___________________________________________________________________________
___________________________________________________________________________
COLUMBIA HEALTHCARE CORPORATION
TO
THE FIRST NATIONAL BANK OF CHICAGO,
TRUSTEE
______________________
______________________
INDENTURE
DATED AS OF DECEMBER 15, 1993
______________________
______________________
DEBT SECURITIES
___________________________________________________________________________
___________________________________________________________________________
TABLE OF CONTENTS
Page
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION . . . . . . . . 1
SECTION 101. DEFINITIONS. . . . . . . . . . . . . . . . 1
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS. . . 12
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE. . 13
SECTION 104. NOTICES, ETC., TO TRUSTEE AND COMPANY. . . 13
SECTION 105. NOTICE TO HOLDERS; WAIVER. . . . . . . . . 14
SECTION 106. CONFLICT WITH TRUST INDENTURE ACT. . . . . 14
SECTION 107. EFFECT OF HEADINGS AND TABLE OF
CONTENTS. . . . . . . . . . . . . . . 15
SECTION 108. SUCCESSORS AND ASSIGNS. . . . . . . . . . 15
SECTION 109. SEPARABILITY CLAUSE. . . . . . . . . . . . 15
SECTION 110. BENEFITS OF INDENTURE. . . . . . . . . . . 15
SECTION 111. GOVERNING LAW. . . . . . . . . . . . . . . 15
SECTION 112. LEGAL HOLIDAYS . . . . . . . . . . . . . . 15
SECTION 113. NO SECURITY INTEREST CREATED. . . . . . . 16
SECTION 114. LIABILITY SOLELY CORPORATE. . . . . . . . 16
SECTION 115. COUNTERPARTS. . . . . . . . . . . . . . . 16
ARTICLE TWO
DEBT SECURITY FORMS . . . . . . . . . 16
SECTION 201. FORMS GENERALLY. . . . . . . . . . . . . . 16
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF
AUTHENTICATION . . . . . . . . . . . . 17
ARTICLE THREE
THE DEBT SECURITIES . . . . . . . . . 18
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES. . . 18
SECTION 302. DENOMINATIONS. . . . . . . . . . . . . . . 21
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND
DATING . . . . . . . . . . . . . . . . 21
SECTION 304. TEMPORARY DEBT SECURITIES; GLOBAL NOTES. . 23
SECTION 305. REGISTRATION, TRANSFER AND EXCHANGE. . . . 25
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN
DEBT SECURITIES. . . . . . . . . . . . 26
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS
PRESERVED. . . . . . . . . . . . . . . 26
SECTION 308. CANCELLATION . . . . . . . . . . . . . . . 28
SECTION 309. COMPUTATION OF INTEREST. . . . . . . . . . 28
SECTION 310. CURRENCY OF PAYMENTS IN RESPECT OF DEBT
SECURITIES . . . . . . . . . . . . . . 28
SECTION 311. JUDGMENTS. . . . . . . . . . . . . . . . . 32
i
ARTICLE FOUR
SATISFACTION AND DISCHARGE . . . . . . . 32
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE. . 32
SECTION 402. APPLICATION OF TRUST MONEY. . . . . . . . 34
ARTICLE FIVE
REMEDIES . . . . . . . . . . . . 34
SECTION 501. EVENTS OF DEFAULT. . . . . . . . . . . . . 34
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND
ANNULMENT. . . . . . . . . . . . . . . 35
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR
ENFORCEMENT BY TRUSTEE. . . . . . . . 36
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM. . . . . 37
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT
POSSESSION OF DEBT SECURITIES. . . . . 38
SECTION 506. APPLICATION OF MONEY COLLECTED . . . . . . 38
SECTION 507. LIMITATION ON SUITS. . . . . . . . . . . . 39
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE
PRINCIPAL, PREMIUM AND INTEREST. . . . 39
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES . . . . 40
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE. . . . . . 40
SECTION 511. DELAY OR OMISSION NOT WAIVER. . . . . . . 40
SECTION 512. CONTROL BY HOLDERS. . . . . . . . . . . . 40
SECTION 513. WAIVER OF PAST DEFAULTS. . . . . . . . . . 41
SECTION 514. UNDERTAKING FOR COSTS. . . . . . . . . . . 41
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS. . . . . 42
ARTICLE SIX
THE TRUSTEE . . . . . . . . . . . 42
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES. . . . 42
SECTION 602. NOTICE OF DEFAULT. . . . . . . . . . . . . 43
SECTION 603. CERTAIN RIGHTS OF TRUSTEE. . . . . . . . . 44
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE
OF DEBT SECURITIES . . . . . . . . . . 45
SECTION 605. MAY HOLD DEBT SECURITIES. . . . . . . . . 45
SECTION 606. MONEY HELD IN TRUST. . . . . . . . . . . . 45
SECTION 607. COMPENSATION, INDEMNIFICATION AND
REIMBURSEMENT. . . . . . . . . . . . . 45
SECTION 608. RESIGNATION AND REMOVAL; APPOINTMENT OF
SUCCESSOR. . . . . . . . . . . . . . . 46
SECTION 609. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. . 48
SECTION 610. MERGER, CONVERSION, CONSOLIDATION OR
SUCCESSION TO BUSINESS . . . . . . . . 49
SECTION 611. APPOINTMENT OF AUTHENTICATING AGENT. . . . 50
SECTION 612. PREFERENTIAL COLLECTION OF CLAIMS
AGAINST COMPANY . . . . . . . . . . . 51
ii
ARTICLE SEVEN
CONCERNING THE HOLDERS . . . . . . . . 52
SECTION 701. ACTS OF HOLDERS. . . . . . . . . . . . . . 52
SECTION 702. PROOF OF OWNERSHIP; PROOF OF EXECUTION OF
INSTRUMENTS BY HOLDERS. . . . . . . . 52
SECTION 703. PERSONS DEEMED OWNERS. . . . . . . . . . . 53
SECTION 704. REVOCATION OF CONSENTS; FUTURE HOLDERS
BOUND. . . . . . . . . . . . . . . . . 53
ARTICLE EIGHT
HOLDERS' MEETINGS . . . . . . . . . . 53
SECTION 801. PURPOSES OF MEETINGS. . . . . . . . . . . 53
SECTION 802. CALL OF MEETINGS BY TRUSTEE. . . . . . . . 54
SECTION 803. CALL OF MEETINGS BY COMPANY OR HOLDERS. . 54
SECTION 804. QUALIFICATIONS FOR VOTING. . . . . . . . . 54
SECTION 805. REGULATIONS. . . . . . . . . . . . . . . . 55
SECTION 806. VOTING . . . . . . . . . . . . . . . . . . 55
SECTION 807. NO DELAY OF RIGHTS BY MEETING. . . . . . . 56
ARTICLE NINE
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE . 56
SECTION 901. COMPANY MAY CONSOLIDATE, ETC., ONLY ON
CERTAIN TERMS. . . . . . . . . . . . . 56
SECTION 902. SUCCESSOR CORPORATION SUBSTITUTED. . . . . 57
ARTICLE TEN
SUPPLEMENTAL INDENTURES . . . . . . . . 57
SECTION 1001. SUPPLEMENTAL INDENTURES WITHOUT CONSENT
OF HOLDERS. . . . . . . . . . . . . . 57
SECTION 1002. SUPPLEMENTAL INDENTURES WITH CONSENT OF
HOLDERS . . . . . . . . . . . . . . . 58
SECTION 1003. EXECUTION OF SUPPLEMENTAL INDENTURES. . . 59
SECTION 1004. EFFECT OF SUPPLEMENTAL INDENTURES. . . . 60
SECTION 1005. CONFORMITY WITH TRUST INDENTURE ACT. . . 60
SECTION 1006. REFERENCE IN DEBT SECURITIES TO
SUPPLEMENTAL INDENTURES. . . . . . . 60
SECTION 1007. NOTICE OF SUPPLEMENTAL INDENTURE. . . . . 60
ARTICLE ELEVEN
COVENANTS . . . . . . . . . . . . 60
SECTION 1101. PAYMENT OF PRINCIPAL, PREMIUM AND
INTEREST. . . . . . . . . . . . . . . 60
SECTION 1102. MAINTENANCE OF OFFICE OR AGENCY. . . . . 61
SECTION 1103. MONEY FOR DEBT SECURITIES; PAYMENTS TO
BE HELD IN TRUST. . . . . . . . . . . 61
SECTION 1104. CORPORATE EXISTENCE. . . . . . . . . . . 62
SECTION 1105. LIMITATION ON MORTGAGES. . . . . . . . . 62
iii
SECTION 1106. LIMITATION ON SALE AND LEASE-BACK. . . . 64
SECTION 1107. LIMITATION ON INCURRENCE OF INDEBTEDNESS
OR ISSUANCE OF PREFERRED STOCK BY
RESTRICTED SUBSIDIARIES . . . . . . . 65
SECTION 1108. EXEMPTED TRANSACTIONS. . . . . . . . . . 66
SECTION 1109. OFFICERS' CERTIFICATE AS TO DEFAULT. . . 66
ARTICLE TWELVE
REDEMPTION OF DEBT SECURITIES. . . . . . . 67
SECTION 1201. APPLICABILITY OF ARTICLE. . . . . . . . . 67
SECTION 1202. ELECTION TO REDEEM; NOTICE TO TRUSTEE. . 67
SECTION 1203. SELECTION BY TRUSTEE OF DEBT SECURITIES
TO BE REDEEMED. . . . . . . . . . . . 67
SECTION 1204. NOTICE OF REDEMPTION. . . . . . . . . . . 68
SECTION 1205. DEPOSIT OF REDEMPTION PRICE. . . . . . . 68
SECTION 1206. DEBT SECURITIES PAYABLE ON REDEMPTION
DATE. . . . . . . . . . . . . . . . . 69
SECTION 1207. DEBT SECURITIES REDEEMED IN PART. . . . . 69
ARTICLE THIRTEEN
SINKING FUNDS . . . . . . . . . . . 70
SECTION 1301. APPLICABILITY OF ARTICLE. . . . . . . . . 70
SECTION 1302. SATISFACTION OF MANDATORY SINKING FUND
PAYMENTS WITH DEBT SECURITIES . . . . 70
SECTION 1303. REDEMPTION OF DEBT SECURITIES FOR
SINKING FUND. . . . . . . . . . . . . 70
ARTICLE FOURTEEN
DEFEASANCE . . . . . . . . . . . 72
SECTION 1401. APPLICABILITY OF ARTICLE. . . . . . . . . 72
SECTION 1402. DEFEASANCE UPON DEPOSIT OF MONEYS OR
U.S. GOVERNMENT OBLIGATIONS . . . . . 72
SECTION 1403. DEPOSIT MONEYS AND U.S. GOVERNMENT
OBLIGATIONS TO BE HELD IN TRUST . . . 74
SECTION 1404. REPAYMENT TO COMPANY. . . . . . . . . . . 74
iv
INDENTURE dated as of December 15, 1993, between
COLUMBIA HEALTHCARE CORPORATION, a Delaware corporation
(hereinafter called the "Company"), having its principal
executive office at 201 West Main Street, Louisville, Kentucky
40202 and The First National Bank of Chicago (hereinafter called
the "Trustee"), having its Corporate Trust Office at One First
National Plaza, Suite 0126, Chicago, Illinois 60670-0126.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and
delivery of this Indenture to provide for the issuance from time
to time of its debentures, notes, bonds or other evidences of
indebtedness (herein generally called the "Debt Securities"), to
be issued in one or more series, as in this Indenture provided.
All things necessary have been done to make this
Indenture a valid agreement of the Company, in accordance with
its terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the
purchase of Debt Securities by the Holders thereof, it is
mutually covenanted and agreed, for the equal and proportionate
benefit of all Holders of Debt Securities or of Debt Securities
of any series, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the
meanings assigned to them in this Article, and include the
plural as well as the singular;
(2) all other terms used herein which are defined in
the Trust Indenture Act, either directly or by reference
therein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with
generally accepted accounting principles, and, 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
(4) the words "herein," "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other
subdivision.
Certain terms, used principally in ARTICLE THREE or
ARTICLE SIX, are defined in those respective Articles.
"Act" when used with respect to any Holder has the
meaning specified in SECTION 701.
"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.
"Affiliated Corporation" means any corporation that is
controlled by the Company but which is not a Subsidiary of the
Company pursuant to the definition of the term "Subsidiary."
"Attributable Debt" means as of the date of
determination, (i) as to any capitalized lease obligations, the
indebtedness carried on the balance sheet in accordance with
generally accepted accounting principles and (ii) as to any
operating leases, the total net amount of rent required to be
paid under such leases during the remaining term thereof,
discounted at the rate of 1% per annum over the weighted average
yield to Stated Maturity of the Outstanding Debt Securities
compounded semi-annually. The net amount of rent required to be
paid under any such lease for any such period shall be the
aggregate amount of the rent payable by the lessee with respect
to such period after excluding amounts required to be paid on
account of maintenance and repairs, insurance, taxes,
assessments, water rates and similar charges. The net amount of
rent required to be paid shall also exclude contingent rent
payments that are based on factors, such as revenue growth, that
are not part of required minimum rent payments. In the case of
any lease which is terminable by the lessee upon the payment of a
penalty, such net amount shall also include the amount of such
penalty, but no rent shall be considered as required to be paid
under such lease subsequent to the first date upon which it may
be so terminated. "Attributable Debt" does not include any
obligation to make payments arising from the transfer of tax
benefits under the United States Economic Recovery Tax Act of
1981 to the extent such obligation is conditioned upon receipt of
payments from another Person.
"Authenticating Agent" has the meaning specified in
SECTION 611.
"Board of Directors" means either the board of
directors of the Company, or any committee of that board duly
authorized to act in respect hereof.
2
"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" when used with respect to any Place of
Payment or any other particular location referred to in this
Indenture or in the Debt Securities means any day that is not a
Saturday, a Sunday or a legal holiday or a day on which banking
institutions or trust companies in that Place of Payment or other
location are authorized or obligated by law to close, except as
otherwise specified pursuant to SECTION 301.
"Code" means the Internal Revenue Code of 1986, as
amended and as in effect on the date hereof.
"Commission" means the Securities and Exchange
Commission, as from time to time constituted, created under the
Securities Exchange Act of 1934, as amended, or if at any time
after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the
Trust Indenture Act, then the body performing such duties on such
date.
"Company" means the Person named as the "Company" in
the first paragraph of this instrument until a successor Person
shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter "Company" shall mean such
successor Person.
"Company Request" and "Company Order" mean,
respectively, a written request or order signed in the name of
the Company by the Chairman, a Vice Chairman, the President, the
Chief Financial Officer or a Vice President and by the Treasurer,
an Assistant Treasurer, the Controller, the Director of Finance,
the Secretary or an Assistant Secretary of the Company, and
delivered to the Trustee.
"Component Currency" has the meaning specified in
SECTION 310(H).
"Consolidated Net Tangible Assets" means the total
amount of assets (less applicable reserves and other properly
deductible items) after deducting therefrom (a) all current
liabilities as disclosed on the consolidated balance sheet of the
Company (excluding any thereof which are by their terms
extendible or renewable at the option of the obligor thereon to a
time more than 12 months after the time as of which the amount
thereof is being computed and further excluding any deferred
income taxes that are included in current liabilities) and (b)
all goodwill, trade names, trademarks, patents, unamortized debt
discount and expense and other like intangible assets, all as set
forth on the most recent consolidated balance sheet of the
Company and computed in accordance with generally accepted
accounting principles.
"Consolidated Stockholders' Equity" means the total
stockholders' equity of the Company and its Consolidated
Subsidiaries, which under generally accepted accounting
principles would appear on a consolidated balance sheet of the
Company and its Subsidiaries, excluding the separate component of
stockholders' equity attributable to foreign currency
3
translation adjustments pursuant to "Statement of Financial
Accounting Standards No. 52 -- Foreign Currency Translation"
or any successor provision or principle of generally accepted
accounting principles.
"Consolidated Subsidiaries" means those Subsidiaries
that are consolidated with the Company for financial reporting
purposes.
"Conversion Date" has the meaning specified in SECTION
310(D).
"Conversion Event" means the cessation of (i) a Foreign
Currency to be used both by the government of the country which
issued such Currency and for the settlement of transactions by
public institutions of or within the international banking
community, (ii) the ECU to be used both within the European
Monetary System and for the settlement of transactions by public
institutions of or within the European communities, or (iii) any
Currency unit other than the ECU to be used for the purposes for
which it was established.
"Corporate Trust Office" means the principal corporate
trust office of the Trustee at which at any particular time its
corporate trust business shall be administered, which office at
the date of execution of this instrument is located at The First
National Bank of Chicago, One First National Plaza, Suite 0126,
Chicago, Illinois 60670-0126, Attention: Corporate Trust Services
Division.
"Corporation" includes corporations, associations,
companies and business trusts.
"Currency" means Dollars or Foreign Currency.
"Currency Determination Agent" means the New York
Clearing House bank, if any, from time to time selected by the
Company for purposes of SECTION 310; provided that such agent
shall accept such appointment in writing and the terms of such
appointment shall be acceptable to the Company and shall, in the
opinion of the Company at the time of such appointment, require
such agent to make the determinations required by this Indenture
by a method consistent with the method provided in this Indenture
for the making of such decision or determination.
"Debt" means (i) indebtedness for borrowed money by the
Company or a Restricted Subsidiary, (ii) indebtedness of the
Company or a Restricted Subsidiary (including capitalized lease
obligations) for the deferred payment of the purchase price of
property or assets purchased, and (iii) guarantees or other
contingent obligations of the Company or a Restricted Subsidiary
of or for borrowed money of another person or indebtedness of
another person for the deferred payment of the purchase price of
property or assets purchased (other than indebtedness owed by a
Restricted Subsidiary to the Company, by a Restricted Subsidiary
to a Subsidiary or by the Company to a Subsidiary).
4
"Debt Securities" has the meaning stated in the first
recital of this Indenture and more particularly means any Debt
Securities (including any Global Notes) authenticated and
delivered under this Indenture.
"Defaulted Interest" has the meaning specified in
SECTION 307.
"Depositary" means a clearing agency registered under
the Securities Exchange Act of 1934, as amended, or any successor
thereto, which shall in either case be designated by the Company
pursuant to SECTION 301 until a successor Depositary shall have
become such pursuant to the applicable provisions of this
Indenture, and thereafter "Depositary" shall mean or include each
Person who is then a Depositary hereunder, and if at any time
there is more than one such Person, "Depositary" as used with
respect to the Debt Securities of any series shall mean the
Depositary with respect to the Debt Securities of that series.
"Discharged" has the meaning specified in SECTION 1402.
"Discount Security" means any Debt Security that is
issued with "original issue discount" within the meaning of
Section 1273(a) of the Code and the regulations thereunder.
"Dollar" or "$" means a dollar or other equivalent unit
in such coin or currency of the United States of America as at
the time of payment is legal tender for the payment of public and
private debts.
"Dollar Equivalent of the Currency Unit" has the
meaning specified in SECTION 310(G).
"Dollar Equivalent of the Foreign Currency" has the
meaning specified in SECTION 310(F).
"ECU" means the European Currency Unit as defined and
revised from time to time by the Council of the European
Communities.
"Election Date" has the meaning specified in SECTION
310(H).
"Event of Default" has the meaning specified in SECTION
501.
"Exchange Rate Officer's Certificate" means a telex or
a certificate setting forth (i) the applicable Market Exchange
Rate and (ii) the Dollar, Foreign Currency or Currency unit
amounts of principal, premium, if any, and any interest
respectively (on an aggregate basis and on the basis of a Debt
Security having the lowest denomination principal amount pursuant
to SECTION 302 in the relevant Currency or Currency unit),
payable on the basis of such Market Exchange Rate sent (in the
case of a telex) or signed (in the case of a certificate) by the
Chief Financial Officer, a Vice President, the Treasurer or any
Assistant Treasurer of the Company.
5
"Fixed Rate Security" means a Debt Security that
provides for the payment of interest at a fixed rate.
"Floating Rate Security" means a Debt Security that
provides for the payment of interest at a variable rate
determined periodically by reference to an interest rate index or
any other index specified pursuant to SECTION 301.
"Foreign Currency" means a currency issued by the
government of any country other than the United States or a
composite currency or currency unit the value of which is
determined by reference to the values of the currencies of any
group of countries.
"Funded Debt" means any indebtedness for money
borrowed, created, issued, incurred, assumed or guaranteed that
would, in accordance with generally accepted accounting
principles, be classified as long-term debt, but in any event
including all indebtedness for money borrowed, whether secured or
unsecured, maturing more than one year, or extendible at the
option of the obligor to a date more than one year, after the
date of determination thereof (excluding any amount thereof
included in current liabilities).
"Global Note" means a Debt Security evidencing all or
part of a series of Debt Securities that is executed by the
Company and authenticated and delivered to the Depositary or
pursuant to the Depositary's instructions, all in accordance with
this Indenture and pursuant to a Company order, which shall be
registered in the name of the Depositary or its nominee and that
shall represent the amount of uncertificated securities as
specified therein.
"Holder" means a person in whose name a Debt Security
of any series is registered in the Security Register.
"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, unless the
context otherwise requires, shall include the terms of a
particular series of Debt Securities as established pursuant to
SECTION 301.
"Independent" when used with respect to any specified
Person means such a Person who (i) is in fact independent with
respect to the Company, (ii) does not have any direct financial
interest or any material indirect financial interest in the
Company or in any other obligor upon the Debt Securities or in
any Affiliate of the Company or of such other obligor, and (iii)
is not connected with the Company or such other obligor or any
Affiliate of the Company or of such other obligor, as an officer,
employee, promoter, underwriter, trustee, partner, director or
person performing similar functions.
The term "Interest", when used with respect to a
Discount Security which by its terms bears interest only after
Maturity, means interest payable after Maturity.
"Interest Payment Date" with respect to any Debt
Security means the Stated Maturity of an installment of interest
on such Debt Security.
6
"Joint Venture Subsidiary" means a Subsidiary of the
Company as of the date of the Indenture of which the Company,
directly or indirectly, owns less than 100% of the voting
securities entitling the holders thereof to elect a majority of
the directors (or, in the case of a partnership, of which the
Company, directly or indirectly, owns less than 100% of the
general partnership interests therein).
"Market Exchange Rate" means (i) for any conversion
involving a Currency unit on the one hand and Dollars or any
Foreign Currency on the other, the exchange rate between the
relevant Currency unit and Dollars or such Foreign Currency
calculated by the method specified pursuant to SECTION 301 for
the securities of the relevant series, (ii) for any conversion of
Dollars into any Foreign Currency, the noon (New York City time)
buying rate for such Foreign Currency for cable transfers quoted
in New York City as certified for customs purposes by the Federal
Reserve Bank of New York, and (iii) for any conversion of one
Foreign currency into Dollars or another Foreign Currency, the
spot rate at noon local time in the relevant market at which, in
accordance with normal banking procedures, the Dollars or Foreign
Currency into which conversion is being made could be purchased
with the Foreign Currency from which conversion is being made
from major banks located in New York City, London or any other
principal market for Dollars or such purchased Foreign Currency.
In the event of the unavailability of any of the exchange rates
provided for in the foregoing clauses (i), (ii) and (iii) the
Currency Determination Agent shall use, in its sole discretion
and without liability on its part, such quotation of the Federal
Reserve Bank of New York as of the most recent available date, or
quotations from one or more major banks in New York City, London
or any other principal market for such Currency or Currency unit
in question, or such other quotations as the Currency
Determination Agent shall deem appropriate. Unless otherwise
specified by the Currency Determination Agent if there is more
than one market for dealing in any currency or Currency unit by
reason of foreign exchange regulations or otherwise, the market
to be used in respect of such Currency or Currency unit shall be
that upon which a nonresident issuer of securities designated in
such Currency or Currency unit would purchase such Currency or
Currency unit in order to make payments in respect of such
securities.
"Maturity" when used with respect to any Debt Security
means the date on which the principal of such Debt Security or an
installment of principal becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration
of acceleration, call for redemption, repayment at the option of
the Holder thereof or otherwise.
"Mortgages" means mortgages, liens, pledges or other
encumbrances.
"Officers' Certificate" means a certificate signed by
the Chairman, a Vice Chairman, the President, the Chief Financial
Officer or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Controller, the Secretary or an Assistant
Secretary of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of
counsel, who may be counsel to the Company (including an employee
of the Company) and who shall be reasonably satisfactory to the
Trustee, which is delivered to the Trustee.
7
"Outstanding" when used with respect to Debt
Securities, means, as of the date of determination, all Debt
Securities theretofore authenticated and delivered under this
Indenture, except:
(i) Debt Securities theretofore canceled by the
Trustee or delivered to the Trustee for cancellation;
(ii) Debt 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 Debt Securities and any
coupons thereto appertaining; PROVIDED, HOWEVER, that if
such Debt 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) Debt Securities which have been surrendered
pursuant to SECTION 306 or in exchange for or in lieu of
which other Debt Securities have been authenticated and
delivered pursuant to this Indenture, other than any such
Debt Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such
Debt Securities are held by a BONA FIDE purchaser in whose
hands such Debt Securities are valid obligations of the
Company;
PROVIDED, HOWEVER, that in determining whether the Holders of the
requisite principal amount of Debt Securities outstanding have
performed any Act hereunder, Debt Securities owned by the Company
or any other obligor upon the Debt Securities or any Affiliate of
the Company or of such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining whether
the Trustee shall be protected in relying upon any such Act, only
Debt Securities that the Trustee knows to be so owned shall be so
disregarded. Debt Securities so owned that have been pledged in
good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's
right to act with respect to such Debt Securities and that the
pledgee is not the Company or any other obligor upon the Debt
Securities or any Affiliate of the Company or of such other
obligor. In determining whether the Holders of the requisite
principal amount of Outstanding Debt Securities have performed
any Act hereunder, the principal amount of a Discount Security
that shall be deemed to be Outstanding for such purpose shall be
the amount of the principal thereof that would be due and payable
as of the date of such determination upon a declaration of
acceleration of the Maturity thereof pursuant to SECTION 502 and
the principal amount of a Debt Security denominated in a Foreign
Currency that shall be deemed to be Outstanding for such purpose
shall be the amount calculated pursuant to SECTION 310(j).
"Overdue Rate," when used with respect to any series of
the Debt Securities, means the rate designated as such in or
pursuant to the Board Resolution or the supplemental indenture,
as the case may be, relating to such series as contemplated by
SECTION 301.
8
"Paying Agent" means any Person authorized by the
Company to pay the principal of (and premium, if any) or interest
on any Debt Securities on behalf of the Company.
"Permitted Subsidiary Refinancing Debt" means Debt of
any Subsidiary, the proceeds of which are used to renew, extend,
refinance or refund outstanding Debt of such Subsidiary, PROVIDED
that such Debt is scheduled to mature no earlier than the Debt
being renewed, extended, refinanced or refunded; PROVIDED,
FURTHER, that such Debt shall be Permitted Subsidiary Refinancing
Debt only to the extent that the aggregate principal amount of
such Debt (or, if such Debt is issued at a price less than the
principal amount thereof, the aggregate amount of gross proceeds
therefrom) does not exceed the aggregate principal amount then
outstanding under the Debt being renewed, extended, refinanced or
refunded (or if the Debt being renewed, extended, refinanced or
refunded, was issued at a price less than the principal amount
thereof, then not in excess of the amount of liability in respect
thereof determined in accordance with generally accepted
accounting principles.)
"Person" means any individual, corporation,
partnership, joint venture, association, joint-stock company,
trust, estate, unincorporated organization or government or any
agency or political subdivision thereof.
"Place of Payment" when used with respect to the Debt
Securities of any series means the place or places where the
principal of (and premium, if any) and interest on the Debt
Securities of that series are payable as specified pursuant to
SECTION 301.
"Predecessor Security" of any particular Debt Security
means every previous Debt Security evidencing all or a portion of
the same debt as that evidenced by such particular Debt Security;
and, for the purposes of this definition, any Debt Security
authenticated and delivered under SECTION 306 in lieu of a
mutilated, lost, destroyed or stolen Debt Security or a Debt
Security to which a mutilated, lost, destroyed or stolen Coupon
appertains shall be deemed to evidence the same debt as the
mutilated, lost, destroyed or stolen Debt Security or the Debt
Security to which the mutilated, lost, destroyed or stolen Coupon
appertains, as the case may be.
"Preferred Stock" of any Person means any capital stock
of such Person which by its terms or by the terms of any security
into which it is convertible or exchangeable is preferred as to
the payment of dividends or upon liquidation to any class of the
common stock of such Person or which matures or is mandatorily
redeemable at the option of the holder thereof, in whole or in
part, on or prior to the maturity date of any Outstanding Debt
Securities.
"Principal Property" means each acute care hospital
providing general medical and surgical services (excluding
equipment, personal property and hospitals that primarily provide
specialty medical services, such as psychiatric and obstetrical
and gynecological services) owned solely by the Company and/or
one or more of its Subsidiaries and located in the United States
of America.
9
"Redemption Date" means the date fixed for redemption
of any Debt Security pursuant to this Indenture which, in the
case of a Floating Rate Security, unless otherwise specified
pursuant to SECTION 301, shall be an Interest Payment Date only.
"Redemption Price" means, in the case of a Discount
Security, the amount of the principal thereof that would be due
and payable as of the Redemption Date upon a declaration of
acceleration of the maturity thereof pursuant to SECTION 502, and
in the case of any other Debt Security, the principal amount
thereof, plus, in each case, premium, if any, and accrued and
unpaid interest, if any, to the Redemption Date.
"Regular Record Date" for the interest payable on the
Debt Securities of any series on any Interest Payment Date means
the date specified for the purpose pursuant to SECTION 301 for
such Interest Payment Date.
"Responsible Officer" when used with respect to the
Trustee means any Vice President, the Secretary, any Assistant
Secretary, any Trust Officer or Assistant 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 (a) any Subsidiary other
than an Unrestricted Subsidiary and (b) any Subsidiary which was
an Unrestricted Subsidiary but which, subsequent to the date
hereof, is designated by the Company (by Board Resolution) to be
a Restricted Subsidiary; PROVIDED, HOWEVER, that the Company may
not designate any such Subsidiary to be a Restricted Subsidiary
if the Company would thereby breach any covenant or agreement
contained in the Indenture (on the assumption that any
transaction to which such Subsidiary was a party at the time of
such designation and which would have given rise to Debt or
Preferred Stock or constituted a Sale and Leaseback Transaction
at the time it was entered into had such Subsidiary then been a
Restricted Subsidiary was entered into at the time of such
designation).
"Security Register" and "Security Registrar" have the
respective meanings specified in SECTION 305(A).
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to SECTION
307.
"Specified Amount" has the meaning specified in SECTION
310(H).
"Stated Maturity" when used with respect to any Debt
Security or any installment of principal thereof or premium
thereon or interest thereon means the date specified in such Debt
Security as the date on which the principal of such Debt Security
or such installment of principal, premium or interest is due and
payable.
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"Subsidiary" means (i) any corporation of which at
least a majority of the outstanding stock having by the terms
thereof ordinary voting power to elect a majority of the
directors of such corporation, irrespective of whether or not at
the time stock of any other class or classes of such corporation
shall have or might have voting power by reason of the happening
of any contingency, is at the time, directly or indirectly, owned
or controlled by the Company or by one or more Subsidiaries
thereof, or by the Company and one or more Subsidiaries or (ii)
any partnership or joint venture of which at least a majority of
the equity ownership, whether in the form of membership, general,
special or limited partnership interests or otherwise, is
directly or indirectly owned or controlled by the Company or by
one or more Subsidiaries thereof, or by the Company and one or
more Subsidiaries; PROVIDED, HOWEVER, that said term shall not
include any corporation or partnership controlled by the Company
(herein referred to as an "Affiliated Entity") which:
(a) does not transact any substantial portion of its
business or regularly maintain any substantial portion of
its operating assets within the continental limits of the
United States of America;
(b) is principally engaged in the business of
financing (including, without limitation, the purchase,
holding, sale or discounting of or lending upon any notes,
contracts, leases or other forms of obligations) the sale or
lease of merchandise, equipment or services (1) by the
Company, or (2) by a Subsidiary (whether such sales or
leases have been made before or after the date when such
corporation or partnership became a Subsidiary), or (3) by
another Affiliated Entity, or (4) by any corporation or
partnership prior to the time when substantially all its
assets have heretofore been or shall hereafter have been
acquired by the Company;
(c) is principally engaged in the business of owning,
leasing, dealing in or developing real property;
(d) is principally engaged in the holding of stock in,
and/or the financing of operations of, an Affiliated Entity;
or
(e) is principally engaged in the business of (i)
offering health benefit products or (ii) insuring against
professional and general liability risks of the Company.
"Trust Indenture Act" means the Trust Indenture Act of
1939 as in force at the date as of which this instrument was
executed, except as provided in SECTION 1005.
"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 or include
each Person who is then a Trustee hereunder, and if at any time
there is more than one such Person, "Trustee," as used with
respect to the Debt Securities of any series, shall mean the
Trustee with respect to Debt Securities of such series.
11
"U.S. Government Obligations" has the meaning specified
in SECTION 1402.
"Unrestricted Subsidiary" means (a) any Subsidiary
acquired or organized after the date hereof, PROVIDED, HOWEVER,
that such Subsidiary is not a successor, directly or indirectly,
to, and does not directly or indirectly own any equity interest
in, any Restricted Subsidiary; (b) any Subsidiary the principal
business of which consists of obtaining financing in capital
markets outside the United States of America or financing the
acquisition or disposition of machinery, equipment, inventory,
accounts receivable and other real, personal and intangible
property by Persons including the Company or a Subsidiary; (c)
any Subsidiary the principal business of which is owning,
leasing, dealing in or developing real property for residential
or office building purposes or land, buildings or related real
property owned by the Company or any Subsidiary as of the date of
the Indenture; (d) any Joint Venture Subsidiary; or (e) stock or
other securities of an Unrestricted Subsidiary of the character
described in clauses (a) through (d) of this definition, unless
and until, in each of the cases specified in this paragraph, any
such Subsidiary shall have been designated to be a Restricted
Subsidiary pursuant to clause (b) of the definition of
"Restricted Subsidiary."
"Valuation Date" has the meaning specified in SECTION
310(C).
"Vice President" includes with respect to the Company
and the Trustee, any Vice President of the Company or the
Trustee, as the case may be, whether or not designated by a
number or word or words added before or after the title "Vice
President."
"Wholly Owned Subsidiary" means a Subsidiary of which
all of the stock (other than directors' qualifying shares) is at
the time, directly or indirectly, owned by the Company, and/or by
one or more Wholly Owned Subsidiaries of the Company.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the
Trustee to take any action under any provision of this Indenture,
the Company shall furnish to the Trustee an Officers' Certificate
stating that all conditions precedent, if any, provided for in
this Indenture relating to the proposed action have been complied
with and an Opinion of Counsel stating that in the opinion of
such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or
request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating
to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance
with a condition or covenant provided for in this Indenture shall
include:
(1) a statement that each individual signing such
certificate or opinion has read such covenant or condition
and the definitions herein relating thereto;
12
(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 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person,
it is not necessary that all such matters be certified by, or
covered by the opinion of, only one such Person, or that they be
so certified or covered by only one document, but one such Person
may certify or give an opinion with respect to some matters and
one or more other such Persons as to other matters, and any such
Person may certify or give an opinion as to such matters in one
or several documents.
Any certificate or opinion of an officer of the Company
may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless
such officer knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with
respect to the matters upon which his certificate or opinion is
based are erroneous. Any such certificate or Opinion of Counsel
may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or
officers of the Company stating that the information with respect
to such factual matters is in the possession of the Company,
unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
Where any Person is required to make, give or execute
two or more applications, requests, consents, certificates,
statements, opinions or other instruments under this Indenture,
they may, but need not, be consolidated and form one instrument.
SECTION 104. NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any Act of Holders or other document provided or
permitted by this Indenture to be made upon, given or furnished
to, or filed with:
(1) the Trustee by any Holder or by the Company shall
be sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if made, given, furnished or
filed in writing to or with the Trustee at its Corporate
Trust Office, Attention: Corporate Trust Services Division;
or
13
(2) the Company by the Trustee or by any Holder shall
be sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if in writing and mailed,
first-class postage prepaid or airmail postage prepaid if
sent from outside the United States, to the Company
addressed to it at the address of its principal office
specified in the first paragraph of this instrument, to the
attention of its Treasurer, or at any other address
previously furnished in writing to the Trustee by the
Company.
Any such Act or other document shall be in the English
language, except that any published notice may be in an official
language of the country of publication.
SECTION 105. NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice to Holders of
any event, such notice shall be sufficiently given to Holders
(unless otherwise herein expressly provided) if in writing and
mailed, first-class postage prepaid, to such Holders as their
names and addresses appear in the Security Register, within the
time prescribed; provided, however, that any notice to Holders of
Floating Rate Securities regarding the determination of a
periodic rate of interest, if such notice is required pursuant to
SECTION 301, shall be sufficiently given if given in the manner
specified pursuant to SECTION 301.
In the event of suspension of regular mail service or
by reason of any other cause it shall be impracticable to give
notice by mail, such notification shall be given by telex,
telecopy or other facsimile transmission.
Where this Indenture provides for notice in any manner,
such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice
by Holders shall be filed with the Trustee, but such filing shall
not be a condition precedent to the validity of any action taken
in reliance on such waiver. In any case where notice to Holders
is given by mail, neither the failure to mail such notice nor any
defect in any notice so mailed to any particular Holder, shall
affect the sufficiency of such notice with respect to other
Holders, and any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given.
SECTION 106. CONFLICT WITH TRUST INDENTURE ACT.
If and to the extent that any provision of this
Indenture limits, qualifies or conflicts with another provision
included in this Indenture by operation of Sections 310 to 317,
inclusive, of the Trust Indenture Act (an "incorporated
provision"), such incorporated provision shall control.
14
SECTION 107. 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 108. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the
parties hereto shall bind their respective successors and assigns
and inure to the benefit of their permitted successors and
assigns, whether so expressed or not.
SECTION 109. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Debt
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 110. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Debt Securities,
express or implied, shall give to any Person, other than the
parties hereto, any Security Registrar, any Paying Agent and
their successors hereunder, and the Holders, any benefit or any
legal or equitable right, remedy or claim under this Indenture.
SECTION 111. GOVERNING LAW.
This Indenture and the Debt Securities shall be deemed
to be contracts made and to be performed entirely in the State of
New York, and for all purposes shall be governed by and construed
in accordance with the laws of said State without regard to the
conflicts of law rules of said State.
SECTION 112. LEGAL HOLIDAYS.
Unless otherwise specified pursuant to SECTION 301 or
in any Debt Security, in any case where any Interest Payment
Date, Redemption Date or Stated Maturity of any Debt Security of
any series shall not be a Business Day at any Place of Payment
for the Debt Securities of that series, then (notwithstanding any
other provision of this Indenture or of the Debt Securities)
payment of principal (and premium, if any) or interest need not
be made at such Place of Payment on such date, but may be made on
the next succeeding Business Day at such Place of Payment with
the same force and effect as if made on the Interest Payment
Date, Redemption Date or at the Stated Maturity, and no interest
shall accrue on the amount so payable for the period from and
after such Interest Payment Date, Redemption Date or Stated
Maturity, as the case may be, to such Business Day if such
payment is made or duly provided for on such Business Day.
15
SECTION 113. NO SECURITY INTEREST CREATED.
Nothing in this Indenture or in the Debt Securities,
express or implied, shall be construed to constitute a security
interest under the Uniform Commercial Code or similar
legislation, as now or hereafter enacted and in effect in any
jurisdiction where property of the Company or its Subsidiaries is
or may be located.
SECTION 114. LIABILITY SOLELY CORPORATE.
No recourse shall be had for the payment of the
principal of (or premium, if any) or the interest on any Debt
Securities, or any part thereof, or of the indebtedness
represented thereby, or upon any obligation, covenant or
agreement of this Indenture, against any incorporator, or against
any stockholder, officer or director, as such, past, present or
future, of the Company (or any incorporator, stockholder, officer
or director of any predecessor or successor corporation), either
directly or through the Company (or any such predecessor or
successor corporation), whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment
or penalty or otherwise; it being expressly agreed and understood
that this Indenture and all the Debt Securities are solely
corporate obligations, and that no personal liability whatsoever
shall attach to, or be incurred by, any such incorporator,
stockholder, officer or director, past, present or future, of the
Company (or any incorporator, stockholder, officer or director of
any such predecessor or successor corporation), either directly
or indirectly through the Company or any such predecessor or
successor corporation, because of the indebtedness hereby
authorized or under or by reason of any of the obligations,
covenants, promises or agreements contained in this Indenture or
in any of the Debt Securities or to be implied herefrom or
therefrom; and that any such personal liability is hereby
expressly waived and released as a condition of, and as part of
the consideration for, the execution of this Indenture and the
issue of securities; PROVIDED, HOWEVER, that nothing herein or in
the Debt Securities contained shall be taken to prevent recourse
to and the enforcement of the liability, if any, of any
stockholder or subscriber to capital stock upon or in respect of
the shares of capital stock not fully paid.
SECTION 115. COUNTERPARTS.
This Indenture may be executed in any number of
counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same
instrument.
ARTICLE TWO
DEBT SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The Debt Securities of each series shall be
substantially in one of the forms (including global form)
established in or pursuant to a Board Resolution or one or more
16
indentures supplemental hereto, and shall have such appropriate
insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification or designation
and such legends or endorsements placed thereon as the Company
may deem appropriate and as are not inconsistent with the
provisions of this Indenture, or as may be required to comply
with any law or with any rule or regulation made pursuant thereto
or with any rule or regulation of any securities exchange on
which any series of the Debt Securities may be listed, or to
conform to usage, all as determined by the officers executing
such Debt Securities as conclusively evidenced by their execution
of such Debt Securities. If the form of a series of Debt
Securities (or any Global Note) is established in or pursuant to
a Board Resolution, a copy of such Board Resolution shall be
delivered to the Trustee, together with an Officers' Certificate
setting forth the form of such series, at or prior to the
delivery of the Company Order contemplated by SECTION 303 for the
authentication and delivery of such Debt Securities (or any such
Global Note).
The definitive Debt Securities of each series 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 officers executing
such Debt Securities, as conclusively evidenced by their
execution of such Debt Securities.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The form of the Trustee's certificate of authentication
to be borne by the Debt Securities shall be substantially as
follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the series of Debt Securities issued
under the within mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By _________________________________
Authorized Signatory
17
ARTICLE THREE
THE DEBT SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Debt Securities that
may be authenticated and delivered under this Indenture is
unlimited.
The Debt Securities may be issued in one or more
series. There shall be established in or pursuant to a Board
Resolution and (subject to SECTION 303) set forth in an Officers'
Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Debt Securities of
any series:
(1) the title of the Debt Securities of the series
(which shall distinguish the Debt Securities of such series
from all other series of Debt Securities);
(2) the limit, if any, upon the aggregate principal
amount of the Debt Securities of the series that may be
authenticated and delivered under this Indenture (except for
Debt Securities authenticated and delivered upon transfer
of, or in exchange for, or in lieu of, other Debt Securities
of such series pursuant to SECTIONS 304, 305, 306, 1006 or
1207);
(3) the date or dates on which or periods during which
the Debt Securities of the series may be issued, and the
date or dates (or the method of determination thereof) on
which the principal of (and premium, if any, on) the Debt
Securities of such series are or may be payable (which, if
so provided in such Board Resolution or supplemental
indenture may be determined by the Company from time to time
and set forth in the Debt Securities of the series issued
from time to time);
(4) the rate or rates (or the method of determination
thereof) at which the Debt Securities of the series shall
bear interest, if any, and the dates from which such
interest shall accrue (which, in either case or both, if so
provided in such Board Resolution or supplemental indenture
may be determined by the Company from time to time and set
forth in the Debt Securities of the series issued from time
to time), the Interest Payment Dates on which such interest
shall be payable (or the method of determination thereof),
and the Regular Record Dates for the interest payable on
such Interest Payment Dates and, in the case of Floating
Rate Securities, the notice, if any, to Holders regarding
the determination of interest and the manner of giving such
notice, and the extent to which, or the manner in which, any
interest payable on any Global Note on an Interest Payment
Date will be paid if other than in the manner provided in
SECTION 307;
(5) the place or places, if any, in addition to or
instead of the Corporate Trust Office of the Trustee, where
the principal of (and premium, if any) and interest on Debt
Securities of the series shall be payable;
18
(6) the obligation, if any, of the Company to redeem
or purchase Debt Securities of the series pursuant to any
sinking fund or analogous provisions or at the option of the
Holder and the period or periods within which or the dates
on which, the prices at which and the terms and conditions
upon which Debt Securities of the series shall be redeemed,
repaid or purchased, in whole or in part, pursuant to such
obligation;
(7) the period or periods within which or the date or
dates on which, the price or prices at which and the terms
and conditions upon which Debt Securities of the series may
be redeemed, if any, in whole or in part, at the option of
the Company or otherwise;
(8) if the coin or Currency in which the Debt
Securities shall be issuable is in Dollars, the
denominations of such Debt Securities if other than
denominations of $1,000 and any integral multiple thereof
(except as provided in SECTION 304);
(9) whether the Debt Securities of the series are to
be issued as Discount Securities and the amount of discount
with which such Debt Securities may be issued and, if other
than the principal amount thereof, the portion of the
principal amount of Debt Securities of the series which
shall be payable upon declaration of acceleration of the
Maturity thereof pursuant to SECTION 502;
(10) provisions, if any, for the defeasance of Debt
Securities of the series;
(11) If other than Dollars, the Foreign Currency or
Currencies in which Debt Securities of the series shall be
denominated, or in which payment of the principal of (and/or
premium, if any) and/or interest on the Debt Securities of
the series may be made, and the particular provisions
applicable thereto and, if applicable, the amount of Debt
Securities of the series which entitles the Holder of a Debt
Security of the series or proxy to one vote for purposes of
SECTION 805;
(12) if the principal of (and premium, if any) or
interest on Debt Securities of the series are to be payable,
at the election of the Company or a Holder thereof, in a
Currency other than that in which the Debt Securities are
denominated or payable without such election, in addition or
in lieu of the provisions of SECTION 310, the period or
periods within which and the terms and conditions upon which
such election may be made and the time and the manner of
determining the exchange rate or rates between the Currency
or Currencies in which the Debt Securities are denominated
or payable without such election and the Currency or
Currencies in which the Debt Securities are to be paid if
such election is made;
(13) the date as of which any global Debt Security
representing any Outstanding Debt Securities of the series
shall be dated if other than the date of original issuance
of the first Debt Security of the series to be issued;
19
(14) if the amount of payments of principal of (and
premium, if any) or interest on the Debt Securities of the
series may be determined with reference to an index
including, but not limited to, an index based on a Currency
or Currencies other than that in which the Debt Securities
are denominated or payable, or any other type of index, the
manner in which such amounts shall be determined;
(15) if the Debt Securities of the series are
denominated or payable in a Foreign Currency, any other
terms concerning the payment of principal of (and premium,
if any) or any interest on such Debt Securities (including
the Currency or Currencies of payment thereof);
(16) the designation of the original Currency
Determination Agent;
(17) the applicable Overdue Rate, if any;
(18) if the Debt Securities of the series do not bear
interest, the applicable dates for purposes of SECTION
312(a) of the Trust Indenture Act;
(19) any addition to, or modification or deletion of,
any Events of Default or covenants provided for with respect
to Debt Securities of the series;
(20) whether the Debt Securities of the series shall be
issued in whole or in part in the form of one or more Global
Notes and, in such case, the Depositary for such Global Note
or Notes; and
(21) any other terms of the series (which terms shall
not be inconsistent with the provisions of this Indenture).
All Debt Securities of any one series shall be
substantially identical except as to denomination, rate of
interest, Stated Maturity and the date from which interest, if
any, shall accrue, which, as set forth above, may be determined
by the Company from time to time as to Debt Securities of a
series if so provided in or established pursuant to the authority
granted in a Board Resolution or in any such indenture
supplemental hereto, and except as may otherwise be provided in
or pursuant to such Board Resolution and (subject to SECTION 303)
set forth in such Officers' Certificate, or in any such indenture
supplemental hereto. All Debt Securities of any one series need
not be issued at the same time, and unless otherwise provided, a
series may be reopened for issuance of additional Debt Securities
of such series.
If any of the terms of a series of Debt Securities is
established in or pursuant to a Board Resolution, a copy of such
Board Resolution shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee
at or prior to the delivery of the Officers' Certificate setting
forth the terms of the series.
SECTION 302. DENOMINATIONS.
20
In the absence of any specification pursuant to SECTION
301 with respect to Debt Securities of any series, the Debt
Securities of such series shall be issuable only in registered
form and in denominations of $1,000 and any integral multiple
thereof and shall be payable only in Dollars.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Debt Securities of any series shall be executed on
behalf of the Company by its Chairman, a Vice Chairman, its
President, its Chief Financial Officer, one of its Vice
Presidents or its Treasurer, under its corporate seal reproduced
thereon and attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers may be
manual or facsimile.
Debt 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 Debt
Securities or did not hold such offices at the date of such Debt
Securities.
At any time and from time to time after the execution
and delivery of this Indenture, the Company may deliver Debt
Securities of any series, executed by the Company, to the Trustee
for authentication, together with a Company Order for the
authentication and delivery of such Debt Securities, and the
Trustee in accordance with the Company Order shall authenticate
and deliver such Debt Securities. If all the Debt Securities of
any one series are not to be issued at one time and if a Board
Resolution or supplemental indenture relating to such series
shall so permit, such Company Order may set forth procedures
acceptable to the Trustee for the issuance of such Debt
Securities such as interest rate, Stated Maturity, date of
issuance and date from which interest, if any, shall accrue.
The Trustee shall be entitled to receive, and (subject
to any incorporated provisions) shall be fully protected in
relying upon, prior to the authentication and delivery of the
Debt Securities of a particular series, (i) the supplemental
indenture or the Board Resolution by or pursuant to which the
form and terms of such Debt Securities have been approved and
(ii) an Opinion of Counsel stating that:
(1) all instruments furnished by the Company to the
Trustee in connection with the authentication and delivery
of such Debt Securities conform to the requirements of this
Indenture and constitute sufficient authority hereunder for
the Trustee to authenticate and deliver such Debt
Securities;
(2) the forms and terms of such Debt Securities have
been established in conformity with the provisions of this
Indenture;
(3) in the event that the forms or terms of such Debt
Securities have been established in a supplemental
indenture, the execution and delivery of such supplemental
indenture has been duly authorized by all necessary
corporate action of the Company,
21
such supplemental indenture has been duly executed and
delivered by the Company and, assuming due authorization,
execution and delivery by the Trustee, is a valid and
binding obligation enforceable against the Company in
accordance with its terms, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors' rights
generally and subject, as to enforceability, to general
principles of equity (regardless of whether enforcement is
sought in a proceeding in equity or at law);
(4) the execution and delivery of such Debt Securities
have been duly authorized by all necessary corporate action
of the Company and such Debt Securities have been duly
executed by the Company, and, assuming due authentication by
the Trustee and delivery by the Company, are valid and
binding obligations enforceable against the Company in
accordance with their terms, entitled to the benefit of the
Indenture, subject to applicable bankruptcy, insolvency and
similar laws affecting creditors' rights generally and
subject, as to enforceability, to general principles of
equity (regardless of whether enforcement is sought in a
proceeding in equity or at law) and subject to such other
exceptions as counsel shall request and as to which the
Trustee shall not reasonably object; and
(5) the amount of Debt Securities Outstanding of such
series, together with the amount of such Debt Securities,
does not exceed any limit established under the terms of
this Indenture on the amount of Debt Securities of such
series that may be authenticated and delivered.
The Trustee shall not be required to authenticate such
Debt Securities if the issuance of such Debt Securities pursuant
to this Indenture will affect the Trustee's own rights, duties or
immunities under the Debt Securities and this Indenture in a
manner which is not reasonably acceptable to the Trustee.
Each Debt Security shall be dated the date of its
authentication.
No Debt Security shall be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose unless
there appears on such Debt Security a certificate of
authentication substantially in one of the forms provided for
herein duly executed by the Trustee or by an Authenticating
Agent, and such certificate upon any Debt Security shall be
conclusive evidence, and the only evidence, that such Debt
Security has been duly authenticated and delivered hereunder and
is entitled to the benefits of this Indenture. Notwithstanding
the foregoing, if any Debt Security shall have been duly
authenticated and delivered hereunder but never issued and sold
by the Company, and the Company shall deliver such Debt Security
to the Trustee for cancellation as provided in SECTION 308
together with a written statement (which need not comply with
SECTION 102) stating that such Debt Security has never been
issued and sold by the Company, for all purposes of this
Indenture such Debt Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled
to the benefits of this Indenture.
SECTION 304. TEMPORARY DEBT SECURITIES; GLOBAL NOTES.
22
(a) Pending the preparation of definitive Debt
Securities of any series, the Company may execute, and upon
Company Order the Trustee shall authenticate and deliver,
temporary Debt Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any
authorized denomination for Debt Securities of such series,
substantially of the tenor of the definitive Debt Securities in
lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the
officers executing such Debt Securities may determine, as
conclusively evidenced by their execution of such Debt
Securities. Every such temporary Debt Security shall be executed
by the Company and shall be authenticated and delivered by the
Trustee upon the same conditions and in substantially the same
manner, and with the same effect, as the definitive Debt
Securities in lieu of which they are issued.
If temporary Debt Securities of any series are issued,
the Company will cause definitive Debt Securities of such series
to be prepared without unreasonable delay. After the preparation
of definitive Debt Securities of such series, the temporary Debt
Securities of such series shall be exchangeable for definitive
Debt Securities of such series, of a like Stated Maturity and
with like terms and provisions, upon surrender of the temporary
Debt Securities of such series at the office or agency of the
Company in a Place of Payment for such series, without charge to
the Holder, except as provided in SECTION 305 in connection with
a transfer. Upon surrender for cancellation of any one or more
temporary Debt Securities of any series, the Company shall
execute and the Trustee shall authenticate and deliver in
exchange therefor a like principal amount of definitive Debt
Securities of the same series of authorized denominations and of
a like Stated Maturity and like terms and provisions. Until so
exchanged, the temporary Debt Securities of any series shall in
all respects be entitled to the same benefits under this
Indenture as definitive Debt Securities of such series.
(b) If the Company shall establish pursuant to SECTION
301 that the Debt Securities of a series are to be issued in
whole or in part in the form of one or more Global Notes, then
the Company shall execute and the Trustee shall, in accordance
with SECTION 303 and the Company Order with respect to such
series, authenticate and deliver one or more Global Notes in
temporary or permanent form that (i) shall represent and shall be
denominated in an amount equal to the aggregate principal amount
of the outstanding Debt Securities of such series to be
represented by one or more Global Notes, (ii) shall be registered
in the name of the Depositary for such Global Note or Notes or
the nominee of such Depositary, (iii) shall be delivered by the
Trustee to such Depositary or pursuant to such Depositary's
instruction, and (iv) shall bear a legend substantially to the
following effect: "Unless and until it is exchanged in whole or
in part for Debt Securities in definitive form, this Debt
Security may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary
or by the Depositary or any such nominee to a successor
Depositary or a nominee of such successor Depositary."
Notwithstanding any other provision of this Section or
SECTION 305, unless and until it is exchanged in whole or in part
for Debt Securities in definitive form, a Global Note
representing all or a portion of the Debt Securities of a series
may not be transferred except as a whole by the Depositary for
such series to a nominee of such Depositary or by a nominee of
23
such Depositary to such Depositary or another nominee of such
Depositary or by such Depositary or any such nominee to a
successor Depositary for such series or a nominee of such
successor Depositary.
If at any time the Depositary for the Debt Securities
of a series notifies the Company that it is unwilling or unable
to continue as Depositary for the Debt Securities of such series
or if at any time the Depositary for Debt Securities of a series
shall no longer be registered 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 the Debt Securities of such series.
If a successor Depositary for the Debt Securities of such series
is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such condition, the
Company will execute, and the Trustee, upon receipt of a Company
Order for the authentication and delivery of definitive Debt
Securities of such series, will authenticate and deliver, Debt
Securities of such series in definitive form in an aggregate
principal amount equal to the principal amount of the Global Note
or Notes representing such series in exchange for such Global
Note or Notes.
The Company may at any time and in its sole discretion
determine that the Debt Securities of any series issued in the
form of one or more Global Notes shall no longer be represented
by such Global Note or Notes. In such event, the Company will
execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of definitive Debt Securities of such
series, will authenticate and deliver, Debt Securities of such
series in definitive form and in an aggregate principal amount
equal to the principal amount of the Global Note or Notes
representing such series in exchange for such Global Note or
Notes.
If specified by the Company pursuant to SECTION 301
with respect to Debt Securities of a series, the Depositary for
such series of Debt Securities may surrender a Global Note for
such series of Debt Securities in exchange in whole or in part
for Debt Securities of such series in definitive form on such
terms as are acceptable to the Company and such Depositary.
Thereupon, the Company shall execute and the Trustee shall
authenticate and deliver, without charge:
(i) to each Person specified by the Depositary a new
Debt Security or Securities of the same series of any
authorized denomination as requested by such Person in
aggregate principal amount equal to and in exchange for such
Person's beneficial interest in the Global Note; and
(ii) to the Depositary a new Global Note in a
denomination equal to the difference, if any, between the
principal amount of the surrendered Global Note and the
aggregate principal amount of Debt Securities delivered to
Holders thereof.
Upon the exchange of a Global Note for Debt Securities
in definitive form, such Global Note shall be canceled by the
Trustee. Debt Securities issued in exchange for a Global Note
pursuant to this SECTION 304 shall be registered in such names
and in such authorized denominations as the Depositary for such
Global Note, pursuant to instructions from its direct
24
or indirect participants or otherwise, shall instruct the
Trustee. The Trustee shall deliver such Debt Securities to the
persons in whose names such Debt Securities are so registered.
SECTION 305. REGISTRATION, TRANSFER AND EXCHANGE.
(a) The Company shall cause to be kept at the
Corporate Trust Office of the Trustee a register (the registers
maintained in such office and in any other office or agency of
the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which,
subject to such reasonable regulations as it may prescribe, the
Company shall provide for the registration of the Debt Securities
and of transfers and exchanges of the Debt Securities. The
Trustee is hereby appointed "Security Registrar" for the purpose
of registering the Debt Securities and registering transfers and
exchanges of the Debt Securities as herein provided; PROVIDED,
HOWEVER, that the Company may appoint co-Security Registrars.
Upon surrender for registration of transfer of any Debt
Security of any series at the office or agency of the Company
maintained for such purpose, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the
designated transferee, one or more new Debt Securities of the
same series of like aggregate principal amount of such
denominations as are authorized for Debt Securities of such
series and of a like Stated Maturity and with like terms and
conditions.
At the option of the Holder, Debt Securities of any
series (except Global Notes) may be exchanged for other Debt
Securities of the same series of like aggregate principal amount
and of a like Stated Maturity and with like terms and conditions,
upon surrender of the Debt Securities to be exchanged at such
office or agency. Whenever any Debt Securities are surrendered
for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Debt Securities that the Holder
making the exchange is entitled to receive.
(b) All Debt Securities issued upon any transfer or
exchange of Debt Securities shall be valid obligations of the
Company, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Debt Securities surrendered
for such transfer or exchange.
Every Debt 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, the
Trustee and the Security Registrar, duly executed by the Holder
thereof or his attorney duly authorized in writing.
No service charge will be made for any transfer or
exchange of Debt Securities except as provided in SECTION 306.
The Company may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in
connection with any registration, transfer or exchange of Debt
Securities, other than those expressly provided in this Indenture
to be made at the Company's own expense or without expense or
without charge to the Holders.
25
The Company shall not be required (i) to register,
transfer or exchange Debt Securities of any series during a
period beginning at the opening of business 15 days before the
day of the transmission of a notice of redemption of Debt
Securities of such series selected for redemption under SECTION
1204 and ending at the close of business on the day of such
transmission, or (ii) to register, transfer or exchange any Debt
Security so selected for redemption in whole or in part, except
the unredeemed portion of any Debt Security being redeemed in
part.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN DEBT
SECURITIES.
If (i) any mutilated Debt Security is surrendered to
the Trustee at its Corporate Trust Office, or (ii) the Company
and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Debt Security, and there is
delivered to the Company and the Trustee such security or
indemnity as may be required by them to save each of them and any
Paying Agent harmless, and neither the Company nor the Trustee
receives notice that such Debt Security has been acquired by a
BONA FIDE purchaser, then the Company shall execute and upon
Company Request the Trustee shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Debt Security, a new Debt Security of the same series of
like Stated Maturity and with like terms and conditions and like
principal amount, bearing a number not contemporaneously
Outstanding.
In case any such mutilated, destroyed, lost or stolen
Debt Security has become or is about to become due and payable,
the Company in its discretion may, instead of issuing a new Debt
Security, pay the amount due on such Debt Security in accordance
with its terms.
Upon the issuance of any new Debt Security under this
Section, the Company may require the payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed
in respect thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith.
Every new Debt Security of any series issued pursuant
to this Section shall constitute an original additional
contractual obligation of the Company, whether or not the
destroyed, lost or stolen Debt 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 Debt Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies
with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Debt Securities or Coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved.
(a) Interest on any Debt Security that is payable and
is punctually paid or duly provided for on any Interest Payment
Date shall be paid to the Person in whose name such Debt Security
(or one or more Predecessor Securities) is registered at the
close of business on the
26
Regular Record Date for such interest notwithstanding the
cancellation of such Debt Security upon any transfer or exchange
subsequent to the Regular Record Date. Payment of interest
on Debt Securities shall be made at the offices of the Paying
Agent or Paying Agents specified pursuant to SECTION 301 or, at
the option of the Company, by check mailed to the address of the
Person entitled thereto as such address shall appear in the
Security Register or, if provided pursuant to SECTION 301, by
wire transfer to an account designated by the Holder.
(b) Any interest on any Debt Security that is payable
but is not punctually paid or duly provided for on any Interest
Payment Date (herein called "Defaulted Interest") shall forthwith
cease to be payable to the Holder on the relevant Regular Record
Date by virtue of his having been such Holder, and such Defaulted
Interest may be paid by the Company, at its election in each
case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names such Debt
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 Debt Security and the date
of the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of money in the
Currency or Currency unit in which the Debt Securities of
such series are payable (except as otherwise specified
pursuant to SECTIONS 301 or 310) equal to the aggregate
amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the
Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for
the benefit of the Persons entitled to such Defaulted
Interest as in this clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such
Defaulted Interest which date shall be not more than 15 days
and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such Special Record
Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to the Holders of such Debt
Securities at their addresses as they appear 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 Debt Securities (or their
respective Predecessor Securities) are registered at the
close of business on such Special Record Date and shall no
longer be payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted
Interest on Debt Securities in any other lawful manner not
inconsistent with the requirements of any securities
exchange on which such Debt Securities may be listed, and
upon such notice as may be required by such exchange, if,
after notice given by the Company to the
27
Trustee of the proposed payment pursuant to this clause,
such manner of payment shall be deemed practicable by the
Trustee.
(c) Subject to the foregoing provisions of this
Section, each Debt Security delivered under this Indenture upon
transfer of or in exchange for or in lieu of any other Debt
Security shall carry the rights to interest accrued and unpaid,
and to accrue, which were carried by such other Debt Security.
SECTION 308. CANCELLATION.
Unless otherwise specified pursuant to SECTION 301 for
Debt Securities of any series, all Debt Securities surrendered
for payment, redemption, transfer, exchange or credit against any
sinking fund, if surrendered to any Person other than the
Trustee, shall be delivered to the Trustee. All Debt Securities
so delivered shall be promptly canceled by the Trustee. The
Company may at any time deliver to the Trustee for cancellation
any Debt Securities previously authenticated and delivered
hereunder that the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other
Person for delivery to the Trustee) for cancellation any Debt
Securities previously authenticated hereunder which the Company
has not issued, and all Debt Securities or Coupons so delivered
shall be promptly canceled by the Trustee. No Debt Securities
shall be authenticated in lieu of or in exchange for any Debt
Securities canceled as provided in this Section, except as
expressly permitted by this Indenture. All canceled Debt
Securities held by the Trustee shall be destroyed by the Trustee,
and the Trustee shall deliver a certificate to such effect to the
Company. The acquisition of any Debt Securities by the Company
shall not operate as a redemption or satisfaction of the
indebtedness represented thereby unless and until such Debt
Securities are surrendered to the Trustee for cancellation.
SECTION 309. COMPUTATION OF INTEREST.
Except as otherwise specified pursuant to SECTION 301
for Debt Securities of any series, interest on the Debt
Securities of each series shall be computed on the basis of a
360-day year of twelve 30-day months.
SECTION 310. CURRENCY OF PAYMENTS IN RESPECT OF DEBT SECURITIES.
(a) With respect to Debt Securities of any series not
permitting the election provided for in paragraph (b) below or
the Holders of which have not made the election provided for in
paragraph (b) below, except as provided in paragraph (d) below,
payment of the principal of (and premium, if any) and any
interest on any Debt Security of such series will be made in the
Currency in which such Debt Security is payable.
(b) It may be provided pursuant to SECTION 301 with
respect to the Debt Securities of any series that Holders shall
have the option, subject to paragraphs (d) and (e) below, to
receive payments of principal of (and premium, if any) and any
interest on such Debt Securities in any of the Currencies that
may be designated for such election by delivering to the
28
Trustee and the Currency Determination Agent a written election,
to be in form and substance satisfactory to the Trustee, not
later than the close of business on the Election Date immediately
preceding the applicable payment date. If a Holder so elects to
receive such payments in any such Currency, such election will
remain in effect for such Holder or any transferee of such Holder
until changed by such Holder or such transferee by written notice
to the Trustee and the Currency Determination Agent (but any such
change must be made not later than the close of business on the
Election Date immediately preceding the next payment date to be
effective for the payment to be made on such payment date and no
such change or election may be made with respect to payments to
be made on any Debt Security of such series with respect to which
an Event of Default has occurred or notice of redemption has been
given by the Company pursuant to ARTICLE TWELVE). Any Holder of
any such Debt Security who shall not have delivered any such
election to the Trustee and the Currency Determination Agent by
the close of business on the applicable Election Date will be
paid the amount due on the applicable payment date in the
relevant Currency as provided in paragraph (a) of this SECTION
310.
(c) If the election referred to in paragraph (b) above
has been provided for pursuant to SECTION 301, then not later
than the fourth Business Day after the Election Date for each
payment date, the Trustee or the Currency Determination Agent
will deliver to the Company a written notice specifying, in the
Currency in which each series of the Debt Securities are payable,
the respective aggregate amounts of principal of (and premium, if
any) and any interest on the Debt Securities to be paid on such
payment date, specifying the amounts so payable in respect of the
Debt Securities as to which the Holders of Debt Securities
denominated in any Currency shall have elected to be paid in
another Currency as provided in paragraph (b) above. If the
election referred to in paragraph (b) above has been provided for
pursuant to SECTION 301 and if at least one Holder has made such
election, then, on the second Business Day preceding each payment
date, the Company will deliver to the Trustee and the Currency
Determination Agent an Exchange Rate Officer's Certificate in
respect of the Currency payments to be made on such payment date.
The Currency amount receivable by Holders of Debt Securities who
have elected payment in a Currency as provided in paragraph (b)
above shall be determined by the Company on the basis of the
applicable Market Exchange Rate in effect on the third Business
Day (the "Valuation Date") immediately preceding each payment
date.
(d) If a Conversion Event occurs with respect to a
Foreign Currency, the ECU or any other Currency unit in which any
of the Debt Securities are denominated or payable other than
pursuant to an election provided for pursuant to paragraph (b)
above, then with respect to each date for the payment of
principal of (and premium, if any) and any interest on the
applicable Foreign Currency, the ECU or such other Currency unit
occurring after the last date on which such Foreign Currency, the
ECU or such other Currency unit was used (the "Conversion Date"),
the Dollar shall be the Currency of payment for use on each such
payment date. The Dollar amount to be paid by the Company to the
Trustee and by the Trustee or any Paying Agent to the Holders of
such Debt Securities with respect to such payment date shall be
the Dollar Equivalent of the Foreign Currency or, in the case of
a Currency unit, the Dollar Equivalent of the Currency Unit, in
each case as determined by the Currency Determination Agent in
the manner provided in paragraph (f) or (g) below.
29
(e) If the Holder of a Debt Security denominated in
any Currency shall have elected to be paid in another Currency as
provided in paragraph (b) above, and a Conversion Event occurs
with respect to such elected Currency, such Holder shall receive
payment in the Currency in which payment would have been made in
the absence of such election. If a Conversion Event occurs with
respect to the Currency in which payment would have been made in
the absence of such election, such Holder shall receive payment
in Dollars as provided in paragraph (d) of this SECTION 310.
(f) The "Dollar Equivalent of the Foreign Currency"
shall be determined by the Currency Determination Agent and shall
be obtained for each subsequent payment date by converting the
specified Foreign Currency into Dollars at the Market Exchange
Rate on the Conversion Date.
(g) The "Dollar Equivalent of the Currency Unit" shall
be determined by the Currency Determination Agent and subject to
the provisions of paragraph (h) below, shall be the sum of each
amount obtained by converting the Specified Amount of each
Component Currency into Dollars at the Market Exchange Rate for
such Component Currency on the Valuation Date with respect to
each payment.
(h) For purposes of this SECTION 310 the following
terms shall have the following meanings:
A "Component Currency" shall mean any Currency which,
on the Conversion Date, was a Component Currency of the relevant
Currency unit, including, but not limited to, the ECU.
A "Specified Amount" of a Component Currency shall mean
the number of units of such Component Currency or fractions
thereof which were represented in the relevant currency unit,
including, but not limited to, the ECU, on the Conversion Date.
If after the Conversion Date the official unit of any Component
Currency is altered by way of combination or subdivision, the
Specified Amount of such Component Currency shall be divided or
multiplied in the same proportion. If after the Conversion Date
two or more Component Currencies are consolidated into a single
Currency, the respective Specified Amounts of such Component
Currencies shall be replaced by an amount in such single Currency
equal to the sum of the respective Specified Amounts of such
consolidated Component Currencies expressed in such single
Currency, and such amount shall thereafter be a Specified Amount
and such single Currency shall thereafter be a Component
Currency. If after the Conversion Date any Component Currency
shall be divided into two or more Currencies, the Specified
Amount of such Component Currency shall be replaced by amounts of
such two or more Currencies with appropriate Dollar equivalents
at the Market Exchange Rate on the date of such replacement equal
to the dollar equivalent of the Specified Amount of such former
Component Currency at the Market Exchange Rate on such date, and
such amounts shall thereafter be Specified Amounts and such
Currencies shall thereafter be Component Currencies. If after
the Conversion Date of the relevant Currency unit, including but
not limited to, the ECU, a Conversion Event (other than any event
referred to above in this definition of "Specified Amount")
occurs with respect
30
to any Component Currency of such Currency unit, the Specified
Amount of such Component Currency shall, for purposes of
calculating the Dollar Equivalent of the Currency Unit, be
converted into Dollars at the Market Exchange Rate in effect on
the Conversion Date of such Component Currency.
"Election Date" shall mean the record date with respect
to any payment date, and with respect to the Maturity shall mean
the record date (if within 16 or fewer days prior to the
Maturity) immediately preceding the Maturity, and with respect to
any series of Debt Securities whose record date immediately
preceding the Maturity is more than 16 days prior to the Maturity
or any series of Debt Securities for which no record dates are
provided with respect to interest payments, shall mean the date
that is 16 days prior to the Maturity.
(i) All decisions and determinations of the Currency
Determination Agent regarding the Dollar Equivalent of the
Foreign Currency, the Dollar Equivalent of the Currency Unit and
the Market Exchange Rate shall be in its sole discretion and
shall, in the absence of manifest error, be conclusive for all
purposes and irrevocably binding upon the Company and all Holders
of the Debt Securities denominated or payable in the relevant
Currency. In the event of a Conversion Event with respect to a
Foreign Currency, the Company, after learning thereof, will
immediately give written notice thereof to the Trustee and the
Currency Determination Agent (and the Trustee will promptly
thereafter give notice in the manner provided in SECTION 105 to
the Holders) specifying the Conversion Date. In the event of a
Conversion Event with respect to the ECU or any other Currency in
which Securities are denominated or payable, the Company, after
learning thereof, will immediately give notice thereof to the
Trustee (and the Trustee will promptly thereafter give written
notice in the manner provided in SECTION 105 to the Holders)
specifying the Conversion Date and the Specified Amount of each
Component Currency on the Conversion Date. In the event of any
subsequent change in any Component Currency as set forth in the
definition of Specified Amount above, the Company, after learning
thereof, will similarly give written notice to the Trustee. The
Trustee shall be fully justified and protected in relying and
acting upon information received by it from the Company and the
Currency Determination Agent and shall not otherwise have any
duty or obligation to determine such information independently.
(j) For purposes of any provision of the Indenture
where the Holders of Outstanding Debt Securities may perform an
Act that requires that a specified percentage of the Outstanding
Debt Securities of all series perform such Act and for purposes
of any decision or determination by the Trustee of amounts due
and unpaid for the principal of (and premium, if any) and
interest on the Debt Securities of all series in respect of which
moneys are to be disbursed ratably, the principal of (and
premium, if any) and interest on the Outstanding Debt Securities
denominated in a Foreign Currency will be the amount in Dollars
based upon the Market Exchange Rate for Debt Securities of such
series, as of the date for determining whether the Holders
entitled to perform such Act have performed it, or as of the date
of such decision or determination by the Trustee, as the case may
be.
SECTION 311. JUDGMENTS.
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If for the purpose of obtaining a judgment in any court
with respect to any obligation of the Company hereunder or under
any Debt Security, it shall become necessary to convert into any
other Currency any amount in the Currency due hereunder or under
such Debt Security, then such conversion shall be made at the
Market Exchange Rate as in effect on the date the Company shall
make payment to any Person in satisfaction of such judgment. If
pursuant to any such judgment, conversion shall be made on a date
other than the date payment is made and there shall occur a
change between such Market Exchange Rate and the Market Exchange
Rate as in effect on the date of payment, the Company agrees to
pay such additional amounts (if any) as may be necessary to
ensure that the amount paid is equal to the amount in such other
Currency which, when converted at the Market Exchange Rate as in
effect on the date of payment or distribution, is the amount then
due hereunder or under such Debt Security. Any amount due from
the Company under this SECTION 311 shall be due as a separate
debt and is not to be affected by or merged into any judgment
being obtained for any other sums due hereunder or in respect of
any Debt Security. In no event, however, shall the Company be
required to pay more in the Currency or Currency unit due
hereunder or under such Debt Security at the Market Exchange Rate
as in effect when payment is made than the amount of Currency
stated to be due hereunder or under such Debt Security so that in
any event the Company's obligations hereunder or under such Debt
Security will be effectively maintained as obligations in such
Currency, and the Company shall be entitled to withhold (or be
reimbursed for, as the case may be) any excess of the amount
actually realized upon any such conversion over the amount due
and payable on the date of payment or distribution.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture, with respect to the Debt Securities of
any series (if all series issued under this Indenture are not to
be affected), shall, upon Company Request, cease to be of further
effect (except as to any surviving rights of registration of
transfer or exchange of such Debt Securities herein expressly
provided for and rights to receive payments of principal (and
premium, if any) and interest on such Debt Securities) and the
Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this
Indenture, when
(1) either
(A) all Debt Securities of such series theretofore
authenticated and delivered (other than (i) Debt 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) Debt 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
32
discharged from such trust, as provided in SECTION 1103)
have been delivered to the Trustee for cancellation; or
(B) all Debt Securities of such series not theretofore
delivered to the Trustee for cancellation,
(i) have become due and payable; or
(ii) will become due and payable at their Stated
Maturity within one year; or
(iii) are to be called for redemption within one
year under arrangements satisfactory to the Trustee for
the giving of notice by the Trustee in the name, and at
the expense, of the Company, and the Company, in the
case of (i), (ii) or (iii) of this subclause (B), has
irrevocably deposited or caused to be deposited with
the Trustee as trust funds in trust for such purpose an
amount in the Currency in which such Debt Securities
are denominated (except as otherwise provided pursuant
to SECTIONS 301 or 310), sufficient to pay and
discharge the entire indebtedness on such Debt
Securities for principal (and premium, if any) and
interest to the date of such deposit (in the case of
Debt Securities which have become due and payable) or
to the Stated Maturity or Redemption Date, as the case
may be; PROVIDED, HOWEVER, in the event a petition for
relief under the federal bankruptcy laws, as now or
hereafter constituted, or any other applicable federal
or state bankruptcy, insolvency or other similar law,
is filed with respect to the Company within 91 days
after the deposit and the Trustee is required to return
the deposited money to the Company, the obligations of
the Company under this Indenture with respect to such
Debt Securities shall not be deemed terminated or
discharged;
(2) the Company has paid or caused to be paid all other
sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that all
conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture with respect to such
series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company to the Trustee under SECTION 607,
the obligations of the Trustee to any Authenticating Agent under
SECTION 611 and, if money shall have been deposited with the
Trustee pursuant to subclause (B) of clause (1) of this Section,
the obligations of the Trustee under SECTION 402 and the last
paragraph of SECTION 1103 shall survive. If, after the deposit
referred to in this SECTION 401 has been made, (x) the Holder of
a Debt Security is entitled to, and does, elect pursuant to
SECTION 310(b), to receive payment in a Currency other than that
in which the deposit pursuant to this SECTION 401 was made, or
(y) if a Conversion Event occurs with respect to the Currency in
which the deposit was made or elected to be received by the
Holder pursuant to SECTION
33
310(b), then the indebtedness represented by such Debt Security
shall be fully discharged to the extent that the deposit made
with respect to such Debt Security shall be converted into
the Currency in which such payment is made.
SECTION 402. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of
SECTION 1103, all money deposited with the Trustee pursuant to
SECTION 401 shall be held in trust and applied by it, in
accordance with the provisions of the Debt Securities 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 has been deposited with the Trustee.
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT.
"Event of Default" wherever used herein with respect to
Debt Securities of any series means any one of the following
events (whatever the reason for such Event of Default and whether
it shall be voluntary or involuntary or be effected by operation
of law, pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or
governmental body):
(1) default in the payment of any interest upon any
Debt Security of such 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 (and
premium, if any, on) any Debt Security of such series at its
Maturity; or
(3) default in the deposit of any sinking fund payment
or analogous obligation, when and as due by the terms of a
Debt Security of such series; or
(4) default in the performance, or breach, of any
covenant or warranty of the Company in this Indenture (other
than a covenant or warranty a default in whose performance
or whose breach is elsewhere in this Section specifically
dealt with or which expressly has been included in this
Indenture solely for the benefit of Debt Securities of a
series other than such series), and continuance of such
default or breach for a period of 60 days after there has
been given, by registered or certified mail, to the Company
by the Trustee or to the Company and the Trustee by the
Holders of at least 10% in principal amount of the
Outstanding Debt Securities of such series, a written notice
34
specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of
Default" hereunder; or
(5) the entry of a decree or order for relief in
respect of the Company by a court having jurisdiction in the
premises in an involuntary case under the federal bankruptcy
laws, as now or hereafter constituted, or any other
applicable federal or state bankruptcy, insolvency or other
similar law, or a decree or order adjudging the Company a
bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company under any
applicable federal or state law, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or
other similar official) of the Company or of any substantial
part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such
decree or order unstayed and in effect for a period of 60
consecutive days; or
(6) the commencement by the Company of a voluntary
case under the federal bankruptcy laws, as now or hereafter
constituted, or any other applicable federal or state
bankruptcy, insolvency or other similar law, or the consent
by it to the entry of an order for relief in an involuntary
case under any such law or to the appointment of a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or
other similar official) of the Company or of any substantial
part of its property, or the making by it of an assignment
for the benefit of its creditors, or the admission by it in
writing of its inability to pay its debts generally as they
become due, or the taking of corporate action by the Company
in furtherance of any such action; or
(7) any other Event of Default provided with respect
to Debt Securities of that series pursuant to SECTION 301.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default with respect to Debt Securities
of any series at the time Outstanding occurs and is continuing,
then in every such case the Trustee or the Holders of not less
than 25% in principal amount of Outstanding Debt Securities of
such series may declare the principal amount (or, if any Debt
Securities of such series are Discount Securities, such portion
of the principal amount of such Discount Securities as may be
specified in the terms of such Discount Securities) of all the
Debt Securities of such series to be due and payable immediately,
by a notice in writing to the Company (and to the Trustee if
given by Holders), and upon any such declaration such principal
amount (or specified amount) shall become immediately due and
payable. Upon payment of such amount in the Currency in which
such Debt Securities are denominated (except as otherwise
provided pursuant to SECTIONS 301 or 310), all obligations of the
Company in respect of the payment of principal of the Debt
Securities of such series shall terminate.
35
At any time after such a declaration of acceleration
with respect to Debt Securities of any series has been made and
before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter in this Article provided,
the Holders of a majority in principal amount of the Outstanding
Debt Securities of such series, by written notice to the Company
and the Trustee, may rescind and annul such declaration and its
consequences if:
(1) the Company has paid or deposited with the
Trustee a sum in the Currency in which such Debt Securities
are denominated (except as otherwise provided pursuant to
SECTIONS 301 or 310) sufficient to pay
(A) all overdue installments of interest on all
Debt Securities of such series;
(B) the principal of (and premium, if any, on)
any Debt 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 in such Debt Securities;
(C) to the extent that payment of such interest
is lawful, interest upon overdue installments of
interest on each Debt Security at the Overdue Rate; 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; PROVIDED, HOWEVER, that all sums payable
under this clause (D) shall be paid in Dollars;
and
(2) all Events of Default with respect to Debt
Securities of such series, other than the nonpayment of the
principal of Debt Securities of such series which have
become due solely by such declaration of acceleration, have
been cured or waived as provided in SECTION 513.
No such rescission and waiver shall affect any subsequent default
or impair any right consequent thereon.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT
BY TRUSTEE.
The Company covenants that if:
(1) default is made in the payment of any installment
of interest on any Debt Security when such interest becomes
due and payable and such default continues for a period of
30 days;
36
(2) default is made in the payment of principal of (or
premium, if any, on) any Debt Security at the Maturity
thereof; or
(3) default is made in the making or satisfaction of
any sinking fund payment or analogous obligation when the
same becomes due pursuant to the terms of the Debt
Securities of any series;
the Company will, upon demand of the Trustee, pay to it, for the
benefit of the Holders of such Debt Securities the amount then
due and payable on such Debt Securities for the principal (and
premium, if any) and interest, if any, and, to the extent that
payment of such interest shall be legally enforceable, interest
upon the overdue principal (and premium, if any) and upon overdue
installments of interest, at the Overdue Rate; and, in addition
thereto, such further amount as shall be sufficient to cover the
costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
If the Company fails to pay such amount forthwith upon
such demand, the Trustee, in its own name and as trustee of an
express trust, may institute a judicial proceeding for the
collection of the sums so due and unpaid, and may prosecute such
proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Debt
Securities, and collect the moneys adjudged or decreed to be
payable in the manner provided by law out of the property of the
Company or any other obligor upon such Debt Securities wherever
situated.
If an Event of Default with respect to Debt Securities
of any series occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the
rights of the Holders of Debt Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein,
or to enforce any other proper remedy.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization, arrangement,
adjustment, composition or other judicial proceedings, or any
voluntary or involuntary case under the federal bankruptcy laws,
as now or hereafter constituted, relative to the Company or any
other obligor upon the Debt Securities, if any, of a particular
series or the property of the Company or of such other obligor or
their creditors, the Trustee (irrespective of whether the
principal of such Debt Securities shall then be due and payable
as therein expressed or by declaration of acceleration or
otherwise and irrespective of whether the Trustee shall have made
any demand on the Company for the payment of overdue principal or
interest) shall be entitled and empowered, by intervention in
such proceeding or otherwise:
(i) to file and prove a claim for the whole amount of
principal (or, if the Debt Securities of such series are
Discount Securities, such portion of the principal amount as
may be due and payable with respect to such series pursuant
to a declaration in
37
accordance with SECTION 502) (and premium, if any) and
interest owing and unpaid in respect of the Debt Securities
of such series and to file such other papers or documents
as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel) and of
the Holders of such Debt Securities and Coupons 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, custodian, liquidator,
sequestrator or other similar official in any such proceeding is
hereby authorized by each such Holder to make such payments to
the Trustee, and in the event that the Trustee shall consent to
the making of such payments directly to such Holders, to pay to
the Trustee any amount due 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 Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Debt Securities of such
series or the rights of any Holder thereof, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such
proceeding.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
DEBT SECURITIES.
All rights of action and claims under this Indenture or
the Debt Securities of any series may be prosecuted and enforced
by the Trustee without the possession of any of such Debt
Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall
be brought in its own name, as trustee of an express trust, and
any recovery of judgment shall, after provision for the payment
of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Debt Securities in respect
of which such judgment has been recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this
Article shall be applied in the following order, at the date or
dates fixed by the Trustee and, in case of the distribution of
such money on account of principal (and premium, if any) or
interest, upon presentation of the Debt Securities of any series
in respect of which money has been collected 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;
38
SECOND: To the payment of the amounts then due and
unpaid for principal of (and premium, if any) and interest
on the Debt Securities of such series, 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 Debt
Securities for principal (and premium, if any) and interest,
respectively; and
THIRD: The balance, if any, to the Person or Persons
entitled thereto.
SECTION 507. LIMITATION ON SUITS.
No Holder of any Debt 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
such series;
(2) the Holders of not less than 25% in principal
amount of the Outstanding Debt 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 Debt Securities of such series;
it being understood and intended that no one or more of such
Holders shall have any right in any manner whatever by virtue of,
or by availing of, any provision of this Indenture to affect,
disturb or prejudice the rights of any other such Holders or of
the Holders of Outstanding Debt Securities of any other series,
or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal
and ratable benefit of all of such Holders. For the protection
and enforcement of the provisions of this SECTION 507, each and
every Holder of Debt Securities of any series and the Trustee for
such series shall be entitled to such relief as can be given at
law or in equity.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST.
Notwithstanding any other provision in this Indenture,
the Holder of any Debt Security shall have the right, which is
absolute and unconditional, to receive payment of the
39
principal of (and premium, if any) and (subject to SECTION 307)
interest on such Debt Security on the respective Stated
Maturity or Maturities expressed in such Debt Security (or, in
the case of redemption, on the Redemption Date) and to institute
suit for the enforcement of any such payment and interest
thereon, and such right shall not be impaired without the consent
of such Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any
proceeding to enforce any right or remedy under this Indenture
and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to
such Holder, then and in every such case the Company, the Trustee
and the Holders 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 Holders shall continue as though
no such proceeding had been instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise expressly provided elsewhere in
this Indenture, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder 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 any acquiescence therein. Every
right and remedy given by this Indenture or by law to the Trustee
or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
SECTION 512. CONTROL BY HOLDERS.
The Holders of a majority in principal amount of the
Outstanding Debt 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 Debt
Securities of such series, PROVIDED, that
(1) such direction shall not be in conflict with any
rule of law or with this Indenture;
40
(2) subject to any incorporated provisions, the
Trustee shall have the right to decline to follow any such
direction if the Trustee in good faith shall, by a
Responsible Officer or Responsible Officers of the Trustee,
determine that the proceeding so directed would be unjustly
prejudicial to the Holders of Debt Securities of such series
not joining in any such direction; and
(3) the Trustee may take any other action deemed
proper by the Trustee that is not inconsistent with such
direction.
SECTION 513. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in principal
amount of the Outstanding Debt Securities of any series may on
behalf of the Holders of all the Debt Securities of any such
series waive any past default hereunder with respect to such
series and its consequences, except a default
(1) in the payment of the principal of (or premium,
if any) or interest on any Debt Security of such series, or
in the payment of any sinking fund installment or analogous
obligation with respect to the Debt Securities of such
series, or
(2) in respect of a covenant or provision hereof which
pursuant to ARTICLE TEN cannot be modified or amended
without the consent of the Holder of each outstanding Debt
Security of such series affected.
Upon any such waiver, such default shall cease to
exist, and any Event of Default arising therefrom shall be deemed
to have been cured, for every purpose of the Debt Securities of
such series under this Indenture; but no such waiver shall extend
to any subsequent or other default or impair any right consequent
thereon.
SECTION 514. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of
any Debt 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, suffered or omitted by it as Trustee, the filing by any
party litigant in such suit other than the Trustee of an
undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such
suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted
by the Trustee, to any suit instituted by any Holder or group of
Holders holding in the aggregate more than 10% in principal
amount of the Outstanding Debt Securities of any series, or to
any suit instituted by any Holder of a Debt Security for the
enforcement of the payment of the principal of (or premium, if
any) or interest on such Debt Security on or after the respective
Stated Maturity or Maturities expressed in such Debt Security
(or, in the case of redemption, on or after the Redemption Date).
41
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, or
plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or
at any time hereafter in force, which may affect the covenants or
the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit
or advantage of any such law, and covenants that it will not
hinder, delay or impede the execution of any power herein granted
to the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of
Default with respect to the Debt Securities of any series,
(1) the Trustee undertakes to perform such duties as
are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this
Indenture; but in the case of any such certificates or
opinions which by any provisions hereof are specifically
required to be furnished to the Trustee, the Trustee shall
be under a duty to examine the same to determine whether
they conform to the requirements of this Indenture.
(b) In case an Event of Default with respect to Debt
Securities of any series has occurred and is continuing, the
Trustee shall, with respect to the Debt Securities of such
series, exercise such of the rights and powers vested in it by
this Indenture, and use the same degree of care and skill in
their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed
to relieve the Trustee from liability for its own negligent
action, its own negligent failure to act or its own willful
misconduct, PROVIDED that
(1) this subsection shall not be construed to limit
the effect of subsection (a) of this Section;
42
(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, suffered or omitted to be taken by it with
respect to Debt Securities of any series in good faith in
accordance with the direction of the Holders of a majority
in principal amount of the Outstanding Debt Securities of
such 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; and
(4) the Trustee shall not be required to expend or
risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment
of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided,
every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee
shall be subject to the provisions of this Section.
SECTION 602. NOTICE OF DEFAULTS.
Within 90 days after the occurrence of any default
hereunder with respect to Debt Securities of any series the
Trustee shall give notice to all Holders of Debt Securities of
such series of such default hereunder known to the Trustee,
unless such default shall have been cured or waived; PROVIDED,
HOWEVER, that, except in the case of a default in the payment of
the principal of (or premium, if any) or interest on any Debt
Security of such series or in the payment of any sinking fund
installment with respect to Debt 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 interest of the Holders of Debt Securities of
such series; and PROVIDED, FURTHER, that in the case of any
default of the character specified in SECTION 501(4) with respect
to Debt Securities of such series no such notice to Holders shall
be given until at least 30 days after the occurrence thereof.
For the purpose of this Section, the term "default" means any
event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to Debt Securities of
such series.
Notice given pursuant to this SECTION 602 shall be
transmitted by mail:
(1) to all Holders, as the names and addresses of the
Holders appear in the Security Register; and
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(2) to each Holder of a Debt Security of any series
whose name and address appear in the information preserved
at the time by the Trustee in accordance with the Trust
Indenture Act.
SECTION 603. CERTAIN RIGHTS OF TRUSTEE.
Except as otherwise provided in the Trust Indenture
Act:
(a) the Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note or
other paper or document believed by it to be genuine and to
have been signed or presented by the proper party or
parties;
(b) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request
or Company Order and any resolution of the Board of
Directors shall 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 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;
(e) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Indenture at the request or direction of any of the Holders
of Debt Securities of any series pursuant to this Indenture,
unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses
and liabilities that 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;
(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
44
shall not be responsible for any misconduct or
negligence on the part of any agent (including any agent
appointed pursuant to SECTION 310(I)) or attorney appointed
with due care by it hereunder; and
(h) the Trustee shall not be required to take notice
or be deemed to have notice of any default hereunder (except
failure by the Company to pay principal of or interest on
any series of Securities so long as the Trustee is also
acting as Paying Agent for such series of Securities) unless
the Trustee shall be specifically notified in writing of
such default by the Company by the Holders of at least a 10%
in aggregate principal amount of all Securities then
outstanding, and all such notices or other instruments
required by this Indenture to be delivered to the Trustee
must, in order to be effective, be delivered at the
principal Corporate Trust Office of the Trustee, and in the
absence of such notice the Trustee may conclusively assume
there is no default except as aforesaid; and
(i) The permissive right of the Trustee to do things
enumerated in this Indenture shall not be construed as a
duty.
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF DEBT
SECURITIES.
The recitals contained herein and in the Debt
Securities, except the Trustee's 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 Debt Securities or Coupons, if any, of
any series. The Trustee shall not be accountable for the use or
application by the Company of any Debt Securities or the proceeds
thereof.
SECTION 605. MAY HOLD DEBT 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 Debt Securities,
and, subject to any incorporated provisions, may otherwise deal
with the Company with the same rights it would have if it were
not the Trustee, Paying Agent, Security Registrar or such other
agent.
SECTION 606. MONEY HELD IN TRUST.
Money in any Currency held by the Trustee or any Paying
Agent in trust hereunder need not be segregated from other funds
except to the extent required by law. Neither the Trustee nor
any Paying Agent shall be under any liability for interest on any
money received by it hereunder except as otherwise agreed with
the Company.
SECTION 607. COMPENSATION, INDEMNIFICATION AND REIMBURSEMENT.
The Company agrees:
45
(1) to pay to the Trustee from time to time
reasonable compensation in Dollars 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 in Dollars 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 in Dollars the Trustee for, and to
hold it harmless against, any loss, liability or expense
incurred without negligence or bad faith on its part arising
out of or in connection with the acceptance or
administration of this trust or performance of its duties
hereunder, 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 claim
prior to the Debt Securities upon all property and funds held or
collected by the Trustee as such, except funds held in trust for
the payment of amounts due on the Debt Securities.
The obligations of the Company under this SECTION 607
to compensate and indemnify the Trustee for expenses,
disbursements and advances shall constitute additional
indebtedness under this Indenture and shall survive the
satisfaction and discharge of this Indenture.
SECTION 608. RESIGNATION AND REMOVAL; APPOINTMENT 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 609.
(b) The Trustee may resign at any time with respect to
the Debt Securities of one or more series by giving written
notice thereof to the Company. If an instrument of acceptance by
a successor Trustee shall not have been delivered to the Trustee
within 30 days after the giving of such notice of resignation,
the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with
respect to the Debt Securities of such series.
(c) The Trustee may be removed at any time with
respect to the Debt Securities of any series and a successor
Trustee appointed by Act of the Holders of a majority in
principal amount of the Outstanding Debt Securities of such
series, delivered to the Trustee and to the Company.
46
(d) If at any time:
(1) the Trustee shall fail to comply with Section
310(b) of the Trust Indenture Act with respect to the Debt
Securities of any series after written request therefor by
the Company or by any Holder who has been a BONA FIDE Holder
of a Debt Security of such series for at least six months;
or
(2) the Trustee shall cease to be eligible under
Section 310(a) of the Trust Indenture Act with respect to
the Debt Securities of any series and shall fail to resign
after written request therefor by the Company or by any such
Holder; or
(3) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of
the Trustee or of its property shall be appointed or any
public officer shall take charge or control of the Trustee
or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
then, in any such case, (i) the Company by a Board Resolution may
remove the Trustee with respect to all Debt Securities, or (ii)
subject to SECTION 514, any Holder who has been a BONA FIDE
Holder of a Debt Security of any series for at least six months
may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of
the Trustee and the appointment of a successor Trustee for the
Debt Securities of such series;
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of
Trustee for any cause, with respect to the Debt Securities of one
or more series, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee or Trustees with respect to
the Debt Securities of that or those series (it being understood
that any such successor Trustee may be appointed with respect to
the Debt Securities of one or more or all of such series and that
at any time there shall be only one Trustee with respect to the
Debt Securities of any particular series) and shall comply with
the applicable requirements of SECTION 609. If, within one year
after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to
the Debt Securities of any series shall be appointed by Act of
the Holders of a majority in principal amount of the Outstanding
Debt 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 the Debt Securities of such
series and to that extent supersede the successor Trustee
appointed by the Company. If no successor Trustee with respect
to the Debt Securities of any series shall have been so appointed
by the Company or the Holders of such series and accepted
appointment in the manner hereinafter provided, any Holder who
has been a BONA FIDE Holder of a Debt Security of such series for
at least six months may, subject to SECTION 514, on behalf of
himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee
with respect to the Debt Securities of such series.
(f) The Company shall give notice of each resignation
and each removal of the Trustee with respect to the Debt
Securities of any series and each appointment of a successor
47
Trustee with respect to the Debt Securities of any series in the
manner and to the extent provided in SECTION 105 to the Holders
of Debt Securities of such series. Each notice shall include the
name of the successor Trustee with respect to the Debt Securities
of such series and the address of its Corporate Trust Office.
(g) If the Trustee has or shall acquire any
conflicting interest within the meaning of the Trust Indenture
Act with respect to the Debt Securities of any series, it shall
either eliminate such conflicting interest or resign with respect
to the Debt Securities of that series in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and
this Indenture, and the Company shall take prompt action to have
a successor Trustee with respect to the Debt Securities of that
series appointed in the manner provided herein.
(h) There shall at all times be a Trustee hereunder
with respect to the Debt Securities of each series, which shall
be a Person that is eligible pursuant to the Trust Indenture
Act to act as such, having a combined capital and surplus of at
least $50,000,000, subject to supervision or examination by
Federal or State authority and having its Corporate Trust Office
in Chicago, Illinois or New York, New York. If such corporation
publishes reports of condition at least annually, pursuant to law
or the requirements of said supervising or examining authority,
then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to
be eligible in accordance with the provisions of this Section,
it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 609. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In the case of an appointment hereunder of a
successor Trustee with respect to all Debt Securities, each such
successor Trustee so appointed shall execute, acknowledge and
deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on request of the Company or
the successor Trustee, such retiring Trustee shall, upon payment
of its charges, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the
retiring Trustee, and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such
retiring Trustee hereunder, subject nevertheless to its claim, if
any, provided for in SECTION 607.
(b) In case of the appointment hereunder of a
successor Trustee with respect to the Debt Securities of one or
more (but not all) series, the Company, the retiring Trustee and
each successor Trustee with respect to the Debt Securities of one
or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept
such appointment and which (1) shall contain such provisions as
shall be necessary or desirable to transfer and confirm to, and
to vest in, each successor Trustee all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Debt
Securities of that or those series to which
48
the appointment of such successor Trustee relates, (2) if the
retiring Trustee is not retiring with respect to all Debt
Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the
Debt Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by
more than one Trustee, it being understood that nothing herein
or in any 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 other trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of
any such supplemental indenture the resignation or removal of
the retiring Trustee shall become effective to the extent
provided therein and each such successor Trustee, without any
further act, deed or conveyance, shall become vested with all
the rights, powers, trusts and duties of the retiring Trustee
with respect to the Debt Securities of that or those series to
which the appointment of such successor Trustee relates; but, on
request of the Company or any successor Trustee, such retiring
Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring
Trustee hereunder with respect to the Debt Securities of that or
those series to which the appointment of such successor Trustee
relates.
(c) Upon request of any such successor Trustee, the
Company shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all
such rights, powers and trusts referred to in paragraph (a) or
(b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment
unless at the time of such acceptance such successor Trustee
shall be qualified and eligible under this Article.
SECTION 610. 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 that 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 Debt 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 Debt Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Debt
Securities. In case any Debt Securities shall not have been
authenticated by such predecessor Trustee, any such successor
Trustee may authenticate and deliver such Debt Securities, in
either its own name or that of its predecessor Trustee, with the
full force and effect which this Indenture provides for the
certificate of authentication of the Trustee.
49
SECTION 611. APPOINTMENT OF AUTHENTICATING AGENT.
As long as any Debt Securities of a series remain
Outstanding, upon a Company Request, there shall be an
authenticating agent (the "Authenticating Agent") appointed, for
such period as the Company shall elect, by the Trustee for such
series of Debt Securities to act as its agent on its behalf and
subject to its direction in connection with the authentication
and delivery of each series of Debt Securities for which it is
serving as Trustee. Debt Securities of each such series
authenticated by such Authenticating Agent shall be entitled to
the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by such Trustee. Wherever
reference is made in this Indenture to the authentication and
delivery of Debt Securities of any series by the Trustee for such
series or to the Trustee's Certificate of Authentication, such
reference shall be deemed to include authentication and delivery
on behalf of the Trustee for such series by an Authenticating
Agent for such series and a Certificate of Authentication
executed on behalf of such Trustee by such Authenticating Agent
except that only the Trustee may authenticate Debt Securities
upon original issuance and pursuant to SECTION 306 hereof. Such
Authenticating Agent shall at all times be a corporation
organized and doing business under the laws of the United States
of America or of any State, authorized under such laws to
exercise corporate trust powers, having a combined capital and
surplus of at least $25,000,000 and 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 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 any Authenticating Agent may
be merged or converted, or with which it may be consolidated, or
any corporation resulting from any merger, conversion or
consolidation to which any Authenticating Agent shall be a party,
or any corporation succeeding to the corporate agency business of
any Authenticating Agent, shall continue to be the Authenticating
Agent with respect to all series of Debt Securities for which it
served as Authenticating Agent without the execution or filing of
any paper or any further act on the part of the Trustee for such
series or such Authenticating Agent. Any Authenticating Agent
may at any time, and if it shall cease to be eligible, shall
resign by giving written notice of resignation to the applicable
Trustee and to the Company.
Upon receiving such a notice of resignation or upon
such a termination, or in case at any time any Authenticating
Agent shall cease to be eligible in accordance with the
provisions of this SECTION 611 with respect to one or more of all
series of Debt Securities, the Trustee for such series shall upon
Company Request appoint a successor Authenticating Agent, and the
Company shall provide notice of such appointment to all Holders
of Debt Securities of such series in the manner and to the extent
provided in SECTION 105. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with
all rights, powers, duties and responsibilities of its
predecessor hereunder, with like effect as if originally named
50
as Authenticating Agent herein. The Trustee for the Debt
Securities of such series agrees to pay to the Authenticating
Agent for such series from time to time reasonable compensation
for its services, and the Trustee shall be entitled to be
reimbursed for such payment, subject to the provisions of
SECTION 607. The Authenticating Agent for the Debt Securities of
any series shall have no responsibility or liability for any
action taken by it as such at the direction of the Trustee for
such series.
If an appointment with respect to one or more series is
made pursuant to this Section, the Debt Securities of such series
may have endorsed thereon, in addition to the Trustee's
certificate of authentication, an alternative certificate of
authentication in the following form:
This is one of the series of Debt Securities issued
under the within mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By ________________________________
As Authenticating Agent
By ________________________________
Authorized Signatory
SECTION 612. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If and when the Trustee becomes a creditor of the Company
(or any other obligor upon the Debt Securities), the Trustee
shall be subject to the provisions of the Trust Indenture Act
regarding the collection of claims against the Company (or any
such other obligor). A Trustee that has resigned or been removed
is subject to such provisions of the Trust Indenture Act to the
extent provided therein.
51
ARTICLE SEVEN
CONCERNING THE HOLDERS
SECTION 701. ACTS OF HOLDERS.
Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be
given or taken by Holders may be embodied in and evidenced by one
or more instruments of substantially similar tenor signed by such
Holders in person or by an agent or proxy 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 Holders signing such
instrument or instruments. Whenever in this Indenture it is
provided that the Holders of a specified percentage in aggregate
principal amount of the Outstanding Debt Securities of any series
may take any Act, the fact that the Holders of such specified
percentage have joined therein may be evidenced (a) by the
instrument or instruments executed by Holders in person or by
agent or proxy appointed in writing, or (b) by the record of
Holders voting in favor thereof at any meeting of such Holders
duly called and held in accordance with the provisions of ARTICLE
EIGHT, or (c) by a combination of such instrument or instruments
and any such record of such a meeting of Holders.
SECTION 702. PROOF OF OWNERSHIP; PROOF OF EXECUTION OF
INSTRUMENTS BY HOLDERS.
The ownership of Debt Securities of any series shall be
proved by the Security Register for such series or by a
certificate of the Security Registrar for such series.
Subject to the provisions of SECTION 603 and 805, proof
of the execution of a writing appointing an agent or proxy and of
the execution of any instrument by a Holder or his agent or proxy
shall be sufficient and conclusive in favor of the Trustee and
the Company if made in the following manner:
The fact and date of the execution by any such person
of any instrument may be proved by the certificate of any notary
public or other officer authorized to take acknowledgement of
deeds, that the person executing such instrument acknowledged to
him the execution thereof, or by an affidavit of a witness to
such execution sworn to before any such notary or other such
officer. Where such execution is by an officer of a corporation
or association or a member of a partnership on behalf of such
corporation, association or partnership, as the case may be, or
by any other person acting in a representative capacity, such
certificate or affidavit shall also constitute sufficient proof
of his authority.
The record of any Holders' meeting shall be proved in
the manner provided in SECTION 806.
52
The Trustee may in any instance require further proof
with respect to any of the matters referred to in this Section so
long as the request is a reasonable one.
SECTION 703. PERSONS DEEMED OWNERS.
The Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name any Debt
Security is registered as the owner of such Debt Security for the
purpose of receiving payment of the principal of (and premium, if
any) and (subject to SECTION 307) interest, if any, on such Debt
Security and for all other purposes whatsoever, whether or not
such Debt Security be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary. All payments made to any
Holder, or upon his order, shall be valid, and, to the extent of
the sum or sums paid, effectual to satisfy and discharge the
liability for moneys payable upon such Debt Security.
SECTION 704. REVOCATION OF CONSENTS; FUTURE HOLDERS BOUND.
At any time prior to (but not after) the evidencing to
the Trustee, as provided in SECTION 701, of the taking of any Act
by the Holders of the percentage in aggregate principal amount of
the Outstanding Debt Securities specified in this Indenture in
connection with such Act, any Holder of a Debt Security the
number, letter or other distinguishing symbol of which is shown
by the evidence to be included in the Debt Securities the Holders
of which have consented to such Act may, by filing written notice
with the Trustee at the Corporate Trust Office and upon proof of
ownership as provided in SECTION 702, revoke such Act so far as
it concerns such Debt Security. Except as aforesaid, any such
Act taken by the Holder of any Debt Security shall be conclusive
and binding upon such Holder and upon all future Holders of such
Debt Security and of any Debt Securities issued on transfer or in
lieu thereof or in exchange or substitution therefor,
irrespective of whether or not any notation in regard thereto is
made upon such Debt Security or such other Debt Securities.
ARTICLE EIGHT
HOLDERS' MEETINGS
SECTION 801. PURPOSES OF MEETINGS.
A meeting of Holders of any or all series may be called
at any time and from time to time pursuant to the provisions of
this ARTICLE EIGHT for any of the following purposes:
(1) to give any notice to the Company or to the
Trustee for such series, or to give any directions to the
Trustee for such series, or to consent to the waiving of any
default hereunder and its consequences, or to take any other
action authorized to be taken by Holders pursuant to any of
the provisions of ARTICLE FIVE;
53
(2) to remove the Trustee for such series and appoint
a successor Trustee pursuant to the provisions of ARTICLE
SIX;
(3) to consent to the execution of an indenture or
indentures supplemental hereto pursuant to the provisions of
SECTION 1002; or
(4) to take any other action authorized to be taken by
or on behalf of the Holders of any specified aggregate
principal amount of the Outstanding Debt Securities of any
one or more or all series, as the case may be, under any
other provision of this Indenture or under applicable law.
SECTION 802. CALL OF MEETINGS BY TRUSTEE.
The Trustee for any series may at any time call a
meeting of Holders of such series to take any action specified in
SECTION 801, to be held at such time or times and at such place
or places as the Trustee for such series shall determine. Notice
of every meeting of the Holders of any series, setting forth the
time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be given to
Holders of such series in the manner and to the extent provided
in SECTION 105. Such notice shall be given not less than 20 days
nor more than 90 days prior to the date fixed for the meeting.
SECTION 803. CALL OF MEETINGS BY COMPANY OR HOLDERS.
In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 10% in aggregate principal
amount of the Outstanding Debt Securities of a series or of all
series, as the case may be, shall have requested the Trustee for
such series to call a meeting of Holders of any or all such
series by written request setting forth in reasonable detail the
action proposed to be taken at the meeting, and the Trustee shall
not have given the notice of such meeting within 20 days after
the receipt of such request, then the Company or such Holders may
determine the time or times and the place or places for such
meetings and may call such meetings to take any action authorized
in SECTION 801, by giving notice thereof as provided in SECTION
802.
SECTION 804. QUALIFICATIONS FOR VOTING.
To be entitled to vote at any meeting of Holders a
Person shall be (a) a Holder of a Debt Security of the series
with respect to which such meeting is being held or (b) a Person
appointed by an instrument in writing as agent or proxy by such
Holder. The only Persons who shall be entitled to be present or
to speak at any meeting of Holders shall be the Persons entitled
to vote at such meeting and their counsel and any representatives
of the Trustee for the series with respect to which such meeting
is being held and its counsel and any representatives of the
Company and its counsel.
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SECTION 805. REGULATIONS.
Notwithstanding any other provisions of this Indenture,
the Trustee for any series may make such reasonable regulations
as it may deem advisable for any meeting of Holders of such
series, in regard to proof of the holding of Debt Securities of
such series and of the appointment of proxies, and in regard to
the appointment and duties of inspectors of votes, the submission
and examination of proxies, certificates and other evidence of
the right to vote, and such other matters concerning the conduct
of the meeting as it shall deem appropriate.
The Trustee shall, by an instrument in writing, appoint
a temporary chairman of the meeting, unless the meeting shall
have been called by the Company or by Holders of such series as
provided in SECTION 803, in which case the Company or the Holders
calling the meeting, as the case may be, shall in like manner
appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by a majority
vote of the meeting.
Subject to the provisos in the definition of
"Outstanding," at any meeting each Holder of a Debt Security of
the series with respect to which such meeting is being held or
proxy therefor shall be entitled to one vote for each $1,000
principal amount (or such other amount as shall be specified as
contemplated by SECTION 301) of Debt Securities of such series
held or represented by him; PROVIDED, HOWEVER, that no vote shall
be cast or counted at any meeting in respect of any Debt Security
challenged as not Outstanding and ruled by the chairman of the
meeting to be not Outstanding. The chairman of the meeting shall
have no right to vote other than by virtue of Outstanding Debt
Securities of such series held by him or instruments in writing
duly designating him as the person to vote on behalf of Holders
of Debt Securities of such series. Any meeting of Holders with
respect to which a meeting was duly called pursuant to the
provisions of SECTION 802 or 803 may be adjourned from time to
time by a majority of such Holders present and the meeting may be
held as so adjourned without further notice.
SECTION 806. VOTING.
The vote upon any resolution submitted to any meeting
of Holders with respect to which such meeting is being held shall
be by written ballots on which shall be subscribed the signatures
of such Holders or of their representatives by proxy and the
serial number or numbers of the Debt Securities held or
represented by them. The permanent chairman of the meeting shall
appoint two inspectors of votes who shall count all votes cast at
the meeting for or against any resolution and who shall make and
file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record
in duplicate of the proceedings of each meeting of Holders shall
be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of
votes on any vote by ballot taken thereat and affidavits by one
or more persons having knowledge of the facts setting forth a
copy of the notice of the meeting and showing that said notice
was transmitted as provided in SECTION 802. The record shall
show the serial numbers of the Debt Securities voting in favor of
or against any resolution. The record shall be signed and
verified by the
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affidavits of the permanent chairman and secretary of the
meeting and one of the duplicates shall be delivered to the
Company and the other to the Trustee to be preserved by the
Trustee.
Any record so signed and verified shall be conclusive
evidence of the matters therein stated.
SECTION 807. NO DELAY OF RIGHTS BY MEETING.
Nothing contained in this ARTICLE EIGHT shall be deemed
or construed to authorize or permit, by reason of any call of a
meeting of Holders or any rights expressly or impliedly conferred
hereunder to make such call, any hindrance or delay in the
exercise of any right or rights conferred upon or reserved to the
Trustee or to any Holder under any of the provisions of this
Indenture or of the Debt Securities of any series.
ARTICLE NINE
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 901. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN
TERMS.
The Company shall not consolidate with or merge into
any other corporation or convey, transfer or lease its properties
and assets substantially as an entirety to any Person, unless:
(1) the corporation formed by such consolidation or
into which the Company is merged or the Person which
acquires by conveyance or transfer, or which leases, the
properties and assets of the Company substantially as an
entirety (the "successor corporation") shall be a
corporation organized and existing under the laws of the
United States of America or any state or the District of
Columbia and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee,
in form reasonably satisfactory to the Trustee, the due and
punctual payment of the principal of (and premium, if any)
and interest on all the Debt Securities and the performance
of every covenant of this Indenture on the part of the
Company to be performed or observed;
(2) immediately after giving effect to such
transaction, no Event of Default, and no event which, after
notice or lapse of time, or both would become an Event of
Default, shall have happened and be continuing; and
(3) if, as a result of any such consolidation or
merger or such conveyance, transfer or lease, properties or
assets of the Company would become subject to a mortgage,
pledge, lien, security interest or other encumbrance that
would not be permitted by this Indenture, the Company or
such successor corporation or Person, as the case may be,
shall take such steps as shall be necessary effectively to
secure all Debt Securities equally and ratably with (or
prior to) all indebtedness secured thereby; and
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(4) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel each stating
that such consolidation, merger, conveyance, transfer or
lease and such supplemental indenture comply with this
Article and that all conditions precedent herein provided
for relating to such transaction have been complied with.
SECTION 902. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation with or merger into any other
corporation, or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety
in accordance with SECTION 901, the successor corporation formed
by such consolidation or into which the Company is merged or to
which such conveyance, transfer or lease is made shall succeed
to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect
as if such successor corporation had been named as the Company
herein, and thereafter the predecessor corporation shall be
relieved of all obligations and covenants under this Indenture
and the Debt Securities.
ARTICLE TEN
SUPPLEMENTAL INDENTURES
SECTION 1001. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF
HOLDERS.
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time
and from time to time, may enter into 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 such successor of the
covenants of the Company herein and in the Debt Securities
contained; or
(2) to add to the covenants of the Company, for the
benefit of the Holders of all or any series of Debt
Securities appertaining thereto (and if such covenants are
to be for the benefit of less than all series, stating that
such covenants are expressly being included solely for the
benefit of such series), or to surrender any right or power
herein conferred upon the Company; or
(3) to add any additional Events of Default (and if
such Events of Default are to be applicable to less than all
series, stating that such Events of Default are expressly
being included solely to be applicable to such series); or
(4) to change or eliminate any of the provisions of
this Indenture, PROVIDED that any such change or elimination
shall become effective only when there is no Outstanding
Debt Security of any series created prior to the execution
of such
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supplemental indenture that is entitled to the benefit of
such provision and as to which such supplemental indenture
would apply; or
(5) to secure the Debt Securities; or
(6) to supplement any of the provisions of this
Indenture to such extent as shall be necessary to permit or
facilitate the defeasance and discharge of any series of
Debt Securities pursuant to ARTICLE FOUR OR ARTICLE
FOURTEEN, PROVIDED that any such action shall not adversely
affect the interests of the Holders of Debt Securities of
such series or any other series of Debt Securities in any
material respect; or
(7) to establish the form or terms of Debt Securities
of any series as permitted by SECTIONS 201 and 301; or
(8) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to
one or more series of Debt Securities and to add to or
change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to
the requirements of SECTION 609; or
(9) to cure any ambiguity, to correct or supplement
any provision herein which may be defective or inconsistent
with any other provision herein, or to make any other
provisions with respect to matters or questions arising
under this Indenture which shall not be inconsistent with
any provision of this Indenture, PROVIDED such other
provisions shall not adversely affect the interests of the
Holders of Outstanding Debt Securities of any series created
prior to the execution of such supplemental indenture in any
material respect; or
(10) to change any place or places where (1) the
principal of and premium, if any, and interest, if any, on
all or any series of Debt Securities shall be payable, (2)
all or any series of Debt Securities may be surrendered for
registration or transfer, (3) all or any series of Debt
Securities may be surrendered for exchange, and (4) notices
and demands to or upon the Company in respect of all or any
series of Debt Securities and this Indenture may be served.
SECTION 1002. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a
majority in principal amount of the Outstanding Debt Securities
of each series affected by such supplemental indenture voting
separately, 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 under this Indenture of such Debt Securities; PROVIDED,
HOWEVER, that no
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such supplemental indenture shall, without the consent of the
Holder of each outstanding Debt Security of each such series
affected thereby,
(1) change the Stated Maturity of the principal of,
or installment of interest, if any, on, any Debt Security,
or reduce the principal amount thereof or the interest
thereon or any premium payable upon redemption thereof, or
change the Currency or Currencies in which the principal of
(and premium, if any) or interest on such Debt Security is
denominated or payable, or reduce the amount of the
principal of a Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity
thereof pursuant to SECTION 502, or adversely affect the
right of repayment or repurchase, if any, at the option of
the Holder, or reduce the amount of, or postpone the date
fixed for, any payment under any sinking fund or analogous
provisions for any Debt Security, or impair the right to
institute suit for the enforcement of any payment on or
after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date); or
(2) reduce the percentage in principal amount of the
Outstanding Debt Securities of any series, the consent of
whose Holders is required for any supplemental indenture, or
the consent of whose Holders is required for any waiver of
compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences provided
for in this Indenture; or
(3) modify any of the provisions of this Section,
SECTION 513 or SECTION 1109, 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 Debt Security
affected thereby; PROVIDED, HOWEVER, that this clause shall
not be deemed to require the consent of any Holder with
respect to changes in the references to "the Trustee" and
concomitant changes in this Section and SECTION 1109, or the
deletion of this proviso, in accordance with the
requirements of SECTIONS 609 and 1001(7).
It shall not be necessary for any Act of Holders 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.
A supplemental indenture which changes or eliminates
any covenant or other provision of this Indenture with respect to
one or more particular series of Debt Securities or which
modifies the rights of the Holders of Debt 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 Debt Securities of any other series.
SECTION 1003. 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
59
Indenture, the Trustee shall be entitled to receive, and (subject
to any incorporated provisions) 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 adversely affects the
Trustee's own rights, duties or immunities under this Indenture
or otherwise in a material way.
SECTION 1004. 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 Debt
Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
SECTION 1005. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this
Article shall conform to the requirements of the Trust Indenture
Act as then in effect.
SECTION 1006. REFERENCE IN DEBT SECURITIES TO SUPPLEMENTAL
INDENTURES.
Debt Securities of any series authenticated and delivered
after the execution of any supplemental indenture pursuant to
this Article may, and shall if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company
shall so determine, new Debt Securities of any series 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 Debt Securities of such
series.
SECTION 1007. NOTICE OF SUPPLEMENTAL INDENTURE.
Promptly after the execution by the Company and the
appropriate Trustee of any supplemental indenture pursuant to
SECTION 1002, the Company shall transmit, in the manner and to
the extent provided in SECTION 105, to all Holders of any series
of the Debt Securities affected thereby, a notice setting forth
in general terms the substance of such supplemental indenture.
ARTICLE ELEVEN
COVENANTS
SECTION 1101. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company covenants and agrees for the benefit of
each series of Debt Securities that it will duly and punctually
pay the principal of (and premium, if any) and interest on the
Debt Securities in accordance with the terms of the Debt
Securities and this Indenture.
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SECTION 1102. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in each Place of Payment for
each series of Debt Securities an office or agency where Debt
Securities of that series may be presented or surrendered for
payment, where Debt Securities of that series may be surrendered
for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Debt Securities
of that series and this Indenture may be served. The Company
will give prompt written notice to the Trustee of the location,
and any change in the location, of such office or agency. If at
any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of
the Trustee, and the Company hereby appoints the Trustee as its
agent to receive all presentations, surrenders, notices and
demands.
SECTION 1103. MONEY FOR DEBT SECURITIES; PAYMENTS TO BE HELD IN
TRUST.
If the Company shall at any time act as its own Paying
Agent with respect to any series of Debt Securities, it will, on
or before each due date of the principal of (and premium, if any)
or interest on any of the Debt 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 so to act.
Whenever the Company shall have one or more Paying
Agents with respect to any series of Debt Securities, it will, by
or on each due date of the principal (and premium, if any) or
interest on any Debt Securities of such series, deposit with any
such 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 thereto, and
(unless any 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 with respect
to any series of Debt Securities other than the Trustee to
execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee, subject to the
provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the
principal of (and premium, if any) or interest on Debt
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;
(2) give the Trustee notice of any default by the
Company (or any other obligor upon the Debt Securities of
such series) in the making of any payment of principal (and
premium, if any) or interest on the Debt Securities of such
series; and
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(3) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held in trust by such Paying
Agent.
The Company may at any time, for the purpose of
obtaining the satisfaction and discharge of this Indenture or for
any other purpose, pay, or by Company Order direct any Paying
Agent to pay, to the Trustee all sums held in trust by the
Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by
the Company or such Paying Agent; and, upon such payment by any
Paying Agent to the Trustee, such Paying Agent shall be released
from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying
Agent, or then held by the Company, in trust for the payment of
the principal of (and premium, if any) or interest on any Debt
Security of any series and remaining unclaimed for two years
after such principal (and premium, if any) or interest has became
due and payable shall be paid to the Company upon Company
Request, or (if then held by the Company) shall be discharged
from such trust; and the Holder of such Debt 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; PROVIDED, HOWEVER, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the
expense of the Company cause to be transmitted in the manner and
to the extent provided by SECTION 105, notice that such money
remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such
notification, any unclaimed balance of such money then remaining
will be repaid to the Company.
SECTION 1104. CORPORATE EXISTENCE.
Subject to ARTICLE NINE, the Company will do or cause
to be done all things necessary to preserve and keep in full
force and effect its corporate existence, rights (charter and
statutory) and franchises; PROVIDED, HOWEVER, that the Company
shall not be required to preserve any such right or franchise if
the Company shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company.
SECTION 1105. LIMITATIONS ON MORTGAGES.
Nothing in this Indenture or in the Debt Securities
shall in any way restrict or prevent the Company or any
Subsidiary from incurring any indebtedness; PROVIDED that the
Company covenants and agrees that neither it nor any Subsidiary
will issue, assume or guarantee any indebtedness or obligation
secured by Mortgages upon any Principal Property, without
effectively providing that the Debt Securities then Outstanding
and thereafter created (together with, if the Company so
determines, any other indebtedness or obligation then existing
and any other indebtedness or obligation thereafter created
ranking equally with the Debt Securities) shall be secured
equally and ratably with (or prior to) such indebtedness or
obligation as long as such
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indebtedness or obligation shall be so secured, except that the
foregoing provisions shall not apply to:
(a)(i) Mortgages to secure all or any part of the
purchase price or the cost of construction of property
acquired or constructed by the Company or a Subsidiary,
PROVIDED such indebtedness and related Mortgage are
incurred within 18 months after acquisition, or
completion of construction and full operation,
whichever is later;
(ii) Mortgages on property owned by the Company or
a Subsidiary to secure indebtedness incurred to
construct additions, substantial repairs or alterations
or substantial improvements to such properties,
PROVIDED the amount of such indebtedness does not
exceed the expense incurred to construct such
additions, substantial repairs or alterations or
substantial improvements and PROVIDED FURTHER that such
indebtedness and related Mortgage are incurred within
18 months after the completion of such construction,
repairs, alterations or improvements;
(b) Mortgages existing on property at the time of
acquisition of such property by the Company or a Subsidiary
or on the property of a Corporation at the time of the
acquisition of such Corporation by the Company or a
Subsidiary (including acquisitions through merger or
consolidation);
(c) Mortgages to secure indebtedness on which the
interest payments to bondholders are exempt from federal
income tax under Section 103 of the Code;
(d) In the case of a Consolidated Subsidiary,
Mortgages in favor of the Company or another Consolidated
Subsidiary;
(e) Mortgages existing on the date of this Indenture;
(f) Mortgages in favor of a government or
governmental entity that:
(i) secure indebtedness which is guaranteed
by the government or governmental entity, or
(ii) secure indebtedness incurred to finance
all or some of the purchase price or cost of
construction of goods, products or facilities produced
under contract or subcontract for the government or
governmental entity, or
(iii) secure indebtedness incurred to finance
all or some of the purchase price or cost of
construction of the property subject to the Mortgage;
(g) Mortgages incurred in connection with the
borrowing of funds if within 120 days after entering into
such Mortgage, such funds are used to repay indebtedness
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in the same principal amount secured by other Mortgages on
Principal Property with a fair market value at least equal
to the fair market value of the Principal Property that
secures the new Mortgages, in each case based on an
appraisal by an Independent professional appraiser;
(h) Mortgages arising in connection with the transfer
of tax benefits in accordance with Section 168(f)(8) of the
Code (or any similar provision of law from time to time in
effect); PROVIDED, that such Mortgages (i) are incurred
within 90 days (or any longer period, not in excess of one
year, as any such provision of law may from time to time
permit) after the acquisition of the property or equipment
subject to said Mortgage, (ii) do not extend to any other
property or equipment and (iii) are solely for the purpose
of said transfer of tax benefits or otherwise permitted by
this SECTION 1105; and
(i) Any extension, renewal or replacement (or
successive extensions, renewals or replacements), in whole
or in part, of any Mortgage referred to in the foregoing
clauses (a) to (h) inclusive or of any indebtedness secured
thereby; PROVIDED that the principal amount of indebtedness
secured thereby shall not exceed the principal amount of
indebtedness so secured at the time of such extension,
renewal or replacement, and that such extension, renewal or
replacement Mortgage shall be limited to all or part of
substantially the same property that secured the Mortgage
extended, renewed or replaced (plus improvements on such
property).
SECTION 1106. LIMITATIONS ON SALE AND LEASE-BACK.
The Company covenants and agrees that neither it nor
any Subsidiary will enter into any arrangement with any Person
(other than the Company or a Subsidiary), or to which any such
Person is a party, providing for the leasing to the Company or a
Subsidiary for a period of more than three years of any Principal
Property that has been or is to be sold or transferred by the
Company or such Subsidiary to such Person or to any other Person
(other than the Company or a Subsidiary), to which the funds have
been or are to be advanced by such Person on the security of the
leased property (in this Article Eleven called "Sale and
Lease-Back Transactions") unless either:
(i) the Company or such Subsidiary would be entitled,
pursuant to SECTION 1105, to incur indebtedness secured by a
Mortgage on the property to be leased, without equally and
ratable securing the Debt Securities, or
(ii) the Company (and in any such case the Company
covenants and agrees that it will do so) during or
immediately after the expiration of 120 days after the
effective date of such Sale and Lease-Back Transaction
(whether made by the Company or a Subsidiary) applies to the
voluntary retirement of Funded Debt and/or the acquisition
or construction of Principal Property an amount equal to the
value of such Sale and Lease-Back Transaction, less the
principal amount of Debt Securities delivered, within 120
days after the effective date of such arrangement, to the
Trustee for retirement and cancellation and the principal
amount of other Funded Debt voluntarily retired by the
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Company within such 120-day period, excluding retirements of
Debt Securities and other Funded Debt as a result of
conversions or pursuant to mandatory sinking fund or
prepayment provisions or by payment at maturity.
For purposes of this SECTION 1106, the term "value"
shall mean, with respect to a Sale and Lease-Back Transaction, as
of any particular time, the amount equal to the greater of (1)
the net proceeds of the sale or transfer of the property leased
pursuant to such Sale and Lease-Back Transaction or (2) the fair
value in the opinion of the Chief Financial Officer of the
Company of such property at the time of entering into such Sale
and Lease-Back Transaction, in either case divided first 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.
SECTION 1107. LIMITATIONS ON INCURRENCE OF DEBT OR ISSUANCE OF
PREFERRED STOCK BY RESTRICTED SUBSIDIARIES
The Company shall not permit any Restricted Subsidiary
to, directly or indirectly, create, incur, issue, assume or
otherwise become liable with respect to, extend the maturity of
or become responsible for the payment of, as applicable, any Debt
or Preferred Stock other than:
(i) Debt outstanding on the date of this Indenture;
(ii) Debt of a Restricted Subsidiary that
represents the assumption by such Restricted Subsidiary of
Debt of another Restricted Subsidiary;
(iii) Debt or Preferred Stock of any corporation
or partnership existing at the time such corporation or
partnership becomes a Subsidiary;
(iv) Debt of a Restricted Subsidiary arising from
agreements providing for indemnification, adjustment of
purchase price or similar obligations or from guarantees,
letters of credit, surety bonds or performance bonds
securing any obligations of the Company or any of its
Subsidiaries incurred or assumed in connection with the
disposition of any business, property or Subsidiary, other
than guarantees or similar credit support by any Restricted
Subsidiary of indebtedness incurred by any Person acquiring
all or any portion of such business, property or Subsidiary
for the purpose of financing such acquisition, PROVIDED
that the maximum aggregate liability in respect of all such
Debt in the nature of such guarantees will at no time exceed
the gross proceeds (including cash and the fair market value
of property other than cash) actually received from the
disposition of such business, property or Subsidiary;
(v) Debt of a Restricted Subsidiary in respect of
performance, surety and other similar bonds, bankers
acceptances and letters of credit provided by such
Restricted Subsidiary in the ordinary course of business;
65
(vi) Debt secured by a Mortgage incurred to finance the purchase
price or cost of construction of property (or additions,
substantial repairs, alterations or substantial improvements
thereto), provided that (A) such Mortgage and the Debt
secured thereby are incurred within 18 months of the later
of such acquisition or completion of construction (or such
addition, repair, alteration or improvement) and full
operation thereof and (B) such Mortgage does not relate to
any property other than the property so purchased or
constructed (or added, repaired, altered or improved);
(vii) Permitted Subsidiary Refinancing Debt;
(viii) Debt (including without limitation, Debt arising from a
guarantee) of a Restricted Subsidiary to the Company or
another Subsidiary, but only for so long as held or
owned by the Company or another Subsidiary; or
(ix) any obligation pursuant to a Sale and Lease-Back Transaction
permitted under SECTION 1106.
SECTION 1108. EXEMPTED TRANSACTIONS.
Notwithstanding the provisions of SECTIONS 1105, 1106
and 1107, the Company and any Subsidiary may issue, assume or
guarantee indebtedness secured by Mortgages and enter into Sale
and Lease-Back Transactions that would otherwise be subject to
the restrictions in SECTIONS 1105 and 1106, respectively, and any
Restricted Subsidiary may issue, assume or otherwise become
liable for any Debt or Preferred Stock that would otherwise be
subject to the restrictions in SECTION 1107, PROVIDED (a) the
aggregate outstanding principal amount of all other indebtedness
of the Company and its Subsidiaries that is subject to the
restrictions in SECTION 1105 (not including indebtedness
permitted to be secured under clauses (a) to (i), inclusive of
SECTION 1105), plus (b) the aggregate Attributable Debt in
respect of the Sale and Lease-Back Transactions in existence at
such time (not including Sale and Lease-Back Transactions
permitted by SECTION 1106(i) or (ii)), plus (c) the aggregate
principal amount of all Debt or Preferred Stock of any Restricted
Subsidiary subject to the restrictions in SECTION 1107, (not
including Debt or Preferred Stock permitted under clauses (i) to
(ix), inclusive, of SECTION 1107) does not exceed 15% of the
Consolidated Net Tangible Assets of the Company and its
Consolidated Subsidiaries.
SECTION 1109. OFFICERS' CERTIFICATE AS TO DEFAULT.
The Company will deliver to the Trustee, on or before a
date not more than four months after the end of each fiscal year
of the Company ending after the date hereof, an Officers'
Certificate stating whether or not to the best knowledge of the
signers thereof the Company is in default in the performance and
observation of any of the terms, provisions and conditions of
this Indenture, and, if the Company shall be in default,
specifying all such defaults and the nature thereof of which they
may have knowledge.
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ARTICLE TWELVE
REDEMPTION OF DEBT SECURITIES
SECTION 1201. APPLICABILITY OF ARTICLE.
Debt Securities of any series that are redeemable
before their Maturity shall be redeemable in accordance with
their terms and (except as otherwise specified pursuant to
SECTION 301 for Debt Securities of any series) in accordance with
this Article.
SECTION 1202. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem (or, in the case
of Discount Securities, to permit the Holders to elect to
surrender for redemption) any Debt Securities shall be evidenced
by a Board Resolution. In case of any redemption at the election
of the Company of less than all of the Debt Securities of any
series pursuant to SECTION 1204, the Company shall, at least 60
days prior 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
Debt Securities of such series to be redeemed. In the case of
any redemption of Debt Securities prior to the expiration of any
restriction on such redemption provided in the terms of such Debt
Securities or elsewhere in this Indenture, the Company shall
furnish the Trustee with an Officer's Certificate evidencing
compliance with such restrictions.
SECTION 1203. SELECTION BY TRUSTEE OF DEBT SECURITIES TO BE
REDEEMED.
If less than all the Debt Securities of any series are
to be redeemed at the election of the Company, the particular
Debt Securities to be redeemed shall be selected not more than 60
days prior to the Redemption Date by the Trustee, from the
Outstanding Debt Securities of such series not previously called
for redemption, by such method as the Trustee shall deem fair and
appropriate and which may provide for the selection for
redemption of portions (equal to the minimum authorized
denomination for Debt Securities of such series or any integral
multiple thereof) of the principal amount of Debt Securities of
such series in a denomination larger than the minimum authorized
denomination for Debt Securities of such series pursuant to
SECTION 302 in the Currency in which the Debt Securities of such
series are denominated. The portions of the principal amount of
Debt Securities so selected for partial redemption shall be equal
to the minimum authorized denominations for Debt Securities of
such series pursuant to SECTION 302 in the Currency in which the
Debt Securities of such series are denominated or any integral
multiple thereof, except as otherwise set forth in the applicable
form of Debt Securities. In any case where more than one Debt
Security of such series is registered in the same name, the
Trustee in its discretion may treat the aggregate principal
amount so registered as if it were represented by one Debt
Security of such series.
The Trustee shall promptly notify the Company in
writing of the Debt Securities selected for redemption and, in
the case of any Debt Securities selected for partial redemption,
the principal amount thereof to be redeemed.
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For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of
Debt Securities shall relate, in the case of any Debt Security
redeemed or to be redeemed only in part, to the portion of the
principal amount of such Debt Security that has been or is to be
redeemed.
SECTION 1204. NOTICE OF REDEMPTION.
Notice of redemption shall be given by the Company, or
at the Company's request, by the Trustee in the name and at the
expense of the Company, not less than 30 days and not more than
60 days prior to the Redemption Date to the Holders of Debt
Securities of any series to be redeemed in whole or in part
pursuant to this ARTICLE TWELVE, in the manner provided in
SECTION 105. Any notice so given shall be conclusively presumed
to have been duly given, whether or not the Holder receives such
notice. Failure to give such notice, or any defect in such
notice to the Holder of any Debt Security of a series designated
for redemption, in whole or in part, shall not affect the
sufficiency of any notice of redemption with respect to the
Holder of any other Debt Security of such series.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) that Debt Securities of such series are being
redeemed by the Company pursuant to provisions contained in
this Indenture or the terms of the Debt Securities of such
series or a supplemental indenture establishing such series,
if such be the case, together with a brief statement of the
facts permitting such redemption,
(4) if less than all Outstanding Debt Securities of
any series are to be redeemed, the identification (and, in
the case of partial redemption, the principal amounts) of
the particular Debt Securities to be redeemed,
(5) that on the Redemption Date the Redemption Price
will become due and payable upon each such Debt Security to
be redeemed, and that interest thereon, if any, shall cease
to accrue on and after said date,
(6) the Place or Places of Payment where such Debt
Securities are to be surrendered for payment of the
Redemption Price, and
(7) that the redemption is for a sinking fund, if
such is the case.
SECTION 1205. DEPOSIT OF REDEMPTION PRICE.
On or prior to the Redemption Date for any Debt
Securities, the Company shall deposit with the Trustee or with a
Paying Agent (or, if the Company is acting as its own Paying
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Agent, segregate and hold in trust as provided in SECTION 1103)
an amount of money in the Currency or Currencies in which such
Debt Securities are denominated (except as provided pursuant to
SECTION 301) sufficient to pay the Redemption Price of such Debt
Securities or any portions thereof that are to be redeemed on
that date.
SECTION 1206. DEBT SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid,
any Debt Securities so to be redeemed shall, on the Redemption
Date, become due and payable at the Redemption Price in the
Currency in which the Debt Securities of such series are payable
(except as otherwise specified pursuant to SECTIONS 301 or 310),
and from and after such date (unless the Company shall default in
the payment of the Redemption Price) such Debt Securities shall
cease to bear interest. Upon surrender of any such Debt Security
for redemption in accordance with said notice, such Debt Security
shall be paid by the Company at the Redemption Price; PROVIDED,
HOWEVER, that, unless otherwise specified as contemplated by
SECTION 301, installments of interest on Debt Securities that
have a Stated Maturity or on prior to the Redemption Date for
such Debt Securities shall be payable according to the terms of
such Debt Securities and the provisions of SECTION 307.
If any Debt Security called for redemption shall not be
so paid upon surrender thereof for redemption, the principal (and
premium, if any) shall, until paid, bear interest from the
Redemption Date at the rate prescribed therefor in the Debt
Security.
SECTION 1207. DEBT SECURITIES REDEEMED IN PART.
Any Debt Security that is to be redeemed only in part
shall be surrendered at the Corporate Trust Office or such other
office or agency of the Company as is specified pursuant to
SECTION 301 with, if the Company, the Security Registrar or the
Trustee so requires, due endorsement by, or a written instrument
of transfer in form satisfactory to the Company, the Security
Registrar and the Trustee duly executed by, the Holder thereof or
his attorney duly authorized in writing, and the Company shall
execute, and the Trustee shall authenticate and deliver to the
Holder of such Debt Security without service charge, a new Debt
Security or Debt Securities of the same series, of like tenor and
form, of any authorized denomination as requested by such Holder
in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Debt Security so
surrendered. In the case of a Debt Security providing
appropriate space for such notation, at the option of the Holder
thereof, the Trustee, in lieu of delivering a new Debt Security
or Debt Securities as aforesaid, may make a notation on such Debt
Security of the payment of the redeemed portion thereof.
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ARTICLE THIRTEEN
SINKING FUNDS
SECTION 1301. APPLICABILITY OF ARTICLE.
The provisions of this ARTICLE THIRTEEN shall be
applicable to any sinking fund for the retirement of Debt
Securities of a series except as otherwise specified pursuant to
SECTION 301 for Debt Securities of such series.
The minimum amount of any sinking fund payment provided
for by the terms of Debt Securities of any series is herein
referred to as a "mandatory sinking fund payment," and any
payment in excess of such minimum amount provided for by the
terms of Debt Securities of any series is herein referred to as
an "optional sinking fund payment." If provided for by the terms
of Debt Securities of any series, the amount of any cash sinking
fund payment may be subject to reduction as provided in SECTION
1302. Each sinking fund payment shall be applied to the
redemption of Debt Securities of any series as provided for by
the terms of Debt Securities of such series.
SECTION 1302. SATISFACTION OF MANDATORY SINKING FUND PAYMENTS
WITH DEBT SECURITIES.
In lieu of making all or any part of a mandatory
sinking fund payment with respect to any Debt Securities of a
series in cash, the Company may at its option, at any time no
less than 45 days prior to the date on which such sinking fund
payment is due, deliver to the Trustee Debt Securities of such
series theretofore purchased or otherwise acquired by the
Company, except Debt Securities of such series that have been
redeemed through the application of mandatory or optional sinking
fund payments pursuant to the terms of the Debt Securities of
such series, accompanied by a Company Order instructing the
Trustee to credit such obligations and stating that the Debt
Securities of such series were originally issued by the Company
by way of bona fide sale or other negotiation for value; PROVIDED
that such Debt Securities shall not have been previously so
credited. Such Debt Securities shall be received and credited
for such purpose by the Trustee at the Redemption Price specified
in such Debt Securities for redemption through operation of the
sinking fund and the amount of such mandatary sinking fund
payment shall be reduced accordingly.
SECTION 1303. REDEMPTION OF DEBT SECURITIES FOR SINKING FUND.
Not less than 60 days prior to each sinking fund
payment date for any series of Debt Securities (unless a shorter
period shall be satisfactory to the Trustee), the Company will
deliver to the Trustee an Officer's Certificate specifying the
amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if
any, that is to be satisfied by payment of cash in the Currency
or Currencies in which the Debt Securities of such series are
denominated (except as provided pursuant to SECTION 301) and the
portion thereof, if any, that is to be satisfied by delivering
and crediting Debt Securities of such series pursuant to SECTION
1302 and whether the Company intends to exercise its rights to
make a
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permitted optional sinking fund payment with respect to such
series. Such certificate shall be irrevocable and upon its
delivery the Company shall be obligated to make the cash payment
or payments therein referred to, if any, on or before the next
succeeding sinking fund payment date. In the case of the failure
of the Company to deliver such certificate, the sinking fund
payment due on the next succeeding sinking fund payment date for
such series shall be paid entirely in cash and shall be
sufficient to redeem the principal amount of the Debt Securities
of such series subject to a mandatory sinking fund payment
without the right to deliver or credit Debt Securities as
provided in SECTION 1302 and without the right to make any
optional sinking fund payment with respect to such series at such
time.
Any sinking fund payment or payments (mandatory or
optional) made in cash plus any unused balance of any preceding
sinking fund payments made with respect to the Debt Securities of
any particular series shall be applied by the Trustee (or by the
Company if the Company is acting as its own Paying Agent) on the
sinking fund payment date on which such payment is made (or, if
such payment is made before a sinking fund payment date, on the
sinking fund payment date immediately following the date of such
payment) to the redemption of Debt Securities of such series at
the Redemption Price specified in such Debt Securities with
respect to the sinking fund. Any sinking fund moneys not so
applied or allocated by the Trustee (or by the Company if the
Company is acting as its own Paying Agent) to the redemption of
Debt Securities shall be added to the next sinking fund payment
received by the Trustee (or if the Company is acting as its own
Paying Agent, segregated and held in trust as provided in SECTION
1103) for such series and, together with such payment (or such
amount so segregated) shall be applied in accordance with the
provisions of this Section. Any and all sinking fund moneys with
respect to the Debt Securities of any particular series held by
the Trustee (or if the Company is acting as its own Paying Agent,
segregated and held in trust as provided in SECTION 1103) on the
last sinking fund payment date with respect to Debt Securities of
such series and not held for the payment or redemption of
particular Debt Securities of such series shall be applied by the
Trustee (or by the Company if the Company is acting as its own
Paying Agent), together with other moneys, if necessary, to be
deposited (or segregated) sufficient for the purpose, to the
payment of the principal of the Debt Securities of such series at
Maturity.
The Trustee shall select or cause to be selected the
Debt Securities to be redeemed upon such sinking fund payment
date in the manner specified in SECTION 1203 and the Company
shall cause notice of the redemption thereof to be given in the
manner provided in SECTION 1204. Such notice having been duly
given, the redemption of such Debt Securities shall be made upon
the terms and in the manner stated in SECTION 1206.
On or before each sinking fund payment date, the
Company shall pay to the Trustee (or, if the Company is acting as
its own Paying Agent, the Company shall segregate and hold in
trust as provided in SECTION 1103) in cash a sum, in the Currency
or Currencies in which Debt Securities of such series are
denominated (except as provided pursuant to SECTIONS 301 or 310),
equal to the principal and interest accrued to the Redemption
Date for Debt Securities or portions thereof to be redeemed on
such sinking fund payment date pursuant to this Section.
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Neither the Trustee nor the Company shall redeem any
Debt Securities of a series with sinking fund moneys or mail any
notice of redemption of Debt Securities of such series by
operation of the sinking fund for such series during the
continuance of a default in payment of interest, if any, on any
Debt Securities of such series or of any Event of Default (other
than an Event of Default occurring as a consequence of this
paragraph) with respect to the Debt Securities of such series,
except that if the notice of redemption shall have been provided
in accordance with the provisions hereof, the Trustee (or the
Company, if the Company is then acting as its own Paying Agent)
shall redeem such Debt Securities if cash sufficient for that
purpose shall be deposited with the Trustee (or segregated by the
Company) for that purpose in accordance with the terms of this
Article. Except as aforesaid, any moneys in the sinking fund for
such series at the time when any such default or Event of Default
shall occur and any moneys thereafter paid into such sinking fund
shall, during the continuance of such default or Event of
Default, be held as security for the payment of the Debt
Securities of such series; PROVIDED, HOWEVER, that in case such
default or Event of Default shall have been cured or waived as
provided herein, such moneys shall thereafter be applied on the
next sinking fund payment date for the Debt Securities of such
series on which such moneys may be applied pursuant to the
provisions of this Section.
ARTICLE FOURTEEN
DEFEASANCE
SECTION 1401. APPLICABILITY OF ARTICLE.
If, pursuant to SECTION 301, provision is made for the
defeasance of Debt Securities of a series, and if the Debt
Securities of such series are denominated and payable only in
Dollars (except as provided pursuant to SECTION 301) then the
provisions of this Article shall be applicable except as
otherwise specified pursuant to SECTION 301 for Debt Securities
of such series. Defeasance provisions, if any, for Debt
Securities denominated in a Foreign Currency or Currencies may be
specified pursuant to SECTION 301.
SECTION 1402. DEFEASANCE UPON DEPOSIT OF MONEYS OR U.S.
GOVERNMENT OBLIGATIONS.
At the Company's option, either (a) the Company shall
be deemed to have been Discharged (as defined below) from its
obligations with respect to Debt Securities of any series on the
91st day after the applicable conditions set forth below have
been satisfied or (b) the Company shall cease to be under any
obligation to comply with any term, provision or condition set
forth in SECTIONS 901, 1105, 1106, 1107, 1108 and 1109 with
respect to Debt Securities of any series (and, if so specified
pursuant to SECTION 301, any other restrictive covenant added for
the benefit of such series pursuant to SECTION 301) 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 pledged as security for, and dedicated
72
solely to, the benefit of the Holders of the Debt Securities
of such series (i) money in an amount, or (ii) U.S.
Government Obligations (as defined below) 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 (i) and (ii)) 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 any mandatory sinking fund payments) of and
premium, if any, and interest on, the Outstanding Debt
Securities of such series on the dates such installments of
interest or principal and premium are due;
(2) such deposit will not result in a breach or
violation of, or constitute a default under, this Indenture
or any other agreement or instrument to which the Company is
a party or by which it is bound;
(3) if the Debt Securities of such series are then
listed on any national securities exchange, the Company
shall have delivered to the Trustee an Opinion of Counsel to
the effect that the Company's exercise of its option under
this Section would not cause such Debt Securities to be
delisted;
(4) no Event of Default or event (including such
deposit) which, with notice or lapse of time or both, would
become an Event of Default with respect to the Debt
Securities of such series shall have occurred and be
continuing on the date of such deposit and no Event of
Default under SECTION 501(5) or SECTION 501(6) or event
which with the giving of notice or lapse of time, or both,
would become an Event of Default under SECTION 501(5) or
SECTION 501(6) shall have occurred and be continuing on the
91st day after such date; and
(5) the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that the Holders of the
Debt Securities of such series will not recognize income,
gain or loss for federal income tax purposes as a result of
such deposit, defeasance or Discharge.
"Discharged" means that the Company shall be deemed to
have paid and discharged the entire indebtedness represented by,
and obligations under, the Debt Securities of such series and to
have satisfied all the obligations under this Indenture relating
to the Debt 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 Debt
Securities of such series to receive, from the trust fund
described in clause (1) above, payment of the principal of (and
premium, if any) and interest on such Debt Securities when such
payments are due, (B) the Company's obligations with respect to
the Debt Securities of such series under SECTIONS 304, 305, 306,
1103 and 1403 and (C) the rights, powers, trusts, duties and
immunities of the Trustee hereunder.
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"U.S. Government Obligations" means securities that are
(i) direct obligations of the United States of America for the
payment of which its full faith and credit is pledged, or (ii)
obligations of a Person controlled or supervised by and acting as
an agency or instrumentality of the United States of America the
timely payment of which is unconditionally guaranteed as a full
faith and credit obligation by the United States of America,
which, in either case under clauses (i) or (ii), are not callable
or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank or trust company as
custodian with respect to any such U.S. Government Obligation or
a specific payment of interest on or principal of any such U.S.
Government Obligation held by such custodian for the account of
the holder of a depository receipt; PROVIDED that (except as
required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific payment
of interest on or principal of the U.S. Government Obligation
evidenced by such depository receipt.
SECTION 1403. DEPOSIT MONEYS AND U.S. GOVERNMENT OBLIGATIONS TO
BE HELD IN TRUST.
All moneys and U.S. Government Obligations deposited
with the Trustee pursuant to SECTION 1402 in respect of Debt
Securities of a series shall be held in trust and applied by it,
in accordance with the provisions of such Debt Securities and
this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying
Agent) as the Trustee may determine, to the Holders of such Debt
Securities, of all sums due and to become due thereon for
principal (and premium, if any) and interest, if any, but such
money need not be segregated from other funds except to the
extent required by law.
SECTION 1404. REPAYMENT TO COMPANY.
The Trustee and any Paying Agent shall promptly pay or
return to the Company upon Company Request any moneys or U.S.
Government Obligations held by them at any time that are not
required for the payment of the principal of (and premium, if
any) and interest on the Debt Securities of any series for which
money or U.S. Government Obligations have been deposited pursuant
to SECTION 1402.
The provisions of the last paragraph of SECTION 1103
shall apply to any money held by the Trustee or any Paying Agent
under this Article that remains unclaimed for two years after the
Maturity of any series of Debt Securities for which money or U.S.
Government Obligations have been deposited pursuant to SECTION
1402.
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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, all as of the day and
year first above written.
COLUMBIA HEALTHCARE CORPORATION
By: ________David G. Anderson______
Print Name: __David G. Anderson____
Title: _Vice President -- Finance__
Attest:
By: ______Joan O. Kroger______
Print Name: __Joan O. Kroger__
Title: __Corporate Secretary__
Seal
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By: ______John R. Prendiville______
Print Name: __John R. Prendiville__
Title: _______Vice President_______
Attest:
By: ______Grace A. Gorka______
Print Name: __Grace A. Gorka__
Title: _____Trust Officer_____
Seal
75
STATE OF )
) ss:
COUNTY OF )
On the 15th day of December 1993, before me
personally came David G. Anderson to me known, who, being by me
duly sworn, did depose and say that he is Vice President of
Finance of Columbia Healthcare Corporation, one of the corpora-
tions described in and which executed the foregoing instrument;
that he knows the seal of said corporation; that the seal affixed
to said instrument is such corporate seal; that it was so affixed
by authority of the Board of Directors of said corporation, and
that he signed his name thereto by like authority.
____Margaret Wood Schneider__
Notary Public
SEAL
76
STATE OF )
) ss:
COUNTY OF )
On the 16th day of December 1993, before me
personally came John R. Prendiville to me known, who, being by me
duly sworn, did depose and say that he is Vice President
of The First National Bank of Chicago, one of the corporations
described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said association, and that
he signed his name thereto by like authority.
_______Somsri Helmer________
Notary Public
SEAL
77