Exhibit 4.5
THE STANLEY WORKS,
Issuer
AND
HSBC BANK USA, NATIONAL ASSOCIATION,
Trustee
INDENTURE
Dated as of November 22, 2005
Junior Subordinated Debt Securities
CROSS-REFERENCE TABLE*
Section of Trust Indenture Section of
Act of 1939, as amended Indenture
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310(a) 7.09
310(b) 7.08
7.10
310(c) Inapplicable
311(a) 7.13(a)
311(b) 7.13(b)
311(c) Inapplicable
312(a) 5.01
5.02(a)
312(b) 5.02(b)
312(c) 5.02(c)
313(a) 5.04(a)
313(b) 5.04(b)
313(c) 5.04(a)
5.04(b)
313(d) 5.04(c)
314(a) 5.03
314(b) Inapplicable
314(c) 13.06
314(d) Inapplicable
314(e) 13.06
314(f) Inapplicable
315(a) 7.01(a)
7.02
315(b) 6.07
315(c) 7.01
315(d) 7.01(b)
7.01(c)
315(e) 6.07
316(a) 6.06
8.04
316(b) 6.04
316(c) 8.01
317(a) 6.02
317(b) 4.03
318(a) 13.08
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* This Cross-Reference Table does not constitute part of the Indenture and
shall not have any bearing on the interpretation of any of its terms or
provisions.
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions of Terms.............................................................1
ARTICLE II
ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION
AND EXCHANGE OF DEBT SECURITIES
SECTION 2.01. Designation and Terms of Debt Securities.........................................8
SECTION 2.02. Form of Debt Securities and Trustee's Certificate................................9
SECTION 2.03. Denominations; Provisions for Payment...........................................10
SECTION 2.04. Execution and Authentication....................................................12
SECTION 2.05. Registration of Transfer and Exchange...........................................12
SECTION 2.06. Temporary Securities............................................................13
SECTION 2.07. Mutilated, Destroyed, Lost or Stolen Debt Securities............................14
SECTION 2.08. Cancellation....................................................................15
SECTION 2.09. Benefits of Indenture...........................................................15
SECTION 2.10. Authenticating Agent............................................................15
SECTION 2.11. Global Securities...............................................................16
ARTICLE III
REDEMPTION OF DEBT SECURITIES AND SINKING FUND PROVISIONS
SECTION 3.01. Redemption......................................................................18
SECTION 3.02. Notice of Redemption............................................................18
SECTION 3.03. Payment Upon Redemption.........................................................19
SECTION 3.04. Sinking Fund....................................................................19
SECTION 3.05. Satisfaction of Sinking Fund Payments with Debt Securities......................20
SECTION 3.06. Redemption of Debt Securities for Sinking Fund..................................20
ARTICLE IV
COVENANTS OF THE COMPANY
SECTION 4.01. Payment of Principal, Premium and Interest......................................21
SECTION 4.02. Maintenance of Office or Agency.................................................21
SECTION 4.03. Paying Agents...................................................................21
SECTION 4.04. Appointment to Fill Vacancy in Office of Trustee................................22
SECTION 4.05. Limitation on Dividends; Transactions with Affiliates...........................22
SECTION 4.06. Covenants as to Capital Trust...................................................23
SECTION 4.07. Corporate Existence.............................................................24
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ARTICLE V
SECURITYHOLDERS, LISTS AND REPORTS BY THE
COMPANY AND THE TRUSTEE
SECTION 5.01. Company to Furnish Trustee Names and Addresses of Securityholders...............25
SECTION 5.02. Preservation of Information; Communications with Securityholders................25
SECTION 5.03. Reports by the Company..........................................................25
SECTION 5.04. Reports by the Trustee..........................................................26
ARTICLE VI
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 6.01. Events of Default...............................................................27
SECTION 6.02. Collection of Indebtedness and Suits for Enforcement by Trustee.................29
SECTION 6.03. Application of Moneys Collected.................................................31
SECTION 6.04. Limitation on Suits.............................................................31
SECTION 6.05. Rights and Remedies Cumulative; Delay or Omission not Waiver....................32
SECTION 6.06. Control by Securityholders......................................................32
SECTION 6.07. Undertaking to Pay Costs........................................................33
SECTION 6.08. Notice of Defaults..............................................................34
ARTICLE VII
CONCERNING THE TRUSTEE
SECTION 7.01. Certain Duties and Responsibilities of Trustee..................................35
SECTION 7.02. Certain Rights of Trustee.......................................................36
SECTION 7.03. Trustee Not Responsible for Recitals or Issuance of Debt Securities.............38
SECTION 7.04. May Hold Debt Securities........................................................38
SECTION 7.05. Moneys Held in Trust............................................................38
SECTION 7.06. Compensation and Reimbursement..................................................38
SECTION 7.07. Reliance on Officers' Certificate...............................................39
SECTION 7.08. Qualification; Conflicting Interests............................................39
SECTION 7.09. Corporate Trustee Required; Eligibility.........................................39
SECTION 7.10. Resignation and Removal; Appointment of Successor...............................40
SECTION 7.11. Acceptance of Appointment by Successor..........................................41
SECTION 7.12. Merger, Conversion, Consolidation or Succession to Business.....................42
SECTION 7.13. Preferential Collection of Claims Against the Company...........................43
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ARTICLE VIII
CONCERNING THE SECURITYHOLDERS
SECTION 8.01. Evidence of Action by Securityholders...........................................44
SECTION 8.02. Proof of Execution by Securityholders...........................................44
SECTION 8.03. Who May be Deemed Owners........................................................45
SECTION 8.04. Certain Debt Securities Owned by Company Disregarded............................45
SECTION 8.05. Actions Binding on Future Securityholders.......................................45
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without the Consent of Securityholders..................47
SECTION 9.02. Supplemental Indentures with Consent of Securityholders.........................48
SECTION 9.03. Effect of Supplemental Indentures...............................................48
SECTION 9.04. Debt Securities Affected by Supplemental Indentures.............................48
SECTION 9.05. Execution of Supplemental Indentures............................................49
ARTICLE X
SUCCESSOR CORPORATION
SECTION 10.01. Company may Consolidate, Reincorporate, Etc. on Certain Conditions..............50
SECTION 10.02. Successor Corporation Substituted...............................................50
SECTION 10.03. Obligations in the Event of Non-U.S. Merger.....................................51
ARTICLE XI
SATISFACTION, DEFEASANCE AND DISCHARGE
SECTION 11.01. Satisfaction and Discharge......................................................53
SECTION 11.02. Defeasance and Discharge........................................................53
SECTION 11.03. Covenant Defeasance.............................................................54
SECTION 11.04. Deposited Moneys to be Held in Trust............................................55
SECTION 11.05. Payment of Moneys Held by Paying Agents.........................................55
SECTION 11.06. Repayment to Company............................................................55
SECTION 11.07. Reinstatement...................................................................55
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.01. No Recourse.....................................................................57
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ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01. Effect on Successors and Assigns................................................58
SECTION 13.02. Actions by Successor............................................................58
SECTION 13.03. Surrender of Company Powers.....................................................58
SECTION 13.04. Notices.........................................................................58
SECTION 13.05. Governing Law...................................................................58
SECTION 13.06. Treatment of the Debt Securities as Debt........................................58
SECTION 13.07. Compliance Certificates and Opinions............................................58
SECTION 13.08. Payments on Business Days.......................................................59
SECTION 13.09. Conflict with Trust Indenture Act...............................................59
SECTION 13.10. Counterparts....................................................................59
SECTION 13.11. Separability....................................................................59
SECTION 13.12. Assignment......................................................................59
SECTION 13.13. Acknowledgment of Rights........................................................60
ARTICLE XIV
SUBORDINATION OF DEBT SECURITIES
SECTION 14.01. Subordination Terms.............................................................61
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THIS INDENTURE, dated as of November 22, 2005, between THE STANLEY
WORKS, a Connecticut corporation (the "Company") and HSBC BANK USA, NATIONAL
ASSOCIATION, a national banking association, not in its individual capacity but
solely as trustee (the "Trustee"):
W I T N E S S E T H:
WHEREAS, for its lawful corporate purposes, the Company has duly
authorized the execution and delivery of this Indenture to provide for the
issuance of unsecured subordinated debt securities (hereinafter referred to as
the "Debt Securities"), in an unlimited aggregate principal amount to be issued
from time to time in one or more series as in this Indenture provided, as
registered Debt Securities without coupons, to be authenticated by the
certificate of the Trustee;
WHEREAS, to provide the terms and conditions upon which the Debt
Securities are to be authenticated, issued and delivered, the Company has duly
authorized the execution of this Indenture; and WHEREAS, all things necessary
to make this Indenture a valid agreement of the Company, in accordance with its
terms, have been done;
NOW, THEREFORE, in consideration of the premises and the purchase of
the Debt Securities by the holders thereof, it is mutually covenanted and
agreed as follows for the equal and ratable benefit of the holders of Debt
Securities:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions of Terms. The terms defined in this Section
(except as in this Indenture otherwise expressly provided or unless the context
otherwise requires) for all purposes of this Indenture and of any indenture
supplemental hereto shall have the respective meanings specified in this
Section and shall include the plural as well as the singular. All other terms
used in this Indenture that are defined in the Trust Indenture Act of 1939, as
amended, or that are by reference in such Act defined in the Securities Act of
1933, as amended (except as herein otherwise expressly provided or unless the
context otherwise requires), shall have the meanings assigned to such terms in
said Trust Indenture Act and in said Securities Act as in force at the date of
the execution of this instrument.
"Acceleration Event of Default" means, with respect to Debt Securities
of a particular series, any event specified in clauses (1) through (6) of
Section 6.01, continued for the period of time, if any, therein designated.
"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
1
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Authenticating Agent" means an authenticating agent with respect to
all or any of the series of Debt Securities appointed with respect to all or
such series of the Debt Securities by the Trustee pursuant to Section 2.10.
"Bankruptcy Law" means Title 11, United States Code, or any similar
federal or state law for the relief of debtors.
"Board of Directors" means the board of directors of the Company, or
any duly authorized committee of such board or any officer of the Company duly
authorized by the board of directors of the Company or a duly authorized
committee of that board to adopt resolutions pursuant to a resolution of the
board of directors of the Company.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification; provided that any Board Resolution that is adopted by an officer
of the Company shall be accompanied by a copy of a resolution of either the
board of directors of the Company or a duly authorized committee of that board,
certified as aforesaid, authorizing such officer to take such action.
"Business Day" means a day other than (i) a Saturday or Sunday; and
(ii) a day on which banks in Wilmington, Delaware or New York, New York are
authorized or obligated by law or executive order to remain closed.
"Capital Trust" means a Delaware business trust formed by the Company
for the purpose of purchasing Debt Securities of the Company.
"Certificate" means a certificate signed by the principal executive
officer, the principal financial officer, the treasurer or the principal
accounting officer of the Company. The Certificate need not comply with the
provisions of Section 13.07.
"Commission" means the United States Securities and Exchange
Commission.
"Common Securities" means undivided beneficial interests in the assets
of a Capital Trust, other than Preferred Securities, and which rank pari passu
with Preferred Securities issued by such trust; provided, however, that upon
the occurrence of an Acceleration Event of Default, the rights of holders of
Common Securities to payment in respect of distributions and payments upon
liquidation, redemption and maturity are subordinated to the rights of holders
of Preferred Securities.
2
"Company" means The Stanley Works, a corporation duly organized and
existing under the laws of the State of Connecticut, and, subject to the
provisions of Article X, shall also include its successors and assigns.
"Corporate Trust Office" means the office of the Trustee at which, at
any particular time, its corporate trust business shall be principally
administered, which office at the date hereof is located at 452 Fifth Avenue,
New York, New York 10018, Attention: Corporate Trust and Loan Agency.
"Covenant Event of Default" means, with respect to Debt Securities of
a particular series, any event specified in clause (7) of Section 6.01,
continued for the period of time therein designated.
"Custodian" means any receiver, trustee, assignee, liquidator, or
similar official under any Bankruptcy Law.
"Declaration" means, in respect of a Capital Trust, the amended and
restated declaration of trust of such Capital Trust or any other governing
instrument of such Trust.
"Debt Securities" means the Debt Securities authenticated and
delivered under this Indenture.
"Default" means any event, act or condition that with notice or lapse
of time, or both, would constitute an Event of Default.
"Defaulted Interest" has the meaning specified in Section 2.03.
"Depositary" means, with respect to Debt Securities of any series for
which the Company shall determine that such Debt Securities will be issued as a
Global Security, The Depository Trust Company, New York, New York, another
clearing agency, or any successor registered as a clearing agency under the
Exchange Act or other applicable statute or regulation, which, in each case,
shall be designated by the Company pursuant to either Section 2.01 or 2.11.
"Event of Default" means an Acceleration Event of Default or a
Covenant Event of Default.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Global Security" means, with respect to any series of Debt
Securities, a Debt Security executed by the Company and delivered by the
Trustee to the Depositary or pursuant to the Depositary's instruction, all in
accordance with the Indenture, which shall be registered in the name of the
Depositary or its nominee.
3
"Governmental Obligations" means securities that 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 that, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depositary receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act of 1933, as amended) as custodian with respect to any such
Governmental Obligation or a specific payment of principal of or interest on
any such Governmental Obligation held by such custodian for the account of the
holder of such depositary 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 depositary receipt from any amount received by
the custodian in respect of the Governmental Obligation or the specific payment
of principal of or interest on the Governmental Obligation evidenced by such
depositary receipt.
"Gross-Up Payment" has the meaning provided in Section 10.03.
"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.
"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 in accordance with the terms hereof.
"Interest Payment Date", when used with respect to any installment of
interest on a Debt Security of a particular series, means the date specified in
such Debt Security or in a Board Resolution or in an indenture supplemental
hereto with respect to such series as the fixed date on which an installment of
interest with respect to Debt Securities of that series is due and payable.
"Junior Securities" means with respect to a series of Debt Securities
(i) any class or series of capital stock of the Company or warrants, options or
rights (including convertible securities) to acquire capital stock of the
Company or (ii) evidence of indebtedness or other obligations of the Company
that rank junior to such series of Debt Securities.
"Non-U.S. Merger" means any transaction or series of transactions
pursuant to which the Company, directly or indirectly, consolidates with,
merges into, sells, leases or conveys all or substantially all of its
properties or assets to, or reincorporates or reorganizes into, another
corporation that is not incorporated or otherwise organized under the laws of
the United States, any state thereof or the District of Columbia.
4
"Officers' Certificate" means a certificate signed by the President or
a Vice President and by the Treasurer or an Assistant Treasurer or the
Controller or an Assistant Controller or the Secretary or an Assistant
Secretary of the Company that is delivered to the Trustee in accordance with
the terms hereof. Each such certificate shall include the statements provided
for in Section 13.07, if and to the extent required by the provisions thereof.
"Opinion of Counsel" means an opinion in writing of legal counsel, who
may be an employee of or counsel for the Company, that is delivered to the
Trustee in accordance with the terms hereof. Each such opinion shall include
the statements provided for in Section 13.07, if and to the extent required by
the provisions thereof.
"Outstanding", when used with reference to Debt Securities of any
series, means, subject to the provisions of Section 8.04, as of any particular
time, all Debt Securities of that series theretofore authenticated and
delivered by the Trustee under this Indenture, except (a) Debt Securities
theretofore canceled by the Trustee or any paying agent, or delivered to the
Trustee or any paying agent for cancellation or that have previously been
canceled; (b) Debt Securities or portions thereof for the payment or redemption
of which moneys or Governmental Obligations in the necessary amount shall have
been deposited in trust with the Trustee or with any paying agent (other than
the Company) or shall have been set aside and segregated in trust by the
Company (if the Company shall act as its own paying agent); provided, however,
that if such Debt Securities or portions of such Debt Securities are to be
redeemed prior to the maturity thereof, notice of such redemption shall have
been given as in Article III provided, or provision satisfactory to the Trustee
shall have been made for giving such notice, (c) Debt Securities in lieu of or
in substitution for which other Debt Securities shall have been authenticated
and delivered pursuant to the terms of Section 2.07; and (d) Debt Securities,
except to the extent provided in Sections 11.02 and 11.03, with respect to
which the Company has effected defeasance and/or covenant defeasance as
provided in Article XI.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, joint-stock company, unincorporated
organization or government or any agency or political subdivision thereof.
"Predecessor Security" of any particular Debt Security means every
previous Debt Security evidencing all or a portion of the same debt and
guarantee as that evidenced by such particular Debt Security; and, for the
purposes of this definition, any Debt Security authenticated and delivered
under Section 2.07 in lieu of a lost, destroyed or stolen Debt Security shall
be deemed to evidence the same debt as the lost, destroyed or stolen Debt
Security.
"Preferred Securities" means undivided beneficial interests in the
assets of Capital Trust, other than Common Securities, and which rank pari
passu with Common Securities issued by such trust; provided, however,
that upon the occurrence of an
5
Acceleration Event of Default, the rights of holders of Common Securities to
payment in respect of distributions and payments upon liquidation, redemption
and otherwise are subordinated to the rights of holders of Preferred
Securities.
"Preferred Securities Guarantee" means any guarantee that the Company
may enter into with a Capital Trust or other Persons that operate directly or
indirectly for the benefit of holders of Preferred Securities of such trust.
"Property Trustee" means the entity performing the functions of the
Property Trustee of a Capital Trust under the applicable Declaration of such
Capital Trust.
"Responsible Officer," when used with respect to the Trustee, means
any officer of the Trustee having direct responsibility for the administration
of this Indenture, or any such officer to whom any corporate trust matter is
referred because of his or her knowledge of and familiarity with the particular
subject.
"Securityholder", "Holder", "holder of Debt Securities", "registered
holder", or other similar term, means the Person or Persons in whose name or
names a particular Debt Security shall be registered on the books of the
Company kept for that purpose in accordance with the terms of this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings set forth in Section 2.05.
"Subsidiary" means, with respect to any Person, (i) any corporation at
least a majority of whose outstanding Voting Stock shall at the time be owned,
directly or indirectly, by such Person or by one or more of its Subsidiaries or
by such Person and one or more of its Subsidiaries, (ii) any general
partnership, joint venture or similar entity, at least a majority of whose
outstanding partnership or similar interests shall at the time be owned by such
Person, or by one or more of its Subsidiaries, or by such Person and one or
more of its Subsidiaries and (iii) any limited partnership of which such Person
or any of its Subsidiaries is a general partner.
"Trustee" means HSBC Bank USA, National Association, not in its
individual capacity, and, subject to the provisions of Article VII, shall also
include its successors and assigns, and, if at any time there is more than one
Person acting in such capacity hereunder, "Trustee" shall mean each such
Person. The term "Trustee," as used with respect to a particular series of Debt
Securities, shall mean the trustee with respect to that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed; provided, however,
that in the event the Trust Indenture Act of 1939 is amended after such date,
"Trust Indenture Act" means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
6
"Trust Securities" means Common Securities and Preferred Securities.
"Voting Stock", as applied to stock of any Person, means shares,
interests, participations or other equivalents in the equity interest (however
designated) in such Person having ordinary voting power for the election of a
majority of the directors (or the equivalent) of such Person, other than
shares, interests, participations or other equivalents having such power only
by reason of the occurrence of a contingency.
7
ARTICLE II
ISSUE, DESCRIPTION, TERMS, EXECUTION,
REGISTRATION AND EXCHANGE OF DEBT SECURITIES
SECTION 2.01. Designation and Terms of Debt Securities. The aggregate
principal amount of Debt Securities that may be authenticated and delivered
under this Indenture is unlimited. The Debt Securities may be issued in one or
more series up to the aggregate principal amount of Debt Securities of that
series from time to time authorized by or pursuant to a Board Resolution of the
Company or, pursuant to one or more indentures supplemental hereto. Prior to
the initial issuance of Debt Securities of any series, there shall be
established in or pursuant to a Board Resolution of the Company, and set forth
in an Officers' Certificate of the Company, or established in one or more
indentures supplemental hereto:
(1) the title of the series of Debt Security (which shall distinguish
the Debt Securities of that series from all other series of Debt
Securities);
(2) any limit upon the aggregate principal amount of the Debt
Securities of that series that may be authenticated and delivered under
this Indenture (except for Debt Securities authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of, other
Debt Securities of that series);
(3) the date or dates on which the principal of the Debt Securities of
that series is payable;
(4) the rate or rates at which the Debt Securities of that series
shall bear interest or the manner of calculation of such rate or rates, if
any;
(5) the date or dates from which such interest shall accrue, the
Interest Payment Dates on which such interest will be payable or the
manner of determination of such Interest Payment Dates and the record date
for the determination of holders to whom interest is payable on any such
Interest Payment Dates;
(6) the right, if any, to extend the interest payment periods and the
duration of such extension;
(7) the period or periods within which, the price or prices at which,
and the terms and conditions upon which, Debt Securities of that 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 Debt
Securities of that series pursuant to any sinking fund or analogous
provisions (including payments made in cash in participation of future
sinking fund obligations) or at the option of a holder thereof and the
period or periods within
8
which, the price or prices at which, and the terms and conditions
upon which, Debt Securities of that series shall be redeemed or
purchased, in whole or in part, pursuant to such obligation;
(9) the subordination terms of the Debt Securities of that series;
(10) the form of the Debt Securities of that series, including the
form of the Certificate of Authentication for such series;
(11) if other than denominations of one thousand U.S. dollars ($1,000)
or any integral multiple thereof, the denominations in which the Debt
Securities of that series shall be issuable;
(12) whether and under what circumstances the Company will pay
additional amounts on the Debt Securities of the series to any holder or
any type of holder of a Debt Security or Trust Security in respect of any
tax, assessment or governmental charge and, if so, whether the Company
will have the option to redeem such Debt Securities rather than pay such
additional amounts (and the terms of any such option);
(13) any and all other terms with respect to such series (which terms
shall not be inconsistent with the terms of this Indenture), including any
terms which may be required by or advisable under United States laws or
regulations or advisable in connection with the marketing of Debt
Securities of that series;
(14) whether the Debt Securities are issuable as a Global Security
and, in such case, the identity of the Depositary for such series; and
(15) if applicable, (i) that the Debt Securities of the series, in
whole or any specified part, shall be defeasible pursuant to Section 11.02
or Section 11.03 or both such Sections, (ii) the obligations from which
the Company shall be released in the event of any such defeasance, and
(iii) if other than by a Board Resolution, the manner in which any
election by the Company to defease such Debt Securities shall be
evidenced.
All Debt Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or
pursuant to any such Board Resolution or in any indentures supplemental hereto.
If any of the terms of a series are established by action taken
pursuant to a Board Resolution of the Company, 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 delivery of the
Officers' Certificate of the Company setting forth the terms of such series.
SECTION 2.02. Form of Debt Securities and Trustee's Certificate. The
Debt Securities of any series and the Trustee's certificate of authentication
to be borne by
9
such Debt Securities shall be substantially of the tenor and purport as set
forth in one or more indentures supplemental hereto or as provided in a Board
Resolution of the Company and as set forth in an Officers' Certificate of the
Company, and may have such letters, numbers or other marks of identification or
designation and such legends or endorsements printed, lithographed or engraved
thereon as the Company may deem appropriate and as are not inconsistent with
the provisions of this Indenture, or as may be required to comply with any law
or with any rule or regulation made pursuant thereto or with any rule or
regulation of any stock exchange on which Debt Securities of that series may be
listed, or to conform to usage.
SECTION 2.03. Denominations; Provisions for Payment. The Debt
Securities shall be issuable as registered Debt Securities and in the
denominations of one thousand U.S. dollars ($1,000) or any integral multiple
thereof, subject to Section 2.01(11). The Debt Securities of a particular
series shall bear interest payable on the dates and at the rate specified with
respect to that series. The principal of and the interest on the Debt
Securities of any series, as well as any premium thereon in case of redemption
thereof prior to maturity, shall be payable in the coin or currency of the
United States of America that at the time is legal tender for public and
private debt, at the office or agency of the Company maintained for that
purpose in the Borough of Manhattan, the City and State of New York. Each Debt
Security shall be dated the date of its authentication. Subject to Section
2.01(4), interest on the Debt Securities shall be computed on the basis of a
360-day year composed of twelve 30-day months.
The interest installment on any Debt Security that is payable, and is
punctually paid or duly provided for, on any Interest Payment Date for Debt
Securities of that series shall be paid to the Person in whose name said Debt
Security (or one or more Predecessor Debt Securities) is registered at the
close of business on the regular record date for such interest installment. In
the event that any Debt Security of a particular series or portion thereof is
called for redemption and the redemption date is subsequent to a regular record
date with respect to any Interest Payment Date and prior to such Interest
Payment Date, interest on such Debt Security will be paid upon presentation and
surrender of such Debt Security as provided in Section 3.03.
Any interest on any Debt Security that is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date for Debt
Securities of that series (herein called "Defaulted Interest") shall forthwith
cease to be payable to the registered holder on the relevant regular record
date by virtue of having been such holder; and such Defaulted Interest shall be
paid by the Company, at its election, as provided in clause (1) or clause (2)
below:
(1) The Company may make payment of any Defaulted Interest on Debt
Securities to the Persons in whose names such Debt Securities (or their
respective Predecessor Debt 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
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the amount of Defaulted Interest proposed to be paid on each such Debt
Security 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 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
not be more than 15 nor less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee shall promptly
notify the Company of such special record date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the special record date therefor to be mailed,
first class postage prepaid, to each Securityholder at his or her address
as it appears in the Security Register (as hereinafter defined), not less
than 10 days prior to such special record date. Notice of the proposed
payment of such Defaulted Interest and the special record date therefor
having been mailed as aforesaid, such Defaulted Interest shall be paid to
the Persons in whose names such Debt Securities (or their respective
Predecessor Debt Securities) are registered on such special record date
and shall be no longer payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on any Debt
Securities in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Debt Securities may
be listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustees of the proposed payment
pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.
Unless otherwise set forth in a Board Resolution of the Company or one
or more indentures supplemental hereto establishing the terms of any series of
Debt Securities pursuant to Section 2.01 hereof, the term "regular record date"
as used in this Section with respect to a series of Debt Securities with
respect to any Interest Payment Date for such series shall mean either the
fifteenth day of the month immediately preceding the month in which an Interest
Payment Date established for such series pursuant to Section 2.01 hereof shall
occur, if such Interest Payment Date is the first day of a month, or the last
day of the month immediately preceding the month in which an Interest Payment
Date established for such series pursuant to Section 2.01 hereof shall occur,
if such Interest Payment Date is the fifteenth day of a month, whether or not
such date is a Business Day.
Subject to the foregoing provisions of this Section, each Debt
Security of a series delivered under this Indenture upon transfer of or in
exchange for or in lieu of any other Debt Security of such series shall carry
the rights to interest accrued and unpaid, and to accrue, that were carried by
such other Debt Security.
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SECTION 2.04. Execution and Authentication. The Debt Securities shall
be signed on behalf of the Company by its President or one of its Vice
Presidents, under its corporate seal attested by its Secretary or one of its
Assistant Secretaries. Signatures may be in the form of a manual or facsimile
signature. The Company may use the facsimile signature of any Person who shall
have been a President or Vice President thereof, or of any Person who shall
have been a Secretary or Assistant Secretary thereof, notwithstanding the fact
that at the time the Debt Securities shall be authenticated and delivered or
disposed of such Person shall have ceased to be the President or a Vice
President, or the Secretary or an Assistant Secretary, of the Company. The seal
of the Company may be in the form of a facsimile of such seal and may be
impressed, affixed, imprinted or otherwise reproduced on the Debt Securities.
The Debt Securities may contain such notations, legends or endorsements
required by law, stock exchange rule or usage. Each Debt Security shall be
dated the date of its authentication by the Trustee.
A Debt Security shall not be valid until authenticated manually by an
authorized signatory of the Trustee, or by an Authenticating Agent. Such
signature shall be conclusive evidence that the Debt Security so authenticated
has been duly authenticated and delivered hereunder and that the holder is
entitled to the benefits of this Indenture.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Debt Securities of any series executed
by the Company to the Trustee for authentication, together with a written order
of the Company for the authentication and delivery of such Debt Securities,
signed by its President or any Vice President and its Treasurer or any
Assistant Treasurer, and the Trustee in accordance with such written order
shall authenticate and deliver such Debt Securities.
In authenticating such Debt Securities and accepting the additional
responsibilities under this Indenture in relation to such Debt Securities, the
Trustee shall be entitled to receive, and (subject to Section 7.01) shall be
fully protected in relying upon, an Opinion of Counsel stating that the form
and terms thereof have been established in conformity with the provisions of
this Indenture.
The Trustee shall not be required to authenticate such Debt Securities
if the issue of such Debt Securities pursuant to this Indenture will affect the
Trustee's own rights, duties or immunities under the Debt Securities and this
Indenture or otherwise in a manner that is not reasonable acceptable to the
Trustee.
SECTION 2.05. Registration of Transfer and Exchange. (a) Debt
Securities of any series may be exchanged upon presentation thereof at the
office or agency of the Company designated for such purpose in the Borough of
Manhattan, the City and State of New York, for other Debt Securities of such
series of authorized denominations, and for a like aggregate principal amount,
upon payment of a sum sufficient to cover any tax or other governmental charge
in relation thereto, all as provided in this Section. In respect of any Debt
Securities so surrendered for exchange,
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the Company shall execute, the Trustee shall authenticate and such office or
agency shall deliver in exchange therefor the Debt Security or Debt Securities
of the same series that the Securityholder making the exchange shall be
entitled to receive, bearing numbers not contemporaneously outstanding.
(b) The Company shall keep, or cause to be kept, at its office or
agency designated for such purpose in the Borough of Manhattan, the City and
State of New York, or such other location designated by the Company a register
or registers (herein referred to as the "Security Register") in which, subject
to such reasonable regulations as it may prescribe, the Company shall register
the Debt Securities and the transfers of Debt Securities as in this Article
provided and which at all reasonable times shall be open for inspection by the
Trustee. The registrar for the purpose of registering Debt Securities and
transfer of Debt Securities as herein provided shall be appointed as authorized
by Board Resolution (the "Security Registrar").
Upon surrender for registration of transfer of any Debt Security at
the office or agency of the Company designated for such purpose in the Borough
of Manhattan, the City and State of New York, the Company shall execute, the
Trustee shall authenticate and such office or agency shall deliver in the name
of the transferee or transferees a new Debt Security or Debt Securities of the
same series as the Debt Security presented for a like aggregate principal
amount.
All Debt Securities presented or surrendered for exchange or
registration of transfer, as provided in this Section, shall be accompanied (if
so required by the Company or the Security Registrar) by a written instrument
or instruments of transfer, in form satisfactory to the Company or the Security
Registrar, duly executed by the registered holder or by such holder's duly
authorized attorney in writing.
(c) No service charge shall be made for any exchange or registration
of transfer of Debt Securities, or issue of new Debt Securities in case of
partial redemption of any series, but the Company or the Trustee may require
payment of a sum sufficient to cover any tax or other governmental charge in
relation thereto, other than exchanges pursuant to Section 2.06, Section
3.03(b) and Section 9.04 not involving any transfer.
(d) The Company shall not be required (i) to issue, exchange or
register the transfer of any Debt Securities during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of
redemption of less than all the Outstanding Debt Securities of the same series
and ending at the close of business on the day of such mailing, nor (ii) to
register the transfer of or exchange any Debt Securities of any series or
portions thereof called for redemption. The provisions of this Section 2.05
are, with respect to any Global Security, subject to Section 2.11 hereof.
SECTION 2.06. Temporary Securities. Pending the preparation of
definitive Debt Securities of any series, the Company may execute, and the
Trustee shall authenticate and deliver, temporary Debt Securities (printed,
lithographed or typewritten)
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of any authorized denomination. Such temporary Debt Securities shall be
substantially in the form of the definitive Debt Securities in lieu of which
they are issued, but with such omissions, insertions and variations as may be
appropriate for temporary Debt Securities, all as may be determined by the
Company. Every temporary Debt Security of any series shall be executed by the
Company and be authenticated by the Trustee upon the same conditions and in
substantially the same manner, and with like effect, as the definitive Debt
Securities of such series. Without unnecessary delay the Company will execute
and will furnish definitive Debt Securities of such series and thereupon any or
all temporary Debt Securities of such series may be surrendered in exchange
therefor (without charge to the holders), at the office or agency of the
Company designated for the purpose in the Borough of Manhattan, the City and
State of New York, and the Trustee shall authenticate and such office or agency
shall deliver in exchange for such temporary Debt Securities an equal aggregate
principal amount of definitive Debt Securities of such series, unless the
Company advises the Trustee to the effect that definitive Debt Securities need
not be executed and furnished until further notice from the Company. Until so
exchanged, the temporary Debt Securities of such series shall be entitled to
the same benefits under this Indenture as definitive Debt Securities of such
series authenticated and delivered hereunder.
SECTION 2.07. Mutilated, Destroyed, Lost or Stolen Debt Securities. In
case any temporary or definitive Debt Security shall become mutilated or be
destroyed, lost or stolen, the Company (subject to the next succeeding
sentence) shall execute, and upon the Company's request the Trustee (subject as
aforesaid) shall authenticate and deliver, a new Debt Security of the same
series, bearing a number not contemporaneously outstanding, in exchange and
substitution for the mutilated Debt Security, or in lieu of and in substitution
for the Debt Security so destroyed, lost or stolen. In every case the applicant
for a substituted Debt Security shall furnish to the Company and the Trustee
such security or indemnity as may be required by them to save each of them
harmless, and, in every case of destruction, loss or theft, the applicant shall
also furnish to the Company and the Trustee evidence to their satisfaction of
the destruction, loss or theft of the applicant's Debt Security and of the
ownership thereof. The Trustee may authenticate any such substituted Debt
Security and deliver the same upon the written request or authorization of any
officer of the Company. Upon the issuance of any substituted Debt Security, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
In case any Debt Security that has matured or is about to mature shall become
mutilated or be destroyed, lost or stolen, the Company may, instead of issuing
a substitute Debt Security, pay or authorize the payment of the same (without
surrender thereof except in the case of a mutilated Debt Security) if the
applicant for such payment shall furnish to the Company and the Trustee such
security or indemnity as they may require to save them harmless, and, in case
of destruction, loss or theft, evidence to the satisfaction of the Company and
the Trustee of the destruction, loss or theft of such Debt Security and of the
ownership thereof.
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Every replacement Debt Security issued pursuant to the provisions of
this Section shall constitute an additional contractual obligation of the
Company, whether or not the mutilated, destroyed, lost or stolen Debt Security
shall be found at any time, or be enforceable by anyone, and shall be entitled
to all the benefits of this Indenture equally and proportionately with any and
all other Debt Securities of the same series duly issued hereunder. All Debt
Securities shall be held and owned upon the express condition that the
foregoing provisions are exclusive with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Debt Securities, and shall preclude (to
the extent lawful) any and all other rights or remedies, notwithstanding any
law or statute existing or hereafter enacted to the contrary with respect to
the replacement or payment of negotiable instruments or other securities
without their surrender.
SECTION 2.08. Cancellation. All Debt Securities surrendered for the
purpose of payment, redemption, exchange or registration of transfer shall, if
surrendered to the Company or any paying agent, be delivered to the Trustee for
cancellation, or, if surrendered to the Trustee, shall be cancelled by it, and
no Debt Securities shall be issued in lieu thereof except as expressly required
or permitted by any of the provisions of this Indenture. On written request of
the Company at the time of such surrender, the Trustee shall deliver to the
Company canceled Debt Securities held by the Trustee. In the absence of such
request the Trustee may dispose of canceled Debt Securities in accordance with
its standard procedures and the Trustee shall maintain a written record of such
disposal. If the Company shall otherwise acquire any of the Debt Securities,
however, such acquisition shall not operate as a redemption or satisfaction of
the indebtedness represented by such Debt Securities unless and until the same
are delivered to the Trustee for cancellation.
SECTION 2.09. Benefits of Indenture. Nothing in this Indenture or in
the Debt Securities, express or implied, shall give or be construed to give to
any Person, other than the parties hereto and the holders of the Debt
Securities (and, with respect to the provisions of Article XIV, the holders of
Senior Indebtedness) any legal or equitable right, remedy or claim under or in
respect of this Indenture, or under any covenant, condition or provision herein
contained; all such covenants, conditions and provisions being for the sole
benefit of the parties hereto and of the holders of the Debt Securities (and,
with respect to the provisions of Article XIV, the holders of Senior
Indebtedness).
SECTION 2.10. Authenticating Agent. So long as any of the Debt
Securities of any series remain Outstanding, there may be an Authenticating
Agent for any or all such series of Debt Securities which the Trustee shall
have the right to appoint. Said Authenticating Agent shall be authorized to
act on behalf of the Trustee to authenticate Debt Securities of such series
issued upon exchange, transfer or partial redemption thereof, and Debt
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. All references in this Indenture to
the authentication of Debt Securities by the Trustee shall be deemed to
include authentication by an Authenticating Agent for such series. Each
Authenticating Agent shall be acceptable to the Company
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and shall be a corporation that has a combined capital and surplus, as most
recently reported or determined by it, sufficient under the laws of any
jurisdiction under which it is organized or in which it is doing business to
conduct a trust business, and that is otherwise authorized under such laws to
conduct such business and is subject to supervision or examination by federal
or state authorities. If at any time any Authenticating Agent shall cease to be
eligible in accordance with these provisions, it shall resign immediately.
Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Trustee and to the Company. The Trustee may at any
time (and upon request by the Company shall) terminate the agency of any
Authenticating Agent by giving written notice of termination to such
Authenticating Agent and to the Company. Upon resignation, termination or
cessation of eligibility of any Authenticating Agent, the Trustee may appoint
an eligible successor Authenticating Agent acceptable to the Company. Any
successor Authenticating Agent, upon acceptance of its appointment hereunder,
shall become vested with all the rights, powers and duties of its predecessor
hereunder as if originally named as an Authenticating Agent pursuant hereto.
The Trustee shall have the right to decline to authenticate and
deliver any Debt Securities under this Section if the Trustee in good faith by
its board of directors or board of trustee, executive committee, or a trust
committee of directors or trustees or Responsible Officers shall determine that
such action would expose the Trustee to personal liability to existing holders
of Debt Securities.
SECTION 2.11. Global Securities. (a) If the Company shall establish
pursuant to Section 2.01 that the Debt Securities of a particular series are to
be issued as a Global Security or Securities, then the Company shall execute
and the Trustee shall, in accordance with Section 2.04, authenticate and
deliver, a Global Security that (i) shall represent, and shall be denominated
in an amount equal to the aggregate principal amount of, all of the Outstanding
Debt Securities of such series, (ii) shall be registered in the name of the
Depositary or its nominee, (iii) shall be delivered by the Trustee to the
Depositary or pursuant to the Depositary's instruction and (iv) shall bear a
legend substantially to the following effect: "Except as otherwise provided in
Section 2.11 of the Indenture, this Debt Security may be transferred, in whole
but not in part, only to another nominee of the Depositary or to a successor
Depositary or to a nominee of such successor Depositary."
(b) Notwithstanding the provisions of Section 2.05, the Global
Security or Securities of a series may be transferred, in whole but not in part
and in the manner provided in Section 2.05, only to another nominee of the
Depositary for such series, or to a successor Depositary for such series
selected or approved by the Company or to a nominee of such successor
Depositary.
(c) If at any time the Depositary for a series of the Debt Securities
notifies the Company that it is unwilling or unable to continue as Depositary
for such series or if at any time the Depositary for such
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series shall no longer be registered or in good standing under the Exchange
Act, or other applicable statute or regulation, at a time when the Depositary
is required to be so registered to act as such Depositary and a successor
Depositary for such series is not appointed by the Company within 90 days after
the Company receives such notice or becomes aware of such condition, as the
case may be, this Section 2.11 shall no longer be applicable to the Debt
Securities of such series and the Company will execute, and subject to Section
2.05, the Trustee will authenticate and deliver the Debt Securities of such
series in definitive registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to the principal
amount of the Global Security or Securities of such series in exchange for such
Global Security or Securities. In addition, the Company may at any time
determine that the Debt Securities of any series shall no longer be represented
by a Global Security or Securities and that the provisions of this Section 2.11
shall no longer apply to the Debt Securities of such series. In such event, the
Company will execute and subject to Section 2.05, the Trustee, upon receipt of
an Officers' Certificate evidencing such determination by the Company, will
authenticate and deliver the Debt Securities of such series in definitive
registered form without coupons, in authorized denominations, and in an
aggregate principal amount equal to the principal amount of the Global Security
or Securities of such series in exchange for such Global Security or
Securities. Upon the exchange of the Global Security or Securities for such
Debt Securities in definitive registered form without coupons, in authorized
denominations, the Global Security or Securities shall be canceled by the
Trustee. Such Debt Securities in definitive registered form issued in exchange
for the Global Security or Securities pursuant to this Section 2.11(c) shall be
registered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect participants
or otherwise, shall instruct the Trustee. The Trustee shall deliver such Debt
Securities to the Depositary for delivery to the Persons in whose names such
Debt Securities are so registered.
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ARTICLE III
REDEMPTION OF DEBT SECURITIES AND SINKING FUND PROVISIONS
SECTION 3.01. Redemption. The Company may redeem the Debt Securities
of any series issued hereunder on and after the dates and in accordance with
the terms established for such series pursuant to Section 2.01 hereof.
SECTION 3.02. Notice of Redemption. (a) In case the Company shall
desire to exercise such right to redeem all or, as the case may be, a portion
of the Debt Securities of any series in accordance with the right reserved so
to do, the Company shall, or shall cause the Trustee to, give notice of such
redemption to holders of the Debt Securities of such series to be redeemed by
mailing, first class postage prepaid, a notice of such redemption not less than
30 days and not more than 60 days before the date fixed for redemption of that
series to such holders at their last addresses as they shall appear upon the
Security Register unless a shorter period is specified in the Debt Securities
to be redeemed. Any notice that is mailed in the manner herein provided shall
be conclusively presumed to have been duly given, whether or not the registered
holder receives the notice. In any case, failure duly to give such notice to
the holder of any Debt Security of any series designated for redemption in
whole or in part, or any defect in the notice, shall not affect the validity of
the proceedings for the redemption of any other Debt Securities of such series
or any other series. In the case of any redemption of Debt Securities prior to
the expiration of any restriction on such redemption provided in the terms of
such Debt Securities or elsewhere in this Indenture, the Company shall furnish
the Trustee with an Officers' Certificate evidencing compliance with any such
restriction.
Each such notice of redemption shall specify the date fixed for
redemption and the redemption price at which Debt Securities of that series are
to be redeemed, and shall state that payment of the redemption price of such
Debt Securities to be redeemed will be made at the office or agency of the
Company in the Borough of Manhattan, the City and State of New York, upon
presentation and surrender of such Debt Securities, that interest accrued to
the date fixed for redemption will be paid as specified in said notice, that
from and after said date interest will cease to accrue and that the redemption
is for a sinking fund, if such is the case. If less than all the Debt
Securities of a series are to be redeemed, the notice to the holders of Debt
Securities of that series to be redeemed in whole or in part shall specify the
particular Debt Securities to be so redeemed. In case any Debt Security is to
be redeemed in part only, the notice that relates to such Debt Security shall
state the portion of the principal amount thereof to be redeemed, and shall
state that on and after the redemption date, upon surrender of such Debt
Security, a new Debt Security or Debt Securities of such series in principal
amount equal to the unredeemed portion thereof will be issued.
(b) If less than all the Debt Securities of a series are to be
redeemed, the Company shall give the Trustee at least 45 days' notice in
advance of the date fixed for redemption as to the aggregate principal amount
of Debt Securities of the series to be redeemed, and thereupon the Trustee
shall select, by lot or in such other manner as it
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shall deem appropriate and fair in its discretion and that may provide for the
selection of a portion or portions (equal to one thousand U.S. dollars ($1,000)
or any integral multiple thereof) of the principal amount of such Debt
Securities of a denomination larger than $1,000, the Debt Securities to be
redeemed and shall thereafter promptly notify the Company in writing of the
numbers of the Debt Securities to be redeemed, in whole or in part.
The Company may, if and whenever it shall so elect, by delivery of
instructions signed on its behalf by its President or any Vice President,
instruct the Trustee or any paying agent to call all or any part of the Debt
Securities of a particular series for redemption and to give notice of
redemption in the manner set forth in this Section, such notice to be in the
name of the Company or its own name as the Trustee or such paying agent may
deem advisable. In any case in which notice of redemption is to be given by the
Trustee or any such paying agent, the Company shall deliver or cause to be
delivered to, or permit to remain with, the Trustee or such paying agent, as
the case may be, such Security Register, transfer books or other records, or
suitable copies or extracts therefrom, sufficient to enable the Trustee or such
paying agent to give any notice by mail that may be required under the
provisions of this Section.
SECTION 3.03. Payment Upon Redemption. (a) If the giving of notice of
redemption shall have been completed as above provided, the Debt Securities or
portions of Debt Securities of the series to be redeemed specified in such
notice shall become due and payable on the date and at the place stated in such
notice at the applicable redemption price, together with interest accrued to
the date fixed for redemption and interest on such Debt Securities or portions
of Debt Securities shall cease to accrue on and after the date fixed for
redemption, unless the Company shall default in the payment of such redemption
price and accrued interest with respect to any such Debt Security or portion
thereof. On presentation and surrender of such Debt Securities on or after the
date fixed for redemption at the place of payment specified in the notice, said
Debt Securities shall be paid and redeemed at the applicable redemption price
for such series, together with interest accrued thereon to the date fixed for
redemption (but if the date fixed for redemption is an interest payment date,
the interest installment payable on such date shall be payable to the
registered holder at the close of business on the applicable record date
pursuant to Section 2.03).
(b) Upon presentation of any Debt Security of such series that is to
be redeemed in part only, the Company shall execute and the Trustee shall
authenticate and the office or agency where the Debt Security is presented
shall deliver to the holder thereof, at the expense of the Company, a new Debt
Security or Debt Securities of the same series, of authorized denominations in
principal amount equal to the unredeemed portion of the Debt Security so
presented.
SECTION 3.04. Sinking Fund. The provisions of Sections 3.04, 3.05
and 3.06 shall be applicable to any sinking fund for the retirement of
Debt Securities of a
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series, except as otherwise specified as contemplated by Section 2.01 for Debt
Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Debt 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 Debt Securities of any series is herein referred
to as an "optional sinking fund payment". If provided for by the terms of Debt
Securities of any series, the cash amount of any sinking fund payment may be
subject to reduction as provided in Section 3.05. Each sinking fund payment
shall be applied to the redemption of Debt Securities of any series as provided
for by the terms of Debt Securities of such series.
SECTION 3.05. Satisfaction of Sinking Fund Payments with Debt
Securities. The Company (i) may deliver Outstanding Debt Securities of a series
(other than any Debt Securities previously called for redemption) and (ii) may
apply as a credit Debt Securities of a series that have been redeemed either at
the election of the Company pursuant to the terms of such Debt Securities or
through the application of permitted optional sinking fund payments pursuant to
the terms of such Debt Securities, in each case in satisfaction of all or any
part of any sinking fund payment with respect to the Debt Securities of such
series required to be made pursuant to the terms of such Debt Securities as
provided for by the terms of such series, provided that such Debt Securities
have not been previously so credited. Such Debt Securities shall be received
and credited for such purpose by the Trustee at the redemption price specified
in such Debt Securities for redemption through operation of the sinking fund
and the amount of such sinking fund payment shall be reduced accordingly.
SECTION 3.06. Redemption of Debt Securities for Sinking Fund. Not less
than 45 days prior to each sinking fund payment date for any series of Debt
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 the series, the portion thereof, if any, that is to be
satisfied by delivering and crediting Debt Securities of that series pursuant
to Section 3.05 and the basis for such credit and will, together with such
Officers' Certificate, deliver to the Trustee any Debt Securities to be so
delivered. Not less than 30 days before each such sinking fund payment date,
the Trustee shall select the Debt Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 3.02 and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 3.02. Such notice having been duly
given, the redemption of such Debt Securities shall be made upon the terms and
in the manner stated in Section 3.03.
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ARTICLE IV
COVENANTS OF THE COMPANY
SECTION 4.01. Payment of Principal, Premium and Interest. The Company
will duly and punctually pay or cause to be paid the principal of (and premium,
if any) and interest on the Debt Securities of that series at the time and
place and in the manner provided herein and established with respect to such
Debt Securities.
SECTION 4.02. Maintenance of Office or Agency. So long as any series
of the Debt Securities remain Outstanding, the Company agrees to maintain an
office or agency in the Borough of Manhattan, the City and State of New York,
with respect to each such series and at such other location or locations as may
be designated as provided in this Section 4.02, where (i) Debt Securities of
that series may be presented for payment, (ii) Debt Securities of that series
may be presented as hereinabove authorized for registration of transfer and
exchange, and (iii) notices and demands to or upon the Company in respect of
the Debt Securities of that series and this Indenture may be given or served,
such designation to continue with respect to such office or agency until the
Company shall, by written notice signed by its President or a Vice President
and delivered to the trustee, designate some other office or agency for such
purposes or any of them. 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, 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, notices and
demands.
SECTION 4.03. Paying Agents. (a) If the Company shall appoint one or
more paying agents for all or any series of the Debt Securities, other than the
Trustee, the Company will cause each such paying agent to execute and deliver
to the Trustee an instrument in which such agent shall agree with the Trustee,
subject to the provisions of this Section:
(1) that it will hold all sums held by it as such agent for the
payment of the principal of (and premium, if any) or interest on the Debt
Securities of that series (whether such sums have been paid to it by the
Company or by any other obligor of such Debt Securities) in trust for the
benefit of the Persons entitled thereto;
(2) that it will give the Trustee notice of any failure by the Company
to make any payment of the principal of (and premium, if any) or interest
on the Debt Securities of that series when the same shall be due and
payable;
(3) that it will, at any time during the continuance of any failure
referred to in the preceding paragraph (a)(2) above, upon the written
request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such paying agent; and
21
(4) that it will perform all other duties of paying agent as set forth
in this Indenture.
(b) If the Company shall act as its own paying agent with respect to
any series of the Debt Securities, it will on or before each due date of the
principal of (and premium, if any) or interest on Debt Securities of that
series, set aside, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay such principal (and premium, if any)
or interest so becoming due on Debt Securities of that series until such sums
shall be paid to such Persons or otherwise disposed of as herein provided and
will promptly notify the Trustee of such action, or any failure by it to take
such action. Whenever the Company shall have one or more paying agents for any
series of Debt Securities, it will, prior to each due date of the principal of
(and premium, if any) or interest on any Debt Securities of that series,
deposit with the 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
(unless such paying agent is the Trustee) the Company will promptly notify the
Trustee of this action or failure so to act.
(c) Notwithstanding anything in this Section to the contrary, (i) the
agreement to hold sums in trust as provided in this Section is subject to the
provisions of Section 11.06, and (ii) 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 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 terms and conditions 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.
SECTION 4.04. Appointment to Fill Vacancy in Office of Trustee. The
Company, whenever necessary to avoid or fill a vacancy in the office of
Trustee, will appoint, in the manner provided in Section 7.10, a Trustee, so
that there shall at all times be a Trustee hereunder.
SECTION 4.05. Limitation on Dividends; Transactions with Affiliates.
(a) If Debt Securities are issued to a Capital Trust or a trustee of
such trust in connection with the issuance of Trust Securities by such Capital
Trust and (i) the Company shall have given notice of its election to defer
payments of interest on such Debt Securities by extending the interest payment
period as provided in any indenture supplemental hereto and such period, or any
extension thereof, shall be continuing; (ii) the Company shall be prohibited
from paying current interest on such Debt Securities other than in an amount
limited by reference to its prior issuance or sale of equity securities pursuant
to mandatory interest deferral provisions or interest payment restrictions
applicable when the Company has outstanding deferred interest obligations with
respect to the Debt Securities of such series as provided in any indenture
22
supplemental hereto; or (iii) there shall have occurred an event that would
constitute an Acceleration Event of Default, then (A) the Company shall not
declare or pay any dividend, or make any distributions with respect to, or
redeem, purchase or make a liquidation payment with respect to, any of its
capital stock, (B) the Company shall not make any payment of interest,
principal or premium, if any, on or repay, repurchase or redeem any debt
securities (including guarantees) issued by the Company which rank pari passu
with or junior to such Debt Securities and (C) the Company shall not make any
guarantee payments with respect to the foregoing (other than pursuant to the
Preferred Securities Guarantee).
(b) The restrictions contained in paragraph (a) shall not apply to:
(1) the payment of any dividend or distribution within 60 days after
the date of declaration thereof during a period during which the Company
is required to defer interest when due by operation of a provision
limiting interest payments in connection with the Company's performance
under a financial test, if (A) at the date of declaration of such dividend
or distribution the Company was not yet required to defer interest
pursuant to such provision and (B) such payment would have been otherwise
permitted under the provisions of the Indenture;
(2) dividends or distributions payable solely in Junior Securities;
(3) repurchases, redemption or other acquisitions of shares of capital
stock or stock rights in connection with any employment contract, benefit
plan or other similar arrangement with or for the benefit of employees,
officers, directors or consultants;
(4) any exchange, redemption, repayment, repurchase or conversion of
any calls or series of the Company's capital stock or of any of the
Company's debt securities that rank equally, with or junior to such Debt
Securities for any Junior Securities;
(5) the purchase of fractional interests in shares of the Company's
capital stock (a) pursuant to the conversion or exchange provisions of
such capital stock or the security being converted or exchanged or (b) in
connection with any stock split, reclassification or similar transaction;
and
(6) any declaration of a dividend in connection with the
implementation of a shareholders rights plan, or the issuance of stock
under any such plan in the future, or the redemption or repurchase of any
rights pursuant thereto.
SECTION 4.06. Covenants as to Capital Trust. In the event Debt
Securities are issued and sold to a Capital Trust in connection with the
issuance of Trust Securities
23
by such trust, for so long as such Trust Securities remain outstanding, the
Company will (i) maintain 100% direct or indirect ownership of the Common
Securities of such trust; provided, however, that any permitted successor of the
Company under the Indenture may succeed to the Company's ownership of the Common
Securities, (ii) not cause, as sponsor of such trust, or permit, as holder of
Common Securities of such trust, the dissolution, winding- up or termination of
such trust, except in connection with a distribution of Debt Securities as
provided in the Declaration and in connection with certain mergers,
consolidations or amalgamations permitted by the Declaration and (iii) use its
reasonable efforts to cause such trust (a) to remain a business trust, except in
connection with a distribution of Debt Securities, the redemption of all of the
Trust Securities of such Capital Trust or certain mergers, consolidations or
amalgamations, each as permitted by the Declaration of such Capital Trust, and
(b) to otherwise continue to be classified for United States federal income tax
purposes as a grantor trust/fixed investment trust.
SECTION 4.07. Corporate Existence. The Company will, subject to the
provisions of Article X, at all times maintain its corporate existence and
right to carry on business and will duly procure all renewals and extensions
thereof, and, to the extent necessary or desirable in the operation of its
business, will use its best efforts to maintain, preserve and renew all of its
rights, powers, privileges and franchises.
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ARTICLE V
SECURITYHOLDERS, LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
SECTION 5.01. Company to Furnish Trustee Names and Addresses of
Securityholders. The Company will furnish or cause to be furnished to the
Trustee on a quarterly basis on each regular record date (as defined in Section
2.03) a list, in such form as the Trustee may reasonably require, of the names
and addresses of the holders of each series of Debt Securities as of such
regular record date, provided that the Company shall not be obligated to
furnish or cause to furnish such list at any time that the list shall not
differ in any respect from the most recent list furnished to the Trustee by the
Company and at such other times as the Trustee may request in writing within 30
days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished; provided, however, that in either case, no such list need be
furnished for any series for which the Trustee shall be the Security Registrar.
SECTION 5.02. Preservation of Information; Communications with
Securityholders. (a) The Trustee shall preserve, in as current a form as is
reasonably practicable, all information as to the names and addresses of the
holders of Debt Securities contained in the most recent list furnished to it as
provided in Section 5.01 and as to the names and addresses of holders of Debt
Securities received by the Trustee in its capacity as Security Registrar (if
acting in such capacity).
(b) The Trustee may destroy any list furnished to it as provided in
Section 5.01 upon receipt of a new list so furnished.
(c) Securityholders may communicate as provided in Section 312(b) of
the Trust Indenture Act with other Securityholders with respect to their rights
under this Indenture or under the Debt Securities.
SECTION 5.03. Reports by the Company. (a) The Company covenants and
agrees to file with the Trustee, within 15 days after the Company is required
to file the same with the Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as the Commission may from time to time by rules and regulations
prescribe) that the Company may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the Company
is not required to file information, documents or reports pursuant to either of
such sections, then to file with the Trustee and the Commission, in accordance
with the rules and regulations prescribed from time to time by the Commission,
such of the supplementary and periodic information, documents and reports that
may be required pursuant to Section 13 of the Exchange Act, 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. Delivery of reports
to the Trustee pursuant to this paragraph (a) is for informational purposes
only and the Trustee's receipt of such
25
shall not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder.
(b) The Company covenants and agrees to file with the Trustee and the
Commission, in accordance with the rules and regulations prescribed from to
time by the Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions and covenants provided
for in this Indenture as may be required from time to time by such rules and
regulations.
(c) The Company covenants and agrees to transmit by mail, first class
postage prepaid, or reputable overnight delivery service that provides for
evidence of receipt, to the Securityholders, as their names and addresses
appear upon 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 subsections (a) and (b) of this Section
as may be required by rules and regulations prescribed from time to time by the
Commission.
SECTION 5.04. Reports by the Trustee. (a) On or before July 15 in each
year in which any of the Debt Securities are Outstanding, the Trustee shall
transmit by mail, first class postage prepaid, to the Securityholders, as their
names and addresses appear upon the Security Register, a brief report dated as
of the preceding May 15, if and to the extent required under Section 313(a) of
the Trust Indenture Act.
(b) The Trustee shall comply with Sections 313(b) and 313(c) of the
Trust Indenture Act.
(c) A copy of each such report shall, at the time of such transmission
to Securityholders, be filed by the Trustee with the Company, with each stock
exchange upon which any Debt Securities are listed (if so listed) and also with
the Commission. The Company agrees to notify the Trustee when any Debt
Securities become listed on any stock exchange.
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ARTICLE VI
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 6.01. Events of Default. (a) Whenever used herein with respect
to Debt Securities of a particular series, "Event of Default" means any one or
more of the following events that has occurred and is continuing:
(1) the Company defaults in the payment of any installment of interest
upon any of the Debt Securities of that series, as and when the same shall
become due and payable, and continuance of such default for a period of 30
days; provided, however, that a valid extension of an interest payment
period by the Company in accordance with the terms of any indenture
supplemental hereto, shall not constitute a default in the payment of
interest for this purpose;
(2) the Company defaults in the payment of the principal of (or
premium, if any, on) any of the Debt Securities of that series as and when
the same shall become due and payable whether at maturity, upon
redemption, by declaration or otherwise, or in any payment required by any
sinking or analogous fund established with respect to that series;
provided, however, that a valid extension of the maturity of such Debt
Securities in accordance with the terms of any indenture supplemental
hereto shall not constitute a default in the payment of principal or
premium, if any;
(3) The Company has deferred interest on the Debt Securities of such
series, whether by election under a voluntary interest deferral provision
or due to a mandatory interest deferral provision applicable to the Debt
Securities of such series, and the Company has failed to pay in full all
deferred interest within ten years of the commencement of such interest
deferral;
(4) the Company pursuant to or within the meaning of any Bankruptcy
Law (i) commences a voluntary case, (ii) consents to the entry of an order
for relief against it in an involuntary case, (iii) consents to the
appointment of a Custodian of it or for all or substantially all of its
property or (iv) makes a general assignment for the benefit of its
creditors;
(5) a court of competent jurisdiction enters an order under any
Bankruptcy Law that (i) is for relief against the Company in an
involuntary case, (ii) appoints a Custodian of the Company for all or
substantially all of its property, or (iii) orders the liquidation of the
Company, and the order or decree remains unstayed and in effect for 90
days; or
(6) in the event Debt Securities are issued and sold to a Capital
Trust or other trust of the Company in connection with the issuance of
Trust Securities by such trust, such trust shall have voluntarily or
involuntarily dissolved, wound-up its business or otherwise terminated
its existence except in connection with (i)
27
the distribution of Debt Securities to holders of Trust Securities in
liquidation of their interests in such trust, (ii) the redemption of all
outstanding Trust Securities of such trust, and (iii) mergers,
consolidations or amalgamations, each as permitted by the Declaration of
such trust.
(7) the Company fails to observe or perform any other of its covenants
or agreements with respect to that series contained in this Indenture or
otherwise established with respect to that series of Debt Securities
pursuant to Section 2.01 hereof (other than a covenant or agreement that
has been expressly included in this Indenture solely for the benefit of
one or more series of Debt Securities other than such series) for a period
of 60 days after the date on which written notice of such failure,
requiring the same to be remedied and stating that such notice is a
"Notice of Default" hereunder, shall have been given to the Company by the
Trustee, by registered or certified mail, or to the Company and the
Trustee by the holders of (i) at least 10% in principal amount of the Debt
Securities of that series at the time Outstanding or (ii) at least 10% in
stated liquidation amount of the Preferred Securities of the Capital
Trust, if any, corresponding to such series;
(b) If an Event of Default described in clause 1, 2, 3 or 6 of this
Section 6.01 with respect to Debt Securities of any series at the time
outstanding occurs and is continuing, unless the principal of all the Debt
Securities of that series shall have already become due and payable, either the
Trustee or the holders of not less than 10% in aggregate principal amount of
the Debt Securities of that series then Outstanding hereunder, by notice in
writing to the Company (and to the Trustee, if given by such Securityholders),
may declare the principal of all the Debt Securities of that series to be due
and payable immediately, and upon any such declaration the same shall become
and shall be immediately due and payable, notwithstanding anything contained in
this Indenture or in the Debt Securities of that series or established with
respect to that series pursuant to Section 2.01 to the contrary. If an Event of
Default specified in clause (4) or (5) of this Section 6.01 occurs or is
continuing, then the principal amount of all the Debt Securities shall ipso
facto become and be immediately due and payable without any declaration or
other act on the part of the Trustee or any Securityholder.
(c) At any time after the principal of the Debt Securities of that
series shall have been declared due and payable upon or after the occurrence of
an Acceleration Event of Default, and before any judgment or decree for the
payment of the moneys due shall have been obtained or entered as hereinafter
provided, the holders of a majority in aggregate principal amount of the Debt
Securities of that series then Outstanding hereunder, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if: (i) the Company has paid or deposited with the Trustee a sum
sufficient to pay all matured installments of interest upon all the Debt
Securities of that series and the principal of (and premium, if any, on) any
and all Debt Securities of that series that shall have become due otherwise
than by acceleration (with interest upon such principal and premium, if any,
and, to the extent that such payment is enforceable under applicable law, upon
overdue installments of interest, at the rate per
28
annum expressed in the Debt Securities of that series to the date of such
payment or deposit) and the amount payable to the Trustee under Section 7.06,
and (ii) any and all Events of Default under the Indenture with respect to such
series, other than the nonpayment of principal on Debt Securities of that series
that shall not have become due by their terms, shall have been remedied or
waived as provided in Section 6.06.
No such rescission and annulment of a declaration shall extend to or
shall affect any subsequent default or impair any right consequent thereon.
(d) If a Covenant Event of Default with respect to Debt Securities of
any series at the time outstanding occurs and is continuing, any Holder of Debt
Securities of such series may commence an action against the Company for breach
of such covenant or covenants giving rise thereto, and the holders of (i) not
less than 10% in aggregate principal amount of the Debt Securities of that
series then Outstanding; or (ii) not less than 10% in aggregate stated
liquidation amount of the Preferred Securities, if any, corresponding to such
series of Debt Securities, may direct the Trustee to commence an action against
the Company for breach of such covenant or covenants giving rise thereto.
(e) In case the Trustee shall have proceeded to enforce any right with
respect to Debt Securities of that series under this Indenture and such
proceedings shall have been discontinued or abandoned because of such
rescission or annulment of a declaration or for any other reason or shall have
been determined adversely to the Trustee, then and in every such case the
Company and the Trustee shall be restored respectively to their former
positions and rights hereunder, and all rights, remedies and powers of the
Company and the Trustee shall continue as though no such proceedings had been
taken.
SECTION 6.02. Collection of Indebtedness and Suits for Enforcement by
Trustee.
(a) The Company covenants that (1) in case it shall default in the
payment of any installment of interest on any of the Debt Securities of a
series, or any payment required by any sinking or analogous fund established
with respect to that series as and when the same shall have become due and
payable, and such default shall have continued for a period of 90 days, or (2)
in case it shall default in the payment of the principal of (or premium, if any,
on) any of the Debt Securities of a series when the same shall have become due
and payable, whether upon maturity of the Debt Securities of a series or upon
redemption or upon declaration or otherwise, then, upon demand of the Trustee,
the Company will pay to the Trustee, for the benefit of the holders of the Debt
Securities of that series, the whole amount that then shall have become due and
payable on all such Debt Securities for principal (and premium, if any) or
interest, or both, as the case may be, with interest upon the overdue principal
(and premium, if any) and (to the extent that payment of such interest is
enforceable under applicable law and, if the Debt Securities are held by a
Capital Trust, without duplication of any other amounts paid by such trust in
respect thereof) upon overdue installments of interest at the rate per annum
29
expressed in the Securities of that series; and, in addition thereto,
such further amount as shall be sufficient to cover the costs and expenses of
collection and the amount payable to the Trustee under Section 7.06.
(b) If the Company shall fail to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any action or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Company or other obligor upon the Debt
Securities of that series and collect the moneys adjudged or decreed to be
payable in the manner provided by law out of the property of the Company or
other obligor upon the Debt Securities of that series, wherever situated.
(c) In case of any receivership, insolvency, liquidation, bankruptcy,
reorganization, readjustment, arrangement, composition or judicial proceedings
affecting the Company or its creditors or property, the Trustee shall have
power to intervene in such proceedings and take any action therein that may be
permitted by the court and shall (except as may be otherwise provided by law)
be entitled to file such proofs of claim and other papers and documents as may
be necessary or advisable in order to have the claims of the Trustee and of the
holders of Debt Securities of such series allowed for the entire amount due and
payable by the Company under the Indenture at the date of institution of such
proceedings and for any additional amount that may become due and payable by
the Company after such date, and to collect and receive any moneys or other
property payable or deliverable on any such claim, and to distribute the same
after the deduction of the amount payable to the Trustee under Section 7.06;
and any receiver, assignee or trustee in bankruptcy or reorganization is hereby
authorized by each of the holders of Debt Securities of such series to make
such payments to the Trustee, and, in the event that the Trustee shall consent
to the making of such payments directly to such Securityholders, to pay to the
Trustee any amount due it under Section 7.06.
(d) All rights of action and of asserting claims under this Indenture,
or under any of the terms established with respect to Debt Securities of that
series, may be enforced by the Trustee without the possession of any of such
Debt Securities, or the production thereof at any trial or other proceeding
relative thereto, and any such suit or 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 payment to the Trustee of any
amounts due under Section 7.06, be for the ratable benefit of the holders of
the Debt Securities of such series.
In case of an Event of Default hereunder, the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in the Indenture or in aid of
30
the exercise of any power granted in this Indenture, or to enforce any other
legal or equitable right vested in the Trustee by this Indenture or by law.
Nothing contained herein shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Securityholder any
plan of reorganization, arrangement, adjustment or composition affecting the
Debt Securities of that series or the rights of any holder thereof or to
authorize the Trustee to vote in respect of the claim of any Securityholder in
any such proceeding.
SECTION 6.03. Application of Moneys Collected. Any moneys collected by
the Trustee pursuant to this Article with respect to a particular series of
Debt Securities shall be applied in the following order, at the date or dates
fixed by the Trustee and, in case of the distribution of such moneys on account
of principal (or premium, if any) or interest, upon presentation of the Debt
Securities of that series, and notation thereon of the payment, if only
partially paid, and upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses of collection and of all
amounts payable to the Trustee under Section 7.06;
SECOND: To the payment of all Senior Indebtedness of the Company if
and to the extent required by Article XIV; and
THIRD: To the payment of the amounts then due and unpaid upon Debt
Securities of such series for principal (and premium, if any) and
interest, in respect of which or for the benefit of which such money has
been collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Debt Securities for
principal (and premium, if any) and interest, respectively.
SECTION 6.04. Limitation on Suits. No holder of any Debt Security of
any series shall have any right by virtue or by availing of any provision of
this Indenture to institute any suit, action or proceeding in equity or at law
upon or under or with respect to this Indenture or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless (i) such holder
previously shall have given to the Trustee written notice of an Event of
Default and of the continuance thereof with respect to the Debt Securities of
such series specifying such Event of Default, as hereinbefore provided; (ii)
the holders of not less than 10% in aggregate principal amount of the Debt
Securities of such series then Outstanding shall have made written request upon
the Trustee to institute such action, suit or proceeding in its own name as
trustee hereunder; (iii) such holder or holders shall have offered to the
Trustee such reasonable indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby; and (iv) the Trustee for 60
days after its receipt of such notice, request and offer of indemnity, shall
have failed to institute any such action, suit or proceeding; and (v) during
such 60-day period, the holders of a majority in principal amount of the Debt
Securities of that series do not give the Trustee a direction inconsistent with
the request.
31
Notwithstanding anything contained herein to the contrary, any other
provisions of this Indenture, the right of any holder of any Debt Security to
receive payment of the principal of (and premium, if any) and interest on such
Debt Security, as therein provided, on or after the respective due dates
expressed in such Debt Security (or in the case of redemption, on the
redemption date), or to institute suit for the enforcement of any such payment
on or after such respective dates or redemption date, shall not be impaired or
affected without the consent of such holder, and by accepting a Security
hereunder it is expressly understood, intended and covenanted by the taker and
holder of every Security of such series with every other such taker and holder
and the Trustee, that no one or more holders of Debt Securities of such series
shall have any right in any manner whatsoever by virtue or by availing of any
provision of this Indenture to affect, disturb or prejudice the rights of the
holders of any other of such Debt Securities, or to obtain or seek to obtain
priority over or preference to any other such holder, or to enforce any right
under this Indenture, except in the manner herein provided and for the equal,
ratable and common benefit of all holders of Debt Securities of series. For the
protection and enforcement of the provisions of this Section 6.04, each and
every Securityholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity. SECTION 6.05. ...Rights and Remedies
Cumulative; Delay or Omission not Waiver. (a) Except as otherwise provided in
the final sentence of Section 2.07, all powers and remedies given by this
Article to the Trustee or to the Securityholders shall, to the extent permitted
by law, be deemed cumulative and not exclusive of any other powers and remedies
available to the Trustee or the holders of the Debt Securities, by judicial
proceedings or otherwise, to enforce the performance or observance of the
covenants and agreements contained in this Indenture or otherwise established
with respect to such Debt Securities.
(b) No delay or omission of the Trustee or of any holder of any of the
Debt Securities to exercise any right or power accruing upon any Event of
Default occurring and continuing as aforesaid shall impair any such right or
power, or shall be construed to be a waiver of any such default or an
acquiescence therein; and, subject to the provisions of Section 6.04, every
power and remedy given by this Article or by law to the Trustee or the
Securityholders may be exercised from time to time, and as often as shall be
deemed expedient, by the Trustee or by the Securityholders.
SECTION 6.06. Control by Securityholders. The holders of a (i)
majority in aggregate principal amount of the Debt Securities of any series
at the time Outstanding, determined in accordance with Section 8.04, or (ii)
if the Debt Securities of a series are issued to a Capital Trust, holders of
a majority in aggregate stated liquidation amount of the Preferred Securities
of such Capital Trust then outstanding, shall have the right to direct the
time, method and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred on the Trustee
with respect to such series; provided, however, that such direction shall not
be in conflict with any rule of law or with this Indenture or be unduly
prejudicial to the rights of holders of Debt Securities of any other series
at the time Outstanding determined in accordance with
32
Section 8.04. Subject to the provisions of Section 7.01, the Trustee shall have
the right to decline to follow any such direction if the Trustee in good faith
shall, by a Responsible Officer or Officers of the Trustee, determine that the
proceeding so directed would involve the Trustee in personal liability. The
holders of (i) a majority in aggregate principal amount of the Debt Securities
of any series at the time Outstanding affected thereby or (ii) if the Debt
Securities of a series are issued to a Capital Trust, holders of a majority in
aggregate stated liquidation amount of the Preferred Securities of such Capital
Trust then outstanding, determined in accordance with Section 8.04, may on
behalf of the holders of all of the Debt Securities of such series waive any
past default in the performance of any of the covenants contained herein or
established pursuant to Section 2.01 with respect to such series and its
consequences, except (i) a default in the payment of the principal of, or
premium, if any, or interest on, any of the Debt Securities of that series as
and when the same shall become due by the terms of such Debt Securities
otherwise than by acceleration (unless such default has been cured and a sum
sufficient to pay all matured installments of interest and principal and any
premium has been deposited with the Trustee (in accordance with Section
6.01(c)), (ii) a default in the covenants contained in Section 4.06 or (iii) in
respect of a default or violation of a covenant or provision hereof which under
Article IX or the provisions of any indenture supplemental hereto cannot be
amended or modified without the consent of the holders of each Outstanding Debt
Security of such series affected. Upon any such waiver, the default covered
thereby shall deemed to be cured for all purposes of this Indenture and the
Company, the Trustee and the holders of the Debt Securities of such series shall
be restored to their former positions and rights hereunder, respectively; but no
such waiver shall extend to any subsequent or other default or impair any right
consequent thereon.
SECTION 6.07. Undertaking to Pay Costs. All parties to this Indenture
agree, and each holder of any Debt Securities by such holder's acceptance
thereof shall be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken or omitted
by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section 6.07 shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Securityholder, or group of
Securityholders, holding more than 10% in aggregate principal amount of the
Outstanding Debt Securities of any series (or, with respect to any series of
Debt Securities issued to a Capital Trust, the holder or group of holders of
more than 10% in aggregate stated liquidation amount of the Preferred
Securities of such Capital Trust), or to any suit instituted by any
Securityholder (or, with respect to any series of Debt Securities issued to a
Capital Trust, the holder of a Preferred Security of such Capital Trust) for
the enforcement of the payment of the principal of (or premium, if any) or
interest on any Debt Security of such series, on or after the respective due
dates expressed in such Debt Security or established pursuant to this
Indenture.
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SECTION 6.08. Notice of Defaults. The Company shall provide written
notice to the Trustee immediately upon becoming aware of any Default or Event
of Default hereunder, and if any such Default or Event of Default affects the
Outstanding Debt Securities of any series of Debt Securities issued to a
Capital Trust or a trustee of such trust, the Company shall immediately provide
a copy of such written notice to the Property Trustee of such Capital Trust.
Within 30 days of the Trustee obtaining actual knowledge of the occurrence of
any Default or Event of Default, the Trustee will transmit notice of such
Default or Event of Default to the holders of the Debt Securities, unless such
Default or Event of Default is cured or waived.
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ARTICLE VII
CONCERNING THE TRUSTEE
SECTION 7.01. Certain Duties and Responsibilities of Trustee. (a) The
Trustee, prior to the occurrence of an Event of Default with respect to the
Debt Securities of a series and after the curing of all Events of Default with
respect to the Debt Securities of that series that may have occurred, shall
undertake to perform with respect to the Debt Securities of such series such
duties and only such duties as are specifically set forth in this Indenture,
and no implied covenants shall be read into this Indenture against the Trustee.
In case an Event of Default with respect to the Debt Securities of a series has
occurred (that has not been cured or waived), the Trustee shall exercise with
respect to Debt Securities of that series such of the rights and powers vested
in it by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
(b) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that:
(1) prior to the occurrence of an Event of Default with respect to the
Debt Securities of a series and after the curing or waiving of all such
Events of Default with respect to that series that may have occurred:
(i) the duties and obligations of the Trustee shall with
respect to the Debt Securities of such series be determined solely by
the express provisions of this Indenture, and the Trustee shall not be
liable with respect to the Debt Securities of such series except for
the performance of such duties and obligations as are specifically set
forth in this Indenture, and no implied covenants or obligations shall
be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the Trustee,
the Trustee may with respect to the Debt Securities of such series
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates
or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such
certificates or opinions that 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 requirement of this Indenture;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the
Trustee, unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
35
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the
direction of the holders of not less than a majority in principal amount
of the Debt Securities of any series at the time Outstanding relating to
the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon
the Trustee under this Indenture with respect to the Debt Securities of
that series; and
(4) None of the provisions contained in this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers, if there is reasonable ground for
believing that the repayment of such funds or liability is not reasonably
assured to it under the terms of this Indenture or adequate indemnity
against such risk is not reasonably assured to it.
SECTION 7.02. Certain Rights of Trustee. Except as otherwise provided
in Section 7.01:
(a) The Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond, security or
other paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) Any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by a Board Resolution or an instrument
signed in the name of the Company by the President, or any Vice President and
by the Secretary or an Assistant Secretary or the Treasurer or an Assistant
Treasurer thereof (unless other evidence in respect thereof is specifically
prescribed herein);
(c) The Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken or suffered or omitted hereunder
in good faith and in reliance thereon;
(d) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders, pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
that may be incurred therein or thereby; nothing contained herein shall,
however, relieve the Trustee of the obligation, upon the occurrence of an Event
of Default with respect to a series of the Debt Securities (that has not been
cured or waived) to exercise with respect to Debt Securities of that series
such of the rights and powers vested in it by this Indenture, and to 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;
36
(e) The Trustee shall not be liable for any action taken or omitted to
be taken by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture;
(f) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond, security, or
other papers or documents, unless requested in writing so to do by the holders
of not less than a majority in principal amount of the Outstanding Debt
Securities of the particular series affected thereby (determined as provided in
Section 8.04); provided, however, that if the payment within a reasonable time
to the Trustee of the costs, expenses or liabilities likely to be incurred by
it in the making of such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by the terms
of this Indenture, the Trustee may require reasonable indemnity against such
costs, expenses or liabilities as a condition to so proceeding. The reasonable
expense of every such examination shall be paid by the Company or, if paid by
the Trustee, shall be repaid by the Company upon demand;
(g) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder;
(h) 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;
(i) The Trustee shall not be required 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; and
(j) The Trustee shall not be deemed to have knowledge or notice of any
Event of Default or defaults with respect to any series of Debt Securities
issued hereunder unless a Responsible Officer of the Trustee shall have actual
knowledge thereof, unless notice of the Event of Default or default is provided
in writing by the Company to the Trustee or unless the holders of not less than
(x) twenty-five percent, in the case of an Acceleration Event of Default, and
(y) ten percent, in the case of a Covenant Event of Default, of the outstanding
Debt Securities of such series give notice of such Event of Default or default
to the Trustee.
(k) The permissive rights of the Trustee enumerated herein shall not
be construed as duties.
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SECTION 7.03. Trustee Not Responsible for Recitals or Issuance of Debt
Securities. (a) The recitals contained herein and in the Debt Securities shall
be taken as the statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same.
(b) The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Debt Securities.
(c) The Trustee shall not be accountable for the use or application by
the Company of any of the Debt Securities or of the proceeds of such Debt
Securities, or for the use or application of any moneys paid over by the
Trustee in accordance with any provision of this Indenture or established
pursuant to Section 2.01, or for the use or application of any moneys received
by any paying agent other than the Trustee.
SECTION 7.04. May Hold Debt Securities. The Trustee or any paying
agent or Security Registrar, in its individual or any other capacity, may
become the owner or pledgee of Debt Securities with the same rights it would
have if it were not Trustee, paying agent or Security Registrar.
SECTION 7.05. Moneys Held in Trust. Subject to the provisions of
Section 11.06, all moneys received by the Trustee shall, until used or applied
as herein provided, be held in trust for the purposes for which they were
received, but need not be segregated from other funds except to the extent
required by law. The Trustee shall be under no liability for interest on any
moneys received by it hereunder except such as it may agree with the Company to
pay thereon.
SECTION 7.06. Compensation and Reimbursement. (a) The Company
covenants and agrees to pay to the Trustee, and the Trustee shall be entitled
to, such reasonable compensation (which shall not be limited by any provision
of law in regard to the compensation of a trustee of an express trust), as the
Company and the Trustee may from time to time agree in writing, for all
services rendered by it in the execution of the trusts hereby created and in
the exercise and performance of any of the powers and duties hereunder of the
Trustee, and, except as otherwise expressly provided herein, the Company will
pay or reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any of the provisions of this Indenture (including the reasonable compensation
and the expenses and disbursements of its counsel and of all Persons not
regularly in its employ) except any such expense, disbursement or advance as
may arise from its negligence or bad faith. The Company also covenants to
indemnify the Trustee (and its officers, agents, directors and employees) for,
and to hold it harmless against, any loss, liability or expense incurred
without negligence or bad faith on the part of the Trustee and arising out of
or in connection with the acceptance or administration of this trust, including
the costs and expenses of defending itself against any claim of liability in
the premises.
(b) The obligations of the Company under this Section to compensate
and indemnify the Trustee and to pay or reimburse the Trustee for expenses,
38
disbursements and advances shall constitute additional indebtedness hereunder
and shall survive the satisfaction and discharge of this Indenture. Such
additional indebtedness shall be secured by a lien prior to that of the Debt
Securities upon all property and funds held or collected by the Trustee as
such, except funds held in trust for the benefit of the holders of particular
Debt Securities. When the Trustee incurs expenses after the occurrence of an
Event of Default specified in Section 6.01(4) or (5) with respect to the
Company, the expenses are intended to constitute expenses of administration
under the United States Bankruptcy Code (Title 11 of the United States Code) or
any other similar law for the relief of debtors.
SECTION 7.07. Reliance on Officers' Certificate. Except as otherwise
provided in Section 7.01, whenever in the administration of the provisions of
this Indenture the Trustee shall deem it necessary or desirable that a matter
be proved or established prior to taking or suffering or omitting to take any
action hereunder, such matter (unless other evidence in respect thereof be
herein specifically prescribed) may, in the absence of negligence or bad faith
on the part of the Trustee, be deemed to be conclusively proved and established
by an Officers' Certificate delivered to the Trustee and such certificate, in
the absence of negligence or bad faith on the part of the Trustee, shall be
full warrant to the Trustee for any action taken, suffered or omitted to be
taken by it under the provisions of this Indenture upon the faith thereof.
SECTION 7.08. Qualification; Conflicting Interests. If the Trustee has
or shall acquire any "conflicting interest" within the meaning of Section
310(b) of the Trust Indenture Act, the Trustee and the Company shall in all
respects comply with the provisions of Section 310(b) of the Trust Indenture
Act.
SECTION 7.09. Corporate Trustee Required; Eligibility. There shall at
all times be a Trustee with respect to the Debt Securities issued hereunder
which shall at all times be a corporation organized and doing business under
the laws of the United States of America or any State or Territory thereof or
of the District of Columbia, or a corporation or other Person permitted to act
as trustee by the Commission, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least fifty million
U.S. dollars ($50,000,000), and subject to supervision or examination by
Federal, State, Territorial or District of Columbia authority. If such
corporation publishes reports of condition at least annually, pursuant to law
or to the requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. The Company may not, nor
may any Person directly or indirectly controlling, controlled by, or under
common control with the Company, serve as Trustee. In case at any time the
Trustee shall cease to be eligible in accordance with the provisions of this
Section, the Trustee shall resign immediately in the manner and with the effect
specified in Section 7.10.
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SECTION 7.10. Resignation and Removal; Appointment of Successor. (a)
The Trustee or any successor hereafter appointed, may at any time resign with
respect to the Debt Securities of one or more series by giving written notice
thereof to the Company, and, if the Debt Securities of such series are held by
a Capital Trust, to the property trustee of such Capital Trust, and by
transmitting notice of resignation by mail, first class postage prepaid, to the
Securityholders of such series, as their names and addresses appear upon the
Security Register. Upon receiving such notice of resignation, the Company shall
promptly appoint a successor trustee with respect to Debt Securities of such
series by written instrument, in duplicate, executed by order of the Board of
Directors, one copy of which instrument shall be delivered to the resigning
Trustee and one copy to the successor trustee. If no successor trustee shall
have been so appointed and have accepted appointment within 30 days after the
mailing of such notice of resignation, the resigning Trustee may, at the
expense of the Company, petition any court of competent jurisdiction for the
appointment of a successor trustee with respect to Debt Securities of such
series, or any Securityholder of that series who has been a bona fide holder of
a Debt Security or Debt Securities for at least six months may, subject to the
provisions of Section 6.08, on behalf of himself and all others similarly
situated, petition any such court for the appointment of a successor trustee.
Such court may thereupon after such notice, if any, as it may deem proper and
prescribe, appoint a successor trustee.
(b) In case at any time any one of the following shall occur:
(1) the Trustee shall fail to comply with the provisions of Section
7.08 after written request therefor by the Company or by any
Securityholder who has been a bona fide holder of a Debt Security or Debt
Securities for at least six months; or
(2) the Trustee shall cease to be eligible in accordance with the
provisions of Section 7.09 and shall fail to resign after written request
therefor by the Company or by any such Securityholder; or
(3) the Trustee shall become incapable of acting, or shall be adjudged
a bankrupt or insolvent, or commence a voluntary bankruptcy proceeding, or
a receiver of the Trustee or of its property shall be appointed or
consented to, 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, the Company may
remove the Trustee with respect to all Debt Securities and appoint a
successor trustee by written instrument, in duplicate, executed by order
of the Board of Directors, one copy of which instrument shall be delivered
to the Trustee so removed and one copy to the successor trustee, or,
subject to the provisions of Section 6.08, unless the Trustee's duty to
resign is stayed as provided herein, any Securityholder who has been a
bona fide holder of a Debt Security or Debt Securities for at least six
months may, on behalf of that holder and all others similarly situated,
petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor
40
trustee. Such court may thereupon after such notice, if any, as it
may deem proper and prescribe, remove the Trustee and appoint a successor
trustee.
(c) The holders of a majority in aggregate principal amount of the
Debt Securities of any series at the time Outstanding may at any time remove
the Trustee with respect to such series by so notifying the Trustee and the
Company and may appoint a successor Trustee for such series with the consent of
the Company.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee with respect to the Debt Securities of a series pursuant to
any of the provisions of this Section shall become effective upon acceptance of
appointment by the successor trustee as provided in Section 7.11.
(e) Any successor trustee appointed pursuant to this Section may be
appointed with respect to the Debt Securities of one or more series or all of
such series, and at any time there shall be only one Trustee with respect to
the Debt Securities of any particular series.
SECTION 7.11. Acceptance of Appointment by Successor. (a) In case of
the appointment hereunder of a successor trustee with respect to all Debt
Securities, every such successor trustee so appointed shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor trustee, such retiring Trustee shall, upon
payment of 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.
(b) In case of the appointment hereunder of a successor trustee with
respect to the Debt Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor trustee with respect to the
Debt Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor trustee shall accept such
appointment and which (1) shall contain such provisions as shall be necessary
or desirable to transfer and confirm to, and to vest in, each successor
trustee all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Debt Securities of that or those series to which the
appointment of such successor trustee relates, (2) shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Debt Securities of that or those series as to which the retiring Trustee is
not retiring shall continue to be vested in the retiring Trustee, and shall
add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein
or in such supplemental indenture shall constitute such
41
Trustees co-trustees of the same trust, that each such Trustee shall be trustee
of a trust or trusts hereunder separate and apart from any trust or trusts
hereunder administered by any other such Trustee and that no Trustee shall be
responsible for any act or failure to act on the part of any other Trustee
hereunder; and upon the execution and delivery of such supplemental indenture
the resignation or removal of the retiring Trustee shall become effective to the
extent provided therein, such retiring Trustee shall with respect to the Debt
Securities of that or those series to which the appointment of such successor
trustee relates have no further responsibility for the exercise of rights and
powers or for the performance of the duties and obligations vested in the
Trustee under this Indenture, and each such successor trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee with respect to the Debt
Securities of that or those series to which the appointment of such successor
trustee relates; but, on request of the Company or any successor trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
trustee, to the extent contemplated by such supplemental indenture, the property
and money held by such retiring Trustee hereunder with respect to the Debt
Securities of that or those series to which the appointment of such successor
trustee relates.
(c) Upon request of any such successor trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor trustee shall accept its appointment unless at the
time of such acceptance such successor trustee shall be qualified and eligible
under this Article.
(e) Upon acceptance of appointment by a successor trustee as provided
in this Section, the Company shall transmit notice of the succession of such
trustee hereunder by mail, first class postage prepaid, to the Securityholders,
as their names and addresses appear upon the Security Register. If the Company
fails to transmit such notice within ten days after acceptance of appointment
by the successor trustee, the successor trustee shall cause such notice to be
transmitted at the expense of the Company.
SECTION 7.12. Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to the corporate trust business of the Trustee,
shall be the successor of the Trustee hereunder, provided that such
corporation shall be qualified under the provisions of Section 7.08 and
eligible under the provisions of Section 7.09, without the execution or
filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding. In case any Debt
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
42
and deliver the Debt Securities so authenticated with the same effect as if
such successor Trustee had itself authenticated such Debt Securities.
SECTION 7.13. Preferential Collection of Claims Against the Company.
The Trustee shall comply with Section 311(a) of the Trust Indenture Act,
excluding any creditor relationship described in Section 311(b) of the Trust
Indenture Act. A Trustee who has resigned or been removed shall be subject to
Section 311(a) of the Trust Indenture Act to the extent included therein.
43
ARTICLE VIII
CONCERNING THE SECURITYHOLDERS
SECTION 8.01. Evidence of Action by Securityholders. Whenever in this
Indenture it is provided that the holders of a majority or specified percentage
in aggregate principal amount of the Debt Securities of a particular series may
take any action (including the making of any demand or request, the giving of
any notice, consent or waiver or the taking of any other action), the fact that
at the time of taking any such action the holders of such majority or specified
percentage of that series have joined therein may be evidenced by any
instrument or any number of instruments of similar tenor executed by such
holders of Debt Securities of that series in Person or by agent or proxy
appointed in writing.
If the Company shall solicit from the Securityholders of any series
any request, demand, authorization, direction, notice, consent, waiver or other
action, the Company may, at its option, as evidenced by an Officers'
Certificate, fix in advance a record date for such series for the determination
of Securityholders entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other action, but the Company shall have
no obligation to do so. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other action may be given
before or after the record date, but only the Securityholders of record at the
close of business on the record date shall be deemed to be Securityholders for
the purposes of determining whether Securityholders of the requisite proportion
of Outstanding Debt Securities of that series have authorized or agreed or
consented to such request, demand, authorization, direction, notice, consent,
waiver or other action, and for that purpose the Outstanding Debt Securities of
that series shall be computed as of the record date; provided, however, that no
such authorization, agreement or consent by such Securityholders on the record
date shall be deemed effective unless it shall become effective pursuant to the
provisions of this Indenture not later than six months after the record date.
SECTION 8.02. Proof of Execution by Securityholders. Subject to the
provisions of Section 7.01, proof of the execution of any instrument by a
Securityholder (such proof will not require notarization) or his agent or proxy
and proof of the holding by any Person of any of the Debt Securities shall be
sufficient if made in the following manner:
(a) The fact and date of the execution by any such Person of any
instrument may be proved in any reasonable manner acceptable to the
Trustee.
(b) The ownership of Debt Securities shall be proved by the Security
Register of such Debt Securities or by a certificate of the Security
Registrar thereof.
(c) The Trustee may require such additional proof of any matter
referred to in this Section as it shall deem necessary.
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SECTION 8.03. Who May be Deemed Owners. Prior to the due presentment
for registration of transfer of any Debt Security, the Company, the Trustee,
any paying agent and any Security Registrar may deem and treat the Person in
whose name such Debt Security shall be registered upon the books of the Company
as the absolute owner of such Debt Security (whether or not such Debt Security
shall be overdue and notwithstanding any notice of ownership or writing thereon
made by anyone other than the Security Registrar) for the purpose of receiving
payment of or on account of the principal of, premium, if any, and (subject to
Section 2.03) interest on such Debt Security and for all other purposes; and
neither the Company nor the Trustee nor any paying agent nor any Security
Registrar shall be affected by any notice to the contrary.
SECTION 8.04. Certain Debt Securities Owned by Company Disregarded. In
determining whether the holders of the requisite aggregate principal amount of
Debt Securities of a particular series have concurred in any direction, consent
waiver under this Indenture, the Debt Securities of that series that are owned,
directly or indirectly, by the Company or any other obligor on the Debt
Securities of that series or by any Person directly or indirectly controlling
or controlled by or under common control with the Company or any other obligor
on the Debt Securities of that series shall be disregarded and deemed not to be
outstanding for the purpose of any such determination, except that for the
purpose of determining whether the Trustee shall be protected in relying on any
such direction, consent or waiver, only Debt Securities of such series that the
Trustee actually knows are so owned shall be so disregarded. The Debt
Securities so owned that have been pledged in good faith may be regarded as
outstanding for the purposes of this Section, if the pledgee shall establish to
the satisfaction of the Trustee the pledgee's right so to act with respect to
such Debt Securities and that the pledgee is not a Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company or any such other obligor. In case of a dispute as to
such right, any decision by the Trustee taken upon the advice of counsel shall
be full protection to the Trustee.
SECTION 8.05. Actions Binding on Future Securityholders. At any time
prior to (but not after) the evidencing to the Trustee, as provided in Section
8.01, of the taking of any action by the holders of a majority or specified
percentage in aggregate principal amount of the Debt Securities of a
particular series in connection with such action, any holder of a Debt
Security of that series that is shown by the evidence to be included in the
Debt Securities the holders of which have consented to such action may, by
filing written notice with the Trustee, and upon proof of holding as provided
in Section 8.02, revoke such action so far as concerns such Debt Security.
Except as aforesaid, any such action taken by the holder of any Debt Security
shall be conclusive and binding upon such holder and upon all future holders
and owners of such Debt Security, and of any Debt Security issued in exchange
therefor, on registration of transfer thereof or in place thereof,
irrespective of whether or not any notation in regard thereto is made upon
such Debt Security. Any action taken by the holders of a majority or specified
percentage in aggregate principal amount of the Debt Securities of a particular
45
series in connection with such action shall be conclusively binding upon the
Company, the Trustee and the holders of all the Debt Securities of that series.
46
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without the Consent of
Securityholders. In addition to any supplemental indenture otherwise authorized
by this Indenture, the Company and the Trustee may from time to time and at any
time enter into an indenture or indentures supplemental hereto (which shall
conform to the provisions of the Trust Indenture Act as then in effect),
without the consent of the Securityholders, for one or more of the following
purposes:
(a) to cure any ambiguity, defect or inconsistency herein or in the
Debt Securities of any series;
(b) to comply with Section 10.01 and Section 10.03;
(c) to provide for uncertificated Debt Securities in addition to or in
place of certificated Debt Securities;
(d) to add to the covenants of the Company for the benefit of the
holders of all or any series of Debt Securities (and if such covenants are
to be for the benefit of less than all series of Debt 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;
(e) to add to, delete from, or revise the conditions, limitations and
restrictions on the authorized amount, terms or purposes of issue,
authentication and delivery of Debt Securities, as herein set forth;
(f) to make any change that does not adversely affect the rights of
any Securityholder in any material respect; or
(g) to provide for the issuance of and establish the form and terms
and conditions of the Debt Securities of any series as provided in Section
2.01, to establish the form of any certifications required to be furnished
pursuant to the terms of this Indenture or any series of Debt Securities,
or to add to the rights of the holders of any series of Debt Securities.
The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, and to make any further
appropriate agreements and stipulations that may be therein contained, but the
Trustee shall not be obligated to enter into any such supplemental indenture
that affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section may be executed by the Company and the Trustee without the consent
of the holders of
47
any of the Debt Securities at the time Outstanding notwithstanding
any of the provisions of Section 9.02.
SECTION 9.02. Supplemental Indentures with Consent of Securityholders.
With the consent (evidenced as provided in Section 8.01) of the holders of not
less than a majority in aggregate principal amount of the Debt Securities of
each series affected by such supplemental indenture or indentures at the time
Outstanding, the Company, when authorized by a Board Resolution, and the
Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act as then in effect) for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this
Indenture or of any supplemental indenture or of modifying in any manner not
covered by Section 9.01 the rights of the holders of the Debt Securities of
such series under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the holders of each Debt Security then
Outstanding and affected thereby, (i) extend the fixed maturity of any Debt
Securities of any series, or reduce the principal amount thereof, or reduce the
rate or extend the time of payment of interest thereon, or reduce any premium
payable upon the redemption thereof, without the consent of the holder of each
Debt Security so affected or (ii) reduce the aforesaid percentage of Debt
Securities, the holders of which are required to consent to any such
supplemental indenture.
It shall not be necessary for the consent of the Securityholders of
any series affected thereby under this Section to approve the particular form
of any proposed supplemental indenture, but it shall be sufficient if such
consent shall approve the substance thereof.
SECTION 9.03. Effect of Supplemental Indentures. Upon the execution of
any supplemental indenture pursuant to the provisions of this Article or of
Section 10.01, this Indenture shall, with respect to such series, be and be
deemed to be modified and amended in accordance therewith and the respective
rights, limitations of rights, obligations, duties and immunities under this
Indenture of the Trustee, the Company and the holders of Debt Securities of the
series affected thereby shall thereafter be determined, exercised and enforced
hereunder subject in all respects to such modifications and amendments, and all
the terms and conditions of any such supplemental indenture shall be and be
deemed to be part of the terms and conditions of this Indenture for any and all
purposes.
SECTION 9.04. Debt Securities Affected by Supplemental Indentures.
Debt Securities of any series affected by a supplemental indenture,
authenticated and delivered after the execution of such supplemental indenture
pursuant to the provisions of this Article or of Section 10.01, may bear a
notation in form approved by the Company, provided such form meets the
requirements of any exchange upon which such series may be listed, as to any
matter provided for in such supplemental indenture. If the Company shall so
determine, new Debt Securities of that series so modified as to conform, in the
48
opinion of the Board of Directors of the Company, to any modification of this
Indenture contained in any, such supplemental indenture may be prepared by the
Company, authenticated by the Trustee and delivered in exchange for the Debt
Securities of that series then outstanding.
SECTION 9.05. Execution of Supplemental Indentures. Upon the request
of the Company, accompanied by a Board Resolution authorizing the execution of
any such supplemental indenture, and upon the filing with the Trustee of
evidence of the consent of Securityholders required to consent thereto as
aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion but shall not be obligated to enter into
such supplemental indenture. The Trustee, subject to the provisions of Section
7.01, shall receive, in addition to the documents required by Section 13.07, an
Opinion of Counsel as conclusive evidence that any supplemental indenture
executed pursuant to this Article is authorized or permitted by, and conforms
to, the terms of this Article and that it is proper for the Trustee under the
provisions of this Article to join in the execution thereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Trustee
shall transmit by mail, first class postage prepaid, a notice, setting forth in
general terms the substance of such supplemental indenture, to the
Securityholders of all series affected thereby as their names and addresses
appear upon the Security Register. Any failure of the Trustee to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.
49
ARTICLE X
SUCCESSOR CORPORATION
SECTION 10.01. Company may Consolidate, Reincorporate, Etc. on Certain
Conditions. The Company shall not, directly or indirectly, consolidate with or
merge into, or sell, lease or convey all or substantially all of its assets to,
or reincorporate or otherwise reorganize as, another entity, whether in a
single transaction or a series of related transactions, unless:
(i) the successor or transferee entity is a corporation duly organized
and existing under the laws of its jurisdiction of incorporation;
(ii) the successor or transferee corporation 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 any premium and interest on all the Debt Securities and the performance
or observance of every covenant and obligation of this Indenture on the part of
the Company to be performed or observed;
(iii) the Company or the successor corporation, as the case may be,
will not, immediately after giving effect to such transaction, be in default in
the performance of any covenant or condition hereunder;
(iv) if any series of Debt Securities, of which any Debt Securities
are then Outstanding, has been issued to a Capital Trust, such consolidation,
merger, sale, lease, conveyance, or reincorporation or reorganization is
permitted under the Declaration of such Capital Trust, and Preferred Securities
Guarantee with respect to the Preferred Securities issued thereby, and does not
give rise to any breach or violation of such Declaration or Preferred
Securities Guarantee; and
(v) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger, sale,
lease, conveyance, or reincorporation or reorganization and, if a supplemental
indenture is required in connection with such transaction, such supplemental
indenture comply with this Article and that all conditions precedent herein
provided for relating to such transaction have been complied with.
SECTION 10.02. Successor Corporation Substituted. Upon any
consolidation of the Company with, merger of the Company into, or
reincorporation or other reorganization of the Company as, any other Person or
any conveyance, transfer or lease of the properties and assets of the Company
substantially as an entirety in accordance with Section 10.01, the successor
Person formed by such consolidation, into which the Company is merged or
reincorporated or reorganized, or to which such conveyance, transfer or lease
is made shall succeed to, and be substituted for, and may exercise every right
and power of, the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein, and thereafter,
50
except in the case of a lease, the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the Debt Securities.
SECTION 10.03. Obligations in the Event of Non-U.S. Merger. (a) If,
upon or after the occurrence of a "Non-U.S. Merger," the Company or any Capital
Trust is required to withhold, or any holder of Debt Securities or Trust
Securities is required to pay, any present or future amount in respect of
taxes, duties, assessments or other governmental charges on any payment made in
respect of principal of or interest or premium on that holder's Debt Securities
or Trust Securities by any taxing authority that would not have been withheld
or imposed on that payment had the Non-U.S. Merger not occurred, the Company
will pay to that holder an amount (the "Gross-Up Payment") equal to all
additional amounts that may be necessary so that every net payment of
principal, interest and premium to the holder will not be less than the amount
provided for in the Debt Securities or Preferred Securities. The term "net
payment" means the amount the Company will pay to the holder after the
Company's or that holder's payment, deduction or withholding an amount for or
on account of any present or future taxes, duties, assessments or other
governmental charges imposed with respect to that payment by any taxing
authority that would not have been imposed if the Non-U.S. Merger had not
occurred. For purposes of determining the amount of the Gross-Up Payment, to
the extent that any withholding or imposition of any tax, duty, assessment or
other governmental charge is assessed on different taxpayers at different
rates, the rate applicable to each holder of Debt Securities or Preferred
Securities will be the highest marginal rate for the period in which the
Gross-Up Payment is to be made.
Any reference in the Indenture, or the Debt Securities to principal,
interest, premium or any other amount payable in respect of the Debt Securities
also refers to any Gross-Up Payment payable with respect thereto pursuant to
this Section 10.03.
(b) In the event of the occurrence of a Non-U.S. Merger, the successor
Company will enter into an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, pursuant to
which the successor Company will:
(i) irrevocably submit to the non-exclusive jurisdiction of any New
York State or Federal court sitting in The City of New York over any suit,
action or proceeding arising out of or relating to this Indenture or any Debt
Security;
(ii) waive, to the fullest extent permitted by law, any objection
which it may have to the laying of the venue of any such suit, action or
proceeding brought in such a court and any claim that any such suit, action or
proceeding brought in such court has been brought in any inconvenient forum;
(iii) agree that final judgment in any such suit, action or
proceeding brought in such a court shall be conclusive and binding upon the
successor Company and may be enforced in the courts of the jurisdiction of
which the successor Company is subject by a suit upon such judgment, provided
that service of process is effected upon
51
the successor Company in the manner specified in the following paragraph or as
otherwise permitted by law; provided, however, that such covenant will not
constitute a waiver of any right to appeal any such judgment, to seek any stay
or otherwise to seek reconsideration or review of any such judgment or any
stay of execution or levy pending an appeal from, or a suit, action or
proceeding for reconsideration or review of, any such judgment;
(iv) covenant that, as long as any of the Debt Securities remain
Outstanding, it will at all times have an authorized agent in the Borough of
Manhattan, The City of New York upon whom process may be served in any legal
action or proceeding arising out of or relating to the Indenture or any Debt
Security on which service of process shall to the extent permitted by law be
deemed in every respect effective service of process upon the Company in any
such legal action or proceeding (which authorized agent may be CT Corporation
System or its successor); and
(v) consent to process being served in any suit, action or proceeding
of the nature referred to in the preceding clauses by service upon its
designated agent.
52
ARTICLE XI
SATISFACTION, DEFEASANCE AND DISCHARGE
SECTION 11.01. Satisfaction and Discharge. If at any time: (a) the
Company shall have delivered to the Trustee for cancellation all Debt
Securities of a series theretofore authenticated (other than any Debt
Securities that shall have been destroyed, lost or stolen and that shall have
been replaced or paid as provided in Section 2.07) and Debt Securities for
whose payment money or Governmental Obligations have theretofore been deposited
in trust or segregated and held in trust by the Company (and thereupon repaid
to the Company or discharged from such trust, as provided in Section 11.06); or
(b) all such Debt Securities of a particular series not theretofore delivered
to the Trustee for cancellation shall have become due and payable, or are by
their terms to become due and payable within one year or are to be called for
redemption within one year under arrangements satisfactory to the Trustee for
the giving of notice of redemption, and the Company shall deposit or cause to
be deposited with the Trustee as trust funds the entire amount in moneys or
Governmental Obligations or a combination thereof, sufficient in the opinion of
a nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay at maturity or
upon redemption all Debt Securities of that series not theretofore delivered to
the Trustee for cancellation, including principal (and premium, if any) and
interest due or to become due to such date of maturity or date fixed for
redemption, as the case may be, and if the Company shall also pay or cause to
be paid all other sums payable hereunder with respect to such series by the
Company, then if the Company has delivered to the Trustee an Opinion of Counsel
based on the fact that (x) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (y) since the date
hereof, there has been a change in the applicable United States federal income
tax law, in either case to the effect that, and such opinion shall confirm
that, the holders of the Debt Securities of such series will not recognize
income, gain or loss for United States federal income tax purposes as a result
of such deposit, defeasance and discharge and will be subject to United States
federal income tax on the same amount and in the same manner and at the same
times, as would have been the case if such deposit, defeasance and discharge
had not occurred, this Indenture shall thereupon cease to be of further effect
with respect to such series except for the provisions of Sections 2.03, 2.05,
2.07, 4.01, 4.02, 4.03 and 7.10, that shall survive until the date of maturity
or redemption date, as the case may be, and Sections 7.06 and 11.06, that shall
survive to such date and thereafter, and the Trustee, on demand of the Company
and at the cost and expense of the Company shall execute, upon receipt by the
Trustee from the Company of an Officers' Certificate and an Opinion of Counsel
stating that all conditions precedent specified herein relating to the
satisfaction and discharge of this Indenture with respect to such series have
been complied with, proper instruments acknowledging satisfaction of and
discharging this Indenture with respect to such series.
SECTION 11.02. Defeasance and Discharge. If at any time all Debt
Securities of a particular series not heretofore delivered to the Trustee for
cancellation or that have not become due and payable as described in Section
11.01 shall have been paid
53
by the Company by depositing irrevocably with the Trustee as trust funds moneys
or an amount of Governmental Obligations sufficient to pay at maturity or upon
redemption all such Debt Securities of that series not theretofore delivered to
the Trustee for cancellation, including principal (and premium, if any) and
interest due or to become due to such date of maturity or date fixed for
redemption, as the case may be, and if the Company shall also pay or cause to
be paid all other sums payable hereunder by the Company with respect to such
series, then, after the date such moneys or Governmental Obligations, as the
case may be, are deposited with the Trustee, if the Company has delivered to
the Trustee an Opinion of Counsel based on the fact that (x) the Company has
received from, or there has been published by, the Internal Revenue Service a
ruling or (y) since the date hereof, there has been a change in the applicable
United States federal income tax law, in either case to the effect that, and
such opinion shall confirm that, the holders of the Debt Securities of such
series will not recognize income, gain or loss for United States federal income
tax purposes as a result of such deposit, defeasance and discharge and will be
subject to United States federal income tax on the same amount and in the same
manner and at the same times, as would have been the case if such deposit,
defeasance and discharge had not occurred, at the option of the Company,
(A) the obligations of the Company under this Indenture with
respect to such series shall cease to be of further effect, except for
the provisions of Sections 2.03, 2.05, 2.07, 4.01, 4.02, 4.03, 7.06,
7.10 and 11.06 hereof that shall survive until such Debt Securities
shall mature and be paid; and
(B) if the Debt Securities or series of such Debt Securities
are subordinated to any other obligations of the Company as
contemplated by Section 14.01, provisions with respect to the
subordination of such Debt Securities shall cease to be of further
effect.
Thereafter, notwithstanding the foregoing, Sections 7.06 and 11.06
shall survive. The Company shall deliver to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the discharge of obligations have been complied with.
SECTION 11.03. Covenant Defeasance. If (i) at any time all Debt
Securities of a particular series not heretofore delivered to the Trustee for
cancellation or that have not become due and payable as described in Section
11.01 shall have been paid by the Company by depositing irrevocably with the
Trustee as trust funds moneys or an amount of Governmental Obligations
sufficient to pay at maturity or upon redemption all such Debt Securities of
that series not theretofore delivered to the Trustee for cancellation,
including principal (and premium, if any) and interest due or to become due
to such date of maturity or date fixed for redemption, as the case may be,
(ii) the Company shall also pay or cause to be paid all other sums payable
hereunder by the Company with respect to such series, and (iii) the Company
shall not have exercised its option pursuant to Section 11.02, then, after
the date such moneys or Governmental Obligations, as the case may be, are
deposited with the Trustee, if the Company has
54
delivered to the Trustee an Opinion of Counsel confirming that the holders of
the Debt Securities of such series will not recognize income, gain or loss for
United States federal income tax purposes as a result of such deposit,
defeasance and discharge and will be subject to United States federal income
tax on the same amount and in the same manner and at the same times, as would
have been the case if such deposit, defeasance and discharge had not occurred,
at the option of the Company, (1) the Company shall be released from its
obligations under any covenants provided pursuant to Section 9.01(d) or 9.01(g)
for the benefit of the holders of such Debt Securities and (2) the occurrence
of any event specified in Section 6.01(7) with respect to any such covenants
provided pursuant to Section 9.01(d) or 9.01(g) shall be deemed not to be or
result in an Event of Default. The Company shall deliver to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent to the exercise of such option have been complied with.
SECTION 11.04. Deposited Moneys to be Held in Trust. All moneys or
Governmental Obligations deposited with the Trustee pursuant to Section 11.01,
11.02 or 11.03 shall be held in trust and shall be available for payment as
due, either directly or through any paying agent (including the Company acting
as its own paying agent), to the holders of the particular series of Debt
Securities for the payment or redemption of which such moneys or Governmental
Obligations have been deposited with the Trustee.
SECTION 11.05. Payment of Moneys Held by Paying Agents. In connection
with the satisfaction and discharge of this Indenture, all moneys or
Governmental Obligations then held by any paying agent under the provisions of
this Indenture shall, upon demand of the Company, be paid to the Trustee and
thereupon such paying agent shall be released from all further liability with
respect to such moneys or Governmental Obligations.
SECTION 11.06. Repayment to Company. Any moneys or Governmental
Obligations deposited with any paying agent or the Trustee, or then held by the
Company, in trust for payment of principal of or premium or interest on the
Debt Securities of a particular series that are not applied but remain
unclaimed by the holders of such Debt Securities for at least two years after
the date upon which the principal of (and premium, if any) or interest on such
Debt Securities shall have respectively become due and payable, shall be repaid
to the Company on November 30 of each year or (if then held by the Company)
shall be discharged from such trust; and thereupon the paying agent and the
Trustee shall be released from all further liability with respect to such
moneys or Governmental Obligations, and the holder of any of the Debt
Securities entitled to receive such payment shall thereafter, as an unsecured
general creditor, look only to the Company for the payment thereof.
SECTION 11.07. Reinstatement. If the Trustee or any paying agent is
unable to apply any money in accordance with Section 11.01, 11.02 or 11.03 by
reason of any legal proceeding or by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the
55
Company's obligations under this Indenture and the holders of Debt Securities
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 3.01 until such time as the Trustee or such Paying Agent is permitted
to apply all such money in accordance with Section 11.01, 11.02 or 11.03.
56
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.01. No Recourse. No recourse under or upon any obligation,
covenant or agreement of this Indenture, or of any Debt Security, or for any
claim based thereon or otherwise in respect thereof, shall be had against any
incorporator, stockholder, officer or director, past, present or future as
such, of the Company or of any predecessor or successor corporation, either
directly or through the Company or any such predecessor or successor
corporation, whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise; it being
expressly understood that this Indenture and the obligations issued hereunder
are solely corporate obligations, and that no such personal liability whatever
shall attach to, or is or shall be incurred by, the incorporators,
stockholders, officers or directors as such, of the Company or of any
predecessor or successor corporation, or any of them, because of the creation
of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any of
the Debt Securities or implied therefrom; and that any and all such personal
liability of every name and nature, either at common law or in equity or by
constitution or statute, of, and any and all such rights and claims against,
every such incorporator, stockholder, officer or director as such, because of
the creation of the indebtedness hereby authorized, or under or by reason of
the obligations, covenants or agreements contained in this Indenture or in any
of the Debt Securities or implied therefrom, are hereby expressly waived and
released as a condition of, and as a consideration for, the execution of this
Indenture and the issuance of such Debt Securities.
57
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01. Effect on Successors and Assigns. All the covenants,
stipulations, promises and agreements in this Indenture contained by or on
behalf of the Company shall bind successors and assigns, whether so expressed
or not.
SECTION 13.02. Actions by Successor. Any act or proceeding by any
provision of this Indenture authorized or required to be done or performed by
any board, committee or officer of the Company shall and may be done and
performed with like force and effect by the corresponding board, committee or
officer of any corporation that shall at the time be the lawful successor of
the Company.
SECTION 13.03. Surrender of Company Powers. The Company by instrument
in writing executed by authority of 2/3 (two-thirds) of its Board of Directors
and delivered to the Trustee may surrender any of the powers reserved to the
Company, and thereupon such power so surrendered shall terminate both as to the
Company and as to any successor corporation.
SECTION 13.04. Notices. Except as otherwise expressly provided herein,
any notice or demand that by any provision of this Indenture is required or
permitted to be given or served by the Trustee or by the holders of Debt
Securities to or on the Company may be given or served by being deposited first
class postage prepaid in a post-office letterbox addressed (until another
address is filed in writing by the Company with the Trustee), as follows: The
Stanley Works, 1000 Stanley Drive, New Britain Connecticut 06053, Attention:
Treasurer and Corporate Secretary. Any notice, election, request or demand by
the Company or any Securityholder to or upon the Trustee shall be deemed to
have been sufficiently given or made, for all purposes, if given or made in
writing at the Corporate Trust Office of the Trustee.
SECTION 13.05. Governing Law. This Indenture and each Debt Security
shall be deemed to be a contract made under the internal laws of the State of
New York, and for all purposes shall be construed in accordance with the laws
of said State.
SECTION 13.06. Treatment of the Debt Securities as Debt. It is
intended that the Debt Securities will be treated as indebtedness and not as
equity for federal income tax purposes. The provisions of this Indenture shall
be interpreted to further this intention.
SECTION 13.07. Compliance Certificates and Opinions. (a) Upon any
application or demand by the Company to the Trustee to take any action under
any of the provisions of this Indenture, the Company shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent have been complied with, except that in the case of any
such application or demand as to which the furnishing of
58
such documents is specifically required by any provision of this Indenture
relating to such particular application or demand, no additional certificate or
opinion need be furnished.
(b) Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or
covenant in this Indenture shall include (1) a statement that the Person making
such certificate or opinion has read such covenant or condition; (2) a brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are
based; (3) a statement that, in the opinion of such Person, he 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 or not, in the opinion of such
Person, such condition or covenant has been complied with.
SECTION 13.08. Payments on Business Days. Except as provided pursuant
to Section 2.01 pursuant to a Board Resolution, and as set forth in an
Officers' Certificate, or established in one or more indentures supplemental to
this Indenture, in any case where the date of maturity of interest or principal
of any Debt Security or the date of redemption of any Debt Security shall not
be a Business Day, then payment of interest or principal (and premium, if any)
may be made on the next succeeding Business Day with the same force and effect
as if made on the nominal date of maturity or redemption, and no interest shall
accrue for the period after such nominal date.
SECTION 13.09. Conflict with Trust Indenture Act. If and to the extent
that any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act,
such imposed duties shall control.
SECTION 13.10. Counterparts. This Indenture may be executed in any
number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument.
SECTION 13.11. Separability. In case any one or more of the provisions
contained in this Indenture or in the Debt Securities of any series shall for
any reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other
provisions of this Indenture or of such Debt Securities, but this Indenture and
such Debt Securities shall be construed as if such invalid or illegal or
unenforceable provision had never been contained herein or therein.
SECTION 13.12. Assignment. The Company will have the right at all
times to assign any of its respective rights or obligations under this
Indenture to a direct or indirect wholly-owned Subsidiary of the Company,
provided that, in the event of any such assignment, the Company will remain
liable for all such obligations. Subject to the foregoing, the Indenture is
binding upon and inures to the benefit of the parties thereto
59
and their respective successors and assigns. This Indenture may not otherwise
be assigned by the parties thereto.
SECTION 13.13. Acknowledgment of Rights. The Company acknowledges
that, with respect to any Debt Securities held by a Capital Trust or a trustee
of such trust, if the Property Trustee of such Trust fails to enforce its
rights under this Indenture as the holder of the series of Debt Securities held
as the assets of such Capital Trust, any holder of Preferred Securities may
institute legal proceedings directly against the Company to enforce such
Property Trustee's rights under this Indenture without first instituting any
legal proceedings against such Property Trustee or any other person or entity.
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ARTICLE XIV
SUBORDINATION OF DEBT SECURITIES
SECTION 14.01. Subordination Terms. The payment by the Company of the
principal of, premium, if any, and interest on any series of Debt Securities
issued hereunder shall be subordinated to the extent set forth in an indenture
supplemental hereto relating to such Debt Securities.
61
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed and attested, all as of the day and year first above written.
THE STANLEY WORKS
By: /s/ Craig A. Douglas
-------------------------------
Name: Craig A. Douglas
Title: Vice President and
Treasurer
HSBC BANK USA, NATIONAL ASSOCIATION,
as Trustee
By: /s/ Frank J. Godino
-------------------------------
Name: Frank J. Godino
Title: Vice President
/s/ Gloria Alli
-------------------------------
Gloria Alli
Assistant Vice President
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