1
EXHIBIT 4.8
--------------------------------------------------------------------------------
FORM OF
SENIOR INDENTURE
Between
AIRTOUCH COMMUNICATIONS, INC.
and
________________________, AS TRUSTEE
Dated as of ___________, 1995
2
TABLE OF CONTENTS
ARTICLE ONE
DEFINITIONS
Section 1.01 Certain Terms Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Certified Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Depository . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Global Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Interest Payment Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Officer's Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Original Issue Discount Security . . . . . . . . . . . . . . . . . . . . . . 4
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Periodic Offering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Principal Office of the Trustee . . . . . . . . . . . . . . . . . . . . . . . 5
Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Register . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Security or Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Securityholder; Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Series . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Supplemental Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Trust Indenture Act of 1939 . . . . . . . . . . . . . . . . . . . . . . . . . 6
United States Dollars . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE TWO
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION,
TRANSFER AND EXCHANGE OF SECURITIES
Section 2.01 Amount, Series, Execution, Authentication
and Delivery of Securities . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 2.02 Form of Securities and Trustee's
Certificate of Authentication . . . . . . . . . . . . . . . . . . . . . . 10
3
Section 2.03 Denominations; Payment of Interest
on Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 2.04 Execution of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2.05 Registration, Transfer and Exchange
of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 2.06 Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 2.07 Mutilated, Destroyed, Lost or Stolen
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 2.08 Cancellation and Destruction of
Surrendered Securities . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 2.09 Securities in Global Form;
Depositories . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE THREE
REDEMPTION OF SECURITIES
Section 3.01 Redemption of Securities . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 3.02 Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 3.03 Selection of Securities for Redemption . . . . . . . . . . . . . . . . . . 16
Section 3.04 Partial Redemption of Registered
Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 3.05 Effect of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE FOUR
PARTICULAR COVENANTS OF THE COMPANY
Section 4.01 Payment of Principal of and Interest
on Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 4.02 Maintenance of Offices or Agencies for
Transfer, Registration, Exchange and
Payment of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 4.03 Appointment to Fill a Vacancy in the
Office of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 4.04 Duties of Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 4.05 Notice of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
4
ARTICLE FIVE
SECURITYHOLDERS' LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
Section 5.01 Company to Furnish Trustee
Information as to the Names and
Addresses of Securityholders . . . . . . . . . . . . . . . . . . . . . . 19
Section 5.02 Preservation of Information;
Communication to Securityholders . . . . . . . . . . . . . . . . . . . . . 19
Section 5.03 Reports by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 5.04 Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE SIX
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
Section 6.01 Events of Default; Acceleration, Waiver
of Default and Restoration of
Position and Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 6.02 Covenant of Company to Pay to Trustee
Whole Amount Due on Securities on
Default in Payment of Interest or
Principal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 6.03 Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . 25
Section 6.04 Trustee May Enforce Claims Without
Possession of Securities . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 6.05 Application of Moneys Collected by
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 6.06 Limitation on Suits By Holders of
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 6.07 Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . 27
Section 6.08 Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . . 27
Section 6.09 Control By Holders; Waiver of Past
Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 6.10 Trustee to Give Notice of Defaults
Known to It, But May Withhold in
Certain Circumstances . . . . . . . . . . . . . . . . . . . . . . . . . . 28
5
Section 6.11 Requirement of an Undertaking to Pay
Costs in Certain Suits Under the
Indenture or Against the Trustee . . . . . . . . . . . . . . . . . . . . 28
ARTICLE SEVEN
CONCERNING THE TRUSTEE
Section 7.01 Certain Duties and Responsibilities
of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 7.02 Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 7.03 Trustee Not Responsible for Recitals
or Application of Proceeds . . . . . . . . . . . . . . . . . . . . . . . 30
Section 7.04 Trustee May Own Securities . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 7.05 Moneys Received by Trustee to be Held
in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 7.06 Trustee Entitled to Compensation,
Reimbursement and Indemnity . . . . . . . . . . . . . . . . . . . . . . . 31
Section 7.07 Right of Trustee to Rely on Officer's
Certificate Where No Other Evidence
Specifically Prescribed . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 7.08 Disqualification; Conflicting Interest . . . . . . . . . . . . . . . . . . 31
Section 7.09 Requirements for Eligibility of
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 7.10 Resignation and Removal of Trustee;
Appointment of Successor . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 7.11 Acceptance of Appointment by
Successor Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 7.12 Successor to Trustee by Merger,
Consolidation or Succession
to Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 7.13 Preferential Collection of Claims
Against the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
ARTICLE EIGHT
CONCERNING THE SECURITYHOLDERS
Section 8.01 Evidence of Action by Securityholders . . . . . . . . . . . . . . . . . . . 42
6
Section 8.02 Proof of Execution of Instruments and
of Holding of Securities . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 8.03 Who May be Deemed Owners of
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 8.04 Securities Owned by the Company or
Controlled or Controlling Persons
Disregarded for Certain Purposes . . . . . . . . . . . . . . . . . . . . 43
Section 8.05 Instruments Executed by Securityholders
Bind Future Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
ARTICLE NINE
SECURITYHOLDERS' MEETINGS
Section 9.01 Purposes for Which Meetings May be
Called . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 9.02 Manner of Calling Meetings . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 9.03 Call of Meeting by the Company or
Securityholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 9.04 Who May Attend and Vote at Meetings . . . . . . . . . . . . . . . . . . . . 45
Section 9.05 Regulations May be Made by Trustee;
Conduct of the Meeting; Voting
Rights - Adjournment . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 9.06 Manner of Voting at Meetings and
Record to be Kept . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 9.07 Exercise of Rights of Trustee and
Securityholders Not to be Hindered
or Delayed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
ARTICLE TEN
SUPPLEMENTAL INDENTURES
Section 10.01 Purposes for Which Supplemental
Indentures May be Entered Into
Without Consent of Securityholders . . . . . . . . . . . . . . . . . . . 47
Section 10.02 Modification of Indenture with Consent
of Holders of Securities . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 10.03 Effect of Supplemental Indentures. . . . . . . . . . . . . . . . . . . . . 49
7
Section 10.04 Securities May Bear Notation of Changes
by Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . 49
ARTICLE ELEVEN
DISCHARGE; DEFEASANCE
Section 11.01 Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 11.02 Discharge of Liability on Securities . . . . . . . . . . . . . . . . . . . 50
Section 11.03 Discharge of Certain Covenants and Other
Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 11.04 Discharge of Certain Obligations Upon
Deposit of Money or Securities with
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 11.05 Unclaimed Moneys . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
ARTICLE TWELVE
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS
AND DIRECTORS
Section 12.01 Incorporators, Stockholders, Officers
and Directors of Company Exempt
From Individual Liability . . . . . . . . . . . . . . . . . . . . . . . . 52
ARTICLE THIRTEEN
MISCELLANEOUS PROVISIONS
Section 13.01 Successors and Assigns of the Company
Bound by Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 13.02 Notices; Effectiveness . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 13.03 Compliance Certificates and Opinions . . . . . . . . . . . . . . . . . . . 53
Section 13.04 Days on Which Payment to be Made,
Notice Given or Other Action
Taken . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 13.05 Provisions Required by Trust Indenture
Act of 1939 to Control . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 13.06 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 13.07 Provisions of the Indenture and
Securities for the Sole Benefit of
the Parties and the Securityholders . . . . . . . . . . . . . . . . . . . 54
8
Section 13.08 Indenture May be Executed in
Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Signatures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
9
TABLE SHOWING REFLECTION IN THIS INDENTURE OF
CERTAIN PROVISIONS OF THE TRUST INDENTURE ACT OF 1939*
Section Section
of Indenture of Act
----------------------------------------------------------------------------------------------------------
310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.09
310(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.09
310(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
310(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
310(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.09
310(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.08, 7.10
310(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.13(a), 7.13(c)
311(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.13(b), 7.13(c)
311(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.01, 5.02(a)
312(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.02(b)
312(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.02(c)
313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.04(a)
313(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
313(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.04(b)
313(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.04(c)
313(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.04(d)
314(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.03(a)
314(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.03(b)
314(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.03(c)
314(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.03(d)
314(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.03
314(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.03
314(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Omitted
315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01
315(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.10
315(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01
315(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01
315(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.11
316(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.09
316(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Omitted
316(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.06
316(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.09
317(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.02, 6.03
317(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.08
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.05
__________________________________
* This Table is not part of the Indenture.
10
INDENTURE
THIS INDENTURE, dated as of ___________, 1995, between AIRTOUCH
COMMUNICATIONS, INC., a Delaware corporation (the "Company"), and
________________________, a_____________________ duly organized and existing
under the laws of _______________
WITNESSETH:
WHEREAS, the Company has duly authorized the issuance, sale, execution
and delivery, from time to time, of its unsecured evidences of indebtedness
(hereinafter referred to as the "Securities"), without limit as to principal
amount, issuable in one or more Series, the amount and terms of each such
Series to be determined as hereinafter provided; and, to provide the terms and
conditions upon which the Securities are to be issued, authenticated and
delivered, the Company has duly authorized the execution of this Indenture; and
WHEREAS, all acts and things necessary to make the Securities, when
executed by the Company and authenticated and delivered by the Trustee as in
this Indenture provided, the valid, binding and legal obligations of the
Company, and to constitute this Indenture a valid indenture and agreement
according to its terms, have been done and performed, and the execution of this
Indenture and the issuance hereunder of the Securities have in all respects
been duly authorized;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which the
Securities are to be issued, authenticated and delivered, and in consideration
of the premises and of the purchase and acceptance of the Securities by the
Holders thereof, the Company covenants and agrees with the Trustee, for the
equal and proportionate benefit of the respective Holders from time to time of
the Securities or of any Series thereof, as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.01. CERTAIN TERMS DEFINED. For all purposes of this
Indenture, except as otherwise expressly provided or unless the context
otherwise requires:
(a) the terms defined in this Article One have the
meanings assigned to them in this Article One, and include the plural
as well as the singular;
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11
(b) all other terms used herein which are defined in the
Trust Indenture Act of 1939, either directly or by reference therein,
have the meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein
shall have the meanings assigned to them and all computations herein
provided for shall be made, in accordance with generally accepted
accounting principles, and the term "generally accepted accounting
principles" shall mean such principles as they exist at the date of
applicability thereof; and
(d) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a whole and
not to any particular Article, Section or other subdivision.
BOARD OF DIRECTORS
The term "Board of Directors" shall mean the Board of Directors of the
Company, or any duly authorized committee of such Board of Directors.
BUSINESS DAY
The term "Business Day" shall mean any day which is not a Saturday or
Sunday or which in the City and County of San Francisco or in The City of New
York is neither a legal holiday nor a day on which banking institutions are
authorized by law or regulation to close.
CERTIFIED RESOLUTION
The term "Certified Resolution" shall mean a resolution of the Board
of Directors of the Company certified by the Secretary or by an Assistant
Secretary of the Company to have been duly adopted by the Board of Directors of
the Company and to be in full force and effect on the date of such
certification.
COMMISSION
The term "Commission" shall mean the Securities and Exchange
Commission, as from time to time constituted, created under the Securities
Exchange Act of 1934, as amended, or if at any time after the execution of this
Indenture such Commission is not existing and performing the duties theretofore
assigned to it under the Trust Indenture Act of 1939, then the body performing
such duties at such time.
COMPANY
The term "Company" shall mean Airtouch Communications, Inc., a
Delaware corporation, until a successor corporation shall have become such
pursuant to the applicable provisions hereof, and thereafter "Company" shall
mean such successor Company.
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DEPOSITORY
The term "Depository" shall mean, with respect to the
Securities of any Series issuable or issued in whole or in part in the form of
one or more Global Securities, the Person designated as Depository by the
Company pursuant to Section 2.01 of this Indenture until a successor Depository
shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter the term "Depository" shall mean or include each Person who is
then a Depository hereunder, and if at any time there is more than one such
Person, "Depository" as used with respect to the Securities of any such Series
shall mean the Depository with respect to the Securities of that Series.
EVENT OF DEFAULT
The term "Event of Default" with respect to Securities of any Series
shall mean any event specified as such in Section 6.01 and any other event as
may be established with respect to the securities of such Series as permitted
by Section 2.01. An Event of Default shall "exist" if an Event of Default
shall have occurred and be continuing.
GLOBAL SECURITY
The term "Global Security" shall mean a Security evidencing
all or a portion of a Series of Securities, issued under the Indenture and
delivered to the Depository for such Series in accordance with Section 2.09 of
this Indenture, and bearing the legend prescribed in such Section 2.09.
INDENTURE
The term "Indenture" shall mean this instrument as originally
executed, or as it may from time to time be supplemented, modified or amended,
as provided herein, and shall include the form and terms of particular Series
of Securities established in accordance with the provisions of Sections 2.01
and 2.02.
INTEREST PAYMENT DATE
The term "Interest Payment Date" when used with respect to any
Security means the Stated Maturity of an installment of interest on such
Security.
OFFICER'S CERTIFICATE
The term "Officer's Certificate" shall mean a certificate signed by
the Chairman of the Board, any Vice-Chairman of the Board or any
Vice-President, the Treasurer, any Assistant Treasurer, the Secretary or any
Assistant Secretary of the Company. Each such certificate shall include the
statements provided for in Section 13.03, if and to the extent required by the
provisions of such Section.
OPINION OF COUNSEL
The term "Opinion of Counsel" shall mean a written opinion of counsel
who may be counsel to the Company. Each such opinion shall include the
statements provided for in Section 13.03, if and to the extent required by the
provisions of such Section.
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ORIGINAL ISSUE DISCOUNT SECURITY
The term "Original Issue Discount Security" shall mean (a) any
Security which provides for an amount less than the principal amount thereof to
be due and payable upon declaration of acceleration of the maturity thereof
pursuant to Section 6.01 or (b) any other Security which for United States
Federal income tax purposes would be considered an original issue discount
security.
OUTSTANDING
The term "Outstanding" when used with reference to Securities shall,
subject to the provisions of Section 8.04, mean, as of the date of
determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(a) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(b) Securities, for whose payment or redemption moneys in
the necessary amount have been theretofore deposited with the Trustee
or with any Paying Agent in trust for the Holders of such Securities,
provided that if such Securities are to be redeemed, notice of such
redemption has been duly given as provided in Article Three hereof, or
provision therefor satisfactory to the Trustee has been made;
(c) Securities in exchange for or in lieu of which other
Securities shall have been authenticated and delivered under this
Indenture; and
(d) Securities alleged to have been destroyed, lost or
stolen which have been paid as provided in Section 2.07 hereof.
In determining whether the Holders of the requisite principal amount
of Outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, the principal amount of an
Original Issue Discount Security that shall be deemed to be Outstanding for
such purposes shall be the amount of the principal thereof that would be due
and payable as of the date of such determination as if a declaration of
acceleration of the maturity thereof pursuant to Section 6.01 had been made.
PAYING AGENT
The term "Paying Agent" means any Person authorized by the Company to
pay the principal of and any interest and premium on any Securities on behalf
of the Company.
PERIODIC OFFERING
The term "Periodic Offering" means an offering of Securities
of a Series, from time to time the specific terms of which (including without
limitation, the rate or rates of interest, if any, thereon or any methods of
calculating such, the maturity date or dates thereof and any redemption
provisions with respect thereto) are to be determined by the Company or its
agents upon the issuance of such Series of Securities.
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PERSON
The term "Person" shall mean an individual, a corporation, a
partnership, a joint venture, an association, a joint stock company, a trust,
an unincorporated organization, or a government or any agency, authority or
political subdivision thereof.
PRINCIPAL OFFICE OF THE TRUSTEE
The term "Principal Office of the Trustee" shall mean the principal
office of the Trustee in ______________________ at which at any particular time
its corporate trust business shall be administered, except that with respect to
presentation of Securities for payment such term shall mean the office or
agency of the Trustee at which at any particular time its corporate agency
business shall be conducted. The present address of the principal office at
which the corporate trust business of the Trustee is administered is
_____________, ________________.
RECORD DATE
The term "Record Date" for the interest payable on any Interest
Payment Date on any Series of Securities shall mean the date specified as such
in the Securities of such Series.
REDEMPTION DATE
The term "Redemption Date" when used with respect to any Security to
be redeemed means the date fixed for such redemption pursuant to this
Indenture.
REDEMPTION PRICE
The term "Redemption Price" when used with respect to any Security to
be redeemed means the price at which it is to be redeemed pursuant to this
Indenture. It includes any applicable premium but does not include
installments of interest whose Stated Maturity is on or before the Redemption
Date.
REGISTER
The term "Register" shall mean the books for the registration and
transfer of Securities which books are kept by the Trustee pursuant to Section
2.05.
RESPONSIBLE OFFICER
The term "Responsible Officer" when used with respect to the Trustee
shall mean the chairman and vice-chairman of the board of directors, the
chairman and vice-chairman of the executive committee of said board, the
president, any vice-president or second vice-president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any corporate trust officer, the controller, any assistant
controller or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers and also
means, with respect to a particular corporate trust matter, any other officer
of the Trustee to whom such matter is referred because of such Person's
knowledge of and familiarity with the particular subject.
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SECURITY OR SECURITIES
The terms "Security" or "Securities" shall mean any security or
securities of the Company without regard to Series, authenticated and delivered
under this Indenture.
SECURITYHOLDER; HOLDER
The terms "Securityholder" or "Holder", whenever employed herein with
respect to a Security, shall mean the Person in whose name such Security shall
be registered on the Register.
SERIES
The term "Series" shall mean an issue of Securities under this
Indenture.
STATED MATURITY
The term "Stated Maturity" when used with respect to any Security or
any installment of interest thereon means the date specified in such Security
as the fixed date on which the principal of such Security or such installment
of interest is due and payable.
SUPPLEMENTAL INDENTURE
The term "Supplemental Indenture" shall mean an indenture
supplemental hereto as such Supplemental Indenture may be originally executed,
or as it may from time to time be supplemented, modified or amended, as
provided herein and therein.
TRUSTEE
The term "Trustee" shall mean ________________________ until a
successor Trustee shall have become such pursuant to the applicable provisions
of this Indenture, and thereafter "Trustee" shall mean such successor Trustee.
TRUST INDENTURE ACT OF 1939
The term "Trust Indenture Act of 1939" shall mean the Trust Indenture
Act of 1939, as amended as of the date of this Indenture.
UNITED STATES DOLLARS
The term "United States Dollars" shall mean the lawful currency of the
United States of America.
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ARTICLE TWO
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION,
TRANSFER AND EXCHANGE OF SECURITIES
SECTION 2.01. AMOUNT, SERIES, EXECUTION, AUTHENTICATION AND DELIVERY
OF SECURITIES. The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is not limited. The
Securities may be issued in one or more Series.
(A) The following terms and provisions of each Series of
Securities shall be established by a resolution of the Board of Directors and
set forth in either a Certified Resolution or a Supplemental Indenture:
(1) the designation of the Series of Securities (which
shall distinguish the Securities of such Series from all other Series
of Securities),
(2) any limit upon the aggregate principal amount of the
particular Series of Securities which may be executed, authenticated
and delivered under this Indenture; provided, however, that nothing
contained in this Section 2.01 or elsewhere in this Indenture or in
the Securities or in such Certified Resolution or in a Supplemental
Indenture is intended to or shall limit execution by the Company or
authentication and delivery by the Trustee of Securities under the
circumstances contemplated by Sections 2.05, 2.06, 2.07, 3.04 and
10.04,
(3) the currency or currencies or composite currency in
which principal of and interest and any premium on such Series of
Securities shall be payable (if other than in United States Dollars),
(4) the Stated Maturity for payment of principal of such
Series of Securities and any sinking fund or analogous provisions,
(5) the rate or rates at which such Series of Securities
shall bear interest or the method of calculating such rate or rates of
interest and the Interest Payment Dates for such Series of Securities,
(6) the place or places where such Series of Securities
may be presented for payment and for the other purposes provided in
Section 4.02,
(7) any Redemption Price or Prices, the Redemption Date
or Dates and other applicable redemption or repurchase provisions for
such Series of Securities,
(8) whether such Series of Securities shall be issuable
as one or more Global Securities and the form of such Series of
Securities,
(9) if the Securities of such Series shall be issued in
whole or in part as one or more Global Securities, the Depository for
such Global Security or Securities and any additional terms and
conditions relating to such Global Securities not set forth in this
Indenture,
(10) if other than denominations of $1,000 and any
integral multiple thereof, the denominations in which such Series of
Securities shall be issuable,
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(11) the date from which interest on such Securities shall
accrue,
(12) the basis upon which interest on such Series of
Securities shall be computed (if other than on the basis of a 360-day
year of twelve 30-day months),
(13) if other than the principal amount thereof, the
portion of the principal amount of such Series of Securities which
shall be payable upon declaration of acceleration of the maturity
thereof pursuant to Section 6.01,
(14) the Person or Persons who shall be registrar for such
Series of Securities, and the place or places where the Register of
such Series of Securities shall be kept,
(15) any additional events of default with respect to the
Securities of a particular Series not set forth herein,
(16) any additional covenants of the Company with respect
to the Securities of a particular Series not set forth herein,
(17) the terms and conditions, if any, upon which any
Securities of such Series may or shall be converted into other
instruments or other forms of property and
(18) any other terms of such Series of Securities (which
terms shall not be inconsistent with the provisions of this
Indenture).
All Securities of any one Series shall be substantially identical
except that any Series may have serial maturities and different interest rates
for different maturities and except as to denomination and the differences
herein specified between Global Securities and Securities issued in definitive
form and except as may otherwise be provided in or pursuant to the Certified
Resolution or Supplemental Indenture relating to such Series of Securities.
All Securities of any one Series need not be issued at the same time, and,
unless otherwise provided in the Certified Resolution or Supplemental Indenture
relating to such Series, a Series may be reopened for issuances of additional
Securities of such Series.
(B) At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver any Series of Securities
executed by the Company to the Trustee for authentication by it, and the
Trustee shall thereupon authenticate and deliver said Securities (or if only a
single Global Security, such Global Security) to or upon the written order of
the Company, signed by an officer of the Company, without any further corporate
action. In authenticating such Securities and accepting the additional
responsibilities under this Indenture in relation to such Securities and except
as hereinafter provided with respect to a Series of Securities subject to a
Periodic Offering, the Trustee shall be entitled to receive, and (subject to
Section 7.01) shall be fully protected in relying upon:
(1) each Certified Resolution relating to such Series of
Securities,
(2) an executed Supplemental Indenture, if any, relating
to such Series of Securities,
(3) an Opinion of Counsel to the effect that:
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(a) the terms and form of such Securities have
been established as permitted by Sections 2.01 and 2.02 in
conformity with the provisions of this Indenture,
(b) such Securities, when executed and issued by
the Company and authenticated and delivered by the Trustee in
accordance with the provisions of this Indenture and subject
to any conditions specified in such Opinion of Counsel, will
constitute valid and binding obligations of the Company,
except as any rights thereunder may be limited by the effect
of bankruptcy, insolvency, reorganization, receivership,
conservatorship, arrangement, moratorium or other laws
affecting or relating to the rights of creditors generally;
the rules governing the availability of specific performance,
injunctive relief or other equitable remedies and general
principles of equity, regardless of whether considered in a
proceeding in equity or at law; the effect of applicable court
decisions invoking statutes or principles of equity, which
have held that certain covenants and provisions of agreements
are unenforceable where the breach of such covenants or
provisions imposes restrictions or burdens upon a borrower,
and it cannot be demonstrated that the enforcement of such
restrictions or burdens is necessary for the protection of the
creditor, or which have held that the creditor's enforcement
of such covenants or provisions under the circumstances would
have violated the creditor's covenants of good faith and fair
dealing implied under California law; and the effect of
California statutes and rules of law which cannot be waived
prospectively by a borrower, and
(c) the Company has complied with all applicable
Federal laws and requirements in respect of the execution and
delivery of such Securities.
With respect to a Series of Securities subject to a Periodic Offering, the
Trustee shall be entitled to receive, and, subject to Section 7.01, shall be
fully protected in relying upon the documents described in the foregoing
subsections (1), (2) and (3) of this Section 2.01; provided that (i) the
Certified Resolution may be delivered to the Trustee prior to the delivery to
the Trustee of such Securities for authentication and delivery, (ii) 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, if any, established for such Series, pursuant to
such Certified Resolution or pursuant to such procedures as may be specified
from time to time by a Certified Resolution, (iii) the maturity date or dates,
original issue date or dates, interest rate or rates or the method or methods
of calculating such and any other terms of the Securities of such Series shall
be determined by the Certified Resolution or pursuant to such procedures, (iv)
if provided for in such procedures, such Certified Resolution may authorize
authentication and delivery pursuant to oral or electronic instructions from
the Company or its duly authorized agent or agents, which oral instructions
shall be promptly confirmed in writing and (v) the Trustee shall be entitled to
receive an Opinion of Counsel only once at or prior to the time of the first
authentication of Securities of such Series and that the opinions described in
the foregoing subsections (3)(a) and (3)(b) of this Section 2.01 may be to the
effect that:
(x) the form of the Securities of such Series has been
duly authorized by the Company and has been established in conformity
with the provisions of this Indenture and that, when the terms of such
Securities shall have been established pursuant to a Certified
Resolution or pursuant to such procedures as maybe specified from time
to time
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by a Certified Resolution, such terms will have been duly authorized
by the Company and will have been established in conformity with the
provisions of this Indenture and
(y) Securities of such Series, when executed and issued
by the Company and completed, authenticated and delivered by the
Trustee in accordance with the provisions of this Indenture and
subject to any conditions specified in such Opinion of Counsel and
when paid for, all as contemplated by and in accordance with the
Certified Resolution or specified procedures, as the case may be, will
constitute valid and binding obligations of the Company, except as any
rights thereunder may be limited by the effect of bankruptcy,
insolvency, reorganization, receivership, conservatorship,
arrangement, moratorium or other laws affecting or relating to the
rights of creditors generally; the rules governing the availability of
specific performance, injunctive relief or other equitable remedies
and general principles of equity, regardless of whether considered in
a proceeding in equity or at law; the effect of applicable court
decisions invoking statutes or principles of equity, which have held
that certain covenants and provisions of agreements are unenforceable
where the breach of such covenants or provisions imposes restrictions
or burdens upon a borrower, and it cannot be demonstrated that the
enforcement of such restrictions or burdens is necessary for the
protection of the creditor, or which have held that the creditor's
enforcement of such covenants or provisions under the circumstances
would have violated the creditor's covenants of good faith and fair
dealing implied under California law; and the effect of California
statutes and rules of law which cannot be waived prospectively by a
borrower.
With respect to Securities of a Series offered in a Periodic Offering,
the Trustee may rely, as to the authorization by the Company of any such
Securities, the form and terms thereof and the valid and binding effect
thereof, upon the Opinion of Counsel and other documents delivered pursuant to
this Section 2.01 in connection with the first authentication of Securities of
such Series unless and until such Opinion of Counsel or other documents shall
have been superseded or revoked. In connection with the authentication and
delivery of Securities of a Series subject to a Periodic Offering, the Trustee
shall be entitled to assume that the instructions of the Company to
authenticate and deliver such Securities do not violate any rules, regulations
or orders of any governmental agency having jurisdiction over the Company.
SECTION 2.02. FORM OF SECURITIES AND TRUSTEE'S CERTIFICATE OF
AUTHENTICATION. The Securities of each Series shall be substantially of the
tenor and purport as shall be authorized by the related Certified Resolution or
Supplemental Indenture, 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 or designation and such legends or endorsements thereon as the
Board of Directors may deem appropriate and as are not inconsistent with the
provisions of this Indenture, or as may be required to comply with any law or
with any rule or regulation made pursuant thereto or with any rule or
regulation of any stock exchange on which the Securities of such Series may be
listed, or to conform to usage.
The definitive Securities and each Global Security may be printed,
lithographed or fully or partly engraved or produced in any other manner, all
as determined by the officers executing such Securities, as evidenced by their
execution thereof.
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The Trustee's certificate of authentication shall be in substantially
the following form:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities, of the Series designated
herein, referred to in the within-mentioned Indenture.
________________________, as Trustee
By
Authorized Officer
SECTION 2.03. DENOMINATIONS; PAYMENT OF INTEREST ON SECURITIES. The
Securities of each Series may be issued as fully registered Securities in
denominations all as shall be specified as contemplated by Section 2.01. In
the absence of such provisions with respect to the Securities of any Series,
the Securities of such Series (other than any Global Securities) shall be
issued in denominations of $1,000 and any integral multiple thereof.
If the Securities of any Series shall bear interest, each Security of
such Series shall bear interest from the applicable date at the rate per annum
specified in the Certified Resolution or Supplemental Indenture with respect to
such Series of Securities. Unless otherwise specified in the Certified
Resolution or Supplemental Indenture with respect to the Securities of any
Series, interest on the Securities of such Series shall be computed on the
basis of a 360-day year of twelve 30-day months. Such interest shall be
payable on the Interest Payment Dates specified in the Certified Resolution or
Supplemental Indenture with respect to such Series of Securities. The Person
in whose name any Security is registered at the close of business on the
applicable Record Date for the Series of which such Security is a part shall be
entitled to receive the interest payable thereon on such Interest Payment Date
notwithstanding the cancellation of such Security upon any transfer or exchange
thereof subsequent to such Record Date and prior to such Interest Payment Date
unless such Security shall have been called for redemption on a Redemption Date
which is subsequent to such Record Date and prior to such Interest Payment Date
or unless the Company shall default in the payment of interest due on such
Interest Payment Date on any Security of such Series.
Any interest on any Security of any Series which is payable, but is
not punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the
registered Holder on the relevant Record Date solely by virtue of such Holder
having been such Holder; and such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in subsection A or B below:
A. The Company may elect to make payment of any
Defaulted Interest on the Securities of any Series to the Persons in
whose names such Securities are registered at the close of business on
a Special Record Date for the payment of such Defaulted Interest,
which shall be fixed in the following manner. The Company shall
notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security and the date of the proposed
payment (which date shall be such as will enable the Trustee to comply
with the next sentence hereof), and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment,
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such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this subsection
provided. Thereupon the Trustee shall fix a special record date (the
"Special Record Date") for the payment of such Defaulted Interest
which shall be not more than 15 nor less than 10 days prior to the
date of the proposed payment and not less than 10 days after the
receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date
and, in the name and at the expense of the Company, shall cause notice
of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first-class postage prepaid, to
each Holder of a Security of such Series at such Holder's address as
it appears in the Security Register not less than 10 days prior to
such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been
mailed as aforesaid, such Defaulted Interest shall be paid to the
Persons in whose names the Securities of such Series are registered on
such Special Record Date and shall no longer be payable pursuant to
the following subsection B.
B. The Company may make payment of any Defaulted
Interest on the Securities of any Series in any other lawful manner
not inconsistent with the requirements of any securities exchange on
which such Securities may be listed and upon such notice as may be
required by such exchange, if, after notice given by the Company to
the Trustee of the proposed payment pursuant to this subsection, such
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section 2.03, each
Security delivered under this Indenture upon transfer of or in exchange for or
in lieu of any other Security shall carry all the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security and each
such Security shall bear interest from such date, such that neither gain nor
loss in interest shall result from such transfer, exchange or substitution.
SECTION 2.04. EXECUTION OF SECURITIES. The Securities shall be
executed manually or in facsimile, by an officer and the Secretary or an
Assistant Secretary of the Company under its corporate seal, which may be
affixed thereto or printed, engraved or otherwise reproduced thereon, by
facsimile or otherwise. Only such Securities as shall bear thereon a
certificate of authentication substantially in the form recited herein,
executed by the Trustee manually by an authorized officer, shall be entitled to
the benefits of this Indenture or be valid or obligatory for any purpose. Such
certificate of authentication of the Trustee upon any Security executed by the
Company shall be conclusive evidence that the Security so authenticated has
been duly authenticated and delivered hereunder and that the Holder is entitled
to the benefits of this Indenture. Typographical or other errors or defects in
the seal or facsimile signature on any Security or in the text thereof shall
not affect the validity or enforceability of such Security if it has been duly
authenticated and delivered by the Trustee.
In case any officer of the Company who shall have signed any of the
Securities (manually or in facsimile) shall cease to be such officer before the
Securities so signed shall have been authenticated and delivered by the
Trustee, or disposed of by the Company, such Securities nevertheless may be
authenticated and delivered or disposed of as though the Person who signed such
Securities had not ceased to be such officer of the Company. Also, any
Security may be signed on behalf of the Company by such Persons as on the
actual date of execution of such Security shall be the proper officers of the
Company, although at the date of the execution of this Indenture or on the
nominal date of such Security any such Person was not such officer.
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SECTION 2.05. REGISTRATION, TRANSFER AND EXCHANGE OF SECURITIES.
Except as specifically otherwise provided herein with respect to Global
Securities, Securities of any Series may be exchanged for a like aggregate
principal amount of Securities of the same Series of other authorized
denominations. Securities to be exchanged shall be surrendered at the offices
or agencies to be maintained in accordance with the provisions of Section 4.02
and the Company shall execute the Security or Securities, and the Trustee shall
authenticate and deliver in exchange therefor the Security or Securities which
the Securityholder making the exchange shall be entitled to receive.
The Company shall cause the Trustee to keep or cause to be kept, at
one or more of the offices or agencies to be maintained by the Trustee in
accordance with the provisions of Section 4.02 with respect to the Securities
of each Series, the Register in which, subject to such reasonable regulations
as it may prescribe, the Company shall provide for the registration of the
Securities of such Series and the transfer of Securities of such Series as in
this Article provided. The Register shall be in written form or in any other
form capable of being converted into written form within a reasonable time. At
all reasonable times the Register shall be open for inspection by the Trustee
and any registrar of the Securities of such Series other than the Trustee.
Upon due presentment for transfer of any Security of any Series at the offices
or agencies of the Company to be maintained in accordance with Section 4.02
with respect to the Securities of such Series, the Company shall execute a new
Security and the Trustee shall authenticate and deliver in the name of the
transferee or transferees a new Security or Securities of the same Series for a
like aggregate principal amount of authorized denominations.
Notwithstanding any other provisions of this Section 2.05, unless and
until it is exchanged in whole or in part for Securities in definitive form, a
Global Security representing all or a portion of the Securities of a Series may
not be transferred except as a whole by the Depository for such Series to a
nominee of such Depository or by a nominee of such Depository to such
Depository or another nominee of such Depository or by such Depository or any
such nominee to a successor Depository for such Series or a nominee of such
successor Depository.
All Securities of any Series presented or surrendered for
exchange, transfer, redemption, conversion or payment shall, if so required by
the Company or any registrar of the Securities of such Series, be accompanied
by a written instrument or instruments of transfer, in form satisfactory to the
Company and such registrar, duly executed by the registered Holder or by such
Person's attorney duly authorized in writing.
No service charge shall be made for any exchange or registration of
transfer of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in relation
thereto.
The Company shall not be required to exchange or transfer (a) any
Securities of any Series during a period beginning at the opening of business
15 days before the day of the first publication or the mailing (if there is no
publication) of a notice of redemption of Securities of such Series and ending
at the close of business on the day of such publication or mailing or (b) any
Securities called or selected for redemption in whole or in part, except, in
the case of Securities called for redemption in part, the portion thereof not
so called for redemption in whole or in part or during a period beginning at
the opening of business on any Record Date for such Series and ending at the
close of business on the relevant Interest Payment Date therefor.
SECTION 2.06. TEMPORARY SECURITIES. Pending the preparation of
definitive Securities of any Series, the Company may execute and the Trustee
shall authenticate and deliver temporary Securities of such Series which are
printed, lithographed, typewritten or otherwise produced, in any denomination
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substantially of the tenor of the definitive Securities in lieu of which they
are issued, in registered form and with such appropriate omissions, insertions,
substitutions and other variations as the officers executing such Securities
may determine, as evidenced by their execution of such Securities. Every such
temporary Security shall be authenticated by the Trustee upon the same
conditions and in substantially the same manner, and with the same effect, as
the definitive Securities. If temporary Securities are issued, the Company
will cause definitive Securities to be prepared without unreasonable delay.
After the preparation of definitive Securities, the temporary Securities of
such Series shall be exchangeable for definitive Securities upon surrender of
the temporary Securities without charge to the Holder at the offices or
agencies to be maintained by the Trustee as provided in Section 4.02 with
respect to the Securities of such Series. Upon surrender for cancellation of
any one or more temporary Securities the Company shall execute and the Trustee
shall authenticate and deliver in exchange for such temporary Securities an
equal aggregate principal amount of definitive Securities of such Series.
Until so exchanged, the temporary Securities of any Series shall in all
respects be entitled to the benefits of this Indenture and interest thereon,
when and as payable, shall be paid to the registered owners thereof.
SECTION 2.07. MUTILATED, DESTROYED, LOST OR STOLEN SECURITIES. If
(i) any mutilated Security is surrendered to the Trustee, or the Company and
the Trustee receive evidence to their satisfaction of the destruction, loss or
theft of any Security and (ii) there is delivered to the Company and the
Trustee such security or indemnity as may be required by them to save each of
them harmless, then, in the absence of notice to the Company or the Trustee
that such Security has been acquired by a bona fide purchaser, the Company
shall execute and upon its request the Trustee shall authenticate and deliver,
in exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Security, a new Security of the same Series and of like tenor and principal
amount, bearing a number not contemporaneously Outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section 2.07, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses connected therewith.
Every new Security issued pursuant to this Section 2.07 in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the security and benefits of this Indenture equally and ratably
with all other Outstanding Securities of such Series.
The provisions of this Section 2.07 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 2.08. CANCELLATION AND DESTRUCTION OF SURRENDERED SECURITIES.
All Securities surrendered for payment, redemption, transfer, conversion or
exchange shall, if surrendered to the Company, the Trustee or any agent of the
Company or of the Trustee, be delivered to the Trustee, and the same, together
with Securities surrendered to the Trustee for cancellation, shall be canceled
by it and thereafter disposed of by it as directed by the Company, and no
Securities shall be issued in lieu thereof except as expressly permitted by any
of the provisions of this Indenture. The Trustee shall destroy canceled
Securities and deliver a certificate of destruction thereof to the Company
unless by an Officer's Certificate of the Company, the Company shall direct
that canceled Securities be returned to it. If the Company shall purchase or
otherwise acquire any of the Securities, however, such purchase or
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acquisition shall not operate as a payment, redemption or satisfaction of the
indebtedness represented by such Securities unless and until the Company, at
its option shall deliver or surrender the same to the Trustee for cancellation.
SECTION 2.09. SECURITIES IN GLOBAL FORM; DEPOSITORIES. (a) Each
Global Security shall: (i) represent and be denominated in an aggregate amount
equal to the aggregate principal amount of the Securities of the Series to be
represented by such Global Security, (ii) be registered in the name of either
the Depository for such Global Security or the nominee of such Depository,
(iii) be delivered by the Trustee to such Depository or pursuant to such
Depository's written instruction and (iv) bear a legend substantially to the
following effect: "Unless and until it is exchanged in whole or in part for
Securities in definitive form, this Global Security may not be transferred
except as a whole by the Depository to a nominee of the Depository or by a
nominee of the Depository to the Depository or another nominee of the
Depository or by the Depository or any nominee to a successor Depository or a
nominee of any successor Depository." The notation of the record owner's
interest in such Global Security upon the original issuance thereof shall be
deemed to be delivery in connection with the original issuance of each
beneficial owner's interest in such Global Security. Without limiting the
foregoing, the Company and the Trustee shall have no responsibility, obligation
or liability with respect to: (x) the maintenance, review or accuracy of the
records of the Depository or of any of its participating organizations with
respect to any ownership interest in or payments with respect to such Global
Security, (y) any communication with or delivery of any notice (including
notices of redemption) with respect to the Series of Securities represented by
the Global Security to any Person having any ownership interest in such Global
Security or to any of the Depository's participating organizations or (z) any
payment made on account of any beneficial ownership interest in such Global
Security.
(b) If any Security of a Series is issuable in the form of a
Global Security or Securities, each such Global Security may provide that it
shall represent the aggregate amount of Outstanding Securities of such Series
from time to time endorsed thereon and may also provide that the aggregate
amount of Outstanding Securities of such Series represented thereby may from
time to time be reduced to reflect exchanges. Any endorsement of a Global
Security to reflect the amount of Outstanding Securities of a Series
represented thereby shall be made by the Trustee and in such manner as shall be
specified on such Global Security. Any instructions by the Company with
respect to a Global Security, after its initial issuance, shall be in writing
but need not comply with Section 13.03 of this Indenture.
(c) Each Depository designated pursuant to the provisions of
Section 2.01 of this Indenture for a Global Security must, at the time of its
designation and at all times while it serves as a depositary, be a clearing
agency registered under the Securities Exchange Act of 1934, as amended, and
any other applicable statute or regulation. If at any time the Depository for
the Securities of a Series notifies the Company that it is unwilling or unable
to continue as Depository for the Securities of such Series or if at any time
the Depository for the Securities of such Series shall no longer be eligible
under this Section 2.09, the Company shall appoint a successor Depository with
respect to the Securities of such Series. If a successor Depository for the
Securities of such Series is not appointed by the Company within 90 days after
the Company receives such notice or learns of such ineligibility, the Company
shall execute and the Company shall direct the Trustee to authenticate and
deliver definitive Securities of such Series in authorized denominations in
exchange for the Global Security or Securities. Upon receipt of such
direction, the Trustee shall thereupon authenticate and deliver the definitive
Securities of such Series in the same aggregate principal amount as the Global
Security or Securities representing such Series in exchange for such Global
Security or Securities, in accordance with the provisions of subsection (e) of
this Section 2.09, without any further corporate action by the Company.
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(d) The Company may at any time and in its sole discretion
determine that the Securities of any Series issued in the form of one or more
Global Securities shall no longer be represented by such Global Security or
Securities. In such event, the Company will execute and upon receipt of a
written order from the Company, the Trustee shall thereupon authenticate and
deliver Securities of such Series in definitive form and in authorized
denominations in an aggregate principal amount equal to the principal amount of
the Global Security or Securities representing such Series in exchange for such
Global Security or Securities, in accordance with the provisions of subsection
(e) of this Section 2.09 without any further corporate action by the Company.
(e) Upon any exchange hereunder of the Global Security or
Securities for Securities in definitive form, such Global Security or
Securities shall be canceled by the Trustee. Securities issued hereunder in
exchange for the Global Security or Securities shall be registered in such
names and in such authorized denominations as the Depository for such Global
Security, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee. The Trustee shall deliver such
definitive Securities in exchange for the Global Security or Securities to the
persons in whose name such definitive Securities have been registered in
accordance with the directions of the Depository.
ARTICLE THREE
REDEMPTION OF SECURITIES
SECTION 3.01. REDEMPTION OF SECURITIES. Securities of any Series may
be made subject to redemption prior to their Stated Maturity, as a whole or in
part, at such time or times, upon payment of the principal amount thereof plus
such premium or premiums, if any, as shall be set forth in the resolution of
the Board of Directors or the Supplemental Indenture relating to such Series.
SECTION 3.02. NOTICE OF REDEMPTION. In all cases other than
redemption at the option of the Holders of Securities, notice of redemption
shall be given by mail, not less than 30 nor more than 60 days prior to the
Redemption Date, to each Person in whose name any Security called for
redemption is registered on the Register as of the date of such notice, but
neither a failure to give notice by mail nor any defect in any notice so mailed
shall affect the validity of the proceedings for such redemption. Each notice
of redemption shall state the Redemption Date, the Redemption Price, the place
of redemption, the principal amount and, if less than all, the distinctive
numbers of the Securities to be redeemed and shall also state that the interest
on the Securities in such notice designated for redemption shall cease to
accrue from and after such Redemption Date.
Notice of redemption of Securities may be given by the Company or, at
the option of the Company, by the Trustee on behalf of the Company. Upon
receipt of any direction to give notice, the Trustee shall immediately give
such notice. The Trustee may rely upon such direction that all conditions
precedent to the giving of such direction have been complied with or done.
SECTION 3.03. SELECTION OF SECURITIES FOR REDEMPTION. Whenever
provision is made for the redemption of any Series of Securities or portion
thereof and less than all of the Securities of such Series or portion thereof
are called for redemption, the Trustee shall select the Securities to be
redeemed, from the Outstanding Securities of such Series or portion thereof not
previously called for redemption, in any manner which the Trustee deems fair
and appropriate. For the purpose of any such selection, the Trustee shall
assign a separate number for each $1,000 principal amount of each Security of a
denomination of more than $1,000 except that if the Securities of any Series
are denominated in a currency other than U.S. dollars, the Trustee shall assign
a separate number for each principal amount equal to the minimum
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denomination of each Security of such Series of a denomination greater than
such minimum denomination.
SECTION 3.04. PARTIAL REDEMPTION OF REGISTERED SECURITY. Upon
surrender of any registered Security (including any Global Security) to be
redeemed in part only, the Company shall execute and the Trustee shall
authenticate and deliver to the registered owner thereof, without service
charge, a new Security or Securities (or in the case of a Global Security, a
new Global Security) of the same Series and maturity and of authorized
denomination or denominations as requested by such registered owners, in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security so surrendered.
SECTION 3.05. EFFECT OF REDEMPTION. If notice of redemption shall
have been duly given as provided in Section 3.02, the Securities or portions of
Securities specified in such notice shall become due and payable on the
Redemption Date and at the place or places stated in such notice at the
Redemption Price specified in such notice, and on and after such Redemption
Date (unless the Company shall default in the payment of such Securities at the
applicable Redemption Price) such Securities or portions of Securities shall
cease to bear interest, and such Securities shall cease from and after the
Redemption Date to be entitled to any benefit or security under this Indenture,
and the Holders thereof shall have no right in respect of such Securities
except the right to receive the Redemption Price thereof and any unpaid
interest accrued to the Redemption Date. Upon presentation and surrender of
such Securities at said place of payment in said notice specified, the said
Securities or portions thereof shall be paid and redeemed by the Company at the
applicable Redemption Price, together with any interest accrued to the
Redemption Date; provided, however, that any regular payment of interest
becoming due on any Securities on the Redemption Date shall be payable to the
registered owners of such Securities as of the Relevant Record Date as provided
in Article Two hereof. Upon presentation of any Security which is redeemed in
part only, the Company shall execute a new Security and the Trustee shall
authenticate and deliver at the expense of the Company a new Security of the
same Series of authorized denomination in principal amount equal to the
unredeemed portion of the Security so presented.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal thereof shall, to the extent
permitted by law, bear interest from the date fixed for redemption at the rate
borne by the Security, or, in the case of a Security which does not bear
interest, at the rate of interest set forth therefor in the Security in either
case, until paid.
ARTICLE FOUR
PARTICULAR COVENANTS OF THE COMPANY
SECTION 4.01. PAYMENT OF PRINCIPAL OF AND INTEREST ON SECURITIES.
The Company covenants that it will duly and punctually pay or cause to be paid
the principal of and any interest and premium on each of the Securities in
accordance with the terms of the Securities and this Indenture. Except with
respect to any Global Securities, if the Securities of any Series bear
interest, each installment of interest on the Securities of such Series may, at
the option of the Company, be paid by mailing a check or checks for such
interest payable to the Person entitled thereto pursuant to Section 2.03 to the
address of such Person as it appears on the Register of the Securities of such
Series on the applicable Record Date for such interest payment.
SECTION 4.02. MAINTENANCE OF OFFICES OR AGENCIES FOR TRANSFER,
REGISTRATION, EXCHANGE AND PAYMENT OF SECURITIES. So long as any of the
Securities shall remain Outstanding, the Company covenants that it will cause
the Trustee to maintain an office or agency in either The City of [New York,
State of New York],
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or the City and County of San Francisco, State of California, where the
Securities may be presented for registration, exchange and transfer as in this
Indenture provided, and where notices and demands to or upon the Trustee in
respect of the Securities or of this Indenture may be served, and where the
Securities may be presented for payment. In case the Trustee shall fail to
maintain any such office or agency, presentations and demands may be made and
notices may be served at the principal office of the Trustee.
In addition, the Company may from time to time constitute and appoint
one or more other offices or agencies for such purposes with respect to
Securities of any Series, and one or more paying agents for the payment of
Securities of any Series, in such cities or in one or more other cities, and
may from time to time rescind such appointments, as the Company may deem
desirable or expedient, and as to which the Company has notified the Trustee.
SECTION 4.03. APPOINTMENT TO FILL A VACANCY IN THE OFFICE OF TRUSTEE.
The Company, whenever necessary to avoid or fill a vacancy in the office of
Trustee, covenants that it will appoint, in the manner provided in Section
7.10, a Trustee, so that there shall at all times be a Trustee with respect to
the Outstanding Securities.
SECTION 4.04. DUTIES OF PAYING AGENT. (a) If the Company shall
appoint a Paying Agent other than the Trustee with respect to Securities of any
Series, it will cause such Paying Agent to execute and deliver to the Trustee
an instrument in which such agent shall agree with the Trustee, subject to the
provisions of this Section 4.04 and Section 11.05,
(1) that it will hold all sums held by it as such agent
for the payment of the principal of or interest, if any, on the
Securities of such Series (whether such sums have been paid to it by
the Company or by any other obligor on the Securities of such Series)
in trust for the benefit of the Holders of the Securities entitled to
such principal or interest and will notify the Trustee of the receipt
of sums to be so held,
(2) that it will give the Trustee notice of any failure
by the Company (or by any other obligor on the Securities of such
Series) to make any payment of the principal of or interest on the
Securities of such Series when the same shall be due and payable, and
(3) that it will at any time during the continuance of
any Event of Default, upon the written request of the Trustee, deliver
to the Trustee all sums so held in trust by it.
(b) Whenever the Company shall have one or more Paying Agents with
respect to the Securities of any Series, it will, prior to each due date of the
principal of or any interest on the Securities of such Series, deposit with a
Paying Agent of such Series a sum sufficient to pay the principal or interest
so becoming due, such sum to be held in trust for the benefit of the Holders of
Securities entitled to such principal or interest, and (unless such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of its
action or failure so to act.
(c) Anything in this Section 4.04 to the contrary notwithstanding,
the Company may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture with respect to one or more or all Series of
Securities hereunder, or for any other reason, pay or cause to be paid to the
Trustee
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all sums held in trust for such Series by it, or any Paying Agent hereunder, as
required by this Section 4.04, and such sums are to be held by the Trustee upon
the trust herein contained.
SECTION 4.05. NOTICE OF DEFAULT. The Company covenants that, as soon
as is practicable, the Company will furnish the Trustee notice of any event
which is an Event of Default or which with the giving of notice or the passage
of time or both would constitute an Event of Default which has occurred and is
continuing on the date of such notice, which notice shall set forth the nature
of such event and the action which the Company proposes to take with respect
thereto.
ARTICLE FIVE
SECURITYHOLDERS' LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
SECTION 5.01. COMPANY TO FURNISH TRUSTEE INFORMATION AS TO THE NAMES
AND ADDRESSES OF SECURITYHOLDERS. The Company will furnish or cause to be
furnished to the Trustee, not less than 45 days nor more than 60 days after
each date (month and day) specified as an Interest Payment Date for the
Securities of the first Series issued under this Indenture (whether or not any
Securities of that Series are then Outstanding), but in no event less
frequently than semiannually, and at such other times as the Trustee may
request in writing, within 30 days after receipt by the Company of any such
request, a list in such form as the Trustee may reasonably require containing
all the information in the possession or control of the Company, or any of its
Paying Agents other than the Trustee, as to the names and addresses of the
Holders of Securities, obtained since the date as of which the next previous
list, if any, was furnished, excluding from any such list the names and
addresses received by the Trustee in its capacity as registrar (if so acting).
Any such list may be dated as of a date not more than 15 days prior to the time
such information is furnished and need not include information received after
such date.
SECTION 5.02. PRESERVATION OF INFORMATION; COMMUNICATION TO
SECURITYHOLDERS. (a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of the Holders of Securities of
each Series (1) contained in the most recent list furnished to it as provided
in Section 5.01, (2) received by the Trustee in the capacity of Paying Agent or
registrar (if so acting) and (3) filed with the Trustee within the two
preceding years as provided for in Section 5.04(c). The Trustee may destroy
any list furnished to it as provided in Section 5.01 upon receipt of a new list
so furnished.
(b) If three or more Holders of Securities (hereinafter referred
to as "applicants") apply in writing to the Trustee, and furnish to the Trustee
reasonable proof that each such applicant has owned a Security for a period of
at least six months preceding the date of such application, and such
application states that the applicants desire to communicate with other Holders
of Securities of any Series or with Holders of all Securities with respect to
their rights under this Indenture or under such Securities, and is accompanied
by a copy of the form of proxy or other communication which such applicants
propose to transmit, then the Trustee shall, within five Business Days after
the receipt of such application, at its election, either:
(1) afford such applicants access to the information
preserved at the time by the Trustee in accordance with the provisions
of subsection (a) of this Section 5.02 or
(2) inform such applicants as to the approximate number
of Holders of Securities of such Series or all Securities, as the case
may be, whose names and addresses appear in the information preserved
at the time by the Trustee in accordance with the provisions of
subsection (a) of this Section 5.02, and as to the approximate cost
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of mailing to such Securityholders the form of proxy or other
communications, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each of the Holders of Securities of such Series, or all
Securities, as the case may be, whose name and address appear in the
information preserved at the time by the Trustee in accordance with the
provisions of subsection (a) of this Section 5.02, a copy of the form of proxy
or other communication which is specified in such request, with reasonable
promptness after a tender to the Trustee of the material to be mailed and of
payment, or provision for the payment, of the reasonable expenses of mailing,
unless within five days after such tender, the Trustee shall mail to such
applicants and file with the Commission, together with a copy of the material
to be mailed, a written statement to the effect that, in the opinion of the
Trustee, such mailing would be contrary to the best interests of the Holders of
Securities of such Series or all Securities, as the case may be, or would be in
violation of applicable law. Such written statement shall specify the basis of
such opinion. If the Commission, after opportunity for a hearing upon the
objections specified in the written statement so filed, shall enter an order
refusing to sustain any of such objections or if, after the entry of an order
sustaining one or more of such objections, the Commission shall find, after
notice and opportunity for hearing, that all the objections so sustained have
been met and shall enter an order so declaring, the Trustee shall mail copies
of such material to all such Securityholders with reasonable promptness after
the entry of such order and the renewal of such tender; otherwise the Trustee
shall be relieved of any obligation or duty to such applicants respecting their
application.
(c) Each and every Holder of the Securities, by receiving and
holding the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any Paying Agent nor any registrar shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the Holders of Securities in accordance with the provisions of
subsection (b) of this Section 5.02, regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under said subsection
(b).
SECTION 5.03. REPORTS BY COMPANY. (a) The Company covenants and
agrees to file with the Trustee within 15 days after the Company is required to
file the same with the Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as the Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934;
or, if the Company is not required to file information, documents or reports
pursuant to either of such sections, then to file with the Trustee and the
Commission, in accordance with rules and regulations prescribed from time to
time by the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of the
Securities Exchange Act of 1934 in respect of a security listed and registered
on a national securities exchange as may be prescribed from time to time in
such rules and regulations.
(b) The Company covenants and agrees to file with the Trustee and
the Commission, in accordance with the rules and regulations prescribed from
time to time by the Commission, such additional information, documents and
reports with respect to compliance by the Company with the conditions and
covenants provided for in this Indenture as may be required from time to time
by such rules and regulations.
(c) The Company covenants and agrees to transmit to the Holders of
Securities within 30 days after the filing thereof with the Trustee, in the
manner and to the extent provided in subsection (c)
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of Section 5.04 with respect to reports pursuant to subsection (a) of said
Section 5.04, such summaries of any information, documents and reports required
to be filed by the Company pursuant to subsections (a) and (b) of this Section
5.03 as may be required by rules and regulations prescribed from time to time
by the Commission.
(d) The Company and any other obligor on the Securities each
covenant and agree to furnish to the Trustee, not less than annually, a brief
certificate from the principal executive officer, principal financial officer
or principal accounting officer as to his or her knowledge of the Company's
compliance with all conditions and covenants of this Indenture (which
compliance shall be determined without regard to any period of grace or
requirement of notice as provided in this Indenture). Such certificates need
not comply with Section 13.03 of this Indenture.
SECTION 5.04. REPORTS BY TRUSTEE. (a) On or before the first July
15th following the date of execution of this Indenture, and on or before July
15 in every year thereafter, if and so long as any Securities are Outstanding
hereunder, the Trustee shall transmit to the Securityholders as hereinafter in
this Section 5.04 provided, a brief report dated as of the preceding May 15
with respect to any of the following events which may have occurred within the
previous 12 months (but if no such event has occurred within such period no
report need be transmitted):
(1) any change to its eligibility under Section 7.09, and
its qualifications under Section 7.08;
(2) the creation of or any material change to a
relationship specified in paragraph (1) through (10) of Section
7.08(d);
(3) the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the making
thereof) made by the Trustee (as such) which remain unpaid on the date
of such report, and for the reimbursement of which it claims or may
claim a lien or charge, prior to that of the Securities of any Series,
on any property or funds held or collected by it as Trustee, except
that the Trustee shall not be required (but may elect) to state such
advances if such advances so remaining unpaid aggregate not more than
one-half of one percent of the principal amount of the Securities of
such Series Outstanding on the date of such report;
(4) the amount, interest rate and maturity date of all
other indebtedness owing by the Company (or by any other obligor on
the Securities) to the Trustee in its individual capacity, on the date
of such report, with a brief description of any property held as
collateral security therefor, except indebtedness based upon a
creditor relationship arising in any manner described in paragraph
(2), (3), (4) or (6) of subsection (b) of Section 7.13;
(5) any change to the property and funds, if any,
physically in the possession of the Trustee (as such) on the date of
such report;
(6) any additional issue of Securities which the Trustee
has not previously reported; and
(7) any action taken by the Trustee in the performance of
its duties under this Indenture which it has not previously reported
and which in its opinion materially
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affects the Securities, except action in respect of a default, notice
of which has been or is to be withheld by it in accordance with the
provisions of Section 6.10.
(b) The Trustee shall transmit to the Securityholders, as
hereinafter provided, a brief report with respect to the character and amount
of any advances (and if the Trustee elects so to state, the circumstances
surrounding the making thereof) made by the Trustee (as such) since the date of
the last report transmitted pursuant to the provisions of subsection (a) of
this Section 5.04 (or if no such report has yet been so transmitted, since the
date of execution of this Indenture), for the reimbursement of which it claims
or may claim a lien or charge prior to that of the Securities of any Series on
property or funds held or collected by it as Trustee, and which it has not
previously reported pursuant to this subsection, except that the Trustee shall
not be required (but may elect) to report such advances if such advances
remaining unpaid at any time aggregate ten percent or less of the principal
amount of Securities of such Series Outstanding at such time, such report to be
transmitted within 90 days after such time.
(c) Reports pursuant to this Section 5.04 shall be transmitted by
mail (i) to all Holders of Securities of any Series, as the names and addresses
of such Holders shall appear upon the Register of the Securities of such
Series, (ii) to such Holders of Securities as have, within the two years
preceding such transmission, filed their names and addresses with the Trustee
for that purpose and (iii) except in the case of reports pursuant to subsection
(b) of this Section 5.04 to each Holder whose name and address are preserved at
the time by the Trustee as provided in Section 5.02(a) hereof.
(d) A copy of each such report shall, at the time of such
transmission to Securityholders, be filed by the Trustee with each stock
exchange upon which the Securities of any Series are listed and also with the
Commission. The Company will notify the Trustee when and as the Securities of
any Series become listed on any stock exchange.
ARTICLE SIX
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 6.01. EVENTS OF DEFAULT; ACCELERATION, WAIVER OF DEFAULT AND
RESTORATION OF POSITION AND RIGHTS. The term "Event of Default" whenever used
herein with respect to any particular Series of Securities shall mean any one
of the following events:
(a) default in the payment of any installment of interest
on any Security of such Series as and when the same shall become due
and payable, and continuance of such default for a period of 30 days,
or
(b) default in the payment of all or any part of the
principal of or any premium on any Security of such Series as and when
the same shall become due and payable whether at maturity, by
proceedings for redemption, by declaration or otherwise, or
(c) default in the satisfaction of any sinking fund
payment obligation relating to such Series of Securities, when and as
such obligation shall become due and payable, or
(d) failure on the part of the Company to observe or
perform in any material respect any other of the covenants or
agreements on its part in the Securities or in this
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Indenture (including any Supplemental Indenture or pursuant to any
Certified Resolution, as contemplated by Section 2.01) specifically
contained for the benefit of the Holders of the Securities of such
Series, for a period of 90 days after there has been given, by
registered or certified mail, to the Company by the Trustee, or to the
Company and the Trustee by the Holders of not less than 25% in
principal amount of the Securities of such Series and all other Series
so benefited (all Series voting as one class) at the time Outstanding
under this Indenture a written notice specifying such failure and
stating that such is a "Notice of Default" hereunder, or
(e) the entry by a court having jurisdiction in the
premises of a decree or order for relief in respect of the Company in
an involuntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, or appointing a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or
similar official) of the Company or for any substantial part of its
property, or ordering the winding up or liquidation of its affairs, if
such decree or order shall remain unstayed and in effect for a period
of 60 consecutive days, or
(f) the commencement by the Company of a voluntary case
under any applicable bankruptcy, insolvency or other similar law now
or hereafter in effect, or the Company's consent to the entry of an
order for relief in any involuntary case under any such law, or its
consent to the appointment of or taking possession by a receiver,
liquidator, assignee, trustee, custodian, sequestrator (or similar
official) of the Company or for any substantial part of its property,
or the making by the Company of any general assignment for the benefit
of creditors, or its failure generally to pay its debts as they become
due or the taking by the Company of any corporate action in
furtherance of any of the foregoing.
If an Event of Default shall have occurred and be continuing with
respect to any one or more Series of Outstanding Securities, then and in each
and every such case, unless the principal amount of all the Securities of each
Series as to which there is an Event of Default shall have already become due
and payable, either the Trustee or the Holders of not less than 25% in
principal amount of the Securities of such Series then Outstanding hereunder
(each such Series voting as a separate class) by notice in writing to the
Company (and to the Trustee if given by Securityholders) may declare the
principal amount (or, if the Securities of any such Series are Original Issue
Discount Securities, such portion of the principal amount as may be specified
in the terms of such Series) of all the Securities of such Series, together
with any accrued interest, to be due and payable immediately, and upon any such
declaration the same shall be immediately due and payable, anything in this
Indenture or in the Securities of such Series contained to the contrary
notwithstanding. The foregoing provisions, however, are subject to the
condition that if, at any time after the principal amount of the Securities of
any one or more Series (or of all the Securities, as the case may be) shall
have been so declared due and payable, and before any judgment or decree for
the payment of moneys due shall have been obtained or entered as hereinafter
provided, the Company shall pay or shall deposit with the Trustee a sum
sufficient to pay all matured installments of interest upon all the Securities
of such Series (or upon all the Securities, as the case may be) and the
principal of any and all Securities of such Series (or of any and all the
Securities, as the case may be) which shall have become due otherwise than by
declaration (with interest on overdue installments of interest to the extent
permitted by law and on such principal at the rate or rates of interest borne
by, or prescribed therefor in the Securities of such Series to the date of such
payment or deposit) and the amounts payable to the Trustee under Section 7.06
and any and all defaults under the Indenture with respect to Securities of such
Series (or all Securities, as the case may be), other than the non-payment of
principal of and any accrued interest on Securities of such Series (or any
Securities, as the case may be) which shall have become due
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by declaration shall have been cured, remedied or waived as provided in Section
6.09 -- then and in every such case the Holders of a majority in principal
amount of the Securities of such Series (or of all the Securities, as the case
may be) then Outstanding (such Series or all Series voting as one class if more
than one Series are so entitled) by written notice to the Company and to the
Trustee, may rescind and annul such declaration and its consequences; but no
such rescission and annulment shall extend to or shall affect any subsequent
default, or shall impair any right consequent thereon.
In case the Trustee shall have proceeded to enforce any right under
this Indenture and such proceedings shall have been discontinued or abandoned
because of such rescission or annulment or for any other reason or shall have
been determined adversely to the Trustee, then and in every such case the
Company, the Trustee and the Holders of the Securities of such Series (or of
all the Securities, as the case may be) shall be restored respectively to their
former positions and rights hereunder, and all rights, remedies and powers of
the Company and the Trustee and the Holders of the Securities of such Series
(or of all the Securities, as the case may be) shall continue as though no such
proceedings had been taken.
SECTION 6.02. COVENANT OF COMPANY TO PAY TO TRUSTEE WHOLE AMOUNT DUE
ON SECURITIES ON DEFAULT IN PAYMENT OF INTEREST OR PRINCIPAL. The Company
covenants that:
(1) in case default shall be made in the payment of any
installment of interest on any of the Securities of any Series as and
when the same shall become due and payable, and such default shall
have continued for a period of 30 days or
(2) in case default shall be made in the payment of all
or any part of the principal of any of the Securities of any Series
when the same shall have become due and payable, whether at the Stated
Maturity of such Series or by any call for redemption or by
declaration of acceleration or otherwise or
(3) in case default shall be made in the satisfaction of
any sinking fund obligation when and as such obligation becomes due
and payable,
upon demand of the Trustee, the Company will pay to the Trustee, for the
benefit of the Holders of the Securities of such Series, the whole amount that
then shall have become due and payable on all such Securities of such Series
for principal (and any premium) and interest and for any overdue sinking fund
payment together with interest upon the overdue principal and installments of
interest (to the extent permitted by law) at the rate or rates of interest
borne by, or prescribed therefor in, the Securities of such Series; and, in
addition thereto, such further amount as shall be sufficient to cover the costs
and expense of collection, including a reasonable compensation to the Trustee,
its agents and counsel, and any expenses or liabilities incurred, and all
advances made, by the Trustee hereunder other than through its negligence or
bad faith.
In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as Trustee of an express trust, shall
be entitled and empowered to institute any actions or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceedings to judgment or final decree, and may enforce any
such judgment or final decree against the Company or any other obligor upon
such Securities, and collect in the manner provided by law out of the property
of the Company or any other obligor upon such Securities wherever situated the
moneys adjudged or decreed to be payable.
If an Event of Default with respect to Securities of any Series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of
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Securities of such Series by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
SECTION 6.03. TRUSTEE MAY FILE PROOFS OF CLAIM. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other similar judicial
proceeding relative to the Company or any other obligor upon the Securities or
the property of the Company or of such other obligor or their creditors, the
Trustee (irrespective of whether the principal of the Securities of any Series
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, to the fullest extent permitted by law, by intervention in such
proceeding or otherwise:
(i) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and unpaid in
respect of the Securities (or, if the Securities are Original Issue
Discount Securities, such portion of the principal amount as may be
specified in the terms of such Securities) and to file such other
papers or documents as may be necessary or advisable in order to have
the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel) and of the Holders allowed in such judicial
proceeding, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel,
and any other amounts due the Trustee under Section 7.06.
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.
SECTION 6.04. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES. All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee to the fullest extent
permitted by law without the possession of any of the Securities or the
production thereof in any proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, be for the ratable benefit of the Holders
of the Securities in respect of which such judgment has been recovered.
SECTION 6.05. APPLICATION OF MONEYS COLLECTED BY TRUSTEE. Any moneys
collected by the Trustee pursuant to Section 6.02 shall be applied in the order
following, at the date or dates fixed by the Trustee for the distribution of
such moneys, upon presentation of the several Securities in respect of
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which moneys have been collected, and stamping thereon the payment, if only
partially paid, and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due to the Trustee under
Section 7.06;
SECOND: In case the principal of the Outstanding Securities
in respect of which moneys have been collected shall not have become
due and be unpaid, to the payment of any interest on such Securities,
in the order of the maturity of the installments of such interest,
with interest upon the overdue installments of interest (so far as
permitted by law and to the extent that such interest has been
collected by the Trustee at the rate or rates of interest borne by
such Securities or prescribed therefor therein) such payments to be
made ratably to the Persons entitled thereto, without discrimination
or preference;
THIRD: In case the principal of the Outstanding Securities in
respect of which such moneys have been collected shall have become
due, by declaration or otherwise, to the payment of the whole amount
then owing and unpaid upon such Securities for principal and interest,
if any, with interest on the overdue principal and any installments of
interest (so far as permitted by law and to the extent that such
interest has been collected by the Trustee) at the rate or rates of
interest borne by, or prescribed therefor in, such Securities; and in
case such moneys shall be insufficient to pay in full the whole amount
so due and unpaid upon such Securities, then to the payment of such
principal and interest, without preference or priority of principal
over interest, or of interest over principal, or of any installment of
interest over any other installment of interest, or of any Security
over any other Security, ratably to the aggregate of such principal
and accrued and unpaid interest; and
FOURTH: To the payment of the remainder, with appropriate
interest to the Company or its successors or assigns, or to whomsoever
may be lawfully entitled to receive the same, or as a court of
competent jurisdiction may direct.
SECTION 6.06. LIMITATION ON SUITS BY HOLDERS OF SECURITIES. No
Holder of any Security of any Series shall have any right by virtue or by
availing of any provision of this Indenture to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Indenture
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless such Holder previously shall have given to the Trustee
written notice of a continuing Event of Default, as hereinbefore provided, and
unless also the Holders of not less than 25% in principal amount of the
Securities of such Series then Outstanding shall have made written request upon
the Trustee to institute such action, suit or proceeding in its own name as
Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby (including the reasonable fees of counsel for the
Trustee), and the Trustee, for 60 days after its receipt of such notice,
request and offer of indemnity, shall have neglected or refused to institute
any such action, suit or proceeding and no direction inconsistent with such
written request shall have been given to the Trustee pursuant to this Section
6.06; it being understood and intended, and being expressly covenanted by the
taker and Holder of every Security with every other taker and Holder and the
Trustee, that no one or more Holders of Securities shall have any right in any
manner whatever by virtue or by availing of any provision of this Indenture to
affect, disturb or prejudice the rights of the Holders of any other of such
Securities, or to obtain or seek to obtain priority over or preference to any
other such Holder, or to enforce any right under this Indenture, except in the
manner herein provided and for the equal, ratable and common benefit of all
Holders of Securities. For the protection and enforcement of the provisions of
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this Section 6.06, each and every Holder and the Trustee shall be entitled to
such relief as can be given either at law or in equity.
Notwithstanding any other provisions in this Indenture, the right of
any Holder of any 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, in the case of redemption, on or after the date fixed for
redemption), or to institute suit for the enforcement of any such payment on or
after such respective dates shall not be impaired or affected without the
consent of such Holder.
SECTION 6.07. RIGHTS AND REMEDIES CUMULATIVE. All powers and
remedies given by this Article Six to the Trustee or to the Holders shall, to
the extent permitted by law, be deemed cumulative and not exclusive of any
thereof or of any other powers and remedies available to the Trustee or the
Holders, by judicial proceedings or otherwise, to enforce the performance or
observance of the covenants and agreements contained in this Indenture, and no
delay or omission of the Trustee or of any Holder of any of the Securities to
exercise any right or power accruing upon any default occurring and continuing
as aforesaid shall impair any such right or power, or shall be construed to be
a waiver of any such default or an acquiescence therein; and, subject to the
provisions of Section 6.06, every power and remedy given by this Article Six or
by law to the Trustee or to the Holders may be exercised from time to time, and
as often as shall be deemed expedient, by the Trustee or by the Holders. The
assertion or employment of any right or remedy hereunder or otherwise shall not
prevent the concurrent assertion or employment of any other appropriate right
or remedy.
SECTION 6.08. DELAY OR OMISSION NOT WAIVER. No delay or omission of
the Trustee or of any Holder of any Securities to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Subject to the provisions of Section 6.06, every right and remedy given by this
Article Six or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
SECTION 6.09. CONTROL BY HOLDERS; WAIVER OF PAST DEFAULTS. The
Holders of a majority in principal amount of the Securities of all Series
(voting as one class) at the time Outstanding (determined as provided in
Section 8.04) 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, subject to Section 7.01 the Trustee shall have the right to decline to
follow any such direction if the Trustee in reliance upon an Opinion of Counsel
determines that the action so directed may not lawfully be taken, or if the
Trustee in good faith shall, by a Responsible Officer or Officers of the
Trustee, determine that the proceedings so directed would be illegal or involve
it in personal liability or be unduly prejudicial to the rights of Holders not
parties to such direction, and provided further that nothing in this Indenture
shall impair the right of the Trustee to take any action deemed proper by the
Trustee and which is not inconsistent with such direction by the Holders.
The Company may set a special record date for purposes of determining
the identity of the Holders of Securities entitled to vote or consent to any
action by vote or consent authorized or permitted by this Section 6.09. Such
record date shall be the later of 15 days prior to the first solicitation of
such consent or the date of the most recent list of Holders furnished to the
Trustee pursuant to Section 5.01 of this Indenture prior to such solicitation.
The Holders of not less than a majority in principal amount of the
Securities of any Series at the time Outstanding (determined as provided in
Section 8.04) may on behalf of the Holders of all the Securities of such Series
waive any past Event of Default with respect to such Series and its
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consequences (subject to Section 6.02), except a continuing Event of Default
specified in Section 6.01(a), (b) or (c), or in respect of a covenant or
provision of this Indenture which under Article Ten cannot be modified or
amended without the consent of the Holder of each Security so affected. Upon
any such waiver, the Company, the Trustee and the Holders of the Securities of
such Series shall be restored to their former positions and rights hereunder,
respectively, and such Event of Default shall be deemed to have been cured and
not continuing for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other Event of Default or impair any right
consequent thereon.
SECTION 6.10. TRUSTEE TO GIVE NOTICE OF DEFAULTS KNOWN TO IT, BUT MAY
WITHHOLD IN CERTAIN CIRCUMSTANCES. The Trustee shall, within 90 days after the
occurrence of any default hereunder with respect to the Securities of any
Series, give to the Holders of the Securities of such Series in the manner and
to the extent provided in subsection (c) of Section 5.04 with respect to
reports pursuant to subsection (a) of said Section 5.04, notice of such default
known to the Trustee unless such default shall have been cured, remedied or
waived before the giving of such notice (the term "default" for the purposes of
this Section 6.10 being hereby defined to be the events specified in Section
6.01 and any additional events specified in the terms of any Series of
Securities pursuant to Section 2.01 not including any periods of grace provided
for therein, and irrespective of the giving of written notice specified in
clause (d) of Section 6.01 and in any such terms); provided, that except in the
case of default in the payment of the principal of or interest on any of the
Securities of such Series, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee, or a
trust committee of directors and/or Responsible Officers of the Trustee in good
faith determines that the withholding of such notice is in the interest of the
Holders of the Securities of such Series.
SECTION 6.11. REQUIREMENT OF AN UNDERTAKING TO PAY COSTS IN CERTAIN
SUITS UNDER THE INDENTURE OR AGAINST THE TRUSTEE. All parties to this
Indenture agree, and each Holder of any Security by such Holder's acceptance
thereof shall be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken or omitted
by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section 6.11 shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder of Securities of any Series, or
group of such Holders, holding in the aggregate more than ten percent in
principal amount of the Securities of such Series Outstanding, or to any suit
instituted by any Holder for the enforcement of the payment of the principal of
or any interest or premium on any Security, on or after the due date expressed
in such Security or for such interest (or in the case of any redemption, on or
after the Redemption Date).
ARTICLE SEVEN
CONCERNING THE TRUSTEE
SECTION 7.01. CERTAIN DUTIES AND RESPONSIBILITIES OF TRUSTEE. The
Trustee, prior to the occurrence of an Event of Default and after the curing,
remedying or waiving of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Indenture. In case an Event of Default has occurred (which has
not been cured, remedied or waived), the Trustee shall exercise such of the
rights and powers vested in it by this Indenture, and use the same degree of
care and skill in their exercise, as a prudent man would exercise or use under
the circumstances in the conduct of his or her own affairs.
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No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, provided, however, that:
(a) prior to the occurrence of an Event of Default and
after the curing, remedying or waving of all Events of Default which
may have occurred:
(1) the duties and obligations of the Trustee
shall be determined solely by the express provisions of this
Indenture and the Trustee shall not be liable except for the
performance of such duties and obligations 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 the part of
the Trustee, the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished
to the Trustee and conforming to the requirements of this
Indenture; but in the case of any such certificates or
opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be
under a duty to examine the same to determine whether or not
they conform to the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer or Officers of
the Trustee, unless it shall be proved that the Trustee was negligent
in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance
with the direction of the Holders of Securities pursuant to Section
6.09 relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee, under this Indenture.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties hereunder or in the exercise
of any of its rights or powers, if there is reasonable ground for believing
that the repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
SECTION 7.02. CERTAIN RIGHTS OF TRUSTEE. Except as otherwise
provided in Section 7.01:
(a) The Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order,
approval, bond, debenture, note or other paper or document believed by
it to be genuine and to have been signed or presented by the proper
party or parties,
(b) Any request, direction, order or demand of the
Company mentioned herein shall be sufficiently evidenced by an
Officer's Certificate (unless other evidence in respect thereof shall
be herein specifically prescribed); and any resolution of the Board of
Directors may be evidenced to the Trustee by a Certified Resolution,
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(c) The Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in accordance
with such written advice or Opinion of Counsel,
(d) 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 Securityholders, pursuant to
the provisions of this Indenture, unless such Securityholders shall
have offered to the Trustee reasonable security or indemnity against
the costs, expenses and liabilities which may be incurred therein or
thereby,
(e) 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 or rights or powers conferred upon it by this
Indenture,
(f) The Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond, debenture, note or other paper or
document, unless requested in writing so to do by the Holders of
Securities pursuant to Section 6.09; provided, however, that if the
payment within a reasonable time to the Trustee of the costs, expenses
or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably
assured to the Trustee by the security afforded to it by the terms of
this Indenture, the Trustee may require reasonable indemnity against
such costs, expenses or liabilities as a condition to such proceeding;
and provided further, that nothing in this subsection (f) shall
require the Trustee to give the Securityholders any notice other than
that required by Section 6.10. The reasonable expense of every such
examination shall be paid by the Company or, if paid by the Trustee,
shall be reimbursed by the Company upon demand,
(g) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder and
(h) The Trustee shall be under no responsibility for the
approval by it in good faith of any expert for any of the purposes
expressed in this Indenture.
SECTION 7.03. TRUSTEE NOT RESPONSIBLE FOR RECITALS OR APPLICATION OF
PROCEEDS. The recitals contained herein and in the Securities (other than the
certificate of authentication on the Securities) shall be taken as the
statements of the Company, and the Trustee assumes no responsibility for the
correctness of the same. The Trustee makes no representations as to the
validity or sufficiency of this Indenture or of the Securities. The Trustee
shall not be accountable for the use or application by the Company of any of
the Securities or of the proceeds thereof.
SECTION 7.04. TRUSTEE MAY OWN SECURITIES. The Trustee, any Paying
Agent, registrar or any agent of the Company or of the Trustee, in its
individual or any other capacity, may become the owner or pledgee of Securities
with the same rights it would have if it were not Trustee, Paying Agent,
registrar or such other agent.
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SECTION 7.05. MONEYS RECEIVED BY TRUSTEE TO BE HELD IN TRUST. Moneys
held by the Trustee in trust need not be segregated from other funds except to
the extent required by law. The Trustee shall be under no liability for
interest on any money received by it hereunder except as otherwise agreed with
the Company.
SECTION 7.06. TRUSTEE ENTITLED TO COMPENSATION, REIMBURSEMENT AND
INDEMNITY. The Company agrees to pay to the Trustee from time to time
reasonable compensation (which shall not be limited by any provision of law in
regard to the compensation of a trustee of any express trust), and the Company
will pay or reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in connection with
the acceptance or administration of its trust under this Indenture (including
the reasonable compensation and the expenses and disbursements of its counsel
and of all Persons not regularly in its employ) except any such expense,
disbursement or advance as may arise from its negligence or bad faith. The
Company also agrees to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or bad
faith on the part of the Trustee and arising out of or in connection with the
acceptance or administration of this trust, including the reasonable costs and
expenses of defending itself against any claim of liability in the premises.
The obligations of the Company under this Section to compensate the Trustee, to
pay or reimburse the Trustee for expenses, disbursements and advances and to
indemnify and hold harmless the Trustee shall constitute additional
indebtedness hereunder and shall survive the satisfaction and discharge of this
Indenture. Such additional indebtedness shall be secured by a lien prior to
that of the Securities upon all property and funds held or collected by the
Trustee as such, except funds held in trust for the payment of principal of or
interest or redemption premium on particular Securities.
SECTION 7.07. RIGHT OF TRUSTEE TO RELY ON OFFICER'S CERTIFICATE WHERE
NO OTHER EVIDENCE SPECIFICALLY PRESCRIBED. Except as otherwise provided in
Section 7.01, whenever in the administration of the provisions of this
Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking, suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the
part of the Trustee, be deemed to be conclusively proved and established by an
Officer's Certificate of the Company delivered to the Trustee, and such
Officer's Certificate, in the absence of negligence or bad faith on the part of
the Trustee, shall be full warrant to the Trustee for any action taken,
suffered or omitted by it under the provisions of this Indenture upon the faith
thereof.
SECTION 7.08. DISQUALIFICATION; CONFLICTING INTEREST. (a) If the
Trustee has or shall acquire any conflicting interest, as defined in this
Section 7.08, it shall, within 90 days after ascertaining that it has such
conflicting interest, and if the Event of Default to which such conflicting
interest relates has not been cured or duly waived or otherwise eliminated
before the end of such 90-day period, the Trustee shall either eliminate such
conflicting interest or, except as otherwise provided in this Section 7.08,
resign in the manner and with the effect specified in Section 7.10, such
resignation to become effective upon the appointment of a successor trustee and
such successor's acceptance of such appointment, and the Company shall take
prompt steps to appoint a successor in accordance with Section 7.10.
(b) In the event that the Trustee shall fail to comply with the
provisions of subsection (a) of this Section 7.08, the Trustee shall, within
ten days after the expiration of such 90-day period, transmit notice of such
failure to the Securityholders in the manner and to the extent provided in
subsection (c) of Section 5.04 with respect to reports pursuant to subsection
(a) of said Section 5.04.
(c) Subject to the provisions of Section 6.11 of this Indenture,
unless the Trustee's duty to resign is stayed as provided in subsection (f) of
this Section 7.08, any Holder who has been a bona fide Holder of Securities for
at least six months may, on such Holder's behalf and on behalf of all other
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Holders similarly situated, petition any court of competent jurisdiction for
the removal of such Trustee and the appointment of a successor, if such Trustee
fails after written request thereof by such Holder to comply with the
provisions of subsection (a) of this Section 7.08.
(d) For the purposes of this Section 7.08 the Trustee shall be
deemed to have a conflicting interest with respect to the Securities of any
Series if an Event of Default (exclusive of any period of grace or requirement
of notice) has occurred with respect to Securities of such Series and:
(1) the Trustee is trustee under another indenture under
which any other securities, or certificates of interest or
participation in any other securities, of the Company or any other
obligor on the Securities are outstanding or is trustee for more than
one outstanding series of securities, as hereinafter defined, under a
single indenture of the Company or any other obligor on the
Securities, unless such other indenture is a collateral trust
indenture under which the only collateral consists of Securities
issued under this Indenture, provided that there shall be excluded
from the operation of this paragraph, this Indenture with respect to
the Securities of any other Series Outstanding, and any other
indenture or indentures under which other securities, or certificates
of interest or participation in other securities, of the Company or
any other obligor on the Securities are outstanding, if (A) this
Indenture is and such other indenture or indentures (and all series of
securities issued thereunder) are wholly unsecured and rank equally,
and such other indenture or indentures (and such series) are hereafter
qualified under the Trust Indenture Act of 1939, unless the Commission
shall have found and declared by order pursuant to subsection (b) of
Section 305 or subsection (c) of Section 307 of the Trust Indenture
Act of 1939, that differences exist between the provisions of this
Indenture with respect to Securities of such Series and one or more
other Series, or the provisions of this Indenture and the provisions
of such other indenture or indentures (or such series), which are so
likely to involve a material conflict of interest as to make it
necessary in the public interest or for the protection of investors to
disqualify the Trustee from acting as such under this Indenture with
respect to Securities of such Series and such other Series, or under
this Indenture and such other indenture or indentures, or (B) the
Company shall have sustained the burden of proving, on application to
the Commission and after opportunity for hearing thereon, that the
trusteeship under this Indenture with respect to Securities of such
Series and such other Series, or under this Indenture and such other
indenture, is not so likely to involve a material conflict of interest
as to make it necessary in the public interest or for the protection
of investors to disqualify the Trustee from acting as such under this
Indenture with respect to Securities of such Series and such other
Series, or under this Indenture and one of such indentures,
(2) the Trustee or any of its directors or executive
officers is an underwriter for the Company or any other obligor on the
Securities,
(3) the Trustee directly or indirectly controls or is
directly or indirectly controlled by or is under direct or indirect
common control with an underwriter for the Company or any other
obligor on the Securities,
(4) the Trustee or any of its directors or executive
officers is a director, officer, partner, employee, appointee or
representative of the Company or any other obligor on the Securities,
or of an underwriter (other than the Trustee itself) for the Company
or any other obligor on the Securities who is currently engaged in the
business of underwriting, except that (A) one individual may be a
director and/or an executive
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officer of the Trustee and a director and/or an executive officer of
the Company or any other obligor on the Securities, but may not be at
the same time an executive officer of both the Trustee and the Company
or any other obligor on the Securities; (B) if and so long as the
number of directors of the Trustee in office is more than nine, one
additional individual may be a director and/or an executive officer of
the Trustee and a director of the Company or any other obligor on the
Securities; and (C) the Trustee may be designated by the Company or
any other obligor on the Securities or by an underwriter for the
Company or any other obligor on the Securities to act in the capacity
of transfer agent, registrar, custodian, paying agent, fiscal agent,
escrow agent or depositary, or in any other similar capacity, or,
subject to the provisions of paragraph (1) of this subsection (d), to
act as trustee whether under an indenture or otherwise,
(5) ten percent or more of the voting securities of the
Trustee is beneficially owned either by the Company or any other
obligor on the Securities or by any director, partner or executive
officer thereof, or 20% or more of such voting securities is
beneficially owned, collectively, by any two or more of such Persons;
or ten percent or more of the voting securities of the Trustee is
beneficially owned either by an underwriter for the Company or any
other obligor on the Securities or by any director, partner or
executive officer thereof or is beneficially owned, collectively, by
any two or more such Persons,
(6) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default, as
hereinafter defined, (A) five percent or more of the voting
securities, or ten percent or more of any other class of security, of
the Company or any other obligor on the Securities, not including the
Securities issued under this Indenture and securities issued under any
other indenture under which the Trustee is also trustee, or (B) ten
percent or more of any class of security of an underwriter for the
Company or any other obligor on the Securities,
(7) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default, as
hereinafter defined, five percent or more of the voting securities of
any Person who, to the knowledge of the Trustee, owns ten percent or
more of the voting securities of, or controls directly or indirectly
or is under direct or indirect common control with the Company or any
other obligor on the Securities,
(8) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default, as
hereinafter defined, ten percent or more of any class of security of
any Person who, to the knowledge of the Trustee, owns 50% or more of
the voting securities of the Company or any other obligor on the
Securities or
(9) the Trustee owns on the date of the occurrence of
such Event of Default (exclusive of any period of grace or requirement
of notice) or any anniversary thereof while such Event of Default
remains outstanding, in the capacity of executor, administrator,
testamentary or inter vivos trustee, guardian, committee or
conservator, or in any other similar capacity an aggregate of 25% or
more of the voting securities or of any class of security, of any
Person, the beneficial ownership of a specified percentage of which
would have constituted a conflicting interest under paragraph (6), (7)
or (8) of this subsection (d). As to any such securities of which the
Trustee acquired ownership through becoming executor, administrator or
testamentary trustee of an estate which included them, the provisions
of the preceding sentence shall not apply, for a period of
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two years from the date of such acquisition, to the extent that such
securities included in such estate do not exceed 25% of such voting
securities or 25% of any such class of security. Promptly after the
date of the occurrence of any such Event of Default and annually in
each succeeding year that the Securities or any Series thereof remain
in default, the Trustee shall make a check of its holdings of such
securities in any of the above-mentioned capacities as of such date.
If the Company or any other obligor on the Securities fails to make
payment in full of principal of or interest on any of the Securities
when and as the same become due and payable and such failure continues
for 30 days thereafter, the Trustee shall make a prompt check of its
holdings of such securities in any of the above-mentioned capacities
as of the date of the expiration of such 30-day period, and after such
date, notwithstanding the foregoing provisions of this paragraph (9),
all such securities so held by the Trustee, with sole or joint control
over such securities vested in it, shall, but only so long as such
failure shall continue, be considered as though beneficially owned by
the Trustee for the purposes of paragraphs (6), (7) and (8) of this
subsection (d), or
(10) except under the circumstances described in
paragraphs (1), (3), (4), (5) or (6) of Section 7.13(b), the Trustee
shall be or become a creditor of the Company or any other obligor on
the Securities.
The specifications of percentages in paragraphs (5) to (9), inclusive,
of this subsection (d) shall not be construed as indicating that the ownership
of such percentages of the securities of a Person is or is not necessary or
sufficient to constitute direct or indirect control for the purposes of
paragraph (3) or (7) of this subsection (d).
For the purposes of paragraphs (6), (7), (8) and (9) of this
subsection (d) only, (A) the terms "security" and "securities" shall include
only such securities as are generally known as corporate securities, but shall
not include any note or other evidence of indebtedness issued to evidence an
obligation to repay moneys lent to a Person by one or more banks, trust
companies or banking firms, or any certificate of interest or participation in
any such note or evidence of indebtedness; (B) an obligation shall be deemed to
be in default when a default in payment of principal shall have continued for
30 days or more and shall not have been cured; and (C) the Trustee shall not be
deemed to be the owner or Holder of (i) any security which it holds as
collateral security (as trustee or otherwise) for an obligation which is not in
default as defined in clause (B) above, or (ii) any security which it holds as
collateral security under this Indenture, irrespective of any default
hereunder, or (iii) any security which it holds as agent for collection, or as
custodian, escrow agent or depositary, or in any similar representative
capacity.
(e) For the purposes of this Section 7.08:
(1) The term "underwriter" when used with reference to
the Company or any other obligor on the Securities shall mean every
Person who, within one year prior to the time as of which the
determination is made, has purchased from the Company or any other
obligor on the Securities with a view to, or has offered or sold for
the Company or any other obligor on the Securities in connection with,
the distribution of any security of the Company or any other obligor
on the Securities outstanding at such time, or has participated or has
had a direct or indirect participation in any such undertaking, or has
participated or has had a participation in the direct or indirect
underwriting of any such undertaking, but such term shall not include
a Person whose interest was limited to a commission from an
underwriter or dealer not in excess of the usual and customary
distributors' or sellers' commission.
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(2) The term "director" shall mean any director of a
Company or any individual performing similar functions with respect to
any organization whether incorporated or unincorporated.
(3) The term "trust" shall include only a trust where the
interest or interests of the beneficiary or beneficiaries are
evidenced by a security.
(4) The term "voting security" shall mean any security
presently entitling the owner or Holder thereof to vote in the
direction or management of the affairs of a Person, or any security
issued under or pursuant to any trust, agreement or arrangement
whereby a trustee or trustees or agent or agents for the owner or
Holder of such security are presently entitled to vote in the
direction or management of the affairs of a Person.
(5) The term "executive officer" shall mean the
president, every vice-president, every trust officer, the cashier, the
secretary and the treasurer of a Company, and any individual
customarily performing similar functions with respect to any
organization whether incorporated or unincorporated, but shall not
include the chairman of the board of directors.
(6) Except for purposes of paragraphs (6), (7), (8) and
(9) of subsection (d) of this Section 7.08, the term "security" or
"securities" shall mean any note, stock, treasury stock, bond,
debenture, evidence of indebtedness, certificate of interest or
participation in any profit-sharing agreement, collateral-trust
certificate, pre-organization certificate or subscription,
transferable share, investment contract, voting-trust certificate,
certificate of deposit for a security, fractional undivided interest
in oil, gas or other mineral rights, or, in general, any interest or
instrument commonly known as a "security" or any certificate of
interest or participation in, temporary or interim certificate for,
receipt for, guarantee of, or warrant or right to subscribe to or
purchase, any of the foregoing.
(7) For the purpose of subsection (d)(1) of this Section
7.08, the term "series of securities" or "series" means a series,
class or group of securities issuable under an indenture pursuant to
whose terms Holders of one such series may vote to direct the
indenture trustee, or otherwise take action pursuant to a vote of such
holders, separately from holders of another such series; provided,
that "series of securities" or "series" shall not include any series
of securities issuable under an indenture if all such series rank
equally and are wholly unsecured.
The percentages of voting securities and other securities specified in
this Section shall be calculated in accordance with the following provisions:
(A) A specified percentage of the voting securities of
the Trustee, the Company or any other Person referred to in this
Section 7.08 (each of whom is referred to as a "Person" in this
paragraph) means such amount of the outstanding voting securities of
such Person as entitles the Holder or Holders thereof to cast such
specified percentage of the aggregate votes which the Holders of all
the outstanding voting securities of such Person are entitled to cast
in the direction or management of the affairs of such Person.
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(B) A specified percentage of a class of securities of a
Person means such percentage of the aggregate amount of securities of
the class outstanding.
(C) The term "amount", when used in regard to securities,
means the principal amount if relating to evidences of indebtedness,
the number of shares if relating to capital shares, and the number of
units if relating to any other kind of security.
(D) The term "outstanding" means issued and not held by
or for the account of the issuer. The following securities shall not
be deemed outstanding within the meaning of this definition:
(i) Securities of an issuer held in a sinking
fund relating to securities of the issuer of the same class;
(ii) Securities of an issuer held in a sinking
fund relating to another class of securities of the issuer, if
the obligation evidenced by such other class of securities is
not in default as to principal or interest or otherwise;
(iii) Securities pledged by the issuer thereof as
security for an obligation of the issuer not in default as to
principal or interest or otherwise; and
(iv) Securities held in escrow if placed in
escrow by the issuer thereof;
provided, however, that any voting securities of an issuer shall be
deemed outstanding if any Person other than the issuer is entitled to
exercise the voting rights thereof.
(E) A security shall be deemed to be of the same class as
another security if both securities confer upon the Holder or Holders
thereof substantially the same rights and privileges, provided,
however, that, in the case of secured evidences of indebtedness, all
of which are issued under a single indenture, differences in the
interest rates or maturity dates of various series thereof shall not
be deemed sufficient to constitute such series different classes, and
provided further that, in the case of unsecured evidences of
indebtedness, differences in the interest rate or maturity dates
thereof shall not be deemed sufficient to constitute them securities
of different classes, whether or not they are issued under a single
indenture.
(f) Except in the case of a default in the payment of the
principal of or interest on any Securities, or in the payment of any sinking or
purchase fund installment, the Trustee shall not be required to resign as
provided by this Section 7.08 if the Trustee shall have sustained the burden of
proving, on application to the Commission and after opportunity for hearing
thereon, that (i) the default under this Indenture may be cured or waived
during a reasonable period and under the procedures described in such
application, and (ii) a stay of the Trustee's duty to resign will not be
inconsistent with the interests of Holders of such Series of Securities. The
filing of such an application shall automatically stay the performance of the
duty to resign until the Commission orders otherwise. Any resignation of the
Trustee shall become effective only upon the appointment of a successor trustee
and such successor's acceptance of such appointment.
SECTION 7.09. REQUIREMENTS FOR ELIGIBILITY OF TRUSTEE. There shall
always be at least one Trustee hereunder. The Trustee hereunder shall at all
times be a Company organized and doing business as a commercial bank under the
laws of the United States of America or any state thereof or of the
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District of Columbia or a Company or other Person permitted to act as a trustee
by the Commission and, in each case, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least
$100,000,000, and subject to supervision or examination by Federal, State or
District of Columbia authority. If such Company publishes reports of condition
at least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Company shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. No obligor on the Securities or Person directly or indirectly
controlling, controlled by or under common control with such obligor shall
serve as Trustee. In case at any time the Trustee shall cease to be eligible
in accordance with the provisions of this Section 7.09, the Trustee shall
resign immediately in the manner and with the effect specified in this Article
Seven.
SECTION 7.10. RESIGNATION AND REMOVAL OF TRUSTEE; APPOINTMENT OF
SUCCESSOR. (a) The Trustee, or any trustee or trustees hereafter appointed,
may at any time resign with respect to one or more or all Series of Securities
by giving written notice of such resignation to the Company and by giving to
the Holders of Securities notice thereof in the manner and to the extent
provided in subsection (c) of Section 5.04 with respect to reports pursuant to
subsection (a) of Section 5.04. Upon receiving such notice of resignation and
if the Company shall deem it appropriate, evidence satisfactory to it of such
mailing to the Holders, the Company shall promptly appoint a successor trustee
with respect to all Series of Securities or, if appropriate, the applicable
Series by written instrument executed by an authorized officer of the Company,
one copy of which instrument shall be delivered to the resigning Trustee and
one copy to the successor trustee. If no successor trustee shall have been so
appointed and have accepted appointment within 30 days after the mailing of
such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor trustee, or any
Holder who has been a bona fide Holder of a Security or Securities for at least
six months may, subject to the provisions of Section 6.11, on such Holder's
behalf and on behalf of all others similarly situated, petition any such court
for the appointment of a successor trustee. Such court may thereupon after
such notice, if any, as it may deem proper and prescribe, appoint a successor
trustee.
(b) In case at any time any of the following shall occur:
(1) the Trustee shall fail to comply with the provisions
of subsection (a) of Section 7.08 after written request therefor by
the Company or by any Securityholder who has been a bona fide Holder
of a Security or Securities of the applicable Series for at least six
months, or
(2) the Trustee shall cease to be eligible in accordance
with the provisions of Section 7.09 and shall fail to resign after
written request therefor by the Company or by any such Securityholder,
or
(3) the Trustee shall become incapable of acting, or
shall be adjudged a bankrupt or insolvent, or a receiver of the
Trustee or of its property shall be appointed, or any public officer
shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation, or
(4) the Company shall determine that the Trustee has
failed to perform its obligations under this Indenture in any material
respect,
then, in any such case, the Company may remove the Trustee and appoint a
successor trustee by written instrument executed by an authorized officer of
the Company, one copy of which instrument shall be
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delivered to the Trustee so removed and one copy to the successor trustee, or,
subject to the provisions of Section 6.11, any Securityholder who has been a
bona fide Holder of a Security or Securities of the affected Series for at
least six months may, on such Person's behalf and on behalf of all others
similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor trustee with respect
to such Series. Such court may thereupon, after such notice, if any, as it may
deem proper and prescribe, remove the Trustee and appoint a successor trustee.
(c) The Holders of a majority in principal amount of the
Securities Outstanding (determined as provided in Section 8.04) may at any time
remove the Trustee and appoint a successor trustee by written instrument or
instruments signed by such Holders or their attorneys-in-fact duly authorized,
or by the affidavits of the permanent chairman and secretary of a meeting of
the Securityholders evidencing the vote upon a resolution or resolutions
submitted thereto with respect to such removal and appointment (as provided in
Article Nine), and by delivery thereof to the Trustee so removed, to the
successor trustee and to the Company.
(d) Any resignation or removal of the Trustee and any appointment
of a successor trustee pursuant to any of the provisions of this Section 7.10
shall become effective upon acceptance of appointment by the successor trustee
as provided in Section 7.11.
SECTION 7.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR TRUSTEE. Any
successor trustee appointed as provided in Section 7.10 shall execute,
acknowledge and deliver to the Company and to its predecessor trustee an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the predecessor trustee shall become effective and such successor
trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, duties and obligations with respect to such Series of
its predecessor hereunder, with like effect as if originally named as trustee
herein; but, nevertheless, on the written request of the Company or of the
successor trustee, the trustee ceasing to act shall, upon payment of any
amounts then due it pursuant to the provisions of Section 7.06, execute and
deliver an instrument transferring to such successor trustee all the rights and
powers with respect to the trustee so ceasing to act. Upon written request of
any such successor trustee, the Company shall execute any and all instruments
in writing for more fully and certainly vesting in and confirming to such
successor trustee all such rights and powers. Any trustee ceasing to act
shall, nevertheless, retain a lien upon all property or funds held or collected
by such trustee to secure any amounts then due it pursuant to the provisions of
Section 7.06.
No successor trustee shall accept appointment as provided in this
Section 7.11 unless at the time of such acceptance such successor trustee shall
be qualified under the provisions of Section 7.08 and eligible under the
provisions of Section 7.09.
Upon acceptance of appointment by a successor trustee as provided in
this Section 7.11, the successor trustee shall at the expense of the Company
transmit notice of the succession of such trustee hereunder to the Holders of
Securities in the manner and to the extent provided in subsection (c) of
Section 5.04 with respect to reports pursuant to subsection (a) of said Section
5.04.
SECTION 7.12. SUCCESSOR TO TRUSTEE BY MERGER, CONSOLIDATION OR
SUCCESSION TO BUSINESS. Any Company into which the Trustee may be merged or
converted or with which it may be consolidated, or any Company resulting from
any merger, conversion or consolidation to which the Trustee shall be a party,
or any Company succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such Company shall be qualified under the provisions of Section 7.08
and eligible under the provisions of Section 7.09, without the execution or
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filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities shall have been
authenticated but not delivered, any such successor to the Trustee may adopt
the certificate of authentication of any predecessor Trustee, and deliver such
Securities so authenticated; and in case at that time any of the Securities
shall not have been authenticated, any successor to the Trustee may
authenticate such Securities either in the name of any predecessor hereunder or
in the name of the successor Trustee; and in all such cases such certificates
shall have the full force which it is anywhere in the Securities or in this
Indenture provided that the certificate of the Trustee shall have; provided,
however, that the right to adopt the certificate of authentication of any
predecessor Trustee or to authenticate Securities in the name of any
predecessor Trustee shall apply only to its successor or successors by merger,
conversion or consolidation.
SECTION 7.13. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY. (a)
Subject to the provisions of subsection (b) of this Section 7.13, if the
Trustee shall be or shall become a creditor, directly or indirectly, secured or
unsecured, of the Company or any other obligor on the Securities within three
months prior to a default, as defined in subsection (c) of this Section 7.13,
or subsequent to such a default, then, unless and until such default shall be
cured, the Trustee shall set apart and hold in a special account for the
benefit of the Trustee individually, the Holders of the Securities for which it
is acting as Trustee, and the holders of other indenture securities (as defined
in subsection (c) of this Section 7.13):
(1) an amount equal to any and all reductions in the
amount due and owing upon any claim as such creditor in respect of
principal or interest, effected after the beginning of such three
months' period, and valid as against the Company or such other obligor
on the Securities and its other creditors, except any such reduction
resulting from the receipt or disposition of any property described in
paragraph (2) of this subsection, or from the exercise of any right of
set-off which the Trustee could have exercised if a petition in
bankruptcy had been filed by or against the Company or such other
obligor on the Securities upon the date of such default; and
(2) all property received by the Trustee in respect of
any claims as such creditor, either as security therefor, or in
satisfaction or composition thereof, or otherwise, after the beginning
of such three months' period, or an amount equal to the proceeds of
any such property if disposed of, subject, however, to the rights, if
any, of the Company or such other obligor on the Securities and their
respective other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee:
(A) to retain for its own account (i) payments made on
account of any such claim by any Person (other than the Company or
such other obligor on the Securities) who is liable thereon, and (ii)
the proceeds of the bona fide sale of any such claim by the Trustee to
a third Person, and (iii) distributions made in cash, securities or
other property in respect of claims filed against the Company or such
other obligor on the Securities in bankruptcy or receivership or in
proceedings for reorganization pursuant to Title 11 of the United
States Code or applicable State laws;
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(B) to realize, for its own account, upon any property
held by it as security for any such claim, if such property was so
held prior to the beginning of such three months' period;
(C) to realize, for its own account, but only to the
extent of the claim hereinafter mentioned, upon any property held by
it as security for any such claim, if such claim was created after the
beginning of such three months' period and such property was received
as security therefor simultaneously with the creation thereof, and if
the Trustee shall sustain the burden of proving that at the time such
property was so received, the Trustee had no reasonable cause to
believe that a default, as defined in subsection (c) of this Section
7.13, would occur within three months; or
(D) to receive payment on any claim referred to in
paragraph (B) or (C), against the release of any property held as
security for such claim as provided in such paragraph (B) or (C), as
the case may be, to the extent of the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property substituted
after the beginning of such three months' period for property held as security
at the time of such substitution shall, to the extent of the fair value of the
property released, have the same status as the property released, and to the
extent that any claim referred to in any of such paragraphs is created in
renewal of or in substitution for or for the purpose of repaying or refunding
any preexisting claim of the Trustee as such creditor, such claim shall have
the same status as such preexisting claim.
If the Trustee shall be required to account, the funds and property
held in such special account and the proceeds thereof shall be apportioned
among the Trustee, the Holders of Securities for which it is acting as Trustee,
and the holders of other indenture securities in such manner that the Trustee,
such Securityholders and the holders of other indenture securities realize, as
a result of payments from such special account and payments of dividends on
claims filed against the Company or such other obligor on the Securities in
bankruptcy or receivership or in proceedings for reorganization pursuant to
Title 11 of the United States Code or applicable State law, the same percentage
of their respective claims, figured before crediting to the claim of the
Trustee anything on account of the receipt by it from the Company or such other
obligor on the Securities of the funds and property in such special account and
before crediting to the respective claims of the Trustee, such Securityholders,
and the holders of other indenture securities dividends on claims filed against
the Company or such other obligor on the Securities in bankruptcy or
receivership or in proceedings for reorganization pursuant to Title 11 of the
United States Code or applicable State law, but after crediting thereon
receipts on account of the indebtedness represented by their respective claims
from all sources other than from such dividends and from the funds and property
so held in such special account. As used in this paragraph, with respect to
any claim, the term "dividends" shall include any distribution with respect to
such claim in bankruptcy or receivership or in proceedings for reorganization
pursuant to Title 11 of the United States Code or applicable State law, whether
such distribution is made in cash, securities or other property, but shall not
include any such distribution with respect to the secured portion, if any, of
such claim. The court in which such bankruptcy, receivership or proceeding for
reorganization is pending shall have jurisdiction (i) to apportion among the
Trustee, such Securityholders, and the holders of other indenture securities,
in accordance with the provisions of this paragraph, the funds and property
held in such special account and the proceeds thereof, or (ii) in lieu of such
apportionment in whole or in part, to give to the provisions of this paragraph
due consideration in determining the fairness of the distributions to be made
to the Trustee, such Securityholders and the holders of other indenture
securities with respect to their respective claims, in which event it shall not
be necessary to liquidate or to appraise the value of any securities or other
property held in such special account or as security for any such claim, or to
make a specific
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allocation of such distributions as between the secured and unsecured portions
of such claim, or otherwise to apply the provisions of this paragraph as a
mathematical formula.
Any Trustee who has resigned or been removed after the beginning of
such three months' period shall be subject to the provisions of this subsection
(a) as though such resignation or removal had not occurred. If any Trustee has
resigned or been removed prior to the beginning of such three months' period,
it shall be subject to the provisions of this subsection (a) if and only if the
following conditions exist:
(i) the receipt of property or reduction of claim which
would have given rise to the obligation to account, if such Trustee
had continued, as trustee, occurred after the beginning of such three
months' period; and
(ii) such receipt of property or reduction of claim
occurred within three months after such resignation or removal.
In every case commenced under the Bankruptcy Act of 1898, or any
amendment thereto enacted prior to November 6, 1978, all references to periods
of three months shall be deemed to be references to periods of four months.
(b) There shall be excluded from the operation of subsection (a)
of this Section 7.13 a creditor relationship arising from:
(1) the ownership or acquisition of securities issued
under any indenture, or any security or securities having a maturity
of one year or more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy
court of competent jurisdiction, or by this Indenture, for the purpose
of preserving any property which shall at any time be subject to the
lien of this Indenture or of discharging tax liens or other prior
liens or encumbrances thereon, if notice of such advance and of the
circumstances surrounding the making thereof is given to the
Securityholders at the time and in the manner provided in Section
5.04(c) with respect to reports pursuant to subsections (a) and (b)
thereof, respectively;
(3) disbursements made in the ordinary course of business
in the capacity of trustee under an indenture, transfer agent,
registrar, custodian, paying agent, fiscal agent or depositary, or
other similar capacity;
(4) an indebtedness created as a result of services
rendered or premises rented, or an indebtedness created as a result of
goods or securities sold in a cash transaction as defined in
subsection (c) of this Section 7.13;
(5) the ownership of stock or of other securities of a
Company organized under the provisions of Section 25(a) of the Federal
Reserve Act, as amended, which is directly or indirectly a creditor of
the Company or any other obligor on the Securities; and
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(6) the acquisition, ownership, acceptance or negotiation
of any drafts, bills of exchange, acceptances or obligations which
fall within the classification of self-liquidating paper as defined in
subsection (c) of this Section 7.13.
(c) As used in this Section 7.13 the following terms shall be
accorded the following definitions:
(1) the term "default" shall mean any failure to make
payment in full of the principal of or interest on any of the
Securities or on the other indenture securities when and as such
principal or interest becomes due and payable.
(2) the term "other indenture securities" shall mean
securities upon which the Company or any other obligor on the
Securities is an "obligor" (as defined in the Trust Indenture Act of
1939) outstanding under any other indenture (A) under which the
Trustee is also trustee, (B) which contains provisions substantially
similar to the provisions of subsection (a) of this Section 7.13, and
(C) under which a default exists at the time of the apportionment of
the funds and property held in said special account.
(3) the term "cash transaction" shall mean any
transaction in which full payment for goods or securities sold is made
within seven days after delivery of the goods or securities in
currency or in checks or other orders drawn upon banks or bankers and
payable upon demand.
(4) the term "self-liquidating paper" shall mean any
draft, bill of exchange, acceptance or obligation which is made,
drawn, negotiated or incurred by the Company or any other obligor on
the Securities for the purpose of financing the purchase, processing,
manufacture, shipment, storage or sale of goods, wares or merchandise
and which is secured by documents evidencing title to, possession of,
or a lien upon, the goods, wares or merchandise or the receivables or
proceeds arising from the sale of the goods, wares or merchandise
previously constituting the security, provided the security is
received by the Trustee simultaneously with the creation of the
creditor relationship with the Company or any other obligor on the
Securities arising from the making, drawing, negotiating or incurring
of the draft, bill of exchange, acceptance or obligation.
ARTICLE EIGHT
CONCERNING THE SECURITYHOLDERS
SECTION 8.01. EVIDENCE OF ACTION BY SECURITYHOLDERS. Whenever in
this Indenture it is provided that the Holders of a specified percentage in
principal amount of the Securities of any or all Series may take any action
(including the making of any demand or request, the giving of any notice,
consent or waiver or the taking of any other action), the fact that at the time
of taking any such action the Holders of such specified percentage have joined
therein may be evidenced (a) by any instrument or any number of instruments of
similar tenor executed by such Securityholders in Person or by agent or proxy
appointed in writing, or (b) by the record of such Holders of Securities voting
in favor thereof at any meeting of such Securityholders duly called and held in
accordance with the provisions of Article Nine, or (c) by a combination of such
instrument or instruments and any such record of such a meeting of such
Securityholders.
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SECTION 8.02. PROOF OF EXECUTION OF INSTRUMENTS AND OF HOLDING OF
SECURITIES. Subject to the provisions of Sections 7.01, 7.02 and 9.05, proof
of the execution of any instrument by a Securityholder or such Holder's agent
or proxy and proof of the holding by any Person of any of the Securities shall
be sufficient if made in the following manner:
(a) The fact and date of the execution by any such Person
of any instrument may be proved in any reasonable manner acceptable to
the Trustee.
(b) The ownership of Securities of any Series (including
Global Securities) shall be proved by the Register of such Securities
of such Series, or by certificates of the Security registrar or
registrars thereof.
The Trustee shall not be bound to recognize any Person as a
Securityholder unless and until such Person's title to the Securities held by
it is proved in the manner in this Article Eight provided.
The record of any Securityholders' meeting shall be proved in the
manner in Section 9.06.
The Trustee may accept such other proof or require such additional
proof of any matter referred to in this Section 8.02 as it shall deem
reasonable.
SECTION 8.03. WHO MAY BE DEEMED OWNERS OF SECURITIES. Prior to due
presentment for transfer of any Security, the Company, the Trustee and any
agent of the Company or the Trustee may deem and treat the Person in whose name
such Security shall be registered upon the Register of Securities of the Series
of which such Security is a part as the absolute owner of such Security
(whether or not such Security shall be overdue and notwithstanding any notation
of ownership or other writing thereon) for the purpose of receiving payment of
or on account of the principal of and interest, subject to Section 2.03, on
such Security and for all other purposes; and neither the Company nor the
Trustee nor any agent of the Company or the Trustee shall be affected by any
notice to the contrary. All such payments so made to any such Holder for the
time being, or upon such Holder's order, shall be valid, and, to the extent of
the sum or sums so paid, effectual to satisfy and discharge the liability of
moneys payable upon any such Security.
If the Securities of any Series are issued in the form of one or more
Global Securities, the Depository therefor may grant proxies to Persons having
a beneficial ownership in such Global Security or Securities for purposes of
voting or otherwise responding to any request for consent, waiver or other
action which the Holder of such Security is entitled to grant or take under
this Indenture and the Trustee shall accept such proxies for the purposes
granted; provided that neither the Trustee nor the Company shall have any
obligation with respect to the grant of or solicitation by the Depository of
such proxies.
SECTION 8.04. SECURITIES OWNED BY THE COMPANY OR CONTROLLED OR
CONTROLLING PERSONS DISREGARDED FOR CERTAIN PURPOSES. In determining whether
the Holders of the requisite principal amount of Securities have concurred in
any demand, direction, request, notice, vote, consent, waiver or other action
under this Indenture, Securities which are owned by the Company or any other
obligor on the Securities or by any Person directly or indirectly controlling
or controlled by or under direct or indirect common control with the Company or
any other obligor on the Securities shall be disregarded and deemed not to be
Outstanding for the purpose of any such determination, provided that for the
purposes of determining whether the Trustee shall be protected in relying on
any such demand, direction, request, notice, vote, consent, waiver or other
action, only Securities which a Responsible Officer of the Trustee assigned to
its principal office knows are so owned shall be so disregarded. Securities so
owned which have been pledged in good faith may be regarded as Outstanding for
the purposes of this Section
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8.04, if the pledgee shall establish to the satisfaction of the Trustee the
pledgee's right to vote such Securities and that the pledgee is not a Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Company or any such other obligor.
Upon request of the Trustee, the Company shall furnish to the Trustee
promptly an Officer's Certificate listing and identifying all Securities, if
any, known by the Company to be owned or held by or for the account of the
Company or any other obligor on the Securities or by any Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company or any other obligor on the Securities; and, subject
to the provisions of Section 7.01, the Trustee shall be entitled to accept such
Officer's Certificate as conclusive evidence of the facts therein set forth and
of the fact that all Securities not listed therein are Outstanding for the
purpose of any such determination.
SECTION 8.05. INSTRUMENTS EXECUTED BY SECURITYHOLDERS BIND FUTURE
HOLDERS. At any time prior to (but not after) the evidencing to the Trustee,
as provided in Section 8.01, of the taking of any action by the Holders of the
percentage in principal amount of the Securities specified in this Indenture in
connection with such action, any Holder of a Security which is shown by the
evidence to be included in the Securities the Holders of which have consented
to such action may, by filing written notice with the Trustee at its principal
office and upon proof of holding as provided in Section 8.02, revoke such
action so far as concerns such Security. Except as aforesaid any such action
taken by the Holder of any Security and any direction, demand, request, notice,
waiver, consent, vote or other action of the Holder of any Security which by
any provisions of this Indenture is required or permitted to be given shall be
conclusive and binding upon such Holder and upon all future Holders and owners
of such Security, and of any Security issued in lieu thereof, irrespective of
whether any notation in regard thereto is made upon such Security. Any action
taken by the Holders of the percentage in principal amount of the Securities of
any or all Series specified in this Indenture in connection with such action
shall be conclusively binding upon the Company, the Trustee and the Holders of
all of the Securities of such Series subject, however, to the provisions of
Section 7.01.
ARTICLE NINE
SECURITYHOLDERS' MEETINGS
SECTION 9.01. PURPOSES FOR WHICH MEETINGS MAY BE CALLED. A meeting
of Holders of Securities of any or all Series may be called at any time and
from time to time pursuant to the provisions of this Article for any of the
following purposes:
(1) to give any notice to the Company or to the Trustee,
or to give any directions to the Trustee, or to consent to the waiving
of any default hereunder and its consequences, or to take any other
action authorized to be taken by Holders of Securities of any or all
Series, as the case may be, pursuant to any of the provisions of
Article Six;
(2) to remove the Trustee and appoint a successor trustee
pursuant to the provisions of Article Seven;
(3) to consent to the execution of an indenture or
indentures supplemental hereto pursuant to the provisions of Section
10.02; or
(4) to take any other action authorized to be taken by or
on behalf of the Holders of any specified principal amount of the
Securities of any or all Series, as the case may be, under any other
provision of this Indenture or under applicable law.
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SECTION 9.02. MANNER OF CALLING MEETINGS. The Trustee may at any
time call a meeting of Securityholders to take any action specified in Section
9.01, to be held at such time and at such place in The City of New York, New
York, as the Trustee shall determine. Notice of every meeting of
Securityholders, setting forth the time and place of such meeting and in
general terms the action proposed to be taken at such meeting, shall be mailed
not less than 20 nor more than 60 days prior to the date fixed for the meeting.
SECTION 9.03. CALL OF MEETING BY THE COMPANY OR SECURITYHOLDERS. In
case at any time the Company pursuant to a resolution of its Board of
Directors, or the Holders of not less than ten percent in principal amount of
the Securities of any or all Series, as the case may be, then Outstanding,
shall have requested the Trustee to call a meeting of Holders of Securities of
any or all Series, as the case may be, to take any action authorized in Section
9.01 by written request setting forth in reasonable detail the action proposed
to be taken at the meeting, and the Trustee shall not have mailed notice of
such meeting within 20 days after receipt of such request, then the Company or
such Holders of Securities in the amount above specified may determine the time
and place in either the City and County of San Francisco, California or The
City of New York, New York for such meeting and may call such meeting to take
any action authorized in Section 9.01, by mailing (and publishing, if required)
notice thereof as provided in Section 9.02.
SECTION 9.04. WHO MAY ATTEND AND VOTE AT MEETINGS. To be entitled to
vote at any meeting of Securityholders a Person shall (a) be a Holder of one or
more Securities with respect to which the meeting is being held; or (b) be a
Person appointed by an instrument in writing as proxy by such Holder of one or
more Securities. The only Persons who shall be entitled to be present or to
speak at any meeting of Securityholders shall be the Persons entitled to vote
at such meeting and their counsel and any representatives of the Trustee and
its counsel and any representatives of the Company and its counsel.
SECTION 9.05. REGULATIONS MAY BE MADE BY TRUSTEE; CONDUCT OF THE
MEETING; VOTING RIGHTS - ADJOURNMENT. Notwithstanding any other provisions of
this Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Securityholders, in regard to proof of the holding
of Securities and of the appointment of proxies, and in regard to the
appointment and duties of inspectors of votes, the submission and examination
of proxies, certificates and other evidence of the right to vote, and such
other matters concerning the conduct of the meeting as it shall think fit.
Except as otherwise permitted or required by any such regulations, the holding
of Securities shall be proved in the manner specified in Section 8.02. and the
appointment of any proxy shall be proved in the manner specified in said
Section 8.02; provided, however, that such regulations may provide that written
instruments appointing proxies regular on their face, may be presumed valid and
genuine without the proof hereinabove or in said Section 8.02 specified.
The Trustee shall by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Securityholders as provided in Section 9.03, in which case the
Company or the Securityholders calling the meeting, as the case may be, shall
in like manner appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by majority vote of the
meeting.
Subject to the provisions of Section 8.04, at any meeting each
Securityholder or proxy shall be entitled to one vote for each $1,000 principal
amount (in the case of Original Issue Discount Securities, such principal
amount shall be equal to such portion of the principal amount as may be
specified in the terms of such Series) of Securities held or represented by
such Holder; provided, however, that no vote shall be cast or counted at any
meeting in respect of any Security challenged as not Outstanding and ruled
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by the chairman of the meeting to be not Outstanding. The chairman of the
meeting shall have no right to vote other than by virtue of Securities held by
such Person or instruments in writing as aforesaid duly designating such Person
as the Person to vote on behalf of other Securityholders. Any meeting of
Securityholders duly called pursuant to the provisions of Section 9.02 or 9.03
may be adjourned from time to time, and the meeting may be held so adjourned
without further notice.
At any meeting of Securityholders, the presence of Persons holding or
representing Securities in principal amount sufficient to take action on the
business for the transaction of which such meeting was called shall constitute
a quorum, but, if less than a quorum is present, the Persons holding or
representing a majority in principal amount of the Securities represented at
the meeting may adjourn such meeting with the same effect for all intents and
purposes, as though a quorum had been present.
SECTION 9.06. MANNER OF VOTING AT MEETINGS AND RECORD TO BE KEPT.
The vote upon any resolution submitted to any meeting of Securityholders shall
be by written ballots on which shall be subscribed the signatures of the
Holders of Securities or of their representatives by proxy and the principal
amount or principal amounts of the Securities held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record in duplicate
of the proceedings of each meeting of Securityholders shall be prepared by the
secretary of the meeting and there shall be attached to said record the
original reports of the inspectors of votes on any vote by ballot taken thereat
and affidavits by one or more Persons having knowledge of the facts setting
forth a copy of the notice of the meeting and showing that said notice was
mailed as provided in Section 9.02. The record shall show the principal amount
or principal amounts of the Securities voting in favor of or against any
resolution. The record shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one copy thereof shall be
delivered to the Company and the other to the Trustee to be preserved by the
Trustee.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
SECTION 9.07. EXERCISE OF RIGHTS OF TRUSTEE AND SECURITYHOLDERS NOT
TO BE HINDERED OR DELAYED. Nothing in this Article Nine contained shall be
deemed or construed to authorize or permit, by reason of any call of a meeting
of Securityholders or any rights expressly or impliedly conferred hereunder to
make such call, any hindrances or delay in the exercise of any right or rights
conferred upon or reserved to the Trustee or to the Securityholders under any
of the provisions of this Indenture or of the Securities.
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ARTICLE TEN
SUPPLEMENTAL INDENTURES
SECTION 10.01. PURPOSES FOR WHICH SUPPLEMENTAL INDENTURES MAY BE
ENTERED INTO WITHOUT CONSENT OF SECURITYHOLDERS. Without the consent of the
Holders of any Securities, the Company and the Trustee may from time to time
and at any time enter into an indenture or indentures supplemental hereto
(which shall comply with the provisions of the Trust Indenture Act of 1939 as
then in effect) for one or more of the following purposes:
(a) if deemed appropriate by the Company or required by
law, to evidence the succession of another Company to the Company or
successive successions and the assumption by the successor Company of
the covenants, agreements and obligations of the Company pursuant to
Article Four hereof,
(b) to add to the covenants of the Company such further
covenants, restrictions or conditions as its Board of Directors and
the Trustee shall consider to be for the protection of the Holders of
all or any Series of Securities (and if such covenants, restrictions
or conditions are to be for the benefit of less than all Series of
Securities, stating that such covenants, restrictions or conditions
are expressly being included solely for the benefit of such Series),
and to make the occurrence, or the occurrence and continuance, of a
default in any such additional covenants, restrictions or conditions
an Event of Default permitting the enforcement of all or any of the
several remedies provided in this Indenture as herein set forth;
provided, however, that in respect to any such additional covenant,
restriction or condition such Supplemental Indenture may provide for a
particular period of grace after default (which period may be shorter
or longer than that allowed in the case of other defaults) or may
provide for an immediate enforcement upon such default or may limit
the remedies available to the Trustee upon such default,
(c) to add or change any of the provisions of this
Indenture to such extent as shall be necessary to facilitate the
issuance of Securities in (i) global form or (ii) bearer form,
registerable or not registerable as to principal or principal and
interest, and with or without coupons,
(d) to change or eliminate any of the provisions of this
Indenture; provided, however, that any such change or elimination
shall become effective only when there is no Security of any Series
Outstanding created prior to the execution of such Supplemental
Indenture which is entitled to the benefit of such provision,
(e) to establish the form or terms of Securities of any
Series as permitted by Sections 2.01 and 2.02,
(f) to appoint, at the request of the Trustee, a
successor Trustee for a particular Series of Securities to act as such
pursuant to the provisions of this Indenture and to add to or change
the provisions of this Indenture to such extent as shall be necessary
to facilitate the performance of the duties of such trustee and
(g) to cure any ambiguity or to correct or supplement any
provisions contained herein or in any Supplemental Indenture which may
be defective or inconsistent with any other provision contained herein
or in any Supplemental Indenture,
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or to make such other provisions in regard to matters or questions
arising under this Indenture or any Supplemental Indenture which shall
not adversely affect the interests of the Holders of the Securities.
SECTION 10.02. MODIFICATION OF INDENTURE WITH CONSENT OF HOLDERS OF
SECURITIES. With the consent (evidenced as provided in Section 8.01) of the
Holders of not less than a majority in principal amount of the Securities of
all Series at the time Outstanding (determined as provided in Section 8.04)
affected by such Supplemental Indenture (voting as one class), the Company and
the Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto (which shall comply with the provisions of the
Trust Indenture Act of 1939 as then in effect) for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of any Supplemental Indenture or of modifying in any manner
the rights of the Holders of the Securities of each such Series; provided,
however, that no such Supplemental Indenture shall, without the consent of the
Holders of each Outstanding Security affect thereby:
(a) Change the fixed maturity or Redemption Date of any
Security or reduce the rate of interest thereon or the method of
determining such rate of interest or extend the time of payment of
interest or reduce the principal amount (including the amount of
principal of an Original Issue Discount Security that would be due
upon declaration of acceleration of the maturity thereof pursuant to
Section 6.01 hereof) thereof or reduce any premium payable upon the
redemption thereof, or change the coin or currency in which any
Security or the interest thereon is payable or impair the right to
institute suit for the enforcement of any such payment on or after the
maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or
(b) Reduce the percentage in principal amount of the
Outstanding Securities the consent of the Holders of which is required
for any such Supplemental Indenture, or the consent of the Holders of
which is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture or
(c) Change the time of payment or reduce the amount of
any minimum sinking account or fund payment or
(d) Modify any of the provisions of this Section 10.02,
except to increase any such percentage or to provide that certain
other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Security affected thereby.
A Supplemental Indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular Series of Securities, or which modifies
the rights of Holders of Securities of such Series with respect to such
covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other Series.
It shall not be necessary for the consent of the Securityholders under
this Section 10.02 to approve the particular form of any proposed Supplemental
Indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Company and the Trustee of any
Supplemental Indenture pursuant to the provisions of this Section 10.02, the
Company shall mail a notice to the Holders of
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Registered Securities of each Series so affected, setting forth in general
terms the substance of such Supplemental Indenture. Any failure of the Company
to mail or publish such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such Supplemental Indenture.
SECTION 10.03. EFFECT OF SUPPLEMENTAL INDENTURES. Upon the execution
of any Supplemental Indenture pursuant to the provisions of this Article Ten,
this Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Company and the Holders
of Securities shall thereafter be determined, exercised and enforced hereunder
subject in all respects to such modifications and amendments, and all the terms
and conditions of any such Supplemental Indenture shall be and be deemed to be
part of the terms and conditions of this Indenture for any and all purposes.
The Trustee shall be entitled to receive, and subject to the
provisions of Section 7.01 shall be entitled to rely upon, an Opinion of
Counsel as conclusive evidence that any such Supplemental Indenture complies
with the provisions of this Article Ten and that the Securities affected by the
Supplemental Indenture, when such Securities are authenticated and delivered by
the Trustee and executed and issued by the Company in the manner and subject to
any conditions specified in such Opinion of Counsel, will be valid and binding
obligations of the Company, except as any rights thereunder may be limited by
bankruptcy, insolvency and other similar laws affecting the enforcement of
creditors' rights generally and by general equity principles.
SECTION 10.04. SECURITIES MAY BEAR NOTATION OF CHANGES BY
SUPPLEMENTAL INDENTURES. Securities authenticated and delivered after the
execution of any Supplemental Indenture pursuant to the provisions of this
Article Ten, or after any action taken at a Securityholders' meeting pursuant
to Article Nine, may bear a notation in form approved by the Trustee as to any
matter provided for in such Supplemental Indenture or as to any action taken at
any such meeting. If the Company or the Trustee shall so determine, new
Securities so modified as to conform, in the opinion of the Trustee and the
Company, to any modification of this Indenture contained in any such
Supplemental Indenture may be prepared by the Company, authenticated by the
Trustee and delivered in exchange for the Securities then Outstanding.
ARTICLE ELEVEN
DISCHARGE; DEFEASANCE
SECTION 11.01. DISCHARGE OF INDENTURE. If the Company shall pay and
discharge or cause to be paid or discharged the entire indebtedness on all
Outstanding Securities by paying or causing to be paid the principal of
(including redemption premium, if any) and interest on the Outstanding
Securities, as and when the same become due and payable or by delivering to the
Trustee, for cancellation by it, all Outstanding Securities, and if the
Company shall also pay or cause to be paid all other sums payable hereunder by
it, thereupon, upon written request of the Company and upon receipt by the
Trustee of such certificates, if any, as the Trustee shall reasonably require,
to the effect that all conditions precedent to the satisfaction and discharge
of the Company's obligations under this Indenture have been complied with, this
Indenture shall be discharged and terminated and the Trustee shall forthwith
execute proper instruments acknowledging satisfaction of and discharging and
terminating this Indenture with respect to the Company's obligations hereunder
and any such other interests.
The Company may at any time surrender to the Trustee for cancellation
by it any Securities previously authenticated and delivered, belonging which
the Company may have acquired in any manner
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whatsoever, and such Securities, upon such surrender and cancellation, shall be
deemed to be paid and retired.
SECTION 11.02. DISCHARGE OF LIABILITY ON SECURITIES Upon the deposit
with the Trustee, in trust, at or before maturity, of money or securities of
the kind and in the necessary amount (as provided in Section 11.04 of this
Indenture) to pay or redeem Outstanding Securities (whether upon or prior to
their maturity or the Redemption Date of such Securities, provided that, if
such Securities are to be redeemed prior to the maturity thereof, notice of
such redemption shall have been given as in Article Three hereof provided or
provision satisfactory to the Trustee shall have been made for the giving of
such notice), the obligation of the Company duly and punctually to pay or cause
to be paid the principal of and any interest and premium in respect of such
Securities and all liability of the Company in respect of such payment shall
cease, terminate and be completely discharged and the Holders thereof shall
thereafter be entitled only to payment out of the money or securities deposited
with the Trustee as aforesaid for their payment; provided, however, that this
discharge of the Company's obligation so to pay and of the liability of the
Company in respect of such payment shall not occur unless the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that Holders
of the Securities of such Series will not recognize income, gain or loss for
Federal income tax purposes as a result of such discharge.
SECTION 11.03. DISCHARGE OF CERTAIN COVENANTS AND OTHER OBLIGATIONS.
Upon the deposit with the Trustee, in trust, prior to maturity of money or
securities of the kind and in the necessary amount (as provided in Section
11.04 of this Indenture) to pay or redeem Outstanding Securities of one or more
Series (whether upon or prior to their maturity or the Redemption Date of such
Securities, provided that, if such Securities are to be redeemed prior to the
maturity thereof, notice of such redemption shall have been given as in Article
Three hereof provided or provision satisfactory to the Trustee shall have been
made for the giving of such notice), all of the obligations, covenants and
agreements of the Company with respect to such Securities, other than the
covenants set forth under Sections 4.01, 4.02, 4.03, 4.04 and 4.05 hereof,
shall cease, terminate and be completely discharged.
SECTION 11.04. DISCHARGE OF CERTAIN OBLIGATIONS UPON DEPOSIT OF MONEY
OR SECURITIES WITH TRUSTEE. The conditions for deposit of money or securities
contained in Sections 11.02 and 11.03 shall have been satisfied whenever with
respect to any Securities denominated in United States Dollars, the Company
shall have deposited or caused to be deposited irrevocably in trust with the
Trustee dedicated solely to the benefit of the Holders of such Securities:
(a) Lawful money of the United States of America in an
amount equal to the principal amount of such Securities and all unpaid
interest thereon to maturity, except that, in the case of Securities
which are to be redeemed prior to maturity, the amount so to be
deposited or held shall be the principal amount of such Securities and
interest thereon to the Redemption Date, together with the redemption
premium, if any; or
(b) Direct obligations of the United States of America or
obligations the principal of and interest on which are guaranteed by
the United States of America (which obligations are not subject to
redemption prior to maturity at the option of the issuer), in such
amounts and maturing at such times that the proceeds of said
obligations to be received upon their respective maturities and
interest payment dates will provide funds sufficient to pay the
principal, premium, if any, and interest to maturity, or to the
Redemption Date, as the case may be, with respect to all of the
Securities to be paid or redeemed, as such principal, premium and
interest become due, provided that the Trustee shall have been
irrevocably instructed to apply the proceeds of said obligations to
the payment of said principal, premium, if any, and interest with
respect to said Securities.
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The conditions for deposit of money or securities contained in Sections 11.02
and 11.03 shall have been satisfied whenever with respect to any Securities
denominated in one or more currencies or composite currency other than United
States Dollars, the Company shall have deposited or caused to be deposited
irrevocably in trust with the Trustee dedicated solely to the benefit of the
Holders of such Securities:
(i) Lawful money in such currency, currencies or
composite currency in which such Securities are payable and in an
amount equal to the principal amount of such Securities and all unpaid
interest thereon to maturity, except than, in the case of Securities
which are to be redeemed prior to maturity, the amount so to be
deposited or held shall be the principal amount of such Securities and
interest thereon to the Redemption Date, together with the redemption
premium, if any; or
(ii) Either (1) direct obligations of the government that
issued or caused to be issued the currency in which such Securities
are payable, for which obligations the full faith and credit of the
government is pledged (which obligations are not subject to redemption
prior to maturity at the option of the issuer) or (2) obligations of a
Person controlled or supervised by and acting as an agency or
instrumentality of such government the timely payment of which is
unconditionally guaranteed as a full faith and credit obligation by
such government (which obligations are not subject to redemption prior
to maturity at the option of the issuer), in either case, in such
amounts and maturing at such times that the proceeds of said
obligations to be received upon their respective maturities and
interest payment dates will provide funds sufficient to pay the
principal, premium, if any, and interest to maturity, or to the
Redemption Date, as the case may be, with respect to all of the
Securities to be paid or redeemed, as such principal, premium and
interest become due, provided that the Trustee shall have been
irrevocably instructed to apply the proceeds of said obligations to
the payment of said principal, premium, if any, and interest with
respect to said Securities.
SECTION 11.05. UNCLAIMED MONEYS. Any moneys deposited with or paid
to the Trustee or any Paying Agent for the payment of the principal of and any
premium and interest on any Security and not so applied but remaining unclaimed
under applicable law shall be transferred by the Trustee to the appropriate
Persons in accordance with applicable laws, and the Holder of such Security
shall thereafter look only to such Persons for any payment which such Holder
may be entitled to collect and all liability of the Trustee and such Paying
Agent with respect to such moneys shall thereupon cease.
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ARTICLE TWELVE
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS
AND DIRECTORS
SECTION 12.01. INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS OF
COMPANY EXEMPT FROM INDIVIDUAL LIABILITY. No recourse under or upon any
obligation, covenant or agreement of this Indenture, or of any Security, or for
any claim based thereon or otherwise in respect thereof, shall be had against
any incorporator, stockholder, officer or director, as such past, present or
future, of the Company, either directly or through the Company, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of
any assessment or penalty or otherwise; it being expressly understood that this
Indenture and the obligations issued hereunder are solely corporate
obligations, and that no personal liability whatever shall attach to, or is or
shall be incurred by, the incorporators, stockholders, officers or directors,
as such, of the Company because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Securities or implied therefrom;
and that any and all such personal liability of every name and nature, either
at common law or in equity or by constitution or statute, of, and any and all
such rights and claims against, every such incorporator, stockholder, officer
or director, as such, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Securities or implied therefrom
are hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issue of such
Securities.
ARTICLE THIRTEEN
MISCELLANEOUS PROVISIONS
SECTION 13.01. SUCCESSORS AND ASSIGNS OF THE COMPANY BOUND BY
INDENTURE. All the covenants, stipulations, promises and agreements in this
Indenture contained by or in behalf of the Company shall bind its successors
and assigns, whether so expressed or not.
SECTION 13.02. NOTICES; EFFECTIVENESS. Any notice or demand which by
any provision of this Indenture is required or permitted to be given or served
by the Trustee or by the Holders of Securities to or on the Company, or by the
Company or by the Holders of Securities to the Trustee or upon the Depository
by the Company or the Trustee may be electronically communicated or hand
delivered or sent by overnight courier, addressed to the relevant party as
provided in this Section 13.02.
All communications intended for the Company shall be sent to:
Airtouch Communications, Inc.
One California Street
San Francisco, CA 94111
Attention: Senior Vice President, Legal
Fax Number: (415) 658-2551
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All communications intended for the Trustee shall be sent to:
Attention:
Fax Number:
or at any other address of which any of the foregoing shall have notified the
others in any manner prescribed in this Section 13.02.
For all purposes of this Indenture, a notice or communication will be
deemed effective:
(a) if delivered by hand or sent by overnight courier, on
the day it is delivered unless (i) that day is not a Business Day in
the city specified (a "Local Business Day") in the address for notice
provided by the recipient or (ii) if delivered after the close of
business on a Local Business Day, then on the next succeeding Local
Business Day or
(b) if sent by facsimile transmission, on the date
transmitted, provided that oral or written confirmation of receipt is
obtained by the sender unless the date of transmission and
confirmation is not a Local Business Day, in which case, on the next
succeeding Local Business Day.
Any notice, direction, requires, demand, consent or waiver by the Company, any
Securityholder to or upon the Trustee shall be deemed to have been sufficiently
given, made or filed, for all purposes, if given, made or filed in writing at
the Principal Office of the Trustee in accordance with the provisions of this
Section 13.02.
Any notice, request, consent or waiver by the Company or the Trustee upon the
Depository shall have been sufficiently given, made or filed, for all purposes,
if give or made in accordance with the provisions of this Section 13.02 at the
address shown for such Depository in the Register or at such other address as
the Depository shall have provided for purposes of notice.
SECTION 13.03. COMPLIANCE CERTIFICATES AND OPINIONS. Upon on any
request or application by the Company to the Trustee to take any action under
any of the provisions of this Indenture, the Company shall furnish to the
Trustee an Officer's Certificate stating that all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent have been complied with, except that in
the case of any such application or demand as to which the furnishing of such
document is specifically required by any provision of this Indenture relating
to such particular application or demand, no additional certificate or opinion
need be furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or
covenant provided for in this Indenture (other than a certificate provided
pursuant to Section 5.03(d) shall include (1) a statement that the Person
making such certificate or 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 or she has
made such
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examination or investigation as is necessary to enable such Person to express
an informed opinion as to whether or not such covenant or condition has been
complied with; and (4) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the Company may
be based, insofar as it relates to legal matters, upon a certificate or opinion
of or representations by counsel, unless such officer knows that the
certificate or opinion or representations with respect to the matters upon
which such certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous. Any certificate, statement or Opinion of Counsel may be based,
insofar as it relates to factual matters, upon the certificate, statement or
opinion of or representations by an officer or officers of the Company stating
that the information with respect to such factual matters is in the possession
of the Company, unless such counsel knows that the certificate, statement or
opinion or representations with respect to the matters upon which such Person's
certificate, statement or opinion may be based as aforesaid are erroneous, or
in the exercise of reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of an officer of the Company or
of counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants, unless such officer or counsel, as the case may be, knows that the
certificate or opinion or representations with respect to the accounting
matters upon which his or her certificate, statement or opinion may be based as
aforesaid are erroneous, or in the exercise of reasonable care should know that
the same are erroneous. Any certificate or opinion of any firm of independent
public accountants filed with the Trustee shall contain a statement that such
firm is independent.
SECTION 13.04. DAYS ON WHICH PAYMENT TO BE MADE, NOTICE GIVEN OR
OTHER ACTION TAKEN. If any date on which a payment is to be made, notice given
or other action taken hereunder is a Saturday, Sunday or legal holiday in the
state in which the payment, notice or other action is to be made, given or
taken, then such payment, notice or other action shall be made, given or taken
on the next succeeding Business Day in such state, and in the case of any
payment, no interest shall accrue for the delay.
SECTION 13.05. PROVISIONS REQUIRED BY TRUST INDENTURE ACT OF 1939 TO
CONTROL. If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with another provision included in this Indenture which
is required to be included in this Indenture by any of Sections 310 to 317,
inclusive, of the Trust Indenture Act of 1939 such required provision shall
control.
SECTION 13.06. GOVERNING LAW. THIS INDENTURE AND EACH SECURITY SHALL
BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK, AND
FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF SAID STATE.
SECTION 13.07. PROVISIONS OF THE INDENTURE AND SECURITIES FOR THE
SOLE BENEFIT OF THE PARTIES AND THE SECURITYHOLDERS. Nothing in this Indenture
or in the Securities, expressed or implied, shall give or be construed to give
any Person, firm or Company, other than the parties hereto and the Holders of
the Securities, any legal or equitable right, remedy or claim under or in
respect of this Indenture, or under any covenant, condition and provision
herein contained; all its covenants, conditions and provisions being for the
sole benefit of the parties hereto and of the Holders of the Securities.
SECTION 13.08. INDENTURE MAY BE EXECUTED IN COUNTERPARTS. This
Indenture may be executed in any number of counterparts, each of which shall be
an original; but such counterparts shall together constitute but one and the
same instrument.
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________________________ hereby accepts the trusts in this Indenture
declared and provided, upon the terms and conditions hereinabove set forth.
IN WITNESS WHEREOF, AIRTOUCH COMMUNICATIONS, INC. has caused this
Indenture to be signed by its Chairman of the Board or any Vice- Chairmen of
the Board or one of its Vice-Presidents and ________________________ has caused
this Indenture to be signed and acknowledged by one of its Vice-Presidents and
to be signed and acknowledged by one of its Assistant Secretaries, all as of
the day and year first written above.
AIRTOUCH COMMUNICATIONS, INC.
By
________________________, as Trustee
By
Vice-President
By
Assistant Secretary
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