EXHIBIT 4.1
_______________________________________________________________
_______________________________________________________________
____________________
KELSEY-HAYES COMPANY, as Issuer,
and
VARITY CORPORATION, as Guarantor,
and
MANUFACTURERS AND TRADERS TRUST COMPANY, as Trustee
____________________
INDENTURE
Dated as of , 1995
____________________
Senior Debt Securities
_______________________________________________________________
_______________________________________________________________
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture dated as of , 1995
Trust Indenture Indenture
Act Section Section
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(S) 310(a)(1) ........................................ 7.11
(a)(2) ........................................ 7.11
(a)(3) ........................................ N.A.
(a)(4) ........................................ N.A.
(a)(5) ........................................ 7.11
(b) ........................................ 7.11; 11.2
(c) ........................................ N.A.
(S) 311(a) ........................................ 7.12
(b) ........................................ 7.12
(c) ........................................ N.A.
(S) 312(a) ........................................ 2.6
(b) ........................................ 11.3
(c) ........................................ 11.3
(S) 313(a) ........................................ 7.7
(b) ........................................ 7.7
(c) ........................................ 7.7; 11.2
(d) ........................................ 7.7
(S) 314(a) ........................................ 4.4; 4.5; 11.2
(b) ........................................ N.A.
(c)(1) ........................................ 11.4
(c)(2) ........................................ 11.4
(c)(3) ........................................ N.A.
(d) ........................................ N.A.
(e) ........................................ 11.5
(f) ........................................ N.A.
(S) 315(a) ........................................ 7.1(b)
(b) ........................................ 7.5; 11.2
(c) ........................................ 7.1(a)
(d) ........................................ 7.1(c)
(e) ........................................ 6.11
(S) 316(a) (last
sentence) ........................................ 2.9
(a)(1)(A) ........................................ 6.5
(a)(1)(B) ........................................ 6.4
(a)(2) ........................................ N.A.
(b) ........................................ 6.7
(c) ........................................ N.A.
(S) 317(a)(1) ........................................ 6.8
(a)(2) ........................................ 6.9
(b) ........................................ 2.5
(S) 318(a) ........................................ 11.1
(b) ........................................ N.A.
(c) ........................................ 11.1
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Note: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture.
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TABLE OF CONTENTS
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Page
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ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1. Definitions..................................... 1
Section 1.2. Incorporation by Reference of Trust
Indenture Act................................. 9
Section 1.3. Rules of Construction........................... 10
ARTICLE 2
THE SECURITIES
Section 2.1. Forms Generally................................. 10
Section 2.2. Title, Terms and Denominations.................. 11
Section 2.3. Execution, Authentication, Delivery
and Dating.................................... 15
Section 2.4. Registrar and Paying Agent...................... 17
Section 2.5. Paying Agent To Hold Money in Trust............. 17
Section 2.6. Securityholder Lists............................ 18
Section 2.7. Transfer and Exchange........................... 18
Section 2.8. Replacement Securities.......................... 19
Section 2.9. Outstanding Securities;
Determination of Holders' Action.............. 20
Section 2.10. Temporary Securities............................ 20
Section 2.11. Cancellation.................................... 21
Section 2.12. Payment of Interest; Defaulted
Interest...................................... 21
Section 2.13. CUSIP Number.................................... 22
Section 2.14. Deposit of Moneys............................... 22
Section 2.15. Persons Deemed Owners........................... 22
Section 2.16. Computation of Interest......................... 23
Section 2.17. Global Securities............................... 23
ARTICLE 3
REDEMPTION OF SECURITIES
Section 3.1. Notices to the Trustee.......................... 24
Section 3.2. Selection of Securities To Be
Redeemed...................................... 24
Section 3.3. Notice of Redemption............................ 25
Section 3.4. Effect of Notice of Redemption.................. 26
Section 3.5. Deposit of Redemption Price..................... 26
Section 3.6. Securities Redeemed or Purchased in
Part.......................................... 27
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ARTICLE 4
COVENANTS
Section 4.1. Payment of Securities........................... 27
Section 4.2. Maintenance of Office or Agency................. 28
Section 4.3. Corporate Existence............................. 28
Section 4.4. Compliance Certificate.......................... 29
Section 4.5. SEC Reports..................................... 30
Section 4.6. Waiver of Stay, Extension or Usury
Laws.......................................... 31
Section 4.7. Limitation on Liens............................. 31
Section 4.8. Limitation on Sale and Lease-Back
Transactions.................................. 32
ARTICLE 5
SUCCESSOR CORPORATION
Section 5.1. When Company and Guarantor May
Merge, etc.................................... 33
Section 5.2. Successor Substituted........................... 34
ARTICLE 6
REMEDIES
Section 6.1. Events of Default............................... 35
Section 6.2. Acceleration.................................... 37
Section 6.3. Other Remedies.................................. 39
Section 6.4. Waiver of Past Defaults......................... 39
Section 6.5. Control by Majority............................. 39
Section 6.6. Limitation on Suits............................. 40
Section 6.7. Right of Holders To Receive Payment............. 41
Section 6.8. Collection Suit by Trustee...................... 41
Section 6.9. Trustee May File Proofs of Claim................ 41
Section 6.10. Priorities...................................... 42
Section 6.11. Undertaking for Costs........................... 42
Section 6.12. Restoration of Rights and Remedies.............. 43
ARTICLE 7
TRUSTEE
Section 7.1. Duties.......................................... 43
Section 7.2. Rights of Trustee............................... 44
Section 7.3. Individual Rights of Trustee.................... 46
Section 7.4. Trustee's Disclaimer............................ 46
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Section 7.5. Notice of Default............................... 46
Section 7.6. Money Held in Trust............................. 46
Section 7.7. Reports by Trustee to Holders................... 47
Section 7.8. Compensation and Indemnity...................... 47
Section 7.9. Replacement of Trustee.......................... 48
Section 7.10. Successor Trustee by Merger, etc................ 50
Section 7.11. Eligibility; Disqualification................... 51
Section 7.12. Preferential Collection of Claims
Against Company............................... 51
ARTICLE 8
SATISFACTION AND DISCHARGE OF INDENTURE
Section 8.1. Termination of the Company's and the
Guarantor's Obligations....................... 51
Section 8.2. Legal Defeasance and Covenant
Defeasance.................................... 53
Section 8.3 Application of Trust Money...................... 57
Section 8.4. Repayment to Company............................ 57
Section 8.5. Reinstatement................................... 58
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.1. Without Consent of Holders...................... 58
Section 9.2. With Consent of Holders......................... 59
Section 9.3. Compliance with Trust Indenture Act............. 61
Section 9.4. Revocation and Effect of Consents............... 61
Section 9.5. Notation on or Exchange of
Securities.................................... 62
Section 9.6. Trustee May Sign Amendments, etc................ 63
ARTICLE 10
GUARANTEE
Section 10.1. Unconditional Guarantee ........................ 63
Section 10.2. Execution of Guarantee ......................... 64
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ARTICLE 11
MISCELLANEOUS
Section 11.1. Trust Indenture Act of 1939..................... 65
Section 11.2. Notices......................................... 65
Section 11.3. Communication by Holders with Other
Holders....................................... 67
Section 11.4. Certificate and Opinion as to
Conditions Precedent.......................... 67
Section 11.5. Statements Required in Certificate
or Opinion.................................... 67
Section 11.6. Rules by Trustee, Paying Agent,
Registrar..................................... 68
Section 11.7. Governing Law................................... 68
Section 11.8. No Interpretation of Other
Agreements.................................... 68
Section 11.9. No Recourse Against Others...................... 68
Section 11.10. Successors...................................... 68
Section 11.11. Duplicate Originals............................. 69
Section 11.12. Separability.................................... 69
Section 11.13. Table of Contents, Headings, etc................ 69
Section 11.14. Benefits of Indenture........................... 69
SIGNATURES......................................................... 70
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INDENTURE, dated as of , 1995, among
KELSEY-HAYES COMPANY, a Delaware corporation (the "Company"),
VARITY CORPORATION, a Delaware corporation (the "Guarantor"),
and MANUFACTURERS AND TRADERS TRUST COMPANY, a New York banking
corporation, as trustee (the "Trustee").
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 ratable
benefit of the Holders of the Securities or of any series
thereof, as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1. Definitions.
-----------
"Affiliate" means, with respect to any specified
Person, any other Person directly or indirectly controlling or
controlled by or under direct or indirect common control with
such specified Person.
"Agent" means any Registrar or Paying Agent of the
Securities.
"Attributable Debt" when used in connection with a
Sale and Lease-Back Transaction involving a Principal Property
shall mean, at the time of determination, the lesser of: (a)
the fair value of such property (as determined in good faith by
the Board of Directors of the Company); or (b) the present
value of the total net amount of rent required to be paid under
such lease during the remaining term thereof (including any
renewal term or period for which such lease has been extended),
discounted at the rate of interest set forth or implicit in the
terms of such lease or, if not practicable to determine such
rate, the weighted average interest rate per annum borne by the
Securities of each series outstanding pursuant to this
Indenture compounded semi-annually. For purposes of the fore-
going definition, rent shall not include amounts required to be
paid by the lessee, whether or not designated as rent or
additional rent, on account of or contingent upon maintenance
and repairs, insurance, taxes, assessments, water rates and
similar charges. In the case of any lease which is terminable
by the lessee upon the payment of a penalty, such net amount
shall be the lesser of the net amount determined assuming
termination upon the first date such lease may be terminated
(in which case the net amount shall also include the amount of
the penalty, but no
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rent shall be considered as required to be paid under such lease
subsequent to the first date upon which it may be so terminated)
or the net amount determined assuming no such termination.
"Bankruptcy Law" means Title 11 of the United States
Code or any similar federal, state or foreign law for the
relief of debtors.
"Board of Directors" means the board of directors of
the Company or the Guarantor, as the case may be, or any duly
authorized committee of either such board.
"Board Resolution" means a copy of a resolution
certified by the Secretary or an Assistant Secretary of the
Company to have been duly adopted by the Board of Directors of
the Company or the Guarantor as the context requires and to be
in full force and effect on the date of such certification, and
delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking
institutions in The City of New York, State of New York, or the
city in which the Trustee has its Corporate Trust Office, are
authorized or obligated by law, regulation or executive order
to close.
"Capital Stock" means, with respect to any Person,
any and all shares, interests, participations, rights in or
other equivalents (however designated) of such Person's capital
stock, and any rights (other than debt securities convertible
into capital stock), warrants or options exchangeable for or
convertible into such capital stock.
"Capitalized Lease Obligation" means any obligation
under a lease of (or other agreement conveying the right to
use) any property (whether real, personal or mixed) that is
required to be classified and accounted for as a capital lease
obligation under GAAP, and, for the purpose of this Indenture,
the amount of such obligation at any date shall be the
capitalized amount thereof at such date, determined in
accordance with GAAP.
"Company" means the party named as such in this
Indenture until a successor replaces it (or any previous
successor) pursuant to this Indenture, and thereafter means
such successor.
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"Company Request" or "Company Order" means a written
request or order signed in the name of the Company by any one
of its Chairman of the Board, its Vice-Chairman, its President
or a Vice President, and by any one of its Treasurer, an
Assistant Treasurer, its Secretary or an Assistant Secretary,
and delivered to the Trustee.
"Corporate Trust Office" means the corporate trust
office of the Trustee at which at any particular time its
corporate trust business shall be principally administered,
which on the date hereof is One M & T Plaza, Buffalo, New York
14240, Attention: Corporate Trust Department.
"Covenant Defeasance" shall have the meaning set
forth in Section 8.2.
"Custodian" means any receiver, trustee, assignee,
liquidator, sequestrator or similar official under any
Bankruptcy Law.
"Default" means any event that is, or after notice or
passage of time or both would be, an Event of Default.
"Discount Security" means any Security which provides
for an amount less than the principal thereof to be due and
payable upon a declaration of acceleration of the Stated
Maturities thereof pursuant to Section 6.2.
"Event of Default" has the meaning set forth in
Section 6.1.
"Exchange Act" means the Securities Exchange Act of
1934, as amended from time to time.
"GAAP" means generally accepted accounting principles
set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the
accounting profession of the United States of America, as in
effect on the date hereof.
"Guarantee" means the guarantee of the Guarantor set
forth in Article Ten hereof.
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"Guarantor" means Varity Corporation, a Delaware
corporation, and, subject to Article Ten, its successors and
assigns.
"Holder" or "Securityholder" means the Person in
whose name a Security is registered on the Registrar's books.
"Indebtedness" means, with respect to any Person,
without duplication, (i) all obligations for borrowed money,
(ii) all obligations evidenced by bonds, debentures, notes or
other similar instruments, (iii) all Capitalized Lease
Obligations, (iv) all obligations issued or assumed as the
deferred purchase price of property, all conditional sale
obligations and all obligations under any title retention
agreement (but excluding trade accounts payable and accrued
expenses arising in the ordinary course of business), (v) all
fixed unconditional obligations issued or contracted for as
payment in consideration of the purchase by such Person of the
stock or substantially all the assets of another Person or a
merger or consolidation, (vi) all obligations for the
reimbursement of any obligor on any letter of credit, banker's
acceptance or similar credit transaction which secure
Indebtedness of a Person other than the issuer of the letter of
credit or the accepting bank, (vii) all obligations of the type
referred to in clauses (i) through (vi) of other Persons
guaranteed by such Person to the extent of the guarantee; and
(viii) all obligations of the type referred to in clauses (i)
through (vii) of other Persons which are secured by any Lien on
any property or asset of such Person, the amount of such
obligation being deemed to be the lesser of the value of such
property or asset at the time the Lien is created or the amount
of the obligation so secured.
"Indenture" means this Indenture, as amended,
modified or supplemented from time to time, in accordance
herewith, and includes, with respect to a particular series of
Securities, the terms of such series of Securities established
or contemplated by Section 2.2(a).
"Interest Payment Date", for any series of
Securities, has the meaning provided in the form of such
Securities set forth in the supplemental indenture, Board
Resolution, or Officers' Certificate under which such
Securities are issued.
"Issue Date" means, with respect to any particular
series of Securities, the original date of issuance of such
series; provided that, in the case of a series subject to a
--------
Periodic Offering, the Issue Date shall be the original issue
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date or dates established pursuant to the proviso of the third
paragraph of Section 2.3.
"Legal Defeasance" shall have the meaning set forth
in Section 8.2.
"Lien" means any mortgage, charge, pledge, lien
(statutory or other), security interest, hypothecation,
assignment for security, claim, or preference or priority or
other encumbrance upon or with respect to any property of any
kind. A Person shall be deemed to own subject to a Lien any
property which such Person has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale
agreement, capital lease or other title retention agreement.
"Material Subsidiary" means, at any particular time,
any Subsidiary of any Person that (a) accounted for more than
10% of the consolidated revenues of such Person and its
Subsidiaries on a consolidated basis for the most recently
completed fiscal year of such Person or (b) was the owner of
more than 10% of the consolidated assets of such Person and its
Subsidiaries on a consolidated basis as at the end of such
fiscal year, all as shown on the consolidated financial
statements of such Person and its Subsidiaries for such fiscal
year.
"Maturity Date" means, with respect to any Security,
the date on which any principal of such Security becomes due
and payable as therein or herein provided, whether at the
Stated Maturity with respect to such principal or by
declaration of acceleration, call for redemption or purchase or
otherwise.
"Nonrecourse Obligation" means Indebtedness or other
obligations substantially related to (i) the acquisition of
assets not previously owned by the Company or any Restricted
Subsidiary or (ii) the financing of a project involving the
development or expansion of properties of the Company or any
Restricted Subsidiary, as to which the obligee with respect to
such Indebtedness or obligation has no recourse to the Company
or any Restricted Subsidiary or any assets of the Company or
any Restricted Subsidiary other than the assets which were
acquired with the proceeds of such transaction or the project
financed with the proceeds of such transaction (and the
proceeds thereof).
"Officer" means the Chairman of the Board, the
President, any Vice President, the Chief Financial Officer, the
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Chief Operating Officer, the Treasurer, the Secretary or the
Controller of the Company or the Guarantor, as the case may be.
"Officers' Certificate" means a certificate signed by
two Officers or by an Officer and an Assistant Treasurer or
Assistant Secretary of the Company and delivered to the
Trustee.
"Opinion of Counsel" means a written opinion from
legal counsel who is reasonably acceptable to the Trustee.
Subject to any express provision hereof, the counsel may be an
employee of or counsel to the Company or the Guarantor.
"Paying Agent" has the meaning set forth in
Section 2.4, except that, for the purposes of Articles Three
and Eight, the Paying Agent shall not be: (i) the Company or
the Guarantor, (ii) a Subsidiary of the Company or the
Guarantor or (iii) any of the Company's or Guarantor's
respective Affiliates.
"Periodic Offering" means an offering of Securities
of a series from time to time the specific terms of which
Securities, including, without limitation, the rate or rates of
interest, if any, thereon, the Stated Maturity or Stated
Maturities thereof, the original Issue Date or Dates thereof,
the redemption provisions, if any, and any other terms
specified as contemplated by Section 2.2(a) with respect
thereto, are to be determined by the Company, or one or more of
the Company's agents or employees designated in an Officers'
Certificate, upon the issuance of such Securities.
"Person" means any individual, corporation,
partnership, joint venture, association, joint-stock company,
trust, unincorporated organization or government or any agency
or political subdivision thereof.
"principal" means, with respect to any debt security,
the principal of the security plus, with respect to the
Securities only, the premium, if any, on the Security.
"Principal Property" shall mean the land, land
improvements, buildings and fixtures (to the extent they
constitute real property interests) (including any leasehold
interest therein) constituting the principal corporate office,
any manufacturing plant or any manufacturing facility (whether
now owned or hereafter acquired) which: (a) is owned by the
Company or any of its Subsidiaries; (b) is located within any
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of the present 50 States of the United States of America (or
the District of Columbia); (c) has not been determined in good
faith by the Board of Directors of the Company not to be
materially important to the total business conducted by the
Company and its Subsidiaries taken as a whole; and (d) has a
book value on the date as of which the determination is being
made in excess of 1% of consolidated total assets of the
Company as most recently determined on or prior to such date.
"Redemption Date" means, with respect to any Security
to be redeemed, the date fixed by the Company or the Guarantor,
as the case may be, for such redemption pursuant to this
Indenture and the Securities.
"Redemption Price" means, with respect to any
Security to be redeemed, the price fixed for such redemption
pursuant to the terms of this Indenture and the Securities.
"Registrar" shall have the meaning set forth in
Section 2.4.
"Regular Record Date", for any series of Securities,
has the meaning provided in the form of such Securities set
forth in the supplemental indenture, Board Resolution or
Officers' Certificate under which such Securities are issued.
"Restricted Subsidiary" shall mean any Subsidiary of
the Company which owns any Principal Property.
"Sale and Lease-Back Transaction" shall mean any sale
or transfer by the Company or one of its Restricted
Subsidiaries of any Principal Property that is being sold or
transferred by such Person more than 270 days after the
acquisition thereof or the completion of construction or
commencement of operation thereof, if such sale or transfer is
made with the intent of leasing, or as part of an arrangement
involving the lease of, such Principal Property to the Company
or one of its Restricted Subsidiaries.
"SEC" means the Securities and Exchange Commission,
as from time to time constituted or, if at any time after the
execution of this Indenture such Commission is not existing and
performing the applicable duties now assigned to it, then the
body or bodies performing such duties at such time.
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"Securities" means the securities that are issued
under this Indenture, as amended or supplemented from time to
time pursuant to this Indenture.
"Securities Act" means the Securities Act of 1933, as
amended from time to time.
"Stated Maturity" means, when used with respect to
any Security of a particular series or any installment of
principal thereon, the date specified in such Security of such
series as the fixed date on which any principal of such
Security of such series is due and payable, and when used with
respect to any other Indebtedness, means any date specified in
the instrument governing such Indebtedness as the fixed date on
which the principal of such Indebtedness is due and payable.
"Subsidiary" means, with respect to any Person, (i) a
corporation a majority of whose Voting Stock is at the time,
directly or indirectly, owned by such Person, by one or more
Subsidiaries of such Person or by such Person and one or more
Subsidiaries thereof and (ii) any other Person (other than a
corporation), including, without limitation, a joint venture,
in which such Person, one or more Subsidiaries thereof or such
Person and one or more Subsidiaries thereof, directly or
indirectly, at the date of determination thereof, has at least
a majority ownership interest entitled to vote in the election
of directors, managers or trustees thereof (or other Person
performing similar functions).
"Surviving Entity" shall have the meaning set forth
in Section 5.1.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.
Code (S)(S) 77aaa-77bbbb) as in effect on the date of this
Indenture.
"Trustee" means the party named as such in this
Indenture until a successor replaces such party (or any
previous successor) in accordance with the provisions of this
Indenture, and thereafter means such successor.
"Trust Officer" means the Chairman of the Board, the
President or any other officer of the Trustee assigned by the
Trustee to administer its corporate trust matters and also
means, with respect to a particular corporate trust matter, any
other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
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"U.S. Government Obligations" shall have the meaning
set forth in Section 8.2.
"Vice President" shall include Senior Vice President
or a Vice President with any other prefix.
"Voting Stock" means any class or classes of Capital
Stock pursuant to which the holders thereof have the general
voting power under ordinary circumstances to elect at least a
majority of the board of directors, managers or trustees of any
Person (irrespective of whether or not, at the time, stock of
any other class or classes shall have, or might have, voting
power by reason of the happening of any contingency).
Section 1.2. Incorporation by Reference of Trust
Indenture Act.
-----------------------------------
Whenever this Indenture refers to a provision of the
TIA, the provision is incorporated by reference in and made a
part of this Indenture. The following TIA terms used in this
Indenture have the following meanings:
"Commission" means the SEC;
"indenture securities" means the Securities;
"indenture security holder" means a Securityholder or
Holder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee"
means the Trustee; and
"obligor" on the indenture securities means the
Company, the Guarantor or any other obligor on the Securities.
All other TIA terms used in this Indenture that are
defined by the TIA, defined by TIA reference to another statute
or defined by SEC rule and not otherwise defined herein have
the meanings assigned to them therein.
Section 1.3. Rules of Construction.
---------------------
For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise
requires:
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(a) a term has the meaning assigned to it;
(b) words in the singular include the plural, and
words in the plural include the singular;
(c) "or" is not exclusive;
(d) provisions apply to successive events and
transactions;
(e) all accounting terms not otherwise defined
herein have the meanings assigned to them in accordance with
GAAP;
(f) 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; and
(g) all references to $ or dollars refer to the
lawful currency of the United States of America.
ARTICLE 2
THE SECURITIES
Section 2.1. Forms Generally.
---------------
The Securities of each series shall be substantially
in such form (not inconsistent with this Indenture) as shall be
established by or pursuant to one or more Board Resolutions (as
set forth in a Board Resolution or, to the extent established
pursuant to rather than set forth in a Board Resolution, an
Officers' Certificate of the Company detailing such
establishment) or in one or more indentures supplemental
hereto, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required
or permitted by this Indenture and may have such letters,
numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with
any applicable law or 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
thereof. The Securities shall be issuable only in registered
form without coupons. The indenture supplemental hereto or the
Board Resolution or Officers' Certificate establishing the form
of security of any series shall be delivered to the Trustee
concurrently with or
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prior to the delivery of the Company Order contemplated by
Section 2.3 for the authentication and delivery of such
Securities.
The definitive Securities and Guarantees endorsed
thereon shall be printed, typewritten, lithographed or engraved
or produced by any combination of these methods or may be
produced in any other manner permitted by the rules of any
securities exchange on which the Securities may be listed, all
as determined by the Officers executing such Securities and
Guarantees, as evidenced by their execution of such Securities
and Guarantees. Each Security and Guarantee shall be dated the
date of its authentication.
The Guarantees to be endorsed on the Securities of
each series shall be in substantially the form set forth in
Section 10.1 in each case with such appropriate insertions,
omissions, substitutions and other variations as are required
or permitted by this Indenture, and may have such letters,
numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with
any law or with any rules made pursuant thereto or with any
rules of any securities exchange or to conform to general usage
or as may, consistently herewith, be determined by the Officers
executing such Guarantees, as evidenced by their execution of
such Guarantees.
Section 2.2. Title, Terms and Denominations.
------------------------------
(a) The aggregate principal amount of Securities
which may be authenticated and delivered under this Indenture
shall be unlimited. The Securities may be issued in one or
more series. There shall be established and, subject to
Section 2.3, set forth, or determined in the manner provided,
in one or more indentures supplemental hereto or in or pursuant
to a Board Resolution (as set forth in such Board Resolution
or, to the extent established pursuant to rather then set forth
in such Board Resolution, an Officers' Certificate detailing
such establishment):
(1) the title of the Securities of the series (which
shall distinguish the Securities of the series from all
other Securities);
(2) any limit upon the aggregate principal amount of
the Securities of the series which may be authenticated
and delivered under this Indenture (except for Securities
-12-
authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities of
the series pursuant to Sections 2.7, 2.8, 2.10, 3.6 or 9.5
and except for any Securities which, pursuant to
Section 2.3, are deemed never to have been authenticated
and delivered hereunder);
(3) the Person to whom any interest on any Security
of the series shall be payable, 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;
(4) the date or dates on which the principal of the
Securities of the series is payable or the method of
determination thereof;
(5) the rate or rates at which the Securities of the
series shall bear interest (which in no event shall be
greater than the then applicable legal rate therefor), if
any, the date or dates from which any such interest shall
accrue, the Interest Payment Dates on which any such
interest shall be payable and the Regular Record Date for
any interest payable on any Securities on any Interest
Payment Date and/or the method by which such rate or rates
or Regular Record Date or Dates shall be determined;
(6) the place or places where, subject to the
provisions of Section 4.2, the principal of and any
interest on Securities of the series shall be payable, any
Securities of the series may be surrendered for regis-
tration of transfer, Securities of the series may be
surrendered for exchange and notices and demands to or
upon the Company in respect of the Securities of the
series and this Indenture may be served;
(7) the period or periods within which, the price or
prices at which and the terms and conditions upon which
Securities of the series may be redeemed, in whole or in
part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem
or purchase Securities of the series pursuant to any
sinking fund or analogous provisions or at the option of a
Holder thereof, the conditions, if any, giving rise to
such obligation, and the period or periods within which,
the price or prices at which and the terms and conditions
-13-
upon which Securities of the series shall be redeemed or
purchased, in whole or in part, and any provisions for the
remarketing of such Securities;
(9) the denominations in which any Securities of the
series shall be issuable, if other than denominations of
$1,000 and any integral multiple thereof;
(10) if the amount of payments of principal of and
any interest on the Securities of the series is to be
determined with reference to an index, formula or other
method, the manner in which such amounts shall be
determined and the calculation agent, if any, with respect
thereto;
(11) if other than the principal amount thereof, the
portion of the principal amount of any Securities of the
series which shall be payable upon declaration of
acceleration of the Stated Maturity thereof pursuant to
Section 6.2;
(12) if other than as defined in Section 1.1, the
meaning of "Business Day" when used with respect to any
Securities of the series;
(13) if the Securities of the series may be issued
or delivered (whether upon original issuance or upon
exchange of a temporary Security of such series or
otherwise), or any installment of principal of or any
interest is payable, only upon receipt of certain
certificates or other documents or satisfaction of other
conditions in addition to those specified in this
Indenture, the form and terms of such certificates,
documents or conditions;
(14) the forms of the Securities;
(15) whether the Securities of the series shall be
issued in whole or in part in the form of a global
Security or Securities and, in such case, the depositary
for such global Security or Securities;
(16) any provision for defeasance or discharge of
the Securities of the series, if different from those set
forth herein;
(17) any listing of the Securities of a series on a
securities exchange;
-14-
(18) the price or prices at which the Securities of
a series will be issued; and
(19) any other terms of the series not inconsistent
with the provisions hereof, but which may include
covenants, Events of Default, definitions and other
provisions in lieu of or in addition to those set forth in
this Indenture as of the date hereof and amendments to or
other changes in any of the covenants, Events of Default,
definitions and other provisions set forth in this
Indenture as of the date hereof.
All Securities of any one series shall be substan-
tially identical except as to denomination, the rate or rates
of interest, if any, the Stated Maturities, the date from which
interest, if any, shall accrue and except as may otherwise be
provided in or pursuant to the Board Resolutions or Officers'
Certificates referred to above or as set forth in any such
indenture supplemental hereto. All Securities of any one
series need not be issued at the same time and, unless
otherwise provided, a series may be reopened for issuances of
additional Securities of such series or for the establishment
of additional terms with respect to the Securities of such
series, consistent with the terms of this Indenture, if so
provided by or pursuant to such Board Resolutions, such
Officers' Certificates or in any such indenture supplemental
hereto.
(b) Unless otherwise provided as contemplated by
Section 2.2(a) which respect to any series of Securities, any
Securities of a series shall be issuable in denominations of
$1,000 and any integral multiple thereof.
(c) The Securities of any one series shall rank pari
----
passu in right of payment with the Securities of any other
- -----
series.
Section 2.3. Execution, Authentication,
Delivery and Dating.
-------------------------
Two Officers shall sign, or one Officer shall sign
and one Officer shall attest to (provided that in either case,
one such Officer must be the Chairman of the Board, President,
a Vice President, Treasurer or Secretary) the Securities for
the Company by manual or facsimile signatures.
Securities bearing the manual or facsimile signatures
of individuals who were at any time the proper Officers of the
-15-
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.
Typographical and other minor errors or defects in any such
reproduction of any such signature shall not affect the
validity or enforceability of any Security that has been duly
authenticated and delivered by the Trustee.
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 and having
endorsed thereon the Guarantees executed by the Guarantor, to
the Trustee for authentication, 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, pursuant to a Company Order or
pursuant to such procedures acceptable to the Trustee as may be
specified from time to time by a Company Order, (c) the rate or
rates of interest, if any, the Stated Maturity or Maturities,
the original Issue Date or Dates, the redemption provisions, if
any, 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 the Company's duly
authorized agent or agents designated in an Officers'
Certificate, which oral instructions shall be confirmed
promptly in writing. The Trustee shall be entitled to rely on
such oral instructions, whether or not confirmed in writing.
Each Security shall be dated the date of its
authentication.
The Trustee may appoint an authenticating agent
acceptable to the Company to authenticate Securities. Unless
otherwise provided in the appointment, an authenticating agent
may authenticate Securities whenever the Trustee may do so.
Each reference in this Indenture to authentication by the
-16-
Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal
with the Company, the Guarantor or an Affiliate.
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 duly executed by
the Trustee by manual signature of an authorized signatory, and
such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been
duly authenticated and delivered hereunder. The Trustee's
Certificate of Authentication shall be in substantially the
following form:
This is one of the Securities of the series
designated therein referred to in the within-mentioned
Indenture.
_____________________________,
as Trustee
By: _______________________
Authorized Officer
Notwithstanding the foregoing, if any Security of any series
shall have been duly authenticated and delivered hereunder but
never issued and sold by the Company, and the Company shall
deliver such Security to the Trustee for cancellation as
provided in Section 2.11 together with a written statement
(which need not comply with Section 11.4 or 11.5 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 of this Indenture.
Section 2.4. Registrar and Paying Agent.
--------------------------
The Company shall maintain, with respect to each
series of Securities, an office or agency in the Borough of
Manhattan, The City of New York, State of New York where such
Securities may be presented for registration of transfer or for
exchange (the "Registrar"), an office or agency where such
Securities may be presented for payment (the "Paying Agent")
and an office or agency where notices and demands to or upon
the Company in respect of such Securities and this Indenture
-17-
may be served. The Registrar shall keep a register of the
Securities and of their transfer and exchange. The Company may
have one or more co-registrars and one or more additional
paying agents. The term "Registrar" includes any co-registrar
and the term "Paying Agent" includes any additional paying
agent. Except as otherwise expressly provided in this
Indenture, the Company, the Guarantor or any Affiliate of the
Company or the Guarantor may act as Paying Agent.
The Company and the Guarantor shall enter into an
appropriate agency agreement, with respect to each series of
Securities, with any Agent not a party to this Indenture, which
shall incorporate the provisions of the TIA. The agreement
shall implement the provisions of this Indenture that relate to
such Agent. The Company shall notify the Trustee of the name
and address of any such Agent. If the Company fails to
maintain a Registrar, Paying Agent or agent for service of
notices and demands, or fails to give the foregoing notice, the
Trustee shall act as such and shall be entitled to appropriate
compensation in accordance with Section 7.8.
The Company initially appoints the Trustee as
Registrar, Paying Agent and agent for service of notices and
demands in connection with the Securities.
Section 2.5. Paying Agent To Hold Money in Trust.
-----------------------------------
Each Paying Agent shall hold in trust for the benefit
of Securityholders of a particular series or the Trustee all
money held by the Paying Agent for the payment of principal of,
or interest on, the Securities of such series (whether such
money has been distributed to it by the Company, the Guarantor
or any other obligor on such Securities), and the Company and
the Paying Agent shall notify the Trustee of any default by the
Company (or any other obligor on such Securities) in making any
such payment. If the Company or the Guarantor or a Subsidiary
of the Company or Guarantor acts as Paying Agent, the money
shall be segregated and held as a separate trust fund. The
Company at any time may require a Paying Agent to distribute
all money held by it to the Trustee and account for any funds
disbursed and the Trustee may at any time during the
continuance of any payment Default with respect to such
Securities, upon written request to a Paying Agent, require
such Paying Agent to pay all money held by it to the Trustee
and to account for any funds distributed. Upon doing so, the
Paying Agent (other than an obligor under the Securities) shall
have no further liability for the money so paid over to the
Trustee. Upon
-18-
any bankruptcy or reorganization proceeding involving the Company
or the Guarantor, the Trustee shall act as Paying Agent for the
Securities.
Section 2.6. Securityholder Lists.
--------------------
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of
the names and addresses of Securityholders of each series of
Securities and shall otherwise comply with TIA (S) 312(a). If
the Trustee is not the Registrar, the Company shall furnish to
the Trustee at least ten Business Days before each Interest
Payment Date and at such other times as the Trustee may request
in writing a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of
Securityholders of such series of Securities, which list may be
conclusively relied upon by the Trustee.
Section 2.7. Transfer and Exchange.
---------------------
When Securities of any series are presented to the
Registrar with a request to register the transfer of such
Securities or to exchange such Securities for an equal
principal amount of Securities of other authorized
denominations, the Registrar shall register the transfer or
make the exchange as requested if its requirements for such
transaction are met; provided, however, that such Securities
-------- -------
surrendered for transfer or exchange shall be duly endorsed or
accompanied by a written instrument of transfer in form
satisfactory to the Company and the Registrar, duly executed by
the Holder thereof or his attorney-in-fact duly authorized in
writing. To permit registrations of transfers and exchanges,
the Company shall execute and the Trustee shall authenticate
Securities at the Registrar's request and the Guarantor shall
endorse the Guarantee thereon. No service charge shall be made
for any registration of transfer or exchange, but the Company
or the Guarantor may require payment of a sum sufficient to
cover any transfer tax or similar governmental charge payable
in connection therewith (other than any such transfer taxes or
similar governmental charge payable upon exchanges or transfers
pursuant to Section 2.3, 2.8, 2.11, 3.6 or 8.5).
At the option of the Holder, Securities of any series
may be exchanged for other Securities of the same series of any
authorized denomination or denominations, of a like aggregate
principal amount and tenor, upon surrender of the Securities to
be exchanged at such office or agency.
-19-
Whenever any Securities are so surrendered for
exchange, the Company shall execute, the Guarantor shall
endorse the Guarantee on, and the Trustee or a duly appointed
authenticating agent 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.
The Registrar shall not be required to register the
transfer of or exchange of any Security (i) during a period
beginning at the opening of business 15 days before the mailing
of a notice of redemption of Securities and ending at the close
of business on the day of such mailing or (ii) selected for
redemption in whole or in part pursuant to Article Three,
except the unredeemed portion of any Security being redeemed in
part.
Section 2.8. Replacement Securities.
----------------------
If a mutilated Security of any series is surrendered
to the Trustee or if the Holder of a Security of any series
claims that such Security has been lost, destroyed or
wrongfully taken, the Company shall issue, the Guarantor shall
endorse the Guarantee on, and the Trustee shall authenticate, a
replacement Security if the Trustee's requirements are met. If
required by the Trustee, the Guarantor or the Company, such
Holder must provide an indemnity bond or other indemnity,
sufficient in the judgment of the Trustee, the Company and the
Guarantor, to protect the Company, the Trustee, the Guarantor
or any Agent from any loss which any of them may suffer if a
Security is replaced. The Company may charge such Holder for
its reasonable out-of-pocket expenses in replacing a Security,
including reasonable fees and expenses of counsel. Every
replacement Security is an additional obligation of the Company
and the Guarantor.
Section 2.9. Outstanding Securities;
Determination of Holders' Action.
--------------------------------
Securities of any series outstanding at any time are
all Securities of such series that have been authenticated by
the Trustee, except those cancelled by it, those delivered to
-20-
it for cancellation and those described in this Section as not
outstanding. A Security does not cease to be outstanding
because the Company or any of its Affiliates holds the
Security; provided, however, that in determining whether the
-------- -------
Holders of the required principal amount of Securities of any
series have concurred in any direction, waiver or consent,
Securities of such series owned by the Company or other obligor
on the Securities of such series or an Affiliate of the Company
or such other obligor shall be disregarded, except that for the
sole purpose of determining whether the Trustee shall be
protected in relying on any such direction, waiver or consent,
only Securities which the Trustee knows are so owned shall be
disregarded.
If a Security is replaced pursuant to Section 2.8
(other than a mutilated Security surrendered for replacement),
it ceases to be outstanding unless the Trustee receives proof
satisfactory to it that the replaced Security is held by a bona
----
fide purchaser. A mutilated Security ceases to be outstanding
- ----
upon surrender of such Security and replacement thereof
pursuant to Section 2.8.
If on a Redemption Date or a Maturity Date the Paying
Agent (other than the Company or an Affiliate of the Company)
holds cash or U.S. Government Obligations sufficient to pay all
of the principal and interest due on the Securities payable on
that date, and is not prohibited from paying such cash or U.S.
Government Obligations to the Holders of such Securities
pursuant to the terms of this Indenture, then on and after that
date such Securities cease to be outstanding and interest on
them shall cease to accrue.
Section 2.10. Temporary Securities.
--------------------
Until definitive Securities of any series are
prepared and ready for delivery, the Company may prepare, the
Guarantor may endorse its Guarantee on and the Trustee shall
authenticate temporary Securities. Temporary Securities shall
be substantially in the form of definitive Securities but may
have variations that the Company considers appropriate for
temporary Securities. Without unreasonable delay, the Company
shall prepare, the Guarantor shall endorse its Guarantee on,
and the Trustee shall authenticate, definitive Securities in
exchange for temporary Securities. Until such exchange,
temporary Securities shall be entitled to the same rights,
benefits and privileges as definitive Securities.
-21-
Section 2.11. Cancellation.
------------
The Company or the Guarantor at any time may deliver
Securities to the Trustee for cancellation. The Registrar and
the Paying Agent shall forward to the Trustee any Securities
surrendered to them for transfer, exchange or payment. The
Trustee or, at the direction of the Trustee, the Registrar or
the Paying Agent (other than the Company, the Guarantor or an
Affiliate of the Company or the Guarantor), and no one else,
shall cancel and, at the written direction of the Company,
shall dispose of all Securities surrendered for transfer,
exchange, payment or cancellation. Subject to Section 2.8, the
Company may not issue new Securities to replace Securities that
it has paid or delivered to the Trustee for cancellation. If
the Company or the Guarantor shall acquire any of the
Securities, such acquisition shall not operate as a payment,
redemption or satisfaction of the Indebtedness represented by
such Securities unless and until the same are surrendered to
the Trustee for cancellation pursuant to this Section 2.11.
Section 2.12. Payment of Interest;
Defaulted Interest.
--------------------
Unless otherwise provided as contemplated by Section
2.2(a) with respect to any series of Securities, 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.
If the Company defaults on a payment of interest on
any series of Securities, it shall pay the defaulted interest,
plus (to the extent permitted by law) any interest payable on
the defaulted interest, in accordance with the terms hereof, to
the Persons who are Securityholders of such series on a
subsequent special record date, which date shall be at least
five Business Days prior to the payment date. The Company
shall fix such special record date and payment date in a manner
satisfactory to the Trustee. At least 15 days before such
special record date, the Company shall mail to each
Securityholder of such series a notice that states the special
record date, the payment date and the amount of defaulted
interest, and interest payable on such defaulted interest, if
any, to be paid.
Section 2.13. CUSIP Number.
------------
-22-
The Company in issuing any series of Securities may
use a "CUSIP" number (if then generally in use), and if so, the
Trustee may use the CUSIP numbers in notices of redemption or
exchange as a convenience to Holders; provided, however, that
-------- -------
any such notice may state that no representation is made as to
the correctness or accuracy of the CUSIP number printed in the
notice or on such Securities, and that reliance may be placed
only on the other identification numbers printed on such
Securities. The Company will promptly notify the Trustee of
any change in the CUSIP number.
Section 2.14. Deposit of Moneys.
-----------------
On or before each Interest Payment Date and Maturity
Date, the Company shall deposit with the Trustee or Paying
Agent in immediately available funds money sufficient to make
cash payments, if any, due on such Interest Payment Date or
Maturity Date, as the case may be, in a timely manner which
permits the Paying Agent to remit payment to the Holders of the
applicable series of Securities on such Interest Payment Date
or Maturity Date, as the case may be.
Section 2.15. Persons Deemed Owners.
---------------------
Prior to due presentment of a Security for
registration of transfer, the Company, the Guarantor, the
Trustee and any agent of the Company, the Guarantor or the
Trustee may treat the Person in whose name such Security is
registered as the owner of such Security for the purpose of
receiving payment of principal of and (except as otherwise
specified as contemplated by Section 2.2(a) and Section 2.12)
interest, if any, on such Security and for all other purposes
whatsoever, whether or not such Security is overdue, and
neither the Company, the Guarantor, the Trustee nor any agent
of the Company, the Guarantor or the Trustee shall be affected
by notice to the contrary.
Section 2.16. Computation of Interest.
-----------------------
Except as otherwise specified in a supplemental
indenture, Board Resolution or Officers' Certificate as
contemplated by Section 2.2(a) for Securities of any series,
(i) interest, if any, on any Securities which bear interest at
a fixed rate shall be computed on the basis of a 360-day year
of twelve 30 day months and (ii) interest on any Securities
which bear interest at a variable or floating rate shall be
computed on the basis of the actual number of days in an
interest period
-23-
divided by the number of days in the year for which such interest
is calculated.
Section 2.17. Global Securities.
-----------------
The Company may issue, if a Board Resolution or
Officers' Certificate so provides, some or all of the
Securities of a series in temporary or permanent global form.
A global Security may be in registered form or in
uncertificated form. A global Security shall represent that
amount of Securities of a series as specified in the global
Security or as endorsed thereon from time to time. At the
Company's request, the Registrar shall endorse a global
Security to reflect the amount of any increase or decrease in
the Securities represented thereby.
The Company may issue a global Security only to a
depository designated by the Company. A depository may
transfer a global Security only as a whole to its nominee or to
a successor depository.
The Company may establish, among other things, the
manner of paying principal and interest on a global Security
and whether and upon what terms a beneficial owner of an
interest in a global Security may exchange such interest for
definitive Securities.
The Company, an Affiliate, the Trustee and any Agent
shall not be responsible for any acts or omissions of a
depository, for any depository records of beneficial ownership
interests or for any transactions between the depository and
beneficial owners.
ARTICLE 3
REDEMPTION OF SECURITIES
Section 3.1. Notices to the Trustee.
----------------------
Securities of any series which are redeemable before
their maturity shall be redeemable in accordance with their
terms and (except as otherwise specified in a supplemental
indenture, Board Resolution or Officers' Certificate as
contemplated by Section 2.2(a) for Securities of any series) in
accordance with this Article.
-24-
If the Company elects to redeem Securities of a
series which are redeemable, it shall notify the Trustee in an
Officers' Certificate of the Redemption Date and principal
amount of Securities of such series to be redeemed.
If the Company wishes to reduce the principal amount
of a series of Securities to be redeemed, it shall so notify
the Trustee of the amount of the reduction and the basis for
it. If the Company wishes to credit, and is entitled to
credit, against any such redemption Securities of such series
it has not previously delivered to the Trustee for
cancellation, it shall deliver such Securities with such
notice.
The Company shall give each notice provided for in
this Section 3.1 at least 45 days, but not more than 60 days
before the Redemption Date (unless a shorter notice shall be
satisfactory to the Trustee).
Section 3.2. Selection of Securities To Be
Redeemed.
-----------------------------
Unless otherwise specified in a supplemental
indenture, Board Resolution or Officers' Certificate as
contemplated by Section 2.2(a) with respect to any series of
Securities, if less than all the Securities of any series are
to be redeemed, the particular Securities of such series or
portions thereof to be redeemed shall be selected from the
outstanding Securities not previously called for redemption
either (x) pro rata, by lot or by such other method as the
Trustee considers to be fair and appropriate or (y) in such
manner as complies with the requirements of the principal
national securities exchange, if any, on which the Securities
of such series being redeemed are listed. The amounts to be
redeemed shall be equal to $1,000 or any integral multiple
thereof, except that if all of the Securities of a series of a
Holder are to be redeemed, the entire amount of Securities of
such series held by such Holder, even if not a multiple of
$1,000, shall be redeemed or purchased.
The Trustee shall select Securities to be redeemed
from the Securities of the applicable series outstanding and
not previously called for redemption and shall promptly notify
the Company and the Registrar in writing of the Securities of
any series selected for redemption and, in the case of any
Securities of any series selected for partial redemption, the
principal amount thereof to be redeemed.
-25-
For all purposes of this Indenture, unless the
context otherwise requires, all provisions relating to
redemption of Securities of any series shall relate, in the
case of any Security redeemed or to be redeemed only in part,
to the portion of the principal amount of such Security which
has been or is to be redeemed.
Section 3.3. Notice of Redemption.
--------------------
Unless otherwise specified in a supplemental
indenture, Board Resolution or Officers' Certificate as
contemplated by Section 2.2(a) with respect to any series of
Securities, notice of redemption shall be given by first-class
or certified mail, postage prepaid, mailed not less than 30 nor
more than 60 days prior to the Redemption Date, to each Holder
of Securities to be redeemed, at the address of such Holder
appearing in the security register maintained by the Registrar.
All notices of redemption shall identify the
Securities to be redeemed and shall state:
(a) the Redemption Date;
(b) the Redemption Price and the amount of accrued
interest, if any, to be paid;
(c) that, unless the Company defaults in making the
redemption payment, interest on Securities called for
redemption ceases to accrue on and after the Redemption
Date, and the only remaining right of the Holders of such
Securities is to receive payment of the Redemption Price
upon surrender to the Paying Agent of the Securities
redeemed;
(d) if any Security is to be redeemed in part, the
portion of the principal amount (equal to $1,000 or any
integral multiple thereof) of such Security to be redeemed
and that on or after the Redemption Date, upon surrender
for cancellation of such Security to the Paying Agent, a
new Security or Securities in the aggregate principal
amount equal to the unredeemed portion thereof will be
issued without charge to the Securityholder;
(e) that Securities called for redemption must be
surrendered to the Paying Agent to collect the Redemption
Price and the name and address of the Paying Agent;
-26-
(f) the CUSIP number, if any, relating to such
Securities; and
(g) whether Securities are being redeemed pursuant
to the mandatory redemption or the optional redemption
provisions of the Securities.
Notice of redemption of Securities to be redeemed at
the election of the Company shall be given by the Company or,
at the Company's written request, by the Trustee in the name
and at the expense of the Company.
Section 3.4. Effect of Notice of Redemption.
------------------------------
Once notice of redemption is mailed, Securities
called for redemption become due and payable on the Redemption
Date and at the Redemption Price. Upon surrender to the Paying
Agent, such Securities called for redemption shall be paid at
the Redemption Price plus accrued interest to the Redemption
Date, but interest installments whose maturity is on or prior
to such Redemption Date will be payable on the relevant
Interest Payment Dates to the Holders of record at the close of
business on the relevant record dates referred to in the
Securities.
Section 3.5. Deposit of Redemption Price.
---------------------------
On or prior to any Redemption Date, the Company shall
deposit with the Paying Agent an amount of money in immediately
available funds sufficient to pay the Redemption Price of, and
accrued and unpaid interest on, all the Securities or portions
thereof which are to be redeemed on that date, other than
Securities or portions thereof called for redemption on that
date which have been delivered by the Company to the Trustee
for cancellation.
If the Company complies with the preceding paragraph,
then, unless the Company defaults in the payment of such
Redemption Price, interest on the Securities to be redeemed
will cease to accrue on and after the applicable Redemption
Date, whether or not such Securities are presented for payment.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and, to the
extent lawful, accrued interest thereon shall, until paid, bear
interest from the Redemption Date at the rate provided in the
Securities, unless otherwise specified as contemplated by
-27-
Section 2.2(a) with respect to the Securities of such series or
in such Securities.
Section 3.6. Securities Redeemed or Purchased in
Part.
-----------------------------------
Upon surrender to the Paying Agent of a Security
which is to be redeemed in part, the Company shall execute, the
Guarantor shall endorse the Guarantee on and the Trustee shall
authenticate and deliver to the Holder of such Security without
service charge a new Security or Securities, of any authorized
denomination as requested by such Holder in aggregate principal
amount equal to, and in exchange for, the unredeemed portion of
the principal of the Security so surrendered that is not
redeemed.
ARTICLE 4
COVENANTS
Section 4.1. Payment of Securities.
---------------------
The Company shall pay the principal of and interest
on each series of Securities on the dates and in the manner
provided in such Securities or pursuant to this Indenture. An
installment of principal or interest shall be considered paid
on the date due if the Trustee or Paying Agent (other than the
Company, the Guarantor, a Subsidiary of the Company or the
Guarantor or any Affiliate of any thereof) holds for the
benefit of the Holders on that date money deposited and
designated for and sufficient to pay the installment and is not
prohibited from paying such money to the Holders of the
Securities pursuant to the terms of this Indenture.
Unless otherwise specified as contemplated by
Section 2.2(a) with respect to any series of Securities, the
Company will pay interest (including post-petition interest in
any proceeding under any applicable Bankruptcy Law) on overdue
principal at the rate and in the manner provided in the
Securities; it shall pay interest (including post-petition
interest in any proceeding under any applicable Bankruptcy Law)
on overdue installments of interest (without regard to any
applicable grace period) at the same rate and in the same
manner, to the extent lawful.
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Section 4.2. Maintenance of Office or Agency.
-------------------------------
The Company and the Guarantor will maintain in the
Borough of Manhattan, The City of New York, State of New York,
an office or agency where Securities may be surrendered for
registration of transfer or exchange, an office or agency where
the Securities may be presented for payment and an office or
agency where notices and demands to or upon the Company and the
Guarantor in respect of the Securities and this Indenture may
be served. The Company and the Guarantor will give prompt
written notice to the Trustee of the location, and any change
in the location, of such office or agency. If at any time the
Company or the Guarantor shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the address of the
Trustee as set forth in Section 11.2.
The Company and the Guarantor may also from time to
time designate one or more other offices or agencies where
Securities of one or more series 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 or the Guarantor of its obligation to maintain an
office or agency in the Borough of Manhattan, The City of New
York, State of New York, for such purposes. The Company and
the Guarantor will give prompt written notice to the Trustee of
any such designation or rescission and of any change in the
location of any such other office or agency. The Company and
the Guarantor hereby initially designate the Corporate Trust
Office of the Trustee as such office of the Company and the
Guarantor.
Section 4.3. Corporate Existence.
-------------------
Subject to Article Five, the Company and the
Guarantor will each do or cause to be done all things necessary
to, and will cause each of its Material Subsidiaries to,
preserve and keep in full force and effect its respective
corporate existence, rights (charter and statutory), licenses
and/or franchises; provided, however, that the Company or the
-------- -------
Guarantor or any of their respective Subsidiaries shall not be
required to preserve any such existence, rights, licenses or
franchises if (x) the Company or the Guarantor, as the case may
be, shall reasonably determine that the preservation thereof is
no longer desirable in the conduct of the business of it and
its Subsidiaries taken as a whole or (y) the loss thereof is
-29-
not materially adverse to either the Company or the Guarantor,
as the case may be, and its respective Subsidiaries taken as a
whole or to the ability of the Company or the Guarantor to
otherwise satisfy its obligations hereunder.
Section 4.4. Compliance Certificate.
----------------------
(a) The Company and the Guarantor shall deliver to
the Trustee, within 120 days after the end of each of their
respective fiscal years, an Officers' Certificate stating that
a review of the activities of the Company or the Guarantor, as
the case may be, and their respective Subsidiaries during the
preceding fiscal year has been made under the supervision of
the signing officers with a view to determining whether the
Company or the Guarantor, as the case may be, has kept,
observed, performed and fulfilled its obligations under this
Indenture, and further stating, as to each such Officer signing
such certificate, that to the best of his knowledge the Company
or the Guarantor, as the case may be, has kept, observed,
performed and fulfilled each and every covenant contained in
this Indenture and is not in default in the performance or
observance of any of the terms, provisions and conditions
hereof (or, if a Default or Event of Default shall have
occurred, describing all such Defaults or Events of Default of
which he may have knowledge and what action the Company or the
Guarantor, as the case may be, is taking or proposes to take
with respect thereto) and that to the best of his knowledge no
event has occurred and remains in existence by reason of which
payments on account of the principal of or interest on the
Securities of any series are prohibited or, if such event has
occurred, a description of the event and what action the
Company or the Guarantor, as the case may be, is taking or
proposes to take with respect thereto.
(b) So long as not contrary to the then current
recommendations of the American Institute of Certified Public
Accountants, the year-end financial statements delivered
pursuant to Section 4.5 below shall be accompanied by a written
statement of the Guarantor's independent public accountants
(who shall be a firm of established national reputation) that
in making the examination necessary for certification of such
financial statements nothing has come to their attention that
would lead them to believe that the Guarantor or the Company
has violated any provisions of Articles 4 or 5 of this
Indenture or, if any such violation has occurred, specifying
the nature and period of existence thereof, it being understood
that such accountants shall not be liable directly or
-30-
indirectly to any Person for any failure to obtain knowledge of
any such violation.
(c) The Company and the Guarantor will deliver to
the Trustee as soon as possible, and in any event within 10
days after they become aware or should reasonably have become
aware of the occurrence of any Default or Event of Default in
respect of any series of Securities, an Officers' Certificate
specifying such Default or Event of Default and what action the
Company or the Guarantor is taking or proposes to take with
respect thereto.
Section 4.5. SEC Reports.
-----------
The Guarantor and the Company shall file with the
Trustee, within 15 days after it files them with the SEC,
copies of the quarterly and annual reports and of the
information, documents and other reports (or copies of such
portions of any of the foregoing as the SEC may by rules and
regulations prescribe) which the Guarantor or the Company, as
the case may be, is required to file with the SEC pursuant to
Section 13 or 15(d) of the Exchange Act. The Guarantor also
shall comply with the other provisions of TIA (S) 314(a). If the
Guarantor is not subject to the requirements of such Section 13
or 15(d), the Guarantor shall file with the Trustee, within 15
days after it would have been required to file the same with
the SEC, financial statements, including any notes thereto (and
with respect to annual reports, an auditors' report by a firm
of established national reputation), and a "Management's
Discussion and Analysis of Financial Condition and Results of
Operations," both comparable to that which the Guarantor would
have been required to include in such annual reports,
information, documents or other reports if the Guarantor had
been subject to the requirements of such Section 13 or 15(d).
In addition, the Guarantor shall cause its annual report to
stockholders and any quarterly or other financial reports
furnished by it to stockholders generally to be filed with the
Trustee and mailed, no later than the date such materials are
mailed or made available to the Guarantor's stockholders, to
the Holders at their addresses as set forth in the register of
Securities maintained by the Registrar.
Section 4.6. Waiver of Stay, Extension
or Usury Laws.
-------------------------
Each of the Company and the Guarantor covenants (to
the extent that it may lawfully do so) that it will not at any
-31-
time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law
or any usury law or other law which would prohibit or forgive
the Company or the Guarantor from paying all or any portion of
the principal of or interest on Securities of any series as
contemplated herein, wherever enacted, now or at any time
hereafter in force, or which may affect the covenants or the
performance of this Indenture; and (to the extent that it may
lawfully do so) each of the Company and the Guarantor hereby
expressly waives all benefit or advantage of any such law, and
covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though
no such law had been enacted.
Section 4.7. Limitations on Liens.
--------------------
The Company covenants that it will not issue, incur,
create, assume or guarantee, and will not permit any Restricted
Subsidiary to issue, incur, create, assume or guarantee, any
Indebtedness secured by a Lien upon any Principal Property of
the Company or such Restricted Subsidiary or upon any shares of
stock or Indebtedness of any Restricted Subsidiary held by the
Company (whether such Principal Property, shares or
Indebtedness are now existing or owed or hereafter created or
acquired) without in any such case effectively providing
concurrently with the issuance, incurrence, creation,
assumption or guaranty of any such secured Indebtedness, or the
grant of a Lien with respect to any such Indebtedness of any
Restricted Subsidiary, that the Securities (together with, if
the Company shall so determine, any other Indebtedness of or
guarantee by the Company or such Restricted Subsidiary) shall
be secured by a mortgage ranking equally and ratably with (or,
at the option of the Company, prior to), and for so long as
such other Indebtedness is so secured, such secured debt. The
foregoing restriction, however, will not apply to: (a) Liens
on property, shares of stock or Indebtedness or other assets of
any corporation existing at the time such corporation becomes a
Restricted Subsidiary; provided that such Liens are not
--------
incurred in anticipation of such corporation becoming a
Restricted Subsidiary; (b) Liens on property, shares of stock
or Indebtedness existing at the time of acquisition thereof by
the Company or a Restricted Subsidiary or Liens on property,
shares of stock or Indebtedness to secure any Indebtedness for
borrowed money incurred prior to, at the time of, or within 270
days after, the latest of the acquisition thereof, or, in the
case of property, the completion of construction, the
completion of improvements or the
-32-
commencement of substantial commercial operation of such property,
for the purpose of financing all or any part of the purchase price
thereof, such construction or the making of such improvements; (c)
Liens to secure Indebtedness owing to the Company or the Guarantor
or to a Restricted Subsidiary; (d) Liens existing at the date of
the initial issuance of the Securities of such series; (e) Liens
on property of a corporation existing at the time such corporation
is merged into or consolidated with the Company or a Restricted
Subsidiary or at the time of a sale, lease or other disposition of
the properties of a corporation as an entirety or substantially as
an entirety to the Company or a Restricted Subsidiary; provided
--------
that such Lien was not incurred in anticipation of such merger or
consolidation or sale, lease or other disposition; (f) Liens
created in connection with a project financed with, and created to
secure, a Nonrecourse Obligation; or (g) extensions, renewals or
replacements of any Liens permitted by any of the foregoing
clauses (a) through (f); provided, however, that any Liens
-------- -------
permitted by any of the foregoing clauses (a) through (f) shall
not extend to or cover any property of the Company or such
Restricted Subsidiary, as the case may be, other than the property
specified in such clauses and improvements thereto.
Section 4.8. Limitations on Sale and Lease-Back
Transactions.
----------------------------------
The Company covenants that it will not, nor will it
permit any Restricted Subsidiary to, enter into any Sale and
Lease-Back Transaction with respect to any Principal Property,
other than any such transaction involving a lease for a term of
not more than three years or any such transaction between the
Company and a Restricted Subsidiary or between Restricted
Subsidiaries, unless: (a) the Company or such Restricted
Subsidiary would be entitled to incur Indebtedness secured by a
mortgage on the Principal Property involved in such transaction
at least equal in amount to the Attributable Debt with respect
to such Sale and Lease-Back Transaction, without equally and
ratably securing the Securities, pursuant to Section 4.7; or
(b) the Company shall apply an amount equal to the greater of
the net proceeds of such sale or the Attributable Debt with
respect to such Sale and Lease-Back Transaction within 180 days
of such sale to either (or a combination of) the retirement
(other than any mandatory retirement, mandatory prepayment or
sinking fund payment or by payment at maturity) of Indebtedness
of the Company or a Restricted Subsidiary that matures more
than twelve months after the creation of such Indebtedness or
the purchase, construction or development of other comparable
property.
-33-
ARTICLE 5
SUCCESSOR CORPORATION
Section 5.1. When Company and Guarantor May Merge,
etc.
-------------------------------------
(a) Neither the Company nor the Guarantor will, in a
single transaction or a series of transactions, consolidate
with or merge with or into, or sell, assign, convey, transfer,
lease or otherwise dispose of all or substantially all of its
properties and assets as an entirety to, any other Person or
Persons, or permit any of their respective Subsidiaries to
enter into any such transaction or series of transactions if
such transaction or series of transactions, in the aggregate,
would result in a sale, assignment, conveyance, transfer, lease
or other disposition of all or substantially all of the
properties and assets of the Company or the Guarantor and their
respective Subsidiaries, taken as a whole, to any other Person
or Persons, unless:
(1) either (A) if the transaction or series of
transactions is a merger or consolidation, the Company or
the Guarantor, as the case may be, shall be the Person
surviving such merger or consolidation or (B) the Person
formed by such consolidation or into which the Company,
the Guarantor or such Subsidiary, as the case may be, is
merged or to which the properties and assets of the
Company, the Guarantor or such Subsidiary, substantially
as an entirety, are transferred (any such surviving Person
or transferee Person being the "Surviving Entity") shall
be a corporation organized and existing under the laws of
the United States of America, any State thereof or the
District of Columbia and (x) in the case of the Company,
such corporation shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the
Trustee, in form satisfactory to the Trustee, the
Company's obligation for the due and punctual payment of
the principal of and interest, if any, on all the
Securities and the performance of every covenant of this
Indenture on the part of the Company to be performed or
observed and (y) in the case of the Guarantor, such
corporation shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the
Trustee, in form satisfactory to the Trustee, the
Guarantor's obligation for the due and punctual payment of
the Guarantee and the performance of every covenant of
this Indenture on the part of the Guarantor to
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be performed or observed; provided, however, that this
-------- -------
subsection (1) need not be complied with in the case of
the Guarantor's consolidation with or merger into the
Company;
(2) immediately after giving effect to such
transaction or series of transactions on a pro forma basis
--- -----
(including, without limitation, any Indebtedness incurred
or anticipated to be incurred in connection with or in
respect of such transaction or series of transactions), no
Default or Event of Default shall have occurred and be
continuing with respect to Securities of any series; and
(3) the Company or the Guarantor, as the case may
be, shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each in form and
substance reasonably satisfactory to the Trustee, each
stating that such consolidation, merger, sale, assignment,
conveyance, transfer, lease or other disposition and, if a
supplemental indenture is required in connection with such
transaction or series of transactions, such supplemental
indenture comply with this Indenture and that all
conditions precedent herein provided for relating to such
transaction or series of transactions have been complied
with.
Section 5.2. Successor Substituted.
---------------------
Upon any consolidation or merger, or any sale,
assignment, conveyance, transfer, lease or disposition of all
or substantially all of the properties and assets of the
Company or the Guarantor, as the case may be, in accordance
with Section 5.1(a) hereof, the successor Person or Persons
formed by such consolidation or into which the Company or the
Guarantor, as the case may be, is merged or the successor
Person to which such sale, assignment, conveyance, transfer,
lease or other disposition is made shall succeed to, and be
substituted for, and may exercise every right and power of, the
Company or the Guarantor, as the case may be, under this
Indenture and the Securities with the same effect as if such
successor had been named as the Company or the Guarantor, as
the case may be, herein; and thereafter the Company or the
Guarantor, as the case may be, shall be discharged from all
obligations and covenants under this Indenture and the
Securities.
-35-
ARTICLE 6
REMEDIES
Section 6.1. Events of Default.
-----------------
An "Event of Default" means with respect to each
series of Securities, individually, any of the following
events:
(a) default by the Company or the Guarantor in the
payment of the principal of any Security of such series
when the same becomes due and payable upon Stated
Maturity, acceleration or otherwise; or
(b) default by the Company or the Guarantor in the
payment of an installment of interest on any Security of
such series when the same becomes due and payable, and any
such Default continues for a period of 30 days; or
(c) default by the Company or the Guarantor in the
performance or observance of any term, covenant or
agreement contained in this Indenture or the Securities
(other than Defaults specified in clause (a) or (b)
above), and such Default continues for a period of 60 days
after written notice of such Default (which notice shall
specify the Default, demand that it be remedied and state
that it is a "Notice of Default") requiring the Company or
the Guarantor, as the case may be, to remedy the same
shall have been given (i) to the Company or the Guarantor
by the Trustee or (ii) to the Company or the Guarantor and
the Trustee by the Holders of at least 25% in aggregate
principal amount of the Securities of such series then
outstanding; or
(d) default or defaults under one or more
agreements, instruments, mortgages, bonds, debentures or
other evidences of Indebtedness, whether now existing or
hereinafter created, under which the Company, the
Guarantor or any Material Subsidiary of the Company or the
Guarantor then has outstanding Indebtedness in excess of
$10 million or more individually or $20 million or more in
the aggregate (or, in each case, the equivalent thereof in
any other currency), and either (i) such Indebtedness is
already due and payable in full or (ii) such default or
defaults have resulted in the acceleration of the maturity
of such Indebtedness unless such acceleration is cured,
-36-
waived, rescinded or annulled within 30 days after written
notice thereof shall been given to the Company by the
Trustee or to the Company and the Trustee by the Holders
of at least 25% in aggregate principal amount of the
Securities of such series then outstanding; or
(e) one or more judgments, orders or decrees of any
court or regulatory or administrative agency of competent
jurisdiction for the payment of money in excess of $10
million or more individually or $20 million or more in the
aggregate (or, in each case, the equivalent thereof in any
other currency), shall be entered against the Company, the
Guarantor or any Material Subsidiary of the Company or the
Guarantor, as the case may be, and shall not be discharged
or fully bonded and there shall have been a period of 60
days after the date on which any period for appeal has
expired and during which a stay of enforcement of such
judgment, order or decree shall not be in effect; or
(f) the Company, the Guarantor or any Material
Subsidiary of the Company or the Guarantor pursuant to or
under or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case or proceeding;
(ii) consents to the entry of an order for
relief against it in an involuntary case or
proceeding;
(iii) consents to the appointment of a Custodian
of it or for all or substantially all of its
property; or
(iv) makes a general assignment for the benefit
of its creditors; or
(g) a court of competent jurisdiction enters an
order or decree under any Bankruptcy Law that:
(i) is for relief against the Company, the
Guarantor or any Material Subsidiary of the Company
or the Guarantor in an involuntary case or
proceeding,
(ii) appoints a Custodian of the Company, the
Guarantor or any Material Subsidiary of the Company
-37-
or the Guarantor or for all or substantially all of
its properties, or
(iii) orders the liquidation of the Company, the
Guarantor or any Material Subsidiary of the Company
or the Guarantor,
and in each case the order or decree remains unstayed and
in effect for 60 days.
The Trustee shall not be charged with knowledge of
any Default or Event of Default (other than, if the Trustee is
acting as Paying Agent, those set forth in Section 6.1(a), (b)
or, to the extent relating to Section 4.1, (c)) unless written
notice thereof shall have been given to a Trust Officer at the
Corporate Trust Office of the Trustee by the Company, the
Paying Agent, any Holder, any holder of Senior Indebtedness or
any of their respective agents.
Section 6.2. Acceleration.
------------
If an Event of Default with respect to any series of
Securities (other than an Event of Default specified in Section
6.1(f) or (g) with respect to the Company or the Guarantor)
occurs and is continuing, the Trustee by written notice to the
Company, or the Holders of at least 25% in aggregate principal
amount of the Securities of such series then outstanding, by
written notice to the Company and the Trustee, may declare the
unpaid principal of (or, if any of the Securities of that
series are Discount Securities, such portion of the principal
amount of such Securities as may be specified in the terms
thereof) and accrued interest on all the Securities of such
series to be due and payable immediately. If an Event of
Default specified in Section 6.1(f) or (g) with respect to the
Company or the Guarantor occurs and is continuing, then the
principal of and accrued interest on all the Securities shall
ipso facto become and be immediately due and payable without
- ---- -----
any declaration or other act on the part of the Trustee or any
Holder.
At any time after a declaration of acceleration in
respect of a series of Securities has been made and before a
judgment or decree for payment of the money due has been
obtained by the Trustee, Holders of a majority in aggregate
principal amount of such series of Securities outstanding, by
written notice to the Company and the Trustee, may, on behalf
-38-
of all Holders of such series of Securities, rescind and annul
such declaration and its consequences if:
(a) the Company or the Guarantor has paid or
deposited with the Trustee a sum sufficient to pay
(i) all amounts due the Trustee under Section
7.8 and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents
and counsel,
(ii) all overdue interest on all Securities of
such series,
(iii) the principal of such series of Securities
which has become due otherwise than by such
declaration of acceleration and interest thereon at
the rate borne by such series of Securities, and
(iv) interest upon overdue principal and, to the
extent that payment of such interest is lawful,
overdue interest at the rate borne by such series of
Securities which has become due otherwise than by
such declaration of acceleration;
(b) such rescission or annulment would not conflict
with any judgment or decree of a court of competent
jurisdiction; and
(c) all Events of Default with respect to such
series of Securities, other than the non-payment of
principal of and interest on such series of Securities
which has become due solely by such declaration of
acceleration, have been cured or waived as provided in
Section 6.4.
No such rescission shall affect any subsequent
Default or Event of Default with respect to such series of
Securities or impair any right consequent thereon.
Section 6.3. Other Remedies.
--------------
If an Event of Default with respect to a series of
Securities occurs and is continuing, the Trustee may in its
discretion pursue any available remedy by proceeding at law or
in equity to collect the payment of principal of or interest on
such Securities or to enforce the performance of any provision
of such Securities or this Indenture.
-39-
All rights of action and claims under this Indenture
or the Securities of any series may be enforced by the Trustee
even if it does not possess any of the Securities of such
series or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Securityholder in
exercising any right or remedy accruing upon an Event of
Default with respect to a series of Securities shall not impair
the right or remedy or constitute a waiver of or acquiescence
in the Event of Default. No remedy is exclusive of any other
remedy. All available remedies are cumulative to the extent
permitted by law.
Section 6.4. Waiver of Past Defaults.
-----------------------
Subject to the provisions of Sections 6.2, 6.7 and
9.2, the Holders of not less than a majority in aggregate
principal amount of the outstanding Securities of any series by
notice to the Trustee may, on behalf of the Holders of all the
Securities of such series, waive any existing Default or Event
of Default, with respect to such series, and its consequences.
When a Default or Event of Default with respect to a series of
Securities is so waived, it shall be deemed cured and shall
cease to exist, but no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any
right consequent thereon.
Section 6.5. Control by Majority.
-------------------
The Holders of at least a majority in aggregate
principal amount of the then outstanding Securities of any
series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred on the
Trustee, provided, however, that the Trustee may refuse to
-------- -------
follow any direction (a) that conflicts with any rule of law or
this Indenture, (b) that the Trustee determines may be unduly
prejudicial to the rights of another Securityholder of such
series, or (c) that may expose the Trustee to Personal
liability unless the Trustee has indemnification satisfactory
to it in its sole discretion against any loss or expense caused
by its following such direction; and provided, further, that
-------- -------
the Trustee may take any other action deemed proper by the
Trustee that is not inconsistent with such direction.
-40-
Section 6.6. Limitation on Suits.
-------------------
No Holder of any Securities of any series shall have
any right to pursue any remedy with respect to this Indenture
or such Securities unless:
(a) the Holder gives written notice to the Trustee
of a continuing Event of Default with respect to the
Securities of that series;
(b) the Holders of at least 25% in principal amount
of the then outstanding Securities of that series make a
written request to the Trustee to pursue the remedy;
(c) such Holder or Holders offer and, if requested,
provide to the Trustee reasonable indemnity satisfactory
to the Trustee against any loss, liability or expense;
(d) the Trustee does not comply with the request
within 60 days after receipt of the request and the offer
and, if requested, provision of indemnity; and
(e) during such 60-day period the Holders of a
majority in aggregate principal amount of the then
outstanding Securities of that series do not give the
Trustee a direction which is inconsistent with the
request.
The foregoing limitations shall not apply to a suit
instituted by a Holder of Securities of a series for the
enforcement of the payment of principal of or accrued interest
on such Securities held by such Holder on or after the
respective due dates set forth in such Securities.
A Securityholder of a series may not use this
Indenture to prejudice the rights of any other Securityholder
of such series or to obtain priority or preference over such
other Securityholder.
Section 6.7. Right of Holders To Receive Payment.
-----------------------------------
Notwithstanding any other provision in this
Indenture, the right of any Holder of a Security to receive
payment of the principal of and interest on such Security, on
or after the respective due dates expressed in such Security,
or to bring suit for the enforcement of any such payment on or
after the Stated Maturity or Interest Payment Date, as the case
may
-41-
be, is absolute and unconditional and shall not be impaired
or affected without the consent of such Holder.
Section 6.8. Collection Suit by Trustee.
--------------------------
If an Event of Default specified in clause (a) or (b)
of Section 6.1 with respect to Securities of any series occurs
and is continuing, the Trustee may recover judgment in its own
name and as trustee of an express trust in favor of the Holders
against the Company, the Guarantor or any other obligor on the
Securities of such series for the whole amount of principal of
and accrued interest remaining unpaid, together with interest
on overdue principal and, to the extent that payment of such
interest is lawful, interest on overdue installments of
interest, in each case at the rate per annum borne by the
Securities of such series and such further amount as shall be
sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel.
Section 6.9. Trustee May File Proofs of Claim.
--------------------------------
The Trustee may file such proofs of claim and other
papers or documents as may be necessary or advisable in order
to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel) and the Holders allowed
in any judicial proceedings relative to the Company or the
Guarantor (or any other obligor upon the Securities), their
creditors or their property and shall be entitled and empowered
to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same, and
any Custodian in any such judicial proceedings is hereby
authorized by each Holder to make such payments to the Trustee
and, in the event that the Trustee shall consent to the making
of such payments directly to the Holders, to pay to the Trustee
any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agent and
counsel, and any other amounts due the Trustee under Section
7.8. 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 of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Holder in any such
proceeding.
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Section 6.10. Priorities.
----------
If the Trustee collects any money pursuant to this
Article Six, it shall pay out such money in the following
order:
First: to the Trustee for amounts due under Section
7.8;
Second: to Holders for interest accrued, if any, on
the Securities of the applicable series, ratably, without
preference or priority of any kind, according to the
amounts due and payable on the Securities for interest;
Third: to Holders for principal owing under the
Securities of the applicable series, ratably, without
preference or priority of any kind, according to the
amounts due and payable on the Securities of the
applicable series for principal; and
Fourth: the balance, if any, to whomsoever may be
lawfully entitled thereto.
The Trustee, upon prior written notice to the
Company, may fix a record date and payment date for any payment
to Securityholders pursuant to this Section 6.10.
Section 6.11. Undertaking for Costs.
---------------------
In any suit for the enforcement of any right or
remedy under this Indenture or in any suit against the Trustee
for any action taken or omitted by it as Trustee, a court may
in its discretion require the filing by any party litigant in
the suit of an undertaking to pay the costs of the suit, and
the court in its discretion may assess reasonable costs,
including reasonable attorneys' fees, against any party
litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant.
This Section 6.11 does not apply to any suit by the Trustee,
any suit by a Holder pursuant to Section 6.7, or a suit by
Holders of more than 10% in aggregate principal amount of the
outstanding Securities of any series.
Section 6.12. Restoration of Rights and Remedies.
----------------------------------
If the Trustee or any Holder has instituted any
proceeding to enforce any right or remedy under this Indenture
or
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any Security and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case the
Company, the Trustee and the Holders shall, subject to any
determination in such proceeding, be restored severally and
respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee and the
Holders shall continue as though no such proceeding had been
instituted.
ARTICLE 7
TRUSTEE
Section 7.1. Duties.
------
(a) In case an Event of Default has occurred and is
continuing, with respect to Securities of any series, 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 Person would exercise or use under the
circumstances in the conduct of such Person's own affairs.
(b) Except during the continuance of an Event of
Default, with respect to the Securities of any series:
(1) the Trustee need perform, with respect to
Securities of such series, 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
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.
(c) No provision of this Indenture shall be
construed to relieve the Trustee from liability for its own
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negligent action, its own negligent failure to act, or its own
willful misconduct, except that
(1) this paragraph does not limit the effect of
paragraph (b) of this Section 7.1;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer, unless it
is proved that the Trustee was negligent in ascertaining
the pertinent facts; and
(3) the Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to
Section 6.5.
(d) 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.
(e) Every provision of this Indenture that in any
way relates to the Trustee is subject to paragraphs (a), (b),
(c) and (d) of this Section 7.1.
(f) The Trustee shall not be liable for interest on,
or be required to invest, any assets received by it except as
the Trustee may agree with the Company. Assets held in trust
by the Trustee need not be segregated from other assets except
to the extent required by law.
Section 7.2. Rights of Trustee.
-----------------
Subject to Section 7.1 hereof and the provisions of
TIA (S) 315:
(a) The Trustee may rely, and shall be protected
from acting or refraining from acting, on any document
believed by it to be genuine and to have been signed or
presented by the proper Person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting,
it may consult with counsel and may require an Officers'
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Certificate or an Opinion of Counsel, which shall conform
to Sections 11.4 and 11.5. The Trustee shall not be
liable for any action it takes or omits to take in good
faith in reliance on such certificate or opinion.
(c) The Trustee may act through its attorneys and
agents and shall not be responsible for the misconduct or
negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action
taken or omitted by it in good faith and believed by it to
be authorized or within the discretion, rights or powers
conferred upon it by this Indenture other than any
liabilities arising out of its own negligence.
(e) The Trustee may consult with counsel of its own
choosing and the advice or opinion of such counsel as to
matters of law shall be full and complete authorization
and protection in respect of any action taken, omitted or
suffered by it hereunder in good faith and in accordance
with the advice or opinion of such counsel.
(f) The Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
notice, request, direction, consent, order, bond,
debenture, 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.
(g) The Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Indenture at the request, order or direction of any of the
Holders pursuant to the provisions of this Indenture,
unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs,
expenses and liabilities which may be incurred therein or
thereby.
Section 7.3. Individual Rights of Trustee.
----------------------------
The Trustee, any Paying Agent, 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 7.11 and 7.12 and TIA (S)(S) 310 and 311, may otherwise
deal with the Company and its Subsidiaries with the same rights
it would have if it were not the Trustee, Paying Agent,
Registrar or such other agent.
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Section 7.4. Trustee's Disclaimer.
--------------------
The Trustee makes no representations as to the
validity or sufficiency of this Indenture or of the Securities,
it shall not be accountable for the Company's use or
application of the proceeds from the Securities, it shall not
be responsible for the use or application of any money received
by any Paying Agent other than the Trustee and it shall not be
responsible for any statement in the Securities other than the
Trustee's certificate of authentication.
Section 7.5. Notice of Default.
-----------------
If a Default or an Event of Default occurs and is
continuing and if it is known to the Trustee, the Trustee shall
mail to each Securityholder of the affected series notice of
the Default or Event of Default within 30 days thereafter;
provided, however, that, 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 fund installment, the Trustee shall
be protected in withholding such notice if and so long as the
board of directors, the executive committee of the board of
directors or a committee of the directors of the Trustee and/or
Trust Officers in good faith determines that the withholding of
such notice is in the interest of the Holders.
Section 7.6. Money Held in Trust.
-------------------
All moneys received by the Trustee shall, until used
or applied as herein provided, be held in trust for the
purposes for which they were received, but need not be
segregated from other funds except to the extent required
herein or by law. The Trustee shall not be under any liability
for interest on any moneys received by it hereunder.
Section 7.7. Reports by Trustee to Holders.
-----------------------------
Within 60 days after May 15 of each year beginning
with the May 15 following the date of this Indenture, the
Trustee shall, to the extent that any of the events described
in TIA (S) 313(a) has occurred within the previous twelve months,
but not otherwise, mail to each Holder a brief report dated as
of such May 15 that complies with TIA (S) 313(a). The Trustee
also shall comply with TIA (S)(S) 313(b) and 313(c).
A copy of each report at the time of its mailing to
Holders shall be mailed to the Company and filed with the SEC
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and each securities exchange, if any, on which the Securities
are listed.
The Company shall notify the Trustee in writing if
the Securities become listed on any securities exchange or
automatic quotation system.
Section 7.8. Compensation and Indemnity.
--------------------------
The Company covenants and agrees to pay the Trustee
from time to time reasonable compensation for its services.
The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company
shall reimburse the Trustee upon request for all reasonable
disbursements, expenses and advances incurred or made by it.
Such expenses shall include the reasonable compensation,
disbursements and expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee for, and hold
it harmless against, any loss or liability incurred by it
arising out of or in connection with the administration of this
trust and its rights or duties hereunder, including the costs
and expenses of defending itself against any claim or liability
in connection with the exercise or performance of any of its
powers or duties hereunder. The Trustee shall notify the
Company promptly of any claim asserted against the Trustee for
which it may seek indemnity. The Company shall defend the
claim and the Trustee shall cooperate in the defense. The
Trustee may have separate counsel and the Company shall pay the
reasonable fees and expenses of such counsel. The Company need
not pay for any settlement made without its written consent.
The Company need not reimburse any expense or indemnify against
any loss or liability to the extent incurred by the Trustee
through its negligence, bad faith or willful misconduct.
To secure the Company's payment obligations in this
Section 7.8, the Trustee shall have a Lien prior to the
Securities on all assets held or collected by the Trustee, in
its capacity as Trustee, except assets held in trust for the
benefit of the Holders of particular Securities.
When the Trustee incurs expenses or renders services
in connection with an Event of Default specified in Section
6.1(f) or (g) with respect to the Company or the Guarantor, the
expenses and the compensation for the services are intended to
constitute expenses of administration under any Bankruptcy Law.
-48-
The Company's obligations under this Section 7.8 and
any Lien arising hereunder shall survive the resignation or
removal of any trustee, the discharge of the Company's
obligations pursuant to Article Eight and/or the termination of
this Indenture.
Section 7.9. Replacement of Trustee.
----------------------
The Trustee may resign with respect to any series of
Securities issued hereunder by so notifying the Company. The
Holders of a majority in principal amount of the outstanding
Securities of any series may remove the Trustee by so notifying
the Company and the Trustee and may appoint a successor Trustee
with the Company's consent. The Company may remove the Trustee
with respect to any series of Securities if:
(a) the Trustee fails to comply with Section 7.11;
(b) the Trustee is adjudged a bankrupt or an
insolvent or an order for relief is entered with respect
to the Trustee under any Bankruptcy Law;
(c) a receiver or other public officer takes charge
of the Trustee or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy
exists in the office of Trustee for any reason with respect to
the Securities of one or more series, the Company shall notify
each Holder of such event and shall promptly appoint a
successor Trustee, with respect to the Securities of such
series. The Trustee shall be entitled to payment of its fees
and reimbursement of its expenses while acting as Trustee, and
to the extent such amounts remain unpaid, the Trustee that has
resigned or has been removed shall retain the Lien afforded by
Section 7.8. Within one year after the successor Trustee takes
office, the Holders of a majority in principal amount of the
outstanding Securities of any series may appoint a successor
Trustee to replace the successor Trustee appointed by the
Company with respect to the Securities of that series.
In the case of the appointment hereunder of a
successor Trustee with respect to all Securities, a successor
Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. Immediately after
that, the retiring Trustee shall transfer all property held by
it as
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Trustee to the successor Trustee, subject to the Lien
provided in Section 7.8, the resignation or removal of the
retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. A successor Trustee shall mail
notice of its succession to each Securityholder.
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 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 as 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 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, subject, nevertheless, to
its Lien, if any, provided for in Section 7.8.
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If a successor Trustee with respect to the Securities
of one or more series does not take office within 60 days after
the retiring Trustee resigns or is removed, the retiring
Trustee, the Company or the Holders of at least 10% in
principal amount of the outstanding Securities of such series
may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.11, any
Holder may petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor
Trustee.
Any resignation or removal of the Trustee with
respect to any series and any appointment of a successor
trustee with respect to such series pursuant to any provisions
of this Section 7.9 shall become effective upon acceptance of
appointment by the successor trustee.
Notwithstanding replacement of the Trustee pursuant
to this Section 7.9, the Company's obligations under Section
7.8 shall continue for the benefit of the retiring Trustee.
Section 7.10. Successor Trustee by Merger, etc.
--------------------------------
If the Trustee consolidates with, merges or converts
into, or transfers all or substantially all of its corporate
trust business to, another corporation or national banking
association, the resulting, surviving or transferee corporation
or national banking association without any further act shall,
if such resulting, surviving or transferee corporation or
national banking association is otherwise eligible hereunder,
be the successor Trustee.
Section 7.11. Eligibility; Disqualification.
-----------------------------
There shall at all times be a Trustee hereunder which
shall be eligible to act as Trustee under TIA (S)(S) 310(a)(1) and
310(a)(5) and which shall have a combined capital and surplus
of at least $100,000,000. If such corporation publishes
reports of condition at least annually, pursuant to law or to
the requirements of federal, state, territorial or District of
Columbia supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of
such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be
-51-
eligible in accordance with the provisions of this Section, the
Trustee shall resign immediately in the manner and with the
effect hereinabove specified in this Article. The Trustee
shall comply with TIA (S) 310(b).
Section 7.12. Preferential Collection of Claims
Against Company.
---------------------------------
The Trustee shall comply with TIA (S) 311(a) excluding
any creditor relationship listed in TIA (S) 311(b). If the
present or any future Trustee shall resign or be removed, it
shall be subject to TIA (S) 311(a) to the extent provided
therein.
ARTICLE 8
SATISFACTION AND DISCHARGE OF INDENTURE
Section 8.1. Termination of the Company's
and the Guarantor's Obligations.
-------------------------------
Unless otherwise specified in a supplemental
indenture, Board Resolution or Officers' Certificate as
contemplated by Section 2.2(a) with respect to any series of
Securities, the Company may terminate its obligations and the
obligations of the Guarantor under this Indenture with respect
to any series of Securities, except those obligations referred
to in the penultimate paragraph of this Section 8.1, if all
Securities of such series previously authenticated and
delivered (other than destroyed, lost or stolen Securities
which have been replaced or paid or Securities for whose
payment money has theretofore been deposited with the Trustee
or the Paying Agent in trust or segregated and held in trust by
the Company and thereafter repaid to the Company, as provided
in Section 8.4) have been delivered to the Trustee for
cancellation and the Company has paid all sums payable by it
hereunder, or if:
(a) either (i) pursuant to Article Three, the
Company shall have given notice to the Trustee and mailed
a notice to each Securityholder of such series of the
redemption of all of the Securities of such series under
arrangements satisfactory to the Trustee for the giving of
such notice or (ii) all Securities of such series have
otherwise become due and payable hereunder;
(b) the Company shall have irrevocably deposited or
caused to be deposited with the Trustee or a trustee
satisfactory to the Trustee, under the terms of an
-52-
irrevocable trust agreement in form and substance
satisfactory to the Trustee, as trust funds in trust
solely for the benefit of the Securityholders of such
series for that purpose, money in such amount as is
sufficient without consideration of reinvestment of such
interest, to pay principal of and interest on the
outstanding Securities of such series to maturity or
redemption; provided that the Trustee shall have been
--------
irrevocably instructed to apply such money to the payment
of said principal and interest with respect to such
Securities;
(c) no Default or Event of Default with respect to
this Indenture applicable to such series or the Securities
of such series shall have occurred and be continuing on
the date of such deposit or shall occur as a result of
such deposit and such deposit will not result in a breach
or violation of, or constitute a default under, any other
instrument to which the Company or the Guarantor is a
party or by which it is bound;
(d) the Company and the Guarantor shall have paid
all other sums payable by it hereunder; and
(e) the Company shall have delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent providing for the
termination of the Company's obligations under such
Securities and this Indenture applicable to such
Securities have been complied with. Such Opinion of
Counsel shall also state that such satisfaction and
discharge does not result in a default under any agreement
or instrument then known to such counsel that binds or
affects the Company.
Notwithstanding the foregoing paragraph, the
Company's and, to the extent applicable, the Guarantor's
obligations in Sections 2.6, 2.7, 2.8, 2.9, 4.1, 4.2, 7.8, 8.4,
8.5, 10.1 and 10.2 shall survive until the Securities of such
series are no longer outstanding pursuant to the last paragraph
of Section 2.9. After the Securities are no longer
outstanding, the Company's and, to the extent applicable, the
Guarantor's obligations in Sections 7.8, 8.4 and 8.5 shall
survive.
After such delivery or irrevocable deposit the
Trustee upon request shall acknowledge in writing the discharge
of the Company's and the Guarantor's obligations under the
Securities of such series and this Indenture applicable to such
Securities except for those surviving obligations specified
above.
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Section 8.2. Legal Defeasance and
Covenant Defeasance.
--------------------
(a) Unless otherwise specified in a supplemental
indenture, Board Resolution or Officers' Certificate as
contemplated by Section 2.2(a) with respect to any series of
Securities, the Company may, at its option by Board Resolution
or by an Officers' Certificate, at any time, with respect to
the Securities of any series, elect to have either paragraph
(b) or paragraph (c) below be applied to the outstanding
Securities of such series upon compliance with the conditions
set forth in paragraph (d).
(b) Upon the Company's exercise under paragraph (a)
of the option applicable to this paragraph (b), each of the
Company and the Guarantor shall be deemed to have been released
and discharged from its obligations with respect to the
outstanding Securities of such series on the date the
conditions set forth below are satisfied (hereinafter, "Legal
Defeasance"). For this purpose, such Legal Defeasance means
that the Company shall be deemed to have paid and discharged
the entire Indebtedness represented by the outstanding
Securities of such series, which shall thereafter be deemed to
be "outstanding" only for the purposes of paragraph (e) below
and the other Sections of and matters under this Indenture
applicable to such Securities referred to in (i) and (ii)
below, and to have satisfied all its other obligations under
such Securities and this Indenture applicable to such
Securities insofar as such Securities are concerned (and the
Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), except for the following
which shall survive until otherwise terminated or discharged
hereunder: (i) the rights of Holders of outstanding Securities
of such series to receive solely from the trust fund described
in paragraph (d) below and as more fully set forth in such
paragraph payments in respect of the principal of and interest
on such Securities when such payments are due, (ii) the
Company's and, to the extent applicable, the Guarantor's
obligations with respect to such Securities under Sections 2.7,
2.8 and 4.2 and, with respect to the Trustee, under Section
7.8, (iii) the rights, powers, trusts, duties and immunities of
the Trustee hereunder and (iv) this Section 8.2 and Section
8.5. Subject to compliance with this Section 8.2, the Company
may exercise its option under this paragraph (b)
notwithstanding the prior exercise of its option under
paragraph (c) below with respect to Securities of any series.
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(c) Upon the Company's exercise under paragraph (a)
of the option applicable to this paragraph (c), the Company
and, to the extent applicable, the Guarantor shall be released
and discharged from its obligations under any covenant
contained in Article 5 and in Section 4.3, except as to the
corporate existence of the Company and the Guarantor and in
Sections 4.4 through 4.8 and in certain other sections with
respect to the outstanding Securities of such series identified
in any supplemental indenture pursuant to Section 2.2(a) on and
after the date the conditions set forth below are satisfied
(hereinafter, "Covenant Defeasance"), and such Securities shall
thereafter be deemed to be not "outstanding" for the purpose 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. For this purpose, such Covenant
Defeasance means that, with respect to such outstanding
Securities, the Company and, to the extent applicable, the
Guarantor 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 6.1(c) with respect to such series of Securities,
but, except as specified above, the remainder of this Indenture
applicable to such Securities and such Securities shall be
unaffected thereby.
(d) The following shall be the conditions to
application of either paragraph (b) or paragraph (c) above to
the outstanding Securities of such series:
(i) the Company shall irrevocably have deposited or
caused to be deposited with the Trustee (or another
trustee satisfying the requirements of Section 7.11 who
shall agree to comply with the provisions of this Section
8.2 applicable to it) as trust funds in trust for the
purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the
benefit of the Holders of Securities of such series, (x)
money in an amount or (y) direct non-callable obligations
of, or non-callable obligations guaranteed by, the United
States of America for the payment of which guarantee or
obligation the full faith and credit of the United States
is pledged ("U.S. Government Obligations") maturing as to
-55-
principal and interest in such amounts of money and at
such times as are sufficient without consideration of any
reinvestment of such interest, to pay principal of and
interest on the outstanding Securities of such series not
later than one day before the due date of any payment, or
(z) a combination thereof, sufficient, in the opinion of a
nationally recognized firm of independent public
accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge and which
shall be applied by the Trustee (or other qualifying
trustee) to pay and discharge principal of and interest on
the outstanding Securities of such series on the Maturity
Date or otherwise in accordance with the terms of this
Indenture and of the Securities of such series; provided,
--------
however, that the Trustee (or other qualifying trustee)
-------
shall have received an irrevocable written order from the
Company instructing the Trustee (or other qualifying
trustee) to apply such money or the proceeds of such U.S.
Government Obligations to said payments with respect to
the Securities of such series;
(ii) no Default or Event of Default with respect to
such series of Securities shall have occurred and be
continuing on the date of such deposit;
(iii) such deposit will not result in a breach or
violation of, or constitute a default under, any other
instrument to which the Company is a party or by which it
is bound;
(iv) in the case of an election under paragraph (b)
above, the Company shall have delivered to the Trustee an
Opinion of Counsel stating that (x) the Company has
received from, or there has been published by, the
Internal Revenue Service a ruling or (y) since the date of
this Indenture, there has been a change in the applicable
Federal income tax law, in either case to the effect that,
and based thereon such opinion shall confirm that, the
Holders of the outstanding Securities of such series will
not recognize income, gain or loss for Federal income tax
purposes as a result of such Legal Defeasance and will be
subject to Federal income tax on the same amounts, in the
same manner and at the same times as would have been the
case if such Legal Defeasance had not occurred;
(v) in the case of an election under paragraph (c)
above, the Company shall have delivered to the Trustee an
-56-
Opinion of Counsel to the effect that the Holders of the
outstanding Securities of such series will not recognize
income, gain or loss for Federal income tax purposes as a
result of such Covenant Defeasance and will be subject to
Federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such
Covenant Defeasance had not occurred;
(vi) the Company shall have delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent provided for
relating to either the Legal Defeasance under paragraph
(b) above or the Covenant Defeasance under paragraph (c)
above, as the case may be, have been complied with; and
(vii) the Company shall have delivered to the Trustee
an amount sufficient to cover its fees and expenses as
Trustee under this Indenture through the term of the
Securities to be defeased, or made adequate provision
therefor to the satisfaction of the Trustee.
(e) All money and U.S. Government Obligations
(including the proceeds thereof) deposited with the Trustee (or
other qualifying trustee; collectively for purposes of this
paragraph (e), the "Trustee") pursuant to paragraph (d) above
in respect of the outstanding Securities of such series shall
be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and this Indenture applicable
to such Securities, to the payment, either directly or through
any Paying Agent (other than the Company or any Affiliate of
the Company) as the Trustee may determine, to the Holders of
such Securities of all sums due and to become due thereon in
respect of principal and interest, but such money need not be
segregated from other funds except to the extent required by
law.
The Company shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on or assessed
against the U.S. Government Obligations deposited pursuant to
paragraph (d) above or the principal and interest received in
respect thereof other than any such tax, fee or other charge
which by law is for the account of the Holders of the
outstanding Securities of such series.
Anything in this Section 8.2 to the contrary
notwithstanding, the Trustee shall deliver or pay to the
Company from time to time upon the request, in writing, of the
Company any
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money or U.S. Government Obligations held by it as
provided in paragraph (d) above which, in the opinion of a
nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect an equivalent Legal
Defeasance or Covenant Defeasance.
Section 8.3. Application of Trust Money.
--------------------------
The Trustee or a trustee satisfactory to the Trustee,
the Company and the Guarantor shall hold in trust money or
U.S. Government Obligations deposited with it pursuant to
Sections 8.1 and 8.2, and shall apply the deposited money and
the money from U.S. Government Obligations in accordance with
this Indenture to the payment of principal of and interest on
the Securities of such series.
Section 8.4. Repayment to Company.
--------------------
Subject to Sections 7.8, 8.1 and 8.2, the Trustee
shall promptly pay to the Company, upon receipt by the Trustee
of an Officers' Certificate, any excess money, determined in
accordance with Section 8.2, held by it at any time. The
Trustee and the Paying Agent shall pay to the Company, upon
receipt by the Trustee or the Paying Agent, as the case may be,
of an Officers' Certificate, any money held by it for the
payment or principal or interest that remains unclaimed for two
years after payment to the Securityholders of such series is
required; provided, however, that the Trustee and the Paying
-------- -------
Agent before being required to make any payment may, but need
not, at the expense of the Company cause to be published once
in a newspaper of general circulation in The City of New York
or mail to each Securityholder of such series entitled to such
money notice that such money remains unclaimed and that after a
date specified therein, which shall be at least 30 days from
the date of such publication or mailing, any unclaimed balance
of such money then remaining will be repaid to the Company.
After payment to the Company, Securityholders entitled to money
must look solely to the Company for payment as general
creditors unless an applicable abandoned property law
designates another Person, and all liability of the Trustee or
Paying Agent with respect to such money shall thereupon cease.
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Section 8.5. Reinstatement.
-------------
If the Trustee or Paying Agent is unable to apply any
money or U.S. Government Obligations to any payment in respect
of Securities of any series in accordance with this Indenture
by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then and
only then, the Company's and the Guarantor's obligations under
this Indenture and the Securities of such series shall be
revived and reinstated as though no deposit had been made
pursuant to this Indenture until such time as the Trustee is
permitted to apply all such money or U.S. Government
Obligations in accordance with this Indenture; provided,
--------
however, that if the Company or the Guarantor has made any
- -------
payment of principal of or interest on any Securities of such
series because of the reinstatement of its obligations, the
Company or the Guarantor, as the case may be, shall be
subrogated to the rights of the Holders of Securities of such
series to receive such payment from the money or U.S.
Government Obligations held by the Trustee or Paying Agent.
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.1. Without Consent of Holders.
--------------------------
The Company, the Guarantor and the Trustee may amend,
waive or supplement this Indenture or the Securities of any
series without notice to or consent of any Holder:
(a) to cure any ambiguity, defect or inconsistency;
(b) to evidence the succession of another Person to
the Company or the Guarantor, and the assumption by any
such successor of the obligations of the Company or the
Guarantor herein and in the Securities of any series in
accordance with Article Five;
(c) to provide for uncertificated Securities in
addition to certificated Securities;
(d) to comply with any requirements of the SEC in
order to effect or maintain the qualification of this
Indenture under the TIA;
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(e) to make any change that would provide any
additional benefit or rights to the Holders or that does
not adversely affect the rights of any Holder; or
(f) to establish the form or terms of Securities of
any series as permitted by Sections 2.1 and 2.2(a),
respectively.
Upon the request of the Company accompanied by a
resolution of its Board of Directors, and in the case of an
amendment to Article 10 hereof adversely affecting the Guarantor,
the Guarantor's Board of Directors, authorizing the execution of
any such supplemental indenture, and upon receipt by the
Trustee of the documents described in Section 9.6 hereof, the
Trustee shall join with the Company and, as the case may be,
the Guarantor, in the execution of any supplemental indenture
authorized or permitted by the terms of this Indenture and to
make any further appropriate agreements and stipulations which
may be therein contained, but the Trustee shall not be
obligated to enter into any such supplemental indenture which
affects its own rights, duties, protections or immunities under
this Indenture or otherwise.
Section 9.2. With Consent of Holders.
-----------------------
Subject to Section 6.4, the Company, the Guarantor
and the Trustee may amend or supplement this Indenture or the
Securities of any series or any supplemental indenture relating
to any series of Securities with the written consent of the
Holders of not less than a majority in aggregate principal
amount of the Securities of each series affected then
outstanding, and the Holders of not less than a majority in
aggregate principal amount of the Securities of each series
affected then outstanding by written notice to the Trustee may
waive future compliance by the Company and the Guarantor with
any provision of this Indenture, such Securities or any
supplemental indenture relating to such Securities.
Upon the request of the Company, accompanied by a
resolution of its Board of Directors, and in the case of an
amendment to Article 10 hereof adversely affecting the Guarantor,
the Guarantor's Board of Directors, authorizing the execution of
any supplemental indenture, and upon the filing with the
Trustee of evidence of the consent of the Securityholders as
aforesaid, and upon receipt by the Trustee of the documents
described in Section 9.6 hereof, the Trustee shall join with
the Company,
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and, as the case may be, the Guarantor in the execution of such
supplemental indenture unless such supplemental indenture affects
the Trustee's own rights, duties, protections or immunities under
this Indenture or otherwise, in which case the Trustee may in its
discretion, but shall not be obligated to, enter into such
supplemental indenture.
Notwithstanding the provisions of this Section 9.2,
without the consent of each Holder affected, an amendment or
waiver, including a waiver pursuant to Section 6.4, may not:
(a) reduce the percentage in aggregate outstanding
principal amount of Securities of any series the Holders
of which must consent to an amendment, supplement or
waiver of any provision of this Indenture, the Securities
of such series or any supplemental indenture;
(b) reduce the rate or change the time for payment
of interest on any Security of any series or change the
method or formula for calculating interest;
(c) reduce the principal amount outstanding of or
extend the fixed maturity of any Security of any series or
alter the redemption provisions with respect thereto or
reduce the amount of the principal of any outstanding
Discount Securities that would be due and payable upon
declaration of acceleration of maturity thereof;
(d) waive a default in the payment of the principal
of or interest on, or redemption or an offer to purchase
required hereunder with respect to, any Security of any
series;
(e) make the principal of or interest on any
Security of any series payable in money or in a manner
other than that stated in the Security;
(f) modify this Section 9.2 or Section 6.4 or
Section 6.7;
(g) impair the right to institute suit for the
enforcement of any payment on or with respect to the
Securities of any series;
(h) make such other changes as may require the
consent of each Holder so affected pursuant to any
supplemental indenture; or
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(i) release the Guarantor from its obligations under
the Guarantee or this Indenture or make any other change
to Article 10 that adversely affects the legal rights of
Holders of the Securities.
It shall not be necessary for the consent of the
Holders under this Section 9.2 to approve the particular form
of any proposed amendment, supplement or waiver, but it shall
be sufficient if such consent approves the substance thereof.
After an amendment, supplement or waiver under this
Section 9.2 becomes effective, the Company shall mail to the
Holders of each Security affected thereby, with a copy to the
Trustee, a notice briefly describing the amendment, supplement
or waiver. Any failure of the Company to mail such notice, or
any defect therein, shall not, however, in any way impair or
affect the validity of any supplemental indenture.
Section 9.3. Compliance with Trust Indenture Act.
-----------------------------------
Every amendment of or supplement to this Indenture or
the Securities shall comply with the TIA as then in effect.
Section 9.4. Revocation and Effect of Consents.
---------------------------------
Until an amendment, supplement or waiver becomes
effective with respect to a series of Securities, a consent to
it by a Holder of a Security of such series is a continuing
consent by such Holder and every subsequent Holder of that
Security or portion of that Security that evidences the same
debt as the consenting Holder's Security, even if notation of
the consent is not made on any Security. However, any such
Holder or subsequent Holder may revoke the consent as to his
Security or portion of a Security prior to such amendment,
supplement or waiver becoming effective as to the Securities of
such series. Such revocation shall be effective only if the
Trustee receives the notice of revocation before the date the
amendment, supplement or waiver becomes effective.
Notwithstanding the above, nothing in this paragraph shall
impair the right of any Holder under (S) 316(b) of the TIA.
The Company may, but shall not be obligated to, fix a
record date for the purpose of determining the Holders entitled
to consent to any amendment, supplement or waiver. If a record
date is fixed, then notwithstanding the second and third
sentences of the immediately preceding paragraph, those Persons
who were Holders at such record date (or their duly designated
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proxies), and only those Persons, shall be entitled to consent
to such amendment, supplement or waiver or to revoke any
consent previously given, whether or not such Persons continue
to be Holders after such record date. Such consent shall be
effective only for actions taken within 90 days after such
record date.
After an amendment, supplement or waiver becomes
effective, it shall bind every Securityholder of such series
unless it makes a change described in any of clauses (a)
through (i) of Section 9.2; if it makes such a change, the
amendment, supplement or waiver shall bind every subsequent
Holder of a Security of such series or portion of a Security
that evidences the same debt as the consenting Holder's
Security.
Section 9.5. Notation on or Exchange of Securities.
-------------------------------------
If an amendment, supplement or waiver changes the
terms of a Security of any series, the Trustee shall (in
accordance with the specific direction of the Company) request
the Holder of such Security to deliver it to the Trustee. The
Trustee shall (in accordance with the specific direction of the
Company) place an appropriate notation on such Security about
the changed terms and return it to the Holder. Alternatively,
if the Company or the Trustee so determines, the Company in
exchange for such Security shall issue and the Trustee shall
authenticate a new Security that reflects the changed terms.
Failure to make the appropriate notation or issue a new
Security shall not affect the validity and effect of such
amendment, supplement or waiver.
Section 9.6. Trustee May Sign Amendments, etc.
--------------------------------
The Trustee shall sign any amendment, supplement or
waiver authorized pursuant to this Article Nine if the
amendment, supplement or waiver does not adversely affect the
rights, duties, liabilities or immunities of the Trustee. If
it does, the Trustee may, but need not, sign it. In signing or
refusing to sign such amendment, supplement or waiver, the
Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Officers' Certificate and an
Opinion of Counsel stating that the execution of any amendment,
supplement or waiver is authorized or permitted by this
Indenture, that it is not inconsistent herewith and that it
will be valid and binding upon the Company in accordance with
its terms.
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ARTICLE 10
GUARANTEE
Section 10.1. Unconditional Guarantee.
-----------------------
The Guarantor hereby unconditionally and irrevocably
guarantees to each Holder of a Security of each series
authenticated and delivered by the Trustee the due and punctual
payment of the principal of (including any amount in respect of
original issue discount), and interest, if any (together with
any additional amounts payable pursuant to the terms of such
Security), on such Security and the due and punctual payment of
the sinking fund payments, if any, and analogous obligations,
if any, provided for pursuant to the terms of such Security,
when and as the same shall become due and payable, whether at
maturity or upon redemption or upon declaration of acceleration
or otherwise according to the terms of such Security and of
this Indenture. In case of default by the Company in the
payment of any such principal (including any amount in respect
of original issue discount), interest (together with any
additional amounts payable pursuant to the terms of such
Security), sinking fund payment, or analogous obligation, the
Guarantor agrees duly and punctually to pay the same. The
Guarantor hereby agrees that its obligations hereunder shall be
absolute and unconditional irrespective of any extension of the
time for payment of any such Security, any modification of any
such Security, any invalidity, irregularity or unenforceability
of any such Security or this Indenture, any failure to enforce
the same or any waiver, modification or indulgence granted to
the Company with respect thereto by the Holder of such Security
or the Trustee, or any other circumstances which may otherwise
constitute a legal or equitable discharge of a surety or
guarantor. The Guarantor hereby waives diligence, presentment,
demand of payment, filing of claims with a court in the event
of merger or bankruptcy of the Company, any right to require a
demand or proceeding first against the Company, protest or
notice with respect to any such Security or the Indebtedness
evidenced thereby and all demands whatsoever, and covenants
that this guarantee will not be discharged as to any such
Security except by payment in full of the principal of
(including any amount payable in respect of original issue
discount) and interest, if any (together with any additional
amounts payable pursuant to the terms of such Security),
thereon.
Until the principal of and interest on the Securities
and all other amounts payable by the Company or the Guarantor
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under this Indenture shall have been paid in full, the
Guarantor irrevocably waives any and all rights to which it may
be entitled, by operation of law or otherwise, upon making any
payment hereunder to exercise its rights to be subrogated to
the rights of the payee against the Company with respect to
such payment or otherwise to be reimbursed, indemnified or
exonerated by the Company in respect thereof; at any time
thereafter, the Guarantor shall be free to exercise any of such
rights.
The guarantee set forth in this Section shall not be
valid or become obligatory for any purpose with respect to a
Security of any series until the certificate of authentication
on such Security shall have been signed by the Trustee.
Section 10.2. Execution of Guarantee.
----------------------
To evidence its guarantee specified in Section 10.1
to the Holders of Securities of any series, the Guarantor
hereby agrees to execute the Guarantee in substantially the
form above recited to be endorsed on each Security of such
series authenticated and delivered by the Trustee. Such
Guarantee shall be executed on behalf of the Guarantor by both
(a) its Chairman or its Vice Chairman or its President or any
Vice President and (b) its Treasurer or any Assistant Treasurer
or its Secretary or any Assistant Secretary, prior to the
authentication of the Security on which it is endorsed, and the
delivery of such Security by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery
of such Guarantee on behalf of the Guarantor. The seal of the
Guarantor may be in the form of a facsimile thereof and may be
impressed, affixed, imprinted or otherwise reproduced on the
Guarantees. Typographical and other minor errors or defects in
any such reproduction of any such signature shall not affect
the validity or enforceability of any Guarantee that has been
duly authenticated and delivered by the Trustee.
Such signatures may be the manual or facsimile
signatures of such officers and may be imprinted or otherwise
reproduced on the Guarantees. In case any officer of the
Guarantor who shall have signed any of the Guarantees shall
cease to be an officer before the Securities on which such
Guarantees are endorsed shall have been authenticated and
delivered by the Trustee or disposed of by the Company, such
Securities nevertheless may be authenticated and delivered or
disposed of as though the Person who signed such Guarantees had
not ceased to be such officer, and any Guarantees may be signed
on behalf of
-65-
the Guarantor by such Persons as, at the actual date of the
execution of such Guarantees, shall be the proper officers of the
Guarantor, although at the date of such Securities or of the
execution of this Indenture any such Person was not such an
officer.
ARTICLE 11
MISCELLANEOUS
Section 11.1. Trust Indenture Act of 1939.
---------------------------
This Indenture is subject to the provisions of the
TIA that are required to be a part of this Indenture, and
shall, to the extent applicable, be governed by such
provisions.
If any provision of this Indenture modifies or
excludes any provision of the TIA that may be so modified or
excluded, the latter provision shall be deemed to apply to this
Indenture as so modified or excluded, as the case may be.
Section 11.2. Notices.
-------
Any notice or communication shall be sufficiently
given if in writing and delivered in Person or mailed by first
class mail, postage prepaid, addressed as follows:
If to the Company, to:
KELSEY-HAYES COMPANY
11878 Hubbard Road
Livonia, Michigan 48150
Attention: Treasurer
If to the Guarantor, to:
VARITY CORPORATION
672 Delaware Avenue
Buffalo, New York 14209
Attention: Treasurer
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If to the Trustee, to:
MANUFACTURERS AND TRADERS TRUST COMPANY
One M&T Plaza
Buffalo, New York 14240
Attention: Corporate Trust Department
The parties hereto by notice to the other parties may
designate additional or different addresses for subsequent
notices or communications.
Any notice or communication mailed, postage prepaid,
to a Holder, including any notice delivered in connection with
TIA (S) 310(b), TIA (S) 313(c), TIA (S) 314(a) and TIA (S) 315(b),
shall be mailed by first class mail to such Holder at the
address of such Holder as it appears on the Securities register
maintained by the Registrar and shall be sufficiently given to
such Holder if so mailed within the time prescribed. Copies of
any such communication or notice to a Holder shall also be
mailed to the Trustee.
Failure to mail a notice or communication to a
Securityholder or any defect in it shall not affect its
sufficiency with respect to other Holders. Except for a notice
to the Trustee, which is deemed given only when received, if a
notice or communication is mailed in the manner provided above,
it is duly given, whether or not the addressee receives it.
Section 11.3. Communication by Holders with
Other Holders.
-----------------------------
Holders may communicate pursuant to TIA (S) 312(b) with
other Holders with respect to their rights under this Indenture
or the Securities. The Company, the Guarantor, the Trustee,
the Registrar and any other Person shall have the protection of
TIA (S) 312(c).
Section 11.4. Certificate and Opinion as to
Conditions Precedent.
-----------------------------
Upon any request or application by the Company or the
Guarantor to the Trustee to take any action under this
Indenture, the Company or the Guarantor shall furnish to the
Trustee:
(1) an Officers' Certificate stating that, in the
opinion of the signers, all conditions precedent, if any,
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provided for in this Indenture relating to the proposed
action have been complied with; and
(2) an Opinion of Counsel stating that, in the
opinion of such counsel, all such conditions precedent
have been complied with.
Section 11.5. Statements Required in Certificate
or Opinion.
----------------------------------
Each certificate or opinion with respect to
compliance with a condition or covenant provided for in this
Indenture shall include:
(1) a statement that the Person making such
certificate or rendering such opinion has read such
covenant or condition;
(2) a brief statement as to the nature and scope of
the examination or investigation upon which the statements
or opinions contained in such certificate or opinion are
based;
(3) a statement that, in the opinion of such Person,
he has made such examination or investigation as is
necessary to enable him to express an opinion as to
whether or not such covenant or condition has been
compiled with; and
(4) a statement as to whether or not, in the opinion
of such Person, such condition or covenant has been
compiled with; provided, however, that with respect to
-------- -------
matters of fact an Opinion of Counsel may rely on an
Officers' Certificate or certificates of public officials.
Section 11.6. Rules by Trustee, Paying Agent,
Registrar.
------------------------------
The Trustee may make reasonable rules for action by
or at a meeting of Securityholders. The Paying Agent or
Registrar may make reasonable rules for its functions.
Section 11.7. Governing Law.
-------------
This Indenture, the Securities and the Guarantee
shall be governed by and construed in accordance with the laws
of the State of New York, without regard to principles of
conflicts of law.
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Section 11.8. No Interpretation of
Other Agreements.
--------------------
This Indenture may not be used to interpret another
indenture, loan or debt agreement of the Company or any of its
Subsidiaries. Any such indenture, loan or debt agreement may
not be used to interpret this Indenture.
Section 11.9. No Recourse Against Others.
--------------------------
A director, officer, employee, shareholder or
Affiliate, as such, of the Company or the Guarantor shall not
have any liability for any obligations of the Company or the
Guarantor under the Securities, the Guarantee or this Indenture
or for any claim based on, in respect of or by reason of such
obligations or their creation. Each Holder by accepting a
Security waives and releases all such liability.
Section 11.10. Successors.
----------
All agreements of the Company and the Guarantor in
this Indenture and the Securities shall bind its successors.
All agreements of the Trustee in this Indenture shall bind its
successors.
Section 11.11. Duplicate Originals.
-------------------
The parties may sign any number of copies of this
Indenture. Each signed copy shall be an original, but all such
executed copies together represent the same agreement.
Section 11.12. Separability.
------------
In case any provision in this Indenture or the
Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired
thereby, and a Holder shall have no claim therefor against any
party hereto.
Section 11.13. Table of Contents, Headings, etc.
--------------------------------
The Table of Contents, Cross-Reference Table and
headings of the Articles and Sections of this Indenture have
been inserted for convenience of reference only, are not to be
considered a part hereof, and shall in no way modify or
restrict any of the terms or provisions hereof.
-69-
Section 11.14. Benefits of Indenture.
---------------------
Nothing in this Indenture, in the Securities or in
the Guarantee, express or implied, shall give to any Person,
other than the parties hereto and their successors hereunder,
and the Holders, any benefit or any legal or equitable right,
remedy or claim under this Indenture.
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IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed as of the day and year first
above written.
KELSEY-HAYES COMPANY, as Issuer
By:_________________________________
Name:
Title:
VARITY CORPORATION, as Guarantor
By:_________________________________
Name:
Title:
MANUFACTURERS AND TRADERS TRUST
COMPANY,
as Trustee
By:_________________________________
Name:
Title: