EXHIBIT 4.4
_______________________________________________________________
_______________________________________________________________
____________________
VARITY CORPORATION, as Issuer,
and
MANUFACTURERS AND TRADERS TRUST COMPANY, as Trustee
____________________
INDENTURE
Dated as of , 1995
____________________
Subordinated 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
_______________
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
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.................................... 14
Section 2.4. Registrar and Paying Agent...................... 16
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.............. 19
Section 2.10. Temporary Securities............................ 20
Section 2.11. Cancellation.................................... 20
Section 2.12. Payment of Interest; Defaulted
Interest...................................... 21
Section 2.13. CUSIP Number.................................... 21
Section 2.14. Deposit of Moneys............................... 22
Section 2.15. Persons Deemed Owners........................... 22
Section 2.16. Computation of Interest......................... 22
Section 2.17. Global Securities............................... 22
ARTICLE 3
REDEMPTION OF SECURITIES
Section 3.1. Notices to the Trustee.......................... 23
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.......................................... 26
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ARTICLE 4
COVENANTS
Section 4.1. Payment of Securities........................... 27
Section 4.2. Maintenance of Office or Agency................. 27
Section 4.3. Corporate Existence............................. 28
Section 4.4. Compliance Certificate.......................... 28
Section 4.5. SEC Reports..................................... 29
Section 4.6. Waiver of Stay, Extension or Usury
Laws.......................................... 30
Section 4.7. Limitation on Liens............................. 30
Section 4.8. Limitation on Sale and Lease-Back
Transactions.................................. 32
ARTICLE 5
SUCCESSOR CORPORATION
Section 5.1. When Company May Merge, etc..................... 32
Section 5.2. Successor Substituted........................... 33
ARTICLE 6
REMEDIES
Section 6.1. Events of Default............................... 34
Section 6.2. Acceleration.................................... 36
Section 6.3. Other Remedies.................................. 38
Section 6.4. Waiver of Past Defaults......................... 38
Section 6.5. Control by Majority............................. 38
Section 6.6. Limitation on Suits............................. 39
Section 6.7. Right of Holders To Receive Payment............. 40
Section 6.8. Collection Suit by Trustee...................... 40
Section 6.9. Trustee May File Proofs of Claim................ 40
Section 6.10. Priorities...................................... 41
Section 6.11. Undertaking for Costs........................... 41
Section 6.12. Restoration of Rights and Remedies.............. 42
ARTICLE 7
TRUSTEE
Section 7.1. Duties.......................................... 42
Section 7.2. Rights of Trustee............................... 43
Section 7.3. Individual Rights of Trustee.................... 45
Section 7.4. Trustee's Disclaimer............................ 45
Section 7.5. Notice of Default............................... 45
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Section 7.6. Money Held in Trust............................. 45
Section 7.7. Reports by Trustee to Holders................... 46
Section 7.8. Compensation and Indemnity...................... 46
Section 7.9. Replacement of Trustee.......................... 47
Section 7.10. Successor Trustee by Merger, etc................ 49
Section 7.11. Eligibility; Disqualification................... 50
Section 7.12. Preferential Collection of Claims
Against Company............................... 50
ARTICLE 8
SATISFACTION AND DISCHARGE OF INDENTURE
Section 8.1. Termination of the Company's
Obligations................................... 50
Section 8.2. Legal Defeasance and Covenant
Defeasance.................................... 52
Section 8.3 Application of Trust Money...................... 56
Section 8.4. Repayment to Company............................ 56
Section 8.5. Reinstatement................................... 57
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............. 60
Section 9.4. Revocation and Effect of Consents............... 60
Section 9.5. Notation on or Exchange of
Securities.................................... 61
Section 9.6. Trustee May Sign Amendments, etc................ 62
ARTICLE 10
SUBORDINATION
Section 10.1. Agreement to Subordinate........................ 62
Section 10.2. Liquidation; Dissolution; Bankruptcy............ 62
Section 10.3. Default on Senior Debt.......................... 63
Section 10.4. Acceleration of Securities...................... 64
Section 10.5. When Distribution Must be Paid Over............. 64
Section 10.6. Notice by Company............................... 65
Section 10.7. Subrogation..................................... 65
Section 10.8. Relative Rights................................. 65
Section 10.9. Subordination May Not Be Impaired by
Company....................................... 66
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Section 10.10. Distribution or Notice to
Representative................................ 66
Section 10.11. Rights of Trustee and Paying Agent.............. 66
Section 10.12. Authorization to Effect
Subordination................................. 67
ARTICLE 11
MISCELLANEOUS
Section 11.1. Trust Indenture Act of 1939..................... 67
Section 11.2. Notices......................................... 68
Section 11.3. Communication by Holders with Other
Holders....................................... 68
Section 11.4. Certificate and Opinion as to
Conditions Precedent.......................... 69
Section 11.5. Statements Required in Certificate
or Opinion.................................... 69
Section 11.6. Rules by Trustee, Paying Agent,
Registrar..................................... 70
Section 11.7. Governing Law................................... 70
Section 11.8. No Interpretation of Other
Agreements.................................... 70
Section 11.9. No Recourse Against Others...................... 70
Section 11.10. Successors...................................... 70
Section 11.11. Duplicate Originals............................. 70
Section 11.12. Separability.................................... 70
Section 11.13. Table of Contents, Headings, etc................ 71
Section 11.14. Benefits of Indenture........................... 71
SIGNATURES......................................................... 72
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INDENTURE, dated as of , 1995, between
VARITY CORPORATION, a Delaware corporation (the "Company"), 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 rent shall be considered as required to be
paid under such
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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 any duly authorized committee of such board.
"Board Resolution" means a copy of a resolution
certified by the Secretary or an Assistant Secretary of the
Company to have been duly adopted by the Board of Directors and
to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means 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.
"Company Request" or "Company Order" means a written
request or order signed in the name of the Company by any one
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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.
"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
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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
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.
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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
Chief Operating Officer, the Treasurer, the Secretary or the
Controller of the Company.
"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.
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Subject to any express provision hereof, the counsel may be an
employee of or counsel to the Company.
"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,
(ii) a Subsidiary of the Company or (iii) any of the Company's
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
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 .5% of consolidated total assets of the
Company as most recently determined on or prior to such date.
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"Redemption Date" means, with respect to any Security
to be redeemed, the date fixed by the Company 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.
"Representative" means the trustee or other agent or
representative for any Senior Indebtedness.
"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.
"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.
"Senior Indebtedness" means all Indebtedness of the
Company and all renewals, extensions or refundings thereof.
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Notwithstanding anything to the contrary in the foregoing,
Senior Indebtedness shall not include (i) any Indebtedness of
the Company to any of its Subsidiaries, or (ii) any
Indebtedness created or evidenced pursuant to an instrument
that expressly provides that such Indebtedness is not superior
in right of payment to the Securities.
"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 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 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, as evidenced by their
execution of such Securities. Each Security shall be dated the
date of its authentication.
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
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;
-12-
(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
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
-13-
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;
(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.
-14-
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) with 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
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, to the Trustee for
-15-
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
Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal
with the Company 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
-16-
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
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 or any Affiliate of the Company may act
as Paying Agent.
-17-
The Company 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 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 a Subsidiary of the Company 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 any bankruptcy or
reorganization proceeding involving the Company, 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
-18-
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. No service charge shall
be made for any registration of transfer or exchange, but the
Company 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.
Whenever any Securities are so surrendered for
exchange, the Company shall execute, 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
-19-
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, and the Trustee
shall authenticate, a replacement Security if the Trustee's
requirements are met. If required by the Trustee or the
Company, such Holder must provide an indemnity bond or other
indemnity, sufficient in the judgment of the Trustee and the
Company, to protect the Company, the Trustee 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.
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
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,
-20-
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 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, 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.
Section 2.11. Cancellation.
------------
The Company 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 or an Affiliate of the Company), 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
-21-
Securities that it has paid or delivered to the Trustee for
cancellation. If the Company 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.
------------
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.
-22-
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 Trustee and any
agent of the Company 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 Trustee nor any agent
of the Company 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 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,
-23-
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.
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.
-24-
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.
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
-25-
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;
(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.
-26-
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
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 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
-27-
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.
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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, a Subsidiary of the Company 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.
Section 4.2. Maintenance of Office or Agency.
-------------------------------
The Company 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 Securities
may be presented for payment and an office or agency where
notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served. The Company will
give prompt written notice to the Trustee of the location, and
any change in the location, of such office or agency. If at
any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and
demands
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may be made or served at the address of the Trustee as set
forth in Section 11.2.
The Company 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
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in any manner relieve the Company of its obligation to maintain
an office or agency in the Borough of Manhattan, The City of
New York, State of New York, for such purposes. The Company
will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of
any such other office or agency. The Company hereby initially
designates the Corporate Trust Office of the Trustee as such
office of the Company.
Section 4.3. Corporate Existence.
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Subject to Article Five, the Company will 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
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the Company or any of its Subsidiaries shall not be required to
preserve any such existence, rights, licenses or franchises if
(x) the Company 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 not materially adverse to the Company
and its Subsidiaries taken as a whole or to the ability of the
Company to otherwise satisfy its obligations hereunder.
Section 4.4. Compliance Certificate.
----------------------
(a) The Company shall deliver to the Trustee, within
120 days after the end of its fiscal year, an Officers'
Certificate stating that a review of the activities of the
Company and its Subsidiaries during the preceding fiscal year
has been made under the supervision of the signing officers
with a view to determining whether the Company 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
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
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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 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 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 Company'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 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 indirectly to any Person for
any failure to obtain knowledge of any such violation.
(c) The Company will deliver to the Trustee as soon
as possible, and in any event within 10 days after it becomes
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 is taking or
proposes to take with respect thereto.
Section 4.5. SEC Reports.
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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
Company is required to file with the SEC pursuant to Section 13
or 15(d) of the Exchange Act. The Company also shall comply
with the other provisions of TIA (S) 314(a). If the Company is
not subject to the requirements of such Section 13 or 15(d),
the Company shall file with the Trustee, within 15 days after
it would have been required to file the same with the SEC,
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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 Company would
have been required to include in such annual reports,
information, documents or other reports if the Company had been
subject to the requirements of such Section 13 or 15(d). In
addition, the Company 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 Company'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.
-------------------------
The Company covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, or
plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law or any usury law or
other law which would prohibit or forgive the Company 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) the Company 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
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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
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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 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 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
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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.
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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.
ARTICLE 5
SUCCESSOR CORPORATION
Section 5.1. When Company May Merge, etc.
---------------------------
(a) The Company will not, 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 its 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 and its 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
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shall be the Person surviving such merger or consolidation
or (B) the Person formed by such consolidation or into
which the Company or such Subsidiary, as the case may be,
is merged or to which the properties and assets of the
Company 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 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;
(2) immediately after giving effect to such
transaction or series of transactions on a pro forma basis
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(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 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 in accordance with Section 5.1(a) hereof, the successor
Person or Persons formed by such consolidation or into which
the Company is merged or the successor Person to which such
sale, assignment, conveyance, transfer, lease or other
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disposition is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Company under
this Indenture and the Securities with the same effect as if
such successor had been named as the Company herein; and
thereafter the Company shall be discharged from all obligations
and covenants under this Indenture and the Securities.
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 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, whether or not such payment is prohibited by
Article 10; or
(b) default by the Company 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, whether or not
such payment is prohibited by Article 10; or
(c) default by the Company 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 to remedy the same
shall have been given (i) to the Company by the Trustee or
(ii) 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
(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 or any
Material Subsidiary of the Company then has outstanding
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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, 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 or
any Material Subsidiary of the Company 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 or any Material Subsidiary of the
Company 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:
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(i) is for relief against the Company or any
Material Subsidiary of the Company in an involuntary
case or proceeding,
(ii) appoints a Custodian of the Company or any
Material Subsidiary of the Company or for all or
substantially all of its properties, or
(iii) orders the liquidation of the Company or
any Material Subsidiary of the Company,
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) 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 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
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principal amount of such series of Securities outstanding, by
written notice to the Company and the Trustee, may, on behalf
of all Holders of such series of Securities, rescind and annul
such declaration and its consequences if:
(a) the Company 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
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such Securities or to enforce the performance of any provision
of such Securities or this Indenture.
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
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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
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the Trustee may take any other action deemed proper by the
Trustee that is not inconsistent with such direction.
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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
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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 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 any
other obligor upon the Securities), its creditors or its
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 the Company.
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 any Security and such proceeding has been discontinued or
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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
-43-
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'
-44-
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.
-45-
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
-46-
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, the expenses and the
compensation for the services are intended to constitute
expenses of administration under any Bankruptcy Law.
-47-
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
-48-
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.
-49-
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
-50-
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 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 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
-51-
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 and; provided, further, that the provisions of
-------- -------
Article 10 permit payments with respect to the securities
at the time of deposit;
(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 is a party or by which it
is bound;
(d) the Company 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 obligations in Sections 2.6, 2.7, 2.8, 2.9, 4.1, 4.2,
7.8, 8.4 and 8.5 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 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 obligations under the Securities of such series
-52-
and this Indenture applicable to such Securities except
for those surviving obligations specified above.
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), the Company
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), and Holders of such
Securities and any amounts deposited under paragraph (d) below
shall cease to be subject to any obligations to, or the rights
of, any holder of Senior Indebtedness under Article 10 or
otherwise, 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 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
-53-
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.
(c) Upon the Company's exercise under paragraph (a)
of the option applicable to this paragraph (c), the Company
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 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 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
-54-
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
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 and; provided further, that
-------- -------
the provisions of Article 10 permit payments with respect
to the Securities at the time of deposit;
(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
-55-
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
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
-56-
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 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
and the Company 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
-57-
another Person, and all liability of the Trustee or
Paying Agent with respect to such money shall thereupon cease.
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 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 has made any
-------- -------
payment of principal of or interest on any Securities of such
series because of the reinstatement of its obligations, the
Company 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 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 and the assumption by any such successor of
the obligations of the Company herein and in the
Securities of any series in accordance with Article Five;
(c) to provide for uncertificated Securities in
addition to certificated Securities;
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(d) to comply with any requirements of the SEC in
order to effect or maintain the qualification of this
Indenture under the TIA;
(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, 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 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 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 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 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 in the execution of such supplemental indenture
unless such supplemental indenture affects the Trustee's own
-59-
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) modify or change any provision of this Indenture
affecting the subordination of the Securities of any
series in a manner adverse to such Holders;
(h) impair the right to institute suit for the
enforcement of any payment on or with respect to the
Securities of any series; or
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(i) make such other changes as may require the
consent of each Holder so affected pursuant to any
supplemental indenture.
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
proxies), and only those Persons, shall be entitled to consent
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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
SUBORDINATION
Section 10.1. Agreement to Subordinate.
------------------------
The Company, for itself and its successors, agrees,
and each Securityholder by accepting a Security agrees, that
the Indebtedness evidenced by the Security is subordinated in
right of payment, to the extent and in the manner provided in
this Article 10, to the prior payment in full of all Senior
Indebtedness, and that the subordination is for the benefit of
the holders of Senior Indebtedness.
This Article 10 shall constitute a continuing offer
to all Persons who become holders of, or continue to hold
Senior Indebtedness, and such provisions are made for the
benefit of the holders of the Senior Indebtedness, and such
holders are made obligees hereunder and any one or more of them
may enforce such provisions.
Section 10.2. Liquidation; Dissolution; Bankruptcy.
------------------------------------
Upon any distribution to creditors of the Company in
a liquidation or dissolution of the Company or in a bankruptcy,
reorganization, insolvency, receivership or similar proceeding
relating to the Company or its property or in an assignment for
the benefit of creditors or any marshalling of the assets and
liabilities of the Company:
(1) holders of Senior Indebtedness shall be entitled
to receive payment in full of all obligations with respect
to the Senior Indebtedness (including interest after the
commencement of any such proceeding at the rate specified
in the applicable Senior Indebtedness, whether or not such
interest is an allowable claim in any such proceeding)
before Securityholders shall be entitled to receive any
payment of any obligations with respect to the Securities;
and
(2) until all obligations with respect to Senior
Indebtedness (as provided in subsection (1) above) are
paid in full, any distribution to which Securityholders
would be entitled but for this Article shall be made to
holders of Senior Indebtedness, as their interests may
appear, except that Securityholders may receive securities
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that are subordinated to at least the same extent as the
Securities to Senior Indebtedness.
Section 10.3. Default on Senior Debt.
----------------------
The Company may not make any payment or distribution
to the Trustee or any Securityholder in respect of obligations
with respect to the Securities and may not acquire from the
Trustee or any Securityholders any Securities for cash or
property (other than Indebtedness which is subordinated to at
least the same extent as the Securities to Senior
Indebtedness), until all obligations with respect to the Senior
Indebtedness have been paid in full if:
(i) there occurs and is continuing a default in the
payment of any obligations with respect to the Senior
Indebtedness at the final scheduled maturity thereof or
that permits holders of such Senior Indebtedness to
accelerate its maturity or the maturity of which has been
accelerated; or
(ii) there occurs and is continuing an event of
default, other than a payment default, on any Senior
Indebtedness that permits holders of Senior Indebtedness
to accelerate its maturity, and such event of default is
the subject of judicial proceedings or the Company
receives a notice of the default from a Person who may
give it pursuant to Section 10.11 hereof. If the Company
receives any such notice, a subsequent notice received
within 360 days thereafter relating to Senior Indebtedness
shall not be effective for purposes of this Section.
The Company may resume payments on and distributions
in respect of the Securities and may acquire them when
(1) the default is cured or waived or has ceased to
exist or such notice has been rescinded or annulled, or
(2) in the case of an event of default referred to
in Section 10.3(ii) hereof, 179 days pass after the
Trustee receives written notice of such default and the
holders of Senior Indebtedness as to which such default
relates have not declared such Senior Indebtedness to be
immediately due and payable,
if this Article otherwise permits the payment or acquisition at
the time of such payment or acquisition.
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Section 10.4. Acceleration of Securities.
--------------------------
If payment of the Securities is accelerated because
of an Event of Default, the Company shall promptly notify
holders of Senior Indebtedness of the acceleration.
Section 10.5. When Distribution Must
Be Paid Over.
----------------------
In the event that a distribution is made to the
Trustee or any Securityholder at a time when such distribution
is prohibited by Section 10.2 or 10.3 hereof, the Trustee or
such Securityholder who receives the distribution shall hold it
in trust for the benefit of, and, upon written request, pay it
over to, the holders of Senior Indebtedness as their interests
may appear, for application to the payment of all obligations
with respect to Senior Indebtedness remaining unpaid to the
extent necessary to pay such obligations in full in accordance
with their terms, after giving effect to any concurrent payment
or distribution to or for the holders of Senior Indebtedness.
With respect to the holders of Senior Indebtedness,
the Trustee undertakes to perform only such obligations on the
part of the Trustee as are specifically set forth in this
Article 10, and no implied covenants or obligations with
respect to the holders of Senior Indebtedness shall be read
into this Indenture against the Trustee. The Trustee shall not
be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness, and shall not be liable to any such holders if
the Trustee shall pay over or distribute to or on behalf of
Securityholders or the Company or any other Person money or
assets to which any holders of Senior Indebtedness shall be
entitled by virtue of this Article 10, except if such payment
is made as a result of the willful misconduct or gross
negligence of the Trustee.
Section 10.6. Notice by Company.
-----------------
The Company shall promptly notify the Trustee and any
Paying Agent of any facts known to the Company that would cause
a payment of any obligations with respect to the Securities to
violate this Article 10, but failure to give such notice shall
not affect the subordination of the Securities to the Senior
Indebtedness provided in this Article 10.
-65-
Section 10.7. Subrogation.
-----------
After all Senior Indebtedness is paid in full and
until the Securities are paid in full, Securityholders shall be
subrogated to the rights of holders of Senior Indebtedness to
receive distributions applicable to Senior Indebtedness to the
extent that distributions otherwise payable to the
Securityholders have been applied to the payment of Senior
Indebtedness. A distribution made under this Article 10 to
holders of Senior Indebtedness which otherwise would have been
made to Securityholders shall not, as between the Company and
Securityholders, be deemed a payment by the Company to or on
account of the Senior Indebtedness.
Section 10.8. Relative Rights.
---------------
This Article 10 defines the relative rights of
Securityholders and holders of Senior Indebtedness. Nothing in
this Indenture shall:
(1) impair, as between the Company and
Securityholders, the obligation of the Company, which is
absolute and unconditional, to pay principal of and
interest on the Securities in accordance with their terms;
(2) affect the relative rights of Securityholders
and creditors of the Company other than their rights in
relation to holders of Senior Indebtedness; or
(3) prevent the Trustee or any Securityholder from
exercising its available remedies upon a Default or Event
of Default, subject to the rights of holders and owners of
Senior Indebtedness to receive distributions and payments
otherwise payable to Securityholders.
If the Company fails because of this Article to pay
principal of or interest on a Security on the due date, the
failure is still a Default or Event of Default.
Section 10.9. Subordination May Not Be
Impaired by Company.
------------------------
No right of any holder of Senior Indebtedness to
enforce the subordination of the Indebtedness evidenced by the
Securities shall be impaired by any act or failure to act by
the Company or by its failure to comply with this Indenture.
-66-
Section 10.10. Distribution or Notice
to Representative.
----------------------
Whenever a distribution is to be made or a notice
given to holders of Senior Indebtedness, the distribution may
be made and the notice given to their Representative.
Upon any payment or distribution of assets of the
Company referred to in this Article 10, the Trustee and the
Securityholders shall be entitled to rely upon any order or
decree made by any court of competent jurisdiction or upon any
certificate of such Representative or of the liquidating
trustee or agent or other Person making any distribution to the
Trustee or to the Securityholders for the purpose of
ascertaining the Persons entitled to participate in such
distribution, the holders of the Senior Indebtedness and other
Indebtedness of the Company, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and
all other facts pertinent thereto or to this Article 10.
Section 10.11. Rights of Trustee and
Paying Agent.
---------------------
Notwithstanding the provisions of this Article 10 or
any other provision of this Indenture, neither the Trustee nor
any Paying Agent shall be charged with knowledge of the
existence of any facts which would prohibit the making of any
payment or distribution by the Trustee or such Paying Agent,
and the Trustee or such Paying Agent may continue to make
payments on the Securities unless, in the case of the Trustee,
and in the case of such Paying Agent as long as the Trustee is
such Paying Agent, a Trust Officer shall have received at the
Corporate Trust Office of the Trustee, and in the case of a
Paying Agent other than the Trustee, it shall have received, in
each case at least two Business Days prior to the date of such
payment, written notice of facts that would cause the payment
of any obligations with respect to the Securities to violate
this Article. The Trustee or any Paying Agent, as applicable,
shall promptly provide a copy of such notice to the
Securityholders. Only the Company, a Representative or a
holder of an issue of Senior Indebtedness that has no
Representative may give notice. Nothing in this Article 10
shall impair the claims of, or payments to, the Trustee under
or pursuant to Section 7.8 hereof.
The Trustee in its individual or any other capacity
may hold Senior Indebtedness with the same rights it would have
-67-
if it were not the Trustee subject to TIA (S) 310(b) and 311.
Any Agent may do the same with like rights.
Section 10.12. Authorization to Effect
Subordination.
-----------------------
Each Holder of a Security by his acceptance thereof
authorizes and directs the Trustee on his behalf to take such
action as may be necessary or appropriate to effectuate the
subordination as provided in this Article 10, and appoints the
Trustee his attorney-in-fact for any and all such purposes.
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:
VARITY CORPORATION
672 Delaware Avenue
Buffalo, New York 14209
Attention: Treasurer
If to the Trustee, to:
MANUFACTURERS AND TRADERS TRUST COMPANY
One M&T Plaza
Buffalo, New York 14240
Attention: Corporate Trust Department
-68-
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 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 to the
Trustee to take any action under this Indenture, the Company
shall furnish to the Trustee:
(1) an Officers' Certificate stating that, in the
opinion of the signers, all conditions precedent, if any,
provided for in this Indenture relating to the proposed
action have been complied with; and
(2) an Opinion of Counsel stating that, in the
opinion of such counsel, all such conditions precedent
have been complied with.
-69-
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
complied with; and
(4) a statement as to whether or not, in the opinion
of such Person, such condition or covenant has been
complied with; provided, however, that with respect to
-------- -------
matters of fact an Opinion of Counsel may rely on an
Officers' Certificate or certificates of public officials.
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 and the Securities 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.
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.
-70-
Section 11.9. No Recourse Against Others.
--------------------------
A director, officer, employee, shareholder or
Affiliate, as such, of the Company shall not have any liability
for any obligations of the Company under the Securities 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 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.
Section 11.14. Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Securities,
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.
-71-
IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed as of the day and year first
above written.
VARITY CORPORATION, as Issuer
By:________________________________
Name:
Title:
MANUFACTURERS AND TRADERS TRUST
COMPANY,
as Trustee
By:________________________________
Name:
Title: