EXHIBIT 4(i)
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ENERGEN CORPORATION
TO
THE BANK OF NEW YORK
as Trustee
______
INDENTURE
Dated as of September 1, 1996
______
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ENERGEN CORPORATION
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of September 1, 1996
Trust Indenture Act Section Indenture Section
(S) 310(a)(1) .................... 909
(a)(2) .................... 909
(a)(3) .................... Not Applicable
(a)(4) .................... Not Applicable
(a)(5) .................... 909
(b) .................... 908
(c) .................... Not Applicable
(S) 311(a) .................... 913(c)
(b) .................... 913(b)
(b)(2) .................... 1003(a)(2)
.................... 1003(b)
(c) .................... Not Applicable
(S) 312(a) .................... 1001
.................... 1002(a)
(b) .................... 1002(b)
(c) .................... 1002(c)
(S) 313(a) .................... 1003(a)
(b) .................... 1003(b)
(c) .................... 1003(c)
(c)(2) .................... Not Applicable
(d) .................... 1003(d)
(S) 314(a)(4) .................... 606
(b) .................... Not Applicable
(c)(1) .................... 102
(c)(2) .................... 102
(c)(3) .................... Not Applicable
(d) .................... 1003
(e) .................... 102
(S) 315(a) .................... 901(a)
(b) .................... 902
.................... 1003(a)(6)
(c) .................... 901(b)
(d) .................... 901(c)
(d)(1) .................... 901(a)(1)
(d)(2) .................... 901(c)(2)
(d)(3) .................... 901(c)(3)
(e) .................... 814
(S) 316(a) last sentence................ 101
(a)(1)(A) .................... 812
(a)(1)(B) .................... 813
(a)(2) .................... Not Applicable
(b) .................... 808
(S) 317(a)(1) .................... 803
(a)(2) .................... 804
(b) .................... 603
(S) 318(a) .................... 607
TABLE OF CONTENTS
Page
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ARTICLE ONE
Definitions and Other Provisions of General Application
Section 101. Definitions........................................... 1
Section 102. Compliance Certificates and Opinion................... 8
Section 103. Form of Documents Delivered to Trustee................ 9
Section 104. Acts of Holders....................................... 10
Section 105. Notices, Etc. to Trustee and Company.................. 11
Section 106. Notice to Holders of Securities; Waiver............... 12
Section 107. Conflict with Trust Indenture Act..................... 12
Section 108. Effect of Headings and Table of Contents.............. 12
Section 109. Successors and Assigns................................ 13
Section 110. Separability Clause................................... 13
Section 111. Benefits of Indenture................................. 13
Section 112. Governing Law......................................... 13
Section 113. Legal Holidays........................................ 13
ARTICLE TWO
Security Forms
Section 201. Forms Generally....................................... 14
Section 202. Form of Trustee's Certificate of
Authentication........................................ 14
ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series.................. 15
Section 302. Denominations......................................... 18
Section 303. Execution, Authentication, Delivery and
Dating................................................ 18
Section 304. Temporary Securities.................................. 21
Section 305. Registration, Registration of Transfer and
Exchange.............................................. 22
Section 306. Mutilated, Destroyed, Lost and Stolen
Securities............................................ 23
Section 307. Payment of Interest; Interest Rights
Preserved............................................. 24
Section 308. Persons Deemed Owners................................. 25
Section 309. Cancellation.......................................... 25
Section 310. Computation of Interest............................... 26
Section 311. Payment to Be in the Proper Currency.................. 26
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ARTICLE FOUR
Redemption of Securities
Section 401. Applicability of Article............................... 26
Section 402. Election to Redeem; Notice to Trustee.................. 26
Section 403. Selection of Securities to Be Redeemed................. 27
Section 404. Notice of Redemption................................... 27
Section 405. Securities Payable on Redemption Date.................. 28
Section 406. Securities Redeemed in Part............................ 29
ARTICLE FIVE
Sinking Funds
Section 501. Applicability of Article............................... 29
Section 502. Satisfaction of Sinking Fund Payments with
Securities............................................. 30
Section 503. Redemption of Securities for Sinking Fund.............. 30
ARTICLE SIX
Covenants
Section 601. Payment of Principal, Premium and Interest............. 31
Section 602. Maintenance of Office or Agency........................ 31
Section 603. Money for Securities Payments to Be
Held in Trust.......................................... 32
Section 604. Corporate Existence.................................... 33
Section 605. Maintenance of Properties.............................. 33
Section 606. Statement as to Compliance; Notice of Certain
Defaults............................................... 34
Section 607. Waiver of Certain Covenants............................ 34
Section 608. Restriction on Liens................................... 35
Section 609. Restrictions on Sale and
Lease-Back Transactions................................ 38
ARTICLE SEVEN
Satisfaction and Discharge
Section 701. Satisfaction and Discharge of Indenture................ 39
Section 702. Legal and Covenant Defeasance.......................... 40
Section 703. Application of Trust Money............................. 44
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ARTICLE EIGHT
Events of Default; Remedies
Section 801. Events of Default..................................... 44
Section 802. Acceleration of Maturity; Rescission and
Annulment............................................. 46
Section 803. Collection of Indebtedness and Suits for
Enforcement by Trustee................................ 47
Section 804. Trustee May File Proofs of Claim...................... 48
Section 805. Trustee May Enforce Claims Without Possession
of Securities......................................... 49
Section 806. Application of Money Collected........................ 49
Section 807. Limitations on Suits.................................. 49
Section 808. Unconditional Right of Holders to Receive
Principal, Premium and Interest....................... 50
Section 809. Restoration of Rights and Remedies.................... 50
Section 810. Rights and Remedies Cumulative......................... 52
Section 811. Delay or Omission Not Waiver........................... 52
Section 812. Control by Holders of Securities....................... 52
Section 813. Waiver of Past Defaults................................ 53
Section 814. Undertaking for Costs.................................. 53
ARTICLE NINE
The Trustee
Section 901. Certain Duties and Responsibilities................... 54
Section 902. Notice of Defaults.................................... 55
Section 903. Certain Rights of Trustee............................. 55
Section 904. Not Responsible for Recitals or Issuance of
Securities............................................ 57
Section 905. May Hold Securities................................... 57
Section 906. Money Held in Trust................................... 57
Section 907. Compensation and Reimbursement........................ 57
Section 908. Disqualification; Conflicting Interests............... 58
Section 909. Corporate Trustee Required; Eligibility............... 65
Section 910. Resignation and Removal; Appointment of
Successor............................................. 65
Section 911. Acceptance of Appointment by Successor................ 67
Section 912. Merger, Conversion, Consolidation or
Succession to Business................................ 68
Section 913. Preferential Collection of Claims
Against Company........................................ 69
Section 914. Appointment of Authenticating Agent.................... 73
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ARTICLE TEN
Holders' Lists and Reports by Trustee and Company
Section 1001. Company to Furnish Trustee Names and
Addresses of Holders.................................. 75
Section 1002. Preservation of Information;
Communications to Holders............................. 75
Section 1003. Reports by Trustee.................................... 77
Section 1004. Reports by Company.................................... 78
ARTICLE ELEVEN
Consolidation, Merger, Conveyance, Transfer or Lease
Section 1102. Successor Corporation Substituted...................... 80
ARTICLE TWELVE
Supplemental Indentures
Section 1201. Supplemental Indentures Without Consent
of Holders............................................ 80
Section 1202. Supplemental Indentures with Consent of
Holders............................................... 82
Section 1203. Execution of Supplemental Indentures.................. 84
Section 1204. Effect of Supplemental Indentures..................... 84
Section 1205. Conformity With Trust Indenture Act................... 84
Section 1206. Reference in Securities to Supplemental
Indentures............................................ 84
Section 1207. Modification Without Supplemental
Indenture............................................. 85
ARTICLE THIRTEEN
Meetings of Holders; Action Without Meeting
Section 1301. Purposes for Which Meetings
May Be Called......................................... 85
Section 1302. Call, Notice and Place of Meetings.................... 85
Section 1303. Persons Entitled to Vote at Meetings.................. 86
Section 1304. Quorum; Action........................................ 86
Section 1305. Attendance at Meetings; Determination of
Voting Rights; Conduct and Adjournment
of Meetings........................................... 88
Section 1306. Counting Votes and Recording Action of
Meetings.............................................. 89
Section 1307. Action Without Meeting................................ 89
Section 1308. Fixing of Record Date................................. 89
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ARTICLE FOURTEEN
Immunity of Incorporators, Stockholders,
Officers and Directors
Section 1401. Liability Solely Corporate............................. 90
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Exhibit 4(i)
Execution Copy
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INDENTURE dated as of September 1, 1996, between ENERGEN
CORPORATION, a corporation duly organized and existing under the laws of the
State of Alabama (herein called the "Company"), having its principal office at
2101 Sixth Avenue North, Birmingham, Alabama 35203, and The Bank of New York, a
state banking corporation organized under the laws of the State of New York and
having its principal corporate trust office at Jacksonville, Florida, as
trustee (herein called the "Trustee").
RECITAL OF THE COMPANY
WHEREAS, the Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided;
and all other things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed for the
equal and proportionate benefit of all Holders of the Securities or of any
series thereof, as follows:
ARTICLE ONE
Definitions and Other Provisions of General Application
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Section 101. Definitions.
-----------
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(b) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles in the United States of America, and except as otherwise herein
expressly provided, the term "generally accepted accounting principles" with
respect to any
computation required or permitted hereunder shall mean such accounting
principles as are generally accepted in the United States of America at the date
of such computation; provided however, that in determining generally accepted
accounting principles applicable to the Company, the Company shall, to the
extent required, conform to any order, rule or regulation of any administrative
agency, regulatory authority or other governmental body having jurisdiction over
the Company; and
(d) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article Nine, are defined in that
Article.
"Act", when used with respect to any Holder of a Security, has the
meaning specified in Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person or Persons authorized by the
Trustee to act on behalf of the Trustee to authenticate one or more series of
Securities.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee thereof.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to a Place of Payment or any
other particular location specified in the Securities or this Indenture, means
any day, other than a Saturday or Sunday, which is not a day on which banking
institutions and trust companies in such Place of Payment or other location are
generally authorized or required by law, regulation or executive order to remain
closed, except as may be otherwise specified as contemplated by Section 301.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participation or other equivalents
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(however designated, whether voting or non-voting) of such Person's capital
stock, whether now outstanding or issued after the date of this Indenture,
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 Securities Exchange Act of 1934, or,
if at any time after the execution of this instrument such Commission is not
existing and performing such duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its President or
a Vice President, and by its Treasurer, an Assistant Treasurer, its Controller,
its Secretary or an Assistant Secretary, and delivered to the Trustee.
"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered, which office at the date of execution of this Indenture is located
at 10161 Centurion Parkway, Towermarc Plaza, 2nd Floor, Jacksonville, FL 32256,
Attention: Sandra Carreker.
"Corporation" means a corporation, association, company, joint stock
company, limited liability company or business trust.
"Defaulted Interest" has the meaning specified in Section 307.
"Dollar" or "$" means a dollar or other equivalent unit in such coin
or currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
"Eligible Obligations" means:
(a) with respect to Securities denominated in United States Dollars,
Government Obligations; or
(b) with respect to Securities denominated in a currency other than
United States Dollars or in a composite currency, such other obligations or
instruments as shall be specified with respect to such Securities, as
contemplated by Section 301.
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"Event of Default" has the meaning specified in Section 801.
"Funded Debt" means all indebtedness of a Person that by its terms or
by the terms of any instrument or agreement relating thereto matures more than
one year from, or is directly or indirectly renewable or extendable at the
option of such Person to a date more than one year from the date of creation
thereof (including an option of such Person under a revolving credit or similar
agreement obligating the lender or lenders to extend credit over a period of one
year or more), but excluding any payments due under the terms thereof within 12
months of any date of determination (including any deposit or payment required
to be made under any prepayment provision, sinking fund, purchase fund or
similar provision).
"Government Obligations" means:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America entitled to the benefit of the full faith and credit thereof; and
(b) certificates, depositary receipts or other instruments which
evidence a direct ownership interest in obligations described in clause (a)
above or in any specific interest or principal payments due in respect thereof;
provided, however, that the custodian of such obligations or specific interest
or principal payments shall be a bank or trust company subject to Federal or
state supervision or examination with a combined capital and surplus of at least
$50,000,000; and provided, further, that except as may be otherwise required by
law, such custodian shall be obligated to pay to the holders of such
certificates, depositary receipts or other instruments the full amount received
by such custodian in respect of such obligations or specific payments and shall
not be permitted to make any deduction therefrom.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed and as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities established as
contemplated by Section 301.
"Interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
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"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity,
declaration of acceleration, upon call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Controller, the Secretary or an Assistant Secretary, of the
Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 802.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(a) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(b) Securities deemed to have been paid in accordance with Section
701; and
(c) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated and
delivered pursuant to this Indenture, other than any such Securities in respect
of which there shall have been presented to the Trustee proof satisfactory to it
and the Company that such Securities are held by a bona fide purchaser in whose
hands such Securities are valid obligations of the Company; provided, however,
that in determining whether or not the Holders of the requisite principal amount
of the Securities Outstanding under this Indenture, or the Outstanding
Securities of any series or Tranche, have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or whether or not
a quorum is present at a meeting of Holders of Securities,
(x) Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor (unless
the Company, such Affiliate
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or such obligor owns all Securities Outstanding under this Indenture, or
all Outstanding Securities of each such series and each such Tranche, as
the case may be, determined without regard to this clause (x)) 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 or upon any
such determination as to the presence of a quorum, only Securities which
the Trustee knows to be so owned shall be so disregarded; provided,
however, that Securities so owned which have been pledged in good faith may
be regarded as Outstanding if the pledgee establishes to the satisfaction
of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor
upon the Securities or any Affiliate of the Company or of such other
obligor;
(y) the principal amount of an Original Issue Discount Security that
shall be deemed to be Outstanding for such purposes shall be the amount of
the principal thereof that would be due and payable as of the date of such
determination upon a declaration of acceleration of the Maturity thereof
pursuant to Section 802; and
(z) the principal amount of any Security which is denominated in a
currency other than U.S. Dollars or in a composite currency that shall be
deemed to be Outstanding for such purposes shall be the amount of U.S.
Dollars which could have been purchased by the principal amount (or, in the
case of an Original Issue Discount Security, the U.S. Dollar equivalent on
the date determined as set forth below of the amount determined as provided
in (y) above) of such currency or composite currency evidenced by such
Security, in each such case certified to the Trustee in an Officers'
Certificate based (i) on the average of the mean of the buying and selling
spot rates quoted by three banks which are members of the New York Clearing
House Association selected by the Company in effect at 11:00 A.M. (New York
time) in The City of New York on the fifteenth Business Day preceding any
such determination or (ii) if on such fifteenth Business Day it shall not
be possible or practicable to obtain such quotations from such three banks,
on such other quotations or alternative methods of determination which
shall be as consistent as practicable with the method set forth in (i)
above.
"Paying Agent" means any Person, including the Company, authorized by
the Company to pay the principal of and premium, if any, or interest, if any, on
any Securities on behalf of the Company.
"Periodic Offering" means an offering of Securities of a series from
time to time the specific terms of which
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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 any individual, corporation, limited liability company,
partnership, joint venture, trust or unincorporated organization or any
government or any political subdivision, instrumentality or agency thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places, specified as contemplated by Section 301, at
which, subject to Section 602, the principal of and premium, if any, and
interest, if any, on the Securities of such series are payable.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
"Required Currency" has the meaning specified in Section 311.
"Responsible Officer", when used with respect to the Trustee, means
any officer in the corporate trust department of the Trustee or any other
officer of the Trustee customarily performing functions similar to those
performed by any such officer and also means, with respect to a particular
corporate trust matter, any other officer of the Trustee to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any securities authenticated and delivered
under this Indenture.
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"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Significant Subsidiary" means each of Alabama Gas Corporation, an
Alabama corporation, and Taurus Exploration, Inc., an Alabama corporation, or
their respective successors by merger, consolidation, sale of assets or
otherwise.
"Special Record Date" for the payment of any Defaulted Interest on the
Securities of any series means a date fixed by the Trustee pursuant to Section
307.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Tranche" means a group of Securities which (a) are of the same series
and (b) have identical terms except as to principal amount and date of issuance.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
with respect to one or more series of Securities pursuant to the applicable
provisions of this Indenture, and thereafter "Trustee" shall mean or include
each Person who is then a Trustee hereunder, and if at any time there is more
than one such Person, "Trustee" as used with respect to the Securities of any
series shall mean the Trustee with respect to Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed, except as provided
in Section 1205.
"United States" means the United States of America, its territories,
its possessions and other areas subject to its jurisdiction.
Section 102. Compliance Certificates and Opinion.
-----------------------------------
Except as otherwise expressly provided in this Indenture, upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall, if requested by the Trustee,
furnish to the Trustee an Officers' Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any provision
of this Indenture relating to such particular
-8-
application or request, no certificate or opinion need be furnished except as
specifically contemplated by such provision of this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein relating
thereto;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has been
complied with; and
(d) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee.
--------------------------------------
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
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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 104. Acts of Holders.
---------------
(a) Any request, demand, authorization, direction, notice, consent,
election, waiver or other action provided by this Indenture to be made, given or
taken by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing or, alternatively, may be embodied in and evidenced by the
record of Holders voting in favor thereof, either in person or by proxies duly
appointed in writing, at any meeting of Holders duly called and held in
accordance with the provisions of Article Thirteen, or a combination of such
instruments and any such record. Except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments or record
or both are delivered to the Trustee and, where it is hereby expressly required,
to the Company. Such instrument or instruments and any such record (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Holders signing such instrument or instruments and so voting
at any such meeting. Proof of execution of any such instrument or of a writing
appointing any such agent, or of the holding by any Person of a Security, shall
be sufficient for any purpose of this Indenture and (subject to Section 901)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section. The record of any meeting of Holders shall be proved
in the manner provided in Section 1306.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof or may be
proved in any other manner which the Trustee and the Company deem sufficient.
Where such execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority.
(c) The principal amount (except as otherwise contemplated in clause
(y) of the proviso to the definition of "Outstanding") and serial numbers of
Securities held by any Person, and the date of holding the same, shall be proved
by the Security Register.
(d) Any request, demand, authorization, direction, notice, consent,
election, waiver or other Act of a Holder shall bind every future Holder of the
same Security and the
-10-
Holder of every Security issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof in respect of anything done, omitted or
suffered to be done by the Trustee or the Company in reliance thereon, whether
or not notation of such action is made upon such Security.
(e) Until such time as written instruments shall have been delivered
to the Trustee with respect to the requisite percentage of principal amount of
Securities for the action contemplated by such instruments, any such instrument
executed and delivered by or on behalf of a Holder may be revoked with respect
to any or all of such Securities by written notice by such Holder or any
subsequent Holder, proven in the manner in which such instrument was proven.
(f) Securities of any series, or any Tranche thereof, authenticated
and delivered after any Act of Holders may, and shall if required by the
Trustee, bear a notation in form approved by the Trustee as to any action taken
by such Act of Holders. If the Company shall so determine, new Securities of
any series, or any Tranche thereof, so modified as to conform, in the opinion of
the Trustee and the Company, to such action may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities of such series or Tranche.
(g) If the Company shall solicit from Holders any request, demand,
authorization, direction, notice, consent, waiver or other Act, the Company may,
at its option, by Board Resolution, fix in advance a record date for the
determination of Holders entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other Act, but the Company shall have no
obligation to do so. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of record at the close of
business on the record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of the Outstanding
Securities have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for that
purpose the Outstanding Securities shall be computed as of the record date.
Section 105. Notices, Etc. to Trustee and Company.
------------------------------------
Any request, demand, authorization, direction, notice, consent,
election, waiver or Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with,
(a) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given,
-11-
furnished or filed in writing to or with the Trustee at its Corporate Trust
Office, or
(b) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to the Company addressed to the
attention of its Treasurer, at 2101 Sixth Avenue North, Birmingham, Alabama
35203, or at any other address previously furnished in writing to the Trustee by
the Company.
Section 106. Notice to Holders of Securities; Waiver.
---------------------------------------
Except as otherwise expressly provided herein, where this Indenture
provides for notice to Holders of any event, such notice shall be sufficiently
given, and shall be deemed given, to Holders if in writing and mailed, first
class postage prepaid, to each Holder affected by such event, at the address of
such Holder as it appears in the Security Register, not later than the latest
date, and not earlier than the earliest date, prescribed for the giving of such
notice.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice to
Holders by mail, then such notification as shall be made with the approval of
the Trustee shall constitute a sufficient notification for every purpose
hereunder. In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders.
Any notice required by this Indenture may be waived in writing by the
Person entitled to receive such notice, either before or after the event
otherwise to be specified therein, 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.
Section 107. Conflict with Trust Indenture Act.
---------------------------------
If any provision of this Indenture limits, qualifies or conflicts with
another provision hereof which is required to be included in this Indenture by
any of the provisions of the Trust Indenture Act, such required provision shall
control.
Section 108. Effect of Headings and Table of Contents.
----------------------------------------
The Article and Section headings in this Indenture and the Table of
Contents are for convenience only and shall not affect the construction hereof.
-12-
Section 109. Successors and Assigns.
----------------------
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
Section 110. Separability Clause.
-------------------
In case any provision in this Indenture or the Securities shall be
invalid, illegal or unenforceable, the validly, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 111. Benefits of Indenture.
---------------------
Nothing in this Indenture or the Securities, express or implied, shall
give to any Person, other than the parties hereto, their successors hereunder
and the Holders, any benefit or any legal or equitable right, remedy or claim
under this Indenture.
Section 112. Governing Law.
-------------
This Indenture and the Securities shall be governed by and construed
in accordance with the laws of the State of New York.
Section 113. Legal Holidays.
--------------
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the Securities
other than a provision in Securities of any series, or any Tranche thereof, or
in the Board Resolution or Officers' Certificate which establishes the terms of
such Securities or Tranche, which specifically states that such provision shall
apply in lieu of this Section) payment of interest or principal and premium, if
any, need not be made at such Place of Payment on such date, but may be made on
the next succeeding Business Day at such Place of Payment with the same force
and effect as if made on the Interest Payment Date or Redemption Date, or at the
Stated Maturity, and, if such payment is made or duly provided for on such
Business Day, that no interest shall accrue on the amount so payable for the
period from and after such Interest Payment Date, Redemption Date or Stated
Maturity, as the case may be, to such Business Day.
-13-
ARTICLE TWO
Security Forms
--------------
Section 201. Forms Generally.
---------------
The definitive Securities of each series shall be in substantially the
forms thereof established in Board Resolutions or Officers' Certificates
pursuant to Board Resolutions, or in indentures supplemental hereto, in each
case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution of the
Securities. If the forms of Securities of any series are established in a Board
Resolution or in an Officers' Certificate pursuant to a Board Resolution, such
Board Resolution and Officers' Certificate, if any, shall be delivered to the
Trustee at or prior to the delivery of the Company Order contemplated by Section
303 for the authentication and delivery of such Securities.
The Securities of each series shall be issuable in registered form
without coupons. The definitive Securities shall be produced in such manner as
shall be determined by the officers executing such Securities, as evidenced by
their execution thereof.
Section 202. Form of Trustee's Certificate of
Authentication.
---------------------------------
The Trustee's certificate of authentication shall be in substantially
the form set forth below:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
_________________________________
as Trustee
By:______________________________
Authorized Signatory
-14-
ARTICLE THREE
The Securities
--------------
Section 301. 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. Subject to the
last paragraph of this Section, there shall be established in a Board Resolution
or in an Officers' Certificate pursuant to a Board Resolution, or established in
one or more indentures supplemental hereto, prior to the issuance of Securities
of any series,
(a) the title of the Securities of such series (which shall
distinguish the Securities of such series from Securities of all other
series);
(b) any limit upon the aggregate principal amount of the Securities of
such series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 304, 305, 306, 406 or 1206 and, except for any
Securities which, pursuant to Section 303, are deemed never to have been
authenticated and delivered hereunder);
(c) the Person or Persons (without specific identification) to whom
interest on Securities of such series, or any Tranche thereof, shall be
payable on any Interest Payment Date, if other than the Person in whose
name that Security (or one or more Predecessor Securities) is registered at
the close of business on the Regular Record Date for such interest;
(d) the date or dates on which the principal of the Securities of such
series is payable;
(e) the rate or rates at which the Securities of such series, or any
Tranche thereof shall bear interest, if any (including the rate or rates at
which overdue principal, premium or interest shall bear interest, if any),
or any method or methods by which such rate or rates shall be determined,
the date or dates from which such interest shall accrue, the Interest
Payment Dates on which such interest shall be payable and the Regular
Record Date for the interest payable on Securities on any Interest Payment
Date; and the basis of computation of interest, if other than as provided
in Section 310;
-15-
(f) the place or places where (1) the principal of and premium, if
any, and interest, if any, on Securities of such series, or any Tranche
thereof, shall be payable, (2) any Securities of such series, or any
Tranche thereof, may be surrendered for registration of transfer, (3)
Securities of such series, or any Tranche thereof, may be surrendered for
exchange and (4) notices and demands to or upon the Company in respect of
the Securities of such series, or any Tranche thereof, and this Indenture
may be served;
(g) the period or periods within which, the price or prices at which
and the terms and conditions upon which the Securities of such series, or
any Tranche thereof, may be redeemed, in whole or in part, at the option of
the Company;
(h) the obligation, if any, of the Company to redeem or purchase the
Securities of such series, or any Tranche thereof, pursuant to any sinking
fund or analogous provisions or at the option of a Holder thereof and the
period or periods within which, the price or prices at which and the terms
and conditions upon which such Securities shall be redeemed or purchased,
in whole or in part, pursuant to such obligation;
(i) the denominations in which Securities, if any, of such series, or
any Tranche thereof, shall be issuable if other than denominations of
$1,000 and any integral multiple thereof;
(j) whether Securities of the series may be issued in whole or in part
in global form and, if so, the identity of the depositary for such
Securities, in global form, and the terms and conditions, if any, on which
interests in such Securities, in global form, may be exchanged, in whole or
in part, for the individual securities represented thereby;
(k) if the principal of or premium, if any, or interest, if any, on
the Securities of such series, or any Tranche thereof, are to be payable,
at the election of the Company or a Holder thereof, in a coin or currency
other than that in which the Securities are stated to be payable, the
period or periods within which, and the terms and conditions upon which,
such election may be made;
(l) the currency or currencies, including composite currencies, in
which payment of the principal of and premium, if any, and interest, if
any, on the Securities of such series, or any Tranche thereof, shall be
payable (if other than the currency of the United States);
(m) if the principal of or premium, if any, or interest on the
Securities of such series, or any Tranche thereof, are to be payable, or
are to be payable at the election of the Company or a Holder thereof, in
securities
-16-
or other property, the type and amount of such securities or other
property, or the method by which such amount shall be determined, and the
period or periods within which, and the terms and conditions upon which,
any such election may be made;
(n) if the amount of payments of principal of or premium, if any, or
interest, if any, on the Securities of such series, or any Tranche thereof,
may be determined with reference to an index, the manner in which such
amounts shall be determined;
(o) if other than the principal amount thereof, the portion of the
principal amount of Securities of such series, or any Tranche thereof,
which shall be payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 802;
(p) any Events of Default, in addition to those specified in Section
801, with respect to the Securities of such series, and any covenants of
the Company for the benefit of the Holders of the Securities of such
series, or any Tranche thereof, in addition to those set forth in Article
Six;
(q) the terms, if any, pursuant to which the Securities of such
series, or any Tranche thereof, may be converted into or exchanged for
shares of capital stock or other securities of the Company;
(r) the obligations or instruments, if any, which shall be considered
to be Eligible Obligations in respect of the Securities of such series, or
any Tranche thereof, denominated in any currency other than United States
Dollars or in a composite currency, and any additional or alternative
provisions for the reinstatement of the Company's indebtedness in respect
of such Securities after the satisfaction and discharge thereof as provided
in Section 701;
(s) if a service charge will be made for the registration of transfer
or exchange of Securities of such series, or any Tranche thereof, the
amount or terms thereof;
(t) any exceptions to Section 113, or variation in the definition of
Business Day, with respect to the Securities of such series, or any Tranche
thereof; and
(u) any other terms of the Securities of such series, or any Tranche
thereof, not inconsistent with the provisions of this Indenture.
If any of the terms of the series are established in a Board Resolution or in an
Officers' Certificate pursuant to a Board
-17-
Resolution, such Board Resolution and Officers' Certificate, if any, shall be
delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 303 for the authentication and delivery of such
Securities. With respect to Securities of a series subject to a Periodic
Offering, such Board Resolution or Officer's Certificate may provide general
terms or parameters for Securities of such series and provide either that the
specific terms of particular Securities of such series shall be specified in a
Company Order or that such terms shall be determined by the Company or its
agents in accordance with a Company Order as contemplated by the proviso of the
third paragraph of Section 303.
Section 302. Denominations.
-------------
Unless otherwise provided as contemplated by Section 301 with respect
to any series of Securities, the Securities of each series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
Section 303. Execution, Authentication, Delivery and
Dating.
---------------------------------------
The Securities shall be executed on behalf of the Company by its
Treasurer, Controller, or any Assistant Treasurer and any one of the following
officers of the Company: Chairman of the Board, President, Executive Vice
President, Senior Vice President, any Vice President, Secretary, Treasurer,
Controller, Assistant Secretary and Assistant Treasurer. The signature of any
or all of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication and delivery, together with a Company
Order for the authentication and delivery of such Securities, and the Trustee in
accordance with such Company Order shall authenticate and deliver such
Securities; provided, however, that, with respect to Securities of a series
subject to a Periodic Offering, (a) such Company Order may be delivered by the
Company to the Trustee prior to the delivery to the Trustee of such Securities
for authentication and delivery, (b) the Trustee shall authenticate and deliver
Securities of such series for original issue from time to time, in an aggregate
principal amount not exceeding the aggregate principal amount established for
such series, all pursuant to a Company Order or pursuant to such
-18-
procedures acceptable to the Trustee as may be specified from time to time by a
Company Order, (c) the maturity date or dates, original issue date or dates,
interest rate or rates and any other terms of Securities of such series shall be
determined by Company Order or pursuant to such procedures and (d) if provided
for in such procedures, such Company Order may authorize authentication and
delivery pursuant to oral or electronic instructions from the Company or its
duly authorized agent or agents, which oral instructions shall be promptly
confirmed in writing.
In authenticating Securities of any series, and accepting
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Section 901) shall be
fully protected in relying upon, an Opinion of Counsel stating
(a) that the forms of such Securities have been duly authorized by the
Company and have been established in conformity with the provisions of this
Indenture;
(b) that the terms of such Securities have been duly authorized by the
Company and have been established in conformity with the provisions of this
Indenture; and
(c) that such Securities, when authenticated and delivered by the
Trustee and issued and delivered by the Company in the manner and subject
to any conditions specified in such Opinion of Counsel, will have been duly
issued under this Indenture and will constitute valid and legally binding
obligations of the Company, entitled to the benefits provided by this
Indenture, and enforceable against the Company in accordance with their
terms, subject, as to enforcement, to applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other laws affecting
creditors' rights generally, and to general principles of equity and
doctrines applicable thereto (including, but not limited to, all matters of
public policy);
provided, however, that, with respect to Securities of a series subject to a
Periodic Offering, the Trustee shall be entitled to receive such Opinion of
Counsel only once at or prior to the time of the first authentication of
Securities of such series and that the opinions described in clauses (b) and (c)
above may, alternatively, state, respectively,
(x) that, when the terms of such Securities shall have been
established pursuant to a Company Order or pursuant to such procedures as
may be specified from time to time by a Company Order, all as contemplated
by and in accordance with a Board Resolution or an Officers' Certificate
pursuant to a Board Resolution, as the case may be, such terms will have
been duly authorized by the Company and will have been
-19-
established in conformity with the provisions of this Indenture; and
(y) that such Securities, when (1) executed by the Company, (2)
authenticated and delivered by the Trustee in accordance with this
Indenture, (3) issued and delivered by the Company and (4) paid for, all as
contemplated by and in accordance with the aforesaid Company Order or
specified procedure, as the case may be, will have been duly issued under
this Indenture and will constitute valid and legally binding obligations of
the Company, entitled to the benefits provided by the Indenture, and
enforceable against the Company in accordance with their terms, subject, as
to enforcement, to applicable bankruptcy, insolvency, reorganization,
moratorium or other laws affecting creditors' rights generally, and to
general principles of equity and doctrines applicable thereto (including
but not limited to, all matters of public policy).
With respect to Securities of a series subject to a Periodic Offering,
the Trustee may conclusively rely, as to the authorization by the Company of any
of such Securities, the form and terms thereof and the legality, validity,
binding effect and enforceability thereof, upon the Opinion of Counsel and other
documents delivered pursuant to Sections 201 and 301 and this Section, as
applicable, at or prior to the time of the first authentication of Securities of
such series unless and until such opinion or other documents have been
superseded or revoked. In connection with the authentication and delivery of
securities of a series subject to a Periodic Offering, the Trustee shall be
entitled to assume that the Company's instructions to authenticate and deliver
such Securities do not violate any rules, regulations or orders of any
governmental agency or commission having jurisdiction over the Company.
If the form or terms of the Securities of any series have been
established by or pursuant to a Board Resolution as permitted by Sections 201 or
301, the Trustee shall not be required to authenticate such Securities if the
issuance of such Securities pursuant to this Indenture will affect the Trustee's
own rights, duties or immunities under the Securities and this Indenture or
otherwise in a manner which is not reasonably acceptable to the Trustee.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee or its agent by manual signature, and such certificate
upon any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and
-20-
delivered hereunder and is entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if any Security shall have been authenticated and
delivered hereunder to the Company, or any Person acting on its behalf, but
shall never have been issued and sold by the Company, and the Company shall
deliver such Security to the Trustee for cancellation as provided in Section 309
together with a written statement (which need not comply with Section 102 and
need not be accompanied by an Opinion of Counsel) stating that such Security has
never been issued and sold by the Company, for all purposes of this Indenture
such Security shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits hereof.
Section 304. Temporary Securities.
--------------------
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued, with such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Securities may determine, as evidenced
by their execution of such Securities; provided, however, that temporary
Securities need not recite specific redemption, sinking fund, conversion or
exchange provisions.
If temporary Securities of any series are issued, the Company shall
cause definitive Securities of such series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company maintained pursuant to Section 602
in a Place of Payment for such series, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities of any
series, the Company shall execute and the Trustee shall authenticate and deliver
in exchange therefor definitive Securities of the same series, of authorized
denominations and of like tenor and aggregate principal amount.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of the same series and of like
tenor authenticated and delivered hereunder.
-21-
Section 305. Registration, Registration of Transfer
and Exchange.
----------------------------------------
The Company shall cause to be kept at the office of the Security
Registrar designated pursuant to Section 602 a register (referred to as the
"Security Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Securities and the
registration of transfer thereof.
Upon surrender for registration of transfer of any Security of any
series at the office or agency of the Company maintained pursuant to Section 602
in a Place of Payment for such series, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the designated transferee
or transferees, one or more new Securities of the same series, of authorized
denominations and of like tenor and aggregate principal amount.
At the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series, of authorized denominations and of like
tenor and aggregate principal amount, upon surrender of the Securities to be
exchanged at any such office or agency. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Trustee or any
transfer agent) be duly endorsed or shall be accompanied by a written instrument
of transfer in form satisfactory to the Company and the Security Registrar or
any transfer agent duly executed by the Holder thereof or his attorney duly
authorized in writing.
Unless otherwise provided in a Board Resolution or an Officers'
Certificate pursuant to a Board Resolution, or in an indenture supplemental
hereto, with respect to Securities of any series, or any Tranche thereof, no
service charge shall be made for any registration of transfer or exchange of
Securities, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than exchanges
pursuant to Section 304, 406 or 1206 not involving any transfer.
-22-
The Company shall not be required (a) to issue, to register the
transfer of or to exchange Securities of any series during a period of 15 days
immediately preceding the date notice is given identifying the serial numbers of
the Securities of such series called for redemption or (b) to issue, to register
the transfer of or to exchange any Security so selected for redemption in whole
or in part, except the unredeemed portion of any Security being redeemed in
part.
Section 306. Mutilated, Destroyed, Lost and Stolen
Securities.
--------------------------------------
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series, and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (a)
evidence to their satisfaction of the ownership of and the destruction, loss or
theft of any Security and (b) such security or indemnity as may be reasonably
required by them to save each of them and any agent of either of them harmless,
then, in the absence of notice to the Company or the Trustee that such Security
has been acquired by a bona fide purchaser, the Company shall execute and the
Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or
stolen Security, a new Security of the same series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
Notwithstanding the foregoing, in case any such mutilated, destroyed,
lost or stolen Security has become or is about to become due and payable, the
Company in its discretion may, instead of issuing a new Security, pay such
Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
reasonable expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and any such
new Security shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of such series duly issued
hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
-23-
Section 307. Payment of Interest; Interest Rights
Preserved.
-------------------------------------
Unless otherwise provided as contemplated by Section 301 with respect
to the Securities of any series, or any Tranche thereof, interest on any
Security which is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest.
Any interest on any Security of any series which is payable, but is
not punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the related Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Security of such series and the date of the proposed payment (which
shall be not less than 25 days after the receipt by the Trustee of such
notice), and at the same time the Company shall deposit with the Trustee an
amount money equal to the aggregate amount proposed to be paid in respect
of such Defaulted Interest or shall make arrangements satisfactory to the
Trustee for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this clause provided. Thereupon
the Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 days and not less than
10 days prior to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed payment.
The Trustee shall promptly notify the Company of such Special Record Date
and, in the name and at the expense of the Company, shall promptly cause
notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first-class postage prepaid, to each
Holder of Securities of such series at the address of such Holder as it
appears in the Security Register, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor
-24-
Securities) are registered at the close of business on such Special Record
Date and shall no longer be payable pursuant to the following clause (b).
(b) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant
to this clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section and Section 305,
each Security delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
Section 308. Persons Deemed Owners.
---------------------
The Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Security is registered as the absolute
owner of such Security for the purpose of receiving payment of principal of and
premium, if any, and (subject to Sections 305 and 307) interest, if any, on such
Security and for all other purposes whatsoever, whether or not such Security be
overdue, and neither the Company, the Trustee nor any agent of the Company or
the Trustee shall be affected by notice to the contrary.
Section 309. Cancellation.
------------
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and, if not theretofore cancelled, shall be promptly cancelled by the Trustee.
The Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever or which the Company shall not have
issued and sold, and all Securities so delivered shall be promptly cancelled by
the Trustee. No Securities shall be authenticated in lieu of or in exchange for
any Securities cancelled as provided in this Section, except as expressly
permitted by this Indenture. Unless the Company shall direct by a Company
Order that cancelled Securities be returned to it, all cancelled Securities held
by the Trustee shall be destroyed by the Trustee and the Trustee shall deliver a
certificate of destruction to the Company upon the Company's request.
-25-
Section 310. Computation of Interest.
-----------------------
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360 day year consisting of twelve 30-day months.
Section 311. Payment to Be in the Proper Currency.
------------------------------------
In the case of any Securities denominated in any currency other than
United States Dollars or in a composite currency (the "Required Currency"),
except as otherwise provided therein, the obligation of the Company to make any
payment of the principal thereof, or the premium or interest thereon, shall not
be discharged or satisfied by any tender by the Company, or recovery by the
Trustee, in any currency other than the Required Currency, except to the extent
that such tender or recovery shall result in the Trustee timely holding the full
amount of the Required Currency then due and payable. If any such tender or
recovery is in a currency other than the Required Currency, the Trustee may take
such actions as it considers appropriate to exchange such currency for the
Required Currency. The costs and risks of any such exchange, including without
limitation the risks of delay and exchange rate fluctuation, shall be borne by
the Company, the Company shall remain fully liable for any shortfall or
delinquency in the full amount of Required Currency then due and payable, and in
no circumstances shall the Trustee be liable therefor except in the case of its
negligence or willful misconduct. The Company hereby waives any defense of
payment based upon any such tender or recovery which is not in the Required
Currency or which, when exchanged for the Required Currency by the Trustee, is
less than the full amount of Required Currency then due and payable.
ARTICLE FOUR
Redemption of Securities
------------------------
Section 401. Applicability of Article.
------------------------
Securities of any series, or any Tranche thereof, which are redeemable
before their Stated Maturity shall be redeemable in accordance with their terms
and (except as otherwise specified as contemplated by Section 301 for Securities
of such series or Tranche) in accordance with this Article.
Section 402. Election to Redeem; Notice to Trustee.
-------------------------------------
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution or an Officers' Certificate. The Company shall,
at least 45 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee) notify the Trustee in
-26-
writing of such Redemption Date and of the principal amount of such Securities
to be redeemed. In the case of any redemption of Securities (a) prior to the
expiration of any restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture or (b) pursuant to an election of the
Company which is subject to a condition specified in the terms of such
Securities, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction or condition.
Section 403. Selection of Securities to Be Redeemed.
--------------------------------------
If less than all the Securities of any series, or Tranche thereof, are
to be redeemed, the particular Securities to be redeemed shall be selected by
the Security Registrar from the Outstanding Securities of such series or Tranche
not previously called for redemption, by such method as the Trustee shall deem
fair and appropriate and which may provide for the selection for redemption of
portions (equal to the minimum authorized denomination for Securities of such
series or Tranche or any integral multiple thereof) of the principal amount of
Securities of such series or Tranche of a denomination larger than the minimum
authorized denomination for Securities of such series or Tranche; provided,
however, that if, as indicated in an Officers' Certificate, the Company shall
have offered to purchase all Securities then Outstanding of any series, or any
Tranche thereof, and less than all of such Securities shall have been tendered
to the Company for such purchase, the Trustee, if so directed by Company Order,
shall select for redemption all such Securities which have not been so tendered.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
to be redeemed in part, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
Section 404. Notice of Redemption.
--------------------
Unless otherwise specified as contemplated by Section 301 with respect
to any series of Securities, notice of redemption shall be given in the manner
provided in Section 106 to the Holders to be redeemed not less than 30 nor more
than 60 days prior to the Redemption Date.
All notices of redemption shall state:
(a) the Redemption Date,
-27-
(b) the Redemption Price,
(c) if less than all the Securities of any series or Tranche are
to be redeemed, the identification of the particular Securities to be
redeemed and the portion of the principal amount of any Security to be
redeemed in part,
(d) that on the Redemption Date the Redemption Price will become
due and payable upon each such Security to be redeemed and, if applicable,
that interest thereon will cease to accrue on and after said date,
(e) the place or places where such Securities are to be
surrendered for payment of the Redemption Price, and
(f) that the redemption is for a sinking fund, if such is the
case.
With respect to any notice of redemption of Securities at the election
of the Company, unless, upon the giving of such notice, such Securities shall be
deemed to have been paid in accordance with Section 701, such notice may state
that such redemption shall be conditional upon the receipt by the Trustee, on or
prior to the date fixed for such redemption, of money sufficient to pay the
principal of and premium, if any, and interest, if any, on such Securities and
that if such money shall not have been so received such notice shall be of no
force or effect and the Company shall not be required to redeem such Securities.
In the event that such notice of redemption contains such a condition and such
money is not so received, the redemption shall not be made and within a
reasonable time thereafter notice shall be given, in the manner in which the
notice of redemption was given, that such money was not so received and such
redemption was not required to be made.
Notice of redemption of Securities to be redeemed at the election of
the Company, and any notice of non-satisfaction of a condition for redemption as
aforesaid, shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
Section 405. Securities Payable on Redemption Date.
-------------------------------------
Notice of redemption having been given as aforesaid, and the
conditions, if any, set forth in such notice having been satisfied, the
Securities or portions thereof so to be redeemed shall, on the Redemption Date,
become due and payable at the Redemption Price therein specified, and from and
after such date (unless, in the case of an unconditional notice of redemption,
the Company shall default in the payment of the Redemption Price and accrued
interest, if any) such Securities or portions thereof, if interest-bearing,
shall cease to bear interest. Upon surrender of any such Security for
redemption in accordance with such notice, such Security or portion thereof
shall be paid by
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the Company at the Redemption Price, together with accrued interest, if any, to
the Redemption Date; provided, however, that any installment of interest on any
Security the Stated Maturity of which installment is on or prior to the
Redemption Date shall be payable to the Holder of such Security, or one or more
Predecessor Securities, registered as such at the close of business on the
related Regular Record Date according to the terms of such Security or
Predecessor Security and subject to the provisions of Section 307.
Section 406. Securities Redeemed in Part.
---------------------------
Any Security which is to be redeemed only in part shall be surrendered
at a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security, without service
charge, a new Security or Securities of the same series, of any authorized
denomination requested by such Holder and of like tenor and in aggregate
principal amount equal to and in exchange for the unredeemed portion of the
principal of the Security so surrendered.
ARTICLE FIVE
Sinking Funds
-------------
Section 501. Applicability of Article.
------------------------
The provisions of this Article shall be applicable to any sinking fund
for the retirement of the Securities of any series, or any Tranche thereof,
except as otherwise specified as contemplated by Section 301 for Securities of
such series or Tranche.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series, or any Tranche thereof, is herein referred to
as a "mandatory sinking fund payment", and any payment in excess of such minimum
amount provided for by the terms of Securities of any series, or any Tranche
thereof, is herein referred to as an "optional sinking fund payment". If
provided for by the terms of Securities of any series, or any Tranche thereof,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 502. Each sinking fund payment shall be applied to the
redemption of Securities of the series or Tranche in respect of which it was
made as provided for by the terms of such Securities.
-29-
Section 502. Satisfaction of Sinking Fund Payments with Securities.
-----------------------------------------------------
The Company (a) may deliver Outstanding Securities (other than any
previously called for redemption) of a series or Tranche in respect of which a
mandatory sinking fund payment is to be made and (b) may apply as a credit
Securities of such series or Tranche which have been redeemed either at the
election of the Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the terms of
such Securities, in each case in satisfaction of all or any part of such
mandatory sinking fund payment; provided, however, that no Securities shall be
applied in satisfaction of a mandatory sinking fund payment if such Securities
shall have been previously so applied. Securities so applied shall be received
and credited for such purpose by the Trustee at the Redemption Price specified
in such Securities for redemption through operation of the sinking fund and the
amount of such mandatory sinking fund payment shall be reduced accordingly.
Section 503. Redemption of Securities for Sinking Fund.
-----------------------------------------
Not less than 45 days prior to each sinking fund payment date for the
Securities of any series or any Tranche thereof, the Company shall deliver to
the Trustee an Officers' Certificate specifying:
(a) the amount of the next succeeding mandatory sinking fund payment
for such series or Tranche;
(b) the amount, if any, of the optional sinking fund payment to be
made together with such mandatory sinking fund payment;
(c) the aggregate sinking fund payment;
(d) the portion, if any, of such aggregate sinking fund payment which
is to be satisfied by the payment of cash;
(e) the portion, if any, of such aggregate sinking fund payment which
is to be satisfied by delivering and crediting Securities of such series or
Tranche pursuant to Section 502 and stating the basis for such credit and
that such Securities have not previously been so credited.
and the Company shall also deliver to the Trustee any Securities to be so
delivered. If the Company shall not deliver such Officers' Certificate, the
next succeeding sinking fund payment for such series or Tranche shall be made
entirely in cash in the amount of the mandatory sinking fund payment. Not less
than 30 days before each such sinking fund payment date the Trustee shall
-30-
select the Securities to be redeemed upon such sinking fund payment date in the
manner specified in Section 403 and cause notice of the redemption thereof to be
given in the name of and at the expense of the Company in the manner provided in
Section 404. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections 405
and 406.
ARTICLE SIX
Covenants
---------
Section 601. Payment of Principal, Premium and Interest.
------------------------------------------
The Company shall pay the principal of and premium, if any, and
interest, if any, on the Securities of each series in accordance with the terms
of such Securities and this Indenture.
Section 602. Maintenance of Office or Agency.
-------------------------------
The Company shall maintain in each Place of Payment for the Securities
of any series, or any Tranche thereof, an office or agency where such Securities
may be presented or surrendered for payment, where such Securities may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of such Securities and this Indenture
may be served. The Company shall give prompt written notice to the Trustee of
the location, and any change in the location, of such office or agency and
prompt notice to the Holders of any such change in the manner specified in
Section 106. If at any time the Company shall fail to maintain any such
required office or agency in respect of Securities of any series, or any Tranche
thereof, or shall fail to furnish the Trustee with the address thereof, such
presentations and surrenders of such Securities may be made and notices and
demands may be made or served at the Corporate Trust Office of the Trustee, and
the Company hereby appoints the Trustee as its agent to receive such respective
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series, or any Tranche
thereof, may be presented or surrendered for any or all such purposes and may
from time to time rescind such designations; provided, however, that no such
-------- -------
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency for such purposes in each Place of
Payment for such Securities in accordance with the requirements set forth above.
The Company shall give prompt written notice to the Trustee, and prompt notice
to the Holders in the manner specified in Section 106, of any such designation
or rescission and of any change in the location of any such other office or
agency.
-31-
Anything herein to the contrary notwithstanding, any office or agency
required by this Section may be maintained at an office of the Company in which
event the Company shall perform all functions to be performed at such office or
agency.
Section 603. Money for Securities Payments to Be Held in Trust.
-------------------------------------------------
If the Company shall at any time act as its own Paying Agent with
respect to the Securities of any series, or any Tranche thereof, it shall, on or
before each due date of the principal of and premium, if any, or interest, if
any, on any of such Securities, segregate and hold in trust for the benefit of
the Persons entitled thereto a sum sufficient to pay the principal and premium
or interest so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and shall promptly notify the Trustee
of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for the
Securities of any series, or any Tranche thereof, it shall, prior to each due
date of the principal of and premium, if any, or interest, if any, on such
Securities, deposit with such Paying Agents sums sufficient (without
duplication) to pay the principal and premium or interest so becoming due, such
sum to be held in trust for the benefit of the Persons entitled to such
principal, premium or interest and (unless such Paying Agent is the Trustee) the
Company shall promptly notify the Trustee of its action or failure so to act.
The Company shall cause each Paying Agent for the Securities of any
series, or any Tranche thereof, other than the Trustee, to execute and deliver
to the Trustee an instrument in which such Paying Agent shall agree with the
Trustee, subject to the provisions of this Section, that such Paying Agent
shall:
(a) hold all sums held by it for the payment of the principal of and
premium, if any, or interest, if, on Securities of such series or Tranche
in trust for the benefit of the Persons entitled thereto until such sums
shall be paid to such Persons or otherwise disposed of as herein provided;
(b) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of such series or Tranche) in the making
of any payment of principal of and premium, if any, or interest, if any, on
the Securities of such series or Tranche; and
(c) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
-32-
The Company may at any time pay, or by Company Order direct any Paying
Agent to pay, to the Trustee all sums held in trust by the Company or such
Paying Agent, such sums to be held by the Trustee upon the same trusts as those
upon which such sums were held by the Company or such Paying Agent; and, upon
such payment by any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of and premium, if
any, or interest, if any, on any Security and remaining unclaimed for two years
after such principal and premium, if any, or interest has become due and payable
shall be paid to the Company on Company Request, or, if then held the Company,
shall be discharged from such trust; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such payment to the Company, may
at the expense of the Company cause to be mailed, on one occasion only, notice
to such Holder that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
mailing, any unclaimed balance of such money then remaining will be paid to the
Company.
Section 604. Corporate Existence.
-------------------
Subject to the rights of the Company under Article Eleven, the Company
shall do or cause to be done all things necessary to preserve and keep in full
force and effect its corporate existence and the rights (charter and statutory)
and franchises of the Company; provided, however, that the Company shall not be
required to preserve any such right or franchise if, in the judgment of the
Company, (i) the preservation thereof is no longer desirable in the conduct of
the business of the Company and (ii) the failure to preserve any such right or
franchise will not adversely affect the interests of the Holders of Securities
of any series or Tranche in any material respect.
Section 605. Maintenance of Properties.
-------------------------
The Company shall cause (or, with respect to property owned in common
with others, make reasonable effort to cause) all its properties used or useful
in the conduct of its business to be maintained and kept in good condition,
repair and working order and shall cause (or, with respect to property owned in
common with others, make reasonable effort to cause) to be made all necessary
repairs, renewals, replacements, betterments and improvements thereof, all as,
in the judgment of the Company, may be necessary so that the business carried on
in connection
-33-
therewith may be properly conducted; provided, however, that nothing in this
-------- -------
Section shall prevent the Company from discontinuing, or causing the
discontinuance of, the operation and maintenance of any of its properties if, in
the judgment of the Company, such discontinuance (i) is desirable in the conduct
of its business and (ii) will not adversely affect the interests of the Holders
of Securities of any series or Tranche in any material respect.
Section 606. Statement as to Compliance; Notice of Certain Defaults.
------------------------------------------------------
The Company shall deliver to the Trustee, within 120 days after the
end of each fiscal year of the Company ending after the date hereof, a brief
certificate, which need not comply with Section 102, from the principal
executive officer, the principal financial officer or the principal accounting
officer of the Company, as to the signer's knowledge of the Company's compliance
with all conditions and covenants under this Indenture. For purposes of this
Section 606, such compliance shall be determined without regard to any period of
grace or requirement of notice provided under any of the provisions of this
Indenture. The Company's fiscal year presently ends on September 30 of each
year.
The Company shall deliver to the Trustee, within 10 days after the
occurrence thereof, written notice of any event of which the Company's Chairman
of the Board, President, Treasurer or Controller has actual knowledge, which
event is, or after notice or lapse of time or both would become, an Event of
Default pursuant to Section 801.
Section 607. Waiver of Certain Covenants.
---------------------------
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in (a) any additional covenant or
restrictions specified with respect to the Securities of any series, or any
Tranche thereof, as contemplated in Section 301 if before the time for such
compliance the Holders of at least a majority in aggregate principal amount of
the Outstanding Securities of all series and Tranches with respect to which such
covenant or restriction was so specified, considered as one class, shall, by Act
of such Holders, either waive such compliance in such instance or generally
waive compliance with such term, provision or condition and (b) Section 602,
604, 605, 606, 608, 609 or Article Eleven if before the time for such compliance
the Holders of at least a majority in principal amount of Securities Outstanding
under this Indenture shall, by Act of such Holders, either waive such compliance
in such instance or generally waive compliance with such term, provision or
condition; but, in the case of (a) or (b), no such waiver shall extend to or
affect such term, provision or condition except to the extent so expressly
waived, and, until such waiver shall become effective, the obligations of the
Company and the duties
-34-
of the Trustee in respect of any such term, provision or condition shall remain
in full force and effect.
Section 608. Restriction on Liens.
--------------------
The Company shall not hereafter create, assume, incur or suffer to
exist any mortgage, lien, pledge, charge or encumbrance of any kind, other than
"Excepted Encumbrances," upon any property of the Company, other than "Excepted
Property," whether owned as of the date hereof or hereafter acquired, to secure
indebtedness without effectively providing that the Securities shall be secured
equally and ratably with the indebtedness secured by such mortgage, lien,
pledge, charge or encumbrance. Subject to the next succeeding sentence, the
restriction contained in this section shall not be applicable to nor prevent the
following:
(a) the pledging by the Company of any assets as security for the
payment of any tax, assessment or other similar charge demanded of the
Company by any governmental authority or public body so long as the Company
in good faith contests its liability to pay the same, or as security to be
deposited with any governmental authority or public body for any person at
any time required by law or governmental regulation as a condition to the
transaction of any business or the exercise of any privilege, license or
right;
(b) the pledging by the Company of any assets for the purposes of
securing a stay or discharge or for any other purpose in the course of any
legal proceeding in which the Company or a subsidiary is a party or for the
purpose of obtaining insurance coverage or other surety obligations
providing for securing such stay or discharge in the event such stay or
discharge should be required;
(c) making good faith deposits or providing security in connection
with tenders, redemptions, contracts or leases to which the Company is a
party or deposits for the purpose of terminating obligations under an
indenture;
(d) the pledging by the Company of any assets in connection with the
incurrence of indebtedness (under circumstances not otherwise excepted from
the operation of this Section) in aggregate principal amount not exceeding
five percent (5%) of the assets of the Company as presented in the
financial statements of the Company contained in the most recently filed
report on Form 10-K or 10-Q (or successor forms thereto) filed with the
Commission at the time of such pledge;
(e) liens, pledges, security interests or other encumbrances on
property, shares of stock or indebtedness of any corporation existing at
the time such corporation
-35-
becomes a subsidiary of or is merged into the Company, or existing at the
time of acquisition of such property or stock by the Company;
(f) incurring liens, licenses, pledges, security interests or other
encumbrances (which shall include, without limitation, purchase money
mortgages, conditional sale agreements and other title retention agreements
and leases in the nature of title retention agreements) to secure the
payment of all or any part of the price of acquisition, construction or
improvement of any property or stock acquired by the Company, or to secure
any indebtedness incurred by the Company prior to, at the time of, or
within 180 days after the later of the acquisition or completion of
construction (including any improvements on an existing property) which
secured debt is incurred for the purpose of financing all or any part of
the purchase price thereof or construction or improvements thereon;
provided, however, that in the case of any such acquisition, construction
or improvement, the lien, pledge, security interest or other encumbrance
shall not apply to any property theretofore owned by the Company, other
than, in the case of any such construction or improvement, any theretofore
substantially unimproved real property on which the property or improvement
so constructed is located;
(g) any liens, pledges, security interests or other encumbrances
(which shall include, without limitation, purchase money mortgages,
conditional sale agreements and other title retention agreements and leases
in the nature of title retention agreements) on property of the Company in
favor of the United States of America or any state thereof, or any
department, agency or instrumentality or political subdivision of the
United States of America or any state thereof, or in favor of any other
county or political subdivision thereof, or any department, agency or
instrumentality of such county or political subdivision, to secure partial
progress, installment, advance or other payments pursuant to any contract
or statute or to secure any indebtedness or other obligation (or related
instrument) incurred for the purpose of financing all or any part of the
purchase price or the cost of construction of the property subject to such
liens, pledges, security interest or other encumbrances;
(h) any extension, renewal or replacement (or successive extension,
renewal or replacement) in whole or in part of any lien or encumbrance
referred to in clauses (a) through (g) above, provided, however, that the
principal amount of indebtedness secured thereby is not increased and the
extension, renewal or replacement shall be limited to all or part of the
property which secured the indebtedness so extended, renewed or replaced
(plus improvements and construction on such property); or
-36-
(i) the lien granted to the Trustee pursuant to Section 907 hereof
and any substantially equivalent lien granted to the respective trustees
under the indentures for any other debt securities of the Company.
Notwithstanding the foregoing, in no event shall the Company create,
assume, incur or suffer to exist pursuant to the foregoing clauses (a) and
(c)-(i) and any mortgage, lien, pledge, charge or encumbrance on the Capital
Stock of either of the Significant Subsidiaries directly or indirectly owned by
the Company.
Any instrument creating a lien pursuant to the requirements of this
Section shall contain reasonable and customary provisions for the enforcement of
such lien and for the release of, or substitution for, the property subjected to
such lien.
The term "Excepted Encumbrances" as used herein shall mean as of any
---------------------
particular time any of the following:
(i) liens for taxes, assessments or governmental charges not
delinquent and liens for workers' compensation awards and similar
obligations not delinquent and liens for taxes, assessments or governmental
charges delinquent but the validity of which is being contested at the time
by the Company in good faith by appropriate proceedings;
(ii) any liens securing indebtedness existing in or relating to
real estate acquired by the Company for transmission, distribution or
right-of-way purposes, or in connection with its usual operations;
(iii) easements or reservations in any property of the Company
created for the purpose of roads, rights-of-way, railroads, railroad side
tracks, electric lines, pipe lines, sewers, water and gas transmission and
distribution mains, conduits, water rights of states, any subdivision
thereof or others, building and use restrictions and defects of title to,
or leases of, any parts of the property of the Company;
(iv) undetermined liens and charges incidental to current
construction, including mechanics', laborers', materialmen's and similar
liens not delinquent;
(v) any obligations or duties affecting the property of the
Company to any municipality or public authority with respect to any
franchise, grant, license, permit or certificate;
(vi) rights reserved to or vested in any municipality or public
authority to control or regulate any property of the Company or to use such
property in a manner
-37-
which does not materially impair the use of such property for the purposes
for which it is held by the Company;
(vii) any irregularities or deficiencies of title to any rights-
of-way for mains or pipes and/or appurtenances thereto or other
improvements thereon and to any real estate used or to be used primarily
for right of way purposes; and
(viii) leases made, or leases existing on property acquired, in the
ordinary course of business.
The term "Excepted Property" as used herein shall mean (a) cash,
-----------------
bonds, stocks, obligations and other securities (not including Capital Stock
issued by either of the Significant Subsidiaries); (b) choses in action,
accounts receivable, unbilled revenues, judgments and other evidences of
indebtedness and contracts, leases and operating agreements; (c) stock in trade,
merchandise, equipment, apparatus, materials or supplies manufactured or
acquired for the purpose of sale and/or resale in the usual course of business
or consumable in the operation of any of the properties of the Company or held
for the purpose of repairing or replacing (in whole or in part) any rolling
stock, buses, motor coaches, trucks, automobiles or other vehicles or aircraft;
(d) timber, gas, oil, minerals (including without limitation gas reserves and
natural or other gas in underground storage or otherwise), mineral rights and
royalties; (e) materials or products generated, manufactured, produced or
purchased by the Company for sale, distribution, or use in the ordinary course
of its business; (f) office furniture and equipment, tools, rolling stock,
buses, motor coaches, trucks and automobiles and other vehicles and aircraft;
and (g) the Company's franchise to be a corporation.
Section 609. Restrictions on Sale and Lease-Back Transactions. The
------------------------------------------------
Company will not enter into any arrangement with any Person providing for the
lease to the Company of any property of the Company (except for temporary leases
for a term, including any renewal thereof, of not more than three years), which
property has been or is to be sold or transferred by the Company (a "Sale and
Lease-back Transaction") to such Person unless the proceeds of such sale are at
least equal to the fair value of such property and either:
(i) the Company would be entitled, pursuant to the provisions of
Section 608, to create, assume, incur or suffer to exist a mortgage, lien,
pledge, charge or encumbrance of any kind to secure indebtedness on the
property to be leased without equally and ratably securing the Securities;
or
(ii) the Company shall, or in any such case the Company covenants that
it will, within 120 days of the effective date of any such arrangement (or
in the case of clause (a) below, within six months thereafter pursuant to a
firm
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purchase commitment entered into within such 120 day period), apply an
amount not less than the fair value of such property to any one or more of
(a) the optional redemption of Securities issued under the
Indenture in accordance with the provisions of Article Four and the
terms of such Securities to be so redeemed or the purchase and
retirement of Securities as provided pursuant to Article Seven hereof,
or
(b) the payment or other retirement of Funded Debt incurred or
assumed by the Company which ranks pari passu with the Securities
(other than Funded Debt owned by the Company), or
(c) the purchase at not more than the fair value of property by
the Company (other than property of the Company involved in such
sale).
ARTICLE SEVEN
Satisfaction and Discharge
--------------------------
Section 701. Satisfaction and Discharge of Indenture.
---------------------------------------
(a) This Indenture shall upon Company Request cease to be of further
effect (except that Sections 304, 305, 306, 404, 503 (as to notice of
redemption), 602, 603, 907 and 914 and this Article Seven shall survive), and
the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
(i) either
(1) all Securities theretofore authenticated and delivered (other
than (A) Securities which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 306 and (B)
Securities deemed to have been paid in accordance with Section 702(a))
have been delivered to the Trustee for cancellation; or
(2) all Securities not theretofore delivered to the Trustee for
cancellation (other than Securities described in clause (1)(A) above)
shall be deemed to have been paid in accordance with Section 702(a);
(ii) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(iii) the Company has delivered to the Trustee an Officers'
Certificate stating that all conditions precedent
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herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
(b) In the event there shall be Securities of two or more series
Outstanding hereunder, the Trustee shall be required to execute an instrument
acknowledging satisfaction and discharge of this Indenture only if requested to
do so with respect to Securities of all series as to which it is Trustee and if
the other conditions thereto as required herein are met. In the event there
shall be two or more Trustees hereunder, then the effectiveness of each such
instrument from each Trustee hereunder shall be conditioned upon receipt of such
instruments from each other Trustee hereunder.
(c) Upon satisfaction and discharge of this Indenture as provided in
this Section 701, the Trustee shall assign, transfer and turn over to the
Company, subject to the lien provided by Section 907, any and all money,
securities and other property then held by the Trustee for the benefit of the
Holders of the Securities other than money and Eligible Obligations held by the
Trustee pursuant to Section 703.
Section 702. Legal and Covenant Defeasance.
-----------------------------
(a) On and after the date the Company shall have fulfilled the
conditions of Section 702(c), it shall be deemed to have paid and discharged the
entire Indebtedness represented by any Security or Securities of any series or
Tranche, or any portion of the principal amount thereof, and satisfied its
obligations under this Indenture with respect thereto (hereinafter, "Legal
Defeasance"). Such Securities shall thereafter be deemed to be "Outstanding"
solely for the purposes of Section 703 hereof and the following provisions of
this Indenture shall survive with respect thereto: (i) the rights of Holders of
such Securities to receive, solely from the trust fund described in Section
702(c), payments in respect of the principal of, premium, if any, and interest
on such Securities when such payments are due, or on the redemption date, as the
case may be, and (ii) the obligations of the Company and the Trustee with
respect to such Securities under Sections 304, 305, 306, 404, 503 (as to notice
of redemption), 602, 603, 907 and 914 and this Article Seven. The Company may
elect to effect a Legal Defeasance under this Section 702(a) notwithstanding the
prior election to effect a Covenant Defeasance under Section 702(b) with respect
to Securities or portions thereof of the same series or Tranche.
(b) The Company shall be released from its obligations under the
covenants contained in Sections 604 (except with respect to maintaining its
corporate existence), 605, 606, 608 and 609 and Article Eleven with respect to
any Security or Securities of any series or Tranche or any portion of the
principal amount thereof (and under any covenants inserted pursuant to Section
301(u) hereof, in any supplemental indenture,
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Board Resolution or Officers' Certificate establishing such Security), on and
after the date the conditions in Section 702(c) are satisfied (hereinafter,
"Covenant Defeasance"). Such Securities or portions thereof shall thereafter be
deemed not "Outstanding" for the purposes of any direction, waiver, consent or
declaration or Act of Holders (and the consequences of any thereof) in
connection with such covenants, but shall continue to be deemed "Outstanding"
for all other purposes hereunder. In the event of a Covenant Defeasance, the
Company may omit to comply with and shall have no liability in respect of any
term, condition or limitation set forth in any such covenant, whether directly
or indirectly, by reason of any reference elsewhere herein to any such covenant
or by reason of any reference in any such covenant to any other provision herein
or in any other document and such omission to comply shall not constitute a
Default or an Event of Default under Section 801(c) with respect to such
Securities or portions thereof, but, except as specified above, the remainder of
this Indenture and such Securities or portions thereof shall continue to be in
full force and effect.
(c) The following shall be the conditions to any defeasance under this
Section 702:
(i) there shall have been irrevocably deposited with the
Trustee, in trust: (1) money in an amount which shall be sufficient,
or (2) Eligible Obligations, which shall not contain provisions
permitting the redemption or other prepayment thereof at the option of
the issuer thereof, the principal of and the interest on which when
due, without any regard to reinvestment thereof will provide moneys
which, together with the money, if any, deposited with or held by the
Trustee, shall be sufficient, or (3) a combination of (1) or (2) which
shall be sufficient, to pay when due the principal of and premium, if
any, and interest, if any, due and to become due on such Securities or
portions thereof; provided, however, that (x) in the case of the
-------- -------
provision for payment or redemption of less than all the Securities of
any series or Tranche, such Securities or portions thereof shall have
been selected by the Security Registrar as provided herein and, in the
case of a redemption, the notice requisite to the validity of such
redemption shall have been given or irrevocable authority shall have
been given by the Company to the Trustee to give such notice, under
arrangements satisfactory to the Trustee and (y) such money or the
proceeds of such Eligible Obligations shall either (i) have been on
deposit with the Trustee for a period of at least 90 days, or (ii) the
Trustee shall have received an Opinion of Counsel reasonably
satisfactory in form to the Trustee to the effect that payments to
Holders with such moneys as proceeds are not recoverable as a
preference under any applicable United States federal
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or state law relating to bankruptcy, insolvency, receivership,
winding-up, liquidation, reorganization or relief of debtors;
(ii) if such deposit shall have been made prior to the
Maturity of such Securities, the Company shall have delivered to the
Trustee a Company Order stating that the money and Eligible
Obligations deposited with the Trustee in accordance with this Section
shall be held by the Trustee, in trust, as provided in Section 703;
(iii) if Eligible Obligations shall have been deposited with
the Trustee, the Company shall have delivered to the Trustee an
opinion of an independent public accountant of nationally recognized
standing, selected by the Company, to the effect that the requirements
set forth in clause (i) above have been satisfied;
(iv) the Company shall have delivered to the Trustee an
Opinion of Counsel in the form described in Section 702(d); and
(v) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein relating to either the Legal Defeasance
under Section 702(a) or the Covenant Defeasance under Section 702(b),
as the case may be, have been complied with.
(d) (i) In the case of Legal Defeasance under Section 702(a), the
Opinion of Counsel referred to in Section 702(c) shall be in a form reasonably
satisfactory to the Trustee and shall be (x) accompanied by a ruling of the
Internal Revenue Service issued to the Company, or (y) based on a change in law
or regulation occurring after the date hereof, to the effect that the Holders
will not realize income, gain or loss for Federal income tax purposes as a
result of such Legal Defeasance but will realize income, gain or loss on the
Securities, including payments of interest thereon, in the same amounts and in
the same manner and at the same time as would have been the case if such Legal
Defeasance had not occurred; and
(ii) In the case of Covenant Defeasance under Section
702(b), the Opinion of Counsel referred to in Section 702(c) shall be
in a form reasonably satisfactory to the Trustee and to the effect
that the Holders will not realize income, gain or loss for Federal
income tax purposes as a result of such Covenant Defeasance but will
realize income, gain or loss on the Securities, including payments of
interest thereon, in the same manner and at the same times as
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would have been the case if such Covenant Defeasance had not occurred.
(e) In the event that the Company effects a Legal Defeasance, upon
receipt by the Trustee of money or Eligible Obligations, or both, in accordance
with Section 702(c), together with the documents required by such paragraph, the
Trustee shall, upon receipt of a Company Request, acknowledge in writing that
the Security or Securities or portions thereof with respect to which such
deposit was made are deemed to have been paid for all purposes of this Indenture
and that the entire indebtedness of the Company in respect thereof is deemed to
have been satisfied and discharged.
(f) If payment of less than all of the Securities of any series, or
any Tranche thereof, is to be provided for in the manner and with the effect
provided in this Section, the Security Registrar shall select such Securities,
or portions of principal amount thereof in the manner specified by Section 403
for selection for redemption of less than all the Securities of a series or
Tranche.
(g) In the event that Securities which shall be deemed to have been
paid as a result of a Legal Defeasance (or with respect to which a Covenant
Defeasance has been effected) do not mature and are not to be redeemed within
the 60-day period commencing with the date of the deposit with the Trustee of
moneys or Eligible Obligations, the Company shall, as promptly as practicable,
give a notice, in the same manner as a notice of redemption with respect to such
Securities, to the Holders of such Securities to the effect that such deposit
has been made and the effect thereof.
(h) The Company shall pay, and shall indemnify the Trustee and each
Holder of Securities which are deemed to have been paid as provided in this
Section against any tax, fee or other charge imposed on or assessed against the
Eligible Obligations deposited with the Trustee or the principal or interest
received by the Trustee in respect of such Eligible Obligations.
(i) Anything herein to the contrary notwithstanding, if, at any time
after a Legal Defeasance or a Covenant Defeasance is effected pursuant to this
Section (without regard to the provisions of this paragraph (i)), the Trustee
shall be required to return the money or Eligible Obligations, or combination
thereof, deposited with it to the Company or its representative under any
applicable Federal or State bankruptcy, insolvency or other similar law, the
indebtedness of the Company in respect of such Security shall thereupon be
deemed retroactively not to have been satisfied and discharged, as aforesaid,
and to remain Outstanding, or, as the case may be, the obligations under the
above-mentioned covenants in respect of such Security shall thereupon be deemed
retroactively not to have been released.
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Section 703. Application of Trust Money.
--------------------------
Neither the Eligible Obligations nor the money deposited with the
Trustee pursuant to Section 702(c)(i), nor the principal or interest payments on
any such Eligible Obligations, shall be withdrawn or used for any purpose other
than, and shall be held in trust for, the payment of the principal of and
premium, if any, and interest, if any, on the Securities or portions of
principal amount thereof in respect of which such deposit was made, all subject,
however, to the provisions of Section 603; provided, however, that, so long as
-------- -------
there shall not have occurred and be continuing an Event of Default, any cash
received from such principal or interest payments on such Eligible Obligations
deposited with the Trustee, if not then needed for such purpose, shall, to the
extent practicable, be invested in Eligible Obligations of the type described in
Section 702(c)(i)(2) maturing at such times and in such amounts as shall be
sufficient to pay when due the principal of and premium, if any, and interest,
if any, due and to become due on such Securities or portions thereof on and
prior to the Maturity thereof, and interest earned from such reinvestment shall
be paid over to the Company as received by the Trustee, free and clear of any
trust, lien or pledge under this Indenture except the lien provided by Section
907; and provided, further, that, so long as there shall not have occurred and
-------- -------
be continuing an Event of Default, any moneys held by the Trustee in accordance
with this Section on the Maturity of all such Securities in excess of the amount
required to pay the principal of and premium, if any, and interest, if any, then
due on such Securities shall be paid over to the Company free and clear of any
trust, lien or pledge under this Indenture except the lien provided by Section
907.
ARTICLE EIGHT
Events of Default; Remedies
---------------------------
Section 801. Events of Default.
-----------------
"Event of Default", wherever used herein with respect to Securities of
any series, means any one of the following events:
(a) failure to pay any interest on any Security of such series within
30 days after the same becomes due and payable; or
(b) failure to pay the principal of or premium, if any, on any
Security of such series within three Business Days after it becomes due; or
(c) failure to perform or breach of any covenant or warranty of the
Company in this Indenture (other than a covenant or warranty a default in the
performance of which or breach of
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which is elsewhere in this Section specifically dealt with or which has
expressly been included in this Indenture solely for the benefit of one or more
series of Securities other than such series) for a period of 90 days after there
has been given, by registered or certified mail, to the Company by the Trustee,
or to the Company and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities of such series, a written notice specifying
such default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(d) the entry by a court having jurisdiction in the premises of (1) a
decree or order for relief in respect of the Company or a Significant Subsidiary
in an involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or (2) a decree or
order adjudging the Company or a Significant Subsidiary a bankrupt or insolvent,
or approving as properly filed a petition by one or more Persons other than the
Company or a Significant Subsidiary seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company or a Significant
Subsidiary under any applicable Federal or State law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar official
for the Company or a Significant Subsidiary or for any substantial part of its
respective property, or ordering the winding up or liquidation of its affairs,
and any such decree or order for relief or any such other decree or order shall
have remained unstayed and in effect for a period of 90 consecutive days; or
(e) the commencement by the Company or a Significant Subsidiary of a
voluntary case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to
the entry of a decree or order for relief in respect of the Company or a
Significant Subsidiary in a case or proceeding under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against it, or
the consent by it to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or similar official of the
Company or a Significant Subsidiary or of any substantial part of its respective
property, or the making by the Company or a Significant Subsidiary of an
assignment for the benefit of creditors, or the admission by the Company or a
Significant Subsidiary in writing of its inability to pay its debts generally as
they become due, or the authorization of such action by the Board of Directors
of the Company or of a Significant Subsidiary; or
(f) a default under any bond, debenture, note or other evidence of
indebtedness by the Company (including a default with respect to Securities of
any series) or by a Significant
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Subsidiary or a default under any mortgage, indenture or instrument under which
there may be issued or by which there may be secured or evidenced any
indebtedness by the Company (including this Indenture) or by a Significant
Subsidiary, in each case aggregating in excess of $10,000,000, whether such
indebtedness now exists or shall hereafter be created, which default shall
constitute a failure to pay any portion of the principal of such indebtedness
when due and payable after the expiration of any applicable grace period with
respect thereto or shall have resulted in such indebtedness becoming or being
declared due and payable prior to the date on which it would otherwise have
become due and payable, if (1) there shall have been given, by registered or
certified mail, to the Company by the Trustee or to the Company and the Trustee
by the Holders of at least 10% in principal amount of the Outstanding Securities
of any series a written notice specifying such default and requiring the Company
to cause such indebtedness to be discharged or cause such acceleration to be
rescinded or annulled and (2) within a period of 10 days after said notice is
given to the Company, such indebtedness is not discharged or such acceleration
is not rescinded or annulled; or
(g) any other Event of Default specified with respect to Securities
of such series.
Section 802. Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
If an Event of Default shall have occurred and be continuing with
respect to Securities of any series at the time Outstanding, then in every such
case the Trustee or the Holders of not less than 33% in principal amount of the
Outstanding Securities of such series may declare the principal amount (or, if
any of the Securities of such series are Original Issue Discount Securities,
such portion of the principal amount of such Securities as may be specified in
the terms thereof as contemplated by Section 301) of all of the Securities of
such series to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by Holders), and upon receipt by the
Company of such notice of such declaration such principal amount (or specified
amount) shall become immediately due and payable; provided, however, that if an
Event of Default shall have occurred and be continuing with respect to more than
one series of Securities, the Trustee or the Holders of not less than 33% in
aggregate principal amount of the Outstanding Securities of all such series,
considered as one class, may make such declaration of acceleration, and not the
Holders of the Securities of any one of such series.
At any time after such a declaration of acceleration with respect to
Securities of any series shall have been made and before a judgment or decree
for payment of the money due shall have been obtained by the Trustee as
hereinafter in this Article provided, the Event or Events of Default giving rise
to such
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declaration of acceleration shall, without further act, be deemed to have been
waived, and such declaration and its consequences shall, without further act, be
deemed to have been rescinded and annulled, if
(a) the Company shall have paid or deposited with the Trustee a sum
sufficient to pay
(1) all overdue interest on all Securities of any such series;
(2) the principal of and premium, if any, on any Securities of
such series which have become due otherwise than by such declaration
of acceleration and interest thereon at the rate or rates prescribed
therefor in such Securities;
(3) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Securities;
(4) all amounts due to the Trustee under Section 907;
and
(b) any other Event or Events of Default with respect to Securities
of such series, other than the non-payment of the principal of Securities
of such series which shall have become due solely by such declaration of
acceleration, shall have been cured or waived as provided in Section 813.
No such rescission shall affect any subsequent Event of Default or impair any
right consequent thereon.
Section 803. Collection of Indebtedness and Suits for Enforcement by
Trustee.
-------------------------------------------------------
If any Event of Default described in clause (a) or (b) of Section 801
shall have occurred and be continuing, the Company shall, upon demand of the
Trustee, pay to it, for the benefit of the Holders of the Securities of the
series with respect to which such Event of Default shall have occurred, the
whole amount then due and payable on such Securities for principal and premium,
if any, and interest, if any, and, to the extent required by such Securities and
permitted by law, interest on premium, if any, and on any overdue principal and
interest, at the rate or rates prescribed therefor in such Securities, and, in
addition thereto, such further amount as shall be sufficient to cover any
amounts due to the Trustee under Section 907.
If the Company shall fail to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the
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collection of the sums so due and unpaid, may prosecute such proceeding to
judgment or final decree and may enforce the same against the Company or any
other obligor upon such Securities and collect the moneys adjudged or decreed to
be payable in the manner provided by law out of the property of the Company or
any other obligor upon such Securities, wherever situated.
If an Event of Default with respect to Securities of any series shall
have occurred and be continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities of
such series by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
Section 804. Trustee May File Proofs of Claim.
--------------------------------
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of principal,
premium if any, and interest, if any, owing and unpaid in respect of the
Securities and to file such other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee (including any
claim for amounts due to the Trustee under Section 907) and of the Holders
allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on 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 amounts due to it under Section 907.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights
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of any Holder thereof or to authorize the Trustee to vote in respect of the
claim of any Holder in any such proceeding.
Section 805. Trustee May Enforce Claims Without Possession of
------------------------------------------------
Securities.
----------
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery or judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders in respect of which such judgment has been
recovered.
Section 806. Application of Money Collected.
------------------------------
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or premium, if
any, or interest, if any, upon presentation of the Securities in respect of
which or for the benefit of which such money shall have been collected and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
First: To the payment of all amounts due the Trustee under Section
907;
Second: To the payment of the amounts then due and unpaid upon the
Securities for principal of and premium, if any, and interest, if any, in
respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the amounts
due and payable on such Securities for principal, premium, if any, and interest,
if any, respectively; and
Third: To the Company.
Section 807. Limitations on Suits.
--------------------
No Holder shall have any right to institute any proceeding, judicial
or otherwise, with respect to this Indenture, or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless:
(a) such Holder shall have previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities of
such series;
(b) the Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities of
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all series in respect of which an Event of Default shall have occurred and
be continuing, considered as one class, 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;
(c) such Holder or Holders shall have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity shall have failed to institute any such proceeding;
and
(e) no direction inconsistent with such written request shall have
been given to the Trustee during such 60-day period by the Holders of a
majority in aggregate principal amount of the Outstanding Securities of a
series in respect of which an Event of Default shall have occurred and be
continuing, considered as one class;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other of such
Holders or to obtain or to seek to obtain priority or preference over any other
of such Holders or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and ratable benefit of all of such
Holders.
Section 808. Unconditional Right of Holders to Receive Principal,
Premium and Interest.
---------------------------------------------------
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and premium, if any, and (subject to Section
307) interest, if any, on such Security on the Stated Maturity or Maturities
expressed in such Security (or, in the case of redemption, on the Redemption
Date) and to institute suit for the enforcement of any such payment, and such
rights shall not be impaired without the consent of such Holder.
Section 809. 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 shall have been
discontinued or abandoned for any reason, or shall have 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, and Trustee and such
Holder shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and
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remedies of the Trustee and such Holder shall continue as though no such
proceeding had been instituted.
Section 810. Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided in the last paragraph of Section 306, 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 811. 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 or by law to the Trustee
or to the Holders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Holders, as the case may be.
Section 812. Control by Holders of Securities.
--------------------------------
If an Event of Default shall have occurred and be continuing in
respect of a series of Securities, the Holders of a majority in principal amount
of the Outstanding Securities of such series shall have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred on the Trustee, with
respect to the Securities of such series; provided, however, that if an Event of
Default shall have occurred and be continuing with respect to more than one
series of Securities, the Holders of a majority in aggregate principal amount of
the Outstanding Securities of all such series, considered as one class, shall
have the right to make such direction, and not the Holders of the Securities of
any one of such series; and provided, further, that
(a) such direction shall not be in conflict with any rule of law or
with this Indenture, and could not involve the Trustee in personal
liability in circumstances where indemnity would not, in the Trustee's sole
discretion, be adequate;
(b) the Trustee shall not have determined that the action so directed
would be unjustly prejudicial to the Holders not taking part in such
direction; and
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(c) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
Section 813. Waiver of Past Defaults.
-----------------------
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
(a) in the payment of the principal of or premium, if any, or
interest, if any, on any Security of such series, or
(b) in respect of a covenant or provision hereof which under Section
1202 cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any and
all Events of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
Section 814. Undertaking for Costs.
---------------------
The Company and the Trustee agree, and each Holder by his acceptance
thereof shall be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in aggregate
principal amount of the Outstanding Securities of all series in respect of which
such suit may be brought, considered as one class, or to any suit instituted by
any Holder for the enforcement of the payment of the principal of or premium, if
any, or interest, if any, on any Security on or after the Stated Maturity or
Maturities expressed in such Security (or, in the case of redemption, on or
after the Redemption Date). This Section 814 shall be in lieu of Section 315(e)
of the Trust Indenture Act and such Section 315(e) is hereby expressly excluded
from this Indenture as permitted by the Trust Indenture Act.
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ARTICLE NINE
The Trustee
-----------
Section 901. Certain Duties and Responsibilities.
-----------------------------------
(a) Except during the continuance of an Event of Default with respect
to Securities of any series,
(1) the Trustee undertakes to perform, with respect to Securities
of such series, such duties and only such duties as are specifically
set forth in this Indenture, and no implied covenants or obligations
shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may,
with respect to Securities of such series, conclusively rely, as to
the truth of the statements and the correctness of the opinions
expressed therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture; but in
the case of any such certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine whether
or not they conform to the requirements of this Indenture.
(b) In case an Event of Default with respect to Securities of any
series shall have occurred and be continuing, the Trustee shall exercise,
with respect to Securities of such series, such of the rights and powers
vested in it by this Indenture, and use the same degree of care and skill
in their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent
failure to act, or its own wilful misconduct, except that
(1) this subsection shall not be construed to limit the effect of
subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with
the direction of the
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Holders of a majority in principal amount of the Outstanding
Securities of any one or more series, as provided herein, relating to
the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Indenture with respect to the Securities
of such series; and
(4) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to
it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of
this Section.
Section 902. Notice of Defaults.
------------------
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall transmit by mail to
all Holders of Securities of such series entitled to receive reports pursuant to
Section 1003(c), notice of any default hereunder known to the Trustee, unless
such default shall have been cured and waived; provided, however, that, except
in the case of a default in the payment of the principal of or premium, if any,
or interest, if any, on any Security of such series or in the payment of any
sinking fund instalment with respect to Securities of such series, the Trustee
shall be protected in withholding such notice if and so long as the board of
directors, the executive committee or a trust committee of directors or
Responsible Officers of the Trustee in good faith determine that the withholding
of such notice is in the interest of the Holders of Securities of such series;
and provided, further, that in the case of any default of the character
specified in Section 801(c) with respect to Securities of such series, no such
notice to Holders shall be given until at least 75 days after the occurrence
thereof. For the purpose of this Section, the term "default" means any event
which is, or after notice or lapse of time or both would become, an Event of
Default with respect to Securities of such series.
Section 903. Certain Rights of Trustee.
-------------------------
Subject to the provisions of Section 901:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice,
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request, direction, consent, order, bond, debenture, note, other evidence
of indebtedness or other paper or document believed by it to be genuine and
to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order, or as
otherwise expressly provided herein, and any resolution of the Board of
Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any Holder pursuant to this Indenture, unless such Holder shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with
such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder; and
(h) except as otherwise provided in Section 801(d), the Trustee shall
not be charged with knowledge of any Event of Default with respect to the
Securities of any series for
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which it is acting as Trustee unless either (1) a Responsible Officer of
the Trustee assigned to the Corporate Trust Department of the Trustee (or
any successor division or department of the Trustee) shall have actual
knowledge of the Event of Default or (2) written notice of such Event of
Default shall have been given to the Trustee by the Company, any other
obligor on such Securities or by any Holder of such Securities.
Section 904. Not Responsible for Recitals or Issuance of Securities.
------------------------------------------------------
The recitals contained herein and in the Securities (except the
Trustee's certificates of authentication) shall be taken as the statements of
the Company, and the Trustee or any Authenticating Agent assumes no
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Securities. The
Trustee or any Authenticating Agent shall not be accountable for the use or
application by the Company of Securities of the proceeds thereof, nor shall it
be responsible for any statement in the registration statement or prospectus for
the Securities under the Securities Act of 1933, as amended, or the
determination as to which beneficial owners are entitled to receive any notices
hereunder.
Section 905. May Hold Securities.
-------------------
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
908 and 913, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
Section 906. Money Held in Trust.
-------------------
Money held by the Trustee in trust hereunder need not be segregated
from other funds, except to the extent required by law. Neither the Trustee nor
the Paying Agent shall be under any liability for interest on any money received
by it hereunder except as otherwise agreed with the Company.
Section 907. Compensation and Reimbursement.
------------------------------
The Company shall
(a) pay to the Trustee from time to time reasonable compensation for
all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
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(b) except as otherwise expressly provided herein, reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances reasonably incurred or made by the Trustee in accordance with any
provision of this Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its negligence,
wilful misconduct or bad faith; and
(c) indemnify the Trustee and its officers, directors, employees and
agents and hold each of them harmless from and against, any loss, liability
or expense reasonably incurred without negligence, willful misconduct or
bad faith on the part of such indemnified party, arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defense against any claim or
liability in connection with the exercise or performance of any of such
indemnified party's powers or duties hereunder.
As security for the performance of the obligations of the Company
under this Section, the Trustee shall have a lien prior to the Securities upon
all property and funds held or collected by the Trustee as such other than
property and funds held in trust under Section 703 except as otherwise provided
in Section 703, and other than the property or funds deposited with the Trustee
pursuant to Section 701. Anything to the contrary notwithstanding, the
obligations of the Company under this Section 907 shall survive payment in full
of the Securities and discharge of this Indenture.
Section 908. Disqualification; Conflicting Interests.
---------------------------------------
(a) If the Trustee shall have or acquire any conflicting interest, as
defined in this Section, with respect to the Securities of any series, it shall,
within 90 days after ascertaining that it has such conflicting interest and if
the default (as defined in Section 908(d), to which such conflicting interest
relates has not been cured or duly waived or otherwise eliminated before the end
of such 90-day period, either eliminate such conflicting interest or resign with
respect to the Securities of such series in the manner and with the effect
hereinafter specified in this Article.
(b) In the event that the Trustee shall fail to comply with the
provisions of subsection (a) of this Section with respect to the Securities of
any series, the Trustee shall, within 10 days after the expiration of such 90-
day period, transmit, in the manner and to the extent provided in Section
1003(c), to all Holders of Securities of such series notice of such failure.
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(c) For the purposes of this Section, the Trustee shall be deemed to
have a conflicting interest with respect to the Securities of any series if the
Securities of such series are in default (as such term is defined in Section
801, but exclusive of any period of grace or requirement of notice); and
(1) the Trustee is trustee under this Indenture with respect to
the Outstanding Securities of any series other than such series or is
trustee under another indenture under which any other securities, or
certificates of interest or participation in any other securities, of
the Company are outstanding, unless such other indenture is a
collateral trust indenture under which the only collateral consists of
Securities issued under this Indenture; provided, however, that there
shall be excluded from the operation of this paragraph of this
Indenture Outstanding Securities of any series other than such series
or any other indenture under which any other securities, or
certificates of interest or participation in any other securities, of
the Company are outstanding, if
(A) this Indenture and such other indenture or indentures
are wholly unsecured and rank equally and such other indenture or
indentures are hereafter qualified under the Trust Indenture Act,
unless the Commission shall have found and declared by order
pursuant to Section 305(b) or Section 307(c) of the Trust
Indenture Act that differences exist between the provisions of
this Indenture with respect to Securities of such series and one
or more other series or the provisions of such other indenture or
indentures which are so likely to involve a material conflict of
interest as to make it necessary in the public interest or for
the protection of investors to disqualify the Trustee from acting
as such under this Indenture with respect to the Securities of
such series and such other series or under such other indenture
or indentures, or
(B) the Company shall have sustained the burden of proving,
on application to the Commission and after opportunity for
hearing thereon, that trusteeship under this Indenture with
respect to the Securities of such series and such other series or
such other indenture or indentures is not so likely to involve a
material conflict of interest as to make it necessary in the
public interest or for the protection of investors to disqualify
the Trustee from acting as such under this Indenture with respect
to the Securities of such series and such other series or under
such other indenture or indentures;
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(2) the Trustee or any of its directors or executive officers is
an underwriter for the Company;
(3) the Trustee directly or indirectly controls or is directly or
indirectly controlled by or is under direct or indirect common control
with an underwriter for the Company;
(4) the Trustee or any of its directors or executive officers is
a director, officer, partner, employee, appointee or representative of
the Company, or of an underwriter (other than the Trustee itself) for
the Company who is currently engaged in the business of underwriting,
except that (A) one individual may be a director and/or an executive
officer, of the Trustee and a director and/or an executive officer of
the Company but may not be at the same time an executive officer of
both the Trustee and the Company; (B) if and so long as the number of
directors of the Trustee in office is more than nine, one additional
individual may be a director and/or an executive officer of the
Trustee and a director of the Company; and (C) the Trustee may be
designated by the Company or by any underwriter for the Company to act
in the capacity of transfer agent, registrar, custodian, paying agent,
fiscal agent, escrow agent or depositary, or in any other similar
capacity, or, subject to the provisions of paragraph (1) of this
Section 908(c) to act as trustee, whether under an indenture or
otherwise;
(5) 10% or more of the voting securities of the Trustee is
beneficially owned either by the Company or by any director, partner
or executive officer thereof, or 20% or more of such voting securities
is beneficially owned, collectively, by any two or more of such
persons; or 10% or more of the voting securities of the Trustee is
beneficially owned either by an underwriter for the Company or by any
director, partner or executive officer thereof, or is beneficially
owned, collectively, by any two or more such persons;
(6) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as
hereinafter in this subsection defined), (A) 5% or more of the voting
securities, or 10% or more of any other class of security, of the
Company not including the Securities issued under this Indenture and
securities issued under any other indenture under which the Trustee is
also trustee or (B) 10% or more of any class of security of any
underwriter for the Company;
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(7) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as
hereinafter in this subsection defined), 5% or more of the voting
securities of any person who, to the knowledge of the Trustee, owns
10% or more of the voting securities of, or controls directly or
indirectly or is under direct or indirect common control with, the
Company;
(8) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as
hereinafter in this subsection defined), 10% or more of any class of
security of any person who, to the knowledge of the Trustee, owns 50%
or more of the voting securities of the Company; or
(9) the Trustee owns, on the date of default upon the Securities
of such series (as such term is defined in Section 801, but exclusive
of any period of grace or requirement of notice) or any anniversary of
such default while such default upon the Securities of such series
remains outstanding, in the capacity of executor, administrator,
testamentary or inter vivos trustee, guardian, committee or
conservator, or in any other similar capacity, an aggregate of 25% or
more of the voting securities, or of any class of security, of any
person, the beneficial ownership of a specified percentage of which
would have constituted a conflicting interest under paragraph (6), (7)
or (8) of this subsection. As to any such securities of which the
Trustee acquired ownership through becoming executor, administrator or
testamentary trustee of an estate which included them, the provisions
of the preceding sentence shall not apply, for a period of two years
from the date of such acquisition, to the extent that such securities
included in such estate do not exceed 25% of such voting securities or
25% of any such class of security. Promptly after the dates of any
such default upon the Securities of such series and annually in each
succeeding year that the Securities of such series remain in default
the Trustee shall make a check of its holdings of such securities in
any of the above-mentioned capacities as of such dates. If the
Company shall fail to make payment in full of the principal of or
premium, if any, or interest, if any, on any of the Securities when
and as the same becomes due and payable, and such failure shall
continue for 30 days thereafter, the Trustee shall make a prompt check
of its holdings of such securities in any of the above-mentioned
capacities as of the date of the expiration of such 30-day period, and
after such date, notwithstanding the foregoing provisions of this
paragraph, all such securities so held by the Trustee, with sole or
joint control over such securities vested
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in it, shall, but only so long as such failure shall continue, be
considered as though beneficially owned by the Trustee for the
purposes of paragraphs (6), (7) and (8) of this subsection; or
(10) except under the circumstances described in paragraph (1),
(3), (4) (5) or (6) of Section 913(b) hereof, the Trustee shall be or
shall become a creditor of the Company.
The specification of percentages in paragraphs (5) to (9), inclusive,
of this subsection shall not be construed as indicating that the ownership of
such percentages of the securities of a person is or is not necessary or
sufficient to constitute direct or indirect control for the purposes of
paragraph (3) or (7) of this subsection.
For the purposes of paragraphs (6), (7), (8) and (9) of this
subsection only, (a) the terms "security" and "securities" shall include only
such securities as are generally known as corporate securities, but shall not
include any note or other evidence of indebtedness issued to evidence an
obligation to repay moneys lent to a person by one or more banks, trust
companies or banking firms, or any certificate of interest or participation in
any such note or evidence of indebtedness; (b) an obligation shall be deemed to
be "in default" when a default in payment of principal shall have continued for
30 days or more and shall not have been cured; and (c) the Trustee shall not be
deemed to be the owner or holder of (1) any security which it holds as
collateral security, as trustee or otherwise, for an obligation which is not in
default as defined in clause (b) above, (2) any security which it holds as
collateral security under this Indenture, irrespective of any default hereunder
or (3) any security which it holds as agent for collection, or as custodian,
escrow agent or depositary, or in any similar representative capacity.
(d) For the purpose of this Section:
(1) the term "underwriter", when used with reference to the
Company means every person who, within one year prior to the time as
of which the determination is made, has purchased from the Company
with a view to, or has offered or sold for the Company in connection
with, the distribution of any security of the Company outstanding at
such time, or has participated or has had a direct or indirect
participation in any such undertaking, or has participated or has had
a participation in the direct or indirect underwriting of any such
undertaking, but such term shall not include a person whose interest
was limited to a commission from an underwriter or dealer not in
excess of the usual and customary distributors' or sellers'
commission;
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(2) the term "director" means any director of a corporation or
any individual performing similar functions with respect to any
organization, whether incorporated or unincorporated;
(3) the term "person" means an individual, a corporation, a
partnership, an association, a joint-stock company, a trust, an
unincorporated organization or a government or political subdivision
thereof; and as used in this paragraph, the term "trust" shall include
only a trust where the interest or interests of the beneficiary or
beneficiaries are evidenced by a security;
(4) the term "voting security" means any security presently
entitling the owner or holder thereof to vote in the direction or
management of the affairs of a person, or any security issued under or
pursuant to any trust, agreement or arrangement whereby a trustee or
trustees or agent or agents for the owner or holder of such security
are presently entitled to vote in the direction or management of the
affairs of a person;
(5) the term "Company" means any obligor upon the Securities; and
(6) the term "executive officer" means the president, every vice
president, every trust officer, the cashier, the secretary and the
treasurer of a corporation, and any individual customarily performing
similar functions with respect to any organization whether
incorporated or unincorporated, but shall not include the chairman of
the board of directors.
(e) Except in the case of a default in the payment of the principal of
or interest on any Security, or in the payment of any sinking or purchase fund
installment, the Trustee shall not be required to resign as provided by this
Section 908 if the Trustee shall have sustained the burden of proving, on
application to the Commission and after opportunity for hearing thereon, that
(i) the default under the Indenture may be cured or waived during a reasonable
period and under the procedures described in such application, and (ii) a stay
of the Trustee's duty to resign will not be inconsistent with the interest of
the Holders. The filing of such an application shall automatically stay the
performance of the duty to resign until the Commission orders otherwise.
(f) The percentages of voting securities and other securities
specified in this Section shall be calculated in accordance with the following
provisions:
(1) a specified percentage of the voting securities of the
Trustee, the Company or any other
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person referred to in this Section (each of whom is referred to as a
"person" in this paragraph) means such amount of the outstanding
voting securities of such person as entitles the holder or holders
thereof to cast such specified percentage of the aggregate votes which
the holders of all the outstanding voting securities of such person
are entitled to cast in the direction or management of the affairs of
such person;
(2) a specified percentage of a class of securities of a person
means such percentage of the aggregate amount of securities of the
class outstanding.
(3) the term "amount", when used in regard to securities, means
the principal amount if relating to evidences of indebtedness, the
number of shares if relating to capital shares and the number of units
if relating to any other kind of security;
(4) the term "outstanding", as used in this Section, means
issued and not held by or for the account of the issuer; the following
securities shall not be deemed outstanding within the meaning of this
definition:
(A) securities of an issuer held in a sinking fund relating
to securities of the issuer of the same class;
(B) securities of an issuer held in a sinking fund relating
to another class of securities of the issuer, if the obligation
evidenced by such other class of securities is not in default as
to principal or interest or otherwise;
(C) securities pledged by the issuer thereof as security for
an obligation of the issuer not in default as to principal or
interest or otherwise; and
(D) securities held in escrow if placed in escrow by the
issuer thereof;
provided, however, that any voting securities of an issuer shall be
deemed outstanding if any person other than the issuer is entitled to
exercise the voting rights thereof; and
(5) a security shall be deemed to be of the same class as another
security if both securities confer upon the holder or holders thereof
substantially the same rights and privileges; provided, however, that,
in the case of secured evidences of indebtedness, all of
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which are issued under a single indenture, differences in the interest
rates or maturity dates of various series thereof shall not be deemed
sufficient to constitute such series different classes; and provided,
further, that, in the case of unsecured evidences of indebtedness,
differences in the interest rates or maturity dates thereof shall not
be deemed sufficient to constitute them securities of different
classes, whether or not they are issued under a single indenture.
Section 909. Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least $50,000,000 and subject to supervision or examination by Federal or
State authority and qualified and eligible under this Article. If such
corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of such supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. No obligor upon the Securities or
person directly or indirectly controlling, controlled by, or under common
control with such obligor shall serve as Trustee. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect hereinafter specified
in this Article.
Section 910. Resignation and Removal; Appointment of Successor.
-------------------------------------------------
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 911.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If the
instrument of acceptances by a successor Trustee required by Section 911 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(c) The Company may at any time by a Board Resolution remove the
Trustee with respect to the Securities of any or all series.
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(d) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series delivered to the Trustee and to the
Company.
(e) If at any time:
(1) the Trustee shall fail to comply with Section 908(a) after
written request therefor by any Holder who has been a bona fide Holder
for at least six months, or
(2) the Trustee shall cease to be eligible under Section 909
and shall fail to resign after written request therefor by any such
Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation;
then, in any such case, subject to Section 814, any Holder who has been a bona
fide Holder for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee with respect to all Securities and the appointment of a successor
Trustee or Trustees.
(f) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall comply with the
applicable requirements of Section 911. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
911, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Securities of any series shall have
been so appointed by the
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Company or the Holders and accepted appointment in the manner required by
Section 911, any Holder who has been a bona fide Holder of a Security of such
series for at least six months may, subject to Section 814, on behalf of himself
and all others similarly situated, petition any court of competent jurisdiction
for the appointment of a successor Trustee with respect to the Securities of
such series.
(g) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
by mailing written notice of such event by first-class mail, postage prepaid, to
all Holders of Securities of such series as their names and addresses appear in
the Security Register. Each notice shall include the name of the successor
Trustee with respect to the Securities of such series and the address of its
Corporate Trust Office.
Section 911. Acceptance of Appointment by Successor.
--------------------------------------
(a) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of all series, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of all sums owed to it, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers and
trust of the retiring Trustee and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee
hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee and
(3) shall add to or change any of the
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provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee, upon payment of all
sums owed to it, shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any instrument which fully vests in and confirm to such successor
Trustee all such rights, powers and trusts referred to in subsection (a) or (b)
of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
Section 912. Merger, Conversion, Consolidation or Succession to
Business.
--------------------------------------------------
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be successor of the Trustee hereunder, provided
such corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties thereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
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Section 913. Preferential Collection of Claims
Against Company.
---------------------------------
(a) Subject to subsection (b) of this Section, if the Trustee shall
be or shall become a creditor, directly or indirectly, secured or unsecured, of
the Company within three months prior to a default, as defined in subsection (c)
of this Section, or subsequent to such a default, then, unless and until such
default shall be cured, the Trustee shall set apart and hold in a special
account for the benefit of the Trustee individually, the Holders and the holders
of other indenture securities, as defined in subsection (c) of this Section:
(1) an amount equal to any and all reductions in the amount due and
owing upon any claim as such creditor in respect of principal or interest,
effected after the beginning of such three months' period and valid as
against the Company and its other creditors, except any such reduction
resulting from the receipt or disposition of any property described in
clause (2) of this paragraph, or from the exercise of any right of set-off
which the Trustee could have exercised if a petition in bankruptcy had been
filed by or against the Company upon the date of such default; and
(2) all property received by the Trustee in respect of any claims as
such creditor, either as security therefor, or in satisfaction or
composition thereof, or otherwise, after the beginning of such three
months' period, or an amount equal to the proceeds of any such property, if
disposed of, subject, however, to the rights, if any, of the Company and
its other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the
Trustee,
(1) to retain for its own account (A) payments made on account of any
such claim by any Person (other that the Company) who is liable thereon,
and (B) the proceeds of the bona fide sale of any such claim by the Trustee
to a third Person and (C) distributions made in cash, securities or other
property in respect of claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the Federal
Bankruptcy Act or applicable State laws;
(2) to realize, for its own account, upon any property held by it as
security for any such claim, if such property was so held prior to the
beginning of such three months' period;
(3) to realize, for its own account, but only to the extent of the
claim hereinafter mentioned, upon any property held by it as security for
any such claim, if such claim was
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created after the beginning of such three months' period and such property
was received as security therefor simultaneously with the creation thereof,
and if the Trustee shall sustain the burden of proving that at the time
such property was so received the Trustee had no reasonable cause to
believe that a default, as defined in subsection (c) of this Section, would
occur within three months; or
(4) to receive payment on any claim referred to in clause (2) or (3)
of this paragraph, against the release of any property held as security for
such claim as provided in such clause (2) or (3), as the case may be, to
the extent of the fair value of such property.
For the purposes of clauses (2), (3) and (4) of this paragraph, property
substituted after the beginning of such three months' period for property held
as security at the time of such substitution shall, to the extent of the fair
value of the property released, have the same status as the property released,
and, to the extent that any claim referred to in any of such paragraphs is
created in renewal of or in substitution for or for the purpose of repaying or
refunding any pre-existing claim of the Trustee as such creditor, such claim
shall have the same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and property
held in such special account and the proceeds thereof shall be apportioned among
the Trustee, the Holders and the holders of other indenture securities in such
manner that the Trustee, the Holders and the holders of other indenture
securities realize, as a result of payments from such special account and
payments of dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the Federal
Bankruptcy Act or applicable State law, the same percentage of their respective
claims, figured before crediting to the claim of the Trustee anything on account
of the receipt by it from the Company of the funds and property in such special
account and before crediting to the respective claims of the Trustee and the
Holders and the holders of other indenture securities dividends on claims filed
against the Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal Bankruptcy Act or applicable State law,
but after crediting thereon receipts on account of the indebtedness represented
by their respective claims from all sources other than from such dividends and
from the funds and property so held in such special account. As used in this
paragraph, with respect to any claim, the term "dividends" shall include any
distribution with respect to such claim, in bankruptcy or receivership or
proceedings for reorganization pursuant to the Federal Bankruptcy Act or
applicable State law, whether such distribution is made in cash, securities or
other property, but shall not include any such distribution with respect to the
secured portion, if any, of such claim. The court in which such bankruptcy,
receivership or
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proceedings for reorganization is pending shall have jurisdiction (1) to
apportion among the Trustee, the Holders and the holders of other indenture
securities, in accordance with the provisions of this paragraph, the funds and
property held in such special account and proceeds thereof, or (2) in lieu of
such apportionment, in whole or in part, to give to the provisions of this
paragraph due consideration in determining the fairness of the distributions to
be made to the Trustee and the Holders and the holders of other indenture
securities with respect to their respective claims, in which event it shall not
be necessary to liquidate or to appraise the value of any securities or other
property held in such special account or as security for any such claim, or to
make a specific allocation of such distributions as between the secured and
unsecured portions of such claims, or otherwise to apply to the provisions of
this paragraph as a mathematical formula.
Any Trustee which has resigned or been removed after the beginning of
such three months' period shall be subject to the provisions of this subsection
as though such resignation or removal had not occurred. If any Trustee has
resigned or been removed prior to the beginning of such three months' period, it
shall be subject to the provisions of this subsection if and only if the
following conditions exist:
(1) the receipt of property or reduction of claim, which would have
given rise to the obligation to account, if such Trustee had continued as
Trustee, occurred after the beginning of such three months' period; and
(2) such receipt of property or reduction of claim occurred within
three months after such resignation or removal.
(b) There shall be excluded from the operation of subsection (a) of
this Section a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under any
indenture, or any security or securities having a maturity of one year or
more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court of
competent jurisdiction or by this Indenture, for the purpose of preserving
any property which shall at any time be subject to the lien of this
Indenture or of discharging tax liens or other prior liens of encumbrances
thereon, if notice of such advances and of the circumstances surrounding
the making thereof is given to the Holders at the time and in the manner
provided in this Indenture;
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(3) disbursements made in the ordinary course of business in the
capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depositary, or other similar
capacity;
(4) an indebtedness created as a result of services rendered or
premises rented; or an indebtedness created as a result of goods or
securities sold in a cash transaction, as defined in subsection (c) of this
Section;
(5) the ownership of stock or of other securities of a corporation
organized under the provisions of Section 25(a) of the Federal Reserve Act,
as amended, which is directly or indirectly a creditor of the Company; and
(6) the acquisition, ownership, acceptance or negotiation of any
drafts, bills of exchange, acceptances or obligations which fall within the
classification of self-liquidating paper, as defined in subsection (c) of
this Section.
(c) For the purposes of this Section only:
(1) the term "default" means any failure to make payment in full of
the principal of or interest on any of the Securities or upon the other
indenture securities when and as such principal or interest becomes due and
payable;
(2) the term "other indenture securities" means securities upon which
the Company is an obligor outstanding under any other indenture (A) under
which the Trustee is also trustee, (B) which contains provisions
substantially similar to the provisions of this Section and (C) under which
a default exists at the time of the apportionment of the funds and property
held in such special account;
(3) the term "cash transaction" means any transaction in which full
payment for goods or securities sold is made within seven days after
delivery of the goods or securities in currency or in checks or other
orders drawn upon banks or bankers and payable upon demand;
(4) the term "self-liquidating paper" 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
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making, drawing, negotiating or incurring of the draft, bill of exchange,
acceptance or obligations;
(5) the term "Company" means any obligor upon the Securities; and
(6) the term "Federal Bankruptcy Act" means the Bankruptcy Act or
Title 11 of the United States Code.
Section 914. Appointment of Authenticating Agent.
-----------------------------------
The Trustee may appoint an Authenticating Agent or Agents with respect
to the Securities of one or more series, or any Tranche thereof, which shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series or Tranche issued upon original issuance, exchange, registration of
transfer or partial redemption thereof or pursuant to Section 306, and
Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any State or territory thereof
or the District of Columbia or the Commonwealth of Puerto Rico, authorized under
such laws to act as Authenticating Agent, having a combined capital and surplus
of not less than $25,000,000 and subject to supervision or examination by
Federal or State authority. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Authenticating Agent shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to
be eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the
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execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice
of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company. Any successor Authenticating
Agent upon acceptance of its appointment hereunder, shall become vested with all
the rights, powers and duties of its predecessor hereunder, with like effect as
if originally named as an Authenticating Agent. No successor Authenticating
Agent shall be appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
The provisions of Sections 308, 904 and 905 shall be applicable to
each Authenticating Agent.
If an appointment with respect to the Securities of one or more
series, or any Tranche thereof, shall be made pursuant to this Section, the
Securities of such series or Tranche may have endorsed thereon, in addition to
the Trustee's certificate of authentication, an alternate certificate of
authentication substantially in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
--------------------------------
As Trustee
By
------------------------------
As Authenticating Agent
By
-----------------------------
Authorized Signatory
If all the Securities of a series may not be originally issued at one
time, and if the Trustee does not have an office capable of authenticating
Securities upon original issuance
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located in a Place of Payment where the Company wishes to have Securities of
such series authenticated upon original issuance, the Trustee, if so requested
by the Company in writing (which writing need not comply with Section 102 and
need not be accompanied by an Opinion of Counsel), shall appoint, in accordance
with this Section and in accordance with such procedures as shall be acceptable
to the Trustee, an Authenticating Agent (which, if so requested by the Company,
may be an Affiliate of the Company) having an office in a Place of Payment
designated by the Company with respect to such series of Securities.
ARTICLE TEN
Holders' Lists and Reports by Trustee and Company
-------------------------------------------------
Section 1001. Company to Furnish Trustee Names and
Addresses of Holders.
--------------------
The Company shall furnish or cause to be furnished to the Trustee
(a) semiannually, not later than April 1 and October 1, in
each year, a list, in such form as the Trustee may reasonably require,
containing all the information in the possession or control of the Company,
or any of its Paying Agents other than the Trustee, as to the names and
addresses of the Holders as of the preceding March 15 or September 15, as
the case may be, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
provided, however, that, so long as the Trustee is the Security Registrar, no
such list shall be required to be furnished.
Section 1002. Preservation of Information;
Communications to Holders.
----------------------------
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders (1) contained in the most recent
list furnished to the Trustee as provided in Section 1001 and (2) received by
the Trustee in any other capacity. The Trustee may (1) destroy any list
furnished to it as provided in Section 1001 upon receipt of a new list so
furnished, (2) destroy any information received by it as Paying Agent (if so
acting) hereunder upon delivering to itself as Trustee, not earlier than
March 15 or September 15, a list containing the names and addresses of
the Holders obtained from such information since the delivery of the next
previous list, if
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any, and (3) destroy any list delivered to itself as Trustee which was compiled
from information received by it as Paying Agent (if so acting) hereunder upon
the receipt of a new list so delivered.
(b) If three or more Holders (herein referred to as "applicants")
apply in writing to the Trustee, and furnish to the Trustee reasonable proof
that each such applicant has owned a Security for a period of at least six
months preceding the date of such application, and such application states that
the applicants desire to communicate with other Holders with respect to their
rights under this Indenture or under the Securities and is accompanied by a copy
of the form of proxy or other communication which such applicants propose to
transmit, then the Trustee shall, within five business days after the receipt of
such application, at its election, either
(1) afford such applicants access to the information preserved at the
time by the Trustee in accordance with Section 1002(a), or
(2) inform such applicants as to the approximate number of Holders
whose names and addresses appear in the information preserved at the time
by the Trustee in accordance with Section 1002(a), and as to the
approximate cost of mailing to such Holders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder whose name and address appear in the information
preserved at the time by the Trustee in accordance with Section 1002(a) a copy
of the form of proxy or other communication which is specified in such request,
with reasonable promptness after a tender to the Trustee by such applicants of
the material to be mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless within five days after such tender the
Trustee shall mail to such applicants and file with the Commission, together
with a copy of the material to be mailed, a written statement to the effect
that, in the opinion of the Trustee, such mailing would be contrary to the best
interest of the Holders or would be in violation of applicable law. Such
written statement shall specify the basis of such opinion. If the Commission,
after opportunity for a hearing upon the objections specified in the written
statement so filed, shall enter an order refusing to sustain any of such
objections or if, after the entry of an order sustaining one or more of such
objections, the Commission shall find, after notice and opportunity for hearing,
that all the objections so sustained have been met and shall enter an order so
declaring, the Trustee shall mail copies of such material to all such Holders
with reasonable promptness after the entry of such order and the renewal of such
tender by such applicants as aforesaid; otherwise the Trustee shall be relieved
of any
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obligation or duty to such applicants respecting their application.
(c) Every Holder of Securities, by receiving and holding the same,
shall be deemed to have agreed with the Company and the Trustee that neither the
Company nor the Trustee nor any agent of either of them shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the Holders in accordance with Section 1002(b), regardless of
the source from which such information was derived, and that the Trustee shall
not be held accountable by reason of mailing any material pursuant to a request
made under Section 1002(b).
Section 1003. Reports by Trustee.
------------------
(a) Within 60 days after May 15 of each year commencing with the year
1997, the Trustee shall transmit by mail to the Holders, as provided in
subsection (c) of this Section, a brief report dated as of such May 15 with
respect to the following (but if no event has occurred within such period, no
report need be transmitted):
(1) any change in its eligibility under Section 909 and its
qualifications under Section 908;
(2) the creation of or any material change to a relationship specified
in paragraphs (1) through (10) of Section 908(c);
(3) the character and amount of any advances (and if the Trustee
elects so to state, the circumstances surrounding the making thereof) made
by the Trustee (as such) which remain unpaid on the date of such report,
and for the reimbursement of which it claims or may claim a lien or charge,
prior to that of the Securities, on any property or funds held or collected
by it as Trustee, except that the Trustee shall not be required (but may
elect) to report such advances if such advances so remaining unpaid
aggregate not more than 1/2 of 1% of the principal amount of the Securities
Outstanding on the date of such report;
(4) the amount, interest rate and maturity date of all other
indebtedness owing by the Company (or by any other obligor on the
Securities) to the Trustee in its individual capacity, on the date of such
report, with a brief description of any property held as collateral
security therefor, except an indebtedness based upon a creditor
relationship arising in any manner described in Section 913(b)(2), (3), (4)
or (6);
(5) any change to the property and funds, if any, physically in the
possession of the Trustee as such on the date of such report;
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(6) any additional issue of Securities which the Trustee has not
previously reported; and
(7) any action taken by the Trustee in the performance of its duties
hereunder which it has not previously reported and which in its opinion
materially affects the Securities or the Securities of any series, except
action in respect of a default, notice of which has been or is to be
withheld by the Trustee in accordance with Section 902.
(b) The Trustee shall transmit to the Holders, as provided in
subsection (c) of this Section, a brief report with respect to the character and
amount of any advances (and if the Trustee elects so to state, the circumstances
surrounding the making thereof) made by the Trustee (as such) since the date of
the last report transmitted pursuant to subsection (a) of this Section (or if no
such report has yet been so transmitted, since the date of execution of this
instrument) for the reimbursement of which it claims or may claim a lien or
charge, prior to that of the Securities, on property or funds held or collected
by it as Trustee and which it has not previously reported pursuant to this
subsection, except that the Trustee shall not be required (but may elect) to
report such advances if such advances remaining unpaid at any time aggregate 10%
or less of the principal amount of the Securities Outstanding at such time, such
report to be transmitted within 90 days after such time.
(c) Reports pursuant to this Section shall be transmitted by mail,
(1) to all Holders, as their names and addresses appear in the
Security Register; and
(2) except in the case of reports pursuant to subsection (b) of this
Section, to each Holder whose name and address is preserved at the time by
the Trustee, as provided in Section 1002(a).
(d) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when any Securities are listed on any stock exchange.
Section 1004. Reports by Company.
------------------
The Company shall:
(a) file with the Trustee, within 45 days after the Company is
required to file the same with the Commission, copies of the annual reports and
of the information, documents and other reports (or copies of such portions of
any of the foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Company may be required to file with the
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Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934; or, if the Company is not required to file information, documents
or reports pursuant to either of said Sections, then it shall file with the
Trustee and the Commission, in accordance with the rules and regulations
prescribed from time to time by the Commission, such of the supplementary and
periodic information, documents and reports which may be required pursuant to
Section 13 of the Securities Exchange Act of 1934 in respect of a security
listed and registered on a national securities exchange as may be prescribed
from time to time in such rules and regulations;
(b) file with the Trustee and the Commission, in accordance with rules
and regulation prescribed from time to time by the Commission, such additional
information, documents and reports with respect to compliance by the Company
with the conditions and covenants of this Indenture as may be required from time
to time by such rules and regulations; and
(c) transmit, within 30 days after the filing thereof with the
Trustee, to the Holders, in the manner and to the extent provided in Section
1003(c) with respect to reports pursuant to Section 1003(a), such summaries of
any information, documents and reports required to be filed by the Company
pursuant to paragraphs (a) and (b) of this Section as may be required by rules
and regulations prescribed from time to time by the Commission.
ARTICLE ELEVEN
Consolidation, Merger, Conveyance, Transfer or Lease
----------------------------------------------------
Section 1101. Company May Consolidate, etc., Only on
Certain Terms.
--------------------------------------
The Company shall not consolidate with or merge into any other
Corporation or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, unless
(a) the Corporation formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or transfer,
or which leases, the properties and assets of the Company substantially as
an entirety shall be a Person organized and existing under the laws of the
United States of America, any State thereof or the District of Columbia,
and shall expressly assume, by an indenture supplemental hereto, executed
and delivered to the Trustee, in form satisfactory to the Trustee, the due
and punctual payment of the principal of and premium, if any, and interest,
if any, on all Outstanding Securities and the performance of every covenant
of this Indenture on the part of the Company to be performed or observed;
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(b) immediately after giving effect to such transaction and treating
any indebtedness for borrowed money which becomes an obligation of the
Company as a result of such transaction as having been incurred by the
Company at the time of such transaction, no Event of Default, and no event
which, after notice or lapse of time or both, would become an Event of
Default, shall have occurred and be continuing; and
(c) the Company, the Corporation formed by such consolidation or into
which the Company is merged or the Person which acquires by conveyance or
transfer shall have delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and such indenture supplemental hereto
complies with this Article and that all conditions precedent herein
provided for relating to such transactions have been complied with.
Section 1102. Successor Corporation Substituted.
---------------------------------
Upon any consolidation by the Company with or merger by the Company
into any other Corporation or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety in accordance
with Section 1101, the successor Corporation formed by such consolidation or
into which the Company is merged or the Person to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with the
same effect as if such successor Person had been named as the Company herein,
and thereafter, except in the case of a lease, the predecessor Person shall be
relieved of all obligations and covenants under this Indenture and the
Securities Outstanding hereunder.
ARTICLE TWELVE
Supplemental Indentures
-----------------------
Section 1201. Supplemental Indentures Without Consent
of Holders.
---------------------------------------
Without the consent of any Holders, the Company and the Trustee, at
any time and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any of the
following purposes:
(a) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company herein
and in the Securities; or
(b) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities,
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or any Tranche thereof (and if such covenants are to be for the benefit of
less than all Securities, stating that such covenants are expressly being
included solely for the benefit of such series or Tranche) or to surrender
any right or power herein conferred upon the Company; or
(c) to add any additional Events of Default with respect to all or any
series of Securities Outstanding hereunder; or
(d) to change or eliminate any provision of this Indenture or to add
any new provision to this Indenture; provided, however, that if such
change, elimination or addition shall materially and adversely affect the
interests of the Holders of Securities of any series or Tranche, such
change, elimination or addition shall become effective with respect to such
series or Tranche only when no Security of such series or Tranche remains
Outstanding; or
(e) to provide collateral security for the Securities; or
(f) to establish the form or terms of Securities of any series or
Tranche as contemplated by Sections 201 and 301; or
(g) to evidence and provide for the acceptance of appointment
hereunder by a separate or successor Trustee with respect to the Securities
of one or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant
to the requirements of Section 911(b); or
(h) to provide for the procedures required to permit the Company to
utilize, at its option, a non-certificated system registration for all, or
any series or Tranche of, the Securities; or
(i) to change any place or places where (1) the principal of and
premium, if any, and interest, if any, on all or any series of Securities,
or any Tranche thereof, shall be payable, (2) all or any series of
Securities, or any Tranche thereof, may be surrendered for registration of
transfer, (3) all or any series of Securities, or any Tranche thereof, may
be surrendered for exchange and (4) notices and demands to or upon the
Company in respect of all or any series of Securities, or any Tranche
thereof, and this Indenture may be served; provided, however, that any such
place is located in New York, New York, Birmingham, Alabama, Chicago,
Illinois, Atlanta, Georgia, Jacksonville, Florida, Charlotte, North
Carolina or Los Angeles, California or in any other city located in the
United States
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of America which has a population of at least 1,000,000 inhabitants; or
(j) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided that such other provisions
shall not adversely affect the interests of the Holders of Securities of
any series or Tranche in any material respect.
Without limiting the generality of the foregoing, if the Trust
Indenture Act shall be amended at any time or times after the date of the
execution and delivery of this Indenture and
(x) if any such amendment shall require one or more changes to any
provisions hereof or the incorporation herein of any additional provisions,
or shall by operation of law be deemed to effect such changes or
incorporate such provisions, this Indenture shall be deemed to have been
amended so as to conform to such amendment to the Trust Indenture Act, and
the Company and the Trustee may, without the consent of any Holders, enter
into an indenture supplemental hereto to effect or evidence such changes or
additional provisions; or
(y) if any such amendment shall permit one or more changes to, or
the elimination of, any provisions hereof which, at the date of the
execution and delivery hereof, are required by the Trust Indenture Act to
be contained herein, this Indenture shall be deemed to have been amended to
effect such changes or elimination, and the Company and the Trustee may,
without the consent of any Holders, enter into an indenture supplemental
hereto to effect such changes or elimination; or
(z) if, by reason of any such amendment, it shall be no longer
necessary for this Indenture to contain one or more provisions which, at
the date of the execution and delivery hereof, are required by the Trust
Indenture Act to be contained herein, the Company and the Trustee may,
without the consent of any Holders, enter into an indenture supplemental
hereto to effect the elimination of such provisions.
Section 1202. Supplemental Indentures with Consent of
Holders.
---------------------------------------
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Securities of all series then Outstanding
under this Indenture, considered as one class, by Act of said Holders delivered
to the Company and the Trustee, the Company, when authorized by a Board
Resolution, and
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the Trustee may enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to, or changing in any manner or
eliminating any of the provisions of, this Indenture; provided, however, that if
there shall be Securities of more than one series Outstanding hereunder and if a
proposed supplemental indenture shall directly affect the rights of the Holders
of Securities of one or more, but less than all, of such series, then the
consent only of the Holders of a majority in aggregate principal amount of the
Outstanding Securities of all series so directly affected, considered as one
class, shall be required; and provided, further, that if the Securities of any
series shall have been issued in more than one Tranche and if the proposed
supplemental indenture shall directly affect the rights of the Holders of
Securities of one or more, but less than all, of such Tranches, then the consent
only of the Holders of a majority in aggregate principal amount of the
Outstanding Securities of all Tranches so directly affected, considered as one
class, shall be required; and provided, further, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding Security
of each series or Tranche so directly affected,
(a) change the Stated Maturity of the principal of, or any installment
of principal or interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon (or the amount of any installment of
interest thereon) or any premium payable upon the redemption thereof, or change
the method of calculating the rate of interest thereon, or reduce the amount of
the principal of an Original Issue Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 802, or the coin or currency (or other property) 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 Stated
Maturity thereof (or, in the case of redemption, on or after the Redemption
Date), or
(b) reduce the percentage in principal amount of the Outstanding
Security of such series or Tranche, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is required for
any waiver of compliance with any provision of this Indenture or of any default
hereunder and its consequences, or reduce the requirements of Section 1304 for
quorum or voting, or
(c) modify any of the provisions of this Section, Section 607 or
Section 813, except to increase the percentages in principal amount referred to
in this Section or such other Sections or to provide that other provisions of
this Indenture cannot be modified or waived without the consent of the Holder of
each Outstanding Security affected thereby; provided, however, that this clause
shall not be deemed to require the consent of any Holder with respect to changes
in the references to "the Trustee" and concomitant changes in this Section, or
the deletion
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of this proviso, in accordance with the requirements of Sections 911(b) and
1201(g).
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 of one or more
Tranches thereof, or which modifies the rights of the Holders of Securities of
such series or Tranches with respect to such covenant or other provision, shall
be deemed not to affect the rights under this Indenture of the Holders of
Securities of any other series or Tranche.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
Section 1203. Execution of Supplemental Indentures.
------------------------------------
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 901) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties, immunities or liabilities under this Indenture or
otherwise.
Section 1204. Effect of Supplemental Indentures.
---------------------------------
Upon the execution of any supplemental indenture under this Article
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every
Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby. Any supplemental indenture permitted by this
Article may restate this Indenture in its entirety, and, upon the execution and
delivery thereof, any such restatement shall supersede this Indenture as
theretofore in effect for all purposes.
Section 1205. Conformity With Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
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Section 1206. Reference in Securities to Supplemental
Indentures.
---------------------------------------
Securities of any series, or any Tranche thereof, authenticated and
delivered after the execution of any supplemental indenture pursuant to this
Article may, and shall if required by the Trustee, bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Securities of any series, or
any Tranche thereof, so modified as to conform, in the opinion of the Trustee
and the Company, to any such supplemental indenture may be prepared and executed
by the Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities of such series or Tranche.
Section 1207. Modification Without Supplemental
Indenture.
---------------------------------
If the terms of any particular series of Securities shall have been
established in a Board Resolution or an Officers' Certificate pursuant to a
Board Resolution as contemplated by Section 301, and not in an indenture
supplemental hereto, additions to, changes in or the elimination of any of such
terms may be effected by means of a supplemental Board Resolution or Officers'
Certificate, as the case may be, delivered to, and accepted by, the Trustee;
provided, however, that such supplemental Board Resolution or Officers'
Certificate shall not be accepted by the Trustee or otherwise be effective
unless all conditions set forth in this Indenture which would be required to be
satisfied if such additions, changes or elimination were contained in a
supplemental indenture shall have been appropriately satisfied. Upon the
acceptance thereof by the Trustee, any such supplemental Board Resolution or
Officers' Certificate shall be deemed to be a "supplemental indenture" for
purposes of Section 1204 and 1206.
ARTICLE THIRTEEN
Meetings of Holders; Action Without Meeting
-------------------------------------------
Section 1301. Purposes for Which Meetings
May Be Called.
---------------------------
A meeting of Holders of Securities of one or more, or all, series, or
any Tranche or Tranches thereof, may be called at any time and from time to time
pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series or Tranches.
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Section 1302. Call, Notice and Place of Meetings.
----------------------------------
(a) The Trustee may at any time call a meeting of Holders of
Securities of one or more, or all, series, or any Tranche or Tranches thereof,
for any purpose specified in Section 1301, to be held at such time and at such
place in the Borough of Manhattan, The City of New York, as the Trustee shall
determine, or, with the approval of the Company, at any other place. Notice of
every such meeting setting forth the time and place of such meeting and in
general terms the action proposed to be taken at such meeting, shall be given,
in the manner provided in Section 106, not less than 21 nor more than 180 days
prior to the date fixed for the meeting.
(b) If the Trustee shall have been requested to call a meeting of the
Holders of Securities of one or more, or all, series, or any Tranche or Tranches
thereof, by the Company or by the Holders of 33% in aggregate principal amount
of all such series and Tranches, considered as one class, for any purpose
specified in Section 1301, by written request setting forth in reasonable detail
the action proposed to be taken at the meeting, and the Trustee shall not have
given the notice of such meeting within 21 days after receipt of such request or
shall not thereafter proceed to cause the meeting to be held as provided herein,
then the Company or the Holders of Securities of such series and Tranches in the
amount above specified, as the case may be, may determine the time and the place
in the Borough of Manhattan, The City of New York, or in such other place as
shall be determined or approved by the Company, for such meeting and may call
such meeting for such purposes by giving notice thereof as provided in
subsection (a) of this Section.
(c) Any meeting of Holders of Securities of one or more, or all,
series, or any Tranche or Tranches thereof, shall be valid without notice if the
Holders of all Outstanding Securities of such series or Tranche are present in
person or by proxy and if representatives of the Company and the Trustee are
present, or if notice is waived in writing before or after the meeting by the
Holders of all Outstanding Securities of such series or Tranche, or by such of
them as are not present at the meeting in person or by proxy, and by the Company
and the Trustee.
Section 1303. Persons Entitled to Vote at Meetings.
------------------------------------
To be entitled to vote at any meeting of Holders of Securities of one
or more, or all, series, or any Tranche or Tranches thereof, a Person shall be
(a) a Holder of one or more Outstanding Securities of such series or Tranches,
or (b) a Person appointed by an instrument in writing as proxy for a Holder or
Holders of one or more Outstanding Securities of such series or Tranches by such
Holder or Holders. The only Persons who shall be entitled to attend any meeting
of Holders of Securities of any series or Tranche shall be the Person entitled
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to vote at such meeting and their counsel, any representatives of the Trustee
and its counsel and any representatives of the Company and its counsel.
Section 1304. Quorum; Action.
--------------
The Persons entitled to vote a majority in aggregate principal amount
of the Outstanding Securities of the series and Tranches with respect to which a
meeting shall have been called as hereinbefore provided, considered as one
class, shall constitute a quorum for a meeting of Holders of Securities of such
series and Tranches; provided, however, that if any action is to be taken at
such meeting which this Indenture expressly provides may be taken by the Holders
of a specified percentage, which is less than a majority, in principal amount of
the Outstanding Securities of such series and Tranches, considered as one class,
the Persons entitled to vote such specified percentage in principal amount of
the Outstanding Securities of such series and Tranches, considered as one class,
shall constitute a quorum. In the absence of a quorum within one hour of the
time appointed for any such meeting, the meeting shall, if convened at the
request of Holders of Securities of such series and Tranches, be dissolved. In
any other case the meeting may be adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment of
such meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10 days
as determined by the chairman of the meeting prior to the adjournment of such
adjourned meeting. Except as provided by Section 1305(e), notice of the
reconvening of any adjourned meeting shall be given as provided in Section
1302(a) not less than five days prior to the date on which the meeting is
scheduled to be reconvened. Notice of the reconvening of an adjourned meeting
shall state expressly the percentage, as provided above, of the principal amount
of the Outstanding Securities of such series and Tranches which shall constitute
a quorum.
Except as limited by Section 1202, any resolution presented to a
meeting or adjourned meeting duly reconvened at which a quorum is present as
aforesaid may be adopted only by the affirmative vote of the Holders of a
majority in aggregate principal amount of the Outstanding Securities of the
series and Tranches with respect to which such meeting shall have been called,
considered as one class; provided, however, that, except as so limited, any
resolution with respect to any action which this Indenture expressly provides
may be taken by the Holders of a specified percentage, which is less than a
majority, in principal amount of the Outstanding Securities of such series and
Tranches, considered as one class, may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of such specified percentage in principal amount
of the Outstanding Securities of such series and Tranches, considered as one
class.
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Any resolution passed or decision taken at any meeting of Holders of
Securities duly held in accordance with this Section shall be binding on all the
Holders of Securities of the series and Tranches with respect to which such
meeting shall have been held, whether or not present or represented at the
meeting.
Section 1305. Attendance at Meetings; Determination of
Voting Rights; Conduct and Adjournment
of Meetings.
-----------------------------------------
(a) Attendance at meetings of Holders of Securities may be in person
or by proxy; and, to the extent permitted by law, any such proxy shall remain in
effect and be binding upon any future Holder of Securities with respect to which
it was given unless and until specifically revoked by the Holder or future
Holder of such Securities before being voted.
(b) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities in regard to proof of the holding of such
Securities and of the appointment of proxies and in regard to the appointment
and duties of inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall deem appropriate. Except as
otherwise permitted or required by any such regulations, the holding of
Securities shall be proved in the manner specified in Section 104 and the
appointment of any proxy shall be proved in the manner specified in Section 104.
Such regulations may provide that written instruments appointing proxies,
regular on their face, may be presumed valid and genuine without the proof
specified in Section 104 or other proof.
(c) The Trustee shall, by an instrument in writing appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders as provided in Section 1302(b), in which case the Company
or the Holders of Securities of the series and Tranches calling the meeting, as
the case may be, shall in like manner appoint a temporary chairman. A permanent
chairman and a permanent secretary of the meeting shall be elected by vote of
the persons entitled to vote a majority in aggregate principal amount of the
Outstanding Securities of all series and Tranches represented at the meeting,
considered as one class.
(d) At any meeting each Holder or proxy shall be entitled to one vote
for each $1,000 principal amount of Securities held or represented by him;
provided, however, that no vote shall be cast or counted at any meeting in
respect of any Security challenged as not Outstanding and ruled by the chairman
of the meeting to be not Outstanding. The chairman of the meeting shall have no
right to vote, except as a Holder of a Security or proxy.
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(e) Any meeting duly called pursuant to Section 1302 at which a quorum
is present may be adjourned from time to time by Persons entitled to vote a
majority in aggregate principal amount of the Outstanding Securities of all
series and Tranches represented at the meeting considered as one class; and the
meeting may be held as so adjourned without further notice.
Section 1306. Counting Votes and Recording Action of
Meetings.
--------------------------------------
The vote upon any resolution submitted to any meeting of Holders shall
be by written ballots on which shall be subscribed the signatures of the Holders
or of their representatives by proxy and the principal amounts and serial
numbers of the Outstanding Securities, of the series and Tranches with respect
to which the meeting shall have been called, held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports of all votes cast at the meeting. A record of the proceedings of each
meeting of Holders shall be prepared by the secretary of the meeting and there
shall be attached to said record the original reports of the inspectors of votes
on any vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1302 and, if
applicable, Section 1304. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
Section 1307. Action Without Meeting.
----------------------
In lieu of a vote of Holders at a meeting as hereinbefore contemplated
by this Article, any request, demand, authorization, direction, notice, consent,
waiver or other action may be made, given or taken by Holders by written
instruments as provided in Section 104.
Section 1308. Fixing of Record Date.
---------------------
Anything in this Article to the contrary notwithstanding, the Company
may, but shall not be obliged to, fix a record date for the purpose of
determining the Holders of Securities entitled to attend and vote in person or
by proxy at a meeting of Holders of Securities held pursuant to this Article or
to consent to any modification, alteration or other action. If a record date is
fixed, those persons who were Holders of Securities at the close of business of
the Trustee on such record
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date (or their duly designated proxies), and only those Persons, shall be
entitled to attend and vote in person or by proxy at a meeting of Holders of
Securities held pursuant to this Article or to consent to such modification,
alteration or other action or to revoke any proxy or consent previously given,
whether or not such Persons continue to be Holders of Securities after such
record date.
ARTICLE FOURTEEN
Immunity of Incorporators, Stockholders,
Officers and Directors
----------------------------------------
Section 1401. Liability Solely Corporate.
--------------------------
No recourse shall be had for the payment of the principal of or
premium, if any, or interest, if any, on any Securities, or any part thereof, or
for any claim based thereon or otherwise in respect thereof, or of the
indebtedness represented thereby, or upon any obligation, covenant or agreement
under this Indenture, against any incorporator, stockholder, officer or
director, as such, past, present or future of the Company or of any predecessor
or successor Corporation (either directly or through the Company or a
predecessor or successor Corporation), whether by virtue of any constitutional
provision, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly agreed and understood that this
Indenture and all the Securities are solely corporate obligations, and that no
personal liability whatsoever shall attach to, or be incurred by, any
incorporator, stockholder, officer or director, past, present or future, of the
Company or of any predecessor or successor Corporation, either directly or
indirectly through the Company or any predecessor or successor Corporation,
because of the indebtedness hereby authorized or under or by reason of any of
the obligations, covenants or agreements contained in this Indenture or in any
of the Securities or to be implied herefrom or therefrom, and that any such
personal liability is hereby expressly waived and released as a condition of,
and as part of the consideration for, the execution of this Indenture and the
issuance of the Securities.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
ENERGEN CORPORATION
By: /s/ Wm. Michael Warren, Jr.
--------------------------------------
Name: Wm. Michael Warren, Jr.
Title: President
ATTEST:
/s/ J. David Woodruff, Jr.
- ----------------------------------
THE BANK OF NEW YORK, as trustee
By: /s/ Sandra Carreker
--------------------------------------
Name: Sandra Carreker
Title: Agent
ATTEST:
/s/ William A. Lamm
- ----------------------------------
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STATE OF ALABAMA )
) SS.:
COUNTY OF JEFFERSON )
On the 17th day of September, 1996, before me personally came
W. Michael Warren, Jr., to me known, who, being by me duly sworn, did depose and
say that (s)he is a President of Energen Corporation, one of the corporations
described in and which executed the foregoing instrument; that (s)he knows the
seal of said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board of Directors of
said corporation, and that (s)he signed his/her name thereto by like authority.
/s/ Margaret G. Priola
-----------------------------------
Notary Public
STATE OF FLORIDA )
) SS.:
COUNTY OF DUVAL )
On the 13th day of September, 1996, before me personally came
Sandra Carreker, to me known, who, being by me duly sworn, did depose and
say that (s)he is a Agent of The Bank of New York, one of the corporations
described in and which executed the foregoing instrument; that (s)he knows the
seal of said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board of Directors of
said corporation, and that (s)he signed his/her name thereto by like authority.
/s/ Deborah T. Daly
-----------------------------------
Notary Public
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