EXHIBIT 4(a)
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LA QUINTA INNS, INC.
as the Company
and
U.S. TRUST COMPANY OF TEXAS, N.A.
as Trustee
___________________________________
Indenture
Dated as of [Date of Indenture]
___________________________________
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TABLE OF CONTENTS*
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RECITALS OF THE COMPANY
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions........................................ 1
SECTION 1.2 Other Definitions.................................. 8
SECTION 1.3 Incorporation by Reference of
Trust Indenture Act............................... 9
SECTION 1.4 Rules of Construction.............................. 9
ARTICLE 2
THE SECURITIES
SECTION 2.1 Form.............................................. 10
SECTION 2.2 Execution and Authentication...................... 10
SECTION 2.3 Amount Unlimited; Issuable in Series.............. 12
SECTION 2.4 Denomination and Date of Securities; Payments
of Interest...................................... 15
SECTION 2.5 Registrar and Paying Agent; Agents Generally...... 16
SECTION 2.6 Paying Agent to Hold Money in Trust............... 17
SECTION 2.7 Transfer and Exchange............................. 18
SECTION 2.8 Replacement Securities............................ 21
SECTION 2.9 Outstanding Securities............................ 22
SECTION 2.10 Temporary Securities.............................. 23
SECTION 2.11 Cancellation...................................... 23
SECTION 2.12 CUSIP Numbers..................................... 24
SECTION 2.13 Defaulted Interest................................ 24
SECTION 2.14 Series May Include Tranches....................... 24
ARTICLE 3
REDEMPTION
SECTION 3.1 Applicability of Article.......................... 25
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*Note: The Table of Contents shall not for any
purposes be deemed to be a part of the
Indenture.
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SECTION 3.2 Notice of Redemption; Partial Redemptions........ 25
SECTION 3.3 Payment of Securities Called for Redemption...... 27
SECTION 3.4 Exclusion of Certain Securities from Eligibility
for Selection for Redemption.................... 28
SECTION 3.5 Mandatory and Optional Sinking Funds............. 28
ARTICLE 4
COVENANTS
SECTION 4.1 Payment of Securities............................ 31
SECTION 4.2 Maintenance of Office or Agency.................. 33
SECTION 4.3 Negative Pledge.................................. 34
SECTION 4.4 Certain Sale and Lease-back Transactions......... 35
SECTION 4.5 Certificate to Trustee........................... 37
SECTION 4.6 Reports by the Company........................... 37
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.1 When Company May Merge, Etc...................... 37
SECTION 5.2 Successor Substituted............................ 38
ARTICLE 6
DEFAULT AND REMEDIES
SECTION 6.1 Events of Default................................ 39
SECTION 6.2 Acceleration..................................... 40
SECTION 6.3 Other Remedies................................... 42
SECTION 6.4 Waiver of Past Defaults.......................... 43
SECTION 6.5 Control by Majority.............................. 43
SECTION 6.6 Limitation on Suits.............................. 43
SECTION 6.7 Rights of Holders to Receive Payment............. 44
SECTION 6.8 Collection Suit by Trustee....................... 44
SECTION 6.9 Trustee May File Proofs of Claim................. 45
SECTION 6.10 Application of Proceeds.......................... 45
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SECTION 6.11 Restoration of Rights and Remedies............... 46
SECTION 6.12 Undertaking for Costs............................ 47
SECTION 6.13 Rights and Remedies Cumulative................... 47
SECTION 6.14 Delay or Omission Not Waiver..................... 47
ARTICLE 7
TRUSTEE
SECTION 7.1 General.......................................... 48
SECTION 7.2 Certain Rights of Trustee........................ 48
SECTION 7.3 Individual Rights of Trustee..................... 50
SECTION 7.4 Trustee's Disclaimer............................. 50
SECTION 7.5 Notice of Default................................ 51
SECTION 7.6 Reports by Trustee to Holders.................... 51
SECTION 7.7 Compensation and Indemnity....................... 51
SECTION 7.8 Replacement of Trustee........................... 52
SECTION 7.9 Successor Trustee by Merger, Etc................. 54
SECTION 7.10 Eligibility...................................... 54
SECTION 7.11 Money Held in Trust.............................. 54
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.1 Defeasance Within One Year of Payment............ 54
SECTION 8.2 Defeasance....................................... 55
SECTION 8.3 Covenant Defeasance.............................. 57
SECTION 8.4 Application of Trust Money....................... 58
SECTION 8.5 Repayment to Company............................. 58
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.1 Without Consent of Holders....................... 59
SECTION 9.2 With Consent of Holders.......................... 60
SECTION 9.3 Revocation and Effect of Consent................. 61
SECTION 9.4 Notation on or Exchange of Securities............ 62
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SECTION 9.5 Trustee to Sign Amendments, Etc................... 62
SECTION 9.6 Conformity with Trust Indenture Act............... 63
ARTICLE 10
MISCELLANEOUS
SECTION 10.1 Trust Indenture Act of 1939....................... 63
SECTION 10.2 Notices........................................... 63
SECTION 10.3 Certificate and Opinion as to
Conditions Precedent............................. 65
SECTION 10.4 Statements Required in Certificate or Opinion..... 65
SECTION 10.5 Evidence of Ownership............................. 66
SECTION 10.6 Rules by Trustee, Paying Agent or Registrar....... 67
SECTION 10.7 Payment Date Other Than a Business Day............ 67
SECTION 10.8 Governing Law..................................... 68
SECTION 10.9 No Adverse Interpretation of Other Agreements..... 68
SECTION 10.10 Successors........................................ 68
SECTION 10.11 Duplicate Originals............................... 68
SECTION 10.12 Separability...................................... 68
SECTION 10.13 Table of Contents, Headings, Etc.................. 68
SECTION 10.14 Incorporators, Shareholders, Officers and
Directors of Company Exempt from
Individual Liability............................. 68
SECTION 10.15 Judgment Currency................................. 69
SIGNATURES
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INDENTURE, dated as of [Date of Indenture],
between La Quinta Inns, Inc., a Texas corporation, as the
Company, and U.S. Trust Company of Texas, N.A., a national
banking association, as Trustee.
RECITALS OF THE COMPANY
WHEREAS, the Company has duly authorized the issue
from time to time of its debentures, notes or other
evidences of indebtedness to be issued in one or more series
(the "Securities") up to such principal amount or amounts as
may from time to time be authorized in accordance with the
terms of this Indenture and to provide, among other things,
for the authentication, delivery and administration thereof,
the Company has duly authorized the execution and delivery
of this Indenture; and
WHEREAS, all things necessary to make this Inden-
ture a valid indenture and agreement according to its terms
have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases
of the Securities by the holders thereof, the Company and
the Trustee mutually covenant and agree for the equal and
proportionate benefit of the respective holders from time to
time of the Securities or of any and all series thereof and
of the coupons, if any, appertaining thereto as follows:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 DEFINITIONS.
"Agent" means any Registrar, Paying Agent,
transfer agent or Authenticating Agent.
"Attributable Debt" means, when used in connection
with a sale and lease-back transaction referred to in
Section 4.4, on any date as of which the amount thereof is
to be determined, the product of (a) the net proceeds from
such sale and lease-back transaction multiplied by (b) a
fraction, the numerator of which is the number of full years
of the term of the lease relating to the property involved
in such sale and lease-back transaction (without regard to
any options to renew or extend such term) remaining on the
date of the making of such computation and the denominator
of which is the number of full years of the term of such
lease measured from the first day of such term.
"Authorized Newspaper" means a newspaper (which,
in the case of The City of New York, will, if practicable,
be The Wall Street Journal (Eastern Edition) and in the case
of London, will, if practicable, be the Financial Times
(London Edition) and published in an official language of
the country of publication customarily published at least
once a day for at least five days in each calendar week and
of general circulation in The City of New York or London, as
applicable. If it shall be impractical in the opinion of
the Trustee to make any publication of any notice required
hereby in an Authorized Newspaper, any publication or other
notice in lieu thereof which is made or given with the
approval of the Trustee shall constitute a sufficient
publication of such notice.
"Board Resolution" means one or more resolutions
of the board of directors of the Company or any authorized
committee thereof, certified by the secretary or an
assistant secretary to have been duly adopted and to be in
full force and effect on the date of certification, and
delivered to the Trustee.
"Business Day" means any day, other than a
Saturday or Sunday, that is neither a legal holiday nor a
day on which banking institutions are authorized or required
by law or regulation to close in The City of New York or in
the city in which the Corporate Trust Office is located,
with respect to any Security the interest on which is based
on the offered quotations in the interbank Eurodollar market
for dollar deposits in London, or with respect to Securities
denominated in a specified currency other than United States
dollars, in the principal financial center of the country of
the specified currency.
"Capital Stock" means, with respect to any Person,
any and all shares, interests, participations or other
equivalents (however designated, whether voting or non-
voting) of such Person's capital stock or equity, including,
without limitation, all Common Stock and Preferred Stock.
"Commission" means the Securities and Exchange
Commission, as from time to time constituted, created under
the Exchange Act or, if at any time after the execution of
this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such
time.
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"Common Stock" means, with respect to any Person,
any and all shares, interests, participations or other
equivalents (however designated, whether voting or non-
voting) of such Person's common stock, whether now
outstanding or issued after the date of this Indenture,
including, without limitation, all series and classes of
such common stock.
"Company" means the party named as such in the
first paragraph of this Indenture until a successor replaces
it pursuant to Article 5 of this Indenture and thereafter
means the successor.
"Combined Net Worth" means, at any date of
determination, the combined stockholders' equity of the
Company, as set forth on the then most recently available
combined balance sheet of the Company and its combined
subsidiaries and joint ventures.
"Corporate Trust Office" means the office of the
Trustee at which the corporate trust business of the Trustee
shall, at any particular time, be principally administered,
which office is, at the date of this Indenture, located at
2001 Ross Avenue, Suite 2700, Dallas, Texas 75201-2936,
Attention: Corporate Trust Administration.
"Default" means any Event of Default as defined in
Section 6.1 and any event that is, or after notice or
passage of time or both would be, an Event of Default.
"Depositary" means, with respect to the Securities
of any series issuable or issued in the form of one or more
Registered Global Securities, the Person designated as Depo-
sitary by the Company pursuant to Section 2.3 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
Securities of any such series shall mean the Depositary with
respect to the Registered Global Securities of that series.
"Exchange Act" means the Securities Exchange Act
of 1934, as amended.
"Exempted Debt" means the sum, without dupli-
cation, of the following items outstanding as of the date
Exempted Debt is being determined: (i) indebtedness of the
Company and its Restricted Subsidiaries incurred after the
date of this Indenture and secured by liens created or
assumed or permitted to exist pursuant to Section 4.3(b) and
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(ii) Attributable Debt of the Company and its Restricted
Subsidiaries in respect of all sale and lease-back transac-
tions with regard to any Principal Property entered into
pursuant to Section 4.4(b).
"Funded Debt" means all indebtedness for money
borrowed, including purchase money indebtedness, having a
maturity of more than one year from the date of its creation
or having a maturity of less than one year but by its terms
being renewable or extendible, at the option of the obligor
in respect thereof, beyond one year from the date of its
creation.
"GAAP" means generally accepted accounting
principles in the United States of America at the date of
any computation required or permitted hereunder.
"Holder" or "Securityholder" means the registered
holder of any Security with respect to Registered Securities
and the bearer of any Unregistered Security or any coupon
appertaining thereto, as the case may be.
"Indenture" means this Indenture as originally
executed or as it may be amended or supplemented from time
to time by one or more indentures supplemental to this
Indenture entered into pursuant to the applicable provisions
of this Indenture and shall include the forms and terms of
the Securities of each series established as contemplated
pursuant to Sections 2.1 and 2.3.
"Investment" means any investment in any Person,
whether by means of share purchase, capital contribution,
loan, time deposit or otherwise.
"Lien" means, with respect to any asset, any
mortgage, lien, pledge, charge, security interest or
encumbrance of any kind, or any other type of preferential
arrangement that has the practical effect of creating a
security interest, in respect of such asset. For the
purposes of this Indenture, the Company or any Subsidiary
shall be deemed to own subject to a Lien any asset that it
has acquired or holds subject to the interest of a vendor or
lessor under any conditional sale agreement, capital lease
or other title retention agreement relating to such asset.
"Officer" means, with respect to the Company, the
chairman of the board of directors, the president or chief
executive officer, any vice president, the chief financial
officer, the treasurer or any assistant treasurer, or the
secretary or any assistant secretary.
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"Officers' Certificate" means a certificate signed
in the name of the Company (i) by the chairman of the board
of directors, the president or chief executive officer or a
vice president and (ii) by the chief financial officer, the
treasurer or any assistant treasurer, or the secretary or
any assistant secretary, complying with Section 10.4 and
delivered to the Trustee. Each such certificate shall
comply with Section 314 of the Trust Indenture Act and
include (except as otherwise expressly provided in this
Indenture) the statements provided in Section 10.4.
"Opinion of Counsel" means a written opinion
signed by legal counsel, who may be an employee of or
counsel to the Company, satisfactory to the Trustee and
complying with Section 10.4. Each such opinion shall comply
with Section 314 of the Trust Indenture Act and include the
statements provided in Section 10.4, if and to the extent
required thereby.
"original issue date" of any Security (or portion
thereof) means the earlier of (a) the date of authentication
of such Security or (b) the date of any Security (or portion
thereof) for which such Security was issued (directly or
indirectly) on registration of transfer, exchange or
substitution.
"Original Issue Discount Security" means any
Security that provides for an amount less than the principal
amount thereof to be due and payable upon a declaration of
acceleration of the maturity thereof pursuant to Section
6.2.
"Periodic Offering" means an offering of Securi-
ties of a series from time to time, the specific terms of
which Securities, including, without limitation, the rate or
rates of interest, if any, thereon, the stated maturity or
maturities thereof and the redemption provisions, if any,
with respect thereto, are to be determined by the Company or
its agents upon the issuance of such Securities.
"Person" means an individual, a corporation, a
partnership, a limited liability company, an association, a
trust or any other entity or organization, including a
government or political subdivision or an agency or
instrumentality thereof.
"Preferred Stock" means, with respect to any
Person, any and all shares, interests, participations or
other equivalents (however designated, whether voting or
non-voting) of such Person's preferred or preference stock,
whether now outstanding or issued after the date of the
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Indenture, including, without limitation, all series and
classes of such preferred or preference stock.
"Principal" of a Security means the principal
amount of, and, unless the context indicates otherwise,
includes any premium payable on, the Security.
"Principal Property" means land, land improve-
ments, buildings and associated equipment owned or leased
pursuant to a capital lease and used by the Company or a
Restricted Subsidiary primarily in the hotel business, but
shall not include any such property financed through the
issuance of tax exempt governmental obligation (including,
without limitation, industrial revenue bonds and similar
financings).
"Registered Global Security" means a Security
evidencing all or a part of a series of Registered
Securities, issued to the Depositary for such series in
accordance with Section 2.2, and bearing the legend
prescribed in Section 2.2.
"Registered Security" means any Security
registered on the Security Register (as defined in Section
2.5).
"Responsible Officer" means, when used with
respect to the Trustee, any senior trust officer, any vice
president, any trust officer, any assistant trust officer,
or any other officer or assistant officer of the Trustee
customarily performing functions similar to those performed
by the persons who at the time shall be such officers,
respectively, or to whom any corporate trust matter is
referred because of his knowledge of and familiarity with
the particular subject.
"Restricted Subsidiary" means any Subsidiary
organized and existing under the laws of the United States
of America and the principal business of which is carried on
within the United States of America which owns or is a
lessee pursuant to a capital lease of any Principal Property
other than:
(i) each Subsidiary the major part of whose
business consists of finance, banking, credit,
leasing, insurance, financial services or other
similar operations, or any combination thereof;
(ii) each Subsidiary formed or acquired
after the date hereof for the purpose of acquiring
the business or assets of another Person and which
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does not acquire all or any substantial part of
the business or assets of the Company or any
Restricted Subsidiary; and
(iii) the following unincorporated partnerships
and joint ventures: La Quinta -- Houston I.H. 10,
Ltd.; La Quinta San Antonio -- South Joint Venture; La
Quinta Austin Motor Hotel, Ltd.; La Quinta -- Dallas
Central Expressway, Ltd.; LQ Motor Inn Venture --
Austin No. 530; La Quinta -- Wichita, Kansas, No. 532,
Ltd.; and LQ -- West Bank Joint Venture;
PROVIDED, HOWEVER, that any Subsidiary may be declared a
Restricted Subsidiary by Board Resolution, effective as of
the date such Board Resolution is adopted; PROVIDED further,
that any such declaration may be rescinded by further Board
Resolution, effective as of the date such further Board
Resolution is adopted.
"Securities" means any of the securities, as
defined in the first paragraph of the recitals hereof, that
are authenticated and delivered under this Indenture and,
unless the context indicates otherwise, shall include any
coupon appertaining thereto.
"Securities Act" means the Securities Act of 1933,
as amended.
"Subsidiary" means, with respect to any Person,
any corporation, association or other business entity of
which more than 50% of the outstanding Voting Stock is
owned, directly or indirectly, by such Person and one or
more other Subsidiaries of such Person.
"Trustee" means the party named as such in the
first paragraph of this Indenture until a successor replaces
it in accordance with the provisions of Article 7 and
thereafter means such successor.
"Trust Indenture Act" means the Trust Indenture Act
of 1939, as amended (15 U.S. Code Sections 77aaa-77bbbb), as
it may be amended from time to time.
"UCC" means the Uniform Commercial Code, as in
effect in each applicable jurisdiction.
"United States Bankruptcy Code" means the
Bankruptcy Reform Act of 1978, as amended and as codified in
Title 11 of the United States Code, as amended from time to
time hereafter, or any successor federal bankruptcy law.
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"Unregistered Security" means any Security other
than a Registered Security.
"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 an agency or instrumental-
ity of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obli-
gation by the United States of America, and shall also
include a depository receipt issued by a bank or trust
company as custodian with respect to any such U.S. Govern-
ment 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.
"Voting Stock" means with respect to any Person,
Capital Stock of any class or kind ordinarily having the
power to vote for the election of directors, managers or
other voting members of the governing body of such Person.
"Yield to Maturity" means, as the context may
require, the yield to maturity (i) on a series of Securities
or (ii) if the Securities of a series are issuable from time
to time, on a Security of such series, calculated at the
time of issuance of such series in the case of clause (i) or
at the time of issuance of such Security of such series in
the case of clause (ii), or, if applicable, at the most
recent redetermination of interest on such series or on such
Security, and calculated in accordance with the constant
interest method or such other accepted financial practice as
is specified in the terms of such Security.
SECTION 1.2 OTHER DEFINITIONS. Each of the
following terms is defined in the section set forth opposite
such term:
Term Section
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Authenticating Agent 2.2
cash transaction 7.3
Dollars 4.2
Event of Default 6.1
Judgment Currency 10.15
mandatory sinking fund payment 3.5
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optional sinking fund payment 3.5
Paying Agent 2.5
record date 2.4
Registrar 2.5
Required Currency 10.15
Security Register 2.5
self-liquidating paper 7.3
sinking fund payment date 3.5
tranche 2.14
SECTION 1.3 INCORPORATION BY REFERENCE OF TRUST
INDENTURE ACT. Whenever this Indenture refers to a prov-
ision of the Trust Indenture Act, the provision is incorpo-
rated by reference in and made a part of this Indenture.
The following terms used in this Indenture that are defined
by the Trust Indenture Act have the following meanings:
"indenture securities" means the Securities;
"indenture security holder" means a Holder or a
Securityholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee"
means the Trustee; and
"obligor" on the indenture securities means the
Company or any other obligor on the Securities.
All other terms used in this Indenture that are
defined by the Trust Indenture Act, defined by reference in
the Trust Indenture Act to another statute or defined by a
rule of the Commission and not otherwise defined herein have
the meanings assigned to them therein.
SECTION 1.4 RULES OF CONSTRUCTION. Unless the
context otherwise requires:
(i) an accounting term not otherwise defined has
the meaning assigned to it in accordance with GAAP;
(ii) words in the singular include the plural, and
words in the plural include the singular;
(iii) "herein," "hereof" and other words of similar
import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision;
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(iv) all references to Sections or Articles refer
to Sections or Articles of this Indenture unless
otherwise indicated; and
(v) use of masculine, feminine or neuter pronouns
should not be deemed a limitation, and the use of any
such pronouns should be construed to include, where
appropriate, the other pronouns.
ARTICLE 2
THE SECURITIES
SECTION 2.1 FORM. The Securities of each
series shall be substantially in such form or forms (not
inconsistent with this Indenture) as shall be established by
or pursuant to one or more Board Resolutions or in one or
more indentures supplemental hereto, in each case with such
appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture
and may have imprinted or otherwise reproduced thereon such
legend or legends or endorsements, not inconsistent with the
provisions of this Indenture, as may be required to comply
with any law, or with any rules of any securities exchange
or usage, all as may be determined by the officers executing
such Securities as evidenced by their execution of the
Securities. Unless otherwise so established, Unregistered
Securities shall have coupons attached.
SECTION 2.2 EXECUTION AND AUTHENTICATION. Two
Officers shall execute the Securities (other than coupons)
for the Company by facsimile or manual signature in the name
and on behalf of the Company. The seal of the Company, if
any, shall be reproduced on the Securities. If an Officer
whose signature is on a Security no longer holds that office
at the time the Security is authenticated, the Security
shall nevertheless be valid.
The Trustee, at the expense of the Company, may
appoint an authenticating agent (the "AUTHENTICATING AGENT")
to authenticate Securities (other than coupons). The
Authenticating Agent may authenticate Securities whenever
the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by
such Authenticating Agent.
A Security (other than coupons) shall not be valid
until the Trustee or Authenticating Agent manually signs the
certificate of authentication on the Security. The
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signature shall be conclusive evidence that the Security has
been authenticated under this Indenture.
At any time and from time to time after the
execution and delivery of this Indenture, the Company may
deliver Securities of any series having attached thereto
appropriate coupons, if any, executed by the Company to the
Trustee for authentication together with the applicable
documents referred to below in this Section, and the Trustee
shall thereupon authenticate and deliver such Securities to
or upon the written order of the Company. In authenticating
any Securities of a series, the Trustee shall be entitled to
receive prior to the first authentication of any Securities
of such series, and (subject to Article 7) shall be fully
protected in relying upon, unless and until such documents
have been superseded or revoked:
(1) any Board Resolution and/or executed
supplemental indenture referred to in Sections 2.1
and 2.3 by or pursuant to which the forms and
terms of the Securities of that series were
established;
(2) an Officers' Certificate setting forth
the form or forms and terms of the Securities,
stating that the form or forms and terms of the
Securities of such series have been, or will be
when established in accordance with such
procedures as shall be referred to therein,
established in compliance with this Indenture; and
(3) at the option of the Company, either an
Opinion of Counsel, or a letter addressed to the
Trustee permitting it to rely on an Opinion of
Counsel, substantially to the effect that the
Securities have been duly authorized and, if
executed and authenticated in accordance with the
provisions of the Indenture and delivered to and
duly paid for by the purchasers thereof on the
date of such opinion, would be entitled to the
benefits of the Indenture and would be valid and
binding obligations of the Company, enforceable
against the Company in accordance with their
respective terms, subject to bankruptcy,
insolvency, reorganization, receivership,
moratorium and other similar laws affecting
creditors' rights generally, general principles of
equity, and such other matters as shall be
specified therein.
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If the Company shall establish pursuant to Section
2.3 that the Securities of a series or a portion thereof are
to be issued in the form of one or more Registered Global
Securities, then the Company shall execute and the Trustee
shall authenticate and deliver one or more Registered Global
Securities that (i) shall represent and shall be denominated
in an amount equal to the aggregate principal amount of all
of the Securities of such series issued in such form and not
yet canceled, (ii) shall be registered in the name of the
Depositary for such Registered Global Security or Securities
or the nominee of such Depositary, (iii) shall be delivered
by the Trustee to such Depositary or its custodian or
pursuant to such Depositary's instructions and (iv) shall
bear a legend substantially to the following effect:
"Unless and until it is exchanged in whole or in part for
Securities in definitive registered form, this Security may
not be transferred except as a whole by the Depositary to
the 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."
SECTION 2.3 AMOUNT UNLIMITED; ISSUABLE IN
SERIES. The aggregate principal amount of Securities which
may be authenticated and delivered under this Indenture is
unlimited.
The Securities may be issued in one or more series
and each such series shall rank equally and pari passu with
all other unsecured and unsubordinated debt of the Company.
There shall be established in or pursuant to Board
Resolution or one or more indentures supplemental hereto,
prior to the initial issuance of Securities of any series,
subject to the last sentence of this Section 2.3,
(1) the designation of the Securities of the
series, which shall distinguish the Securities of the
series from the Securities of all other series;
(2) any limit upon the aggregate principal amount
of the Securities of the series that may be authenti-
cated and delivered under this Indenture and any
limitation on the ability of the Company to increase
such aggregate principal amount after the initial
issuance of the Securities of that series (except for
Securities authenticated and delivered upon registra-
tion of transfer of, or in exchange for, or in lieu of,
or upon redemption of, other Securities of the series
pursuant hereto);
12
(3) the date or dates on which the principal of
the Securities of the series is payable (which date or
dates may be fixed or extendible);
(4) the rate or rates (which may be fixed or
variable) per annum at which the Securities of the
series shall bear interest, if any, the date or dates
from which such interest shall accrue, on which such
interest shall be payable and (in the case of Regis-
tered Securities) on which a record shall be taken for
the determination of Holders to whom interest is paya-
ble and/or the method by which such rate or rates or
date or dates shall be determined;
(5) if other than as provided in Section 4.2, the
place or places where the principal of and any interest
on Securities of the series shall be payable, any
Registered Securities of the series may be surrendered
for exchange, notices, demands to or upon the Company
in respect of the Securities of the series and this
Indenture may be served and notice to Holders may be
published;
(6) the right, if any, of the Company to redeem
Securities of the series, in whole or in part, at its
option and the period or periods within which, the
price or prices at which and any terms and conditions
upon which Securities of the series may be so redeemed,
pursuant to any sinking fund or otherwise;
(7) the obligation, if any, of the Company to
redeem, purchase or repay Securities of the series
pursuant to any mandatory redemption, sinking fund or
analogous provisions or at the option of a Holder
thereof and the price or prices at which and the period
or periods within which and any of the terms and condi-
tions upon which Securities of the series shall be
redeemed, purchased or repaid, in whole or in part,
pursuant to such obligation;
(8) if other than denominations of $1,000 and any
integral multiple thereof, the denominations in which
Securities of the series shall be issuable;
(9) if other than the principal amount thereof,
the portion of the principal amount of Securities of
the series which shall be payable upon declaration of
acceleration of the maturity thereof;
(10) if other than the coin or currency in which
the Securities of the series are denominated, the coin
13
or currency in which payment of the principal of or
interest on the Securities of the series shall be
payable or if the amount of payments of principal of
and/or interest on the Securities of the series may be
determined with reference to an index based on a coin
or currency other than that in which the Securities of
the series are denominated, the manner in which such
amounts shall be determined;
(11) if other than the currency of the United
States of America, the currency or currencies,
including composite currencies, in which payment of the
Principal of and interest on the Securities of the
series shall be payable, and the manner in which any
such currencies shall be valued against other
currencies in which any other Securities shall be
payable;
(12) whether the Securities of the series or any
portion thereof will be issuable as Registered
Securities (and if so, whether such Securities will be
issuable as Registered Global Securities) or
Unregistered Securities (with or without coupons), or
any combination of the foregoing, any restrictions
applicable to the offer, sale or delivery of
Unregistered Securities or the payment of interest
thereon and, if other than as provided herein, the
terms upon which Unregistered Securities of any series
may be exchanged for Registered Securities of such
series and vice versa;
(13) whether and under what circumstances the
Company will pay additional amounts on the Securities
of the series held by a person who is not a U.S. person
in respect of any tax, assessment or governmental
charge withheld or deducted and, if so, whether the
Company will have the option to redeem such Securities
rather than pay such additional amounts;
(14) if the Securities of the series are to be
issuable in definitive form (whether upon original
issue or upon exchange of a temporary Security of such
series) only upon receipt of certain certificates or
other documents or satisfaction of other conditions,
the form and terms of such certificates, documents or
conditions;
(15) any trustees, depositaries, authenticating or
paying agents, transfer agents or the registrar or any
other agents with respect to the Securities of the
series;
14
(16) provisions, if any, for the defeasance of the
Securities of the series (including provisions
permitting defeasance of less than all Securities of
the series), which provisions may be in addition to, in
substitution for, or in modification of (or any
combination of the foregoing) the provisions of Article
8;
(17) if the Securities of the series are issuable
in whole or in part as one or more Registered Global
Securities, the identity of the Depositary for such
Registered Global Security or Securities (which
Depositary shall, at the time of its designation as
Depositary and at all times while it serves as
Depositary, be a clearing agency registered under the
Exchange Act and any other applicable statute or
regulation);
(18) any other events of default or covenants
with respect to the Securities of the series; and
(19) any other terms of the Securities of the
series (which terms shall not be inconsistent with the
provisions of this Indenture).
All Securities of any one series and coupons, if
any, appertaining thereto shall be substantially identical,
except in the case of Registered Securities as to date and
denomination, except in the case of any Periodic Offering
and except as may otherwise be provided by or pursuant to
the Board Resolution referred to above or as set forth in
any such indenture supplemental hereto. All Securities of
any one series need not be issued at the same time and may
be issued from time to time, consistent with the terms of
this Indenture, if so provided by or pursuant to such Board
Resolution or in any such indenture supplemental hereto and
any forms and terms of Securities to be issued from time to
time may be completed and established from time to time
prior to the issuance thereof by procedures described in
such Board Resolution or supplemental indenture.
SECTION 2.4 DENOMINATION AND DATE OF SECURI-
TIES; PAYMENTS OF INTEREST. The Securities of each series
shall be issuable as Registered Securities or Unregistered
Securities in denominations established as contemplated by
Section 2.3 or, if not so established with respect to
Securities of any series, in denominations of $1,000 and any
integral multiple thereof. The Securities of each series
shall be numbered, lettered or otherwise distinguished in
such manner or in accordance with such plan as the Officers
15
of the Company executing the same may determine, as evi-
denced by their execution thereof.
Each Security shall be dated the date of its
authentication. The Securities of each series shall bear
interest, if any, from the date, and such interest and shall
be payable on the dates, established as contemplated by
Section 2.3.
The person in whose name any Registered Security
of any series is registered at the close of business on any
record date applicable to a particular series with respect
to any interest payment date for such series shall be enti-
tled to receive the interest, if any, payable on such
interest payment date notwithstanding any transfer or
exchange of such Registered Security subsequent to the
record date and prior to such interest payment date, except
if and to the extent the Company shall default in the
payment of the interest due on such interest payment date
for such series, in which case the provisions of Section
2.13 shall apply. The term "RECORD DATE" as used with
respect to any interest payment date (except a date for
payment of defaulted interest) for the Securities of any
series shall mean the date specified as such in the terms of
the Registered Securities of such series established as
contemplated by Section 2.3, or, if no such date is so
established, the fifteenth day next preceding such interest
payment date, whether or not such record date is a Business
Day.
SECTION 2.5 REGISTRAR AND PAYING AGENT; AGENTS
GENERALLY. The Company shall maintain an office or agency
where Securities may be presented for registration, regis-
tration of transfer or for exchange (the "REGISTRAR") and an
office or agency where Securities may be presented for
payment (the "PAYING AGENT"), which shall be in the Borough
of Manhattan, The City of New York. The Company shall cause
the Registrar to keep a register of the Registered Securi-
ties and of their registration, transfer and exchange (the
"SECURITY REGISTER"). The Company may have one or more
additional Paying Agents or transfer agents with respect to
any series.
The Company shall enter into an appropriate agency
agreement with any Agent not a party to this Indenture. The
agreement shall implement the provisions of this Indenture
and the Trust Indenture Act that relate to such Agent. The
Company shall give prompt written notice to the Trustee of
the name and address of any Agent and any change in the name
or address of an Agent. If the Company fails to maintain a
Registrar or Paying Agent, the Trustee shall act as such.
16
The Company may remove any Agent upon written notice to such
Agent and the Trustee; PROVIDED that no such removal shall
become effective until (i) the acceptance of an appointment
by a successor Agent to such Agent as evidenced by an appro-
priate agency agreement entered into by the Company and such
successor Agent and delivered to the Trustee or (ii) notifi-
cation to the Trustee that the Trustee shall serve as such
Agent until the appointment of a successor Agent in accor-
dance with clause (i) of this proviso. The Company or any
affiliate of the Company may act as Paying Agent or Regis-
trar; PROVIDED that neither the Company nor an affiliate of
the Company shall act as Paying Agent in connection with the
defeasance of the Securities or the discharge of this Inden-
ture under Article 8.
The Company initially appoints the Trustee as
Registrar, Paying Agent and Authenticating Agent. If, at
any time, the Trustee is not the Registrar, the Registrar
shall make available to the Trustee ten days prior to each
interest payment date and at such other times as the Trustee
may reasonably request the names and addresses of the
Holders as they appear in the Security Register.
SECTION 2.6 PAYING AGENT TO HOLD MONEY IN
TRUST. Not later than 10:00 a.m. New York City time on each
due date of any Principal or interest on any Securities, the
Company shall deposit with the Paying Agent money in
immediately available funds sufficient to pay such Principal
or interest. The Company shall require each Paying Agent
other than the Trustee to agree in writing that such Paying
Agent shall hold in trust for the benefit of the Holders of
such Securities or the Trustee all money held by the Paying
Agent for the payment of Principal of and interest on such
Securities and shall promptly notify the Trustee of any
default by the Company in making any such payment. The
Company at any time may require a Paying Agent to pay all
money held by it to the Trustee and account for any funds
disbursed, and the Trustee may at any time during the
continuance of any payment default, upon written request to
a Paying Agent, require such Paying Agent to pay all money
held by it to the Trustee and to account for any funds
disbursed. Upon doing so, the Paying Agent shall have no
further liability for the money so paid over to the Trustee.
If the Company or any affiliate of the Company acts as
Paying Agent, it will, on or before each due date of any
Principal of or interest on any Securities, segregate and
hold in a separate trust fund for the benefit of the Holders
thereof a sum of money sufficient to pay such Principal or
interest so becoming due until such sum of money shall be
paid to such Holders or otherwise disposed of as provided in
this Indenture, and will promptly notify the Trustee in
17
writing of its action or failure to act as required by this
Section.
SECTION 2.7 TRANSFER AND EXCHANGE.
Unregistered Securities (except for any temporary global
Unregistered Securities) and coupons (except for coupons
attached to any temporary global Unregistered Securities)
shall be transferable by delivery.
At the option of the Holder thereof, Registered
Securities of any series (other than a Registered Global
Security, except as set forth below) may be exchanged for a
Registered Security or Registered Securities of such series
and tenor having authorized denominations and an equal
aggregate principal amount, upon surrender of such
Registered Securities to be exchanged at the agency of the
Company that shall be maintained for such purpose in
accordance with Section 2.5 and upon payment, if the Company
shall so require, of the charges hereinafter provided. If
the Securities of any series are issued in both registered
and unregistered form, except as otherwise established
pursuant to Section 2.3, at the option of the Holder
thereof, Unregistered Securities of any series may be
exchanged for Registered Securities of such series and tenor
having authorized denominations and an equal aggregate
principal amount, upon surrender of such Unregistered
Securities to be exchanged at the agency of the Company that
shall be maintained for such purpose in accordance with
Section 4.2, with, in the case of Unregistered Securities
that have coupons attached, all unmatured coupons and all
matured coupons in default thereto appertaining, and upon
payment, if the Company shall so require, of the charges
hereinafter provided. At the option of the Holder thereof,
if Unregistered Securities of any series, maturity date,
interest rate and original issue date are issued in more
than one authorized denomination, except as otherwise
established pursuant to Section 2.3, such Unregistered
Securities may be exchanged for Unregistered Securities of
such series and tenor having authorized denominations and an
equal aggregate principal amount, upon surrender of such
Unregistered Securities to be exchanged at the agency of the
Company that shall be maintained for such purpose in
accordance with Section 4.2, with, in the case of
Unregistered Securities that have coupons attached, all
unmatured coupons and all matured coupons in default thereto
appertaining, and upon payment, if the Company shall so
require, of the charges hereinafter provided. Registered
Securities of any series may not be exchanged for
Unregistered Securities of such series. Whenever any
Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and
18
deliver, the Securities which the Holder making the exchange
is entitled to receive.
All Registered Securities presented for
registration of transfer, exchange, redemption or payment
shall be duly endorsed by, or be accompanied by a written
instrument or instruments of transfer in form satisfactory
to the Company and the Trustee duly executed by, the holder
or his attorney duly authorized in writing.
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 exchange or
registration of transfer of Securities. No service charge
shall be made for any such transaction.
Notwithstanding any other provision of this
Section 2.7, unless and until it is exchanged in whole or in
part for Securities in definitive registered form, a
Registered Global Security representing all or a portion of
the Securities of a series may not be transferred except as
a whole by the Depositary for such series to a nominee of
such Depositary or by a nominee of such Depositary to such
Depositary or another nominee of such Depositary or by such
Depositary or any such nominee to a successor Depositary for
such series or a nominee of such successor Depositary.
If at any time the Depositary for any Registered
Global Securities of any series notifies the Company that it
is unwilling or unable to continue as Depositary for such
Registered Global Securities or if at any time the
Depositary for such Registered Global Securities shall no
longer be eligible under applicable law, the Company shall
appoint a successor Depositary eligible under applicable law
with respect to such Registered Global Securities. If a
successor Depositary eligible under applicable law for such
Registered Global Securities is not appointed by the Company
within 90 days after the Company receives such notice or
becomes aware of such ineligibility, the Company will
execute, and the Trustee, upon receipt of the Company's
order for the authentication and delivery of definitive
Registered Securities of such series and tenor, will
authenticate and deliver Registered Securities of such
series and tenor, in any authorized denominations, in an
aggregate principal amount equal to the principal amount of
such Registered Global Securities, in exchange for such
Registered Global Securities.
The Company may at any time and in its sole
discretion determine that any Registered Global Securities
of any series shall no longer be maintained in global form.
19
In such event the Company will execute, and the Trustee,
upon receipt of the Company's order for the authentication
and delivery of definitive Registered Securities of such
series and tenor, will authenticate and deliver, Registered
Securities of such series and tenor in any authorized
denominations, in an aggregate principal amount equal to the
principal amount of such Registered Global Securities, in
exchange for such Registered Global Securities.
Any time the Registered Securities of any series
are not in the form of Registered Global Securities pursuant
to the preceding two paragraphs, the Company agrees to
supply the Trustee with a reasonable supply of certificated
Registered Securities without the legend required by Section
2.2 and the Trustee agrees to hold such Registered
Securities in safekeeping until authenticated and delivered
pursuant to the terms of this Indenture.
If established by the Company pursuant to Section
2.3 with respect to any Registered Global Security, the
Depositary for such Registered Global Security may surrender
such Registered Global Security in exchange in whole or in
part for Registered Securities of the same series and tenor
in definitive registered form on such terms as are
acceptable to the Company and such Depositary. Thereupon,
the Company shall execute, and the Trustee shall
authenticate and deliver, without service charge,
(i) to the Person specified by such
Depositary new Registered Securities of the same
series and tenor, of any authorized denominations
as requested by such Person, in an aggregate
principal amount equal to and in exchange for such
Person's beneficial interest in the Registered
Global Security; and
(ii) to such Depositary a new Registered
Global Security in a denomination equal to the
difference, if any, between the principal amount
of the surrendered Registered Global Security and
the aggregate principal amount of Registered
Securities authenticated and delivered pursuant to
clause (i) above.
Registered Securities issued in exchange for a
Registered Global Security pursuant to this Section 2.7
shall be registered in such names and in such authorized
denominations as the Depositary for such Registered Global
Security, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the
Trustee or an agent of the Company or the Trustee. The
20
Trustee or such agent shall deliver such Securities to or as
directed by the Persons in whose names such Securities are
so registered.
All Securities issued upon any transfer or
exchange of Securities shall be valid obligations of the
Company, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Securities surrendered
upon such transfer or exchange.
Notwithstanding anything herein or in the forms or
terms of any Securities to the contrary, none of the
Company, the Trustee or any agent of the Company or the
Trustee shall be required to exchange any Unregistered
Security for a Registered Security if such exchange would
result in adverse Federal income tax consequences to the
Company (such as, for example, the inability of the Company
to deduct from its income, as computed for Federal income
tax purposes, the interest payable on the Unregistered
Securities) under then applicable United States Federal
income tax laws. The Trustee and any such agent shall be
entitled to rely on an Officers' Certificate or an Opinion
of Counsel in determining such result.
Neither the Registrar nor the Company shall be
required (i) to issue, authenticate, register the transfer
of or exchange Securities of any series for a period of 15
days before a selection of such Securities to be redeemed or
(ii) to register the transfer of or exchange any Security
selected for redemption in whole or in part.
SECTION 2.8 REPLACEMENT SECURITIES. If a
defaced or mutilated Security of any series is surrendered
to the Trustee or if a Holder claims that its Security of
any series has been lost, destroyed or wrongfully taken, the
Company shall, subject to the further provisions of this
Section 2.8, issue and the Trustee shall authenticate a
replacement Security of such series and tenor and principal
amount bearing a number not contemporaneously outstanding.
The Company may charge such Holder for any tax or other
governmental charge that may be imposed as a result of or in
connection with replacing a Security and for its expenses
and the expenses of the Trustee (including without
limitation attorneys' fees and expenses) in replacing a
Security. In case any such mutilated, defaced, lost,
destroyed or wrongfully taken Security has become or is
about to become due and payable, the Company in its
discretion may pay such Security instead of issuing a new
Security in replacement thereof. If required by the Trustee
or the Company, (i) an indemnity bond must be furnished that
is sufficient in the judgment of both the Trustee and the
Company to protect the Company, the Trustee and any Agent
21
from any loss that any of them may suffer if a Security is
replaced or paid as provided in this Section 2.8 and (ii) in
the case of a lost, destroyed or wrongfully taken Security,
evidence must be furnished to the satisfaction of both the
Trustee and the Company of the loss, destruction or wrongful
taking of such Security. Notwithstanding the foregoing, the
Company and the Trustee shall have no obligation to replace
or pay a Security pursuant to this Section 2.8 if either the
Company or the Trustee has notice that such Security has
been acquired by a bona fide purchaser.
Every replacement Security is an additional
obligation of the Company and shall be entitled to the
benefits of this Indenture.
To the extent permitted by law, the foregoing
provisions of this Section are exclusive with respect to the
replacement or payment of mutilated, destroyed, lost or
wrongfully taken Securities.
SECTION 2.9 OUTSTANDING SECURITIES. Securities
outstanding at any time are all Securities that have been
authenticated and delivered by the Trustee except for those
canceled by it, those delivered to it for cancellation and
those described in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.8,
it ceases to be outstanding unless and until the Trustee and
the Company receive proof satisfactory to them that the
replaced Security is held by a holder in due course.
If the Paying Agent (other than the Company or an
affiliate of the Company) holds on the maturity date or any
redemption date or date for repurchase of the Securities
money sufficient to pay Securities payable or to be redeemed
or repurchased on that date, then on and after that date
such Securities cease to be outstanding and interest on them
shall cease to accrue.
A Security does not cease to be outstanding
because the Company or one of its affiliates holds such
Security, PROVIDED, HOWEVER, that, in determining whether
the Holders of the requisite principal amount of the
outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver
hereunder, Securities owned by the Company or any affiliate
of the Company shall be disregarded and deemed not to be
outstanding, except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only
Securities as to which a Responsible Officer of the Trustee
22
has received written notice to be so owned shall be so
disregarded. Any Securities so owned which are pledged by
the Company, or by any affiliate of the Company, as security
for loans or other obligations, otherwise than to another
such affiliate of the Company, shall be deemed to be
outstanding, if the pledgee is entitled pursuant to the
terms of its pledge agreement and is free to exercise in its
or his discretion the right to vote such securities,
uncontrolled by the Company or by any such affiliate.
SECTION 2.10 TEMPORARY SECURITIES. Until
definitive Securities of any series are ready for delivery,
the Company may prepare and the Trustee shall authenticate
temporary Securities of such series. Temporary Securities
of any series shall be substantially in the form of
definitive Securities of such series but may have
insertions, substitutions, omissions and other variations
determined to be appropriate by the Officers executing the
temporary Securities, as evidenced by their execution of
such temporary Securities. If temporary Securities of any
series are issued, the Company will cause definitive
Securities of such series to be prepared without
unreasonable delay. After the preparation of definitive
Securities of any series, the temporary Securities of such
series shall be exchangeable for definitive Securities of
such series and tenor upon surrender of such temporary
Securities at the office or agency of the Company
designated for such purpose pursuant to Section 4.2, without
charge to the Holder. Upon surrender for cancellation of
any one or more temporary Securities of any series the
Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of
definitive Securities of such series and tenor and
authorized denominations. Until so exchanged, the
temporary Securities of any series shall be entitled to the
same benefits under this Indenture as definitive Securities
of such series.
SECTION 2.11 CANCELLATION. The Company at any
time may deliver to the Trustee for cancellation any
Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee for cancellation
any Securities previously authenticated hereunder which the
Company has not issued and sold. The Registrar, any
transfer agent and the Paying Agent shall forward to the
Trustee any Securities surrendered to them for transfer,
exchange or payment. The Trustee shall cancel and destroy
all Securities surrendered for transfer, exchange, payment
or cancellation and shall deliver a certificate of
destruction to the Company. The Company may not issue new
23
Securities to replace Securities it has paid in full or
delivered to the Trustee for cancellation.
SECTION 2.12 CUSIP NUMBERS. The Company in
issuing the Securities may use "CUSIP" and "CINS" numbers
(if then generally in use), and the Trustee shall use CUSIP
numbers or CINS numbers, as the case may be, in notices of
redemption or exchange as a convenience to Holders and no
representation shall be made as to the correctness of such
numbers either as printed on the Securities or as contained
in any notice of redemption or exchange.
SECTION 2.13 DEFAULTED INTEREST. If the
Company defaults in a payment of interest on the
Securities, it shall pay, or shall deposit with the Paying
Agent money in immediately available funds sufficient to
pay, the defaulted interest plus (to the extent lawful) any
interest payable on the defaulted interest (as may be
specified in the terms thereof, established pursuant to
Section 2.3) to the Persons who are Holders on a subsequent
special record date, which shall mean the 15th day next
preceding the date fixed by the Company for the payment of
defaulted interest, whether or not such day is a Business
Day. At least 15 days before such special record date, the
Company shall mail to each Holder and to the Trustee a
notice that states the special record date, the payment date
and the amount of defaulted interest to be paid.
SECTION 2.14 SERIES MAY INCLUDE TRANCHES. A
series of Securities may include one or more tranches (each
a "TRANCHE") of Securities, including Securities issued in a
Periodic Offering. The Securities of different tranches may
have one or more different terms, including authentication
dates and public offering prices, but all the Securities
within each such tranche shall have identical terms,
including authentication date and public offering price.
Notwithstanding any other provision of this Indenture, with
respect to Sections 2.2 (other than the fourth paragraph
thereof) through 2.4, 2.7, 2.8, 2.10, 3.1 through 3.5, 4.2,
6.1 through 6.14, 8.1 through 8.5 and 9.2, if any series of
Securities includes more than one tranche, all provisions of
such sections applicable to any series of Securities shall
be deemed equally applicable to each tranche of any series
of Securities in the same manner as though originally
designated a series unless otherwise provided with respect
to such series or tranche pursuant to Section 2.3. In
particular, and without limiting the scope of the next
preceding sentence, any of the provisions of such sections
which provide for or permit action to be taken with respect
to a series of Securities shall also be deemed to provide
for and permit such action to be taken instead only with
24
respect to Securities of one or more tranches within that
series (and such provisions shall be deemed satisfied
thereby), even if no comparable action is taken with respect
to Securities in the remaining tranches of that series.
ARTICLE 3
REDEMPTION
SECTION 3.1 APPLICABILITY OF ARTICLE. The
provisions of this Article shall be applicable to the
Securities of any series which are redeemable before their
maturity or to any sinking fund for the retirement of
Securities of a series except as otherwise specified as
contemplated by Section 2.3 for Securities of such series.
SECTION 3.2 NOTICE OF REDEMPTION; PARTIAL
REDEMPTIONS. Notice of redemption to the Holders of
Registered Securities of any series to be redeemed as a
whole or in part at the option of the Company shall be given
by mailing notice of such redemption by first class mail,
postage prepaid, at least 30 days and not more than 60 days
prior to the date fixed for redemption to such Holders of
Registered Securities of such series at their last addresses
as they shall appear upon the Securities Register. Notice
of redemption to the Holders of Unregistered Securities of
any series to be redeemed as a whole or in part who have
filed their names and addresses with the Trustee pursuant to
Section 313(c)(2) of the Trust Indenture Act, shall be given
by mailing notice of such redemption, by first class mail,
postage prepaid, at least 30 days and not more than 60 days
prior to the date fixed for redemption, to such Holders at
such addresses as were so furnished to the Trustee (and, in
the case of any such notice given by the Company, the
Trustee shall make such information available to the Company
for such purpose). Notice of redemption to all other
Holders of Unregistered Securities of any series to be
redeemed as a whole or in part shall be published in an
Authorized Newspaper in The City of New York or with respect
to any Security the interest on which is based on the
offered quotations in the interbank Eurodollar market for
dollar deposits in an Authorized Newspaper in London, in
each case, once in each of three successive calendar weeks,
the first publication to be not less than 30 days nor more
than 60 days prior to the date fixed for redemption. Any
notice which is mailed or published in the manner herein
provided shall be conclusively presumed to have been duly
given, whether or not the Holder receives the notice.
Failure to give notice by mail, or any defect in the notice
to the Holder of any Security of a series designated for
25
redemption as a whole or in part shall not affect the
validity of the proceedings for the redemption of any other
Security of such series.
The notice of redemption to each such Holder shall
specify (i) the principal amount of each Security of such
series held by such Holder to be redeemed, (ii) the CUSIP
numbers of the Securities to be redeemed, (iii) the date
fixed for redemption, (iv) the redemption price, (v) the
place or places of payment, (vi) that payment will be made
upon presentation and surrender of such Securities and, in
the case of Securities with coupons attached thereto, of all
coupons appertaining thereto maturing after the date fixed
for redemption, (vii) that such redemption is pursuant to
the mandatory or optional sinking fund, or both, if such be
the case, (viii) that interest accrued to the date fixed for
redemption will be paid as specified in such notice and that
on and after said date interest thereon or on the portions
thereof to be redeemed will cease to accrue. In case any
Security of a series is to be redeemed in part only, the
notice of redemption shall state the portion of the
principal amount thereof to be redeemed and shall state that
on and after the date fixed for redemption, upon surrender
of such Security, a new Security or Securities of such
series and tenor in principal amount equal to the unredeemed
portion thereof will be issued.
The notice of redemption of Securities of any
series to be redeemed at the option of the Company shall be
given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
Not later than 10:00 a.m. New York City time on
the redemption date specified in the notice of redemption
given as provided in this Section, the Company will deposit
with the Trustee or with one or more Paying Agents (or, if
the Company is acting as its own Paying Agent, set aside,
segregate and hold in trust as provided in Section 2.6) an
amount of money in immediately available funds sufficient to
redeem on the redemption date all the Securities of such
series so called for redemption at the appropriate
redemption price, together with accrued interest to the date
fixed for redemption. If less than all the outstanding
Securities of a series are to be redeemed, the Company will
deliver to the Trustee at least 15 days prior to the last
date on which notice of redemption may be given to Holders
pursuant to the first paragraph of this Section 3.2 (or such
shorter period as shall be acceptable to the Trustee) an
Officers' Certificate (which need not contain the statements
required by Section 10.4) stating the aggregate principal
amount of such Securities to be redeemed. In case of a
26
redemption at the election of the Company prior to the
expiration of any restriction on such redemption, the
Company shall deliver to the Trustee, prior to the giving of
any notice of redemption to Holders pursuant to this
Section, an Officers' Certificate stating that such
redemption is not prohibited by such restriction.
If less than all the Securities of a series are to
be redeemed, the Trustee shall select, pro rata, by lot or
in such manner as it shall deem appropriate and fair,
Securities of such series to be redeemed in whole or in
part. Securities may be redeemed in part in multiples equal
to the minimum authorized denomination for Securities of
such series or any multiple thereof. The Trustee shall
promptly notify the Company in writing of the Securities of
such series selected for redemption and, in the case of any
Securities of such series selected for partial redemption,
the principal amount thereof to be redeemed. For all
purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of
Securities shall relate, in the case of any Security
redeemed or to be redeemed only in part, to the portion of
the principal amount of such Security which has been or is
to be redeemed.
SECTION 3.3 PAYMENT OF SECURITIES CALLED FOR
REDEMPTION. If notice of redemption has been given as above
provided, the Securities or portions of Securities specified
in such notice shall become due and payable on the date and
at the place stated in such notice at the applicable
redemption price, together with interest accrued to the date
fixed for redemption, and on and after such date (unless the
Company shall default in the payment of such Securities at
the redemption price, together with interest accrued to such
date) interest on the Securities or portions of Securities
so called for redemption shall cease to accrue, and the
unmatured coupons, if any, appertaining thereto shall be
void and, except as provided in Sections 7.11 and 8.4, such
Securities shall cease from and after the date fixed for
redemption to be entitled to any benefit under this
Indenture, and the Holders thereof shall have no right in
respect of such Securities except the right to receive the
redemption price thereof and unpaid interest to the date
fixed for redemption. On presentation and surrender of such
Securities at a place of payment specified in said notice,
together with all coupons, if any, appertaining thereto
maturing after the date fixed for redemption, said
Securities or the specified portions thereof shall be paid
and redeemed by the Company at the applicable redemption
price, together with interest accrued thereon to the date
fixed for redemption; PROVIDED that payment of interest
27
becoming due on or prior to the date fixed for redemption
shall be payable in the case of Securities with coupons
attached thereto, to the Holders of the coupons for such
interest upon surrender thereof, and in the case of
Registered Securities, to the Holders of such Registered
Securities registered as such on the relevant record date
subject to the terms and provisions of Sections 2.4 and 2.13
hereof.
If any Security called for redemption shall not be
so paid upon surrender thereof for redemption, the principal
shall, until paid or duly provided for, bear interest from
the date fixed for redemption at the rate of interest or
Yield to Maturity (in the case of an Original Issue Discount
Security) borne by such Security.
If any Security with coupons attached thereto is
surrendered for redemption and is not accompanied by all
appurtenant coupons maturing after the date fixed for
redemption, the surrender of such missing coupon or coupons
may be waived by the Company and the Trustee, if there be
furnished to each of them such security or indemnity as they
may require to save each of them harmless.
Upon presentation of any Security of any series
redeemed in part only, the Company shall execute and the
Trustee shall authenticate and deliver to or on the order of
the Holder thereof, at the expense of the Company, a new
Security or Securities of such series and tenor (with any
unmatured coupons attached), of authorized denominations, in
principal amount equal to the unredeemed portion of the
Security so presented.
SECTION 3.4 EXCLUSION OF CERTAIN SECURITIES
FROM ELIGIBILITY FOR SELECTION FOR REDEMPTION. Securities
shall be excluded from eligibility for selection for
redemption if they are identified by registration and
certificate number in a written statement signed by an
authorized officer of the Company and delivered to the
Trustee at least 40 days prior to the last date on which
notice of redemption may be given as being owned of record
and beneficially by, and not pledged or hypothecated by
either (a) the Company or (b) an entity specifically
identified in such written statement as directly or
indirectly controlling or controlled by or under direct or
indirect common control with the Company.
SECTION 3.5 MANDATORY AND OPTIONAL SINKING
FUNDS. The minimum amount of any sinking fund payment
provided for by the terms of Securities of any series is
herein referred to as a "MANDATORY SINKING FUND PAYMENT",
28
and any payment in excess of such minimum amount provided
for by the terms of the Securities of any series is herein
referred to as an "OPTIONAL SINKING FUND PAYMENT". The date
on which a sinking fund payment is to be made is herein
referred to as the "SINKING FUND PAYMENT DATE".
In lieu of making all or any part of any mandatory
sinking fund payment with respect to any series of
Securities in cash, the Company may at its option (a)
deliver to the Trustee Securities of such series theretofore
purchased or otherwise acquired (except through a mandatory
sinking fund payment) by the Company or receive credit for
Securities of such series (not previously so credited)
theretofore purchased or otherwise acquired (except as
aforesaid) by the Company and delivered to the Trustee for
cancellation pursuant to Section 2.11, (b) receive credit
for optional sinking fund payments (not previously so
credited) made pursuant to this Section, or (c) receive
credit for Securities of such series (not previously so
credited) redeemed by the Company through any optional
sinking fund payment. Securities so delivered or credited
shall be received or credited by the Trustee at the sinking
fund redemption price specified in such Securities.
On or before the sixtieth day next preceding each
sinking fund payment date for any series, or such shorter
period as shall be acceptable to the Trustee, the Company
will deliver to the Trustee an Officers' Certificate (a)
specifying the portion of the mandatory sinking fund payment
to be satisfied by payment of cash and the portion to be
satisfied by credit of specified Securities of such series
and the basis for such credit, (b) stating that none of the
specified Securities of such series has theretofore been so
credited, (c) stating that no defaults in the payment of
interest or Events of Default with respect to such series
have occurred (which have not been waived or cured) and are
continuing and (d) stating whether or not the Company
intends to exercise its right to make an optional sinking
fund payment with respect to such series and, if so,
specifying the amount of such optional sinking fund payment
which the Company intends to pay on or before the next
succeeding sinking fund payment date. Any Securities of
such series to be credited and required to be delivered to
the Trustee in order for the Company to be entitled to
credit therefor as aforesaid which have not theretofore been
delivered to the Trustee shall be delivered for cancellation
pursuant to Section 2.11 to the Trustee with such Officers'
Certificate (or reasonably promptly thereafter if acceptable
to the Trustee). Such Officers' Certificate shall be
irrevocable and upon its receipt by the Trustee the Company
shall become unconditionally obligated to make all the cash
29
payments or delivery of securities therein referred to, if
any, on or before the next succeeding sinking fund payment
date. Failure of the Company, on or before any such
sixtieth day, to deliver such Officer's Certificate and
Securities specified in this paragraph, if any, shall not
constitute a default but shall constitute, on and as of such
date, the irrevocable election of the Company (i) that the
mandatory sinking fund payment for such series due on the
next succeeding sinking fund payment date shall be paid
entirely in cash without the option to deliver or credit
Securities of such series in respect thereof and (ii) that
the Company will make no optional sinking fund payment with
respect to such series as provided in this Section.
If the sinking fund payment or payments (mandatory
or optional or both) to be made in cash on the next
succeeding sinking fund payment date plus any unused balance
of any preceding sinking fund payments made in cash shall
exceed $50,000 (or a lesser sum if the Company shall so
request with respect to the Securities of any series), such
cash shall be applied on the next succeeding sinking fund
payment date to the redemption of Securities of such series
at the sinking fund redemption price thereof together with
accrued interest thereon to the date fixed for redemption.
If such amount shall be $50,000 (or such lesser sum) or less
and the Company makes no such request then it shall be
carried over until a sum in excess of $50,000 (or such
lesser sum) is available. The Trustee shall select, in the
manner provided in Section 3.2, for redemption on such
sinking fund payment date a sufficient principal amount of
Securities of such series to absorb said cash, as nearly as
may be, and shall inform the Company of the serial numbers
of the Securities of such series (or portions thereof) so
selected. Securities shall be excluded from eligibility for
redemption under this Section if they are identified by
registration and certificate number in an Officers'
Certificate delivered to the Trustee at least 60 days prior
to the sinking fund payment date as being owned of record
and beneficially by, and not pledged or hypothecated by
either (a) the Company or (b) an entity specifically
identified in such Officers' Certificate as directly or
indirectly controlling or controlled by or under direct or
indirect common control with the Company. The Trustee, in
the name and at the expense of the Company (or the Company,
if it shall so request the Trustee in writing) shall cause
notice of redemption of the Securities of such series to be
given in substantially the manner provided in Section 3.2
(and with the effect provided in Section 3.3) for the
redemption of Securities of such series in part at the
option of the Company. The amount of any sinking fund
payments not so applied or allocated to the redemption of
30
Securities of such series shall be added to the next cash
sinking fund payment for such series and, together with such
payment, shall be applied in accordance with the provisions
of this Section. Any and all sinking fund moneys held on
the stated maturity date of the Securities of any particular
series (or earlier, if such maturity is accelerated), which
are not held for the payment or redemption of particular
Securities of such series shall be applied, together with
other moneys, if necessary, sufficient for the purpose, to
the payment of the Principal of, and interest on, the
Securities of such series at maturity.
Not later than 10:00 a.m. New York City time on
each sinking fund payment date, the Company shall pay to the
Trustee in cash or shall otherwise provide for the payment
of all interest accrued to the date fixed for redemption on
Securities to be redeemed on the next following sinking fund
payment date.
The Trustee shall not redeem or cause to be
redeemed any Securities of a series with sinking fund moneys
or mail any notice of redemption of Securities of such
series by operation of the sinking fund during the
continuance of a Default in payment of interest on such
Securities or of any Event of Default except that, where the
mailing of notice of redemption of any Securities shall
theretofore have been made, the Trustee shall redeem or
cause to be redeemed such Securities, provided that it shall
have received from the Company a sum sufficient for such
redemption. 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 the sinking fund, shall, during the continuance of such
Default or Event of Default, be deemed to have been
collected under Article 6 and held for the payment of all
such Securities. In case such Event of Default shall have
been waived as provided in Section 6.4 or the Default cured
on or before the sixtieth day preceding the sinking fund
payment date in any year, such moneys shall thereafter be
applied on the next succeeding sinking fund payment date in
accordance with this Section to the redemption of such
Securities.
ARTICLE 4
COVENANTS
SECTION 4.1 PAYMENT OF SECURITIES. The Company
shall pay the Principal of and interest on the Securities on
the dates and in the manner provided in the Securities and
31
this Indenture. The interest on Securities with coupons
attached (together with any additional amounts payable
pursuant to the terms of such Securities) shall be payable
only upon presentation and surrender of the several coupons
for such interest installments as are evidenced thereby as
they severally mature. The interest on any temporary
Unregistered Securities (together with any additional
amounts payable pursuant to the terms of such Securities)
shall be paid, as to the installments of interest evidenced
by coupons attached thereto, if any, only upon presentation
and surrender thereof, and, as to the other installments of
interest, if any, only upon presentation of such
Unregistered Securities for notation thereon of the payment
of such interest. The interest on Registered Securities
(together with any additional amounts payable pursuant to
the terms of such Securities) shall be payable only to the
Holders thereof and at the option of the Company may be paid
by mailing checks for such interest payable to or upon the
written order of such Holders at their last addresses as
they appear on the Security Register of the Company.
Notwithstanding any provisions of this Indenture
and the Securities of any series to the contrary, if the
Company and a Holder of any Registered Security so agree,
payments of interest on, and any portion of the Principal
of, such Holder's Registered Security (other than interest
payable at maturity or on any redemption or repayment date
or the final payment of Principal on such Security) shall be
made by the Paying Agent, upon receipt from the Company of
immediately available funds by 11:00 A.M., New York City
time (or such other time as may be agreed to between the
Company and the Paying Agent), directly to the Holder of
such Security (by Federal funds wire transfer or otherwise)
if the Holder has delivered written instructions to the
Trustee 15 days prior to such payment date requesting that
such payment will be so made and designating the bank
account to which such payments shall be so made and in the
case of payments of Principal surrenders the same to the
Trustee in exchange for a Security or Securities aggregating
the same principal amount as the unredeemed principal amount
of the Securities surrendered. The Trustee shall be
entitled to rely on the last instruction delivered by the
Holder pursuant to this Section 4.1 unless a new instruction
is delivered 15 days prior to a payment date. The Company
will indemnify and hold each of the Trustee and any Paying
Agent harmless against any loss, liability or expense
(including attorneys' fees) resulting from any act or
omission to act on the part of the Company or any such
Holder in connection with any such agreement or from making
any payment in accordance with any such agreement.
32
The Company shall pay interest on overdue
Principal, and interest on overdue installments of interest,
to the extent lawful, at the rate per annum specified in the
Securities.
SECTION 4.2 MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in the Borough of Manhattan, The
City of New York, an office or agency where Securities may
be surrendered for registration of transfer or exchange or
for presentation for payment and where notices and demands
to or upon the Company in respect of the Securities and this
Indenture may be served. The Company hereby initially
designates the Corporate Trust Office of the Trustee,
located in the Borough of Manhattan, The City of New York,
as such office or agency of the Company. 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
address of the Trustee set forth in Section 10.2.
The Company will maintain one or more agencies in
a city or cities located outside the United States
(including any city in which such an agency is required to
be maintained under the rules of any stock exchange on which
the Securities of any series are listed) where the
Unregistered Securities, if any, of each series and coupons,
if any, appertaining thereto may be presented for payment.
No payment on any Unregistered Security or coupon will be
made upon presentation of such Unregistered Security or
coupon at an agency of the Company within the United States
nor will any payment be made by transfer to an account in,
or by mail to an address in, the United States unless,
pursuant to applicable United States laws and regulations
then in effect, such payment can be made without adverse tax
consequences to the Company. Notwithstanding the foregoing,
if full payment in United States Dollars ("DOLLARS") at each
agency maintained by the Company outside the United States
for payment on such Unregistered Securities or coupons
appertaining thereto is illegal or effectively precluded by
exchange controls or other similar restrictions, payments in
Dollars of Unregistered Securities of any series and coupons
appertaining thereto which are payable in Dollars may be
made at an agency of the Company maintained in the Borough
of Manhattan, The City of New York.
The Company may also from time to time designate
one or more other offices or agencies where the Securities
of any series may be presented or surrendered for any or all
33
such purposes and may from time to time rescind such
designations; PROVIDED that no such designation or
rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in the Borough of
Manhattan, The City of New York for such purposes. The
Company will give prompt written notice to the Trustee of
any such designation or rescission and of any change in the
location of any such other office or agency.
SECTION 4.3 NEGATIVE PLEDGE. (a) The Company
will not, and will not permit any Restricted Subsidiary to,
create or incur Lien on any shares of stock, indebtedness or
other obligations of a Restricted Subsidiary or any
Principal Property of the Company or a Restricted
Subsidiary, whether such shares of stock, indebtedness or
other obligations of a Restricted Subsidiary or Principal
Property are owned at the date of this Indenture or
hereafter acquired, unless the Company secures or causes
such Restricted Subsidiary to secure the outstanding
Securities equally and ratably with all indebtedness secured
by such Lien, so long as such indebtedness shall be so
secured; PROVIDED, however, that this covenant shall not
apply in the case of: (i) the creation of any Lien on any
shares of stock, indebtedness or other obligations of a
Subsidiary or any Principal Property hereafter acquired
(including acquisitions by way of merger or consolidation)
by the Company or a Restricted Subsidiary contemporaneously
with such acquisition, or within 180 days thereafter, to
secure or provide for the payment or financing of any part
of the purchase price thereof, or the assumption of any Lien
upon any shares of stock, indebtedness or other obligations
of a Subsidiary or any Principal Property hereafter acquired
existing at the time of such acquisition, or the acquisition
of any shares of stock, indebtedness or other obligations of
a Subsidiary or any Principal Property subject to any Lien
without the assumption thereof, PROVIDED that every such
Lien referred to in this clause (i) shall attach only to the
shares of stock, indebtedness or other obligations of a
Subsidiary or any Principal Property so acquired and fixed
improvements thereon; (ii) any Lien on any shares of stock,
indebtedness or other obligations of a Subsidiary or any
Principal Property existing at the date of this Indenture;
(iii) any Lien on any shares of stock, indebtedness or other
obligations of a Subsidiary or any Principal Property in
favor of the Company or any Restricted Subsidiary; (iv) any
Lien on any Principal Property being constructed or improved
securing loans to finance such construction or improvements;
(v) any Lien on shares of stock, indebtedness or other
obligations of a Subsidiary or any Principal Property
incurred in connection with the issuance of tax-exempt
governmental obligations (including, without limitation,
34
industrial revenue bonds and similar financings); (vi) any
mechanics', materialmen's, carriers' or other similar Liens
arising in the ordinary course of business with respect to
obligations which are not yet due or that are being
contested in good faith, (vii) any Lien on any shares of
stock, indebtedness or other obligations of a Subsidiary or
any Principal Property for taxes, assessments or
governmental charges or levies not yet delinquent, or
already delinquent but the validity of which is being
contested in good faith, (viii) any Lien on any shares of
stock, indebtedness or other obligations of a Subsidiary or
any Principal Property arising in connection with legal
proceedings being contested in good faith, including any
judgment Lien so long as execution thereon is stayed, (ix)
any landlord's Lien on fixtures located on premises leased
by the Company or a Restricted Subsidiary in the ordinary
course of business, and tenants' rights under leases,
easements and similar Liens not materially impairing the use
or value of the property involved, (x) any Lien arising by
reason of deposits necessary to qualify the Company or any
Restricted Subsidiary to conduct business, maintain self-
insurance, or obtain the benefit of, or comply with, any
law, and (xi) any renewal of or substitution for any Lien
permitted by any of the preceding clauses (i) through (x),
provided, in the case of a Lien permitted under clause (i),
(ii) or (iv), the indebtedness secured is not increased nor
the Lien extended to any additional assets.
(b) Notwithstanding the provisions of paragraph
(a) of this Section, the Company or any Restricted
Subsidiary may create or assume Liens in addition to those
permitted by paragraph (a) of this Section, and renew,
extend or replace such liens, PROVIDED that at the time of
such creation, assumption, renewal, extension or
replacement, and after giving effect thereto, Exempted Debt
does not exceed 15% of Combined Net Worth.
SECTION 4.4 CERTAIN SALE AND LEASE-BACK
TRANSACTIONS. (a) The Company will not, and will not
permit any Restricted Subsidiary to, sell or transfer,
directly or indirectly, except to the Company or a
Restricted Subsidiary, any Principal Property as an
entirety, or any substantial portion thereof, with the
intention of taking back a lease of such property, except a
lease for a period of three years or less at the end of
which it is intended that the use of such property by the
lessee will be discontinued; PROVIDED that, notwithstanding
the foregoing, the Company or any Restricted Subsidiary may
sell any such Principal Property and lease it back for a
longer period (i) if the Company or such Restricted
Subsidiary would be entitled, pursuant to the provisions of
35
Section 4.3(a), to create a Lien on the property to be
leased securing Funded Debt in an amount equal to the
Attributable Debt with respect to such sale and lease-back
transaction without equally and ratably securing the
outstanding Securities or (ii) if (A) the Company promptly
informs the Trustee of such transaction and (B) the Company
causes an amount equal to the fair value (as determined by
Board Resolution of the Company) of such property to be
applied (1) to the purchase of other property that will
constitute Principal Property having a fair value at least
equal to the fair value of the property sold or (2) to the
retirement, within 120 days after receipt of such proceeds,
of Funded Debt incurred or assumed by the Company or a
Restricted Subsidiary (including the Securities); PROVIDED
further that, in lieu of applying all of or any part of such
net proceeds to such retirement, the Company may, within 75
days after such sale, deliver or cause to be delivered to
the applicable trustee for cancellation either debentures or
notes evidencing Funded Debt of the Company (which may
include the Securities) or of a Restricted Subsidiary
previously authenticated and delivered by the applicable
trustee, and not theretofore tendered for sinking fund
purposes or called for a sinking fund or otherwise applied
as a credit against an obligation to redeem or retire such
notes or debentures, and an Officers' Certificate (which
shall be delivered to the Trustee and which need not contain
the statements prescribed by Section 10.4) stating that the
Company elects to deliver or cause to be delivered such
debentures or notes in lieu of retiring Funded Debt as
hereinabove provided. If the Company shall so deliver
debentures or notes to the applicable trustee and the
Company shall duly deliver such Officers' Certificate, the
amount of cash which the Company shall be required to apply
to the retirement of Funded Debt under this Section 4.4(a)
shall be reduced by an amount equal to the aggregate of the
then applicable optional redemption prices (not including
any optional sinking fund redemption prices) of such
debentures or notes, or, if there are no such redemption
prices, the principal amount of such debentures or notes;
PROVIDED, that in the case of debentures or notes which
provide for an amount less than the principal amount thereof
to be due and payable upon a declaration of the maturity
thereof, such amount of cash shall be reduced by the amount
of principal of such debentures or notes that would be due
and payable as of the date of such application upon a
declaration of acceleration of the maturity thereof pursuant
to the terms of the indenture pursuant to which such
debentures or notes were issued.
(b) Notwithstanding the provisions of paragraph
(a) of this Section 4.4, the Company or any Restricted
36
Subsidiary may enter into sale and lease-back transactions
in addition to those permitted by paragraph (a) of this
Section 4.4 without any obligation to retire any outstanding
Securities or other Funded Debt, PROVIDED that at the time
of entering into such sale and lease-back transactions and
after giving effect thereto, Exempted Debt does not exceed
15% of Combined Net Worth.
SECTION 4.5 CERTIFICATE TO TRUSTEE. The
Company will furnish to the Trustee annually, on or before a
date not more than four months after the end of its fiscal
year (which, on the date hereof, is a calendar year), a
brief certificate (which need not contain the statements
required by Section 10.4) from its principal executive,
financial or accounting officer as to his or her knowledge
of the compliance of the Company with all conditions and
covenants under this Indenture (such compliance to be
determined without regard to any period of grace or
requirement of notice provided under this Indenture) which
certificate shall comply with the requirements of the Trust
Indenture Act.
SECTION 4.6 REPORTS BY THE COMPANY. The
Company covenants to file with the Trustee, within 15 days
after the Company is required to file the same with the
Commission, copies of the annual reports and of the
information, documents, and other reports which the Company
may be required to file with the Commission pursuant to
Section 13 or Section 15(d) of the Exchange Act.
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.1 WHEN COMPANY MAY MERGE, ETC. The
Company shall not consolidate with, merge with or into, or
sell, convey, transfer, lease or otherwise dispose of all or
substantially all of its property and assets (as an entirety
or substantially as an entirety in one transaction or a
series of related transactions) to, any Person (other than a
consolidation with or merger with or into a Subsidiary or a
sale, conveyance, transfer, lease or other disposition to a
Subsidiary) or permit any Person to merge with or into the
Company unless:
(i) either (x) the Company shall be the
continuing Person or (y) the Person (if other than the
Company) formed by such consolidation or into which the
Company is merged or that acquired or leased such
property and assets of the Company shall be a
37
corporation organized and validly existing under the
laws of the United States of America or any
jurisdiction thereof and shall expressly assume, by a
supplemental indenture, executed and delivered to the
Trustee, all of the obligations of the Company on all
of the Securities and under this Indenture and the
Company shall have delivered to the Trustee an Opinion
of Counsel stating that such consolidation, merger or
transfer and such supplemental indenture complies with
this provision and that all conditions precedent
provided for herein relating to such transaction have
been complied with and that such supplemental indenture
constitutes the legal, valid and binding obligation of
the Company or such successor enforceable against such
entity in accordance with its terms, subject to
customary exceptions; and
(ii) an Officers' Certificate to the effect that
immediately after giving effect to such transaction, no
Default shall have occurred and be continuing and an
Opinion of Counsel as to the matters set forth in
Section 5.1(i) shall have been delivered to the
Trustee.
SECTION 5.2 SUCCESSOR SUBSTITUTED. Upon any
consolidation or merger, or any sale, conveyance, transfer,
lease or other disposition of all or substantially all of
the property and assets of the Company in accordance with
Section 5.1 of this Indenture, the successor Person formed
by such consolidation or into which the Company is merged or
to which such sale, conveyance, transfer, lease or other
disposition 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 Person had been named as the Company herein. In
the event of any such sale, conveyance, transfer or other
disposition (other than by way of lease) the Company or any
successor Person that shall theretofore have become such in
the manner described in this Article shall be discharged
from all obligations and covenants under this Indenture and
the Securities and may be liquidated and dissolved.
38
ARTICLE 6
DEFAULT AND REMEDIES
SECTION 6.1 EVENTS OF DEFAULT. An "EVENT OF
DEFAULT" shall occur with respect to the Securities of any
series if:
(a) the Company defaults in the payment of the
Principal of any Security of such series when the same
becomes due and payable at maturity, upon acceleration,
redemption or mandatory repurchase, including as a
sinking fund installment, or otherwise;
(b) the Company defaults in the payment of
interest on any Security of such series when the same
becomes due and payable, and such default continues for
a period of 30 days;
(c) (i) default by the Company or any Restricted
Subsidiary in the payment when due at maturity of any
Funded Debt (other than Funded Debt that is non-
recourse to the Company and its Restricted
Subsidiaries) in excess of $15,000,000, whether such
Funded Debt is outstanding at the date of this
Indenture or is hereafter outstanding, and the
continuation of such default for the greater of any
period of grace applicable thereto or ten days from the
date of such default or (ii) an event of default, as
defined in any indenture, agreement or instrument
evidencing or under which the Company and/or any
Restricted Subsidiary has at the date of this Indenture
or shall thereafter have outstanding at least
$15,000,000 aggregate principal amount of Funded Debt,
shall happen and be continuing and such Funded Debt
shall have been accelerated so that the same shall be
or become due and payable prior to the date on which
the same would otherwise have become due and payable,
and such acceleration shall not be rescinded or
annulled or such indebtedness shall not be discharged,
within ten days;
(d) the Company defaults in the performance of or
breaches any other covenant or agreement of the Company
in this Indenture with respect to any Security of such
series or in the Securities of such series and such
default or breach continues for a period of 30
consecutive days after written notice to the Company by
the Trustee or to the Company and the Trustee by the
Holders of 25% or more in aggregate principal amount of
the Securities of all series affected thereby;
39
(e) an involuntary case or other proceeding shall
be commenced against the Company or any Restricted
Subsidiary with respect to it or its debts under any
bankruptcy, insolvency or other similar law now or
hereafter in effect seeking the appointment of a
trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its
property, and such involuntary case or other proceeding
shall remain undismissed and unstayed for a period of
60 days; or an order for relief shall be entered
against the Company or any Restricted Subsidiary under
the federal bankruptcy laws as now or hereafter in
effect;
(f) the Company or any Restricted Subsidiary (A)
commences a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or
hereafter in effect, or consents to the entry of an
order for relief in an involuntary case under any such
law, (B) consents to the appointment of or taking
possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of
the Company or any Restricted Subsidiary or for all or
substantially all of the property and assets of the
Company or any Restricted Subsidiary or (C) effects any
general assignment for the benefit of creditors; or
(g) any other Event of Default established
pursuant to Section 2.3 with respect to the Securities
of such series occurs.
SECTION 6.2 ACCELERATION. (a) If an Event of
Default described in clauses (a) or (b) of Section 6.1 with
respect to the Securities of any series then outstanding
occurs and is continuing, then, and in each and every such
case, except for any series of Securities the principal of
which shall have already become due and payable, either the
Trustee or the Holders of not less than 25% in aggregate
principal amount of the Securities of any such affected
series then outstanding hereunder (each such series treated
as a separate class) by notice in writing to the Company
(and to the Trustee if given by Securityholders), may
declare the entire principal (or, if the Securities of any
such series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the
terms of such series established pursuant to Section 2.3) of
all Securities of such affected series, and the interest
accrued thereon, if any, to be due and payable immediately,
and upon any such declaration the same shall become
immediately due and payable.
40
(b) If an Event of Default described in clauses
(c), (d) or (g) of Section 6.1 with respect to the
Securities of one or more but not all series then
outstanding, or with respect to the Securities of all series
then outstanding, occurs and is continuing, then, and in
each and every such case, except for any series of Securi-
ties the principal of which shall have already become due
and payable, either the Trustee or the Holders of not less
than 25% in aggregate principal amount (or, if the
Securities of any such series are Original Issue Discount
Securities, the amount thereof accelerable under this
Section) of the Securities of all such affected series then
outstanding hereunder (treated as a single class) by notice
in writing to the Company (and to the Trustee if given by
Securityholders), may declare the entire principal (or, if
the Securities of any such series are Original Issue
Discount Securities, such portion of the principal amount as
may be specified in the terms of such series established
pursuant to Section 2.3) of all Securities of all such
affected series, and the interest accrued thereon, if any,
to be due and payable immediately, and upon any such
declaration the same shall become immediately due and
payable.
(c) If an Event of Default described in clause
(d) or (e) of Section 6.1 occurs and is continuing, then the
principal amount (or, if any Securities are Original Issue
Discount Securities, such portion of the principal as may be
specified in the terms thereof established pursuant to
Section 2.3) of all the Securities then outstanding and
interest accrued thereon, if any, shall be and become
immediately due and payable, without any notice or other
action by any Holder or the Trustee, to the full extent
permitted by applicable law.
The foregoing provisions, however, are subject to
the condition that if, at any time after the principal (or,
if the Securities are Original Issue Discount Securities,
such portion of the principal as may be specified in the
terms thereof established pursuant to Section 2.3) of the
Securities of any series (or of all the Securities, as the
case may be) shall have been so declared due and payable,
and before any judgment or decree for the payment of the
moneys due shall have been obtained or entered as
hereinafter provided, the Company shall pay or shall deposit
with the Trustee a sum sufficient to pay all matured
installments of interest upon all the Securities of each
such series (or of all the Securities, as the case may be)
and the principal of any and all Securities of each such
series (or of all the Securities, as the case may be) which
shall have become due otherwise than by acceleration (with
41
interest upon such principal and, to the extent that payment
of such interest is enforceable under applicable law, on
overdue installments of interest, at the same rate as the
rate of interest or Yield to Maturity (in the case of
Original Issue Discount Securities) specified in the
Securities of each such series to the date of such payment
or deposit) and such amount as shall be sufficient to cover
all amounts owing the Trustee under Section 7.7, and if any
and all Events of Default under the Indenture, other than
the non-payment of the principal of Securities which shall
have become due by acceleration, shall have been cured,
waived or otherwise remedied as provided herein, then and in
every such case the Holders of a majority in aggregate
principal amount of all the then outstanding Securities of
all such series that have been accelerated (voting as a
single class), by written notice to the Company and to the
Trustee, may waive all defaults with respect to all such
series (or with respect to all the Securities, as the case
may be) and rescind and annul such declaration and its
consequences, but no such waiver or rescission and annulment
shall extend to or shall affect any subsequent default or
shall impair any right consequent thereon.
For all purposes under this Indenture, if a
portion of the principal of any Original Issue Discount
Securities shall have been accelerated and declared due and
payable pursuant to the provisions hereof, then, from and
after such declaration, unless such declaration has been
rescinded and annulled, the principal amount of such
Original Issue Discount Securities shall be deemed, for all
purposes hereunder, to be such portion of the principal
thereof as shall be due and payable as a result of such
acceleration, and payment of such portion of the principal
thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and
all other amounts owing thereunder, shall constitute payment
in full of such Original Issue Discount Securities.
SECTION 6.3 OTHER REMEDIES. If a payment
default or an Event of Default with respect to the
Securities of any series occurs and is continuing, the
Trustee may pursue, in its own name or as trustee of an
express trust, any available remedy by proceeding at law or
in equity to collect the payment of principal of and
interest on the Securities of such series or to enforce the
performance of any provision of the Securities of such
series or this Indenture.
The Trustee may maintain a proceeding even if it
does not possess any of the Securities or does not produce
any of them in the proceeding.
42
SECTION 6.4 WAIVER OF PAST DEFAULTS. Subject
to Sections 6.2, 6.7 and 9.2, the Holders of at least a
majority in principal amount (or, if the Securities are
Original Issue Discount Securities, such portion of the
principal as is then accelerable under Section 6.2) of the
outstanding Securities of all series affected (voting as a
single class), by notice to the Trustee, may waive, on
behalf of the Holders of all the Securities of such series,
an existing Default or Event of Default with respect to the
Securities of such series and its consequences, except a
Default in the payment of Principal of or interest on any
Security as specified in clauses (a) or (b) of Section 6.1
or in respect of a covenant or provision of this Indenture
which cannot be modified or amended without the consent of
the Holder of each outstanding Security affected. Upon any
such waiver, such Default shall cease to exist, and any
Event of Default with respect to the Securities of such
series arising therefrom shall be deemed to have been cured,
for every purpose of this Indenture; but no such waiver
shall extend to any subsequent or other Default or Event of
Default or impair any right consequent thereto.
SECTION 6.5 CONTROL BY MAJORITY. Subject to
Sections 7.1 and 7.2(v), the Holders of at least a majority
in aggregate principal amount (or, if any Securities are
Original Issue Discount Securities, such portion of the
principal as is then accelerable under Section 6.2) of the
outstanding Securities of all series affected (voting as a
single class) may direct the time, method and place of
conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on the
Trustee with respect to the Securities of such series by
this Indenture; PROVIDED, that the Trustee may refuse to
follow any direction that conflicts with law or this
Indenture, that may involve the Trustee in personal
liability or that the Trustee determines in good faith may
be unduly prejudicial to the rights of Holders not joining
in the giving of such direction; and PROVIDED FURTHER, that
the Trustee may take any other action it deems proper that
is not inconsistent with any directions received from
Holders of Securities pursuant to this Section 6.5.
SECTION 6.6 LIMITATION ON SUITS. No Holder of
any Security of any series may institute any proceeding,
judicial or otherwise, with respect to this Indenture or the
Securities of such series, or for the appointment of a
receiver or trustee, or for any other remedy hereunder,
unless:
43
(i) such Holder has previously given to the
Trustee written notice of a continuing Event of Default
with respect to the Securities of such series;
(ii) the Holders of at least 25% in aggregate
principal amount of outstanding Securities of all such
series affected 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;
(iii) such Holder or Holders have offered to the
Trustee indemnity reasonably satisfactory to the
Trustee against any costs, liabilities or expenses to
be incurred in compliance with such request;
(iv) the Trustee for 60 days after its receipt of
such notice, request and offer of indemnity has failed
to institute any such proceeding; and
(v) during such 60-day period, the Holders of a
majority in aggregate principal amount of the
outstanding Securities of all such affected series have
not given the Trustee a direction that is inconsistent
with such written request.
A Holder may not use this Indenture to prejudice
the rights of another Holder or to obtain a preference or
priority over such other Holder.
SECTION 6.7 RIGHTS OF HOLDERS TO RECEIVE
PAYMENT. Notwithstanding any other provision of this
Indenture, the right of any Holder of a Security to receive
payment of Principal of or interest, if any, on such
Holder's Security on or after the respective due dates
expressed on such Security, or to bring suit for the
enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent
of such Holder.
SECTION 6.8 COLLECTION SUIT BY TRUSTEE. If an
Event of Default with respect to the Securities of any
series in payment of Principal or interest specified in
clause (a) or (b) of Section 6.1 occurs and is continuing,
the Trustee may recover judgment in its own name and as
trustee of an express trust against the Company for the
whole amount (or such portion thereof as specified in the
terms established pursuant to Section 2.3 of Original Issue
Discount Securities) of Principal of, and accrued interest
remaining unpaid on, together with interest on overdue
Principal of, and, to the extent that payment of such
interest is lawful, interest on overdue installments of
44
interest on, the Securities of such series, in each case at
the rate or Yield to Maturity (in the case of Original Issue
Discount Securities) specified in such Securities, and such
further amount as shall be sufficient to cover all amounts
owing the Trustee under Section 7.7.
SECTION 6.9 TRUSTEE MAY FILE PROOFS OF CLAIM.
In the case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement,
adjustment, composition or other judicial proceeding
relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other
obligor or their creditors, the Trustee may file such proofs
of claim and other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee
(including any claim for amounts due the Trustee under
Section 7.7) and the Holders allowed in any judicial
proceedings relative to the Company (or any other obligor on
the Securities), its creditors or its property and shall be
entitled and empowered to collect and receive any moneys,
securities or other property payable or deliverable upon
conversion or exchange of the Securities or upon any such
claims and to distribute the same, and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is
hereby authorized by each 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 the Holders, to
pay to the Trustee any amount due to it under Section 7.7.
Nothing herein contained shall be deemed to empower 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
Securities 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 6.10 APPLICATION OF PROCEEDS. Any
moneys collected by the Trustee pursuant to this Article in
respect of the Securities of any series shall be applied in
the following order at the date or dates fixed by the
Trustee and, in case of the distribution of such moneys on
account of Principal or interest, upon presentation of the
several Securities and coupons appertaining to such
Securities in respect of which moneys have been collected
and noting thereon the payment, or issuing Securities of
such series and tenor in reduced principal amounts in
exchange for the presented Securities of such series and
tenor if only partially paid, or upon surrender thereof if
fully paid:
45
FIRST: To the payment of all amounts due the
Trustee under Section 7.7 applicable to the Securities
of such series in respect of which moneys have been
collected;
SECOND: In case the principal of the Securities
of such series in respect of which moneys have been
collected shall not have become and be then due and
payable, to the payment of interest on the Securities
of such series in default in the order of the maturity
of the installments of such interest, with interest (to
the extent that such interest has been collected by the
Trustee) upon the overdue installments of interest at
the same rate as the rate of interest or Yield to
Maturity (in the case of Original Issue Discount
Securities) specified in such Securities, such payments
to be made ratably to the persons entitled thereto,
without discrimination or preference;
THIRD: In case the principal of the Securities of
such series in respect of which moneys have been col-
lected shall have become and shall be then due and
payable, to the payment of the whole amount then owing
and unpaid upon all the Securities of such series for
Principal and interest, with interest upon the overdue
Principal, and (to the extent that such interest has
been collected by the Trustee) upon overdue instal-
lments of interest at the same rate as the rate of
interest or Yield to Maturity (in the case of Original
Issue Discount Securities) specified in the Securities
of such series; and in case such moneys shall be insuf-
ficient to pay in full the whole amount so due and
unpaid upon the Securities of such series, then to the
payment of such Principal and interest or Yield to
Maturity, without preference or priority of Principal
over interest or Yield to Maturity, or of interest or
Yield to Maturity over Principal, or of any installment
of interest over any other installment of interest, or
of any Security of such series over any other Security
of such series, ratably to the aggregate of such
Principal and accrued and unpaid interest or Yield to
Maturity; and
FOURTH: To the payment of the remainder, if any,
to the Company or any other person lawfully entitled
thereto.
SECTION 6.11 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
46
reason, or has been determined adversely to the Trustee or
to such Holder, then, and in every such case, subject to any
determination in such proceeding, the Company, the Trustee
and the Holders shall be restored to their former positions
hereunder and thereafter all rights and remedies of the
Company, Trustee and the Holders shall continue as though no
such proceeding had been instituted.
SECTION 6.12 UNDERTAKING FOR COSTS. In any suit
for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action
taken or omitted by it as Trustee, in either case in respect
to the Securities of any series, a court may require any
party litigant in such suit (other than the Trustee) to file
an undertaking to pay the costs of the suit, and the court
may assess reasonable costs, including reasonable attorneys'
fees, against any party litigant (other than the Trustee) in
the suit having due regard to the merits and good faith of
the claims or defenses made by the party litigant. This
Section 6.12 does not apply to a suit by a Holder pursuant
to Section 6.7 or a suit by Holders of more than 10% in
principal amount of the outstanding Securities of such
series.
SECTION 6.13 RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or wrongfully taken
Securities in Section 2.8, 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 6.14 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 an acquiescence
therein. Every right and remedy given by this Article 6 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.
47
ARTICLE 7
TRUSTEE
SECTION 7.1 GENERAL. The duties and
responsibilities of the Trustee shall be as provided by the
Trust Indenture Act and as set forth herein.
Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its
own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, unless it receives
indemnity satisfactory to it against any loss, liability or
expense. 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 Article
7.
SECTION 7.2 CERTAIN RIGHTS OF TRUSTEE. Subject
to Trust Indenture Act Sections 315(a) through (d):
(i) the Trustee may rely and shall be protected
in acting or refraining from acting upon any
resolution, certificate, Officers' Certificate, Opinion
of Counsel (or both), statement, instrument, opinion,
report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness
or other paper or document believed by it to be genuine
and to have been signed or presented by the proper
person or persons. The Trustee need not investigate
any fact or matter stated in the document, but the
Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as
it may see fit;
(ii) before the Trustee acts or refrains from
acting, it may require an Officers' Certificate and/or
an Opinion of Counsel, which shall conform to Section
10.4. The Trustee shall not be liable for any action
it takes or omits to take in good faith in reliance on
such certificate or opinion. Subject to Sections 7.1
and 7.2, whenever in the administration of the trusts
of this Indenture the Trustee shall deem it necessary
or desirable that a matter be proved or established
prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in
respect thereof be herein specifically prescribed) may,
in the absence of negligence or bad faith on the part
of the Trustee, be deemed to be conclusively proved and
established by an Officers' Certificate delivered to
48
the Trustee, and such certificate, in the absence of
negligence or bad faith on the part of the Trustee,
shall be full warrant to the Trustee for any action
taken, suffered or omitted by it under the provisions
of this Indenture upon the faith thereof;
(iii) the Trustee may act through its attorneys and
agents not regularly in its employ and shall not be
responsible for the misconduct or negligence of any
agent or attorney appointed with due care by it
hereunder;
(iv) any request, direction, order or demand of
the Company mentioned herein shall be sufficiently
evidenced by an Officers' Certificate (unless other
evidence in respect thereof be herein specifically
prescribed); and any Board Resolution may be evidenced
to the Trustee by a copy thereof certified by the
Secretary or an Assistant Secretary of the Company;
(v) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by
this Indenture at the request, order or direction of
any of the Holders, 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;
(vi) the Trustee shall not be liable for any
action it takes or omits to take in good faith that it
believes to be authorized or within its rights or
powers or for any action it takes or omits to take in
accordance with the direction of the Holders in
accordance with Section 6.5 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;
(vii) the Trustee may consult with counsel and the
written advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance
thereon; and
(viii) prior to the occurrence of an Event of
Default hereunder and after the curing or waiving of
all Events of Default, the Trustee shall not be bound
to make any investigation into the facts or matters
49
stated in any resolution, certificate, Officers'
Certificate, Opinion of Counsel, Board Resolution,
statement, instrument, opinion, report, notice,
request, consent, order, approval, appraisal, bond,
debenture, note, coupon, security, 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, during
normal business hours and upon prior written notice,
the books, records and premises of the Company,
personally or by agent or attorney.
SECTION 7.3 INDIVIDUAL RIGHTS OF TRUSTEE. The
Trustee, in its individual or any other capacity, may become
the owner or pledgee of Securities and may otherwise deal
with the Company or its Affiliates with the same rights it
would have if it were not the Trustee. Any Agent may do the
same with like rights. However, the Trustee is subject to
Trust Indenture Act Sections 310(b) and 311. For purposes
of Trust Indenture Act Section 311(b)(4) and (6), the
following terms shall mean:
(a) "CASH TRANSACTION" means any transaction in
which full payment for goods or securities sold is made
within seven days after delivery of the goods or securities
in currency or in checks or other orders drawn upon banks or
bankers and payable upon demand; and
(b) "SELF-LIQUIDATING PAPER" means any draft,
bill of exchange, acceptance or obligation which is made,
drawn, negotiated or incurred by the Company for the purpose
of financing the purchase, processing, manufacturing,
shipment, storage or sale of goods, wares or merchandise and
which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or
merchandise or the receivables or proceeds arising from the
sale of the goods, wares or merchandise previously
constituting the security, provided the security is received
by the Trustee simultaneously with the creation of the
creditor relationship with the Company arising from the
making, drawing, negotiating or incurring of the draft, bill
of exchange, acceptance or obligation.
SECTION 7.4 TRUSTEE'S DISCLAIMER. The recitals
contained herein and in the Securities (except the Trustee's
certificate of authentication) shall be taken as statements
of the Company and not of the Trustee and the Trustee
assumes no responsibility for the correctness of the same.
Neither the Trustee nor any of its agents (i) makes any
50
representation as to the validity or adequacy of this
Indenture or the Securities and (ii) shall be accountable
for the Company's use or application of the proceeds from
the Securities.
SECTION 7.5 NOTICE OF DEFAULT. If any Default
with respect to the Securities of any series occurs and is
continuing and if such Default is known to the actual
knowledge of a Responsible Officer with the Corporate Trust
Department of the Trustee, the Trustee shall give to each
Holder of Securities of such series notice of such Default
within 90 days after it occurs (i) if any Unregistered
Securities of such series are then outstanding, to the
Holders thereof, by publication at least once in an
Authorized Newspaper in the Borough of Manhattan, The City
of New York and at least once in an Authorized Newspaper in
London and (ii) to all Holders of Securities of such series
in the manner and to the extent provided in Section 313(c)
of the Trust Indenture Act, unless such Default shall have
been cured or waived before the mailing or publication of
such notice; PROVIDED, HOWEVER, that, except in the case of
a Default in the payment of the Principal of or interest on
any Security, the Trustee shall be protected in withholding
such notice if the Trustee in good faith determines that the
withholding of such notice is in the interests of the
Holders.
SECTION 7.6 REPORTS BY TRUSTEE TO HOLDERS.
Within 60 days after each May 15, beginning with May 15,
1996, the Trustee shall mail to each Holder as and to the
extent provided in Trust Indenture Act Section 313(c) a
brief report dated as of such May 15, if required by Trust
Indenture Act Section 313(a).
SECTION 7.7 COMPENSATION AND INDEMNITY. The
Company shall pay to the Trustee such compensation as shall
be agreed upon in writing from time to time for its
services. The compensation of the Trustee shall not be
limited by any law on compensation of a Trustee of an
express trust. The Company agrees to pay or reimburse the
Trustee and each predecessor Trustee upon its request for
all reasonable expenses, disbursements and advances incurred
or made by or on behalf of it in accordance with any of the
provisions of this Indenture and the Securities or the
issuance of the Securities or any series thereof (including
the reasonable compensation and the expenses and
disbursements of its counsel and of all agents and other
persons not regularly in its employ) except to the extent
any such expense, disbursement or advance may arise from its
negligence or bad faith. The Company shall indemnify the
Trustee and each predecessor Trustee for, and to hold it
51
harmless against, any loss, liability or expense arising out
of or in connection with the acceptance or administration of
this Indenture and the Securities or the issuance of the
Securities or any series thereof or the trusts hereunder and
the performance of its duties hereunder, including the costs
and expenses of defending itself against or investigating
any claim of liability in the premises, except to the extent
such loss liability or expense is due to the negligence or
bad faith of the Trustee or such predecessor Trustee. The
Trustee shall notify the Company promptly of any claim
asserted against the Trustee for which it may seek
indemnity. The Company shall defend the claim and the
Trustee shall cooperate in the defense. The Trustee may
have separate counsel and the Company shall pay the
reasonable fees and expenses of such counsel; PROVIDED, that
the Company will not be required to pay such fees and
expenses if it assumes the Trustee's defense and there is no
conflict of interest between the Company and the Trustee in
connection with such defense. The Company need not pay for
any settlement made without its written consent. The
Company need not reimburse any expense or indemnify against
any loss or liability to the extent incurred by the Trustee
through its negligence, bad faith or willful misconduct.
To secure the Company's payment obligations in
this Section 7.7, the Trustee shall have a lien prior to the
Securities on all money or property held or collected by the
Trustee, in its capacity as Trustee, except money or
property held in trust to pay Principal of, and interest on
particular Securities.
The obligations of the Company under this Section
to compensate and indemnify the Trustee and each predecessor
Trustee and to pay or reimburse the Trustee and each
predecessor Trustee for expenses, disbursements and advances
shall constitute additional indebtedness hereunder and shall
survive the satisfaction and discharge of this Indenture or
the rejection or termination of this Indenture under
bankruptcy law. Such additional indebtedness shall be a
senior claim to that of the Securities upon all property and
funds held or collected by the Trustee as such, except funds
held in trust for the benefit of the Holders of particular
Securities or coupons, and the Securities are hereby
subordinated to such senior claim. If the Trustee renders
services and incurs expenses following an Event of Default
under Section 6.1(e) or Section 6.1(f) hereof, the parties
hereto and the holders by their acceptance of the Securities
hereby agree that such expenses are intended to constitute
expenses of administration under any bankruptcy law.
52
SECTION 7.8 REPLACEMENT OF TRUSTEE. A
resignation or removal of the Trustee as Trustee with
respect to the Securities of any series and appointment of a
successor Trustee as Trustee with respect to the Securities
of any series shall become effective only upon the successor
Trustee's acceptance of appointment as provided in this
Section 7.8.
The Trustee may resign as Trustee with respect to
the Securities of any series at any time by so notifying the
Company in writing. The Holders of a majority in principal
amount of the outstanding Securities of any series may
remove the Trustee as Trustee with respect to the Securities
of such series by so notifying the Trustee and the Company
in writing and may appoint a successor Trustee with respect
thereto with the consent of the Company. The Company may
remove the Trustee as Trustee with respect to the Securities
of any series if: (i) the Trustee is no longer eligible
under Section 7.10 of this Indenture; (ii) the Trustee is
adjudged a bankrupt or insolvent; (iii) a receiver or other
public officer takes charge of the Trustee or its property;
or (iv) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed as Trustee
with respect to the Securities of any series, or if a
vacancy exists in the office of Trustee with respect to the
Securities of any series for any reason, the Company shall
promptly appoint a successor Trustee with respect thereto.
Within one year after the successor Trustee takes office,
the Holders of a majority in principal amount of the
outstanding Securities of such series may appoint a
successor Trustee in respect of such Securities to replace
the successor Trustee appointed by the Company. If the
successor Trustee with respect to the Securities of any
series does not deliver its written acceptance required by
the next succeeding paragraph of this Section 7.8 within 30
days after the retiring Trustee resigns or is removed, the
retiring Trustee, the Company or the Holders of a majority
in principal amount of the outstanding Securities of such
series may petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect thereto.
A successor Trustee with respect to the Securities
of any series shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company.
Immediately after the delivery of such written acceptance,
subject to the lien provided for in Section 7.7, (i) the
retiring Trustee shall transfer all property held by it as
Trustee in respect of the Securities of such series to the
successor Trustee, (ii) the resignation or removal of the
retiring Trustee in respect of the Securities of such series
53
shall become effective and (iii) the successor Trustee shall
have all the rights, powers and duties of the Trustee in
respect of the Securities of such series under this
Indenture. A successor Trustee shall mail notice of its
succession to each Holder of Securities of such series.
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
the preceding paragraph.
The Company shall give notice of any resignation
and any removal of the Trustee with respect to the
Securities of any series and each appointment of a successor
Trustee in respect of the Securities of such series to all
Holders of Securities of such series. Each notice shall
include the name of the successor Trustee and the address of
its Corporate Trust Office.
Notwithstanding replacement of the Trustee with
respect to the Securities of any series pursuant to this
Section 7.8, the Company's obligations under Section 7.7
shall continue for the benefit of the retiring Trustee.
SECTION 7.9 SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates with, merges or converts into,
or transfers all or substantially all of its corporate trust
business to, another corporation or national banking
association, the resulting, surviving or transferee
corporation or national banking association without any
further act shall be the successor Trustee with the same
effect as if the successor Trustee had been named as the
Trustee herein.
SECTION 7.10 ELIGIBILITY. This Indenture shall
always have a Trustee who satisfies the requirements of
Trust Indenture Act Section 310(a). The Trustee shall have
a combined capital and surplus of at least $10,000,000 as
set forth in its most recent published annual report of
condition, if any. The Trustee shall comply with Trust
Indenture Act Section 310(b). If at any time the Trustee
with respect to the Securities of any series shall cease
to be eligible in accordance with the provisions of this
Section, it shall resign immediately within the manner
and with the effect hereinafter specified in this Article.
SECTION 7.11 MONEY HELD IN TRUST. The Trustee
shall not be liable for interest on any money received by it
except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated
from other funds except to the extent required by law and
except for money held in trust under Article 8 of this
Indenture.
54
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.1 DEFEASANCE WITHIN ONE YEAR OF
PAYMENT. Except as otherwise provided in this Section 8.1,
the Company may terminate its obligations under the
Securities of any series and this Indenture with respect to
Securities of such series if:
(i) all Securities of such series previously
authenticated and delivered (other than destroyed, lost
or wrongfully taken Securities of such series that have
been replaced or Securities of such series that are
paid pursuant to Section 4.1 or Securities of such
series for whose payment money or securities have
theretofore been held in trust and thereafter repaid to
the Company, as provided in Section 8.5) have been
delivered to the Trustee for cancellation and the
Company has paid all sums payable by it hereunder; or
(ii) (A) the Securities of such series mature
within one year or all of them are to be called for
redemption within one year under arrangements
satisfactory to the Trustee for giving the notice of
redemption, (B) the Company irrevocably deposits in
trust with the Trustee, as trust funds solely for the
benefit of the Holders of such Securities for that
purpose, money or U.S. Government Obligations or a
combination thereof sufficient (unless such funds
consist solely of money, in the opinion of a nationally
recognized firm of independent public accountants
expressed in a written certification thereof delivered
to the Trustee), without consideration of any
reinvestment, to pay Principal of and interest on the
Securities of such series to maturity or redemption, as
the case may be, and to pay all other sums payable by
it hereunder, and (C) the Company delivers to the
Trustee an Officers' Certificate and an Opinion of
Counsel, in each case stating that all conditions
precedent provided for herein relating to the
satisfaction and discharge of this Indenture with
respect to the Securities of such series have been
complied with.
With respect to the foregoing clause (i), only the
Company's obligations under Sections 7.7 and 8.5 in respect
of the Securities of such series shall survive. With
respect to the foregoing clause (ii), only the Company's
obligations in Sections 2.2 through 2.12, 4.2, 7.7, 7.8 and
8.5 in respect of the Securities of such series shall
55
survive until such Securities of such series are no longer
outstanding. Thereafter, only the Company's obligations in
Sections 7.7 and 8.5 in respect of the Securities of such
series shall survive. After any such irrevocable deposit,
the Trustee shall acknowledge in writing the discharge of
the Company's obligations under the Securities of such
series and this Indenture with respect to the Securities of
such series except for those surviving obligations specified
above.
SECTION 8.2 DEFEASANCE. Except as provided
below, the Company will be deemed to have paid and will be
discharged from any and all obligations in respect of the
Securities of any series and the provisions of this
Indenture will no longer be in effect with respect to the
Securities of such series (and the Trustee, at the expense
of the Company, shall execute proper instruments
acknowledging the same); PROVIDED that the following
conditions shall have been satisfied:
(A) the Company has irrevocably deposited in
trust with the Trustee as trust funds solely for the
benefit of the Holders of the Securities of such
series, for payment of the Principal of and interest on
the Securities of such series, money or U.S. Government
Obligations or a combination thereof sufficient (unless
such funds consist solely of money, in the opinion of a
nationally recognized firm of independent public
accountants expressed in a written certification
thereof delivered to the Trustee) without consideration
of any reinvestment and after payment of all federal,
state and local taxes or other charges and assessments
in respect thereof payable by the Trustee, to pay and
discharge the Principal of and accrued interest on the
outstanding Securities of such series to maturity or
earlier redemption (irrevocably provided for under
arrangements satisfactory to the Trustee), as the case
may be;
(B) such deposit will not result in a breach or
violation of, or constitute a default under, this
Indenture or any other material agreement or instrument
to which the Company is a party or by which it is
bound;
(C) no Default with respect to the Securities of
such series shall have occurred and be continuing on
the date of such deposit;
(D) the Company shall have delivered to the
Trustee (1) either (x) a ruling directed to the Trustee
56
received from the Internal Revenue Service to the
effect that the Holders of the Securities of such
series will not recognize income, gain or loss for
federal income tax purposes as a result of the
Company's exercise of its option under this Section 8.2
and will be subject to federal income tax on the same
amount and in the same manner and at the same times as
would have been the case if such deposit and defeasance
had not occurred or (y) an Opinion of Counsel to the
same effect as the ruling described in clause (x) above
and based upon a change in law and (2) an Opinion of
Counsel to the effect that the Holders of the
Securities of such series have a valid security
interest in the trust funds subject to no prior liens
under the UCC; and
(E) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, in
each case stating that all conditions precedent
provided for herein relating to the defeasance
contemplated by this Section 8.2 of the Securities of
such series have been complied with.
The Company's obligations in Sections 2.2 through
2.12, 4.2, 7.7, 7.8 and 8.5 with respect to the Securities
of such series shall survive until such Securities are no
longer outstanding. Thereafter, only the Company's
obligations in Sections 7.7 and 8.5 shall survive.
SECTION 8.3 COVENANT DEFEASANCE. The Company
may omit to comply with any term, provision or condition set
forth in Sections 4.3 or 4.4 (or any other specific covenant
relating to such series provided for in a Board Resolution
or supplemental indenture pursuant to Section 2.3 which may
by its terms be defeased pursuant to this Section 8.3), and
such omission shall be deemed not to be an Event of Default
under clauses (c), (d) or (g) of Section 6.1, with respect
to the outstanding Securities of a series if:
(i) the Company has irrevocably deposited in
trust with the Trustee as trust funds solely for the
benefit of the Holders of the Securities of such
series, for payment of the Principal of and interest,
if any, on the Securities of such series, money or U.S.
Government Obligations or a combination thereof in an
amount sufficient (unless such funds consist solely of
money, in the opinion of a nationally recognized firm
of independent public accountants expressed in a
written certification thereof delivered to the Trustee)
without consideration of any reinvestment and after
payment of all federal, state and local taxes or other
57
charges and assessments in respect thereof payable by
the Trustee, to pay and discharge the Principal of and
interest on the outstanding Securities of such series
to maturity or earlier redemption (irrevocably provided
for under arrangements satisfactory to the Trustee), as
the case may be;
(ii) such deposit will not result in a breach or
violation of, or constitute a default under, this
Indenture or any other material agreement or instrument
to which the Company is a party or by which it is
bound;
(iii) no Default with respect to the Securities
of such series shall have occurred and be continuing on
the date of such deposit;
(iv) the Company has delivered to the Trustee an
Opinion of Counsel to the effect that (A) the Holders
of the Securities of such series have a valid security
interest in the trust funds subject to no prior liens
under the UCC and (B) such Holders will not recognize
income, gain or loss for federal income tax purposes as
a result of such deposit and covenant defeasance and
will be subject to federal income tax on the same
amount and in the same manner and at the same times as
would have been the case if such deposit and defeasance
had not occurred; and
(v) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, in
each case stating that all conditions precedent
provided for herein relating to the covenant defeasance
contemplated by this Section 8.3 of the Securities of
such series have been complied with.
SECTION 8.4 APPLICATION OF TRUST MONEY.
Subject to Section 8.5, the Trustee or Paying Agent shall
hold in trust money or U.S. Government Obligations deposited
with it pursuant to Section 8.1, 8.2 or 8.3, as the case may
be, in respect of the Securities of any series and shall
apply the deposited money and the proceeds from deposited
U.S. Government Obligations in accordance with the
Securities of such series and this Indenture to the payment
of Principal of and interest on the Securities of such
series; but such money need not be segregated from other
funds except to the extent required by law. The Company
shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S.
Government Obligations deposited pursuant to Section 8.1,
8.2 or 8.3, as the case may be, or the principal and
58
interest received in respect thereof, other than any such
tax, fee or other charge that by law is for the account of
the Holders.
SECTION 8.5 REPAYMENT TO COMPANY. Subject to
Sections 7.7, 8.1, 8.2 and 8.3, the Trustee and the Paying
Agent shall promptly pay to the Company upon request set
forth in an Officers' Certificate any money held by them at
any time and not required to make payments hereunder and
thereupon shall be relieved from all liability with respect
to such money. The Trustee and the Paying Agent shall pay
to the Company upon written request any money held by them
and required to make payments hereunder under this Indenture
that remains unclaimed for two years; PROVIDED that the
Trustee or such Paying Agent before being required to make
any payment may cause to be published at the expense of the
Company once in an Authorized Newspaper in The City of New
York or with respect to any Security the interest on which
is based on the offered quotations in the interbank
Eurodollar market for dollar deposits in an Authorized
Newspaper in London or mail to each Holder entitled to such
money at such Holder's address (as set forth in the Security
Register) notice that such money remains unclaimed and that
after a date specified therein (which shall be at least 30
days from the date of such publication or mailing) any
unclaimed balance of such money then remaining will be
repaid to the Company. After payment to the Company,
Holders entitled to such money must look to the Company for
payment as general creditors unless an applicable law
designates another Person, and all liability of the Trustee
and such Paying Agent with respect to such money shall
cease.
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.1 WITHOUT CONSENT OF HOLDERS. The
Company and the Trustee may amend or supplement this
Indenture or the Securities of any series without notice to
or the consent of any Holder:
(1) to cure any ambiguity, defect or
inconsistency in this Indenture; PROVIDED that such
amendments or supplements shall not materially and
adversely affect the interests of the Holders;
(2) to comply with Article 5;
59
(3) to comply with any requirements of the
Commission in connection with the qualification of this
Indenture under the Trust Indenture Act;
(4) to evidence and provide for the acceptance of
appointment hereunder with respect to the Securities of
any or all series by a successor Trustee;
(5) to establish the form or forms or terms of
Securities of any series or of the coupons appertaining
to such Securities as permitted by Section 2.3;
(6) to provide for uncertificated or Unregistered
Securities and to make all appropriate changes for such
purpose;
(7) to change or eliminate any provisions of the
Indenture with respect to all or any series of the
Securities not then outstanding (and, if such change is
applicable to fewer than all such series of the
Securities, specifying the series to which such change
is applicable), and to specify the rights and remedies
of the Trustee and the holders of such Securities in
connection therewith; and
(8) to make any change that does not materially
and adversely affect the rights of any Holder.
SECTION 9.2 WITH CONSENT OF HOLDERS. Subject
to Sections 6.4 and 6.7, without prior notice to any
Holders, the Company and the Trustee may amend this
Indenture and the Securities of any series with the written
consent of the Holders of a majority in principal amount of
the outstanding Securities of all series affected by such
supplemental indenture (all such series voting as one
class), and the Holders of a majority in principal amount of
the outstanding Securities of all series affected thereby
(all such series voting as one class) by written notice to
the Trustee may waive future compliance by the Company with
any provision of this Indenture or the Securities of such
series.
Notwithstanding the provisions of this Section
9.2, without the consent of each Holder affected thereby, an
amendment or waiver, including a waiver pursuant to Section
6.4, may not:
(i) extend the stated maturity of the Principal
of, or any sinking fund obligation or any installment
of interest on, such Holder's Security, or reduce the
Principal amount thereof or the rate of interest
60
thereon (including any amount in respect of original
issue discount), or any premium payable with respect
thereto, or adversely affect the rights of such Holder
under any mandatory redemption or repurchase provision
or any right of redemption or repurchase at the option
of such Holder, or reduce the amount of the Principal
of an Original Issue Discount Security that would be
due and payable upon an acceleration of the maturity
thereof pursuant to Section 6.2 or the amount thereof
provable in bankruptcy, or change any place of payment
where, or the currency in which, any Security or any
premium or the interest thereon is payable, or impair
the right to institute suit for the enforcement of any
such payment on or after the due date therefor;
(ii) reduce the percentage in principal amount of
outstanding Securities of the relevant series the
consent of whose Holders is required for any such
supplemental indenture, for any waiver of compliance
with certain provisions of this Indenture or certain
Defaults and their consequences provided for in this
Indenture;
(iii) waive a Default in the payment of Principal
of or interest on any Security of such Holder; or
(iv) modify any of the provisions of this Section
9.2, except to increase any such percentage or to
provide that certain other provisions of this Indenture
cannot be modified or waived without the consent of the
Holder of each outstanding Security affected thereby.
A supplemental indenture which changes or
eliminates any covenant or other provision of this Indenture
which has expressly been included solely for the benefit of
one or more particular series of Securities, or which
modifies the rights of Holders of Securities of such series
with respect to such covenant or provision, shall be deemed
not to affect the rights under this Indenture of the Holders
of Securities of any other series or of the coupons
appertaining to such Securities.
It shall not be necessary for the consent of any
Holder under this Section 9.2 to approve the particular form
of any proposed amendment, supplement or waiver, but it
shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under
this Section 9.2 becomes effective, the Company or, at the
Company's request, the Trustee shall give to the Holders
61
affected thereby a notice briefly describing the amendment,
supplement or waiver. The Company or, at the Company's
request, the Trustee will mail supplemental indentures to
Holders upon request. Any failure of the Company to mail
such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such
supplemental indenture or waiver.
SECTION 9.3 REVOCATION AND EFFECT OF CONSENT.
Until an amendment or waiver becomes effective, a consent to
it by a Holder is a continuing consent by the Holder and
every subsequent Holder of a Security or portion of a
Security that evidences the same debt as the Security of the
consenting Holder, even if notation of the consent is not
made on any Security. However, any such Holder or
subsequent Holder may revoke the consent as to its Security
or portion of its Security. Such revocation shall be
effective only if the Trustee receives the notice of
revocation before the date the amendment, supplement or
waiver becomes effective.
The Company may, but shall not be obligated to,
fix a record date (which may be not less than 10 nor more
than 60 days prior to the solicitation of consents) for the
purpose of determining the Holders of the Securities of any
series affected entitled to consent to any amendment,
supplement or waiver. If a record date is fixed, then,
notwithstanding the immediately preceding paragraph, those
Persons who were such Holders at such record date (or their
duly designated proxies) and only those Persons shall be
entitled to consent to such amendment, supplement or waiver
or to revoke any consent previously given, whether or not
such Persons continue to be such Holders after such record
date. No such consent shall be valid or effective for more
than 90 days after such record date.
After an amendment, supplement or waiver becomes
effective with respect to the Securities of any series
affected thereby, it shall bind every Holder of such
Securities theretofore or thereafter authenticated and
delivered hereunder unless it is of the type described in
any of clauses (i) through (iv) of Section 9.2. In case of
an amendment or waiver of the type described in clauses (i)
through (iv) of Section 9.2, the amendment or waiver shall
bind each such Holder who has consented to it and every
subsequent Holder of a Security that evidences the same
indebtedness as the Security of the consenting Holder.
SECTION 9.4 NOTATION ON OR EXCHANGE OF
SECURITIES. If an amendment, supplement or waiver changes
the terms of any Security, the Trustee may require the
62
Holder thereof to deliver it to the Trustee. The Trustee
may place an appropriate notation on the Security about the
changed terms and return it to the Holder and the Trustee
may place an appropriate notation on any Security of such
series thereafter authenticated. Alternatively, if the
Company or the Trustee so determines, the Company in
exchange for the Security shall issue and the Trustee shall
authenticate a new Security of the same series and tenor
that reflects the changed terms.
SECTION 9.5 TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel stating
that the execution of any amendment, supplement or waiver
authorized pursuant to this Article 9 is authorized or
permitted by this Indenture, stating that all requisite
consents have been obtained or that no consents are required
and stating that such supplemental indenture constitutes the
legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its
terms, subject to customary exceptions. Subject to the
preceding sentence, the Trustee shall sign such amendment,
supplement or waiver if the same does not adversely affect
the rights of the Trustee. The Trustee may, but shall not
be obligated to, execute any such amendment, supplement or
waiver that affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
SECTION 9.6 CONFORMITY WITH TRUST INDENTURE
ACT. Every supplemental indenture executed pursuant to this
Article 9 shall conform to the requirements of the Trust
Indenture Act as then in effect.
ARTICLE 10
MISCELLANEOUS
SECTION 10.1 TRUST INDENTURE ACT OF 1939. This
Indenture shall incorporate and be governed by the
provisions of the Trust Indenture Act that are required to
be part of and to govern indentures qualified under the
Trust Indenture Act. If any provision of this Indenture
limits, qualifies or conflicts with the duties imposed by
operation of Section 318(c) of the Trust Indenture Act, the
imposed duties shall control.
SECTION 10.2 NOTICES. Any notice or
communication shall be sufficiently given if written and (a)
if delivered in person when received or (b) if mailed by
first class mail 5 days after mailing, or (c) as between the
63
Company and the Trustee if sent by facsimile transmission,
when transmission is confirmed, in each case addressed as
follows:
IF TO THE COMPANY:
La Quinta Inns, Inc.
Weston Centre
112 E. Pecan Street
San Antonio, Texas 78299-2636
Telecopy: (210) 302-6100
Attention: General Counsel
IF TO THE TRUSTEE:
U.S. Trust Company of Texas, N.A.
2001 Ross Avenue, Suite 2700
Dallas, Texas 75201-2936
Telecopy: (214) 754-1303
Attention: Corporate Trust Administration
The Company or the Trustee by written notice to
the other may designate additional or different addresses
for subsequent notices or communications.
Any notice or communication shall be sufficiently
given to Holders of any Unregistered Securities, by
publication at least once in an Authorized Newspaper in The
City of New York, or with respect to any Security the
interest on which is based on the offered quotations in the
interbank Eurodollar market for dollar deposits at least
once in an Authorized Newspaper in London, and by mailing to
the Holders thereof who have filed their names and addresses
with the Trustee pursuant to Section 313(c)(2) of the Trust
Indenture Act at such addresses as were so furnished to the
Trustee (and in the case of any notice given by the Company,
the Trustee shall make such information available to the
Company for such purpose) and to Holders of Registered
Securities by mailing to such Holders at their addresses as
they shall appear on the Security Register. Notice mailed
shall be sufficiently given if so mailed within the time
prescribed. Copies of any such communication or notice to a
Holder shall also be mailed to the Trustee and each Agent at
the same time.
Failure to mail a notice or communication to a
Holder or any defect in it shall not affect its sufficiency
with respect to other Holders. Except as otherwise provided
in this Indenture, if a notice or communication is mailed in
64
the manner provided in this Section 10.2, it is duly given,
whether or not the addressee receives it.
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
upon such waiver.
In case it shall be impracticable to give notice
as herein contemplated, then such notification as shall be
made with the approval of the Trustee shall constitute a
sufficient notification for every purpose hereunder.
SECTION 10.3 CERTIFICATE AND OPINION AS TO
CONDITIONS PRECEDENT. Upon any request or application by
the Company to the Trustee to take any action under this
Indenture, the Company shall furnish to the Trustee:
(i) an Officers' Certificate stating that, in the
opinion of the signers, all conditions precedent, if
any, provided for in this Indenture relating to the
proposed action have been complied with; and
(ii) an Opinion of Counsel stating that, in the
opinion of such counsel, all such conditions precedent,
if any, have been complied with.
SECTION 10.4 STATEMENTS REQUIRED IN CERTIFICATE
OR OPINION. Each certificate or opinion with respect to
compliance with a condition or covenant provided for in this
Indenture shall include:
(i) a statement that each person signing such
certificate or opinion has read such covenant or
condition and the definitions herein relating thereto;
(ii) a brief statement as to the nature and scope
of the examination or investigation upon which the
statement or opinion contained in such certificate or
opinion is based;
(iii) a statement that, in the opinion of each
such person, he has made such examination or
investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant
or condition has been complied with; and
65
(iv) a statement as to whether or not, in the
opinion of each such person, such condition or covenant
has been complied with; PROVIDED, HOWEVER, that, with
respect to matters of fact, an Opinion of Counsel may
rely on an Officers' Certificate or certificates of
public officials.
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, statement or opinion of an
officer of the Company may be based, insofar as it relates
to legal matters, upon a certificate or opinion of or
representations by counsel, unless such officer knows that
the certificate or opinion or representations with respect
to the matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the
exercise of reasonable care should know that the same are
erroneous. Any certificate, statement or opinion of counsel
may be based, insofar as it relates to factual matters or
information that is in the possession of the Company, upon
the certificate, statement or opinion of or representations
by an officer or officers of the Company, unless such
counsel knows that the certificate, statement or opinion or
representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid
are erroneous, or in the exercise of reasonable care should
know that the same are erroneous.
Any certificate, statement or opinion of an
officer of the Company or of counsel may be based, insofar
as it relates to accounting matters, upon a certificate or
opinion of or representations by an accountant or firm of
accountants unless such officer or counsel, as the case may
be, knows that the certificate or opinion or representations
with respect to the accounting matters upon which his
certificate, statement or opinion may be based as aforesaid
are erroneous, or in the exercise of reasonable care should
know that the same are erroneous. Any certificate or
opinion of any independent firm of public accountants filed
with the Trustee shall contain a statement that such firm is
independent.
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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 10.5 EVIDENCE OF OWNERSHIP. The
Company, the Trustee and any agent of the Company or the
Trustee may deem and treat the Holder of any Unregistered
Security and the Holder of any coupon as the absolute owner
of such Unregistered Security or coupon (whether or not such
Unregistered Security or coupon shall be overdue) for the
purpose of receiving payment thereof or on account thereof
and for all other purposes, and neither the Company, the
Trustee, nor any agent of the Company or the Trustee shall
be affected by any notice to the contrary. The fact of the
holding by any Holder of an Unregistered Security, and the
identifying number of such Security and the date of his
holding the same, may be proved by the production of such
Security or by a certificate executed by any trust company,
bank, banker or recognized securities dealer wherever
situated satisfactory to the Trustee, if such certificate
shall be deemed by the Trustee to be satisfactory. Each
such certificate shall be dated and shall state that on the
date thereof a Security bearing a specified identifying
number was deposited with or exhibited to such trust
company, bank, banker or recognized securities dealer by the
person named in such certificate. Any such certificate may
be issued in respect of one or more Unregistered Securities
specified therein. The holding by the person named in any
such certificate of any Unregistered Securities specified
therein shall be presumed to continue for a period of one
year from the date of such certificate unless at the time of
any determination of such holding (1) another certificate
bearing a later date issued in respect of the same
Securities shall be produced or (2) the Security specified
in such certificate shall be produced by some other Person,
or (3) the Security specified in such certificate shall have
ceased to be outstanding. Subject to Article 7, the fact
and date of the execution of any such instrument and the
amount and numbers of Securities held by the Person so
executing such instrument may also be proven in accordance
with such reasonable rules and regulations as may be
prescribed by the Trustee or in any other manner which the
Trustee may deem sufficient.
The Company, the Trustee and any agent of the
Company or the Trustee may deem and treat the person in
whose name any Registered Security shall be registered upon
the Security Register for such series as the absolute owner
of such Registered Security (whether or not such Registered
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Security shall be overdue and notwithstanding any notation
of ownership or other writing thereon) for the purpose of
receiving payment of or on account of the Principal of and,
subject to the provisions of this Indenture, interest on
such Registered Security and for all other purposes; and
neither the Company nor the Trustee nor any agent of the
Company or the Trustee shall be affected by any notice to
the contrary.
SECTION 10.6 RULES BY TRUSTEE, PAYING AGENT OR
REGISTRAR. The Trustee may make reasonable rules for action
by or at a meeting of Holders. The Paying Agent or
Registrar may make reasonable rules for its functions.
SECTION 10.7 PAYMENT DATE OTHER THAN A BUSINESS
DAY. If any date for payment of Principal or interest on
any Security shall not be a Business Day at any place of
payment, then payment of Principal of or interest on such
Security, as the case may be, need not be made on such date,
but may be made on the next succeeding Business Day at any
place of payment with the same force and effect as if made
on such date and no interest shall accrue in respect of such
payment for the period from and after such date.
SECTION 10.8 GOVERNING LAW. THE LAWS OF THE
STATE OF NEW YORK SHALL GOVERN THIS INDENTURE AND THE
SECURITIES.
SECTION 10.9 NO ADVERSE INTERPRETATION OF OTHER
AGREEMENTS. This Indenture may not be used to interpret
another indenture or loan or debt agreement of the Company
or any Subsidiary of the Company. Any such indenture or
agreement may not be used to interpret this Indenture.
SECTION 10.10 SUCCESSORS. All agreements of the
Company in this Indenture and the Securities shall bind its
successors. All agreements of the Trustee in this Indenture
shall bind its successors.
SECTION 10.11 DUPLICATE ORIGINALS. The parties
may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together
represent the same agreement.
SECTION 10.12 SEPARABILITY. In case any
provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
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SECTION 10.13 TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents and headings of the Articles and
Sections of this Indenture have been inserted for
convenience of reference only, are not to be considered a
part hereof and shall in no way modify or restrict any of
the terms and provisions hereof.
SECTION 10.14 INCORPORATORS, SHAREHOLDERS,
OFFICERS AND DIRECTORS OF COMPANY EXEMPT FROM INDIVIDUAL
LIABILITY. No recourse under or upon any obligation,
covenant or agreement contained in this Indenture or any
indenture supplemental hereto, or in any Security or any
coupons appertaining thereto, or because of any indebtedness
evidenced thereby, shall be had against any incorporator, as
such or against any past, present or future shareholder,
officer, director or employee, as such, of the Company or of
any successor, either directly or through the Company or any
successor, under any rule of law, statute or constitutional
provision or by the enforcement of any assessment or by any
legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the
acceptance of the Securities and the coupons appertaining
thereto by the holders thereof and as part of the
consideration for the issue of the Securities and the
coupons appertaining thereto.
SECTION 10.15 JUDGMENT CURRENCY. The Company
agrees, to the fullest extent that it may effectively do so
under applicable law, that (a) if for the purpose of
obtaining judgment in any court it is necessary to convert
the sum due in respect of the Principal of or interest on
the Securities of any series (the "REQUIRED CURRENCY") into
a currency in which a judgment will be rendered (the
"JUDGMENT CURRENCY"), the rate of exchange used shall be the
rate at which in accordance with normal banking procedures
the Trustee could purchase in The City of New York the
Required Currency with the Judgment Currency on the day on
which final unappealable judgment is entered, unless such
day is not a Business Day, then, to the extent permitted by
applicable law, the rate of exchange used shall be the rate
at which in accordance with normal banking procedures the
Trustee could purchase in The City of New York the Required
Currency with the Judgment Currency on the Business Day
preceding the day on which final unappealable judgment is
entered and (b) its obligations under this Indenture to make
payments in the Required Currency (i) shall not be
discharged or satisfied by any tender, or any recovery
pursuant to any judgment (whether or not entered in
accordance with subsection (a)), in any currency other than
the Required Currency, except to the extent that such tender
or recovery shall result in the actual receipt, by the
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payee, of the full amount of the Required Currency expressed
to be payable in respect of such payments, (ii) shall be
enforceable as an alternative or additional cause of action
for the purpose of recovering in the Required Currency the
amount, if any, by which such actual receipt shall fall
short of the full amount of the Required Currency so
expressed to be payable and (iii) shall not be affected by
judgment being obtained for any other sum due under this
Indenture.
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed, all as of the date first
written above.
(SEAL) LA QUINTA INNS, INC.
Attest: as the Company
__________________________
Name: John F. Schmutz
Title: Secretary
By: ______________________________
Name:
Title:
(SEAL) U.S. TRUST COMPANY OF
TEXAS, N.A.
Attest: as Trustee
__________________________
Name:
Title:
By: ______________________________
Name:
Title:
71
STATE OF ________ )
)
COUNTY OF ________ )
BEFORE ME, the undersigned authority, on this ___
day of _______, 1995, personally appeared ________________,
__________________________________ of La Quinta Inns, Inc.,
a Texas corporation, known to me (or proved to me by
introduction upon the oath of a person known to me) to be
the person and officer whose name is subscribed to the
foregoing instrument, and acknowledged to me that he/she
executed the same as the act of such corporation for the
purposes and consideration herein expressed and in the
capacity therein stated.
GIVEN UNDER MY HAND AND SEAL THIS ___ DAY OF
__________, 1995.
(SEAL)
________________________________
NOTARY PUBLIC, STATE OF ________
Print Name:
Commission Expires:
STATE OF ________ )
)
COUNTY OF ________ )
BEFORE ME, the undersigned authority, on this ___
day of __________, 1995, personally appeared ______________,
_________________ of U.S. Trust Company of Texas, N.A., a
national banking association, known to me (or proved to me
by introduction upon the oath of a person known to me) to be
the person and officer whose name is subscribed to the
foregoing instrument, and acknowledged to me that he/she
executed the same as the act of such trust for the purposes
and consideration herein expressed and in the capacity
therein stated.
GIVEN UNDER MY HAND AND SEAL THIS ___ DAY OF
__________, 1995.
(SEAL)
________________________________
NOTARY PUBLIC, STATE OF ________
Print Name:
Commission Expires:
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