuant to this Indenture shall be substantially as follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned
Indenture.
THE BANK OF NEW YORK,
as Trustee,
By: ___________________________
Authorized Signatory
Section 2.14. Securities Issuable in the Form of a Global Security.
(a) If the Company shall establish pursuant to Sections 202 and
301 that the Securities of a particular series are to be issued in whole
or in part in the form of one or more Global Securities, then the
Company shall execute and the Trustee or its agent shall, in accordance
with Section 303 and the Company Order delivered to the Trustee or its
agent thereunder, authenticate and make available for delivery, such
Global Security or Securities, which (i) shall represent, and shall be
denominated in an amount equal to the aggregate principal amount of, the
Outstanding Securities of such series to be represented by such Global
Security or Securities, or such portion thereof as the Company shall
specify in a Company Order, (ii) shall be registered in the name of the
Depositary for such Global Security or Securities or its nominee, (iii)
shall be delivered by the Trustee or its agent to the Depositary or
pursuant to the Depositary's instruction and (iv) shall bear a legend
substantially to the following effect: "Unless this certificate is
presented by an authorized representative of the Depositary to Issuer or
its agent for registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of the nominee of the
Depositary or in such other name as is requested by an authorized
representative of the Depositary (and any payment is made to the nominee
of the Depositary or to such other entity as is requested by an
authorized representative of the Depositary), ANY TRANSFER, PLEDGE, OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
inasmuch as the registered owner hereof, the nominee of the Depositary,
has an interest herein."
(b) Notwithstanding any other provision of this Section 204 or
of Section 305, and subject to the provisions of paragraph (c) below,
unless the terms of a Global Security expressly permit such Global
Security to be exchanged in whole or in part for individual Securities,
a Global Security may be transferred, in whole but not in part and in
the manner provided in Section 305, only to a nominee of the Depositary
for such Global Security, or to the Depositary, or a successor
Depositary for such Global Security selected or approved by the Company,
or to a nominee of such successor Depositary.
14
(c)
(i) If at any time the Depositary for a Global Security
notifies the Company that it is unwilling or unable to continue as
Depositary for such Global Security or if at any time the
Depositary for the Securities for such series shall no longer be
eligible or in good standing under the Securities Exchange Act of
1934, as amended, or other applicable statute or regulation, the
Company shall appoint a successor Depositary with respect to such
Global Security. If a successor Depositary for such Global
Security is not appointed by the Company within 90 days after the
Company receives such notice or becomes aware of such
ineligibility, the Company will execute, and the Trustee or its
agent, upon receipt of a Company Request for the authentication
and delivery of individual Securities of such series in exchange
for such Global Security, will authenticate and make available for
delivery individual Securities of such series of like tenor and
terms in an aggregate principal amount equal to the principal
amount of the Global Security in exchange for such Global
Security.
(ii) The Company may at any time and in its sole discretion
determine that the Securities of any series or portion thereof
issued or issuable in the form of one or more Global Securities
shall no longer be represented by such Global Security or
Securities. In such event the Company will execute, and the
Trustee, upon receipt of a Company Request for the authentication
and delivery of individual Securities of such series in exchange
in whole or in part for such Global Security, will authenticate
and make available for delivery individual Securities of such
series of like tenor and terms in definitive form in an aggregate
principal amount equal to the principal amount of such Global
Security or Securities representing such series or portion thereof
in exchange for such Global Security or Securities.
(iii) If specified by the Company pursuant to Sections 202
and 301 with respect to Securities issued or issuable in the form
of a Global Security, the Depositary for such Global Security may
surrender such Global Security in exchange in whole or in part for
individual Securities of such series of like tenor and terms in
definitive form on such terms as are acceptable to the Company and
such Depositary. Thereupon the Company shall execute, and the
Trustee or its agent shall authenticate and make available for
delivery, without service charge, (1) to each Person specified by
such Depositary a new Security or Securities of the same series of
like tenor and terms and of any authorized denomination as
requested by such Person in aggregate principal amount equal to
and in exchange for such Person's beneficial interest as specified
by such Depositary in the Global Security; and (2) to such
Depositary a new Global Security of like tenor and terms and in an
authorized denomination equal to the difference, if any, between
the principal amount of the surrendered Global Security and the
15
aggregate principal amount of Securities delivered to Holders
thereof.
(iv) In any exchange provided for in any of the preceding
three paragraphs, the Company will execute and the Trustee or its
agent will authenticate and make available for delivery individual
Securities in definitive registered form in authorized
denominations. Upon the exchange of the entire principal amount
of a Global Security for individual Securities, such Global
Security shall be canceled by the Trustee or its agent. Except as
provided in the preceding paragraph, Securities issued in exchange
for a Global Security pursuant to this Section shall be registered
in such names and in such authorized denominations as the
Depositary for such Global Security, pursuant to instructions from
its direct or indirect participants or otherwise, shall instruct
the Trustee or the Security Registrar. The Trustee shall deliver
at its Corporate Trust Office such Securities to the Persons in
whose names such Securities are so registered.
ARTICLE 3. The Securities.
Section 3.11. General Title; General Limitations; Issuable in
Series; Terms of Particular Series. The aggregate principal amount of
Securities which may be authenticated and delivered and Outstanding under this
Indenture is not limited.
The Securities may be issued in one or more series up to an aggregate
principal amount of Securities as from time to time may be authorized by the
Board of Directors. All Securities of each series under this Indenture shall
in all respects be equally and ratably entitled to the benefits hereof with
respect to such series without preference, priority or distinction on account
of the actual time of the authentication and delivery or Stated Maturity of
the Securities of such series.
Each series of Securities shall be created either by or pursuant to a
Board Resolution or by an indenture supplemental hereto. The Securities of
each such series may bear such date or dates, be payable at such place or
places, have such Stated Maturity or Maturities, be issuable at such premium
over or discount from their face value, bear interest at such rate or rates,
from such date or dates, payable in such installments and on such dates and at
such place or places to the Holders of Securities registered as such on such
Regular Record Dates, or may bear no interest, and may be redeemable or
repayable at such Redemption Price or Prices or Repayment Price or Prices, as
the case may be, whether at the option of the Holder or otherwise, and upon
such terms, all as shall be provided for in or pursuant to the Board
Resolution or in the supplemental indenture creating that series. There may
also be established in or pursuant to a Board Resolution or in a supplemental
indenture prior to the issuance of Securities of each such series, provision
for:
(1) the exchange or conversion of the Securities of that series,
at the option of the Holders thereof, for or into new Securities of a
16
different series or other securities except shares of capital stock of
the Company or any subsidiary of the Company or securities directly or
indirectly convertible into or exchangeable for any such shares;
(2) a sinking or purchase fund or other analogous obligation;
(3) a limitation on the aggregate principal amount of the
Securities of that series;
(4) the exchange or conversion of Securities of that series, at
the option of the Holders thereof, for or into other Securities of a
different series or other securities;
(5) the appointment by the Trustee of an Authenticating Agent in
one or more places other than the location of the office of the Trustee
with power to act on behalf of the Trustee and subject to its direction
in the authentication and delivery of the Securities of any one or more
series in connection with such transactions as shall be specified in the
provisions of this Indenture or in or pursuant to the Board Resolution
or the supplemental indenture creating such series;
(6) the portion of the principal amount of Securities of the
series, if other than the principal amount thereof, which shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 502 or provable in bankruptcy pursuant to Section
504;
(7) any Event of Default with respect to the Securities of such
series, if not set forth herein, and any additions, deletions or other
changes to the Events of Default set forth herein that shall be
applicable to the Securities of such series;
(8) any covenant solely for the benefit of the Securities of
such series and any additions, deletions or other changes to the
provisions of Sections 1006 and 1007 that shall be applicable to the
Securities of that series;
(9) the inapplicability of Section 403 of this Indenture to the
Securities of such series and any covenant with respect to Section
403(b) established in or pursuant to a Board Resolution or in a
supplemental indenture as described above that has not already been
established herein;
(10) if the Securities of the series shall be issued in whole or
in part in the form of a Global Security or Securities, the terms and
conditions, if any, upon which such Global Security or Securities may be
exchanged in whole or in part for other individual Securities; and the
Depositary for such Global Security or Securities; and
(11) any other terms of the series,
17
all upon such terms as may be determined in or pursuant to a Board Resolution
or in a supplemental indenture with respect to such series. All Securities of
the same series shall be substantially identical in tenor and effect except as
to denomination and except if issued pursuant to Section 311.
The form of the Securities of each series shall be established pursuant
to the provisions of this Indenture in or pursuant to the Board Resolution or
in the supplemental indenture creating such series. The Securities of each
series shall be distinguished from the Securities of each other series in such
manner, reasonably satisfactory to the Trustee, as the Board of Directors may
determine.
Unless otherwise provided with respect to Securities of a particular
series, the Securities of any series may only be issuable in registered form,
without coupons.
Any terms or provisions in respect of the Securities of any series
issued under this Indenture may be determined pursuant to this Section by
providing for the method by which such terms or provisions shall be deter-
mined.
Section 3.12. Denominations. The Securities of each series shall be
issuable in such denominations as shall be provided in the provisions of this
Indenture or in or pursuant to the Board Resolution or the supplemental
indenture creating such series. In the absence of any such provisions with
respect to the Securities of any series, the Securities of that series shall
be issuable only in fully registered form in denominations of $1,000 and any
integral multiple thereof.
Section 3.13. Execution, Authentication and Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman of
the Board, its Vice Chairman, its President or one of its Vice Presidents.
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 executed by the Company to
the Trustee for authentication; and the Trustee shall, upon Company Order,
authenticate and make available for delivery such Securities as in this
Indenture provided and not otherwise.
Prior to any such authentication and delivery, the Trustee shall be
entitled to receive, in addition to any Officers' Certificate and Opinion of
Counsel required to be furnished to the Trustee pursuant to Section 102, and
the Board Resolution and any certificate relating to the issuance of the
18
series of Securities required to be furnished pursuant to Section 202, an
Opinion of Counsel stating that:
(1) all instruments furnished to the Trustee conform to the
requirements of the Indenture and constitute sufficient authority
hereunder for the Trustee to authenticate and deliver such Securities;
(2) the form and terms of such Securities have been established
in conformity with the provisions of this Indenture;
(3) such Securities, when completed by appropriate insertions
and executed by the Company and delivered to the Trustee for
authentication in accordance with this Indenture, authenticated and
delivered by the Trustee in accordance with this Indenture and issued by
the Company in the manner and subject to any conditions specified in
such Opinion of Counsel, will constitute legal, valid and binding
obligations of the Company enforceable in accordance with their terms
(subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws and legal
principles affecting creditors' rights generally from time to time in
effect and to general equitable principles, whether applied in an action
at law or in equity); and
(4) the Indenture is qualified under the Trust Indenture Act;
and, if the authentication and delivery relates to a new series of
Securities created by an indenture supplemental hereto, also stating
that the Company has corporate power to execute and deliver any such
supplemental indenture and has taken all necessary corporate action for
those purposes and any such supplemental indenture has been executed and
delivered and constitutes the legal, valid and binding obligation of the
Company enforceable in accordance with its terms (subject, as to
enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium or other laws and legal principles affecting
creditors' rights generally from time to time in effect and to general
equitable principles, whether applied in an action at law or in equity)
and, if the authentication and delivery relates to Securities of a
series issued pursuant to Section 311, paragraphs (2) and (3) of the
foregoing opinion shall read as follows:
"(2) the form of such Securities and the procedures for
determining the terms of such Securities as set forth in the procedures
relating thereto referred to in Section 311 have been established in
conformity with the provisions of this Indenture; and
(3) such Securities, when completed by appropriate insertions
and executed by the Company and delivered to the Trustee for
authentication in accordance with this Indenture, authenticated and
delivered by the Trustee in accordance with this Indenture and issued,
delivered and paid for in accordance with the applicable selling agency
or distribution agreement, will have been duly issued under the
Indenture and will constitute the legal, valid and binding obligations
19
of the Company enforceable in accordance with their terms (subject, as
to enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium or other laws and legal principles affecting
creditors' rights generally from time to time in effect and to general
equitable principles, whether applied in an action at law or in
equity)."
The Trustee shall not be required to authenticate such Securities if the
issue thereof will adversely affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture.
Unless otherwise provided in the form of Security for any series, all
Securities shall be dated the date of their 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.
Section 3.14. Temporary Securities. Pending the preparation of
definitive Securities of any series, the Company may execute, and, upon
receipt of the documents required by Section 303, together with a Company
Order, the Trustee shall authenticate and make available for delivery,
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 such series to be prepared without unreasonable
delay. After the preparation of definitive Securities, the temporary
Securities of such series shall be exchangeable for definitive Securities of
such series upon surrender of the temporary Securities of such series at the
office or agency of the Company in a Place of Payment, without charge to the
Holder; and upon surrender for cancellation of any one or more temporary
Securities the Company shall execute and the Trustee shall authenticate and
make available for delivery in exchange therefor a like principal amount of
definitive Securities of such series of authorized denominations and of like
tenor and terms. Until so exchanged the temporary Securities of such series
shall in all respects be entitled to the same benefits under this Indenture as
definitive Securities of such series.
Section 3.15. Registration, Transfer and Exchange. The Company
shall keep or cause to be kept a register or registers (herein sometimes
referred to as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the
registration of Securities, or of Securities of a particular series, and for
transfers of Securities or of Securities of such series. Any such register
20
shall be in written form or in any other form capable of being converted into
written form within a reasonable time. At all reasonable times the
information contained in such register or registers shall be available for
inspection by the Trustee at the office or agency to be maintained by the
Company as provided in Section 1002. There shall be only one Security
Register per series of Securities.
Subject to Section 204, upon surrender for transfer of any Security of
any series at the office or agency of the Company in a Place of Payment, the
Company shall execute, and the Trustee shall authenticate and make available
for delivery, in the name of the designated transferee or transferees, one or
more new Securities of such series of any authorized denominations, of a like
aggregate principal amount and Stated Maturity and of like tenor and terms.
Subject to Section 204, at the option of the Holder, Securities of any
series may be exchanged for other Securities of such series of any authorized
denominations, of a like aggregate principal amount and Stated Maturity and of
like tenor and terms, 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 make
available for delivery, the Securities which the Securityholder making the
exchange is entitled to receive.
All Securities issued upon any 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 transfer or exchange.
Every Security presented or surrendered for transfer or exchange shall
(if so required by the Company or the Trustee) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed, by the Holder thereof or his
attorney duly authorized in writing.
Unless otherwise provided in the Security to be transferred or
exchanged, no service charge shall be made on any Securityholder for any
transfer or exchange of Securities, but the Company may (unless otherwise
provided in such Security) require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
transfer or exchange of Securities, other than exchanges pursuant to Section
304 or 906 not involving any transfer.
The Company shall not be required (i) to issue, transfer or exchange any
Security 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
such series selected for redemption under Section 1103 and ending at the close
of business on the date of such mailing, or (ii) to transfer or exchange any
Security so selected for redemption in whole or in part.
None of the Company, the Trustee, any agent of the Trustee, any Paying
Agent or the Security Registrar will have any responsibility or liability for
any aspect of the records relating to or payments made on account of benefi-
21
cial ownership interests of a Global Security or for maintaining, supervising
or reviewing any records relating to such beneficial ownership interests.
Section 3.16. Mutilated, Destroyed, Lost and Stolen Securities. If
(i) any mutilated Security is surrendered to the Trustee, or the Company and
the Trustee receive evidence to their satisfaction of the destruction, loss or
theft of any Security, and (ii) there is delivered to the Company and the
Trustee such security or indemnity as may be required by them to save each of
them harmless, then, in the absence of notice to the Company or the Trustee
that such Security has been acquired by a bona fide purchaser, the Company
shall execute and upon its request the Trustee shall authenticate and make
available for delivery, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Security, a new Security of like tenor, series,
stated maturity and principal amount, 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 new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security 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 the same 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 3.17. Payment of Interest; Interest Rights Preserved.
Unless otherwise provided with respect to such Security pursuant to Section
301, interest on any Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest.
Any interest on any Security 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 registered
Holder on the relevant Regular Record Date by virtue of his having been such
Holder; and, except as hereinafter provided, such Defaulted Interest may be
paid by the Company, at its election in each case, as provided in Clause (1)
or Clause (2) below:
22
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names any such Securities (or their
respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each such Security and the date of the proposed
payment, and at the same time the Company shall deposit with the Trustee
an amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfac-
tory to the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit
of the Persons entitled to such Defaulted Interest as in this Clause
provided. Thereupon the Trustee shall fix a Special Record Date for the
payment of such Defaulted Interest which shall be not more than 15 nor
less than 10 days prior to the date of the proposed payment and not less
than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first class postage
prepaid, to the Holder of each such Security 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 mailed as
aforesaid, such Defaulted Interest shall be paid to the Persons in whose
names such Securities (or their respective Predecessor Securities) are
registered on such Special Record Date and shall no longer be payable
pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which 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.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon transfer of or in exchange for or in lieu
of any other Security shall carry the rights to interest accrued and unpaid,
and to accrue, which were carried by such other Security.
Section 3.18. Persons Deemed Owners. The Company, the Trustee and
any agent of the Company or the Trustee may treat the Person in whose name any
Security is registered as the owner of such Security for the purpose of
receiving payment of principal of (and premium, if any), and (subject to
Section 307) 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.
23
Section 3.19. Cancellation. All Securities surrendered for payment,
redemption, transfer, or exchange or credit against a sinking fund shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and, if not already canceled, shall be promptly canceled by it. The Company
may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Securities so delivered shall be
promptly canceled by the Trustee. No Security shall be authenticated in lieu
of or in exchange for any Securities canceled as provided in this Section,
except as expressly permitted by this Indenture. The Trustee shall deliver
all canceled Securities to the Company.
Section 3.110. Computation of Interest. Unless otherwise provided as
contemplated in Section 301, interest on the Securities shall be calculated on
the basis of a 360-day year of twelve 30-day months.
Section 3.111. Medium-Term. Notwithstanding any contrary provision
herein, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary for the Company to deliver to the Trustee an
Officers' Certificate, Board Resolution, supplemental indenture, Opinion of
Counsel or Company Order otherwise required pursuant to Sections 102, 202, 301
and 303 at or prior to the time of authentication of each Security of such
series if such documents are delivered to the Trustee or its agent at or prior
to the authentication upon original issuance of the first Security of such
series to be issued; provided that any subsequent request by the Company to
the Trustee to authenticate Securities of such series upon original issuance
shall constitute a representation and warranty by the Company that as of the
date of such request, the statements made in the Officers' Certificate or
other certificates delivered pursuant to Sections 102 and 202 shall be true
and correct as if made on such date.
A Company Order, Officers' Certificate or Board Resolution or
supplemental indenture delivered by the Company to the Trustee in the
circumstances set forth in the preceding paragraph may provide that Securities
which are the subject thereof will be authenticated and delivered by the
Trustee or its agent on original issue from time to time in the aggregate
principal amount established for such series pursuant to such procedures
acceptable to the Trustee as may be specified from time to time by Company
Order upon the telephonic, electronic or written order of persons designated
in such Company Order, Officers' Certificate, supplemental indenture or Board
Resolution (any such telephonic or electronic instructions to be promptly
confirmed in writing by such persons) and that such persons are authorized to
determine, consistent with such Company Order, Officers' Certificate,
supplemental indenture or Board Resolution, such terms and conditions of said
Securities as are specified in such Company Order, Officers' Certificate,
supplemental indenture or Board Resolution.
Section 3.112. CUSIP Numbers. The Company in issuing the Securities
may use "CUSIP" numbers (if then generally in use), and, if so, the Trustee
shall use "CUSIP" numbers in notices of redemption as a convenience to
Holders; provided that any such notice may state that no representation is
made as to the correctness of such numbers either as printed on the Securities
24
or as contained in any notice of a redemption and that reliance may be placed
only on the other identification numbers printed on the Securities, and any
such redemption shall not be affected by any defect in or omission of such
numbers. The Company will promptly notify the Trustee of any change in the
"CUSIP" numbers.
ARTICLE 4. Satisfaction and Discharge.
Section 4.11. Satisfaction and Discharge of Indenture. This
Indenture shall cease to be of further effect with respect to any series of
Securities (except as to any surviving rights of conversion or transfer or
exchange of Securities of such series expressly provided for herein or in the
form of Security for such series), and the Trustee, on demand of and at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture as to such series when
(1) either
(A) all Securities of that series theretofore
authenticated and delivered (other than (i) Securities of such series
which have been destroyed, lost or stolen and which have been replaced
or paid as provided in Section 306, and (ii) Securities of such series
for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to the
Company or discharged from such trust, as provided in Section 1003) have
been delivered to the Trustee canceled or for cancellation; or
(B) all such Securities of that series not theretofore
canceled or delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the name,
and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust
funds in trust for the purpose an amount, which shall be
immediately due and payable, sufficient to pay and discharge the
entire indebtedness on such Securities not therefore canceled or
delivered to the Trustee for cancellation, for principal (and
premium, if any) and interest to the date of such deposit (in the
case of Securities which have become due and payable), or to the
Stated Maturity or Redemption Date, as the case may be;
25
(2) the Company has paid or caused to be paid all other
sums payable hereunder by the Company with respect to the
Securities of such series; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that all
conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture with respect to the
Securities of such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture with respect
to any series of Securities, the obligations of the Company to the Trustee
with respect to that series under Section 607 shall survive and the obliga-
tions of the Trustee under Sections 402 and 1003 shall survive.
Section 4.12. Application of Trust Money. All money and U.S.
Government Obligations (as defined below) deposited with the Trustee pursuant
to Section 401 or Section 403 shall be held in trust and the deposited money
and the money from the U.S. Government Obligations shall be applied by it, in
accordance with the provisions of the series of Securities in respect of which
it was deposited and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own Paying
Agent) as the Trustee may determine, to the Persons entitled thereto, of the
principal (and premium, if any) and interest for whose payment such money or
U.S. Government Obligations has been deposited with the Trustee; but such
money and U.S. Government Obligations need not be segregated from other funds
except to the extent required by law. Any money received from principal or
interest payments on any U.S. Government Obligations in excess of the amount
needed or to be needed to pay the Securities with respect to which such U.S.
Government Obligations were deposited as provided in Section 4.01 or 4.03
shall be paid over to the Company upon receipt of a Company Request together
with the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee to the effect that such money is in excess of the amount needed or to
be needed to pay such Securities.
Section 4.13. Defeasance Upon Deposit of Funds or Government
Obligations. Unless pursuant to Section 301 provision is made that this
Section shall not be applicable to the Securities of any series, at the
Company's option, either (a) the Company shall be deemed to have been
Discharged (as defined below) from its obligations with respect to any series
of Securities after the applicable conditions set forth below have been
satisfied or (b) the Company shall cease to be under any obligation to comply
with any term, provision or condition set forth in, at the election of the
Company, any or all of Sections 1006, 1007 and subsection (5) of Section 501
(and any other Sections applicable to such Securities that are determined
pursuant to Section 301 to be subject to this provision) with respect to any
series of Securities at any time after the applicable conditions set forth
below have been satisfied:
(1) the Company shall have deposited or caused to be deposited
irrevocably with the Trustee as trust funds in trust, specifically
26
pledged as security for, and dedicated solely to, the benefit of the
Holders of the Securities of such series (i) money in an amount, or (ii)
the equivalent in direct obligations of, or obligations the principal of
and interest on which are fully guaranteed by, the United States of
America ("U.S. Government Obligations") which through the payment of
interest and principal in respect thereof in accordance with their terms
will provide, not later than one day before the due date of any payment,
money in an amount, or (iii) a combination of (i) and (ii), sufficient,
in the opinion (with respect to (ii) and (iii)) of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge
each installment of principal (including mandatory sinking fund
payments) and any premium of, interest on and any repurchase obligations
with respect to the outstanding Securities of such series on the dates
such installments of interest or principal or repurchase obligations are
due;
(2) no Event of Default or event (including such deposit) which
with notice or lapse of time would become an Event of Default with
respect to the Securities of such series shall have occurred and be
continuing on the date of such deposit; and
(3) the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that Holders of the Securities of such series
will not recognize income, gain or loss for Federal income tax purposes
as a result of the Company's exercise of its option under this Section
403 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, and, in the case of Securities being
Discharged, such opinion shall be based upon at least one of the
following authorities (issued, enacted or promulgated after the date of
this Indenture), substantially on point and to the foregoing effect: (i)
a public ruling of the Internal Revenue service, (ii) a private ruling
of the Internal Revenue Service issued to the Company with respect to
the securities, (iii) a provision of the Internal Revenue Code, or (iv)
a final regulation promulgated by the Department of the Treasury.
"Discharged" means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by, and obligations under, the
Securities of such series and to have satisfied all the obligations under this
Indenture relating to the Securities of such series (and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging the
same), except (A) the rights of Holders of Securities to receive, from the
trust fund described in clause (1) above, payment of the principal and any
premium of and any interest on such Securities when such payments are due; (B)
the Company's obligations with respect to such Securities under Sections 305,
306, 402, 1002 and 1003; and (C) the rights, powers, trusts, duties and
immunities of the Trustee hereunder.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to this Article or the principal and interest received in
27
respect thereof other than any such tax, fee or other charge which by law is
for the account of the Holders of Outstanding Securities.
ARTICLE 5. Remedies.
Section 5.11. Events of Default. "Event of Default", wherever used
herein, means with respect to any series of Securities any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body), unless such event is
either inapplicable to a particular series or it is specifically deleted or
modified in or pursuant to the supplemental indenture or Board Resolution
creating such series of Securities or in the form of Security for such series:
(1) default in the payment of any interest upon any Security of
that series when it becomes due and payable, and continuance of such
default for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if
any, on) any Security of that series at its Maturity; or
(3) default in the payment of any sinking or purchase fund or
analogous obligation when the same becomes due by the terms of the
Securities of such series; or
(4) default in the performance, or breach, of any covenant,
warranty or agreement of the Company in this Indenture in respect of the
Securities of such series (other than a covenant, warranty or agreement
in respect of the Securities of such series a default in the performance
of which or the breach of which is elsewhere in this Section
specifically dealt with), all of such covenants, warranties and
agreements in the Indenture which are not expressly stated to be for the
benefit of a particular series of Securities being deemed in respect of
the Securities of all series for this purpose, and continuance of such
default or breach for a period of 90 days after receipt by the Company
from the Trustee or by the Company and the Trustee from the Holders of
at least 25% in principal amount of the Outstanding Securities of such
series, a written notice, by registered or certified mail, specifying
such default or breach and requiring it to be remedied and stating that
such notice is a "Notice of Default" hereunder; or
(5) a default under any bond, debenture, note or other evidence
of indebtedness for money borrowed by the Company or any Restricted
Subsidiary (other than the Securities), or under any mortgage, indenture
or instrument under which there may be secured or evidenced any
indebtedness for money borrowed by the Company or any Restricted
Subsidiary (other than the Securities), whether such indebtedness now
exists or shall hereafter be created, which default shall have resulted
in indebtedness in excess of $15,000,000 becoming due and payable prior
to the date on which it would otherwise have become due and payable,
without such indebtedness having been discharged or such acceleration
28
having been rescinded, annulled or stayed within 30 days after the date
on which written notice thereof is given to the Company by the Trustee
or to the Company and the Trustee by Holders of at least 25% in
principal amount of the Securities then outstanding hereunder; or
(6) the entry of an order for relief against the Company under
the Federal Bankruptcy Act by a court having jurisdiction in the
premises or a decree or order by a court having jurisdiction in the
premises adjudging the Company a bankrupt or insolvent under any other
applicable Federal or State law, or the entry of a decree or order
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company
under the Federal Bankruptcy Code or any other applicable Federal or
State law, or appointing a receiver, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Company or of any
substantial part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or
order unstayed and in effect for a period of 90 consecutive days; or
(7) the consent by the Company to the institution of bankruptcy
or insolvency proceedings against it, or the filing by it of a petition
or answer or consent seeking reorganization or relief under the Federal
Bankruptcy Code or any other applicable Federal or State law, or the
consent by it to the filing of any such petition or to the appointment
of a receiver, liquidator, assignee, trustee, sequestrator (or other
similar official) of the Company or of any substantial part of its
property, or the making by it of a general assignment for the benefit of
creditors or the admission by it in writing of its inability to pay its
debts generally as they become due; or
(8) any other Event of Default provided in or pursuant to the
supplemental indenture or Board Resolution under which such series of
Securities is issued or in the form of Security for such series.
Section 5.12. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default described in paragraph (1), (2), (3), (4) or (8) (if
the Event of Default under paragraph (4) or (8) is with respect to less than
all series of Securities then outstanding) of Section 501 occurs and is
continuing with respect to any series, then and in each and every such case,
unless the principal of all the Securities of such series shall have already
become due and payable, either the Trustee or the Holders of not less than 25%
in aggregate principal amount of the Securities of such series then
Outstanding hereunder (each such series acting as a separate class), by notice
in writing to the Company (and to the Trustee if given by Holders), may
declare the principal amount (or, if the Securities of such series are
Original Issue Discount Securities, such portion of the principal amount as
may be specified in the terms of that series) of all the Securities of such
series and all accrued interest thereon to be due and payable immediately, and
upon any such declaration the same shall become and shall be immediately due
and payable, anything in this Indenture or in the Securities of such series
contained to the contrary notwithstanding. If an Event of Default described
in paragraph (4) or (8) (if the Event of Default under paragraph (4) or (8) is
29
with respect to all series of Securities then Outstanding), (5), (6) or (7) of
Section 501 occurs and is continuing, then and in each and every such case,
unless the principal of all the Securities shall have already become due and
payable, either the Trustee or the Holders of not less than 25% in aggregate
principal amount of all the Securities then Outstanding hereunder (treated as
one class), by notice in writing to the Company (and to the Trustee if given
by Holders), may declare the principal amount (or, if any Securities are
Original Issue Discount Securities, such portion of the principal amount as
may be specified in the terms thereof) of all the Securities then Outstanding
and all accrued interest thereon to be due and payable immediately, and upon
any such declaration the same shall become and shall be immediately due and
payable, anything in this Indenture or in the Securities contained to the
contrary notwithstanding.
At any time after such a declaration of acceleration has been made with
respect to the Securities of any or all series, as the case may be, and before
a judgment or decree for payment of the money due has been obtained by the
Trustee as hereinafter in this Article provided, the Holders of a majority in
principal amount of the Outstanding Securities of such series, by written
notice to the Company and the Trustee, shall rescind and annul such
declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue installments of interest on the Securities
of such series,
(B) the principal of (and premium, if any, on) any
Securities of such series which have become due otherwise than by
such declaration of acceleration, and interest thereon at the rate
or rates prescribed therefor by the terms of the Securities of
such series, to the extent that payment of such interest is
lawful,
(C) interest upon overdue installments of interest at the
rate or rates prescribed therefor by the terms of the Securities
of such series to the extent that payment of such interest is
lawful, and
(D) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel and all other amounts due
the Trustee under Section 607;
and
(2) all Events of Default with respect to such series of
Securities, other than the nonpayment of the principal of the Securities
of such series which have become due solely by such acceleration, have
been cured or waived as provided in Section 513.
30
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 5.13. Collection of Indebtedness and Suits for Enforcement
by Trustee. The Company covenants that if
(1) default is made in the payment of any installment of
interest on any Security of any series when such interest becomes due
and payable, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof, or
(3) default is made in the payment of any sinking or purchase
fund or analogous obligation when the same becomes due by the terms of
the Securities of any series,
and any such default continues for any period of grace provided with
respect to the Securities of such series, the Company will, upon demand
of the Trustee, pay to it, for the benefit of the Holder of any such
Security (or the Holders of any such series in the case of Clause (3)
above), the whole amount then due and payable on any such Security (or
on the Securities of any such series in the case of Clause (3) above)
for principal (and premium, if any) and interest, with interest, to the
extent that payment of such interest shall be legally enforceable, upon
the overdue principal (and premium, if any) and upon overdue install-
ments of interest, at such rate or rates as may be prescribed therefor
by the terms of any such Security (or of Securities of any such series
in the case of Clause (3) above); and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and
all other amounts due the Trustee under Section 607.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the
same against the Company or any other obligor upon the Securities of such
series and collect the money adjudged or decreed to be payable in the manner
provided by law out of the property of the Company or any other obligor upon
such Securities, wherever situated.
If an Event of Default with respect to any series of Securities occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
31
Section 5.14. Trustee May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities or
the property of the Company or of such other obligor or their creditors, the
Trustee (irrespective of whether the principal of the Securities shall then be
due and payable as therein expressed or by declaration or otherwise and irre-
spective of whether the Trustee shall have made any demand on the Company for
the payment of overdue principal or interest) shall be entitled and empowered,
by intervention in such proceedings or otherwise,
(i) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and unpaid in
respect of the Securities and to file such other papers or
documents as may be necessary and advisable in order to have the
claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel and all other amounts due the Trustee under
Section 607) and of the Securityholders allowed in such judicial
proceeding, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the
same;
and any receiver, assignee, trustee, liquidator, sequestrator (or other
similar official) in any such judicial proceeding is hereby authorized by each
Securityholder to make such payment to the Trustee and in the event that the
Trustee shall consent to the making of such payments directly to the
Securityholders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Securityholder any
plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Securityholder in any such proceeding.
Section 5.15. Trustee May Enforce Claims Without Possession of
Securities. All rights of action and claims under this Indenture or the
Securities of any series may be prosecuted and enforced by the Trustee without
the possession of any of the Securities of such series or the production
thereof in any proceeding relating thereto, and any such proceeding instituted
by the Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment shall after provision for the payment of
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agent and counsel and any other amounts due the Trustee under
Section 607, be for the ratable benefit of the Holders of the Securities of
the series in respect of which such judgment has been recovered.
32
Section 5.16. Application of Money Collected. Any money collected
by the Trustee with respect to a series of Securities pursuant to this Article
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal
(or premium, if any) or interest, upon presentation of the Securities of such
series and the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
607.
SECOND: To the payment of the amounts then due and unpaid upon the
Securities of that series for principal (and premium, if any) and interest, in
respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the amounts
due and payable on such Securities for principal (and premium, if any) and
interest, respectively.
THIRD: If any, to the Company.
Section 5.17. Limitation on Suits. No Holder of any Security of any
series shall have any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture, or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to Securities of
such series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of such series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the outstanding Securities of such
series;
it being understood and intended that no one or more Holders of Securities of
such series shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or prejudice
the rights of any other Holders of Securities of such series, or to obtain or
to seek to obtain priority or preference over any other such Holders or to
33
enforce any right under this Indenture, except in the manner herein provided
and for the equal and proportionate benefit of all the Holders of all
Securities of such series.
Section 5.18. Unconditional Right of Securityholders To Receive
Principal, Premium and Interest. Notwithstanding any other provisions in this
Indenture, the Holder of any Security shall have the right, which is absolute
and unconditional, to receive payment of the principal of (and premium, if
any) and (subject to Section 307) interest on such Security on the respective
Stated Maturities expressed in such Security (or, in the case of redemption or
repayment, on the Redemption Date or Repayment Date, as the case may be) and
to institute suit for the enforcement of any such payment, and such right
shall not be impaired without the consent of such Holder.
Section 5.19. Restoration of Rights and Remedies. If the Trustee or
any Securityholder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, then and in every such case the Company, the Trustee
and the Securityholders shall, subject to any determination in such
proceeding, be restored severally and respectively to their former positions
hereunder, and thereafter all rights and remedies of the Trustee and the
Securityholders shall continue as though no such proceeding had been
instituted.
Section 5.110. Rights and Remedies Cumulative. No right or remedy
herein conferred upon or reserved to the Trustee or to the Securityholders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at
law or in equity or otherwise (except as provided in the last sentence of
Section 306). The assertion or employment of any right or remedy hereunder,
or otherwise, shall not prevent the concurrent assertion or employment of any
other appropriate right or remedy.
Section 5.111. Delay or Omission Not Waiver. No delay or omission of
the Trustee or of any Holder of any Security to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to
the Securityholders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Securityholders, as the case may
be.
Section 5.112. Control by Securityholders. The Holders of a majority
in principal amount of the Outstanding Securities of any series shall have the
right to direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee or exercising any trust or power conferred
on the Trustee with respect to the Securities of such series, provided that
(1) the Trustee shall have the right to decline to follow any
such direction if the Trustee, being advised by counsel, determines that
the action so directed may not lawfully be taken or would conflict with
34
this Indenture or if the Trustee in good faith shall, by a Responsible
Officer, determine that the proceedings so directed would involve it in
personal liability or be unjustly prejudicial to the Holders not taking
part in such direction, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Section 5.113. Waiver of Past Defaults. The Holders of not less than
a majority in principal amount of the Outstanding Securities of any series may
on behalf of the Holders of all the Securities of such series waive any past
default hereunder with respect to such series and its consequences, except a
default not theretofore cured
(1) in the payment of the principal of (or premium, if any) or
interest on any Security of such series, or in the payment of any
sinking or purchase fund or analogous obligation with respect to the
Securities of such series, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent
or other default or impair any right consequent thereon.
Section 5.114. Undertaking for Costs. All parties to this Indenture
agree, and each Holder of any Security 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 that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees and expenses, against
any party litigant in such suit, having due regard to the merits and good
faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, or to any suit instituted by any Securityholder for the enforcement
of the payment of the principal of (or premium, if any) or interest on any
Security on or after the respective Stated Maturities expressed in such
Security (or, in the case of redemption or repayment, on or after the
Redemption Date or Repayment Date, as the case may be).
ARTICLE 6. The Trustee.
Section 6.11. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default with
respect to any series of Securities,
35
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture with
respect to the Securities of such series, and no implied covenants
or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee
may, with respect to Securities of such series conclusively rely,
as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of
this Indenture, but in the case of any such certificates or
opinions which by any provision hereof are specifically required
to be furnished to the Trustee, the Trustee shall be under a duty
to examine the same to determine whether or not they conform to
the requirements of this Indenture (but need not confirm or
investigate the accuracy of mathematical calculations or other
facts stated therein).
(b) In case an Event of Default with respect to any series of
Securities has occurred and is continuing, the Trustee shall exercise
with respect to the Securities of such series such of the rights and
powers vested in it by this Indenture, and use the same degree of care
and skill in their exercise, as a prudent person would exercise or use
under the circumstances in the conduct of such person's own affairs.
(c) No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that
(1) this Subsection shall not be construed to limit the effect
of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in principal amount of the
Outstanding Securities of any series relating to the time, method and
place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee,
under this Indenture with respect to the Securities of such series; and
(4) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability
in the performance of any of its duties hereunder, or in the exercise of
any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it.
36
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to
the provisions of this Section.
Section 6.12. Notice of Defaults. Within 90 days after the
occurrence of any default hereunder with respect to Securities of any series,
the Trustee shall transmit by mail to all Securityholders of such series, as
their names and addresses appear in the Security Register, notice of such
default hereunder actually known to the Trustee, unless such default shall
have been cured or waived; provided, however, that, except in the case of a
default in the payment of the principal of (or premium, if any) or interest on
any Security of such series or in the payment of any sinking or purchase fund
installment or analogous obligation with respect to Securities of such series,
the Trustee shall be protected in withholding such notice if and so long as
the board of directors, the executive committee or a trust committee of
directors and/or Responsible Officers of the Trustee in good faith determine
that the withholding of such notice is in the interests of the Securityholders
of such series; and provided, further, that in the case of any default of the
character specified in Section 501(4) with respect to Securities of such
series no such notice to Securityholders of such series shall be given until
at least 90 days after the occurrence thereof. For the purpose of this
Section, the term "default", with respect to Securities of any series, means
any event which is, or after notice or lapse of time or both would become, an
Event of Default with respect to Securities of such series.
Section 6.13. Certain Rights of Trustee. Except as otherwise
provided in Section 601:
(a) the Trustee may conclusively rely and shall be protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its selection and
the advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
37
(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Securityholders pursuant to this Indenture,
unless such Securityholders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which
might be incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document, but the Trustee, in its discretion, may make
such further inquiry or investigation into such facts or matters as it
may see fit, and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or attorney
(which shall be at the sole cost of the Company in the event that such
inquiry or investigation was undertaken by the Trustee in the exercise
of its reasonable discretion on behalf of the Holders) and shall incur
no liability or additional liability of any kind by reason of such
inquiry or investigation;
(g) 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;
(h) the Trustee shall not be liable for any action taken,
suffered, or omitted to be taken by it in good faith and reasonably
believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Indenture; and
(i) the Trustee shall not be deemed to have notice of any
default or Event of Default unless a Responsible Officer of the Trustee
has actual knowledge thereof or unless written notice of any event which
is in fact such a default is received by the Trustee at the Corporate
Trust Office of the Trustee, and such notice references the Securities
and this Indenture.
Section 6.14. Not Responsible for Recitals or Issuance of
Securities. The recitals contained herein and in the Securities, except the
certificates of authentication, shall be taken as the statements of the
Company, and the Trustee assumes no responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities. The Trustee shall not be accountable for the
use or application by the Company of Securities or the proceeds thereof.
Section 6.15. May Hold Securities. The Trustee, any Paying Agent,
the Security Registrar or any other agent of the Company, in its individual or
any other capacity, may become the owner or pledgee of Securities and, subject
to Sections 608 and 613, may otherwise deal with the Company with the same
38
rights it would have if it were not Trustee, Paying Agent, Security Registrar
or such other agent.
Section 6.16. Money Held in Trust. Subject to the provisions of
Section 1003 hereof, all moneys received by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for which they
were received, but need not be segregated from other funds except to the
extent required by law. The Trustee shall be under no liability for interest
on any money received by it hereunder except as otherwise agreed in writing
with the Company.
Section 6.17. Compensation and Reimbursement. The Company agrees
(1) to pay to the Trustee from time to time such compensation as
the Company and the Trustee shall from time to time agree in writing for
all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein to reimburse
the Trustee upon its request for all reasonable expenses, disbursements
and advances incurred or made by the Trustee in accordance with any
provision of this Indenture (including the reasonable compensation and
the expenses and disbursements of its agents and counsel), except any
such expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(3) to indemnify each of the Trustee or any predecessor Trustee
for, and to hold it harmless against, any and all losses, damages,
claims, liabilities or expenses, including taxes (other than taxes based
upon, measured by, or determined by the income of the Trustee), incurred
without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of this trust,
including the costs and expenses of defending itself against any claim
or liability in connection with the exercise or performance of any of
its powers or duties hereunder.
As security for the performance of the obligations of the Company under
this Section the Trustee shall have a lien prior to the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the payment of principal of (and premium, if any) or interest on
particular Securities.
When the Trustee incurs expenses or renders services in connection with
an Event of Default specified in Section 501(6) or Section 501(7), the
expenses (including the reasonable charges and expenses of its counsel) and
the compensation for the services are intended to constitute expenses of
administration under any applicable Federal or State bankruptcy, insolvency or
other similar law.
The provisions of this Section shall survive the termination of this
Indenture.
39
Section 6.18. Disqualification; Conflicting Interests. The Trustee
for the Securities of any series issued hereunder shall be subject to the
provisions of Section 310(b) of the Trust Indenture Act during the period of
time provided for therein. In determining whether the Trustee has a
conflicting interest as defined in Section 310(b) of the Trust Indenture Act
with respect to the Securities of any series, there shall be excluded this
Indenture with respect to Securities of any particular series of Securities
other than that series. Nothing herein shall prevent the Trustee from filing
with the Commission the application referred to in the second to last
paragraph of Section 310(b) of the Trust Indenture Act.
Section 6.19. Corporate Trustee Required; Eligibility. There shall
at all times be a Trustee hereunder with respect to each series of Securities,
which shall be either
(i) a corporation organized and doing business under the
laws of the United States of America or of any State, authorized
under such laws to exercise corporate trust powers and subject to
supervision or examination by Federal or State authority, or
(ii) a corporation or other Person organized and doing
business under the laws of a foreign government that is permitted
to act as Trustee pursuant to a rule, regulation or order of the
Commission, authorized under such laws to exercise corporate trust
powers, and subject to supervision or examination by authority of
such foreign government or a political subdivision thereof
substantially equivalent to supervision or examination applicable
to United States institutional trustees,
in either case having a combined capital and surplus of at least $50,000,000.
If such corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published.
Neither the Company nor any person directly or indirectly controlling,
controlled by, or under common control with the Company shall serve as trustee
for the Securities of any series issued hereunder. If at any time the Trustee
with respect to any series of Securities shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect specified in Section 610.
Section 6.110. Resignation of Successor.
(a) No resignation or removal of the Trustee and no appointment
of a successor Trustee pursuant to this Article shall become effective
until the acceptance of appointment by the successor Trustee under
Section 611.
(b) The Trustee may resign with respect to any series of
Securities at any time by giving written notice thereof to the Company.
If an instrument of acceptance by a successor Trustee shall not have
40
been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition, at the
expense of the Company, any court of competent jurisdiction for the
appointment of a successor Trustee.
(c) The Trustee may be removed with respect to any series of
Securities at any time by Act of the Holders of a majority in principal
amount of the Outstanding Securities of that series, delivered to the
Trustee and to the Company. If an instrument of acceptance by a
successor Trustee shall not have been delivered to the Trustee within 30
days after the giving of such notice of removal, the Trustee subject to
removal may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 310(b) of the
Trust Indenture Act pursuant to Section 608 with respect to any series
of Securities after written request therefor by the Company or by any
Securityholder who has been a bona fide Holder of a Security of that
series for at least 6 months, or
(2) the Trustee shall cease to be eligible under Section 609
with respect to any series of Securities and shall fail to resign after
written request therefor by the Company or by any such Securityholder,
or
(3) the Trustee shall become incapable of acting with respect to
any series of Securities, or
(4) the Trustee shall be adjudged a bankrupt or insolvent or a
receiver of the Trustee or of its property shall be appointed or any
public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee, with respect to the series, or in the case of Clause (4), with
respect to all series, or (ii) subject to Section 514, any Securityholder who
has been a bona fide Holder of a Security of such series for at least 6 months
may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee with respect to the series, or, in the case
of Clause (4), with respect to all series.
(e) If the Trustee shall resign, be removed or become incapable
of acting with respect to any series of Securities, or if a vacancy
shall occur in the office of the Trustee with respect to any series of
Securities for any cause, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee for that series of Securities. If,
within one year after such resignation, removal or incapacity, or the
occurrence of such vacancy, a successor Trustee with respect to such
41
series of Securities shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Securities of such
series delivered to the Company and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such
appointment, become the successor Trustee with respect to such series
and supersede the successor Trustee appointed by the Company with
respect to such series. If no successor Trustee with respect to such
series shall have been so appointed by the Company or the
Securityholders of such series and accepted appointment in the manner
hereinafter provided, subject to Section 514, any Securityholder who has
been a bona fide Holder of a Security of that series for at least 6
months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to any series and each appointment
of a successor Trustee with respect to any series by mailing written
notice of such event by first-class mail, postage prepaid, to the
Holders of Securities of that series as their names and addresses appear
in the Security Register. Each notice shall include the name of the
successor Trustee and the address of its principal Corporate Trust
office.
Section 6.111. Acceptance of Appointment by Successor. Every
successor Trustee appointed hereunder shall execute, acknowledge and deliver
to the Company and to the predecessor Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the predecessor
Trustee shall become effective with respect to any series as to which it is
resigning or being removed as Trustee, and 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 any such
series; but, on request of the Company or the successor Trustee, such
predecessor Trustee shall, upon payment of its reasonable charges, if any,
execute and deliver an instrument transferring to such successor Trustee all
the rights, powers and trusts of the predecessor Trustee, and shall duly
assign, transfer and deliver to such successor Trustee all property and money
held by such predecessor Trustee hereunder with respect to all or any such
series, subject nevertheless to its lien, if any, provided for in Section 607.
Upon request of any such successor Trustee, the Company shall execute any and
all instruments for more fully and certainly vesting in and confirming to such
successor Trustee all such rights, powers and trusts.
In case of the appointment hereunder of a successor Trustee with respect
to the Securities of one or more (but not all) series, the Company, the
predecessor Trustee and each successor Trustee with respect to the Securities
of any applicable series shall execute and deliver an indenture supplemental
hereto which 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 any series as to which
the predecessor Trustee is not being succeeded shall continue to be vested in
the predecessor Trustee, and shall add to or change any of the provisions of
42
this Indenture as shall be necessary to provide for or facilitate the adminis-
tration 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.
No successor Trustee with respect to any series of Securities shall
accept its appointment unless at the time of such acceptance such successor
Trustee shall be qualified and eligible with respect to that series under this
Article.
Section 6.112. Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on
the part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may
adopt such authentication and deliver the Securities so authenticated with the
same effect as if such successor Trustee had itself authenticated such
Securities.
Section 6.113. Preferential Collection of Claims Against Company.
(a) Subject to Subsection (b) of this Section, if the Trustee
shall be or shall become a creditor, directly or indirectly, secured or
unsecured, of the Company within 3 months prior to a default, as defined
in Subsection (c) of this Section, or subsequent to such a default,
then, unless and until such default shall be cured, the Trustee shall
set apart and hold in a special account for the benefit of the Trustee
individually, the Holders of the Securities and the holders of other
indenture securities (as defined in Subsection (c) of this Section):
(1) an amount equal to any and all reduction in the amount due
and owing upon any claim as such creditor in respect of principal or
interest, effected after the beginning of such 3-month period and valid
as against the Company and its other creditors, except any such
reduction resulting from the receipt or disposition of any property
described in paragraph (2) of this Subsection, or from the exercise of
any right of set-off which the Trustee could have exercised if a
petition in bankruptcy had been filed by or against the Company upon the
date of such default; and
(2) all property received by the Trustee in respect of any claim
as such creditor, either as security therefor, or in satisfaction or
composition thereof, or otherwise, after the beginning of such 3-month
period, or an amount equal to the proceeds of any such property, if
43
disposed of, subject, however, to the rights, if any, of the Company and
its other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee
(A) to retain for its own account (i) payments made on account of any
such claim by any Person (other than the Company) who is liable
thereon, and (ii) the proceeds of the bona fide sale of any such
claim by the Trustee to a third person, and (iii) distributions
made in cash, securities or other property in respect of claims
filed against the Company in bankruptcy or receivership or in
proceedings for reorganization pursuant to the Federal Bankruptcy
Act or applicable State law;
(B) to realize, for its own account, upon any property held by it as
security for any such claim, if such property was so held prior to
the beginning of such 3-month 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 3-month period and such property was received as
security therefor simultaneously with the creation thereof, and if
the Trustee shall sustain the burden of proving that at the time
such property was so received the Trustee had no reasonable cause
to believe that a default as defined in Subsection (c) of this
Section would occur within 3 months; or
(D) to receive payment on any claim referred to in paragraph (B) or
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 3-month period for property held as security at
the time of such substitution shall, to the extent of the fair value of the
property released, have the same status as the property released, and, to the
extent that any claim referred to in any of such paragraphs is created in
renewal of or in substitution for or for the purpose of repaying or refunding
any pre-existing claim of the Trustee as such creditor, such claim shall have
the same status as such pre-existing claim.
If the Trustee 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 Securityholders and the holders of other indenture securities
in such manner that the Trustee, the Securityholders and the holders of other
indenture securities realize, as a result of payments from such special
account and payments of dividends on claims filed against the Company in
bankruptcy or receivership or in proceedings for reorganization pursuant to
the Federal Bankruptcy Act or applicable State law, the same percentage of
their respective claims, figured before crediting to the claim of the Trustee
anything on account of the receipt by it from the Company of the funds and
44
property in such special Account and before crediting to the respective claims
of the Trustee and the Securityholders and the holders of other indenture
securities dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the Federal
Bankruptcy Act or applicable State law, but after crediting thereon receipts
on account of the indebtedness represented by their respective claims from all
sources other than from such dividends and from the funds and property so held
in such special account. As used in this paragraph, with respect to any
claim, the term "dividends" shall include any distribution with respect to
such claim, in bankruptcy or receivership or proceedings for reorganization
pursuant to the Federal Bankruptcy Act or applicable State law, whether such
distribution is made in cash, securities, or other property, but shall not
include any such distribution with respect to the secured portion, if any, of
such claim. The court in which such bankruptcy, receivership or proceedings
for reorganization is pending shall have jurisdiction (i) to apportion between
the Trustee and the Securityholders and the holders of other indenture
securities, in accordance with the provisions-of this paragraph, the funds and
property held in such special account and proceeds thereof, or (ii) in lieu of
such apportionment, in whole or in part, to give to the provisions of this
paragraph due consideration in determining the fairness of the distributions
to be made to the Trustee and the Securityholders and the holders of other
indenture securities with respect to their respective claims, in which event
it shall not be necessary to liquidate or to appraise the value of any
securities or other property held in such special account or as security for
any such claim, or to make a specific allocation of such distributions as
between the secured and unsecured portions of such claims, or otherwise to
apply the provisions of this paragraph as a mathematical formula.
Any Trustee which has resigned or been removed after the beginning of
such 3-month 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 3-month period, it
shall be subject to the provisions of this Subsection if and only if the
following conditions exist:
(i) the receipt of property or reduction of claim, which
would have given rise to the obligation to account, if such
Trustee had continued as Trustee, occurred after the beginning of
such 3-month period; and
(ii) such receipt of property or reduction of claim
occurred within 3 months after such resignation or removal.
(b) There shall be excluded from the operation of Subsection (a)
of this Section a creditor relationship arising from
(1) the ownership or acquisition of securities issued under any
indenture or any security or securities having a maturity of one year or
more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court of
competent jurisdiction, or by this Indenture, for the purpose of
45
preserving any property which shall at any time be subject to the lien
of this Indenture or of discharging tax liens or other prior liens or
encumbrances thereon, if notice of such advances and of the
circumstances surrounding the making thereof is given to the
Securityholders at the time and in the manner provided in this
Indenture;
(3) disbursements made in the ordinary course of business in the
capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depository, or other similar
capacity;
(4) an indebtedness created as a result of services rendered or
premises rented; or an indebtedness created as a result of goods or
securities sold in a cash transaction as defined in Subsection (c) of
this Section;
(5) the ownership of stock or of other securities of a
corporation organized under the provisions of Section 25(a) of the
Federal Reserve Act, as amended, which is directly or indirectly a
creditor of the Company; or
(6) the acquisition, ownership, acceptance or negotiation of any
drafts, bills of exchange, acceptances or obligations which fall within
the classification of self-liquidating paper as defined in Subsection
(c) of this Section.
(c) For the purposes of this Section only:
(1) The term "default" means any failure to make payment in full
of the principal of or interest on any of the Securities or upon the
other indenture securities when and as such principal or interest
becomes due and payable.
(2) The term "other indenture securities" means securities upon
which the Company is an obligor outstanding under any other indenture
(i) under which the Trustee is also trustee, (ii) which contains
provisions substantially similar to the provisions of this Section, and
(iii) under which a default exists at the time of the apportionment of
the funds and property held in such special account.
(3) The term "cash transaction" means any transaction in which
full payment for goods or securities sold is made within 7 days after
delivery of the goods or securities in currency or in checks or other
orders drawn upon banks or bankers and payable upon demand.
(4) The term "self-liquidating paper" means any draft, bill of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase,
processing, manufacturing, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or merchandise or the
46
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security
is received by the Trustee simultaneously with the creation of the
creditor relationship with the Company arising from the making, drawing,
negotiating or incurring of the draft, bill of exchange, acceptance or
obligation.
(5) The term "Company" means any obligor upon the Securities.
Section 6.114. Appointment of Authentication Agent. At any time when
any of the Securities remain Outstanding the Trustee, with the approval of the
Company, may appoint an Authenticating Agent or Agents with respect to one or
more series of Securities which shall be authorized to act on behalf of the
Trustee to authenticate Securities of such series issued upon exchange,
registration of transfer or partial redemption thereof or pursuant to Section
306, and Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or
the Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized
and doing business under the laws of the United States of America, any State
thereof or the District of Columbia, authorized under such laws to act as an
Authenticating Agent, having a combined capital and surplus of not less than
$50,000,000 and, if other than the Company itself, subject to supervision or
examination by Federal or State authority. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such Authenticating Agent
shall be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating
Agent shall be a party, or any corporation succeeding to the corporate agency
or corporate trust business of an Authenticating Agent, shall continue to be
an Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and, if other than the Company, to the Company. The
Trustee may at any time terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent and, if other than
the Company, to the Company. Upon receiving such a notice of resignation or
47
upon such a termination, or in case at any time such Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section,
the Trustee, with the approval of the Company, may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall mail
written notice of such appointment by first-class mail, postage prepaid, to
all Holders of Securities of the series with respect to which such
Authenticating Agent will serve, as their names and addresses appear in the
Security Register. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named
as an Authenticating Agent. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternate
certificate of authentication in the following form:
48
This is one of the Securities referred to in the within-mentioned
Indenture.
THE BANK OF NEW YORK
as Trustee,
By:________________________________
As Authenticating Agent
By:________________________________
Authorized Officer
ARTICLE 7. Securityholders' Lists and Reports by Trustee and Company.
Section 7.11. Company To Furnish Trustee Names and Addresses of
Securityholders. The Company will furnish or cause to be furnished to the
Trustee
(1) semi-annually not later than December 1 and June 1 in each
year in such form as the Trustee may reasonably require, a list of the
names and addresses of the Holders of Securities of each series as of a
date not more than 15 days prior to the date such list is furnished, and
(2) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the date such list is furnished,
except that no such list need be furnished so long as the Trustee is acting
as Security Registrar.
Section 7.12. Preservation of Information; Communications to
Securityholders.
(a) The Trustee shall preserve in as current a form as is
reasonably practicable, the names and addresses of Holders of Securities
contained in the most recent list furnished to the Trustee as provided
in Section 701 and the names and addresses of Holders of Securities
received by the Trustee in its capacity as Security Registrar. The
Trustee may destroy any list furnished to it as provided in Section 701
upon receipt of a new list so furnished.
(b) If 3 or more Holders of Securities of any series
(hereinafter referred to as "applicants") apply in writing to the
Trustee, and furnish to the Trustee reasonable proof that each such
applicant has owned a Security of such series for a period of at least 6
months preceding the date of such application, and such application
states that the applicants desire to communicate with other Holders of
Securities of such series or with the Holders of all Securities with
respect to their rights under this Indenture or under such Securities
and is accompanied by a copy of the form of proxy or other communication
49
which such applicants propose to transmit, then the Trustee shall,
within 5 Business Days after the receipt of such application, at its
election, either
(i) afford such applicants access to the information
preserved at the time by the Trustee in accordance with Section
702(a), or
(ii) inform such applicants as to the approximate number of
Holders of Securities of such series or all Securities, as the
case may be, whose names and addresses appear in the information
preserved at the time by the Trustee in accordance with Section
702(a), and as to the approximate cost of mailing to such
Securityholders the form of proxy or other communication, if any,
specified in such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder of a Security of such series or to all Securityholders, as
the case may be, whose names and addresses appear in the information preserved
at the time by the Trustee in accordance with Section 702(a), a copy of the
form of proxy or other communication which is specified in such request, with
reasonable promptness after a tender to the Trustee of the material to be
mailed and of payment, or provision for the payment, of the reasonable
expenses of mailing, unless, within 5 days after such tender, the Trustee
shall mail to such applicants and file with the Commission, together with a
copy of the material to be mailed, a written statement to the effect that, in
the opinion of the Trustee, such mailing would be contrary to the best
interests of the Holders of Securities of such series or all Securityholders,
as the case may be, or would be in violation of applicable law. Such written
statement shall specify the basis of such opinion. If the Commission, after
opportunity for a hearing upon the objections specified in the written
statement so filed, shall enter an order refusing to sustain any of such
objections or if, after the entry of an order sustaining one or more of such
objections, the Commission shall find, after notice and opportunity for
hearing, that all the objections so sustained have been met and shall enter an
order so declaring, the Trustee shall mail copies of such material to all
Securityholders of such series or all Securityholders, as the case may be,
with reasonable promptness after the entry of such order and the renewal of
such tender; otherwise the Trustee shall be relieved of any obligation or duty
to such applicants respecting their application.
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company
nor the Trustee shall be held accountable by reason of the disclosure of
any such information as to the names and addresses of the Holders of
Securities in accordance with Section 702(b), regardless of the source
from which such information was derived, and that the Trustee shall not
be held accountable by reason of mailing any material pursuant to a
request made under Section 702(b).
50
Section 7.13. Reports by Trustee.
(a) The term "reporting date" as used in this Section means
April 1. Within 60 days after the reporting date in each year, beginning
in 1999, the Trustee shall transmit by mail to all Securityholders, as
their names and addresses appear in the Security Register, a brief
report dated as of such reporting date with respect to any of the
following events which may have occurred during the twelve months
preceding the date of such report (but if no such event has occurred
within such period, no report need be transmitted):
(1) any change to its eligibility under Section 609 and its
qualifications under Section 608;
(2) the creation of or any material change to a relationship
specified in Section 310(b)(1) through Section 310(b)(10) of the Trust
Indenture Act;
(3) the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the making
thereof) made by the Trustee (as such) which remain unpaid on the date
of such report, and for the reimbursement of which it claims or may
claim a lien or charge, prior to that of Securities of any series, on
any property or funds held or collected by it as Trustee, except that
the Trustee shall not be required (but may elect) to report such
advances if such advances so remaining unpaid aggregate not more than
1/2 of 1% of the principal amount of the Securities of such series
outstanding on the date of such report;
(4) any change to the amount, interest rate and maturity date of
all other indebtedness owing by the Company (or by any other obligor on
the Securities) to the Trustee in its individual capacity, on the date
of such report, with a brief description of any property held as
collateral security therefor, except an indebtedness based upon a
creditor relationship arising in any manner described in Section
613(b)(2), (3), (4), or (6);
(5) any change to the property and funds, if any, physically in
the possession of the Trustee as such on the date of such report;
(6) any additional issue of Securities which the Trustee has not
previously reported; and
(7) any action taken by the Trustee in the performance of its
duties hereunder which it has not previously reported and which in its
opinion materially affects the Securities, except action in respect of a
default, notice of which has been or is to be withheld by the Trustee in
accordance with Section 602.
(b) The Trustee shall transmit by mail to all Securityholders,
as their names and addresses appear in the Security Register, a brief
report with respect to the character and amount of any advances (and if
51
the Trustee elects so to state, the circumstances surrounding the making
thereof) made by the Trustee (as such) since the date of the last report
transmitted pursuant to Subsection (a) of this Section (or if no such
report has yet been so transmitted, since the date of execution of this
instrument) for the reimbursement of which it claims or may claim a lien
or charge, prior to that of the Securities of any series, on property or
funds held or collected by it as Trustee, and which it has not
previously reported pursuant to this Subsection, except that the Trustee
shall not be required (but may elect) to report such advances if such
advances remaining unpaid at any time aggregate 10% or less of the
principal amount of the Securities outstanding of such series at such
time, such report to be transmitted within 90 days after such time.
(c) A copy of each such report shall, at the time of such
transmission to Securityholders, be furnished to the Company and be
filed by the Trustee with each stock exchange upon which the Securities
are listed, and also with the Commission. The Company will promptly
notify the Trustee when the Securities are listed on any stock exchange,
or any delisting thereof.
Section 7.14. Reports by Company. The Company will
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from time
to time by rules and regulations prescribe) which the Company may be
required to file with the Commission pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934; or, if the Company is not
required to file information, documents or reports pursuant to either of
said Sections, then will file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by
the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of
the Securities Exchange Act of 1934 in respect of a security listed and
registered on a national securities exchange as may be prescribed from
time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission,
such additional information, documents and reports with respect to
compliance by the Company with the conditions and covenant of this
Indenture as may be required from time to time by such rules and
regulations; and
(3) transmit by mail to all Securityholders, as their names and
addresses appear in the Security Register, within 30 days after the
filing thereof with the Trustee, such summaries of any information,
documents and reports required to be filed by the Company pursuant to
paragraphs (1) and (2) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
52
Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
ARTICLE 8. Consolidation, Merger, Conveyance or Transfer.
Section 8.11. When Company May Merge or Transfer Assets. The
Company, in a single transaction or through a series of related transactions,
shall not consolidate with or merge with or into any other Person or transfer
(by lease, assignment, sale or otherwise) all or substantially all of its
properties and assets to another Person or group of affiliated Persons,
unless:
(a) either (1) the Company shall be the continuing corporation
or (2) the Person (if other than the Company) formed by such
consolidation or into which the Company is merged or to which all or
substantially all of the properties and assets of the Company are trans-
ferred (i) shall be a corporation, partnership or trust organized and
validly existing under the laws of the United States or any State
thereof or the District of Columbia and (ii) shall expressly assume, by
an indenture supplemental hereto, executed and delivered to the Trustee,
in form reasonably satisfactory to the Trustee, all of the obligations
of the Company under the Securities and this Indenture and the
performance of every covenant of this Indenture on the part of the
Company to be performed or observed;
(b) immediately after giving effect to such transaction, and the
assumption contemplated by clause (a) above, no Event of Default, and no
event which, after notice or lapse of time, or both, would become an
Event of Default, shall have occurred and be continuing; and
(c) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and, if a supplemental indenture is
required in connection with such transaction, such supplemental
indenture, comply with this Article 8 and that all conditions precedent
herein provided for relating to such transaction have been satisfied.
For purposes of the foregoing, the transfer (by lease, assignment, sale
or otherwise) of the properties and assets of one or more Restricted
Subsidiaries (other than to the Company or another direct or indirect wholly
owned Subsidiary) in a single transaction or through a series of related
transactions, which, if such assets were owned by the Company, would
constitute all or substantially all of the properties and assets of the
Company, shall be deemed to be the transfer of all or substantially all of the
properties and assets of the Company.
The successor Person formed by such consolidation or into which the
Company is merged or the successor Person to which such conveyance, transfer
53
or lease is made shall succeed to, and be substituted for, and may exercise
every right and power of, the Company under this Indenture with the same
effect as if such successor had been named as the Company herein, and
thereafter, except in the case of a lease of its properties and assets
substantially as an entirety, the Company shall be discharged and released
from all obligations and covenants under this Indenture and the Securities.
The Trustee shall enter into a supplemental indenture to evidence the
succession and substitution of such successor Person and such discharge and
release of the Company.
ARTICLE 9. Supplemental Indentures.
Section 9.11. Supplemental Indentures Without Consent of
Securityholders. Without the consent of the Holders of any Securities, the
Company, when authorized by a Board Resolution, and the Trustee, at any time
and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following
purposes:
(1) to evidence the succession of another corporation to the
Company, and the assumption by any such successor of the covenants of
the Company herein and in the Securities contained; or
(2) to add to the covenants of the Company, or to surrender any
right or power herein conferred upon the Company, for the benefit of the
Holders of the Securities of any or all series (and if such covenants or
the surrender of such right or power are to be for the benefit of less
than all series of Securities, stating that such covenants are expressly
being included or such surrenders are expressly being made solely for
the benefit of one or more specified series); or
(3) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture; or
(4) to add to this Indenture such provisions as may be expressly
permitted by the TIA, excluding, however, the provisions referred to in
Section 316(a)(2) of the TIA as in effect at the date as of which this
instrument was executed or any corresponding provision in any similar
Federal statute hereafter enacted; or
(5) to establish any form of Security, as provided in Article
Two, and to provide for the issuance of any series of Securities as
provided in Article Three and to set forth the terms thereof, and/or to
add to the rights of the Holders of the Securities of any series; or
(6) to evidence and provide for the acceptance of appointment by
another corporation as a successor Trustee hereunder with respect to one
or more series of Securities and to add to or change any of the provi-
sions of this Indenture as shall be necessary to provide for or
54
facilitate the administration of the trusts hereunder by more than one
Trustee, pursuant to Section 611; or
(7) to add any additional Events of Default in respect of the
Securities of any or all series (and if such additional Events of
Default are to be in respect of less than all series of Securities,
stating that such Events of Default are expressly being included solely
for the benefit of one or more specified series); or
(8) to provide for the issuance of Securities in coupon as well
as fully registered form.
No supplemental indenture for the purposes identified in Clauses (2),
(3) or (7) above may be entered into if to do so would adversely affect the
interest of the Holders of Securities of any series.
Section 9.12. Supplemental Indentures with Consent of
Securityholders. With the consent of the Holders of not less than a majority
in principal amount of the Outstanding Securities of each series affected by
such supplemental indenture or indentures, by Act of said Holders delivered to
the Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of the Securities of each
such series under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding
Security affected thereby,
(1) change the Maturity of the principal of, or the Stated
Maturity of any premium on, or any installment of interest on, any
Security, or reduce the principal amount thereof or the interest or any
premium thereon, or change the method of computing the amount of
principal thereof or interest thereon on any date or change any Place of
Payment where any Security or any premium or interest thereon is
payable, or impair the right to institute suit for the enforcement of
any such payment on or after the Maturity or the Stated Maturity, as the
case may be, thereof (or, in the case of redemption or repayment, on or
after the Redemption Date or the Repayment Date as the case may be); or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any waiver of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences, provided
for in this Indenture; or
(3) modify any of the provisions of this Section, Section 513 or
Section 1008, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby.
55
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.
It shall not be necessary for any Act of Securityholders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Persons entitled to consent to any indenture
supplemental hereto. If a record date is fixed, the Holders on such record
date, or their duly designated proxies, and only such Persons, shall be
entitled to consent to such supplemental indenture, whether or not such
Holders remain Holders after such record date; provided, that unless such
consent shall have become effective by virtue of the requisite percentage
having been obtained prior to the date which is six months after such record
date, any such consent previously given shall automatically and without
further action by any Holder be canceled and of no further effect.
Section 9.13. Execution of Supplemental Indentures. In executing,
or accepting the additional trusts created by, any supplemental indenture
permitted by this Article or the modifications thereby of the trusts created
by this Indenture, the Trustee shall be entitled to receive, and (subject to
Section 601) shall be fully protected in relying upon, an Opinion of Counsel
stating that the execution of such supplemental indenture is authorized or
permitted by this Indenture. The Trustee may, but shall not be obligated to,
enter into any such supplemental indenture which affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
Section 9.14. Effect of Supplemental Indentures. Upon the execution
of any supplemental indenture under this Article, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a
part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder shall be bound
thereby to the extent provided therein.
Section 9.15. Conformity with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the TIA as then in effect.
Section 9.16. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall if required by the Trustee,
bear a notation in form approved by the Trustee as to any matter provided for
in such supplemental indenture. If the Company shall so determine, new
Securities so modified as to conform, in the opinion of the Trustee and the
Board of Directors, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities.
56
ARTICLE 10. Covenants.
Section 10.11. Payment of Principal, Premium and Interest. With
respect to each series of Securities, the Company will duly and punctually pay
the principal of (and premium, if any) and interest on such Securities in
accordance with their terms and this Indenture, and will duly comply with all
the other terms, agreements and conditions contained in, or made in the
Indenture for the benefit of, the Securities of such series.
Section 10.12. Maintenance of Office or Agency. The Company will
maintain an office or agency in each Place of Payment where Securities may be
presented or surrendered for payment, where Securities may be surrendered for
transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities and this Indenture may be served. The Company will
give prompt written notice to the Trustee of the location, and of any change
in the location, of such office or agency. If at any time the Company shall
fail to maintain such office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the principal Corporate Trust Office of the Trustee,
Attention: Corporate Trust Trustee Administration, and the Company hereby
appoints the Trustee its agent to receive all such presentations, surrenders,
notices and demands.
Section 10.13. Money for Security Payments To Be Held in Trust. If
the Company shall at any time act as its own Paying Agent for any series of
Securities, it will, on or before each due date of the principal of (and
premium, if any) or interest on, any of the Securities of such series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal (and premium, if any) or interest so
becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided, and will promptly notify the Trustee of its
action or failure to act.
Whenever the Company shall have one or more Paying Agents for any series
of Securities, it will, prior to each due date of the principal of (and
premium, if any) or interest on, any Securities of such series, deposit with a
Paying Agent a sum sufficient to pay the principal (and premium, if any) or
interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal (and premium, if any) or interest, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the Trustee for any
series of Securities to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provi-
sions of this Section, that such Paying Agent will
(1) hold all sums held by it for the payment of principal of
(and premium, if any) or interest on Securities of such series in trust
for the benefit of the Persons entitled thereto until such sums shall be
paid to such Persons or otherwise disposed of as herein provided;
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(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of such series) in the making of
any such payment of principal (and premium, if any) or interest on the
Securities of such series; and
(3) at any time during the continuance of any such default upon
the written request of the Trustee, forthwith pay to the Trustee all
sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture with respect to any series of
Securities or for any other purpose, pay, or by Company Order direct any
Paying Agent to pay, to the Trustee all sums held in trust by the Company or
such Paying Agent in respect of each and every series of Securities as to
which it seeks to discharge this Indenture or, if for any other purpose, all
sums so held in trust by the Company in respect of all Securities, such sums
to be held by the Trustee upon the same trusts as those upon which such sums
were held by the Company or such Paying Agent; and, upon such payment by any
Paying Agent to the Trustee, such Paying Agent shall be released from all
further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium, if
any) or interest on any Security of any series and remaining unclaimed for two
years after such principal (and premium, if any) or interest has become due
and payable shall be paid to the Company on Company Request, or (if then held
by the Company) shall be discharged from such trust; and the Holder of such
Security shall thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease. The Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of the
Company mail to the Holders of the Securities as to which the money to be
repaid was held in trust, as their names and addresses appear in the Security
Register, a notice that such moneys remain unclaimed and that, after a date
specified in the notice, which shall not be less than 30 days from the date on
which the notice was first mailed to the Holders of the Securities as to which
the money to be repaid was held in trust, any unclaimed balance of such moneys
then remaining will be paid to the Company free of the trust formerly
impressed upon it.
Section 10.14. Statement as to Compliance. The Company will deliver
to the Trustee, within 120 days of the end of each fiscal year, a written
statement signed by the principal executive officer, principal financial
officer or principal accounting officer of the Company stating that
(1) in the course of the performance of his duties as an officer
of the Company he would normally have knowledge of the Company's
performance under this Indenture and under the terms of the Securities;
and
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(2) to the best of his knowledge, the Company has fulfilled all
its obligations under this Indenture and has complied with all
conditions and covenants on its part contained in this Indenture through
such year, or, if there has been a default in the fulfillment of any
such obligation, covenant or condition, specifying each such default
known to him and the nature and status thereof.
For the purpose of this Section 1004, default and compliance shall
be determined without regard to any grace period or requirement of
notice provided pursuant to the terms of this Indenture.
Section 10.15. Legal Existence. Subject to Article Eight the Company
will do or cause to be done all things necessary to preserve and keep in full
force and effect its legal existence.
Section 10.16. Limitation on Liens. The Company shall not create,
assume or suffer to exist any Lien upon any Principal Property of the Company
or any Restricted Subsidiary or shares of Capital Stock or indebtedness of any
Subsidiary to secure any debt of any Person, or permit any Restricted
Subsidiary so to do, without making effective provision whereby the Securities
then outstanding and having the benefit of this Section shall be secured by
the Lien equally and ratably with such debt for so long as such debt shall be
so secured, except that the foregoing shall not prevent the Company or any
Restricted Subsidiary from creating, assuming or suffering to exist Liens of
the following character:
(1) with respect to any series of Securities, any Lien existing
on the date of issuance of the series;
(2) any Lien existing on property owned or leased by, or shares
of capital stock or indebtedness of, a Person at the time it becomes a
Restricted Subsidiary;
(3) any Lien existing on property at the time of the acquisition
or lease thereof by the Company or a Restricted Subsidiary;
(4) any Lien on property of a corporation existing at the time
such corporation is merged or consolidated with the Company or a
Restricted Subsidiary or at the time of a sale, lease or other
disposition of the properties of a corporation as an entirety or
substantially as an entirety to the Company or a Restricted Subsidiary;
(5) any Lien to secure any debt on capital stock, property or
assets incurred prior to, at the time of, or within 180 days after, or
pursuant to financing arrangements for which a firm commitment is made
by a bank, insurance company or other lender or investor (not including
the Company or any Restricted Subsidiary) within 180 days after, the
acquisition of capital stock, property or assets for the purpose of
financing all or any part of the purchase price thereof;
(6) any Lien to secure any debt incurred prior to, at the time
of, or within 180 days after, or pursuant to financing arrangements for
59
which a firm commitment is made by a bank, insurance company or other
lender or investor (not including the Company or any Restricted
Subsidiary) within 180 days after, the completion of the construction
and commencement of commercial operation, alteration, repair or
improvement of property or assets for the purpose of financing all or
any part of the cost thereof;
(7) any Lien securing debt of a Restricted Subsidiary owing to
the Company or to another Restricted Subsidiary;
(8) any Lien in favor of any customer arising in respect of
performance deposits and partial, progress, advance or other payments
made by or on behalf of such customer for goods produced or to be
produced for or services rendered or to be rendered to such customer in
the ordinary course of business, which Lien shall not exceed the amount
of such deposits or payments;
(9) mechanics', workmen's, repairmen's, materialmen's, carriers'
and other similar Liens arising in the ordinary course of business;
(10) any Lien created by or resulting from any litigation or
proceedings which are being contested in good faith by appropriate
proceedings; any Lien arising out of a judgment or award against the
Company and/or one or more Restricted Subsidiaries with respect to which
the Company and/or such Restricted Subsidiary or Subsidiaries are in
good faith prosecuting an appeal or proceedings for review; or any Lien
incurred by the Company and/or Restricted Subsidiaries for the purpose
of attaining a stay or discharge in the course of any legal proceedings
to which the Company and/or Restricted Subsidiary or Subsidiaries are a
party; or
(11) any Lien for taxes or assessments or governmental charges or
levies not yet due or delinquent, or which can thereafter be paid
without penalty or which are being contested in good faith by
appropriate proceedings; any landlord's Lien on property held under
lease and tenants' rights under leases; easements and any other liens of
a nature similar to those hereinabove described in this clause (11)
which do not, in the opinion of the Company, materially impair the use
of such property in the operation of the business of the Company or any
Restricted Subsidiary or the value of such property for the purposes of
such business;
(12) any Lien which may be deemed to result from an agreement or
commitment to exchange securities of a Subsidiary for other securities
of the Company, whether or not such securities of a Subsidiary are
placed in escrow for such purpose;
(13) any Lien in favor of the United States of America or any
State thereof or any other country, or any agency, instrumentality or
political subdivision or any of the foregoing, to secure partial,
progress, advance or other payments or performance pursuant to the
60
provisions of any contract or statute, or any Liens securing industrial
development, pollution control, or similar revenue bonds;
(14) any extension, renewal or replacement (or successive
extensions, renewals or replacements) in whole or in part of any Lien
referred to in clauses (1) through (13) above, so long as the principal
amount of the debt secured thereby does not exceed the principal amount
of debt so secured at the time of the extension, renewal or replacement
(except that, where an additional principal amount of debt is incurred
to provide funds for the completion of a specific project, the
additional principal amount, and any related financing costs, may be
secured by the Lien as well) and the Lien is limited to all or part of
the same property subject to the Lien so extended, renewed or replaced
(plus improvements on the property); and
(15) any Lien not permitted by clauses (1) through (14) above
securing debt which, together with the aggregate outstanding principal
amount of all other debt of the Company and its Restricted Subsidiaries
which would otherwise be subject to the foregoing restrictions and the
aggregate Value of existing Sale and Leaseback Transactions which would
be subject to the restrictions of Section 1007 but for this clause (15),
does not at any time exceed 15% of Consolidated Net Assets.
Section 10.17. Limitation on Sale and Leasebacks. The Company shall
not enter into any Sale and Leaseback Transaction involving a Principal
Property of the Company or any Restricted Subsidiary, nor permit any
Restricted Subsidiary so to do, unless either:
(1) the Company or such Restricted Subsidiary would be entitled
to incur debt, in a principal amount at least equal to the Value of such
Sale and Leaseback Transaction, which is secured by Liens on the
property to be leased (without equally and ratably securing the
outstanding Securities) because such Liens would be of such character
that no violation of any of the provisions of Section 1006 would result,
or
(2) the Company during the 180 days immediately following the
effective date of such Sale and Leaseback Transaction causes to be
applied to either (i) the voluntary retirement of Funded Debt (whether
by redemption, defeasance, repurchase, or otherwise) an amount equal to
the Value of such Sale and Leaseback Transaction, or (ii) the purchase
of other property which will constitute "Principal Property" having a
fair value, as determined by the Company, at least equal to the Value of
such Sale and Leaseback Transaction; or
(3) the Company or a Restricted Subsidiary shall deliver to the
Trustee or other applicable trustee for cancellation Securities or
Funded Debt in an aggregate principal amount at least equal to the Value
of such Sale and Leaseback Transaction.
Section 10.18. Waiver of Certain Covenants. The Company may omit in
respect of any series of Securities, in any particular instance, to comply
61
with any covenant or condition set forth in Sections 1006 and 1007, if before
or after the time for such compliance the Holders of at least a majority in
principal amount of the Securities at the time Outstanding of such series
shall, by Act of such Securityholders, either waive such compliance in such
instance or generally waive compliance with such covenant or condition, but no
such waiver shall extend to or affect such covenant or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any
such covenant or condition shall remain in full force and effect.
Section 10.19. Calculation of Original Issue Discount. The Company
shall file with the Trustee promptly at the end of each calendar year (i) a
written notice specifying the amount of original issue discount (including
daily rates and accrual periods) accrued on Outstanding Securities as of the
end of such year and (ii) such other specific information relating to such
original issue discount as may then be relevant under the Internal Revenue
Code of 1986, as amended from time to time.
ARTICLE 11. Redemption of Securities.
Section 11.11. Applicability of Article. The Company may reserve the
right to redeem and pay before Stated Maturity all or any part of the
Securities of any series, either by optional redemption, sinking or purchase
fund or analogous obligation or otherwise, by provision therefor in the form
of Security for such series established and approved pursuant to Section 202
and on such terms as are specified in such form or in the indenture
supplemental hereto with respect to Securities of such series as provided in
Section 301. Redemption of Securities of any series shall be made in
accordance with the terms of such Securities and, to the extent that this
Article does not conflict with such terms, the succeeding Sections of this
Article.
Section 11.12. Election To Redeem; Notice to Trustee. The election
of the Company to redeem any Securities redeemable at the election of the
Company shall be evidenced by, or pursuant to authority granted by, a Board
Resolution. In case of any redemption at the election of the Company, the
Company shall, at least 60 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date and of the principal amount of Securities
of such series and the Tranche (as defined in Section 1103) to be redeemed.
In the case of any redemption of Securities (i) prior to the expiration
of any restriction on such redemption provided in the terms of such securities
or elsewhere in this Indenture, or (ii) pursuant to an election of the Company
which is subject to a condition specified in the terms of such Securities, the
Company shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction or condition.
Section 11.13. Selection by Trustee of Securities To Be Redeemed. If
less than all the Securities of like tenor and terms of any series (a
"Tranche") are to be redeemed, the particular Securities to be redeemed shall
be selected not more than 60 days prior to the Redemption Date by the Trustee,
62
from the Outstanding Securities of such Tranche not previously called for
redemption, by such method as the Trustee shall deem fair and appropriate
(other than pro rata selection) and which may include provision for the
election for redemption of portions of the principal of Securities of such
Tranche of a denomination larger than the minimum authorized denomination for
Securities of that series. Unless otherwise provided in the terms of a
particular series of Securities, the portions of the principal of Securities
so selected for partial redemption shall be equal to the minimum authorized
denomination of the Securities of such series, or an integral multiple
thereof, and the principal amount which remains outstanding shall not be less
than the minimum authorized denomination for Securities of such series. If
less than all the Securities of unlike tenor and terms of a series are to be
redeemed, the particular Tranche of Securities to be redeemed shall be
selected by the Company.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Security 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 Security redeemed or to be redeemed only in part,
to the portion of the principal of such Security which has been or is to be
redeemed.
Section 11.14. Notice of Redemption. Notice of redemption shall be
given by first-class mail, postage prepaid, mailed not less than 30 nor more
than 60 days prior to the Redemption Date, to each holder of 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) the CUSIP number;
(4) if less than all Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption,
the respective principal amounts) of the Securities to be redeemed, from
the Holder to whom the notice is given;
(5) that on the Redemption Date the Redemption Price will become
due and payable upon each such Security, and that interest, if any,
thereon shall cease to accrue from and after said date;
(6) the place where such Securities are to be surrendered for
payment of the Redemption Price, which shall be the office or agency of
the Company in the Place of Payment;
63
(7) that the redemption is on account of a sinking or purchase
fund, or other analogous obligation, if that be the case; and
(8) that, if less than the entire principal amount of any
security is being redeemed, a replacement security for the remaining
principal balance shall be issued to the Holder.
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.
Section 11.15. Deposit of Redemption Price. On or prior to 10:00
a.m., New York City time, on any Redemption Date, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company is acting as its
own Paying Agent, segregate and hold in trust as provided in Section 1003) an
amount of money sufficient to pay the Redemption Price of all the Securities
which are to be redeemed on that date; provided that such amount shall be so
deposited with the Trustee or Paying Agent in time for the Trustee or Paying
Agent, as the case may be, to pay such Redemption Price in accordance with its
normal procedures.
Section 11.16. Securities Payable on Redemption Date. Notice of
Redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified and from and after such date (unless the Company shall
default in the payment of the Redemption Price) such Securities shall cease to
bear interest. Upon surrender of such Securities for redemption in accordance
with the notice, such Securities shall be paid by the Company at the
Redemption Price. Unless otherwise provided with respect to such Securities
pursuant to Section 301, installments of interest the Stated Maturity of which
is on or prior to the Redemption Date shall be payable to the Holders of such
securities registered as such on the relevant Regular Record Dates according
to their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid, bear
interest from the Redemption Date at the rate borne by the Security, or as
otherwise provided in such Security.
Section 11.17. Securities Redeemed in Part. Any Security which is to
be redeemed only in part shall be surrendered at the office or agency of the
Company in the Place of Payment with respect to that series (with, if the
Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee
duly executed by, the Holder thereof or his attorney duly authorized in
writing) and the Company shall execute and the Trustee shall authenticate and
make available for delivery to the Holder of such Security without service
charge, a new Security or Securities of the same series and Stated Maturity
and of like tenor and terms, 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.
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Section 11.18. Provisions with Respect to any Sinking Funds. Unless
the form or terms of any series of Securities shall provide otherwise, in lieu
of making all or any part of any mandatory sinking fund payment with respect
to such series of Securities in cash, the Company may at its option (1)
deliver to the Trustee for cancellation any Securities of such series
theretofore acquired by the Company, or (2) receive credit for any Securities
of such series (not previously so credited) acquired by the Company (including
by way of optional redemption (pursuant to the sinking fund or otherwise) but
not by way of mandatory sinking fund redemption) and theretofore delivered to
the Trustee for cancellation, and if it does so then (i) Securities so
delivered or credited shall be credited at the applicable sinking fund
Redemption Price with respect to Securities of such series, and (ii) on or
before the 60th day next preceding each sinking fund Redemption Date with
respect to such series of Securities, the Company will deliver to the Trustee
(A) an Officers' Certificate specifying the portions of such sinking fund
payment to be satisfied by payment of cash and by delivery or credit of
Securities of such series acquired by the Company, and (B) such Securities, to
the extent not previously surrendered. Such Officers' Certificate shall also
state the basis for such credit and that the Securities for which the Company
elects to receive credit have not been previously so credited and were not
acquired by the Company through operation of the mandatory sinking fund, if
any, provided with respect to such Securities and shall also state that no
Event of Default with respect to Securities of such series has occurred and is
continuing. All Securities so delivered to the Trustee shall be canceled by
the Trustee and no Securities shall be authenticated in lieu thereof.
If the sinking fund payment or payments (mandatory or optional) with
respect to any series of Securities made in cash plus any unused balance of
any preceding sinking fund payments with respect to Securities of such series
made in cash shall exceed $50,000 (or a lesser sum if the Company shall so
request), unless otherwise provided by the terms of such series of Securities,
that cash shall be applied by the Trustee on the sinking fund Redemption Date
with respect to Securities of such series next following the date of such
payment to the redemption of Securities of such series at the applicable
sinking fund Redemption Price with respect to Securities of such series,
together with accrued interest, if any, to the date fixed for redemption, with
the effect provided in Section 1106. The Trustee shall select, in the manner
provided in Section 1103, for redemption on such sinking fund Redemption Date
a sufficient principal amount of Securities of such series to utilize that
cash and shall thereupon cause notice of redemption of the Securities of such
series for the sinking fund to be given in the manner provided in section 1104
(and with the effect provided in Section 1106) for the redemption of
Securities in part at the option of the Company. Any sinking fund moneys not
so applied or allocated by the Trustee to the redemption of Securities of such
series shall be added to the next cash sinking fund payment with respect to
Securities of such series received by the Trustee and, together with such
payment, shall be applied in accordance with the provisions of this Section
1108. Any and all sinking fund moneys with respect to Securities of any
series held by the Trustee at the Maturity of Securities of such series, and
not held for the payment or redemption of particular Securities of such
series, shall be applied by the Trustee, together with other moneys, if
65
necessary, to be deposited sufficient for the purpose, to the payment of the
principal of the Securities of such series at Maturity.
Prior to each sinking fund Redemption Date provided with respect to
Securities of any series, the Company shall deposit with the Trustee cash in a
sum equal to all accrued interest, if any, to the date fixed for redemption on
Securities to be redeemed on such sinking fund Redemption Date pursuant to
this Section 1108; provided that such cash shall be so deposited with the
Trustee in time for the Trustee to make the payment of such accrued interest
in accordance with its normal procedures.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the day and year first above written.
THE NEIMAN MARCUS GROUP, INC.
By: s/ Richard A. Smith
Name: Richard A. Smith
Title: Chairman and Chief Executive Officer
THE BANK OF NEW YORK
as Trustee,
By: s/ Mary Jane Schmalzel
Name: Mary Jane Schmalzel
Title: Vice President
67