EXHIBIT 4.6
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BOISE CASCADE CORPORATION
TO
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SUBORDINATED DEBT SECURITIES
INDENTURE
DATED AS OF
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BOISE CASCADE CORPORATION
Reconciliation and tie between Trust Indenture Act of 1939 and
Indenture, dated____________
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
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Section 310(a)(1)............................................ 609
(a)(2)............................................ 609
(a)(3)............................................ Not Applicable
(a)(4)............................................ Not Applicable
(b)............................................... 608
610
Section 311(a)............................................... 613(a)
(b)............................................... 613(b)
(b)(2)............................................ 703(a)(2)
703(b)
Section 312(a)............................................... 701
702(a)
(b)............................................... 702(b)
(c)............................................... 702(c)
Section 313(a)............................................... 703(a)
(b)............................................... 703(b)
(c)............................................... 703(a), 703(b)
(d)............................................... 704
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Note: This reconciliation and the _________ shall not, for any purpose, be
deemed to be a part of the Indenture.
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
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Section 314(a)................................................ 704
(b)................................................ Not Applicable
(c)(1)............................................. 102
(c)(2)............................................. 102
(c)(3)............................................. Not Applicable
(d)................................................ Not Applicable
(e)................................................ 102
Section 315(a)................................................ 601(a)
(b)................................................ 602
703(a)(6)
(c)................................................ 601(b)
(d)................................................ 601(c)
(d)(1)............................................. 601(a)(1)
(d)(2)............................................. 601(c)(2)
(d)(3)............................................. 601(c)(3)
(e)................................................ 514
Section 316(a)................................................ 101
(a)(1)(A).......................................... 502
512
(a)(1)(B).......................................... 513
(a)(2)............................................. Not Applicable
(b)................................................ 508
Section 317(a)(1)............................................. 503
(a)(2)............................................. 504
(b)................................................ 1003
Section 318(a)................................................ 107
TABLE OF CONTENTS
PAGE
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INDENTURE 1
RECITALS OF THE COMPANY 1
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION 1
SECTION 101. DEFINITIONS 1
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS 10
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE 11
SECTION 104. ACTS OF HOLDERS 12
SECTION 105. NOTICES. ETC., TO TRUSTEE AND COMPANY 13
SECTION 106. NOTICE TO HOLDERS; WAIVER 13
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT 14
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS 14
SECTION 109. SUCCESSORS AND ASSIGNS 14
SECTION 110. SEPARABILITY CLAUSE 14
SECTION 111. BENEFITS OF INDENTURE 14
SECTION 112. GOVERNING LAW 14
SECTION 113. LEGAL HOLIDAYS 14
ARTICLE TWO SECURITY FORMS 15
SECTION 201. FORMS GENERALLY 15
SECTION 202. FORM OF FACE OF SECURITY 15
SECTION 203. FORM OF REVERSE OF SECURITY 18
SECTION 204. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION 22
ARTICLE THREE THE SECURITIES 22
SECTION 302. DENOMINATIONS 25
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING 25
SECTION 304. TEMPORARY SECURITIES 26
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE 27
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES 29
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED 30
SECTION 308. PERSONS DEEMED OWNERS 31
SECTION 309. CANCELLATION 31
SECTION 310. COMPUTATION OF INTEREST 32
ARTICLE FOUR SATISFACTION AND DISCHARGE 32
SECTION 401. SATISFACTION, DISCHARGE AND DEFEASANCE OF SECURITIES OF ANY SERIES 32
SECTION 402. DEFEASANCE OF SECURITIES OF ANY SERIES 33
SECTION 403. APPLICATION OF TRUST FUNDS; INDEMNIFICATION 34
ARTICLE FIVE REMEDIES 35
SECTION 501. EVENTS OF DEFAULT 35
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SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT 37
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE 39
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM 39
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES 40
SECTION 506. APPLICATION OF MONEY COLLECTED 41
SECTION 507. LIMITATION ON SUITS 41
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND INTEREST 42
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES 42
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE 42
SECTION 511. DELAY OR OMISSION NOT WAIVER 42
SECTION 512. ONTROL BY HOLDERS 43
SECTION513. WAIVER OF PAST DEFAULTS 43
SECTION 514. UNDERTAKING FOR COSTS 44
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS 44
ARTICLE SIX THE TRUSTEE 44
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES 44
SECTION 602. NOTICE OF DEFAULTS 46
SECTION 603. CERTAIN RIGHTS OF TRUSTEE 46
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES 47
SECTION 605. MAY HOLD SECURITIES 47
SECTION 606. MONEY HELD IN TRUST 48
SECTION 607. COMPENSATION AND REIMBURSEMENT 48
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY 54
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR 54
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR 56
SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS 56
SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY 57
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT 61
ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY 63
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS 63
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS 63
SECTION 703. REPORTS BY TRUSTEE 65
SECTION 704. REPORTS BY COMPANY 66
ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER 67
SECTION 801. COMPANY MAY CONSOLIDATE, ETC. 67
SECTION 802. SUCCESSOR CORPORATION SUBSTITUTED 68
ARTICLE NINE SUPPLEMENTAL INDENTURES 68
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS 68
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS 69
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES 70
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SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES 70
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT 70
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES 71
ARTICLE TEN COVENANTS 71
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST 71
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY 71
SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST 72
SECTION 1004. STATEMENT AS TO COMPLIANCE 73
SECTION 1005. CORPORATE EXISTENCE 73
SECTION 1006. WAIVER OF CERTAIN COVENANTS 73
ARTICLE ELEVEN REDEMPTION OF SECURITIES 74
SECTION 1101. APPLICABILITY OF ARTICLE 74
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE 74
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED 74
SECTION 1104. NOTICE OF REDEMPTION 75
SECTION 1105. DEPOSIT OF REDEMPTION PRICE 76
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE 76
SECTION 1107. SECURITIES REDEEMED IN PART 76
ARTICLE TWELVE SINKING FUNDS 77
SECTION 1201. APPLICABILITY OF ARTICLE 77
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES 77
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND 77
ARTICLE THIRTEEN SUBORDINATION OF SECURITIES 78
SECTION 1301. SECURITIES SUBORDINATE TO SENIOR INDEBTEDNESS. 78
SECTION 1302. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC 78
SECTION 1303. PAYMENT BLOCKAGE UPON ACCELERATION OF SENIOR INDEBTEDNESS, ETC. 79
SECTION 1304. NO PAYMENT WHEN SENIOR INDEBTEDNESS IN DEFAULT. 80
SECTION 1305. PAYMENT PERMITTED IF NO DEFAULT 81
SECTION 1306. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS 81
SECTION 1307. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS. 82
SECTION 1308. TRUSTEE TO EFFECTUATE SUBORDINATION. 82
SECTION 1309. NO WAIVER OF SUBORDINATION PROVISIONS. 82
SECTION 1310. NOTICE TO TRUSTEE. 82
SECTION 1311. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING AGENT. 83
SECTION 1312. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR INDEBTEDNESS. 83
SECTION 1313. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS; PRESERVATION OF
TRUSTEE'S RIGHTS. 83
SECTION 1314. ARTICLE APPLICABLE TO PAYING AGENTS. 83
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INDENTURE
INDENTURE, dated as of [_______ __], [1999], between BOISE CASCADE
CORPORATION, a corporation duly organized and existing under the laws of the
state of Delaware (herein called the "Company"), having its principal office at
One Jefferson Square, Boise, Idaho 83728, and _____________________, a
________trust company (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of series
thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall mean
such accounting principles as are generally accepted at the date of such
computation; and
(4) the words "herein," "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in that
Article.
"Act" when used with respect to any Holder, has the meaning specified in
Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly.
whether through the ownership of voting securities, by contract or otherwise and
the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
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"Authenticating Agent" means any Person authorized by the Trustee to act
on behalf of the Trustee to authenticate Securities.
"Board of Directors" means either the board of directors of the Company,
the Executive Committee of such board, or any other committee authorized by such
board to act hereunder.
"Board Resolution" means a copy of one or more resolutions certified by
the Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day," when used with respect to any Place of Payment, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law
to close.
"Capital Stock," as applied to the stock of any corporation, means the
capital stock of every class whether now or hereafter authorized, regardless of
whether such capital stock shall be limited to a fixed sum or percentage with
respect to the rights of the holders thereof to participate in dividends and in
the distribution of assets upon the voluntary or involuntary liquidation,
dissolution or winding up of such corporation.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, or, if
at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first paragraph
of this instrument until a successor corporation shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter "Company" shall
mean such successor corporation.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its President or
a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or
an Assistant Secretary, and delivered to the Trustee.
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"Corporate Trust Office" means the principal office of the Trustee in
the Borough of Manhattan. The City of New York, New York, at which at any
particular time its corporate trust business shall be administered. As of the
date of this Indenture, the office of the Trustee at which its corporate trust
business is conducted is located at [__________________________________].
"Debt", with respect to any Person, means (i) all indebtedness of such
Person for borrowed money, whether or not the recourse of the lender is to the
whole of the assets of the borrower or only to a portion thereof, and including
all indebtedness evidenced by notes, bonds, debentures or other securities sold
for money, (ii) all indebtedness of such Person incurred or assumed in the
acquisition of any business, real property or other assets, except goods and
materials acquired in the ordinary course of the conduct of the acquirer's usual
business, (iii) all capital lease obligations of such Person, (iv) hedging
obligations of such Person, (v) guarantees by such Person of indebtedness of a
type described in the preceding four clauses (i) through (iv) of any other
person, and (vi) renewals, extensions, refundings, deferrals, restructurings,
amendments and modifications of any such indebtedness (including, without
limitation, exchange offers), obligation or guarantee of such Person.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, 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 clearing agency registered under the Securities Exchange Act of
1934, as amended, specified for that purpose, as contemplated by Section 301,
with respect to the Securities of such Series.
"Event of Default" has the meaning specified in Section 501.
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"Global Security" means a Security bearing the legend required by
Section 205 evidencing all or part of a series of Securities, issued to the
Depositary for such series or its nominee and registered in the name of such
Depositary or nominee.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities established as
contemplated by Section 301.
"Interest" when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date," when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Maturity," when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary of the Company, and delivered
to the Trustee.
"Opinion of Counsel" means a written opinion of counsel who may be an
employee of the Company or other counsel who shall be satisfactory to the
Trustee.
"Original Issue Discount Security" means any Security which by its terms
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof.
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"Outstanding," when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Securities or portions thereof for whose payment or
redemption money in the necessary amount has been theretofore deposited
with the Trustee or any Paying Agent (other than the Company) in trust
or set aside and segregated in trust by the Company (if the Company
shall act as its own Paying Agent) for the Holders of such Securities,
provided that, if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made, and provided
further, that Securities for whose payment or redemption money or U.S.
Government Obligations have been deposited with the Trustee pursuant to
Section 401 or 402 of this Indenture shall be deemed Outstanding for all
purposes of this Indenture until their Stated Maturity or Redemption
Date, as the case may be, or until otherwise determined not to be
Outstanding pursuant to clauses(i) and (iii) hereof; and
(iii) Securities which have been paid pursuant to Section 306 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid obligations
of the Company; provided, however, that in determining whether the
Holders of the requisite principal amount of the Outstanding Securities
have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, Securities owned by the Company or any
other obligor upon the Securities or any Affiliate of the Company or of
such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which the Trustee
knows to be so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Trustee the pledgee's
right so to act with respect to such Securities and that the pledgee is
not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor. 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
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Discount Security that shall be deemed to be Outstanding for such
purposes shall be the amount of the principal thereof that would be due
and payable as of the date of such determination upon a declaration of
acceleration of the Maturity thereof on such date pursuant to Section
502.
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or whether a
quorum is present at a meeting of Holders of Securities (i) the principal amount
of an Original Issue Discount Security that shall be deemed to be Outstanding
shall be the amount of the principal thereof that would be due and payable as of
the date of such determination upon acceleration of the Maturity thereof
pursuant to Section 502, (ii) the principal amount of a Security in denominated
in a foreign currency or currencies, including composite currencies, shall be
the U.S. dollar equivalent, determined on the date of original issuance of such
Security the manner provided as contemplated by Section 301, of the principal
amount (or, in the case of an Original Issue Account Security, the U.S. dollar
equivalent on the date of original issuance of such Security of the amount
determined as provided in (i) above) of such Security, and (iii) Securities
owned by the Company or any other obligor upon the Securities or any Affiliate
of the Company or of such other obligor shall be disregarded and deemed not to
be Outstanding except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, or upon any such determination as to the presence of
a quorum, only Securities which the Trustee knows to be so owned shall be so
disregarded. Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
"Payment Blockage Period" has the meaning stated in Section 1303.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment," when used with respect to the Securities of any
series, means the place or places where the principal of (and premium, if any)
and interest on the Securities of that series are payable.
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"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Proceeding" has the meaning stated in Section 1302.
"Redemption Date," when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price," when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
"Responsible Officer," when used with respect to the Trustee, means any
officer of the Trustee assigned by the Trustee to administer its corporate trust
business;
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"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Indebtedness" means any Debt incurred, assumed or guaranteed
by the Company, whether presently outstanding or incurred, assumed or
guaranteed in the future, including (i) the principal of, and premium, if
any, on such Debt, (ii) interest on such Debt, including interest accruing
after the filing of a petition initiating any Proceeding pursuant to any
bankruptcy law, but only to the extent allowed or permitted to the Holder of
such Debt against the bankruptcy or any other insolvency estate of the
Company in such Proceeding, (iii) any accrued original issue discount on such
Debt, (iv) other amounts due on or in connection with such Debt, and (v) all
renewals, extensions and refundings of any such Debt; PROVIDED, HOWEVER, that
the following shall not constitute Senior Indebtedness: Debt issued under the
junior indenture (i) any other Debt which expressly provides (x) that such
Debt shall not be senior in right of payment to the Securities or (y) that
such Debt shall be subordinated to any other Debt of the Company, unless such
Debt expressly provides that such Debt shall be senior in right of payment to
the Securities, (ii) any Debt of the Company in respect of the Securities,
(iii) any Debt or liability for compensation to employees, for goods or
materials purchased in the ordinary course of business or for services, (iv)
any Debt of the Company to any Subsidiary for money borrowed or advance from
such Subsidiary, and (v) any liability for federal, state, local or other
taxes owed or owing by the Company.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding voting
stock of which is owned, directly or indirectly, by the Company or by one or
more other Subsidiaries, or by the Company and one or more other Subsidiaries.
For the purposes of this definition, "voting stock" means stock which ordinarily
has voting power for the election of directors, whether at all times or only so
long as no senior class of stock has such voting power by reason of any
contingency.
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"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed, except as provided in
Section 905.
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this instrument until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall
mean such successor Trustee.
"U.S. Government Obligations" means securities which are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged, or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case are not
callable or redeemable at the option of the issuer thereof. U.S. Government
Obligations shall also include a depository receipt issued by a bank or trust
company as custodian with respect to any such U.S. Government Obligation or a
specific payment of interest on or principal of any such U.S. Government
Obligation held by such custodian for the account of the holder of a depository
receipt; PROVIDED, HOWEVER, that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the holder of
such depository receipt from any amount received by the custodian in respect of
the U.S. Government Obligation or the specific payment of interest on or
principal of the U.S. Government Obligation evidenced by such depository
receipt.
"Vice President," when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president."
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this indenture, the Company shall furnish to
the Trustee an
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Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(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 each such individual, he
has made such examination or investigation as is necessary to enable him
to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons may certify or give an opinion as to other matters,
and any such Person may certify or give an opinion as to such matters in one or
several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel
-11-
may be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representation by, an officer or officers of the Company stating
that the information with respect to such factual matters is in the possession
of the Company, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. ACTS OF HOLDERS.
(a) In determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request,
demand, authorization, direction, notice, consent or waiver under the
Indenture, the principal amount of an Original Issue Discount Security
that may be counted in making such determination and that shall be
deemed to be Outstanding for such purposes shall be equal to the amount
of the principal thereof that could be declared to be due and payable
upon acceleration under Section 502 pursuant to the terms of such
Original Issue Discount Security at the time the taking of such action
by the Holders of such requisite principal amount is evidenced to the
Trustee.
(b) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this indenture to be given
or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in
person or by an agent duly appointed in writing; and, except as herein
otherwise expressly provided, such action shall become effective when
such instrument or instruments are delivered to the Trustee and, where
it is hereby expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are
herein sometimes referred to as the "Act" of the Holders signing such
instrument or instruments. Proof of execution of any such instrument or
of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Section 601) conclusive in
favor of the Trustee and the Company, if made in the manner provided in
this Section.
(c) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of
such execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by a
-12-
signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be
proved in any other manner which the Trustee deems sufficient.
(d) The ownership of Securities shall be proved by the Security
Register or by a certificate of the Security Registrar.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind
every future Holder of the same Security and the Holder of every
Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or
suffered to be done by the Trustee or the Company in reliance thereon,
whether or not notation of such action is made upon such Security.
SECTION 105. NOTICES. ETC., TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Administration, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its principal
office specified in the first paragraph of this instrument or at any
other address previously furnished in writing to the Trustee by the
Company.
SECTION 106. NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register. not later
than the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice. In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Holder shall affect the sufficiency of such notice with
respect to
-13-
other Holders. Any notice mailed in the manner prescribed by this Indenture
shall be deemed to have been given whether or not received by any particular
Holder. Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee. but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
If for any reason it shall be impossible to make publication of any
notice in a newspaper of general circulation in the Borough of Manhattan, The
City of New York, New York, when such publication is required to be given
pursuant to any provision of this Indenture, then such manner of publication or
notification as shall be made with the approval of the Trustee shall constitute
a sufficient publication of such notice.
In case by reason of the suspension of regular mail service or by reason
of any other cause it shall be impracticable to give such notice by mail, then
such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this indenture by any of
the provisions of the Trust Indenture Act, such required provision shall
control.
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
SECTION 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111. BENEFITS OF INDENTURE.
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Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
SECTION 112. GOVERNING LAW.
This Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York.
SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the
Securities) payment of interest or principal (and premium, if any) need not be
made at such Place of Payment on such date. but may be made on the next
succeeding Business Day at such Place of Payment with the same force and effect
as if made on the Interest Payment Date or Redemption Date, or at the Stated
Maturity, provided that no interest shall accrue for the period from and after
such Interest Payment Date, Redemption Date or Stated Maturity, as the case may
be.
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The Securities of each series shall be in substantially the form set
forth in this Article, or in such other form as shall be established by or
pursuant to a Board Resolution or in one or more indentures supplemental hereto,
in each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution of the
Securities.
The Trustee's certificates of authentication shall be in substantially
the form set forth in this Article.
-15-
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
SECTION 202. FORM OF FACE OF SECURITY.
[IF THE SECURITY IS AN ORIGINAL ISSUE DISCOUNT SECURITY, INSERT --FOR
PURPOSES OF SECTION [1273] OF THE UNITED STATES INTERNAL REVENUE CODE OF 1954,
AS AMENDED, THE ISSUE PRICE OF THIS SECURITY IS % OF ITS PRINCIPAL AMOUNT AND
THE ISSUE DATE IS , 19 -- OR CORRESPONDING LEGEND APPROPRIATE AT THE TIME
OF ISSUANCE.]
-16-
BOISE CASCADE CORPORATION
...........% ............... DUE ..........................
(Hereinafter "Securities")
No............... $......................
BOISE CASCADE CORPORATION, a corporation duly organized and existing
under the laws of Delaware (herein called the "Company," which term includes any
successor corporation under the Indenture hereinafter referred to), for value
received, hereby promises to pay to , or registered assigns, the
principal sum of Dollars on [IF THE SECURITY IS TO BEAR
INTEREST PRIOR TO MATURITY, INSERT--, and to pay interest thereon from
or from the most recent Interest Payment Date to which interest has been paid or
duly provided for, semiannually on and in each year,
commencing , at the rate of % per annum, until the principal hereof
is paid or made available for payment [IF APPLICABLE, INSERT--, at the rate of
% per annum on any overdue principal and premium and (to the extent that
the payment of such interest shall be permitted by applicable law) on any
overdue interest]. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in such Indenture,
be paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest, which shall be the or (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for will forthwith cease to be
payable to the Holder on such Regular Record Date and may either be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities of this series not less than 10 days prior to
such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in said Indenture.]
[IF THE SECURITY IS NOT TO BEAR INTEREST PRIOR TO MATURITY, INSERT--The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal of this Security shall bear
interest at the rate of % per annum (to the extent that the payment of such
interest shall be permitted by applicable law), which shall accrue from
-17-
the date of such default in payment to the date payment of such principal has
been made or duly provided for. Interest on any overdue principal shall be
payable on demand. Any such interest on any overdue principal that is not so
paid on demand shall bear interest at the rate of % per annum (to the extent
that the payment of such interest shall be permitted by applicable law), which
shall accrue from the date of such demand for payment to the date payment of
such interest has been made or duly provided for, and such interest shall also
be payable on demand.]
Payment of the principal of (and premium, if any) and [IF APPLICABLE,
INSERT--any such] interest on this Security will be made at the office or agency
of the Company maintained for that purpose in The City of New York, New York, or
at the option of the Holder of this Security, at the office or agency of the
Company in Boise, Idaho, so long as the Company shall maintain an office in
Boise for such purpose, in such coin or currency of the United States of America
as at the time of payment is legal tender for payment of public and private
debts; PROVIDED, HOWEVER that at the option of the Company payment of interest
may be made by check mailed to the address of the Person entitled thereto as
such address shall appear in the Security Register.
The indebtedness evidenced by this Security is, to the extent provided
in the Indenture, subordinate and subject in right of payments to the prior
payment in full of all Senior Indebtedness (as defined in the Indenture), and
this Security is issued subject to the provisions of the Indenture with respect
thereto. Each Holder of this Security, by accepting the same, (a) agrees to and
shall be bound by such provisions, (b) authorizes and directs the Trustee on his
behalf to take such actions as may be necessary or appropriate to effectuate the
subordination so provided and (c) appoints the Trustee his attorney-in-fact for
any and all such purposes. Each Holder hereof, by his acceptance hereof, waives
all notice of the acceptance of the subordination provisions contained herein
and in the Indenture by each holder of Senior Indebtedness, whether now
outstanding or hereafter incurred, and waives reliance by each such holder upon
said provisions.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
-18-
Dated:
BOISE CASCADE CORPORATION
By
--------------------------------------
Attest:
- -------------------------------------
SECTION 203. FORM OF REVERSE OF SECURITY.
This Security is one of a duly authorized issue of Securities of the
Company issued and to be issued in one or more series under an Indenture, dated
as of [_______ __], [1999] (herein called the "Indenture"), between the Company
and _______________, as Trustee (herein called the "Trustee" which term includes
any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee and the Holders of the Securities and of the terms upon
which the Securities are, and are to be, authenticated and delivered. This
Security is one of the series designated on the face hereof, [limited in
aggregate principal amount to $ , except as otherwise provided in the
Indenture].
[IF APPLICABLE, INSERT--The Securities of this series are subject to
redemption upon not less than 30-days' prior notice by mail, [IF APPLICABLE,
INSERT--(1) on in any year commencing with the year and
ending with the year through operation of the sinking fund for this
series at a Redemption Price equal to 100% of the principal amount, and (2)] at
any time [on or after , 19 ], as a whole or from time to
time in part, at the election of the Company, at the following Redemption Prices
(expressed as percentages of the principal amount): If redeemed [on or before
, %, and if redeemed] during the 12-month period beginning
of the years indicated,
REDEMPTION REDEMPTION
YEAR PRICE YEAR PRICE
---- ---------- ---- ---------
-19-
and thereafter at a Redemption Price equal to 100% of the principal amount,
together in the case of any such redemption, [IF APPLICABLE, INSERT--(whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[IF APPLICABLE, INSERT--The Securities of this series are subject to
redemption upon not less than 30-days' prior notice by mail, (1) on
in any year commencing with the year and ending with the year
through operation of the sinking fund for this series at the
Redemption Prices for redemption through operation of the sinking fund
(expressed as percentages of the principal amount) set forth in the table below,
and (2) at any time [on or after ], as a whole or from time to time in
part, at the election of the Company, at the Redemption Prices for redemption
otherwise than through operation of the sinking fund (expressed as percentages
of the principal amount) set forth in the table below: If redeemed during the
12-month period beginning of the years indicated,
REDEMPTION PRICE REDEMPTION PRICE FOR
FOR REDEMPTION REDEMPTION OTHERWISE
THROUGH OPERATION OF THAN THROUGH OPERATION
YEAR THE SINKING FUND OF THE SINKING FUND
---- -------------------- ----------------------
and thereafter at a Redemption Price equal to 100% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
-20-
[Notwithstanding the foregoing, the Company may not, prior to ,
redeem any Securities of this series as contemplated by [Clause (2) of] the
preceding paragraph as a part of, or in anticipation of, any refunding operation
by the application, directly or indirectly, of moneys borrowed having an
interest cost to the Company (calculated in accordance with generally accepted
financial practice) of less than % per annum.]
[The sinking fund for this series provides for the redemption on
in each year beginning with the year and ending with the year
of [not less than] $ [("mandatory sinking fund") and not more than
$ ] aggregate principal amount of Securities of this series.
Securities of this series acquired or redeemed by the Company otherwise than
through [mandatory] sinking fund payments may be credited against subsequent
[mandatory] sinking fund payments otherwise required to be made--in the inverse
order in which they become due.]
In the event of redemption of this Security in part only, a new Security
or Securities of this series and of like tenor for the unredeemed portion hereof
will be issued in the name of the Holder hereof upon the cancellation hereof.
[IF THE SECURITY IS NOT AN ORIGINAL ISSUE DISCOUNT SECURITY,--If an
Event of Default with respect to Securities of this series shall occur and be
continuing, the principal of the Securities of this series may be declared due
and payable in the manner and with the effect provided in the Indenture.]
[IF THE SECURITY IS AN ORIGINAL ISSUE DISCOUNT SECURITY,--If an Event of
Default with respect to Securities of this series shall occur and be continuing,
an amount of principal of the Securities of this series may be declared due and
payable in the manner and with the effect provided in the indenture. Such amount
shall be equal to--INSERT FORMULA FOR DETERMINING THE AMOUNT. Upon payment (i)
of the amount of principal so declared due and payable and (ii) of interest on
any overdue principal and overdue interest (in each case to the extent that the
payment of such interest shall be legally enforceable), all of the Company's
obligations in respect of the payment of the principal of and interest, if any,
on the Securities of this series shall terminate.]
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of 66 2/3% in aggregate principal amount of the
Securities at the time Outstanding of each series to be affected. The Indenture
also contains provisions permitting the Holders of specified percentages in
aggregate principal amount of the Securities, or in some cases of any one or
more series of Securities, at the time Outstanding, on behalf of the Holders of
all Securities, or such one
-21-
or more series of Securities, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Security
shall be conclusive and binding upon such Holder and upon all future Holders of
this Security and of any Security issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the time, place and rate, and in the coin or
currency, herein prescribed.
In the event of the merger or consolidation of the obligor on the
Securities into, or of the transfer of its assets substantially as an entirety
to, a successor corporation, such successor corporation shall assume payment of
the Securities and performance of every covenant of the Indenture on the part of
the predecessor corporation to be performed, and shall be substituted for the
predecessor corporation under the Indenture; and in the event of any such
transfer, such predecessor corporation shall be discharged from all obligations
and covenants under the Indenture and the Securities and may be dissolved and
liquidated, all as more fully set forth in the Indenture.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any Place of Payment duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company, the Trustee and the Security Registrar, duly executed by the Holder
hereof or his attorney duly authorized in writing, and thereupon one or more new
Securities of this series and of like tenor, of authorized denominations and for
the same aggregate principal amount, will be issued to the designated transferee
or transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $ and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate principal
amount of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
-22-
The Company, the Trustee and any agent of the Company or the Trustee may
treat the Person in whose name this Security is registered as the owner hereof
for all purposes, whether or not this Security be overdue, and neither the
Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
SECTION 204. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
This is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
---------------------------------------
, as Trustee
By
----------------------------------------
AUTHORIZED OFFICER
SECTION 205. FORM OF LEGEND FOR GLOBAL SECURITIES.
Any Global Security authenticated and delivered hereunder shall bear a
legend in substantially the following form or such other form as may be
determined pursuant to Section 201:
`This Security is a Global Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depositary or a
nominee of a Depositary. This Global Security is exchangeable for Securities
registered in the name of a person other than the Depositary or its nominee only
in the limited circumstances described in the Indenture, and no transfer of this
Security (other than a transfer of this Security as a whole by the Depositary to
a nominee of the Depositary or by a nominee of the Depositary to the Depositary
or another nominee of the Depositary) may be registered except in such limited
circumstances.'
-23-
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to Section 303,
set forth, or determined in the manner provided, in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of any Securities of any series,
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Sections 304, 305, 306, 906 or 1107
and except for any Securities which, pursuant to Section 303, are deemed
never to have been authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the series
shall be payable, if other than the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest;
(4) the date or dates on which the principal of the Securities
of the series is payable;
(5) the rate or rates at which the Securities of the series
shall bear interest, if any, the date or dates from which such interest
shall accrue, the Interest Payment Dates on which such interest shall be
payable and the Regular Record Date for the interest payable on any
Interest Payment Date;
(6) the place or places where the principal of (and premium, if
any) and any interest on Securities of the series shall be payable;
-24-
(7) the price or prices at which, the period or periods within
which and the terms and conditions upon which Securities of the series
may be redeemed, in whole or in part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provision or at the option of a Holder thereof and the price or prices
at which, the period or periods within which and the terms and
conditions upon which Securities of the series shall be redeemed or
purchased, in whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the series
shall be issuable;
(10) if other than the principal amount thereof, the portion of
the principal amount of Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 502;
(11) if Section 401(c) is inapplicable to the Securities of the
series;
(12) if Section 402 is inapplicable to the Securities of the
series;
(13) the currency or currencies, including composite currencies,
in which payment of the principal of and any premium and interest on
Securities of the series shall be payable if other than the currency of
the United States of America and the manner of determining the
equivalent thereof in the currency of the United States of America for
the purposes of the definition of "Outstanding" in Section 101;
(14) if the amount of payments of principal of and any premium
or interest on Securities of the series may be determined with reference
to an index, the manner in which such amounts shall be determined;
(15) if the principal of and any premium or interest on the
Securities of the series are to be payable, at the election of the
Company or a Holder thereof, in a currency or currencies, including
composite currencies, other than that or those in which the Securities
are stated to be payable, the currency or currencies in which payment of
the principal of and any premium and interest on Securities of such
series as to which such election is made shall be payable, and the
periods within which and the terms and conditions upon which such
election is to be made;
-25-
(16) whether the Securities of the series shall be issued in
whole or in part in the form of one or more Global Securities and, if
so, the Depositary for such Global Security or Securities; and
(17) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture), including but not
limited to the dates for furnishing names and addresses for Securities
which are not interest bearing pursuant to Section 701(a).
All Securities of any one series shall be substantially identical except
as to denomination and except as may otherwise be provided in or pursuant to the
Board Resolution referred to above and (subject to Section 303) set forth in the
Officers' Certificate referred to above or in any such indenture supplemental
hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the initial authentication of Securities
of that series.
SECTION 302. DENOMINATIONS.
The Securities of each series shall be issuable in registered form
without coupons in such denominations as shall be specified as contemplated by
Section 301. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President or one of its Vice Presidents, under its
corporate seal reproduced thereon attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the Securities
may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of
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such Securities, and the Trustee in accordance with the Company Order shall
authenticate and deliver such Securities. In authenticating such Securities, and
accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive, and (subject to
Section 601) shall be fully protected in relying upon, an Opinion of Counsel
stating,
(a) that the form of such Securities has been established in
conformity with the provisions of this Indenture;
(b) that the terms of such Securities have been established in
conformity with the provisions of this Indenture; and
(c) that such Securities, when authenticated and delivered by
the Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid
and legally binding obligations of the Company, enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting the enforcement of creditors' rights and to general equity
principles.
The Trustee shall not be required to authenticate such Securities if the
issue of such Securities pursuant to this Indenture will affect the Trustee's
own rights, duties or immunities under the Securities and this Indenture or
otherwise in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and this Section 303, if
all Securities of a series are not to be originally issued at one time, it shall
not be necessary to deliver the Officers Certificate otherwise required pursuant
to Section 301 or the Company Order and Opinion of Counsel otherwise required
pursuant to such preceding paragraph at or prior to the time of authentication
of each Security of such series if such documents are delivered at or prior to
the time of authentication and delivery upon original issuance of the first
Security of such series to be issued and, if such other documents reasonably
apply to the authentication and delivery of such other Security.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder and is entitled to the
benefits of this Indenture. Notwithstanding the foregoing, if any Security shall
have been authenticated and delivered hereunder but never issued and sold
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by the Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 309 together with a written statement
stating that such Security has never been issued and sold by the Company, for
all purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without unreasonable delay.
After the preparation of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for definitive Securities of
such series upon surrender of the temporary Securities of such series at the
office or agency of the Company in a Place of Payment for that series, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of the same series and of like tenor of authorized
denominations. Until so exchanged the temporary Securities of any series shall
in all respects be entitled to the same benefits under this Indenture as
definitive Securities of such series.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept at its office in Boise, Idaho,
designated pursuant to Section 1002, a register (being herein sometimes referred
to as the "Security Register") in which, subject to such reasonable regulations
as it may prescribe, the Company shall provide for the registration of
Securities and of transfers of Securities.
The Company initially shall act as "Security Registrar" at such office
for the purpose of registering Securities and transfers of Securities as herein
provided. If at any time the Company shall determine not to act as Security
Registrar or shall fail to maintain a Security Register, the Company hereby
appoints the Trustee as its agent to maintain a Security Register and to act as
Security Registrar. At all reasonable times, the Security Register shall be open
for inspection by the Trustee.
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Upon surrender for registration of transfer of any Security of any
series at the office or agency in a Place of Payment for that series, the
Company shall cancel the surrendered Security, record the transaction in the
Security Register and either issue or cause to be issued one or more new
Securities of the same series, of any authorized denominations and of a like
aggregate principal amount and tenor or, at the direction of the Trustee, an
Authenticating Agent or any other agent acceptable to the Trustee, credit the
proper principal amount of such Securities to the account of the Person entitled
thereto maintained in the Security Register. Upon request, the Company shall
issue or cause to be issued one or more new Securities of the same series, of
authorized denominations and of an aggregate principal amount requested, up to
the amount held in the account of such person.
At the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series, of any authorized denominations and of
a like aggregate principal amount and tenor, upon surrender of the Securities to
be exchanged at such office or agency. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company, the Security Registrar or the
Trustee) be duly endorsed, or be accompanied by a written instrument of transfer
in form satisfactory to the Company, the Trustee and the Security Registrar duly
executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Sections 304, 906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer of
or exchange Securities of any series during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of
Securities of that series selected for redemption under Section 1103 and ending
at the close of business on the day of such
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mailing, or (ii) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any Global Security shall be exchangeable pursuant
to this Section 305 for Securities registered in the names of Persons other than
the Depositary for such series or its nominee if, but only if, (i) such
Depositary notifies the Company that it is unwilling or unable to continue as
Depositary for such Global Security or at any time ceases to be a clearing
agency registered as such under the Securities Exchange Act of 1934, as amended,
(ii) the Company executes and delivers to the Trustee a Company Order that such
Global Security shall be so exchangeable or (iii) there shall have occurred and
be continuing an Event or Default with respect to the Securities of such series.
And Global Security that is exchangeable pursuant to the preceding sentence
shall be exchangeable for Securities registered in such names as such Depositary
shall direct.
Notwithstanding any other provision of this Indenture, a Global Security
may not be transferred except as a whole by the Depositary for such Global
Security to a nominee of such Depositary or by a nominee of such Depositary to
such Depositary or another nominee of such Depositary.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the Trustee or the Company,
in exchange therefor a new Security of the same series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding shall be
executed, authenticated and delivered.
If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company may execute and upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding. In case any such
mutilated, destroyed, lost or stolen Security has become or is about to become
due and payable and the Holder has complied with the provisions of the second
paragraph of this Section, the Company in its discretion may, instead of issuing
a new Security, pay or authorize the payment of such Security without surrender
thereof except in the case of a mutilated Security.
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Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and another expenses
(including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu
of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Unless otherwise provided as contemplated by Section 301 with respect to
any series of Securities, interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security of such series and the date of the
proposed payment, 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, such money
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when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this Clause provided.
Thereupon the Trustee shall fix a Special Record Date for the Payment of
such Defaulted Interest which shall be not more than 15 days and not
less than 10 days prior to the date of the proposed payment and not less
than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first-class postage
prepaid, to each Holder of Securities of such series at his 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 so mailed,
such Defaulted Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor Securities)
are registered at the close of business on such Special Record Date and
shall no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on
the Securities of any series in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Company to the Trustee of
the proposed payment pursuant to this Clause, such manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. PERSONS DEEMED OWNERS.
The Company, the Trustee and any agent of the Company or the Trustee may
treat the Person in whose name any Security is registered as the owner of such
Security for the purpose of receiving payment of principal of (and premium, if
any) and (subject to Section 307) interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
No holder of any beneficial interest in any Global Security held on its
behalf by a Depositary shall have any rights under this Indenture with respect
to such Global Security,
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and such Depositary shall be treated by the Company, the Trustee, and any agent
of the Company or the Trustee as the owner of such Global Security for all
purposes whatsoever.
SECTION 309. CANCELLATION.
All Securities surrendered for registration of transfer or exchange
shall, if surrendered to any Person other than the Security Registrar, be
delivered to the Security Registrar and shall be promptly cancelled by it. The
Company may at any time deliver to the Security Registrar, or if the Company is
acting in such capacity to the Trustee or the Authenticating Agent, for
cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever and may deliver to
the Trustee (or any other Person for delivery to the Trustee) for cancellation
any Securities previously authenticated hereunder which the Company has not
issued and sold, and all Securities so delivered shall be promptly cancelled by
the Security Registrar, the Trustee or the Authenticating Agent. No Securities
shall be authenticated in lieu of or in exchange for any Securities cancelled as
provided in this Section, except as expressly permitted by this Indenture. All
cancelled Securities held by the Security Registrar, the Trustee or the
Authenticating Agent shall be disposed of as directed by a Company Order.
SECTION 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION, DISCHARGE AND DEFEASANCE OF SECURITIES OF ANY
SERIES.
The Company shall be deemed to have paid and discharged the entire
indebtedness on all the Securities of a series, the provisions of this Indenture
(except as to (i) remaining rights of registration of transfer, substitution and
exchange of the series of Securities, (ii) rights of Holders under Section 508
to receive payments of principal of and premium, if any, and interest on, the
Securities, and other rights, duties and obligations of the Holders of
Securities of any series with respect to the amounts, if any, deposited with the
Trustee with respect to that series, (iii) if applicable, remaining obligations
of the Company to make mandatory sinking fund payments and (iv) the rights,
obligations and immunities of the Trustee hereunder) as it relates to such
Securities shall no longer be in effect, and the Trustee, at the expense of the
Company, shall, upon Company Request, execute proper instruments acknowledging
the same if:
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(a)(l) all Securities of such series theretofore authenticated
and delivered (other than (i) Securities which have been destroyed, lost
or stolen and which have been replaced or paid as provided in Section
306 and (ii) Securities for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such trust, as
provided in Section 1003) have been delivered to the Trustee for
cancellation;
(2) the Company has paid or caused to be paid all other sums
payable under this Indenture in respect of the Securities of such
series; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction of the entire
indebtedness on all Securities of any such series and the discharge of
the Indenture as it relates to such Securities have been complied with;
or
(b)(l) all Securities of such series not theretofore delivered
to the Trustee for cancellation (i) have become due and payable, or (ii)
will become due and payable at their Stated Maturity within one year, or
(iii) are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption by
the Trustee in the name, and at the expense of the Company;
(2) the condition described in paragraph (1) of Section 402 has
been satisfied;
(3) the conditions described in paragraphs (a)(2) and (a)(3) of
this Section 401 have been satisfied; and
(4) the Company has received an Opinion of Counsel to the effect
that the satisfaction, discharge and defeasance contemplated by this
Section 401 will not violate the then applicable rules of, or any
related undertaking of the Company to, any nationally-recognized
securities exchange on which Securities of that series are listed; or
(c) Except as otherwise specified pursuant to Section 301:
(1) the conditions referred to or described in paragraphs
(b)(2), (b)(3) and (b)(4) of this Section 401 have been satisfied;
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(2) no Event of Default or event which with notice or lapse of
time would become an Event of Default shall have occurred and be
continuing on the date of the deposit referred to in paragraph (1) of
Section 402 or on the 91st day after the date of such deposit; PROVIDED,
HOWEVER, that should that condition fail to be satisfied on or before
such 91st day, the Trustee shall promptly, upon satisfactory receipt of
evidence of such failure, return such deposit to the Company; and
(3) the Company has delivered to the Trustee an Opinion of
Counsel of a nationally-recognized independent tax 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 deposit
and the satisfaction, discharge and defeasance contemplated by this
paragraph (c) of this Section 401 and will be subject to Federal income
tax in the same amounts and in the same manner and at the same times as
would have been the case if such deposit and defeasance had not
occurred.
SECTION 402. DEFEASANCE OF SECURITIES OF ANY SERIES.
The Company may, except as otherwise specified pursuant to Section 301,
omit to comply with Section 301, Section 304, Section 801 (except paragraph (1))
and Section 1004 of this Indenture and paragraphs (3) and (4) of Section 501 of
this Indenture shall not apply, as all of such provisions relate to Securities
of any series, so long as the Securities of such series remain Outstanding and,
thereafter, all provisions of this Indenture in respect of such Securities shall
no longer be in effect except the Company's and the Trustee's rights and
obligations under Sections 403, 603, 607 and 1003, and the Trustee, at the
expense of the Company shall, upon Company Request, execute proper instruments
acknowledging the same if:
(1) The Company has deposited or caused to be deposited with the
Trustee as trust funds in trust for the purpose (A) money in an amount,
or (B) U.S. Government Obligations which through the payment of interest
and principal in respect thereof in accordance with their terms will
provide on or before the due date of any payment in respect of such
series of Securities money in an amount, or (C) a combination thereof,
sufficient, after payment, based on then applicable law, of all Federal,
state and local taxes in respect thereof payable, in the opinion of a
nationally-recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, to pay and
discharge (i) the principal of (and premium, if any) and each instalment
of principal (and premium, if any) and interest on the Outstanding
Securities of that series on the Stated Maturity of such principal or
instalment of principal or interest and (ii) any mandatory sinking fund
payments or analogous payments or payments pursuant to any call for
redemption
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applicable to Securities of such series on the day on which such
payments are due and payable in accordance with the terms of the
Indenture and of such Securities;
(2) No Event of Default or event which with notice or lapse of
time would become an Event of Default shall have occurred and be
continuing on the date of such deposit;
(3) The interest of the Holders in such deposit shall have been
duly perfected under the applicable provisions of the Uniform Commercial
Code;
(4) Such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound; and
(5) The Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the defeasance contemplated by
this Section have been complied with.
SECTION 403. APPLICATION OF TRUST FUNDS; INDEMNIFICATION.
(a) Subject to the provisions of the last paragraph of Section
1003, all money and U.S. Government Obligations deposited with the
Trustee pursuant to Section 401 or 402 and all money received by the
Trustee in respect of U.S. Government Obligations deposited with the
Trustee, shall be held in trust and applied by it, in accordance with
the provisions of the Securities of the respective series for which such
deposit was made and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own Paying
Agent) as the Trustee may determine, to the Persons entitled thereto, of
the principal (and premium, if any) and interest for whose payment such
money and U.S. Government Obligations have been deposited with or
received by the Trustee as contemplated by Section 401 or 402.
(b) The Company shall pay and shall indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against U.S.
Government Obligations deposited pursuant to Section 401 or 402 or the
interest and principal received in respect of such obligations, other
than any such tax, fee or other charge payable by or on behalf of
Holders. The Company shall be entitled to prompt notice of an assessment
or the commencement of any proceeding for which indemnification may be
sought under this Section 403 and, at its election, to contest such
assessment or to participate in, assume the defense of, or settle such
proceeding.
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(c) The Trustee shall deliver or pay to the Company from time
to time upon Company Request any U.S. Government Obligations or money
held by it as provided in Section 401 or 402 which, in the opinion of a
nationally-recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, are then in
excess of the amount thereof which then would have been required to be
deposited for the purpose for which such obligations or money were
deposited or received.
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT.
"Event of Default," wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any Security of
that series when it becomes due and payable, and continuance of such
default for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if
any, on) any Security of that series at its Maturity; or
(3) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of a series of
Securities other than that series), and continuance of such default or
breach for a period of 90 days after there has been given, by registered
or certified mail, to the Company by the Trustee or to the Company and
the Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities a written notice specifying such default or
breach and requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder; or
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(4) the entry of a decree or order by a court having
jurisdiction in the premises adjudging the Company as bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect
of the Company under the Federal Bankruptcy Act or any other applicable
federal or state law, or appointing a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of the Company or of
any substantial part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or
order unstayed and in effect for a period of 60 consecutive days; or
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(5) the institution by the Company of proceedings to be
adjudicated as bankrupt or insolvent, or the consent by it to the
institution of bankruptcy or insolvency proceedings against it, or the
filing by it of a petition or answer or consent seeking reorganization
or relief under the Federal Bankruptcy Act or any other applicable
federal or state law, or the consent by it to the filing of any such
petition or the appointment of a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of the Company or of
any substantial part of its property, or the making by it of any
assignment for the benefit of creditors, or the admission by it in
writing of its inability to pay its debts generally as they become due
and its willingness to be adjudicated a bankrupt, or the taking of
corporate action by the Company in furtherance of any such action; or
(6) any other Event of Default provided with respect to
Securities of that series.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default described in Section 501(1), (2) or (8) with
respect to Securities of any series at the time Outstanding occurs and is
continuing, then in every such case the Trustee or the Holders of not less than
25% in principal amount of the Outstanding Securities of that series may declare
the principal amount (or, if the Securities of that series are Original Issue
Discount Securities, such portion of the principal amount as may be specified in
the terms of that series) of all of the Securities of that series to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee
if given by Holders), and upon any such declarations such principal amount (or
specified amount) shall become immediately due and payable.
If an Event of Default described in Section 501(3), (4), (5), (6) or (7)
occurs and is continuing, then in every such case the Trustee or the Holders of
not less than 25% in principal amount of the Outstanding Securities may declare
the principal amount (or, if any of the Outstanding Securities are Original
Issue Discount Securities, such portion of the principal amount as may be
specified in the terms of those Original Issue Discount Securities) of all of
the Outstanding Securities to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by Holders), and upon any
such declaration such principal amount (or specified amount) shall become
immediately due and payable.
At any time after such a declaration of acceleration with respect to all
Securities or with respect to Securities of any series has been made and before
a judgment or decree for payment of the money due has been obtained by the
Trustee as hereinafter in this Article provided, the Holders of a majority in
principal amount of all Outstanding Securities or of
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the Outstanding Securities of that series, as the case may be, by written notice
to the Company and the Trustee, may rescind and annul such declaration and its
consequences if (1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that
series,
(B) the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise than
by such declaration of acceleration and interest thereon at the
rate or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate prescribed
therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that
series, other than the nonpayment of the principal of Securities of that
series which have become due solely by such declaration of acceleration,
have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.
The Company covenants that if
(1) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest and, to the extent
that payment of such interest shall be permitted by applicable law, interest on
any overdue principal (and premium, if any) and
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on any overdue interest, at the rate or rates prescribed therefor in such
Securities, and, in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders 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 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal (and premium, if any) or
interest) shall be entitled and empowered, 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 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;
(ii) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same; and
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(iii) unless prohibited by law or applicable regulations, to
vote on behalf of the Holders in any election of a trustee in bankruptcy
or other person performing similar functions;
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 607. 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 except, as aforesaid, for the election of a trustee in bankruptcy or
other person performing similar functions.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee: shall be brought in its own name
as trustee of an express trust, and any recovery 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 506. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (or premium,
if any) or interest, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee and each
predecessor Trustee under Section 607;
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium if any) and interest on the Securities in
respect of which
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or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts due
and payable on such Securities for principal (and premium, if any) and
interest, respectively; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
SECTION 507. LIMITATION ON SUITS.
No Holder of any Security of any series shall have any right to
institute a proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless
(1) an Event of Default shall have occurred and be continuing
and such Holder has previously given written notice to the Trustee of
such continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that
series.
It is understood and intended that no one or more Holders of any series
of Securities shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or prejudice the
rights of any other of such Holders, or to obtain or to seek to obtain priority
or preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all of such Holders.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND
INTEREST.
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Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of (and premium, if any) and (subject to Section 307)
interest on such Security on the Stated Maturity or Maturities expressed in such
Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved to the Trustee
or to the Holders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder to exercise any
right or remedy accruing upon any Event of Default shall impair any such right
or remedy or constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article or by law to the Trustee
or to the Holders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Holders, as the case may be.
SECTION 512. CONTROL BY HOLDERS.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any
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proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred on the Trustee, with respect to the Securities of such series,
PROVIDED that
(1) such direction shall not be in conflict with any rule of law
or with this Indenture,
(2) subject to the provisions of Section 601, the Trustee shall
have the right to decline to follow such direction if the Trustee shall
determine that such direction would be unduly prejudicial to any Holders
not joining in giving said direction or would involve the Trustee in any
personal liability, and
(3) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 513. WAIVER OF PAST DEFAULTS. The Holders of not less than a majority in
principal amount of the Outstanding Securities of any series may on behalf of
the Holders of all the Securities of such series waive any past default
hereunder with respect to such series and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 514. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this
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Section shall not apply to any suit instituted by the Company, to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Securities of any series, or to any suit instituted by any Holder
for the enforcement of the payment of the principal of (or premium, if any) or
interest on any Security on or after the Stated Maturity or Maturities expressed
in such Security (or, in the case of redemption, on or after the Redemption
Date).
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law has been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read
into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates
or opinions furnished to the Trustee and conforming to the
require meets 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.
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(b) In case an Event of Default has occurred and is continuing,
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 own affairs.
(c) No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own wilful misconduct, except that
(1) this Subsection shall not be construed to limit the
effect of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it
shall be proved that the Trustee was negligent in ascertaining
the pertinent facts;
(3) the Trustee shall not be liable with respect to any
action taken, suffered or omitted to be taken by it in good
faith in accordance with the direction of the Holders of a
majority in principal amount of the Outstanding Securities of
any series, determined as provided in Section 512, 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 the Indenture with
respect to the Securities of such series; and
(4) no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if
it shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to
the provisions of this Section.
SECTION 602. NOTICE OF DEFAULTS.
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall transmit or cause to
be transmitted by mail to all Holders of Securities of such series, as their
names and addresses appear in the
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Security Register, notice of such default hereunder known to the Trustee, unless
such default shall have been cured or waived; PROVIDED, HOWEVER, that, except in
the case of a default in the payment of the principal of (or premium, if any) or
interest on any Security of such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors or Responsible Officers of the
Trustee in good faith determine that the withholding of such notice is in the
interest of the Holders of Securities of such series; and PROVIDED, FURTHER,
that in the case of any default of the character specified in Section 501(4)
with respect to Securities of such series, no such notice to Holders shall be
given until at least 30 days after the occurrence thereof. For the purpose of
this Section, the term "default" means any event which is, or after notice or
lapse of time or both would become, an Event of Default with respect to
Securities of such series.
SECTION 603. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate or
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be genuine and
to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order or
as otherwise expressly provided herein and any resolution of the Board
of Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this indenture at the request or
direction of any of the Holders
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pursuant to this Indenture, unless such Holders shall have offered to
the Trustee reasonable security or indemnity against the costs, expenses
and liabilities which might be incurred by it in compliance with such
request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document, but the Trustee, in its discretion, may make
such further inquiry or investigation into such facts or matters as it
may see fit, and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible for
any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder; and
(h) the Trustee shall not be liable for any action taken,
suffered 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.
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee or any Authenticating Agent assumes no
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities. The Trustee
or any Authenticating Agent shall not be accountable for the use or application
by the Company of Securities or the proceeds thereof.
SECTION 605. MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company or the Trustee, in its individual or
any other capacity, may become the owner or pledgee of Securities and, subject
to Sections 608 and 613, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
SECTION 606. MONEY HELD IN TRUST.
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Money held by the Trustee or any Paying Agent in trust hereunder need
not be segregated from other funds except to the extent required by law. The
Trustee or any Paying Agent shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed with the Company.
SECTION 607. COMPENSATION AND REIMBURSEMENT.
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses, disbursements
and advances incurred or made by the Trustee in performance of its
duties under or with respect to this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its misconduct, bad faith or negligence; and
(3) to indemnify each of the Trustee, any predecessor trustee or
their agents for, and to hold each of them harmless against, any loss,
liability or expense incurred without negligence or bad faith on the
part of the person seeking such indemnity, arising out of or in
connection with the acceptance or administration of the trust or trusts
or the performance of their duties hereunder, including the costs and
expenses of defending themselves against any claim or liability in
connection with the exercise or performance of any of their powers or
duties hereunder.
As security for the performance of the obligations of the Company under
this Section the Trustee shall have a claim prior to 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 (and premium, if any) or interest on
Securities.
SECTION 608. DISQUALIFICATION; CONFLICTING INTERESTS.
(a) If the Trustee has or shall acquire any conflicting
interest, as defined in this Section, it shall, within 90 days after
ascertaining that it has such conflicting interest, either eliminate
such conflicting interest or resign in the manner and with the effect
hereinafter specified in this Article.
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(b) In the event that the Trustee shall fail to comply with the
provisions of Subsection (a) of this Section, the Trustee shall, within
10 days after the expiration of such 90-day period, transmit or cause to
be transmitted by mail to all Holders, as their names and addresses
appear in the Security Register, notice of such failure.
(c) For the purposes of this Section, the Trustee shall be
deemed to have a conflicting interest, with respect to the Securities of
any series, if
(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 are
outstanding, 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 [the indenture
dated as of [_______ __], [19__], between the Company and
Trustee pursuant to which the Company issued its __________] and
this Indenture with respect to the Securities of any series
other than that series or any indenture or indentures under
which other securities, or certificates of interest or
participation in other securities, of the Company are
outstanding, if
(i) this Indenture and such other indenture or
indentures are wholly unsecured and such other indenture
or indentures are hereafter qualified under the Trust
Indenture Act, unless the Commission shall have found
and declared by order pursuant to Section 305(b) or
Section 307(c) of the Trust Indenture Act that
differences exist between the provisions of this
Indenture and the provisions of such other indenture or
indentures which are so likely to involve a material
conflict of interest as to make it necessary in the
public interest or for the protection of investors to
disqualify the Trustee from acting as such under this
Indenture and such other indenture or indentures, or
(ii) the Company shall have sustained the burden
of proving, on application to the Commission and after
opportunity for hearing thereon, that trusteeship under
this Indenture and such other indenture or indentures is
not so likely to involve a material conflict of interest
as to make it necessary in the public interest or for
the protection of investors to disqualify the Trustee
from acting as such under one of such indentures;
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(2) the Trustee or any of its directors or
executive officers is an obligor upon the Securities or
an underwriter for the Company;
(3) the Trustee directly or indirectly controls
or is directly or indirectly controlled by or is under
direct or indirect common control with the Company or an
underwriter for the Company;
(4) the Trustee or any of its directors or
executive officers is a director, officer, partner,
employee, appointee or representative of the Company, or
of an underwriter (other than the Trustee itself) for
the Company who is currently engaged in the business of
underwriting, except that (i) one individual may be a
director or an executive officer, or both, of the
Trustee and a director or an executive officer, or both,
of the Company but may not be at the same time an
executive officer of both the Trustee and the Company;
(ii) 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 or an executive officer, or
both, of the Trustee and a director of the Company; and
(iii) the Trustee may be designated by the Company or by
any underwriter for the Company to act in the capacity
of transfer agent, registrar, custodian, paying agent,
fiscal agent, escrow agent or depositary, or in any
other similar capacity, or, subject to the provisions of
paragraph (1) of this Subsection, to act as trustee,
whether under an indenture or otherwise;
(5) 10% or more of the voting securities of the
Trustee is beneficially owned either by the Company or
by any director, partner or executive officer thereof,
or 20% or more of such voting securities is beneficially
owned, collectively, by any two or more of such persons;
or 10% or more of the voting securities of the Trustee
is beneficially owned either by an underwriter for the
Company or by any director, partner or executive officer
thereof, or is beneficially owned, collectively, by any
two or more such persons;
(6) the Trustee is the beneficial owner of, or
holds as collateral security for an obligation which is
in default (as hereinafter in this Subsection defined),
(i) 5% or more of the voting securities, or 10% or more
of any other class of security, of the Company not
including the Securities issued under this Indenture and
securities issued under any other indenture under which
the Trustee is also trustee, or (ii) 10% or more of any
class of security of an underwriter for the Company;
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(7) the Trustee is the beneficial owner of, or holds
as collateral security for an obligation which is in default
(as hereinafter in this Subsection defined), 5% or more of the
voting securities of any person who, to the knowledge of the
Trustee, owns 10% or more of the voting securities of, or
controls directly if or indirectly or is under direct or
indirect common control with, the Company;
(8) the Trustee is the beneficial owner of, or holds
as collateral security for an obligation which is in default
(as hereinafter in this Subsection defined), 10% or more of
any class of security of any person who, to the knowledge of
the Trustee, owns 50% or more of the voting securities of the
Company; or
(9) the Trustee owns, on May 15 in any calendar year, in
the capacity of executor, administrator, testamentary or inter
vivos trustee, guardian, committee or conservator, or in any
other similar capacity, an aggregate of 25% or more of the
voting securities, or of any class of security, of any person,
the beneficial ownership of a specified percentage of which
would have constituted a conflicting interest under paragraph
(6), (7) or (8) of this Subsection. As to any such securities of
which the Trustee acquired ownership through becoming executor,
administrator or testamentary trustee of an estate which
included them, the provisions of the preceding sentence shall
not apply, for a period of two years from the date of such
acquisition, to the extent that such securities included in such
estate do not exceed 25% of such voting securities or 25% of any
such class of security. Promptly after May 15 in each calendar
year, the Trustee shall make a check of its holdings of such
securities in any of the above-mentioned capacities as of such
May 15. lf the Company fails to make payment in full of the
principal of (or premium, if any) or interest on any of the
Securities when and as the same becomes 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, 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.
The specification of percentages in paragraphs (5) to (9),
inclusive, of this Subsection shall not be construed as indicating that
the ownership of such
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percentages of the securities of a person is or is not necessary or
sufficient to constitute direct or indirect control for the purposes of
paragraph (3) or (7) of this Subsection.
For the purposes of paragraphs (6), (7), (8) and (9) of this Subsection
only, (i) 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; (ii) 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 (iii) the Trustee shall not be deemed to be
the owner or holder of (A) any security which it holds as collateral security,
as trustee or otherwise, for an obligation which is not in default as defined in
clause (ii) above, or (B) any security which it holds as collateral security
under this Indenture, irrespective of any default hereunder, or (C) any security
which it holds as agent for collection, or as custodian, escrow agent or
depositary, or in any similar representative capacity.
(d) For the purposes of this Section:
(1) The term "underwriter," when used with reference to
the Company, means every person who, within three years prior to
the time as of which the determination is made, has purchased
from the Company with a view to, or has offered or sold for the
Company in connection with, the distribution of any security of
the Company outstanding at such time, or has participated or has
had a direct or indirect participation in any such undertaking,
or has participated or has had a participation in the direct or
indirect underwriting of any such undertaking, but such term
shall not include a person whose interest was limited to a
commission from an underwriter or dealer not in excess of the
usual and customary distributors' or sellers' commission.
(2) The term "director" means any director of a
corporation or any individual performing similar functions with
respect to any organization, whether incorporated or
unincorporated.
(3) The term "person" means an individual, a
corporation, a partnership, an association, a joint-stock
company, a trust, an unincorporated organization or a government
or political subdivision thereof. As used in this paragraph, the
term "trust" shall include only a trust
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where the interest or interests of the beneficiary or
beneficiaries are evidenced by a security.
(4) The term "voting security" means any security
presently entitling the owner or holder thereof to vote in the
direction or management of the affairs of a person, or any
security issued under or pursuant to any trust, agreement or
arrangement whereby a trustee or trustees or agent or agents for
the owner or holder of such security are presently entitled to
vote in the direction or management of the affairs of a person.
(5) The term "Company" means an obligor upon the
Securities.
(6) The term "executive officer" means the president,
every vice president, every trust officer, the cashier, the
secretary and the treasurer of a corporation, and any individual
customarily performing similar functions with respect to any
organization whether incorporated or unincorporated, but shall
not include the chairman of the board of directors.
(e) The percentages of voting securities and other securities
specified in this Section shall be calculated in accordance with the
following provisions:
(1) A specified percentage of the voting securities of
the Trustee, the Company or any other person referred to in this
Section (each of whom is referred to as a "person" in this
paragraph) means such amount of the outstanding voting
securities of such person as entitles the holder or holders
thereof to cast such specified percentage of the aggregate votes
which the holders of all the outstanding voting securities of
such person are entitled to cast in the direction or management
of the affairs of such person.
(2) A specified percentage of a class of securities of a
person means such percentage of the aggregate amount of
securities of the class outstanding.
(3) The term "amount," when used in regard to
securities, means the principal amount if relating to evidences
of indebtedness, the number of shares if relating to capital
shares and the number of units if relating to any other kind of
security.
(4) The term "outstanding" 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:
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(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;
(5) A security shall be deemed to be of the same class
as another security if both securities confer upon the holder or
holders thereof substantially the same rights and privileges;
PROVIDED, HOWEVER, that, in the case of secured evidences of
indebtedness, all of which are issued under a single indenture,
differences in the interest rates or maturity dates of various
series thereof shall not be deemed sufficient to constitute such
series different classes and PROVIDED, FURTHER, that, in the
case of unsecured evidences of indebtedness, differences in the
interest rates or maturity dates thereof shall not be deemed
sufficient to constitute them securities of different classes,
whether or not they are issued under a single indenture.
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least $100,000,000 subject to supervision or examination by federal, state
or District of Columbia authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
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SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment
of a successor Trustee pursuant to this Article shall become effective
until the acceptance of appointment by the successor Trustee under
Section 611.
(b) The Trustee may resign at any time by giving written notice
thereof to the Company. If an instrument of acceptance by a successor
Trustee shall not have been delivered to the Trustee within 30 days
after the giving of such notice of resignation, the resigning Trustee
may petition any court of competent jurisdiction for the appointment of
a successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders
of a majority in principal amount of the Outstanding Securities,
delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608(a)
after written request therefor by the Company or by any Holder
who has been a bona fide Holder of a Security for at least six
months, or
(2) the Trustee shall cease to be eligible under Section
609 and shall fail to resign after written request therefor by
the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of the
Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee, or (ii) subject to Section 514, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office
of Trustee for any cause, the Company, by a
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Board Resolution, shall promptly appoint a successor Trustee.
If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor
Trustee shall be appointed by Act of the Holders of a majority
in principal amount of the Outstanding Securities delivered to
the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such
appointment, become the successor Trustee and supersede the
successor Trustee appointed by the Company. If no successor
Trustee shall have been so appointed by the Company or the
Holders and accepted appointment in the manner hereinafter
provided, any Holder who has been a bona fide Holder of a
Security for at least six months may, on behalf of himself and
all others similarly situated, subject to Section 514, petition
any court of competent jurisdiction for the appointment of a
successor Trustee.
(f) The Company shall give notice of each resignation
and each removal of the Trustee and each appointment of a
successor Trustee by mailing written notice of such event by
first-class mail, postage prepaid, to all Holders as their names
and addresses appear in the Security Register. Each notice shall
include the name of the successor Trustee and the address of its
Corporate Trust Office.
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
Every successor Trustee appointed hereunder shall execute, acknowledge
and deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee; but, on request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder, subject nevertheless to its prior claim, if
any, provided for in Section 607. Upon request of any such successor Trustee,
the Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
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Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
(a) Subject to Subsection (b) of this Section, if the Trustee
shall be or shall become a creditor, directly or indirectly, secured or
unsecured, of the Company within four months prior to a default, as
defined in Subsection (c) of this Section, or subsequent to such a
default, then, unless and until such default shall be cured, the Trustee
shall set apart and hold in a special account for the benefit of the
Trustee individually, the Holders of the Securities and the holders of
other indenture securities, as defined in Subsection (c) of this
Section:
(1) an amount equal to any and all reductions in the
amount due and owing upon any claim as such creditor in respect
of principal or interest, effected after the beginning of such
four-month period and valid as against the Company and its other
creditors, except any such reduction resulting from the receipt
or disposition of any property described in 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 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 four-month period, or an amount equal to the
proceeds of any such property, if disposed of, SUBJECT, HOWEVER,
to the rights, if any, of the Company and its other creditors in
such property or such proceeds.
Nothing herein contained, however, shall affect the
right of the Trustee:
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(A) to retain for its own account (i) payments
made on account of any such claim by any Person (other
than the Company) 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 in bankruptcy or
receivership or in proceedings for reorganization
pursuant to the Federal Bankruptcy Act or applicable
state law;
(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
four-month 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
four-month period and such property was received as
security therefor simultaneously with the creation
thereof, and if the Trustee shall sustain the burden of
proving that at the time such property was so received
the Trustee had no reasonable cause to believe that a
default, as defined in Subsection (c) of this Section,
would occur within four 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 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 four-month period for property
held as security at the time of such substitution shall, to the extent
of the fair value of the property released, have the same status as the
property released, and, to the extent that any claim referred to in any
of such paragraphs is created in renewal of or in substitution for or
for the purpose of repaying or refunding any pre-existing claim of the
Trustee as such creditor, such claim shall have the same status as such
pre-existing claim.
If the Trustee shall be required to account, the funds and
property held in such special account and the proceeds thereof shall be
apportioned among the Trustee, the Holders and the holders of other
indenture securities in such manner that the Trustee, the Holders and
the holders of other indenture securities realize, as a result of
payments from such special account and payments of dividends on claims
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filed against the Company in bankruptcy or receivership or in
proceedings for reorganization pursuant to the Federal Bankruptcy Act or
applicable state law, the same percentage of their respective claims,
figured before crediting to the claim of the Trustee anything on account
of the receipt by it from the Company of the funds and property in such
special account and before crediting to the respective claims of the
Trustee and the Holders and the holders of other indenture securities
dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the
Federal Bankruptcy Act or applicable state law, but after crediting
thereon receipts on account of the indebtedness represented by their
respective claims from all sources other than from such dividends and
from the funds and property so held in such special account. As used in
this paragraph, with respect to any claim, the term "dividends" shall
include any distribution with respect to such claim, in bankruptcy or
receivership or proceedings for reorganization pursuant to the Federal
Bankruptcy Act or applicable state law, whether such distribution is
made in cash, securities or other property, but shall not include any
such distribution with respect to the secured portion, if any, of such
claim. The court in which such bankruptcy, receivership or proceedings
for reorganization is pending shall have jurisdiction (i) to apportion
among the Trustee, the Holders and the holders of other indenture
securities, in accordance with the provisions of this paragraph, the
funds and property held in such special account and proceeds thereof, or
(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 and the Holders
and the holders of other indenture securities with respect to their
respective claims, in which event it shall not be necessary to liquidate
or to appraise the value of any securities or other property held in
such special account or as security for any such claim, or to make a
specific allocation of such distributions as between the secured and
unsecured portions of such claims, or otherwise to apply the provisions
of this paragraph as a mathematical formula.
Any Trustee which has resigned or been removed after the
beginning of such four-month period shall be subject to the provisions
of this Subsection as though such resignation or removal had not
occurred. If any Trustee has resigned or been removed prior to the
beginning of such four-month period, it shall be subject to the
provisions of this Subsection 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 four-month period; and
(ii) such receipt of property or reduction of claim
occurred within four months after such resignation or removal.
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(b) There shall be excluded from the operation of Subsection (a)
of this Section a creditor relationship arising from:
(1) the ownership or acquisition of securities issued
under any indenture, or any security or securities having a
maturity of one year or more at the time of acquisition by the
Trustee;
(2) advances authorized by a receivership or bankruptcy
court of competent jurisdiction or by this Indenture, for the
purpose of preserving any property which shall at any time be
subject to the lien of this Indenture or of discharging tax
liens or other prior liens or encumbrances thereon, if notice of
such advances and of the circumstances surrounding the making
thereof is given to the Holders at the time and in the manner
provided in this Indenture;
(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, escrow
agent or depositary, or other similar capacity;
(4) an indebtedness created as a result of services
rendered or premises rented; or an indebtedness created as a
result of goods or securities sold in a cash transaction, as
defined in Subsection (c) of this Section;
(5) the ownership of stock or of other securities of a
corporation organized under the provisions of Section 25(a) of
the Federal Reserve Act, as amended, which is directly or
indirectly a creditor of the Company; and
(6) the acquisition, ownership, acceptance or
negotiation of any drafts, bills of exchange, acceptances or
obligations which fall within the classification of
self-liquidating paper, as defined in Subsection (c) of this
Section.
(c) For the purposes of this Section only:
(1) the term "default" means any failure to make payment in full
of the principal of or interest on any of the Securities or upon the
other indenture securities when and as such principal or interest
becomes due and payable;
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(2) the term "other indenture securities" means
securities upon which the Company is an obligor outstanding
under any other indenture (i) under which the Trustee is also
trustee, (ii) which contains provisions substantially similar to
the provisions of this Section, and (iii) under which a default
exists at the time of the apportionment of the funds and
property held in such special account;
(3) the term "cash transaction" means any transaction in
which full payment for goods or securities sold is made within
seven days after delivery of the goods or securities in currency
or in checks or other orders drawn upon banks or bankers and
payable upon demand;
(4) the term "self-liquidating paper" means any draft,
bill of exchange, acceptance or obligation which is made, drawn,
negotiated or incurred by the Company for the purpose of
financing the purchase, processing, manufacturing, shipment,
storage or sale of goods, wares or merchandise and which is
secured by documents evidencing title to, possession of, or a
lien upon, the goods, wares or merchandise or the receivables or
proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the
security is received by the Trustee simultaneously with the
creation of the creditor relationship with the Company arising
from the making, drawing, negotiating or incurring of the draft,
bill of exchange, acceptance or obligation;
(5) the term "Company" means any obligor upon the
Securities; and
(6) the term "Federal Bankruptcy Act" means the
Bankruptcy Act or Title 11 of the United States Code.
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT.
At any time when any of the Securities remain Outstanding, the Trustee
may appoint an Authenticating Agent or Agents with respect to one or more series
of Securities which shall be authorized to act on behalf and subject to the
direction of the Trustee to authenticate Securities of such series issued upon
exchange, registration of transfer or partial redemption thereof and to cancel
Securities pursuant to Section 309, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee hereunder. The Trustee hereby
initially appoints the Idaho First National Bank as an Authenticating Agent in
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Boise, Idaho. Wherever reference is made in this Indenture to the authentication
and delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall at all
times be a corporation organized and doing business under the laws of the United
States of America, any state thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $50,000,000 and subject to supervision or examination
by federal, state or District of Columbia authority. If such Authenticating
Agent publishes reports of condition at least annually, pursuant to law or to
the requirements of said supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or case at any time such Authenticating
Agent shall cease to be eligible in accordance with the provisions of this
Section, the Trustee may appoint a successor Authenticating Agent which shall be
acceptable to the Company and shall mail or cause to be mailed written notice of
such appointment by first-class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
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The Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payments, subject to the provisions
of Section 607.
While an appointment with respect to one or more series is in effect
pursuant to this Section, the Securities of such series may have endorsed
thereon an alternate certificate of authentication in the following form:
This is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
----------------------------
, as Trustee
By
----------------------------
AUTHORIZED OFFICER
OR
[_________________________], as
Authenticating Agent for the Trustee
By
----------------------------
AUTHORIZED OFFICER
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
The Company will furnish or cause to be furnished to the Trustee
(a) not later than 15 days after each Regular Record Date, in
the case of Securities that are interest bearing, and on each date
determined pursuant to Section 301 in the case of Securities that are
not interest bearing, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders of the Securities as
of such Regular Record Date or as of such other date, as the case may
be, and
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(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished;
EXCLUDING from any such list names and addresses received by the Trustee in its
capacity as Security Registrar, if so acting.
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders of each
series of Securities contained in the most recent list furnished to the
Trustee as provided in Section 701 and the names and addresses of
Holders received by the Trustee in its capacity as Security Registrar,
if so acting. The Trustee may destroy any list furnished to it as
provided in Section 701 upon receipt of a new list so furnished.
(b) If three or more Holders (herein referred to as
"applicants") apply in writing to the Trustee, and furnish to the
Trustee reasonable proof that each such applicant has owned a Security
for a period of at least six months preceding the date of such
application, and such application states that the applicants desire to
communicate with other Holders with respect to their rights under this
Indenture or under the Securities and is accompanied by a copy of the
form of proxy or other communication which such applicants propose to
transmit, then the Trustee shall, within five business days after the
receipt of such application, at its election, either
(i) afford such applicants access to the information
preserved at the time by the Trustee in accordance with Section
702(a), or
(ii) inform such applicants as to the approximate number
of Holders whose names and addresses appear in the information
preserved at the time by the Trustee in accordance with Section
702(a), and as to the approximate cost of mailing to such
Holders the form of proxy or other communication, if any,
specified in such application.
If the Trustee shall elect not to afford such applicants access
to such information, the Trustee shall, upon the written request of such
applicants, mail, or cause to be mailed, to each Holder whose name and
address appear in the information preserved at the time by the Trustee
in accordance with Section 702(a) a copy of the form of proxy or other
communication which is specified in such request, with reasonable
promptness after a tender to the Trustee of the material to be mailed
and of payment, or provision for the payment, of the reasonable expenses
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of mailing, unless within five days after such tender the Trustee shall
mail, or cause to be mailed, to such applicants and file with the
Commission, together with a copy of the material to be mailed, a written
statement to the effect that, in the opinion of the Trustee, such
mailing would be contrary to the best interest of the Holders or would
be in violation of applicable law. Such written statement shall specify
the basis of such opinion. If the Commission, after opportunity for a
hearing upon the objections specified in the written statement so filed,
shall enter an order refusing to sustain any of such objections or if,
after the entry of an order sustaining one or more of such objections,
the Commission shall find, after notice and opportunity for hearing,
that all the objections so sustained have been met and shall enter an
order so declaring, the Trustee shall mail, or cause to be mailed,
copies of such material to all such Holders 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) Every Holder by receiving and holding the same, agrees with
the Company and the Trustee that neither the Company nor the Trustee nor
any agent of either of them shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the
Holders in accordance with Section 702(b), regardless of the source from
which such information was derived, and that the Trustee shall not be
held accountable by reason of mailing any material pursuant to a request
made under Section 702(b).
SECTION 703. REPORTS BY TRUSTEE.
(a) Within 60 days after May 15 of each year commencing with the
year [____], the Trustee shall transmit by mail to all Holders, as their
names and addresses appear in the Security Register, a brief report
dated as of such date with respect to:
(1) its eligibility under Section 609 and its
qualifications under Section 608, or in lieu thereof, if to the
best of its knowledge it has continued to be eligible and
qualified under said Sections, a written statement to such
effect;
(2) 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 asserts or may assert a claim or charge, prior to that
of the Securities, on any property or funds held or collected by
it as Trustee, except that the Trustee shall not be required
(but may elect) to report such advances if such advances so
remaining unpaid
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aggregate not more than 1/2 of 1% of the principal amount of the
Securities Outstanding on the date of such report;
(3) the amount, interest rate and maturity date of all
other indebtedness owing by the Company (or by any other obligor
on the Securities) to the Trustee in its individual capacity, on
the date of such report, with a brief description of any
property held as collateral security therefor, except an
indebtedness based upon a creditor relationship arising in any
manner described in Section 613(b)(2), (3), (4) or (6);
(4) the property and funds, if any, physically in the
possession of the Trustee as such on the date of such report;
(5) any additional issue of Securities which the Trustee
has not previously reported; and
(6) any action taken by the Trustee in the performance
of its duties hereunder which it has not previously reported and
which in its opinion materially affects the Securities, except
action in respect of a default, notice of which has been or is
to be withheld by the Trustee in accordance with Section 602.
(b) The Trustee shall transmit, or cause to be transmitted, by
mail to all Holders, as their names and addresses appear in the Security
Register, a brief report with respect to the character and amount of any
advances (and if the Trustee elects so to state, the circumstances
surrounding the making thereof) made by the Trustee (as such) since the
date of the last report transmitted pursuant to Subsection (a) of this
Section (or if no such report has yet been so transmitted, since the
date of execution of this instrument) for the reimbursement of which it
asserts or may assert a claim or charge, prior to that of the
Securities, on property or funds held or collected by it as Trustee and
which it has not previously reported pursuant to this Subsection, except
that the Trustee shall not be required (but may elect) to report such
advances if such advances remaining unpaid at any time aggregate 10% or
less of the principal amount of the Securities Outstanding at such time,
such report to be transmitted within 90 days after such time.
(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock
exchange upon which any Securities are listed, with the Commission and
with the Company. The Company will notify the Trustee when any
Securities are listed on any stock exchange.
SECTION 704. REPORTS BY COMPANY.
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The Company shall:
(1 ) 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
said Sections, then it shall 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;
(2) file with the Trustee and the Commission, in accordance with
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 of this
Indenture as may be required from time to time by such rules and
regulations; and
(3) transmit by mail to all Holders, as their names and
addresses appear in the Security Register, within 30 days after the
filing thereof with the Trustee, such summaries of any information,
documents and reports required to be filed by the Company pursuant to
paragraphs (1) and (2) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge into any other
corporation or convey or transfer its properties and assets substantially as an
entirety to any Person unless:
(1) the corporation formed by such consolidation or into which
the Company is merged or the Person which acquires by conveyance or
transfer the
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properties and assets of the Company substantially as an entirety shall
be a corporation organized and existing under the laws of the United
States of America, any state thereof or the District of Columbia, and
shall expressly assume, by an indenture supplemental hereto, executed
and delivered to the Trustee, in form satisfactory to the Trustee, the
due and punctual payment of the principal of (and premium, if any, on)
and interest on all the Securities and the performance of every covenant
of this Indenture on the part of the Company to be performed or
observed;
(2) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time, or
both, would become an Event of Default, shall have happened and be
continuing; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance or transfer and such supplemental
indenture comply with this Article and that all conditions precedent
herein provided for relating to such transaction have been complied
with.
SECTION 802. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger by the Company with or into any other
corporation, or any conveyance or transfer by the Company of its properties and
assets substantially as an entirety to any Person in accordance with Section
801, the successor corporation formed by such consolidation or into which the
Company is merged or to which such conveyance or transfer is made shall succeed
to, and be substituted for, and may exercise every right and power of, the
Company under this Indenture with the same effect as if such successor
corporation had been named as the Company herein; and in the event of any such
conveyance or transfer, the Company (which term shall for this purpose mean the
Person named as the "Company" in the first paragraph of this Indenture or any
successor corporation which shall theretofore become such in the manner
described in Section 801) shall be discharged from all obligations and covenants
under the Indenture and the Securities and may be dissolved and liquidated.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto for any of the following
purposes:
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(1) to evidence the succession of another corporation to the
Company and the assumption by any such successor of the covenants of the
Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such covenants
are to be for the benefit of less than all series of Securities, stating
that such covenants are expressly being included solely for the benefit
of such series) or to surrender any right or power herein conferred upon
the Company; or
(3) to add an additional Event of Default with respect to all
Securities or any series of Securities (and if such Event of Default is
applicable to less than all series of Securities, stating that such
Event of Default is applicable solely to such series); or
(4) to add to or change any of the provisions of this Indenture
to such extent as shall be necessary to permit or facilitate the
issuance of Securities in bearer form, registrable or not registrable as
to principal, and with or without interest coupons; or
(5) to change or eliminate any of the provisions of this
Indenture, PROVIDED that any such change or elimination shall become
effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture which is
entitled to the benefit of such provision; or
(6) to establish the form or terms of Securities of any series
as permitted by Sections 201 and 301; or
(7) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided such action shall not
adversely affect the interests of the Holders of Securities of any
series in any material respect.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than 66 2/3% in aggregate
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or
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changing in any manner or eliminating any of the provisions of this Indenture or
of modifying in any manner the rights of the Holders of Securities of such
series under this Indenture; PROVIDED, HOWEVER, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding Security
affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of the principal of or interest on, any Security, or reduce
the principal amount thereof or the rate of interest thereon or any
premium payable upon the redemption thereof, or change any Place of
Payment where, or the coin or currency in which, any Security or any
premium or the interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or reduce the amount of the principal of an Original
Issue Discount Security that would be due and payable upon a declaration
of acceleration of the Maturity thereof pursuant to Section 502, or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences) provided
for in this Indenture, or
(3) modify any of the provisions of this Section or Sections 513
or 1006, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the 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 any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be
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fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture and that such supplemental indenture, when executed and delivered by
the Company, will constitute a valid and binding obligation of the Company in
accordance with its terms. The Trustee may, but shall not be obligated to, enter
into any such supplemental indenture which affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise.
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities of each series affected thereby theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the execution
of any supplemental indenture pursuant to this Article may, and shall if
required by the Trustee, bear a notation in form approved by the Trustee as to
any matter provided for in such supplemental indenture. If the Company shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series without charge to
the Holders.
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest on the Securities of that series in accordance with the
terms of the Securities and this Indenture.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
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The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served. The Company will give prompt written notice to the Trustee of the
location and any change in the location of any such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands.
Until changed by the Company in accordance with this Indenture, the
Company will maintain a Place of Payment at the Corporate Trust Office.
The Company may also from time to time designate one or more other
offices or agencies in or outside any Place of Payment where the Securities of
one or more series may be presented or surrendered for any or all such purposes
and may from time to time rescind such designations; PROVIDED, HOWEVER, that no
such designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in each Place of Payment for
Securities of any series for such purposes. The Company will give prompt written
notice to the Trustee of any such designation or rescission and of any change in
the location of any such other office or agency. The office of the Company in
Boise, Idaho, is hereby initially designated as such an office.
SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal (and premium, if any) or interest
so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee of its
failure so to act.
Whenever the Company shall have one or more Paying Agents for any series
of Securities, it will, prior to each due date of the principal of (and premium,
if any) or interest on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay the principal (and premium, if any) or interest so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and
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(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of
(and premium, if any) or interest on Securities of that series in trust
for the benefit of the Persons entitled thereto until such sums shall be
paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of that series) in the making of
any payment of principal (and premium, if any) or interest on the
Securities of that series; and
(3) at any time during the continuance of any such default, upon
the written request of the Trustee, forthwith pay to the Trustee all
sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium, if
any) or interest on any Security of any series and remaining unclaimed for three
years after such principal (and premium, if any) or interest has become due and
payable shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; PROVIDED, HOWEVER, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in the Borough of Manhattan, in The City of New York, New York,
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days
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from the date of such publication, any unclaimed balance of such money then
remaining will be repaid to the Company.
SECTION 1004. STATEMENT AS TO COMPLIANCE.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year, a written statement signed by the Chairman of the Board,
the President or a Vice President and by the Treasurer, an Assistant Treasurer,
the Controller or an Assistant Controller of the Company, stating, as to each
signer thereof, that:
(1) a review of the activities of the Company during such year
and of performance under this Indenture has been made under his
supervision, and
(2) to the best of his knowledge, based on such review, the
Company is not in default in the fulfillment of any of its obligations
under this Indenture, or specifying each such default known to him and
the nature and status thereof.
SECTION 1005. CORPORATE EXISTENCE.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence.
SECTION 1006. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with any term,
provision or condition set forth in Sections 1002 to 1005, inclusive, with
respect to the Securities of any series, if before the time for such compliance
the Holders of at least a majority in principal amount of the Outstanding
Securities of such series shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such term,
provision or condition, but no such waiver shall extend to or affect such term,
provision or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such term, provision or condition shall remain in
full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE.
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Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated in Section 301 for Securities of any series)
in accordance with this Article.
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
In case of any redemption at the election of the Company of less than
all the Securities of any series, the Company shall, at least 60 days prior to
the Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and of
the principal amount of Securities of such series to be redeemed. In the case of
any redemption of Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restrictions.
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected prior to the Redemption
Date by the Trustee or the Security Registrar with the approval of the Trustee,
from the Outstanding Securities of such series not previously called for
redemption, by such method as the Trustee or the Security Registrar shall deem
fair and appropriate and which may provide for the selection for redemption of
portions (equal to the minimum authorized denomination for Securities of that
series or any integral multiple thereof) of the principal amount of Securities
of such series of a denomination larger than the minimum authorized denomination
for Securities of that series.
The party selecting the Securities to be redeemed shall promptly notify
the parties to this Indenture in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial redemption,
the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
Section 1104. NOTICE OF REDEMPTION.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
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All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price and accrued interest, if any, to the
Redemption Date,
(3) if less than all the Outstanding Securities of any series
are to be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Securities to be
redeemed,
(4) that on the Redemption Date the Redemption Price and accrued
interest will become due and payable upon each such Security to be
redeemed and, if applicable, that interest thereon will cease to accrue
on and after said date,
(5) the place or places where such Securities are to be
surrendered for payment of the Redemption Price and accrued interest,
and
(6) that the redemption is for a sinking fund, if such is the
case.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
Any notice which is mailed in the manner herein provided shall be
presumed conclusively to have been duly given, whether or not the Holder
receives such notice; and failure duly to give such notice by mail, or any
defect in such notice, to the Holder of any Security designated for redemption
as a whole or in part shall not affect the validity of the proceedings for the
redemption of any other Security.
SECTION 1105. DEPOSIT OF REDEMPTION PRICE.
Prior to the opening of business on any Redemption Date, the Company
shall deposit with the Trustee or with a Paying Agent (or, if the Company is
acting as its own Paying Agent, segregate and hold in trust as provided in
Section 1003) an amount of money sufficient to pay the Redemption Price of, and
(except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, all the Securities which are to be redeemed on that date. In the
event of any failure on the part of the Company to deposit such money prior to
any Redemption Date, the Trustee shall not use any monies or U.S. Government
Obligations deposited with it pursuant to Sections 401 or 402 for the payment of
any Redemption Price, unless originally deposited for such purpose.
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SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified plus accrued interest, and from and after
such date (unless the Company shall default in the payment of the Redemption
Price and accrued interest) such Securities-shall cease to bear interest. Upon
surrender of any such Security for redemption in accordance with said notice,
such Security shall be paid by the Company at the Redemption Price, together
with accrued interest to the Redemption Date; PROVIDED, HOWEVER, that
installments of interest whose Stated Maturity is on or prior to the Redemption
Date shall be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on the
relevant Regular Record Date or Special Record Date according to their terms and
the provisions of Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
SECTION 1107. SECURITIES REDEEMED IN PART.
Any Security which is to be redeemed only in part shall be surrendered
at a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company, the Trustee and the Security Registrar duly executed by, the Holder
thereof or his attorney duly authorized in writing), and the Company shall
execute, and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Security or Securities of the same
series, of any authorized denomination as requested by such Holder, in aggregate
principal amount equal to and in exchange for the unredeemed portion of the
principal of the Security so surrendered; PROVIDED, that if a Global Security is
so surrendered, such new Security so issued shall be a new Global Security in a
denomination equal to the unredeemed portion of the principal of the Global
Security so surrendered.
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ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms
of Securities of any series is herein referred to as a "mandatory sinking fund
payment," and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "optional sinking
fund payment." If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 1202. Each sinking fund payment shall be applied to the redemption of
Securities of any series as provided for by the terms of Securities of such
series.
Section 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; PROVIDED that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 90 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 1202 and will also deliver to the Trustee any Securities to
be so delivered. Not less than 60 days before each such sinking fund payment
date the Trustee shall select or cause to be selected the Securities to be
redeemed upon
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such sinking fund payment date in the manner specified in Section 1103 and not
less than 30 days before each sinking fund payment date cause notice of the
redemption thereof to be given in the name of and at the expense of the Company
in the manner provided in Section 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
SUBORDINATION OF SECURITIES
SECTION 1301. SECURITIES SUBORDINATE TO SENIOR INDEBTEDNESS.
The Company covenants and agrees, and each Holder of a Security, by its
acceptance thereof, likewise covenants and agrees, that, to the extent and in
the manner hereinafter set forth in this Article, the payment of the principal
of (and premium, if any) and interest on each and all of the Securities are
hereby expressly made subordinate and subject in right of payment to the prior
payment in full of all Senior Indebtedness (whether outstanding on the date
hereof or hereafter created, incurred, assumed or guaranteed), and that the
subordination is for the benefit of the holders of Senior Indebtedness and that
no payment on account of principal of, premium, if any, or interest on the
Securities and no acquisition of, or payment on account of any sinking fund for,
the Securities may be made unless full payment of all amounts then due for
principal, premium, if any, and interest then due on all Senior Indebtedness by
reason of the maturity thereof (by lapse of time, acceleration or otherwise) has
been made or duly provided for in cash or in a manner satisfactory to the
holders of such Senior Indebtedness.
SECTION 1302. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.
Upon any distribution of the Company's assets in connection with any
dissolution, winding up, liquidation or reorganization of the Company, whether
voluntary or involuntary, in bankruptcy, insolvency or receivership proceedings
(each such event, if any, herein sometimes referred to as a "Proceeding"), or
upon an assignment for the benefit of creditors or otherwise: (i) all Senior
Indebtedness (including without limitation all interest accruing on or after the
filing of any petition in bankruptcy relating to the Company at the relevant
contractual rate, whether or not such claim for post-petition interest is
allowed in such Proceeding) must be paid in full in cash before the Holders of
the Securities are entitled to any payments or distributions of any kind or
character (including any payment or distribution which may be payable or
deliverable by reason of the payment of any other Debt of the Company (including
the Securities) subordinated to the payment of the Securities), and (ii) any
payment or distribution of the Company's assets of any kind or character,
whether in cash, securities or other property, which would otherwise (but for
these subordination provisions) be payable or deliverable in respect of the
Securities shall be paid or delivered directly to the holders of such Senior
Indebtedness
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(or their representative or trustee) in accordance with the priorities then
existing among such holders until all Senior Indebtedness shall have been paid
in full in cash before any payment or distribution is made to the Holders of the
Securities.
In the event that notwithstanding the subordination provisions set forth
herein, any payment or distribution of assets of any kind or character is made
on the Securities at a time when the respective payment is not permitted to be
made as a result of the subordination provisions described above and before all
Senior Indebtedness is paid in full in cash, the Trustee or the holders of the
Securities receiving such payment will be required to pay over such payment or
distribution to the holders of such Senior Indebtedness.
For the purposes of this Article only, the words "any payment or
distribution of any kind or character" shall not be deemed to include shares of
stock of the Company as reorganized or readjusted, or securities of the Company
or any other corporation provided for by a plan of reorganization or
readjustment which securities are subordinated in right of payment to all then
outstanding Senior Indebtedness to substantially the same extent as the
Securities are so subordinated as provided in this Article. The consolidation of
the Company with, or the merger of the Company into, another Person or the
liquidation or dissolution of the Company following the sale of all or
substantially all of its properties and assets as an entirety to another Person
upon the terms and conditions set forth in Article 8 shall not be deemed a
Proceeding for the purposes of this Section if the Person formed by such
consolidation or into which the Company is merged or the Person which acquires
by sale such properties and assets as an entirety, as the case may be, shall, as
a part of such consolidation, merger, or sale comply with the conditions set
forth in Article Eight.
SECTION 1303. PAYMENT BLOCKAGE UPON ACCELERATION OF SENIOR INDEBTEDNESS, ETC.
During the continuance of any event of default with respect to any
Senior Indebtedness pursuant to which the maturity thereof may be accelerated,
upon the occurrence of (a) receipt by the Trustee of written notice from the
holders of a majority of the outstanding principal amount of the Senior
Indebtedness or their representative, or (b) if such event of default results
from the acceleration of the Securities, the date of such acceleration, no such
payment may be made by the Company upon or in respect of the Securities for a
period ("Payment Blockage Period") commencing on the earlier of the date of
receipt of such notice or the date of such acceleration and ending 179 days
thereafter (unless such Payment Blockage Period shall be terminated by written
notice to the Trustee from the holders of a majority of the outstanding
principal amount of such Senior Indebtedness or their representative who
delivered such notice); provided, however, that notwithstanding anything herein
to the
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contrary, in no event will a Payment Blockage Period extend beyond 179 days from
the date on which such Payment Blockage Period was commenced; provided further,
that not more than one Payment Blockage Period may be commenced with respect to
the Securities during any period of 360 consecutive days. For all purposes of
this Section, no event of default which existed or was continuing on the date of
the commencement of any Payment Blockage Period with respect to the Senior
Indebtedness initiating such Payment Blockage Period shall be, or be made, the
basis for the commencement of a second Payment Blockage Period by the holders of
such Senior Indebtedness or their representative whether or not within a period
of 360 consecutive days unless such event of default shall have been cured or
waived for a period of not less than 90 consecutive days.
In the event that, notwithstanding the foregoing, the Company shall make
any payment to the Trustee or any Holder of the Securities prohibited by the
foregoing provisions of this Section, and if such fact shall, at or prior to the
time of such payment, have been made known, as set forth in Section 1310, to the
Trustee or, as the case may be, such Holder, then and in such event such payment
shall be paid over and delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment with
respect to which Section 1302 would be applicable.
SECTION 1304. NO PAYMENT WHEN SENIOR INDEBTEDNESS IN DEFAULT.
In the event and during the continuation of any default in the payment
of principal of (or premium, if any) or interest on, or any other amounts owing
with respect to, any Senior Indebtedness when the same becomes due and payable
or in the event any judicial proceeding shall be pending with respect to any
such default, then, unless and until such default shall have been cured or
waived or shall have ceased to exist, no payment or distribution of any kind or
character, whether in cash, properties or Securities shall be made by the
Company on account of principal of (or premium, if any) or interest, if any, on
the Securities or on account of the purchase or other acquisition of Securities
by the Company or any Subsidiary.
The Company shall give prompt written notice to the Trustee of any
default in payment of principal of or interest on any Senior Indebtedness;
provided that no failure to give such a notice shall have any effect whatsoever
on the subordination provisions described herein.
In the event that, notwithstanding the foregoing, the Company shall make
any payment to the Trustee or the Holder of the Securities prohibited by the
foregoing provisions of this Section, and if such fact shall, at or prior to the
time of such payment, have been made known as set forth in Section 1310, to the
Trustee or, as the case may
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be, such Holder, then and in such event such payment shall be paid over and
delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment with
respect to which Section 1302 would be applicable.
SECTION 1305. PAYMENT PERMITTED IF NO DEFAULT.
Nothing contained in this Article or elsewhere in this Indenture or in
any of the Securities shall prevent (a) the Company, at any time except during
the pendency of any Proceeding referred to in Section 1302 or under the
conditions described in Sections 1303 and 1304, from making payments at any time
of principal of (and premium, if any) or interest on the Securities, or (b)
except with respect to the payment over provisions of this Article, the
application by the Trustee of any money deposited with it hereunder to the
payment of or on account of the principal of (and premium, if any) or interest
on the Securities or the retention of such payment by the Holders, if, at the
time of such application by the Trustee, the Trustee did not have knowledge that
such payment would have been prohibited by the provisions of this Article.
SECTION 1306. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS.
Subject to the payment in full of all Senior Indebtedness, or the
provision for such payment in cash or cash equivalents or otherwise in a manner
satisfactory to the holders of Senior Indebtedness, the Holders of the
Securities shall be subrogated to the extent of the payments or distributions
made to the holders of such Senior Indebtedness pursuant to the provisions of
this Article (equally and ratably with the holders of all indebtedness of the
Company which by its express terms is subordinated to Senior Indebtedness of the
Company to substantially the same extent as the Securities are subordinated to
the Senior Indebtedness and is entitled to like rights of subrogation by reason
of any payments or distributions made to holders of such Senior Indebtedness) to
the rights of the holders of such Senior Indebtedness to receive payments and
distributions of cash, property and securities applicable to the Senior
Indebtedness until the principal of (and premium, if any) and interest on the
Securities shall be paid in full. For purposes of such subrogation, no payments
or distributions to the holders of the Senior Indebtedness of any cash, property
or securities to which the Holders of the Securities or the Trustee would be
entitled except for the provisions of this Article, and no payments pursuant to
the provisions of this Article to the holders of Senior Indebtedness by Holders
of the Securities or the Trustee, shall, as among the Company, its creditors
other than holders of Senior Indebtedness, and the Holders of the Securities, be
deemed to be a payment or distribution by the Company to or on account of the
Senior Indebtedness.
SECTION 1307. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS.
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The provisions of this Article are and are intended solely for the
purpose of defining the relative rights of the Holders of the Securities on the
one hand and the holders of Senior Indebtedness on the other hand. Nothing
contained in this Article or elsewhere in this Indenture or in the Securities is
intended to or shall (a) impair, as between the Company and the Holders of the
Securities, the obligations of the Company, which are absolute and
unconditional, to pay to the Holders of the Securities the principal of (and
premium, if any) and interest on the Securities as and when the same shall
become due and payable in accordance with their terms, or (b) affect the
relative rights against the Company of the Holders of the Securities and
creditors of the Company other than their rights in relation to the holders of
Senior Indebtedness, or (c) prevent the Trustee or the Holder of any Security
from exercising all remedies otherwise permitted by applicable law upon default
under this Indenture including, without limitation, filing and voting claims in
any Proceeding, subject to the rights, if any, under this Article of the holders
of Senior Indebtedness to receive cash, property and securities otherwise
payable or deliverable to the Trustee or such Holder.
SECTION 1308. TRUSTEE TO EFFECTUATE SUBORDINATION.
Each Holder of a Security by his or her acceptance thereof authorizes
and directs the Trustee on his or her behalf to take such action as may be
necessary or appropriate to acknowledge or effectuate the subordination provided
in this Article and appoints the Trustee his or her attorney-in-fact for any and
all such purposes.
SECTION 1309. NO WAIVER OF SUBORDINATION PROVISIONS.
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof that any such holder may have or
be otherwise charged with.
SECTION 1310. NOTICE TO TRUSTEE.
The Company shall give prompt written notice to the Trustee of any fact
known to the Company which would prohibit the making of any payment to or by the
Trustee in respect of the Securities. Notwithstanding the provisions of this
Article or any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Trustee in respect of the Securities, unless
and until the Trustee shall have received written
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notice thereof from the Company or a person representing itself as a holder of
Senior Indebtedness or from any trustee, agent or representative therefor.
SECTION 1311. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING AGENT.
Upon any payment or distribution of assets of the Company referred to in
this Article, the Trustee, subject to the provisions of Article 6, and the
Holders of the Securities shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in which a Proceeding is pending,
or a certificate of the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee for the benefit of creditors, agent or other Person making
such payment or distribution, delivered to the Trustee or to the Holders of
Securities, for the purpose of ascertaining the Persons entitled to participate
in such payment or distribution, the holders of the Senior Indebtedness and
other indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article.
SECTION 1312. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR INDEBTEDNESS.
The Trustee, in its capacity as trustee under this Indenture, shall not
be deemed to owe any fiduciary duty to the holders of Senior Indebtedness and,
subject to the provisions of Section 6, shall not be liable to the holder of any
Senior Indebtedness if it shall pay over or deliver to Holders, the Company, or
any other Person, cash, property or securities to which any holder of Senior
Indebtedness shall be entitled to by virtue of this Article or otherwise.
SECTION 1313. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS; PRESERVATION
OF TRUSTEE'S RIGHTS.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article with respect to any Senior Indebtedness which
may at any time be held by it, to the same extent as any other holder of Senior
Indebtedness, and, subject to the requirements of the Trust Indenture Act,
nothing in this Indenture shall deprive the Trustee of any of its rights as such
holder.
SECTION 1314. ARTICLE APPLICABLE TO PAYING AGENTS.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article shall in such case (unless the context otherwise
requires) be construed as extending to and including such Paying Agent within
its meaning as fully for all intent and purposes as if such Paying Agent were
named in this Article in addition to or in place of the Trustee.
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* * *
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
BOISE CASCADE CORPORATION
By
---------------------------------------
TREASURER
[SEAL]
Attest:
- --------------------------------
ASSISTANT SECRETARY
Assistant Secretary
[NAME OF TRUSTEE]
By
---------------------------------------
VICE PRESIDENT
[SEAL]
Attest:
- --------------------------------
ASSISTANT SECRETARY
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STATE OF IDAHO )
) ss.:
COUNTY OF ADA )
On the day of , [1999], before me personally came
to me known, who, being by me duly sworn, did depose and say that he is ,
Treasurer of Boise Cascade Corporation one of the corporations described in and
which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
----------------------------------------
NOTARY PUBLIC
STATE OF IDAHO
State of New York )
) ss.:
COUNTY OF NEW YORK )
On the day of , [1999], before me personally
came to me known, who, being by me duly sworn, did depose and say that
he is a Vice President of ____________________________, one of the corporations
described in and which executed the foregoing instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
----------------------------------------
NOTARY PUBLIC
STATE OF NEW YORK
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