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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________________________
FORM 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
__________________________________
DATE OF REPORT
(DATE OF EARLIEST EVENT REPORTED): FEBRUARY 28, 1996
NORTHROP GRUMMAN CORPORATION
(Exact Name of Registrant as Specified in Charter)
DELAWARE
(State or other 1-3229 95-1055798
jurisdiction of (Commission (IRS Employer
incorporation) File Number) Identification No.)
1840 CENTURY PARK EAST
LOS ANGELES, CALIFORNIA 90067
(Address of Principal Executive Offices)
REGISTRANT'S TELEPHONE NUMBER,
INCLUDING AREA CODE: (310) 553-6262
Exhibit Index on Page 3
Page 1 of 96
Item 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND
EXHIBITS
(c) Exhibits.
The Registrant hereby files the following exhibit to its
Registration Statement on Form S-3 (No. 33-55143) which was declared
effective on September 22, 1994.
Exhibit No. Description of Exhibit
----------- ----------------------
4-6 Form of Subordinated Indenture
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on its behalf
by the undersigned thereunto duly authorized.
NORTHROP GRUMMAN CORPORATION
By: /s/ James C. Johnson
--------------------------------
James C. Johnson
Corporate Vice President
and Secretary
Dated: February 28, 1996
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EXHIBIT INDEX
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Exhibit
Number Description Page
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4-6 Form of Subordinated Indenture 4
Page 3 of 96
EXHIBIT 4-6
NORTHROP GRUMMAN CORPORATION
TO
THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION), TRUSTEE
_______________
INDENTURE
Dated as of _____________, 199__
_______________
SUBORDINATED DEBT SECURITIES
Page 4 of 96
TABLE OF CONTENTS
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Page
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ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION . . . . . . . . . . 1
Section 101. Definitions . . . . . . . . . . . . . . . 1
Section 102. Compliance Certificates and Opinions. . . 9
Section 103. Form of Documents Delivered to Trustee. . 9
Section 104. Acts of Holders; Record Dates . . . . . . 10
Section 105. Notices, Etc., to Trustee and Company. . 13
Section 106. Notice to Holders; Waiver. . . . . . . . 13
Section 107. Conflict with Trust Indenture Act. . . . 14
Section 108. Effect of Headings and Table of
Contents. . . . . . . . . . . . . . . . . 14
Section 109. Successors and Assigns. . . . . . . . . . 14
Section 110. Separability Clause. . . . . . . . . . . 14
Section 111. Benefits of Indenture. . . . . . . . . . 14
Section 112. Governing Law . . . . . . . . . . . . . . 14
Section 113. Legal Holidays. . . . . . . . . . . . . . 15
ARTICLE TWO SECURITY FORMS . . . . . . . . . . . . . 15
Section 201. Forms Generally . . . . . . . . . . . . . 15
Section 202. Form of Face of Security . . . . . . . . 16
Section 203. Form of Reverse of Security . . . . . . . 18
Section 204. Form of Legend for Global Securities . . 23
Section 205. Form of Trustee's Certificate of
Authentication . . . . . . . . . . . . . 23
ARTICLE THREE THE SECURITIES . . . . . . . . . . . . . 23
Section 301. Amount Unlimited; Issuable in Series . . 23
Section 302. Denominations . . . . . . . . . . . . . . 27
Section 303. Execution, Authentication, Delivery and
Dating . . . . . . . . . . . . . . . . . 27
Section 304. Temporary Securities . . . . . . . . . . 29
Section 305. Registration, Registration of Transfer
and Exchange . . . . . . . . . . . . . . 30
Section 306. Mutilated, Destroyed, Lost or Stolen
Securities . . . . . . . . . . . . . . . 32
Section 307. Payment of Interest; Interest Rights
Preserved . . . . . . . . . . . . . . . . 33
Section 308. Persons Deemed Owners . . . . . . . . . . 35
Section 309. Cancellation . . . . . . . . . . . . . . 35
Section 310. Computation of Interest . . . . . . . . . 35
ARTICLE FOUR SATISFACTION AND DISCHARGE . . . . . . . 35
Section 401. Satisfaction and Discharge of Indenture . 35
Section 402. Application of Trust Money . . . . . . . 37
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ARTICLE FIVE REMEDIES . . . . . . . . . . . . . . . . 37
Section 501. Events of Default . . . . . . . . . . . . 37
Section 502. Acceleration of Maturity; Rescission and
Annulment . . . . . . . . . . . . . . . . 39
Section 503. Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . 40
Section 504. Trustee May File Proofs of Claim . . . . 41
Section 505. Trustee May Enforce Claims Without
Possession of Securities . . . . . . . . 41
Section 506. Application of Money Collected . . . . . 42
Section 507. Limitation on Suits . . . . . . . . . . . 42
Section 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest and to
Convert . . . . . . . . . . . . . . . . . 43
Section 509. Restoration of Rights and Remedies . . . 43
Section 510. Rights and Remedies Cumulative . . . . . 43
Section 511. Delay or Omission Not Waiver . . . . . . 44
Section 512. Control by Holders . . . . . . . . . . . 44
Section 513. Waiver of Past Defaults . . . . . . . . . 44
Section 514. Undertaking for Costs . . . . . . . . . . 45
Section 515. Waiver of Usury, Stay or Extension Laws . 45
ARTICLE SIX THE TRUSTEE . . . . . . . . . . . . . . . 45
Section 601. Certain Duties and Responsibilities . . . 45
Section 602. Notice of Defaults . . . . . . . . . . . 47
Section 603. Certain Rights of Trustee . . . . . . . . 47
Section 604. Not Responsible for Recitals or Issuance
of Securities . . . . . . . . . . . . . . 49
Section 605. May Hold Securities . . . . . . . . . . . 49
Section 606. Money Held in Trust . . . . . . . . . . . 49
Section 607. Compensation and Reimbursement . . . . . 49
Section 608. Conflicting Interests . . . . . . . . . . 50
Section 609. Corporate Trustee Required; Eligibility . 50
Section 610. Resignation and Removal; Appointment of
Successor . . . . . . . . . . . . . . . . 51
Section 611. Acceptance of Appointment by Successor . 52
Section 612. Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . . 54
Section 613. Preferential Collection of Claims Against
Company . . . . . . . . . . . . . . . . . 54
Section 614. Appointment of Authenticating Agent . . . 54
ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND
COMPANY . . . . . . . . . . . . . . . . . 56
Section 701. Company to Furnish Trustee Names and
Addresses of Holders . . . . . . . . . . 56
Section 702. Preservation of Information;
Communications to Holders . . . . . . . . 57
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Section 703. Reports by Trustee . . . . . . . . . . . 57
Section 704. Reports by Company . . . . . . . . . . . 57
ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE . . . . . . . . . . . . 58
Section 801. Company May Consolidate, Etc., Only on
Certain Terms . . . . . . . . . . . . . . 58
Section 802. Successor Substituted . . . . . . . . . . 59
ARTICLE NINE SUPPLEMENTAL INDENTURES . . . . . . . . . 59
Section 901. Supplemental Indentures Without Consent
of Holders . . . . . . . . . . . . . . . 59
Section 902. Supplemental Indentures with Consent of
Holders . . . . . . . . . . . . . . . . . 61
Section 903. Execution of Supplemental Indentures . . 62
Section 904. Effect of Supplemental Indentures . . . . 62
Section 905. Conformity with Trust Indenture Act . . . 62
Section 906. Reference in Securities to Supplemental
Indentures . . . . . . . . . . . . . . . 63
Section 907. Subordination Unimpaired . . . . . . . . 63
ARTICLE TEN COVENANTS . . . . . . . . . . . . . . . . 63
Section 1001. Payment of Principal, Premium and
Interest . . . . . . . . . . . . . . . . 63
Section 1002. Maintenance of Office or Agency . . . . . 63
Section 1003. Money for Securities Payments to Be Held
in Trust . . . . . . . . . . . . . . . . 64
Section 1004. Statement by Officers as to Default . . . 65
Section 1005. Existence . . . . . . . . . . . . . . . . 66
Section 1006. Maintenance of Properties . . . . . . . . 66
Section 1007. Payment of Taxes and Other Claims . . . . 66
Section 1008. Waiver of Certain Covenants . . . . . . . 67
ARTICLE ELEVEN REDEMPTION OF SECURITIES . . . . . . . . 67
Section 1101. Applicability of Article . . . . . . . . 67
Section 1102. Election to Redeem; Notice to Trustee . . 67
Section 1103. Selection by Trustee of Securities to Be
Redeemed . . . . . . . . . . . . . . . . 68
Section 1104. Notice of Redemption . . . . . . . . . . 68
Section 1105. Deposit of Redemption Price . . . . . . . 69
Section 1106. Securities Payable on Redemption Date . . 69
Section 1107. Securities Redeemed in Part . . . . . . . 70
ARTICLE TWELVE SINKING FUNDS . . . . . . . . . . . . . . 70
Section 1201. Applicability of Article . . . . . . . . 70
Section 1202. Satisfaction of Sinking Fund Payments
with Securities . . . . . . . . . . . . . 71
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Section 1203. Redemption of Securities for Sinking
Fund . . . . . . . . . . . . . . . . . . 71
ARTICLE THIRTEEN DEFEASANCE AND COVENANT DEFEASANCE . . . 72
Section 1301. Applicability of Article; Company's
Option to Effect Defeasance or Covenant
Defeasance . . . . . . . . . . . . . . . 72
Section 1302. Defeasance and Discharge . . . . . . . . 72
Section 1303. Covenant Defeasance . . . . . . . . . . . 72
Section 1304. Conditions to Defeasance or Covenant
Defeasance . . . . . . . . . . . . . . . 73
Section 1305. Deposited Money and U.S. Government
Obligations to Be Held in Trust;
Miscellaneous Provisions . . . . . . . . 77
Section 1306. Reinstatement . . . . . . . . . . . . . . 77
ARTICLE FOURTEEN SUBORDINATION OF SECURITIES . . . . . . . 78
Section 1401. Debt Securities Subordinate to Senior
Indebtedness . . . . . . . . . . . . . . 78
Section 1402. Trustee And Holders Of Debt Securities
May Rely On Certificate Of Liquidating
Agent; Trustee May Require Further
Evidence As To Ownership Of Senior
Indebtedness; Trustee Not Fiduciary To
Holders Of Senior Indebtedness . . . . . 81
Section 1403. Payment Permitted If No Default . . . . . 82
Section 1404. Trustee Not Charged With Knowledge Of
Prohibition . . . . . . . . . . . . . . . 82
Section 1405. Trustee to Effectuate Subordination . . . 83
Section 1406. Rights Of Trustee As Holder Of Senior
Indebtedness . . . . . . . . . . . . . . 83
Section 1407. Article Applicable To Paying Agents . . . 83
Section 1408. Subordination Rights Not Impaired By Acts
Or Omissions Of The Company Or Holders Of
Senior Indebtedness . . . . . . . . . . . 83
NOTE: THIS TABLE OF CONTENTS SHALL NOT, FOR ANY PURPOSE, BE
DEEMED TO BE A PART OF THE INDENTURE.
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INDENTURE dated as of _______________, 199__ between
NORTHROP GRUMMAN CORPORATION, a corporation duly organized and
existing under the laws of the State of Delaware (herein called
the "Company"), having its principal office at 1840 Century
Park East, Los Angeles, California, and THE CHASE MANHATTAN
BANK (NATIONAL ASSOCIATION), a corporation duly organized and
existing under the laws of the United States, as Trustee
(herein called the "Trustee"), having its Corporate Trust
Office at 4 Chase MetroTech Center, Brooklyn, New York 11245.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and
delivery of this Indenture to provide for the issuance from
time to time of its unsecured debentures, notes or other
evidences of indebtedness (herein called the "Securities"), to
be issued in one or more series as this Indenture provides.
All things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have
been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the promises and the
purchase of the Securities by the Holders thereof, it is
mutually agreed, for the equal and proportionate benefit of all
Holders of the Securities or of series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
--------------------------------
Section 101. Definitions.
-----------
For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise
requires:
(1) the terms defined in this Article have the
meanings assigned to them in this Article and include the
plural as well as the singular;
(2) all other terms used herein which are defined in
the Trust Indenture Act, either directly or by reference
therein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined
herein have the meanings assigned to them in accordance
with generally accepted accounting principles, and, except
as otherwise herein expressly provided, the term
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"generally accepted accounting principles" with respect to
any computation required or permitted hereunder shall mean
such accounting principles as are generally accepted at
the date hereof;
(4) unless the context otherwise requires, any
reference to an "Article" or a "Section" refers to an
Article or a Section, as the case may be, of this
Indenture; and
(5) the words "herein," "hereof," and "hereunder"
and other words of similar import refer to this Indenture
as a whole and not to any particular Article, Section or
other subdivision.
"Act," when used with respect to any Holder, has the
meaning specified in Section 104.
"Affiliate" of any specified Person means any other
Person directly or indirectly controlling or controlled by
or under direct or indirect common control with such
specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person
means the power to direct the management and policies of
such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Authenticating Agent" means any Person authorized by
the Trustee pursuant to Section 614 to act on behalf of
the Trustee to authenticate Securities of one or more
series.
"Bank Agent" means The Chase Manhattan Bank (National
Association) or any successor Administrative Agent under
the Bank Credit Agreement.
"Bank Credit Agreement" means that certain Second
Amended and Restated Credit Agreement, dated as of April
15, 1994, as amended and restated as of March 1, 1996,
among the Company, the banks named therein and the Bank
Agent, as the same may be amended, supplemented, restated
or replaced from time to time.
"Board of Directors" means either the board of
directors of the Company or any duly authorized committee
of that board.
"Board Resolution" means (i) 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
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Directors and to be in full force and effect on the date
of such certification, or (ii) a certificate signed by the
authorized officer or officers of the Company to whom the
Board of Directors of the Company has delegated its
authority, and in each case, delivered to the Trustee.
"Business Day," when used with respect to any Place
of Payment, means each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking
institutions in that Place of Payment are authorized or
obligated by law or executive order to close.
"Commission" means the Securities and Exchange
Commission, from time to time constituted, created under
the Exchange Act, or, if at any time after the execution
of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at
such time.
"Company" means the Person named as the "Company" in
the first paragraph of this instrument until a successor
Person shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Company"
shall mean such successor Person.
"Company Request" or "Company Order" means a written
request or order signed in the name of the Company by its
Chairman of the Board, its Vice Chairman of the Board, its
President or a Vice President, and by its Treasurer, an
Assistant Treasurer, its Secretary or an Assistant
Secretary, and delivered to the Trustee.
"Corporate Trust Office" means the principal office
of the Trustee or agent of the Trustee, in either case, in
the Borough of Manhattan, The City of New York, at which
at any particular time the corporate trust business of the
Trustee shall be administered.
"corporation" means a corporation, association,
company, joint-stock company or business trust.
"Covenant Defeasance" has the meaning specified in
Section 1303.
"Defaulted Interest" has the meaning specified in
Section 307.
"Defeasance" has the meaning specified in
Section 1302.
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"Depositary" means, with respect to Securities of any
series issuable in whole or in part in the form of one or
more Global Securities, a clearing agency registered under
the Exchange Act that is designated to act as Depositary
for such Securities as contemplated by Section 301.
"Designated Senior Indebtedness" means (a) Senior
Indebtedness under the Bank Credit Agreement and (b) any
other Senior Indebtedness in excess of $200,000,000 that
is designated as Designated Senior Indebtedness in a
written notice from the Company to the Trustee.
"Event of Default" has the meaning specified in
Section 501.
"Exchange Act" means the Securities Exchange Act of
1934 and any statute successor thereto, in each case as
amended from time to time.
"Existing Subordinated Indebtedness" [to come]
"Expiration Date" has the meaning specified in
Section 104.
"Foreign Government Obligation" has the meaning
specified in Section 1304.
"Global Security" means a Security that evidences all
or part of the Securities of any series and bears the
legend set forth in Section 204 (or such legend as may be
specified as contemplated by Section 301 for such
Securities).
"Holder" means a Person in whose name a Security is
registered in the Security Register.
"Indenture" means this instrument as originally
executed and as it may from time to time be supplemented
or amended by one or more indentures supplemental hereto
entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any
such supplemental indenture, the provisions of the Trust
Indenture Act that are deemed to be a part of and govern
this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the
terms of particular series of Securities established as
contemplated by Section 301.
"interest," when used with respect to an Original
Issue Discount Security which by its terms bears interest
only after Maturity, means interest payable after
Maturity.
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"Interest Payment Date," when used with respect to
any Security, means the Stated Maturity of an installment
of interest on such Security.
"Investment Company Act" means the Investment Company
Act of 1940 and any statute successor thereto, in each
case as amended from time to time.
"Maturity," when used with respect to any Security,
means the date on which the principal of such Security or
an installment of principal becomes due and payable as
therein or herein provided, whether at the Stated Maturity
or by declaration of acceleration, call for redemption or
otherwise.
"Notice of Default" means a written notice of the
kind specified in Section 501(4).
"Officers' Certificate" means a certificate signed by
the Chairman of the Board, a Vice Chairman of the Board,
the President or a Vice President, and by the Treasurer,
an Assistant Treasurer, the Secretary or an Assistant
Secretary, of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of
counsel, who may be counsel for the Company, and who shall
be acceptable to the Trustee.
"Original Issue Discount Security" means any Security
which provides for an amount less than the principal
amount thereof to be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to
Section 502.
"Outstanding," when used with respect to Securities,
means, as of the date of determination, all Securities
theretofore authenticated and delivered under this
Indenture, except:
(1) Securities theretofore cancelled by the Trustee
or delivered to the Trustee for cancellation;
(2) Securities for whose payment or redemption money
in the necessary amount has been theretofore deposited
with the Trustee or any Paying Agent (other than the
Company) in trust or set aside and segregated in trust by
the Company (if the Company shall act as its own Paying
Agent) for the Holders of such Securities; provided that,
if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture
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or provision therefor satisfactory to the Trustee has been
made;
(3) Securities as to which Defeasance has been
effected pursuant to Section 1302; and
(4) Securities which have been paid pursuant to
Section 306 or in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant
to this Indenture, other than any such Securities in
respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Securities are
held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders
of the requisite principal amount of the Outstanding
Securities have given, made or taken any request, demand,
authorization, direction, notice, consent, waiver or other
action hereunder as of any date, (A) the principal amount
of an Original Issue Discount Security which shall be
deemed to be Outstanding shall be the amount of the
principal thereof which would be due and payable as of
such date upon acceleration of the Maturity thereof to
such date pursuant to Section 502, (B) if, as of such
date, the principal amount payable at the Stated Maturity
of a Security is not determinable, the principal amount of
such Security which shall be deemed to be Outstanding
shall be the amount as specified or determined as
contemplated by Section 301, (C) the principal amount of a
Security denominated in one or more foreign currencies or
currency units which shall be deemed to be Outstanding
shall be the U.S. dollar equivalent, determined as of such
date in the manner provided as contemplated by
Section 301, of the principal amount of such Security (or,
in the case of a Security described in Clause (A) or (B)
above, of the amount determined as provided in such
Clause), and (D) Securities owned by the Company or any
other obligor upon the Securities of any Affiliate of the
Company or of such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice,
consent, waiver or other action, only Securities which a
responsible officer of the Trustee actually knows to be so
owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction
of the Trustee the pledgee's right so to act with respect
to such Securities and that the pledgee is not the Company
or any other obligor upon the Securities or any Affiliate
of the Company or of such other obligor.
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"Paying Agent" means any Person authorized by the
Company to pay the principal of or any premium or interest
on any Securities on behalf of the Company.
"Person" means any individual, corporation,
partnership, joint venture, trust, unincorporated
organization or government or any agency or political
subdivision thereof.
"Place of Payment," when used with respect to the
Securities of any series, means the place or places where
the principal of any premium and interest on the
Securities of that series are payable as specified as
contemplated by Section 301.
"Predecessor Security" of any particular Security
means every previous Security evidencing all or a portion
of the same debt as that evidenced by such particular
Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in
exchange for or in lieu of a mutilated, destroyed, lost or
stolen Security shall be deemed to evidence the same debt
as the mutilated, destroyed, lost or stolen Security.
"Redemption Date," when used with respect to any
Security to be redeemed, means the date fixed for such
redemption by or pursuant to this Indenture.
"Redemption Price," when used with respect to any
Security to be redeemed, means the price at which it is to
be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any
Interest Payment Date on the Securities of any series
means the date specified for that purpose as contemplated
by Section 301.
"Responsible Officer," when used with respect to the
Trustee, means any officer within the Corporate Trust
Office of the Trustee including any vice president, the
secretary, any assistant secretary, the treasurer, any
assistant treasurer, the cashier, any assistant cashier,
any trust officer or assistant trust officer or any other
officer of the Trustee customarily performing functions
similar to those performed by any of the above designated
officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such
matter is referred because of his knowledge of and
familiarity with the particular subject.
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"Securities" has the meaning stated in the first
recital of this Indenture and more particularly means any
Securities authenticated and delivered under this
Indenture.
"Securities Act" means the Securities Act of 1933 and
any statute successor thereto, in each case as amended
from time to time.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Senior Indebtedness" means the principal of (and
premium, if any) and interest (including, without
limitation, any post-petition interest) on any
indebtedness and any fees, indemnities or other amounts
payable to the holder thereof pursuant to the terms of any
agreement providing for such indebtedness, whether
outstanding at the date hereof or thereafter created or
incurred, which is for (a) money borrowed by the Company,
(b) obligations of the Company evidencing the purchase
price for acquisitions by the Company or a subsidiary
other than in the ordinary course of business, (c) money
borrowed by others and assumed or guaranteed by the
Company, (d) capitalized lease obligations of the Company,
(e) obligations under performance guarantees, support
agreements and other agreements in the nature thereof and
(f) renewals, extensions, refundings, amendments and
modifications of any indebtedness, of the kind described
in the foregoing clauses (a), (b), (c), (d) and (e) or of
the instruments creating or evidencing such indebtedness,
unless, in each case, by the terms of the instrument
creating or evidencing such indebtedness or such renewal,
extension, refunding, amendment and modification, it is
provided that such indebtedness is not senior in right of
payment to the Securities.
"Special Record Date" for the payment of any
Defaulted Interest means a date fixed by the Trustee
pursuant to Section 307.
"Stated Maturity," when used with respect to any
Security or any installment of principal thereof or
interest thereon, means the date specified in such
Security as the fixed date on which the principal of such
Security or such installment of principal or interest is
due and payable.
"Subsidiary" means a corporation more than 50% of the
outstanding voting stock of which is owned, directly or
indirectly, by the Company or by one or more other
Subsidiaries, or by the Company and one or more other
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Subsidiaries. For the purposes of this definition,
"voting stock" means stock which ordinarily has voting
power for the election of directors, whether at all times
or only so long as no senior class of stock has such
voting power by reason of any contingency.
"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.
"Trustee" means the Person named as the "Trustee" in
the first paragraph of this instrument until a successor
Trustee shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Trustee"
shall mean or include each Person who is then a Trustee
hereunder, and if at any time there is more than one such
Person, "Trustee" as used with respect to the Securities
of any series shall mean the Trustee with respect to
Securities of that series.
"U.S. Government Obligation" has the meaning
specified in Section 1304.
"Vice President," when used with respect to the
Company or the Trustee, means any vice president, whether
or not designated by a number or a word or words added
before or after the title "Vice President."
Section 102. Compliance Certificates and Opinions.
------------------------------------
Upon any application or request by the Company to the
Trustee to take any action under any provision of this
Indenture, the Company shall furnish to the Trustee such
certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given
in the form of an Officers' Certificate, if to be given by an
officer of the Company, or an Opinion of Counsel, if to be
given by counsel, and shall comply with the requirements of the
Trust Indenture Act and any other requirements set forth in
this Indenture.
Every certificate or opinion with respect to
compliance with a condition or covenant provided for in this
Indenture shall include:
(1) a statement that each individual signing such
certificate or opinion has read such covenant or condition
and the definitions herein relating thereto;
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(2) a brief statement as to the nature and scope of
the examination or investigation upon which the statements
or opinions contained in such certificate or opinion are
based;
(3) a statement that, in the opinion of each such
individual, he has made such examination or investigation
as is necessary to enable him to express an informed
opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of
each such individual, such condition or covenant has been
complied with.
Section 103. Form of Documents Delivered to Trustee.
--------------------------------------
In any case where several matters are required to be
certified by, or covered by an opinion of, any specified
Person, it is not necessary that all such matters be certified
by, or covered by the opinion of, only one such Person, or that
they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some
matters and one or more other such Persons as to other matters,
and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an officer of the
Company may be based, insofar as it relates to legal matters,
upon an opinion of counsel, unless such officer knows, or in
the exercise of reasonable care should know, that the opinion
with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or
opinion of counsel may be based, insofar as it relates to
factual matters, upon a certificate of, or representations by,
an officer or officers of the Company stating that the
information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in the
exercise of reasonable care should know, that the certificate
or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute
two or more applications, requests, consents, certificates,
statements, opinions or other instruments under this Indenture,
they may, but need not, be consolidated and form one
instrument.
Section 104. Acts of Holders; Record Dates.
-----------------------------
Any request, demand, authorization, direction,
notice, consent, waiver or other action provided or permitted
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by this Indenture to be given, made or taken by Holders may be
embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or
by agent duly appointed in writing; and, except as herein
otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to
the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such instrument
or instruments. Proof of execution of any such instrument or
of a writing appointing any such agent shall be sufficient for
any purpose of this Indenture and (subject to Section 601)
conclusive in favor of the Trustee and the Company, if made in
the manner provided in this Section.
The fact and date of the execution by any Person of
any such instrument or writing may be proved by the affidavit
of a witness of such execution or by a certificate of a notary
public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by a signer acting
in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any
such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner
which the Trustee deems sufficient.
The ownership of Securities shall be proved by the
Security Register.
Any request, demand, authorization, direction,
notice, consent, waiver or other Act of the Holder of any
Security shall bind every future Holder of the same Security
and the Holder of every Security issued upon the registration
of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by
the Trustee or the Company in reliance thereon, whether or not
notation of such action is made upon such Security.
The Company may set any day as a record date for the
purpose of determining the Holders of Outstanding Securities of
any series entitled to give, make or take any request, demand,
authorization, direction, notice, consent, waiver or other
action provided or permitted by this Indenture to be given,
made or taken by Holders of Securities of such series, provided
that the Company may not set a record date for, and the
provisions of this paragraph shall not apply with respect to,
the giving or making of any notice, declaration, request or
direction referred to in the next paragraph. If any record
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date is set pursuant to this paragraph, the Holders of
Outstanding Securities of the relevant series on such record
date, and no other Holders, shall be entitled to take the
relevant action, whether or not such Holders remain Holders
after such record date; provided that no such action shall be
effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of
Outstanding Securities of such series on such record date.
Nothing in this paragraph shall be construed to prevent the
Company from setting a new record date for any action for which
a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be cancelled and
of no effect), and nothing in this paragraph shall be construed
to render ineffective any action taken by Holders of the
requisite principal amount of Outstanding Securities of the
relevant series on the date such action is taken. Promptly
after any record date is set pursuant to this paragraph, the
Company, at its own expense, shall cause notice of such record
date, the proposed action by Holders and the applicable
Expiration Date to be given to the Trustee in writing and to
each Holder of Securities of the relevant series in the manner
set forth in Section 106.
The Trustee may set any day as a record date for the
purpose of determining the Holders of Outstanding Securities of
any series entitled to join in the giving or making of (i) any
Notice of Default, (ii) any declaration of acceleration
referred to in Section 502, (iii) any request to institute
proceedings referred to in Section 507(2) or (iv) any direction
referred to in Section 512, in each case with respect to
Securities of such series. If any record date is set pursuant
to this paragraph, the Holders of Outstanding Securities of
such series on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or
direction, whether or not such Holders remain Holders after
such record date; provided that no such action shall be
effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of
Outstanding Securities of such series on such record date.
Nothing in this paragraph shall be construed to prevent the
Trustee from setting a new record date for any action for which
a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be cancelled and
of no effect), and nothing in this paragraph shall be construed
to render ineffective any action taken by Holders of the
requisite principal amount of Outstanding Securities of the
relevant series on the date such action is taken. Promptly
after any record date is set pursuant to this paragraph, the
Trustee, at the Company's expense, shall cause notice of such
record date, the proposed action by Holders and the applicable
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Expiration Date to be given to the Company in writing and to
each Holder of Securities of the relevant series in the manner
set forth in Section 106.
With respect to any record date set pursuant to this
Section, the party hereto which sets such record dates may
designate any date as the "Expiration Date" and from time to
time may change the Expiration Date to any earlier or later
day; provided that no such change shall be effective unless
notice of the proposed new Expiration Date is given to the
other party hereto in writing, and to each Holder of Securities
of the relevant series in the manner set forth in Section 106,
on or prior to the existing Expiration Date. If an Expiration
Date is not designated with respect to any record date set
pursuant to this Section, the party hereto which sets such
record date shall be deemed to have initially designated the
180th day after such record date as the Expiration Date with
respect thereto, subject to its right to change the Expiration
Date as provided in this paragraph. Notwithstanding the
foregoing, no Expiration Date shall be later than the 180th day
after the applicable record date.
Without limiting the foregoing, a Holder entitled
hereunder to give or take any action hereunder with regard to
any particular Security may do so with regard to all or any
part of the principal amount of such Security or by one or more
duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such principal
amount.
Section 105. Notices, Etc., to Trustee and Company.
-------------------------------------
Any request, demand, authorization, direction,
notice, consent, waiver or Act of Holders or other document
provided or permitted by this Indenture to be made upon, given
or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company
shall be sufficient for every purpose hereunder if made,
given, furnished or filed in writing to or with the
Trustee at 4 MetroTech Center, Brooklyn, New York 11245,
Attn: Corporate Trust Department, or
(2) the Company by the Trustee or by any Holder
shall be sufficient for every purpose hereunder (unless
otherwise herein expressly provided) if in writing and
mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office
specified in the first paragraph of this instrument or at
any other address previously furnished in writing to the
Trustee by the Company.
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Section 106. Notice to Holders; Waiver.
-------------------------
Where this Indenture provides for notice to Holders
of any event, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder affected by such
event, at his address as it appears in the Security Register,
not later than the latest date (if any), and not earlier than
the earliest date (if any), prescribed for the giving of such
notice. In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail
service or by reason of any other cause it shall be
impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose
hereunder.
Section 107. Conflict with Trust Indenture Act.
---------------------------------
If any provision hereof limits, qualifies or
conflicts with a provision of the Trust Indenture Act that is
required under such Act to be a part of and govern this
Indenture, the latter provision shall control. If any
provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act that may be so modified or excluded,
the latter provision shall be deemed to apply to this Indenture
as so modified or to be excluded, as the case may be.
Section 108. Effect of Headings and Table of Contents.
----------------------------------------
The Article and Section headings herein and the Table
of Contents are for convenience only and shall not affect the
construction hereof.
Section 109. Successors and Assigns.
----------------------
All covenants and agreements in this Indenture by the
Company shall bind its successors and assigns, whether so
expressed or not.
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Section 110. Separability Clause.
-------------------
In case any provision in this Indenture or in the
Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired
thereby.
Section 111. Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Securities,
express or implied, shall give to any Person, other than the
parties hereto and their successors hereunder any benefit or
any legal or equitable right, remedy or claim under this
Indenture.
Section 112. Governing Law.
-------------
This Indenture and the Securities shall be governed
by and construed in accordance with the law of the State of
New York, without regard to principles of conflicts of laws.
Section 113. Legal Holidays.
--------------
In any case where any Interest Payment Date,
Redemption Date or Stated Maturity of any Security shall not be
a Business Day at any Place of Payment, then (notwithstanding
any other provision of this Indenture or of the Securities
(other than a provision of any Security that specifically
states that such provision shall apply in lieu of this
Section)) payment of interest or principal (and premium, if
any) need not be made at such Place of Payment on such date,
but may be made on the next succeeding Business Day at such
Place of Payment with the same force and effect as if made on
the Interest Payment Date or Redemption Date, or at the Stated
Maturity, provided, that no interest shall accrue with respect
to such payment for the period from and after such Interest
Payment Date, Redemption Date or Stated Maturity, as the case
may be.
ARTICLE TWO
SECURITY FORMS
--------------
Section 201. Forms Generally.
---------------
The Securities of each series shall be in
substantially the form set forth in this Article, or in such
other form as shall be established by or pursuant to a Board
Resolution or in one or more indentures supplemental hereto, in
each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted
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by this Indenture, and may have such letters, numbers or other
marks of identification and such legends or endorsements placed
thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be
determined by the officers executing such Securities, as
evidenced by their execution thereof. If the form of
Securities of any series is established by action taken
pursuant to a Board Resolution, a copy of an appropriate record
of such action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee
at or prior to the delivery of the Company Order contemplated
by Section 303 for the authentication and delivery of such
Securities.
The definitive Securities shall be printed,
lithographed or engraved on steel engraved borders or may be
produced in any other manner, all as determined by the officers
executing such Securities, as evidenced by their execution of
such Securities.
Section 202. Form of Face of Security.
------------------------
[Insert any legend required by the Internal Revenue
Code and the regulations thereunder.]
NORTHROP GRUMMAN CORPORATION
_______________________________________________________________
No. ____________ $ _____________
CUSIP _____________
Northrop Grumman Corporation, a corporation duly
organized and existing under the laws of Delaware (herein
called the "Company," which term includes any successor Person
under the Indenture hereinafter referred to), for value
received, hereby promises to pay to _______________________, or
registered assigns, the principal sum of ______________________
[Dollars] [if other than Dollars, substitute other currency or
currency units] on ____________________________________________
[If the Security is to bear interest prior to Maturity,
Interest __, and to pay interest thereon from _________________
or from the most recent Interest Payment Date to which interest
has been paid or duly provided for, [semi-annually on ________
______________________ and _____________________ in each year]
[if other than semi-annual interest at a fixed rate, insert
frequency of payments and payment dates], commencing
___________________ at [If the Security is to bear interest at
a fixed rate, insert -- the rate of ____% per annum] [if the
Security is to bear interest at a rate determined with
reference to one or more formula, refer to description of index
below], until the principal hereof is paid or made available
for payment [If applicable, insert --, provided that any
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principal and premium, and any such installment of interest,
which is overdue shall bear interest at the rate of ____% per
annum (to the extent that the payment of such interest shall be
legally enforceable), from the dates such amounts are due until
they are paid or made available for payment, and such interest
shall be payable on demand.] Interest shall be computed on the
basis of a 360-day year of twelve 30-day months. The interest
so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in such Indenture, be
paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest, which shall be
the _________________ or ___________________ (whether or not a
Business Day), as the case may be, next preceding such Interest
Payment Date. Any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder
on such Regular Record Date and may either be paid to the
Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special
Record Date for the Payment of such Defaulted Interest to be
fixed by the Trustee, notice whereof shall be given to Holders
of Securities of this series not less than 10 days prior to
such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may
be listed, and upon such notice as may be required by such
exchange, all as more fully provided in said Indenture].
[If the Securities are securities with respect to
which the principal of or any premium or interest may be
determined with reference to one or more indices or formulas,
insert the text of such indices or formulas]
[If the Security is not to bear interest prior to
Maturity, insert -- The principal of this Security shall not
bear interest except in the case of a default in payment of
principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal and any overdue
premium shall bear interest at the rate of _____% per annum (to
the extent that the payment of such interest shall be legally
enforceable), from the dates such amounts are due until they
are paid or made available for payment. Interest on any
overdue principal or premium shall be payable on demand. [Any
such interest on overdue principal or premium which is not paid
on demand shall bear interest at the rate of _______________%
per annum (to the extent that the payment of such interest on
interest shall be legally enforceable), from the date of such
demand until the amount so demanded is paid or made available
for payment. Interest on any overdue interest shall be payable
on demand.]]
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Payment of the principal of (and premium, if any) and
[if applicable, interest -- any such] interest on this Security
will be made at the office or agency of the Company maintained
for that purpose in ________________ in such coin or currency
[of the United States of America] [if the Security is
denominated in a currency other than U.S. dollars, specify
other currency or currency unit in which payment of the
principal of any premium or interest may be made] as at the
time of payment is legal tender for payment of public and
private debts [if applicable, insert --; provided, however,
that at the option of the Company payment of interest may be
made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register
or by wire transfer to an account maintained by the person
entitled thereto as specified in the Security Register.]
Reference is hereby made to the further provisions of
this Security set forth on the reverse hereof, which further
provisions shall for all purposes have the same effect as if
set forth at this place.
Unless the certificate of authentication hereon has
been executed by the Trustee referred to on the reverse hereof
by manual signature, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed under its corporate seal.
Dated: ________________
NORTHROP GRUMMAN CORPORATION
By ___________________________________
Attest:
______________________
Section 203. Form of Reverse of Security.
---------------------------
This Security is one of a duly authorized issue of
securities of the Company (herein called the "Securities"),
issued and to be issued in one or more series under an
Indenture, dated as of ________________, 199__ (herein called
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the "Indenture", which term shall have the meaning assigned to
it in such instrument), between the Company and The Chase
Manhattan Bank (National Association), as Trustee (herein
called the "Trustee", which term includes any successor trustee
under the Indenture), and reference is hereby made to the
Indenture for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the
Trustee and the Holders of the Securities and of the terms upon
which the securities are, and are to be authenticated and
delivered. This Security is one of the series designated on
the face hereof [if applicable, insert -- limited in aggregate
principal amount to $________________]. [The Securities are
[unsecured general obligations of the Company.]]
[If applicable, insert -- the securities of this
series are subject to redemption upon not less than 30 days'
notice by mail, [If applicable, insert -- (1) on
_______________ in any year commencing with the year
_____________ and ending with the year ______________ through
operation of the sinking fund for this series at a Redemption
Price equal to 100% of the principal amount, and (2)] at any
time [if applicable, insert -- on or after ______________,
19___], as a whole or in part, at the election of the Company,
at the following Redemption Prices (expressed as percentages of
the principal amount): If redeemed [if applicable, insert --
on or before __________________, _____% and if redeemed] during
the 12-month period beginning ________________ of the years
indicated,
Redemption Redemption
Year Price Year Price
---- ----------- ---- -----------
and thereafter at a Redemption Price equal to _____% of the
principal amount, together in the case of any such redemption
[if applicable, insert -- (whether through operation of the
sinking fund or otherwise)] with accrued interest to the
Redemption Date, but interest installments whose Stated
Maturity is on or prior to such Redemption Date will be payable
to the Holders of such Securities, or one or more Predecessor
Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in
the Indenture.]
[If applicable, insert -- The Securities of this
series are subject to redemption upon not less than 30 days'
notice by mail, (1) on ______________ in any year commencing
with the year ______ and ending with the year ______ through
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Page 27 of 96
operation of the sinking fund for this series at the Redemption
Prices for redemption through operation of the sinking fund
(expressed as percentages of the principal amount) set forth in
the table below, and (2) at any time [if applicable, insert --
on or after ________________, as a whole or in part, at the
election of the Company, at the Redemption Prices for
redemption otherwise than through operation of the sinking fund
(expressed as percentages of the principal amount) set forth in
the table below: If redeemed during the 12-month period
beginning _____________________ of the years indicated,
Redemption Price
For Redemption Redemption Price For
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
---- ------------------ ----------------------
and thereafter at a Redemption Price equal to __________% of
the principal amount, together in the case of any such
redemption (whether through operation of the sinking fund or
otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to
such Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, of record at
the close of business on the relevant Record Dates referred to
on the face hereof, all as provided in the Indenture.]
[If applicable, insert -- Notwithstanding the
foregoing, the Company may not, prior to ________________
redeem any Securities of this series as contemplated by [if
applicable, insert -- Clause (2) of the preceding paragraph as
a part of, or in anticipation of, any refunding operation by
the application, directly or indirectly, of moneys borrowed
having an interest cost to the Company (calculated in
accordance with generally accepted financial practice) of less
than _________% per annum.]
[If applicable, insert -- The sinking fund for this
series provides for the redemption on __________________ in
each year beginning with the year ___________ and ending with
the year ________ of [if applicable, insert -- not less than
$_______________ ("mandatory sinking fund") and not more than]
$_______________ aggregate principal amount of Securities of
this series. Securities of this series acquired or redeemed by
the Company otherwise than through [if applicable, insert --
mandatory] sinking fund payments may be credited against
subsequent [if applicable, insert -- mandatory] [sinking fund
payments otherwise required to be made [if applicable,
insert --, in the inverse order in which they become due].]
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[If the Security is subject to redemption of any
kind, insert -- In the event of redemption of this Security in
part only, a new Security or Securities of this series and of
like tenor for the unredeemed portion hereof will be issued in
the name of the Holder hereof upon the cancellation hereof.]
[Insert paragraph regarding subordination of the
Security.]
[If applicable, insert -- The Indenture contains
provisions for defeasance at any time of [the entire
indebtedness of this Security] [or] [certain restrictive
covenants and Events of Default with respect to this Security]
[, in each case] upon compliance with certain conditions set
forth in the Indenture.]
[If the Security is convertible into securities of
the Company, specify the conversion features.]
[If the Security is not an Original Issue Discount
Security, insert -- If an Event of Default with respect to
Securities of this series shall occur and be continuing, the
principal of the Securities of this series may be declared due
and payable in the manner and with the effect provided in the
Indenture.]
[If the Security is an Original Issue Discount
Security, insert -- If an Event of Default with respect to
Securities of this series shall occur and be continuing, an
amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect
provided in the Indenture. Such amount shall be equal to --
[insert formula for determining the amount.] Upon payment
(i) of the amount of principal so declared due and payable and
(ii) of interest on any overdue principal, premium and interest
(in each case to the extent that the payment of such interest
shall be legally enforceable), all of the Company's obligations
in respect of the payment of the principal of and premium and
interest, if any, on the Securities of this series shall
terminate.]
The Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the modification of
the rights and obligations of the Company and the rights of the
Holders of the Securities of each series to be affected under
the Indenture at any time by the Company and the Trustee with
the consent of the Holders of a majority in principal amount of
the securities at the time Outstanding of each series to be
affected. The Indenture also contains provisions permitting
the Holders of specified percentages in principal amount of the
Securities of each series at the time Outstanding, on behalf of
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the Holders of all Securities of such series, to waive
compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder
of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in
exchange herefor or in lieu hereof, whether or not notation of
such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the
Indenture, the Holder of this Security shall not have the right
to institute any proceeding with respect to the Indenture or
for the appointment of a receiver or trustee or for any other
remedy thereunder, unless such Holder shall have previously
given the Trustee written notice of a continuing Event of
Default with respect to the Securities of this series, the
Holders of not less than 25% in principal amount of the
Securities of this series at the time Outstanding shall have
made written request to the Trustee to institute proceedings in
respect of such Event of Default as Trustee and offered the
Trustee reasonable indemnity, and the Trustee shall not have
received from the Holders of a majority in principal amount of
Securities of this series at the time Outstanding a direction
inconsistent with such request, and shall have failed to
institute any such proceeding, for 60 days after receipt of
such notice, request and offer of indemnity. The foregoing
shall not apply to any suit instituted by the Holder of this
Security for the enforcement of any payment of principal hereof
or any premium or interest hereon on or after the respective
due dates expressed herein.
No reference herein to the Indenture and no provision
of this Security or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional,
to pay the principal of and any premium and interest on this
Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is
registrable in the Security Register, upon surrender of this
Security for registration of transfer at the office or agency
of the Company in any place where the principal of and any
premium and interest on this Security are payable, duly
endorsed by, or accompanied by a written instrument of transfer
in form satisfactory to the Company and the Security Registrar
duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities
of this series and of like tenor, of authorized denominations
and for the same aggregate principal amount, will be issued to
the designated transferee or transferees.
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The Securities of this series are issuable only in
registered form without coupons in denominations of $1,000 and
any integral multiple thereof. As provided in the Indenture
and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate
principal amount of Securities of this series and of like tenor
of a different authorized denomination, as requested by the
Holder surrendering the same.
No service charge shall be made for any such
registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
Prior to due presentment of this Security for
registration of transfer, the Company, the Trustee and any
agent of the Company or the Trustee may treat the Person in
whose name this Security is registered as the owner hereof for
all purposes, whether or not this Security be overdue, and
neither the Company, the Trustee nor any such agent shall be
affected by notice to the contrary.
All terms used in this Security which are defined in
the Indenture shall have the meanings assigned to them in the
Indenture.
Section 204. Form of Legend for Global Securities.
------------------------------------
Unless otherwise specified as contemplated by
Section 301 for the Securities evidenced thereby, every Global
Security authenticated and delivered hereunder shall bear a
legend in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME
OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE
TRANSFERRED TO, OR REGISTERED OR EXCHANGED IN WHOLE OR IN PART
FOR A SECURITY REGISTERED IN THE NAME OF ANY PERSON OTHER THAN
SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
Section 205. Form of Trustee's Certificate of Authentication.
-----------------------------------------------
The Trustee's certificates of authentication shall be
in substantially the following form:
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This is one of the Securities of the series
designated therein referred to in the within-mentioned
Indenture.
THE CHASE MANHATTAN BANK (NATIONAL
ASSOCIATION),
As Trustee
By _____________________________________
Authorized Officer
ARTICLE THREE
THE SECURITIES
--------------
Section 301. Amount Unlimited; Issuable in Series.
------------------------------------
The aggregate principal amount of Securities which
may be authenticated and delivered under this Indenture is
unlimited.
The Securities may be issued in one or more series.
There shall be established in or pursuant to a Board Resolution
and, subject to Section 303, set forth, or determined in the
manner provided, in an Officers' Certificate, or established in
one or more indentures supplemental hereto, prior to the
issuance of Securities of any series:
(1) the title of the Securities of the series (which
shall distinguish the Securities of the series from
Securities of any other series);
(2) any limit upon the aggregate principal amount of
the Securities of the series which may be authenticated
and delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities of
the series pursuant to Section 304, 305, 306, 906 or 1107
and except for any Securities which, pursuant to
Section 303, are deemed never to have been authenticated
and delivered hereunder);
(3) the Person to whom any interest on a Security of
the series shall be payable, if other than the Person in
whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the
Regular Record Date for such interest;
(4) the date or dates on which the principal of any
Securities of the series is payable;
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(5) the rate or rates at which any Securities of the
series shall bear interest, if any, the date or dates from
which any such interest shall accrue, the Interest Payment
Dates on which any such interest shall be payable and the
Regular Record Date for any such interest payable on any
Interest Payment Date;
(6) the place or places where the principal of and
any premium and interest on any Securities of the series
shall be payable;
(7) the period or periods within which, the price or
prices at which and the terms and conditions upon which
any Securities of the series may be redeemed, in whole or
in part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem
or purchase any Securities of the series pursuant to any
sinking fund or analogous provisions or at the option of
the Holder thereof and the period or periods within which,
the price or prices at which and the terms and conditions
upon which any Securities of the series shall be redeemed
or purchased, in whole or in part, pursuant to such
obligation;
(9) any provision for the conversion or exchange of
Securities of the series, either at the option of the
Holder thereof or the Company, into or for another
security or securities of the Company, the security or
securities into or for which, the period or periods within
which, the price or prices, including any adjustments
thereto, at which and the other terms and conditions upon
which any Securities of the series shall be converted or
exchanged, in whole or in part, pursuant to such
obligation;
(10) if other than denominations of $1,000 and any
integral multiple thereof, the denominations in which any
Securities of the series shall be issuable;
(11) if the amount of principal of or any premium or
interest on any Securities of the series may be determined
with reference to one or more indices or pursuant to a
formula, the manner in which such amounts shall be
determined;
(12) if other than the currency of the United States
of America, the currency, currencies or currency units in
which the principal of or any premium or interest on any
Securities of the series shall be payable and the manner
of determining the equivalent thereof in the currency of
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the United States of America for any purpose, including
for purposes of the definition of "Outstanding" in
Section 101;
(13) if the principal of or any premium or interest
on any Securities of the series is to be payable, at the
election of the Company or the Holder thereof, in one or
more currencies or currency units other than that or those
in which such Securities are stated to be payable, the
currency, currencies or currency units in which the
principal of or any premium or interest on such Securities
as to which such election is made shall be payable, the
periods within which and the terms and conditions upon
which such election is to be made and the amount so
payable (or the manner in which such amount shall be
determined);
(14) if other than the entire principal amount
thereof, the portion of the principal amount of any
Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof
pursuant to Section 502;
(15) if the principal amount payable at the Stated
Maturity of any Securities of the series will not be
determinable as of any one or more dates prior to the
Stated Maturity, the amount which shall be deemed to be
the principal amount of such Securities as of any such
date for any purpose thereunder or hereunder, including
the principal amount thereof which shall be due and
payable upon any Maturity other than the Stated Maturity
or which shall be deemed to be Outstanding as of any date
prior to the Stated Maturity (or, in any such case, the
manner in which such amount deemed to be the principal
amount shall be determined);
(16) whether either or both of Section 1302 or
Section 1303 shall not apply to the Securities of the
series;
(17) if and as applicable, that any Securities of the
series shall be issuable in whole or in part in the form
of one or more Global Securities and, in such case, the
respective Depositaries for such Global Securities, the
form of any legend or legends which shall be borne by any
such Global Security in addition to or in lieu of that set
forth in Section 204 and any circumstances in addition to
or in lieu of those set forth in Clause (2) of the last
paragraph of Section 305 in which any such Global Security
may be exchanged in whole or in part for Securities
registered, and any transfer of such Global Security in
whole or in part may be registered, in the name or names
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of Persons other than the Depositary for such Global
Security or a nominee thereof;
(18) any addition to or change in the Events of
Default which applies to any Securities of the series and
any change in the right of the Trustee or the requisite
Holders of such Securities to declare the principal amount
thereof due and payable pursuant to Section 502;
(19) any addition to or change in the covenants set
forth in Article Ten which applies to Securities of the
series;
(20) if applicable, that the subordination provisions
in Article Fourteen shall apply to the Securities of the
series or that any different subordination provisions,
including different definitions of the terms "Senior
Indebtedness" or "Existing Subordinated Indebtedness",
shall apply to Securities of the series; and
(21) any other terms of the series (which terms shall
not be inconsistent with the provisions of this Indenture,
except as permitted by Section 901(5)).
All Securities of any one series shall be
substantially identical except as to denomination and except as
may otherwise be provided in or pursuant to the Board
Resolution referred to above and (subject to Section 303) set
forth, or determined in the manner provided in the Officers'
Certificate referred to above or in any such indenture
supplemental hereto. All Securities of any one series need not
be issued at one time and, unless otherwise provided, a series
may be reopened for issuances of additional Securities of such
series.
Unless otherwise provided with respect to the
Securities of any series, at the option of the Company,
interest on the Securities of any series that bears interest
may be paid by mailing a check to the address of the person
entitled thereto as such address shall appear in the Security
Register.
If any of the terms of the series are established by
action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action shall be certified by the
Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of the series.
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Section 302. Denominations.
-------------
The Securities of each series shall be issuable only
in registered form without coupons and only in such
denominations as shall be specified as contemplated by
Section 301. In the absence of any such specified denomination
with respect to the Securities of any series, the Securities of
such series shall be issuable in denominations of $1,000 and
any integral multiple thereof.
Section 303. Execution, Authentication, Delivery and Dating.
----------------------------------------------
The Securities shall be executed on behalf of the
Company by its Chairman of the Board, its Vice Chairman of the
Board, its President or one of its Vice Presidents, under its
corporate seal reproduced thereon attested by its Secretary or
one of its Assistant Secretaries. The signature of any of
these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures
of individuals who were at any time the proper officers of the
Company shall bind the Company, notwithstanding that such
individuals or any of them have ceased to hold such offices
prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
At any time and from time to time after the execution
and delivery of this Indenture, the Company may deliver
Securities of any series executed by the Company to the Trustee
for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee
in accordance with the Company Order shall authenticate and
deliver such Securities. If the form or terms of the
Securities of the series have been established by or pursuant
to one or more Board Resolutions as permitted by Sections 201
and 301, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive, and
(subject to Section 601) shall be fully protected in relying
upon, an Opinion of Counsel stating,
(1) if the form of such Securities has been
established by or pursuant to Board Resolution as
permitted by Section 201, that such form has been
established in conformity with the provisions of this
Indenture;
(2) if the terms of such Securities have been
established by or pursuant to Board Resolution as
permitted by Section 301, that such terms have been
established in conformity with the provisions of this
Indenture; and
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(3) that such Securities, when authenticated and
delivered by the Trustee and issued by the Company in the
manner and subject to any conditions specified in such
Opinion of Counsel, will constitute valid and legally
binding obligations of the Company enforceable in
accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general
equity principles [and, if applicable, to provisions of
law which may require that a judgment for money damages
rendered by a court in the United States be expressed in
United States dollars].
If such form or terms have been so established, the Trustee
shall not be required to authenticate such Securities if the
issue of such Securities pursuant to this Indenture will affect
the Trustee's own rights, duties or immunities under the
Securities and this Indenture or otherwise in a manner which is
not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of
the preceding paragraph, if all Securities of a series are not
to be originally issued at one time, it shall not be necessary
to deliver the Officers' Certificate otherwise required
pursuant to Section 301 or the Company Order and Opinion of
Counsel otherwise required pursuant to such preceding paragraph
at or prior to the authentication of each Security of such
series if such documents are delivered at or prior to the
authentication upon original issuance of the first Security of
such series to be issued.
Each Security shall be dated the date of its
authentication.
No Security shall be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose unless
there appears on such Security a certificate of authentication
substantially in the form provided for herein, executed by the
Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence,
that such Security has been duly authenticated and delivered
hereunder. Notwithstanding the foregoing, if any Security
shall have been authenticated and delivered hereunder but never
issued and sold by the Company, and the Company shall deliver
such Security to the Trustee for cancellation as provided in
Section 309, for all purposes of this Indenture such Security
shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this
Indenture.
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Section 304. Temporary Securities.
--------------------
Pending the preparation of definitive Securities of
any series, the Company may execute, and upon Company Order the
Trustee shall authenticate and deliver, temporary Securities
which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu
of which they are issued and with such appropriate insertions,
omissions, substitutions and other variations as the officers
executing such Securities may determine, as evidenced by their
execution of such Securities.
If temporary Securities of any series are issued, the
Company will cause definitive Securities of that series to be
prepared without unreasonable delay. After the preparation of
definitive Securities of such series, the temporary Securities
of such series shall be exchangeable for definitive Securities
of such series upon surrender of the temporary Securities of
such series at the office or agency of the Company in a Place
of Payment for that series, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary
Securities of any series, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor one
or more definitive Securities of the same series, of any
authorized denominations and of like tenor and aggregate
principal amount. Until so exchanged, the temporary Securities
of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of such
series and tenor.
Section 305. Registration, Registration of Transfer and
Exchange. ------------------------------------------
--------
The Company shall cause to be kept at the Corporate
Trust Office of the Trustee a register (the register maintained
in such office and in any other office or agency of the Company
in a Place of Payment being herein sometimes collectively
referred to as the "Security Register") in which, subject to
such reasonable regulations as it may prescribe, the Company
shall provide for the registration of Securities and of
transfers of Securities. The Trustee is hereby appointed
"Security Registrar" for the purpose of registering Securities
and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any
Security of a series at the office or agency of the Company in
a Place of Payment for that series, the Company shall execute,
and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new
Securities of the same series, of any authorized denominations
and of like tenor and aggregate principal amount.
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At the option of the Holder, Securities of any series
may be exchanged for other Securities of the same series, of
any authorized denominations and of like tenor and aggregate
principal amount, upon surrender of the Securities to be
exchanged at such office or agency. Whenever any Securities
are so surrendered for exchange, the Company shall execute, and
the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of
transfer or exchange of Securities shall be the valid
obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or
exchange.
Every Security presented or surrendered for
registration of transfer or for exchange shall (if so required
by the Company or the Trustee) be duly endorsed, or be
accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly
executed, by the Holder thereof or his attorney duly authorized
in writing.
No service charge shall be made for any registration
of transfer or exchange of Securities, but the Company may
require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1107 not involving
any transfer.
If the Securities of any series (or of any series and
specified tenor) are to be redeemed in part, the Company shall
not be required (A) to issue, register the transfer of or
exchange any Securities of that series (or of that series and
specified tenor, as the case may be) during a period beginning
at the opening of business 15 days before the day of the
mailing of a notice of redemption of any such Securities
selected for redemption under Section 1103 and ending at the
close of business on the day of such mailing, or (B) to
register the transfer of or exchange any Security so selected
for redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part.
The provisions of Clauses (1), (2), (3), (4) and (5)
below shall apply only to Global Securities:
(1) Each Global Security authenticated under this
Indenture shall be registered in the name of the
Depositary designated for such Global Security or a
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nominee thereof and delivered to such Depositary or a
nominee thereof or custodian therefor, and each such
Global Security shall constitute a single Security for all
purposes of this Indenture.
(2) Notwithstanding any other provision in this
Indenture, no Global Security may be exchanged in whole or
in part for Securities registered, and no transfer of a
Global Security in whole or in part may be registered, in
the name of any Person other than the Depositary for such
Global Security or a nominee thereof unless (A) such
Depositary (i) has notified the Company that it is
unwilling or unable to continue as Depositary for such
Global Security or (ii) has ceased to be a clearing agency
registered under the Exchange Act, (B) there shall have
occurred and be continuing an Event of Default with
respect to such Global Security or (C) there shall exist
such circumstances, if any, in addition to or in lieu of
the foregoing as have been specified for this purpose as
contemplated by Section 301.
(3) Subject to the provisions of Clause (2) above,
the rights of holders of such Global Securities shall be
exercised only through the Depositary and shall be limited
to those established by law and agreements between such
holders and the Depositary and or the Depositary
participants. The initial Depositary will make book-
entry transfers among the Depositary participants and
receive and transmit distributions of principal and
interest on the Global Securities to such Depositary
participants.
The Depositary may be treated by the Company and the
Trustee, and any of their respective agents, employees,
officers and directors, as the absolute owner of the
Global Securities for all purposes whatsoever.
Notwithstanding the foregoing, nothing in this Indenture
shall prevent the Company and the Trustee, or any of their
respective agents, from giving effect to any written
certification, proxy or other authorization furnished by
the Depositary, or shall impair the operation of customary
practices governing the exercise of the rights of a holder
of any Global Security. Subject to the foregoing
provisions of this Section, any holder may grant proxies
and otherwise authorize any person to take any action
which a holder is entitled to take under this Indenture or
the Global Securities.
(4) Subject to Clause (2) above, any exchange of a
Global Security for other Securities may be made in whole
or in part, and all Securities issued in exchange for a
Global Security or any portion thereof shall be registered
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in such names as the Depositary for such Global Security
shall direct.
(5) Every Security authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu
of, a Global Security or any portion thereof, whether
pursuant to this Section, Section 304, 306, 906 or 1107 or
otherwise, shall be authenticated and delivered in the
form of, and shall be, a Global Security, unless such
Security is registered in the name of a Person other than
the Depositary for such Global Security or a nominee
thereof.
Section 306. Mutilated, Destroyed, Lost or Stolen Securities.
-----------------------------------------------
If any mutilated Security is surrendered to the
Trustee, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new Security of
the same series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the
Trustee (i) evidence to their satisfaction of the destruction,
loss or theft of any Security and (ii) such security or
indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security has
been acquired by a bona fide purchaser, the Company shall
execute and the Trustee shall authenticate and deliver, in lieu
of any such destroyed, lost or stolen Security, a new Security
of the same series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen
Security has become or is about to become due and payable, the
Company in its discretion may, instead of issuing a new
Security, pay such Security.
Upon the issuance of any new Security under this
Section, 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.
Every new Security of any series issued pursuant to
this Section in lieu of any destroyed, lost or stolen Security
shall constitute an original additional contractual obligation
of the Company, whether or not the destroyed, lost or stolen
Security shall be at any time enforceable by anyone, and shall
be entitled to all the benefits of this Indenture equally and
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proportionately with any and all other Securities of that
series duly issued hereunder.
The provisions of this Section are exclusive and
shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities.
Section 307. Payment of Interest; Interest Rights Preserved.
----------------------------------------------
Except as otherwise provided as contemplated by
Section 301 with respect to any series of Securities, interest
on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest.
Any interest on any Security of any series which is
payable, but is not punctually paid or duly provided for, on
any Interest Payment Date (herein called "Defaulted Interest")
shall forthwith cease to be payable to the Holder on the
relevant Regular Record Date by virtue of having been such
Holder, and such Defaulted Interest may be paid by the Company,
at its election in each case, as provided in Clause (1) or (2)
below:
(1) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose name the
Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner.
The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each
Security of such series and the date of the proposed
payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the
Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for
the benefit of the Persons entitled to such Defaulted
Interest as in this Clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of
such Defaulted Interest which shall be not more than
15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the
receipt by the Trustee of any 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
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payment of such Defaulted Interest and the Special Record
Date therefor to be mailed, first-class postage prepaid,
to each Holder of Securities of such series, not less than
10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in whose
names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer
be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted
Interest on the Securities of any series in any other
lawful manner not inconsistent with the requirements of
any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this Clause,
such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section,
each Security delivered under this Indenture upon registration
of transfer of or in exchange for or in lieu of any other
Security shall carry the rights to interest accrued and unpaid,
and to accrue, which were carried by such other Security.
Section 308. Persons Deemed Owners.
---------------------
Prior to due presentment of a Security for
registration of transfer, the Company, the Trustee and any
agent of the Company or the Trustee may treat the Person in
whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of
and any premium and (subject to Section 307) any interest on
such Security and for all other purposes whatsoever, whether or
not such Security be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
Section 309. Cancellation.
------------
All Securities surrendered for payment, redemption,
registration of transfer or exchange or for credit against any
sinking fund payment shall, if surrendered to any Person other
than the Trustee, be delivered to the Trustee and shall be
promptly cancelled by it. The Company may at any time deliver
to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may
have acquired in any manner whatsoever, and may deliver to the
Trustee (or to any other Person for delivery to the Trustee)
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for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all
Securities so delivered shall be promptly cancelled by the
Trustee. No Securities shall be authenticated in lieu of or in
exchange for any Securities cancelled as provided in this
Section, except as expressly permitted by this Indenture. All
cancelled Securities held by the Trustee shall be disposed of
as directed by a Company Order.
Section 310. Computation of Interest.
-----------------------
Except as otherwise specified as contemplated by
Section 301 for Securities of any series, interest on the
Securities of each series shall be computed on the basis of a
360-day year of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
--------------------------
Section 401. Satisfaction and Discharge of Indenture.
---------------------------------------
This Indenture shall upon Company Request cease to be of
further effect (except as to any surviving rights of
registration of transfer or exchange of Securities herein
expressly provided for), and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and
delivered (other than (i) Securities which have been
destroyed, lost or stolen and which have been
replaced or paid as provided in Section 306 and
(ii) Securities for whose payment money has
theretofore been deposited in trust or segregated and
held in trust by the Company and thereafter repaid to
the Company or discharged from such trust, as
provided in Section 1003) have been delivered to the
Trustee for cancellation; or
(B) all such Securities not theretofore
delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year, or
(iii) are to be called for redemption within
one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the
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Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (i) (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust
funds in trust for the purpose money (either in United States
dollars or such other currency or currency units in which the
securities of any series may be payable) in an amount
sufficient to pay and discharge the entire indebtedness on such
Securities not theretofore delivered to the Trustee for
cancellation, for principal and any premium and interest to the
date of such deposit (in the case of Securities which have
become due and payable) or to the Stated Maturity or Redemption
Date, as the case may be;
(2) the Company has paid or caused to be paid all
other sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent herein provided for
relating to the satisfaction and discharge of this
Indenture have been complied with.
Notwithstanding the satisfaction and discharge of
this Indenture, the obligations of the Company to the Trustee
under Section 607, the obligations of the Trustee to any
Authenticating Agent under Section 614 and, if money shall have
been deposited with the Trustee pursuant to subclause (B) of
Clause (1) of this Section, the obligations of the Trustee
under Section 402 and the last paragraph of Section 1003 shall
survive.
Section 402. Application of Trust Money.
--------------------------
Subject to the provisions of the last paragraph of
Section 1003, all money deposited with the Trustee pursuant to
Section 401 shall be held in trust and applied by it, in
accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying
Agent) as the Trustee may determine, to the Persons entitled
thereto, of the principal and any premium and interest for
whose payment such money has been deposited with the Trustee.
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ARTICLE FIVE
REMEDIES
--------
Section 501. Events of Default.
-----------------
"Event of Default", wherever used herein with respect
to Securities of any series, means any of the following events
(whatever the reason for such Event of Default and whether it
shall be occasioned by the provisions of Article Fourteen or be
voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any
order, rule or regulation of any administrative or governmental
body):
(1) default in the payment of any interest upon any
Security of that series when it becomes due and payable,
and continuance of such default for a period of 30 days;
or
(2) default in the payment of the principal of or
any premium on any Security of that series when due,
whether at its Maturity, upon acceleration or otherwise;
or
(3) default in the deposit of any sinking fund
payment, when and as due by the terms of a Security of
that series; or
(4) default in the performance, or breach, of any
covenant, agreement or warranty of the Company for the
benefit of the Holders of the Security in this Indenture
(other than a covenant, agreement or warranty a default in
whose performance or whose breach is elsewhere in this
Section specifically dealt with or which has expressly
been included in this Indenture solely for the benefit of
series of Securities other than that series), and
continuance of such default or breach for a period of
90 days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 10% in
principal amount of the Outstanding Securities of that
series a written notice specifying such default or breach
and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(5) the entry by a court having jurisdiction in the
premises of (A) a decree or order for relief in respect of
the Company in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or
order adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition seeking
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reorganization, arrangement, adjustment or composition of
or in respect of the Company under any applicable Federal
or State law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other
similar official of the Company or of any substantial part
of its property, or ordering the winding up or liquidation
of its affairs, and the continuance of any such decree or
order for relief or any such other decree or order
unstayed and in effect for a period of 60 consecutive
days; or
(6) the commencement by the Company of a voluntary
case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar
law or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by it to the entry
of a decree or order for relief in respect of the Company
in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or
other similar law or to the commencement of any bankruptcy
or insolvency case or proceeding against it, or the filing
by it of a petition or answer or consent seeking
reorganization or relief under any applicable Federal or
State law, or the consent by it to the filing of such
petition or to the appointment of or taking possession by
a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or
of any substantial part of its property, or the making by
it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its
debts generally as they become due, or the taking of
corporate action by the Company in furtherance of any such
action; or
(7) any other Event of Default provided with respect
to Securities of that series.
Section 502. Acceleration of Maturity; Rescission and
Annulment. ----------------------------------------
---------
If an Event of Default (other than an Event of
Default specified in Section 501(5) or 501(6)) with respect to
Securities of any series at the time Outstanding occurs and is
continuing, then in every such case, and upon five (5) days'
prior written notice to the Bank Agent and each other holder
(or representative of a holder) of Designated Senior
Indebtedness, the Trustee or the Holders of not less than 25%
in principal amount of the Outstanding Securities of that
series may declare the principal amount of all the Securities
of that series (or, if any Securities of that series are
Original Issue Discount Securities, such portion of the
principal amount of such Securities as may be specified by the
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terms thereof) to be due and payable immediately, by a notice
in writing to the Company (and to the Trustee if given by
Holders), and upon any such declaration such principal amount
(or specified amount) shall become immediately due and payable.
If an Event of Default specified in Section 501(5) or 501(6)
with respect to Securities of any series at the time
Outstanding occurs, the principal amount of all the Securities
of that series (or, if any Securities of that series are
Original Issue Discount Securities, such portion of the
principal amount of such Securities as may be specified by the
terms thereof) shall automatically, and without any declaration
or other action on the part of the Trustee or any Holder,
become immediately due and payable.
At any time after such a declaration of acceleration
with respect to Securities of any series has been made and
before a judgment or decree for payment of the money due has
been obtained by the Trustee as hereinafter in this Article
provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the
Company and the Trustee, may rescind and annul such declaration
and its consequences if:
(1) the Company has paid or deposited with the
Trustee a sum sufficient to pay;
(A) all overdue interest on all Securities of
that series,
(B) the principal of (and premium, if any, on)
any Securities of that series which have become due
otherwise than by such declaration of acceleration
and any interest thereon at the rate or rates
prescribed therefor in such Securities,
(C) to the extent that payment of such interest
is lawful, interest upon overdue interest at the rate
or rates prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents
and counsel; and
(2) all Events of Default with respect to Securities
of that series, other than the non-payment of the
principal of Securities of that series which have become
due solely by such declaration of acceleration, have been
cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or
impair any right consequent thereon.
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Section 503. Collection of Indebtedness and Suits for
Enforcement by Trustee.
------------------------------------------------------
The Company covenants that if:
(1) default is made in the payment of any interest
on any Security when such interest becomes due and payable
and such default continues for a period of 30 days; or
(2) default is made in the payment of the principal
of (or premium, if any, on) any Security whether at the
Maturity or upon acceleration or otherwise thereof;
the Company will, upon demand of the Trustee, pay to it, for
the benefit of the Holders of such Securities, the whole amount
then due and payable on such Securities for principal and any
premium and interest and, to the extent that payment of such
interest shall be legally enforceable, interest on any overdue
principal and premium and on any overdue interest, at the rate
or rates prescribed therefor in such Securities, and, in
addition thereto, such further amount as shall be sufficient to
cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel.
If an Event of Default with respect to Securities of
any series occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the
rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for
the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted
herein, or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
--------------------------------
In case of any judicial proceeding relative to the
Company (or any other obligor upon the Securities), its
property or its creditors, the Trustee shall be entitled and
empowered, by intervention in such proceeding or otherwise, to
take any and all actions authorized under the Trust Indenture
Act in order to have claims of the Holders and the Trustee
allowed in any such proceeding. In particular, the Trustee
shall be authorized to collect and receive any moneys or other
property payable or deliverable on any such claims and to
distribute the same; and any custodian, receiver, assignee,
trustee, liquidator, sequestrator or other similar official in
any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event
that the Trustee shall consent to the making of such payments
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directly to the Holders, to pay to the Trustee any amount due
it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
No provision of this Indenture shall be deemed to
authorize the Trustee to authorize or consent to or accept or
adopt on behalf of any Holder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee
to vote in respect of the claim of any Holder in any such
proceeding; provided, however, that the Trustee may, on behalf
of the Holders, vote for the election of a trustee in
bankruptcy or similar official and be a member of a creditors'
or other similar committee.
Section 505. Trustee May Enforce Claims Without Possession of
Securities. ------------------------------------------------
----------
All rights of action and claims under this Indenture
or the Securities may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or the
production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery
of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel, be for the ratable
benefit of the Holders of the Securities in respect of which
such judgment has been recovered.
Section 506. Application of Money Collected.
------------------------------
Any money collected by the Trustee pursuant to this
Article shall be applied in the following order, at the date or
dates fixed by the Trustee and, in case of the distribution of
such money on account of principal or any premium or interest,
upon presentation of the Securities and the notation thereon of
the payment if only partially paid and upon surrender thereof
if fully paid:
FIRST: To the payment of all amounts due the Trustee
under Section 607; and
SECOND: Subject to Article Fourteen, to the payment
of the amounts then due and unpaid for principal of and
any premium and interest on the Securities 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
Securities for principal and any premium and interest,
respectively.
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THIRD: To the Company or any other Person or Persons
entitled thereto.
Section 507. Limitation on Suits.
-------------------
No Holder of any Security of any series shall have
any right to institute any proceeding, judicial or otherwise,
with respect to this Indenture, or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice
to the Trustee of a continuing Event of Default with
respect to the Securities of that series;
(2) the Holders of not less than 25% in principal
amount of the Outstanding Securities of that series shall
have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to the
Trustee reasonable indemnity against the costs, expenses
and liabilities to be incurred in compliance with such
request;
(4) the Trustee for 60 days after its receipt of
such notice, request and offer of indemnity has failed to
institute any such proceeding; and
(5) no direction inconsistent with such written
request has been given to the Trustee during such 60-day
period by the Holders of a majority in principal amount of
the Outstanding Securities of that series;
it being understood and intended that no one or more of such
Holders shall have any right in any manner whatever by virtue
of, or by availing of, any provision of this Indenture to
affect, disturb or prejudice the rights of any other of such
Holders, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any
right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all of such
Holders.
Section 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest and to Convert.
-------------------------------------------------------
Notwithstanding any other provision in this
Indenture, the Holder of any Security shall have the right,
which is absolute and unconditional, to receive payment of the
principal of and any premium and (subject to Section 307)
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interest on such Security on the respective Stated Maturities
expressed in such Security (or, in the case of redemption, on
the Redemption Date) and to convert such Security in accordance
with the provisions in the form of Security of any particular
series pursuant to Section 301(9) and to institute suit for the
enforcement of any such payment and right to convert, and such
rights shall not be impaired without the consent of such
Holder.
Section 509. Restoration of Rights and Remedies.
----------------------------------
If the Trustee or any Holder has instituted any
proceeding to enforce any right or remedy under this Indenture
and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to
such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and
the Holders shall be restored severally and respectively to
their former positions hereunder and thereafter all rights and
remedies of the Trustee and the Holders shall continue as
though no such proceeding had been instituted.
Section 510. Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the
replacement or payment of mutilated, destroyed, lost or stolen
Securities in the last paragraph of Section 306, no right or
remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing
at law or in equity or otherwise. The assertion or employment
of any right or remedy hereunder, or otherwise, shall not
prevent the concurrent assertion or employment of any other
appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder
of any Securities to exercise any right or remedy accruing upon
any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may
be.
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Section 512. Control by Holders.
------------------
The Holders of a majority in principal amount of the
Outstanding Securities of any series shall have the right to
direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any
trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that:
(1) such direction shall not be in conflict with any
rule of law or with this Indenture; and
(2) the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such
direction.
Section 513. Waiver of Past Defaults.
-----------------------
The Holders of not less than a majority in principal
amount of the Outstanding Securities of any series may on
behalf of the Holders of all the Securities of such series
waive any past default hereunder with respect to such series
and its consequences, except a default:
(1) in the payment of the principal of or any
premium or interest on any Security of such series, or
(2) in respect of a covenant or provision hereof
which under Article Nine cannot be modified or amended
without the consent of the Holder of each Outstanding
Security of such series affected.
Upon any such waiver, such default shall cease to
exist, and any Event of Default arising therefrom shall be
deemed to have been cured, for every purpose of this Indenture;
but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
Section 514. Undertaking for Costs.
---------------------
In any suit for the enforcement of any right or
remedy under this Indenture, or in any suit against the Trustee
for any action taken, suffered or omitted by it as Trustee, a
court may require any party litigant in such suit to file an
undertaking to pay the costs of such suit, and may assess costs
against any such party litigant, in the manner and to the
extent provided in the Trust Indenture Act; provided that
neither this Section nor the Trust Indenture Act shall be
deemed to authorize any court to require such an undertaking or
to make such an assessment in any suit instituted by the
Company.
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Section 515. Waiver of Usury, Stay or Extension Laws.
---------------------------------------
The Company covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, or
plead, or in any manner whatsoever claim or take the benefit or
advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and
the Company (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law and
covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though
no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
------------
Section 601. Certain Duties and Responsibilities.
-----------------------------------
The Trustee, prior to the occurrence of an Event of
Default and after the curing or waiving of all Events of
Default which may have occurred, undertakes to perform such
duties and only such duties as are specifically set forth in
this Indenture. In case an Event of Default to the actual
knowledge of a Responsible Officer of the Trustee has occurred,
has not been waived and is continuing, the Trustee shall
exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent
actions, its own negligent failure to act or its own willful
misconduct, except that:
(a) prior to the occurrence of an Event of
Default and after the curing or waiving of all such Events
of Default which may have occurred;
(i) the duties and obligations of the Trustee
shall be determined solely by the express provisions
of this Indenture, and the Trustee shall not be
liable except for the performance of such duties and
obligations as are specifically set forth in this
Indenture, and no implied covenants or obligations
shall be read into this Indenture against the
Trustee; and
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(ii) in the absence of bad faith on the part of
the Trustee, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of
the opinions expressed therein, upon any statements,
certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but
in the case of any such statements, certificates or
opinions which by any provision hereof are
specifically required to be furnished to the Trustee,
the Trustee shall be under a duty to examine the same
to determine whether or not they conform to the
requirements of this Indenture;
(b) the Trustee shall not be liable for any
error of judgment made in good faith by a Responsible
Officer or Responsible Officers of the Trustee, unless it
shall be proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with
respect to any action taken or omitted to be taken by it
in good faith in accordance with the direction of the
Holders of not less than a majority in principal amount of
the Securities at the time outstanding relating to the
time, method and place of conducting a proceeding for any
remedy available to the Trustee, or exercising any trust
or power conferred upon the Trustee, under this Indenture.
None of the provisions contained in this Indenture
shall require the Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the performance
of any of its duties or in the exercise of any of its rights or
powers, if there shall be reasonable ground for believing that
the repayment of such funds or adequate indemnity against such
liability is not reasonably assured to it.
This Section is in furtherance of and subject to
Sections 315 and 316 of the Trust Indenture Act.
Section 602. Notice of Defaults.
------------------
If a default occurs hereunder with respect to
Securities of any series, the Trustee shall give the Holders of
Securities of such series notice of such default as and to the
extent provided by the Trust Indenture Act; provided, however,
that in the case of any default of the character specified in
Section 501(4) with respect to Securities of such series, no
such notice to Holders shall be given until at least 30 days
after the occurrence thereof. For the purpose of this Section,
the term "default" means any event which is, or after notice or
lapse of time or both would become, an Event of Default with
respect to Securities of such series.
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Section 603. Certain Rights of Trustee.
-------------------------
Subject to the provisions of Section 601:
(1) the Trustee may conclusively rely and shall be
fully protected in acting or refraining from acting upon
any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to
be genuine and to have been signed or presented by the
proper party or parties;
(2) any request or direction of the Company
mentioned herein shall be sufficiently evidenced by a
Company Request or Company Order, and any resolution of
the Board of Directors shall be sufficiently evidenced by
a Board Resolution;
(3) 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;
(4) the Trustee may consult with counsel and the
written advice of such counsel or any Opinion of Counsel
shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Indenture at the request or direction of any of the
Holders pursuant to this Indenture, unless such Holders
shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities
which might be incurred by it in compliance with such
request or direction;
(6) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent order, bond,
debenture, note, other evidence of indebtedness or other
paper or document, but the Trustee, in its discretion may
make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation,
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it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or
attorney at the sole cost and expense of the Company;
(7) 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, or for the supervision of, any
agent or attorney appointed with due care by it hereunder;
(8) in the event the Trustee is also acting as
Paying Agent, Authenticating Agent or Security Registrar
hereunder, the rights and protections afforded to the
Trustee pursuant to this Indenture shall also be afforded
to such Paying Agent, Authenticating Agent or Registrar;
(9) the Trustee shall not be charged with knowledge
of an Event of Default unless a Responsible Officer of the
Trustee obtains actual knowledge of such event or the
Trustee receives written notice of such event from the
Company or from Holders of Securities of any series so
affected evidencing no less than 51 % of the aggregate
outstanding principal amount of Securities of such series;
and
(10) when the Trustee incurs expenses or renders
services in connection with an Event of Default specified
in Section 501(5) or Section 501(6), such expenses
(including the fees and expenses of its counsel) and the
compensation for such services are intended to constitute
expenses of administration under any bankruptcy or
insolvency law.
Section 604. Not Responsible for Recitals or Issuance of
Securities. -------------------------------------------
----------
The recitals contained herein and in the Securities,
except the Trustee's certificates of authentication, shall be
taken as the statements of the Company, and neither the Trustee
nor any Authenticating Agent assumes any responsibility for
their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the
Securities. Neither the Trustee nor any Authenticating Agent
shall be accountable for the use or application by the Company
of Securities or the proceeds thereof.
Section 605. May Hold Securities.
-------------------
The Trustee, any Authenticating Agent, any Paying
Agent, any Security Registrar or any other agent of the
Company, in its individual or any other capacity, may become
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the owner or pledgee of Securities and, subject to Sections 608
and 613, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Authenticating
Agent, Paying Agent, Security Registrar or such other agent.
Section 606. Money Held in Trust.
-------------------
Money held by the Trustee in trust hereunder need not
be segregated from other funds except to the extent required by
law. The Trustee shall be under no liability for interest on
any money received by it hereunder except as otherwise agreed
with the Company.
Section 607. Compensation and Reimbursement.
------------------------------
The Company agrees:
(1) to pay to the Trustee from time to time
reasonable compensation for all services rendered by it
hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein,
to reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred
or made by the Trustee in accordance with any provision of
this Indenture (including the reasonable compensation and
the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(3) to indemnify the Trustee and its officers,
directors, agents, and employees for, and to hold it and
its officers, directors, agents, and employees harmless
against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of the
trust or trusts hereunder, including the costs and
expenses of defending itself against any claim or
liability in connection with the exercise or performance
of any of its powers or duties hereunder.
As security for the performance of the obligations of
the Company under this Section, the Trustee shall have a lien
prior to the 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 Securities.
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Section 608. Conflicting Interests.
---------------------
If the Trustee has or shall acquire a conflicting
interest within the meaning of the Trust Indenture Act, the
Trustee shall either eliminate such interest or resign, to the
extent and in the manner provided by, and subject to the
provisions of, the Trust Indenture Act and this Indenture. To
the extent permitted by such Act, the Trustee shall not be
deemed to have a conflicting interest by virtue of being a
trustee under this Indenture with respect to Securities of more
than one series.
Section 609. Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be a Trustee hereunder,
which may be Trustee hereunder for Securities of one or more
other series. Each Trustee shall be a Person that is eligible
pursuant to the Trust Indenture Act to act as such and has a
combined capital and surplus of at least $50,000,000 and has
its Corporate Trust Office in the City of New York. If any
such Person publishes reports of condition at least annually,
pursuant to law or to the requirements of its supervising or
examining authority, then for the purposes of this Section and
to the extent permitted by the Trust Indenture Act, the
combined capital and surplus of such Person shall be deemed to
be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time the
Trustee with respect to the Securities of any series shall
cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the
effect hereinafter specified in this Article.
Section 610. Resignation and Removal; Appointment of
Successor. ---------------------------------------
---------
No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article
shall become effective until the acceptance of appointment by
the successor Trustee in accordance with the applicable
requirements of Section 611.
The Trustee may resign at any time with respect to
the Securities of one or more series by giving written notice
thereof to the Company. If the instrument of acceptance by a
successor Trustee required by Section 611 shall not have been
delivered to the Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition
any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such
series.
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The Trustee may be removed at any time with respect
to the Securities of any series by Act of the Holders of a
majority in principal amount of the Outstanding Securities of
such series, delivered to the Trustee and to the Company.
If at any time:
(1) the Trustee shall fail to comply with
Section 608 after written request therefor by the Company
or by any Holder who has been a bona fide Holder of a
Security for at least six months,
(2) the Trustee shall cease to be eligible under
Section 609 and shall fail to resign after written request
therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of
the Trustee or of its property shall be appointed or any
public officer shall take charge or control of the Trustee
or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
then, in any such case, (A) the Company by a Board Resolution
may remove the Trustee with respect to all Securities, or
(B) subject to Section 514, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of
himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with
respect to all Securities and the appointment of a successor
Trustee or Trustees.
If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office
of Trustee for any cause, with respect to the Securities of one
or more series, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood
that any such successor Trustee may be appointed with respect
to the Securities of one or more or all of such series and that
at any time there shall be only one Trustee with respect to the
Securities of any particular series) and shall comply with the
applicable requirements of Section 611. If, within one year
after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to
the Securities of any series shall be appointed by act of the
Holders of a majority in principal amount of the Outstanding
Securities of such series delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance
with the applicable requirements of Section 611, become the
successor Trustee with respect to the Securities of such series
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and to that extent supersede the successor Trustee appointed by
the Company. If no successor Trustee with respect to the
Securities of any series shall have been so appointed by the
Company or the Holders and accepted appointment in the manner
required by Section 611, any Holder who has been a bona fide
Holder of a Security of such series for at least six months
may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the
Securities of such series.
The Company shall give notice of each resignation and
each removal of the Trustee with respect to the Securities of
any series and each appointment of a successor Trustee with
respect to the Securities of any series to all Holders of
Securities of such series in the manner provided in
Section 106. Each notice shall include the name of the
successor Trustee with respect to the Securities of such series
and the address of its corporate trust office.
Section 611. Acceptance of Appointment by Successor.
--------------------------------------
In case of the appointment hereunder of a successor
Trustee with respect to all 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.
In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not
all) series, the Company, the retiring Trustee and each
successor Trustee with respect to the Securities of one or more
series shall execute and deliver an indenture supplemental
hereto wherein each successor Trustee shall accept such
appointment and which (1) shall contain such provisions as
shall be necessary or desirable to transfer and confirm to, and
to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of
such successor Trustee relates, (2) if the retiring Trustee is
not retiring with respect to all Securities, shall contain such
provisions as shall be deemed necessary or desirable to confirm
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that all the rights, powers trusts and duties of the retiring
Trustee with respect to the Securities of that or those series
as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (3) shall add to or
change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental
indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or
trusts hereunder administered by any other such Trustee; and
upon the execution and delivery of such supplemental indenture
the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such
successor Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities
of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company or
any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder with respect to
the Securities of that or those series to which the appointment
of such successor Trustee relates.
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 the
first or second preceding paragraph, as the case may be.
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. No trustee
hereunder shall be liable for the acts or omissions of any
successor Trustee.
Section 612. 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 all or substantially all the
corporate trust business of the Trustee, shall be the successor
of the Trustee hereunder, provided such corporation shall be
otherwise qualified and eligible under this Article, without
the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities
shall have been authenticated, but not delivered, by the
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Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with
the same effect as if such successor Trustee had itself
authenticated such Securities.
Section 613. Preferential Collection of Claims Against
Company. -----------------------------------------
-------
If and when the Trustee shall be or become a creditor
of the Company (or any other obligor upon the Securities), the
Trustee shall be subject to the provisions of the Trust
Indenture Act regarding the collection of claims against the
Company (or any such other obligor).
Section 614. Appointment of Authenticating Agent.
-----------------------------------
The Trustee may appoint an Authenticating Agent or
Agents with respect to one or more series of Securities which
shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon original
issue and upon exchange, registration of transfer or partial
redemption thereof or pursuant to Section 306, and Securities
so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as
if authenticated by the Trustee hereunder. Wherever reference
is made in this Indenture to the authentication and delivery of
Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company
and shall at all times be a corporation organized and doing
business under the laws of the United States of America, any
State thereof or the District of Columbia, authorized under
such laws to act as Authenticating Agent, having a combined
capital and surplus of not less than $50,000,000 and subject to
supervision or examination by Federal or State authority. If
such Authenticating Agent publishes reports of condition at
least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of
this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition
so published. If at any time an Authenticating Agent shall
cease to be eligible in accordance with the provisions of this
Section, such Authenticating Agent shall resign immediately in
the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent
may be merged or converted or with which it may be
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consolidated, or any corporation resulting from any merger,
conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an
Authenticating Agent, shall continue to be an Authenticating
Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the
Authenticating Agent.
An Authenticating Agent may resign at any time by
giving written notice thereof to the Trustee and to the
Company. The Trustee may at any time terminate the agency of
an Authenticating Agent by giving written notice thereof to
such Authenticating Agent and to the Company. Upon receiving
such a notice of resignation or upon such a termination, or in
case at any time such Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, the
Trustee may appoint a successor Authenticating Agent which
shall be acceptable to the Company and shall give notice of
such appointment by first-class mail, postage prepaid, to all
Holders of Securities of the series with respect to which such
Authenticating Agent will serve. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally named
as an Authenticating Agent. No successor Authenticating Agent
shall be appointed unless eligible under the provisions of this
Section.
The Trustee agrees to pay to each Authenticating
Agent from time to time reasonable compensation for its
services under this Section, and the Trustee shall be entitled
to be reimbursed for such payments, in accordance with the
provisions of Section 607.
If an appointment with respect to one or more series
is made pursuant to this Section, the Securities of such series
may have endorsed thereon, in addition to the Trustee's
certificate of authentication, an alternative certificate of
authentication in the following form:
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This is one of the Securities of the series
designated therein referred to in the within-mentioned
Indenture.
THE CHASE MANHATTAN BANK (NATIONAL
ASSOCIATION), as Trustee
By ___________________________________
As Authenticating Agent
By ___________________________________
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
-------------------------------------------------
Section 701. Company to Furnish Trustee Names and Addresses of
Holders. -------------------------------------------------
-------
The Company will furnish or cause to be furnished to
the Trustee,
(1) semi-annually, not later than . . . . . . and
. . . . . . in each year, a list in such form as the
Trustee may reasonably require, of the names and addresses
of the Holders of Securities of each series as of the
preceding . . . . . . or . . . . . . as the case may be;
and
(2) at such other times as the Trustee may request
in writing, within 30 days after the receipt by the
Company of any such request, a list of similar form and
content as of a date not more than 15 days prior to the
time such list is furnished;
excluding from any such list names and addresses received by
the Trustee in its capacity as Security Registrar.
Section 702. Preservation of Information; Communications to
Holders. ----------------------------------------------
-------
The Trustee shall preserve, in as current a form as
is reasonably practicable, the names and addresses of Holders
contained in the most recent list furnished to the Trustee as
provided in Section 701 and the names and addresses of Holders
received by the Trustee in its capacity as Security Registrar.
The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
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The rights of Holders to communicate with other
Holders with respect to their rights under this Indenture or
under the Securities, and the corresponding rights and
privileges of the Trustee, shall be as provided by the Trust
Indenture Act.
Every Holder of Securities, by receiving and holding
the same, agrees with the Company and the Trustee that neither
the Company nor the Trustee nor any agent of either of them
shall be held accountable by reason of any disclosure of
information as to names and addresses of Holders made pursuant
to the Trust Indenture Act.
Section 703. Reports by Trustee.
------------------
The Trustee shall transmit to Holder such reports
concerning the Trustee and its actions under this Indenture as
may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant thereto.
Reports so required to be transmitted at stated
intervals of not more than 12 months shall be transmitted no
later than the ___ day in each calendar year, commencing in
______________.
A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each
stock exchange upon which any Securities are listed, with the
Commission and with the Company. The Company will notify the
Trustee when any Securities are listed on any stock exchange.
Section 704. Reports by Company.
------------------
The Company shall file with the Trustee and the
Commission, and transmit to Holders, such information,
documents and other reports, and such summaries thereof, as may
be required pursuant to the Trust Indenture Act at the times
and in the manner provided pursuant to such Act; provided that
any such information, documents or reports required to be filed
with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act shall be filed with the Trustee within 15 days
after the same is so required to be filed with the Commission.
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ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
----------------------------------------------------
Section 801. Company May Consolidate, Etc., Only on Certain
Terms. ----------------------------------------------
-----
The Company shall not consolidate with or merge into
any other Person or convey, transfer or lease its properties
and assets substantially as an entirety to any Person, and the
Company shall not permit any Person to consolidate with or
merge into the Company or convey, transfer or lease its
properties and assets substantially as an entirety to the
Company, unless:
(1) in case the Company shall consolidate with or
merge into another Person or convey, transfer or lease its
properties and assets substantially as an entirety to any
Person, the Person formed by such consolidation or into
which the Company is merged or the Person which acquires
by conveyance or transfer, or which leases, the properties
and assets of the Company substantially as an entirety
shall be a corporation, partnership or trust, shall be
organized and validly existing under the laws of the
United States of America, any State thereof or the
District of Columbia and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to
the Trustee, in form satisfactory to the Trustee, the due
and punctual payment of the principal of and any premium
and interest on all the Securities and the performance or
observance of every covenant of this Indenture on the part
of the Company to be performed or observed;
(2) immediately after giving effect to such
transaction and treating any indebtedness which becomes an
obligation of the Company or any Subsidiary as a result of
such transaction as having been incurred by the Company or
such Subsidiary at the time of such transaction, no Event
of Default, and no event which, after notice or lapse of
time or both, would become an Event of Default, shall have
happened and be continuing; and
(3) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that such consolidation, merger, conveyance,
transfer or lease 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.
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Section 802. Successor Substituted.
---------------------
Upon any consolidation of the Company with, or merger
of the Company into, 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 801,
the successor Person formed by such consolidation or into which
the Company is merged 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, except in the
case of a lease, the predecessor Person shall be relieved of
all obligations and covenants under this Indenture and the
Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
-----------------------
Section 901. Supplemental Indentures Without Consent of
Holders. ------------------------------------------
-------
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time
and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for
any of the following purposes:
(1) to evidence the succession of another Person to
the Company and the assumption by any such successor of
the covenants of the Company herein and in the Securities;
(2) to add to the covenants of the Company for the
benefit of the Holders of all or any series of Securities
(and if such covenants are to be for the benefit of less
than all series of Securities, stating that such covenants
are expressly being included solely for the benefit of
such series) or to surrender any right or power herein
conferred upon the Company;
(3) to add any additional Events of Default for the
benefit of the Holders of all or any series of Securities
(and if such additional Events of Default are to be for
the benefit of less than all series of Securities, stating
that such additional Events of Default are expressly being
included solely for the benefit of such series);
(4) to add to or change any of the provisions of
this Indenture to such extent as shall be necessary to
permit or facilitate the issuance of Securities in bearer
form, registrable or not registrable as to principal, and
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with or without interest coupons, or to permit or
facilitate the issuance of Securities in uncertificated
form;
(5) to add to, change or eliminate any of the
provisions of this Indenture in respect to one or more
series of Securities, provided that any such addition,
change or elimination (A) shall neither (i) apply to any
Security or series created prior to the execution of such
supplemental indenture and entitled to the benefit of such
provision nor (ii) modify the rights of the Holder of any
such Security with respect to such provision or (B) shall
become effective only when there is no such Security
Outstanding;
(6) to secure the Securities;
(7) to establish the form or terms of Securities of
any series as permitted by Sections 201 and 301;
(8) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect
to the Securities of one or more series and to 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, pursuant
to the requirements of Section 611;
(9) subject to Section 907, to add to, change or
eliminate any of the provisions of Article Fourteen or
change the definition of "Senior Indebtedness" in respect
of one or more series of Securities, including Outstanding
Securities, provided that any such addition, change or
elimination shall not adversely affect the interests of
the Holders of Outstanding Securities of any series in any
material respect;
(10) to cure any ambiguity, to correct or supplement
any provision herein which may be defective or
inconsistent with any other provision herein, or to make
any other provisions with respect to matters or questions
arising under this Indenture, provided that such action
pursuant to this Clause (10) shall not adversely affect
the interests of the Holders of Securities of any series
in any material respect; or
(11) to make provisions with respect to the
conversion rights of Holders, including providing for the
conversion of the Securities into any security or
securities of the Company.
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Section 902. Supplemental Indentures with Consent of Holders.
-----------------------------------------------
With the consent of the Holders of not less than a
majority in principal amount of the Outstanding Securities of
each series affected by such supplemental indenture, by act of
said Holders delivered to the Company and the Trustee, the
Company, when authorized by a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental hereto
for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Indenture,
or of modifying in any manner the rights of the Holders of
Securities of such series under this Indenture; provided,
however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security affected
thereby:
(1) change the Stated Maturity of the principal of,
or any installment of principal of or interest on, any
Security, or reduce the principal amount thereof or the
rate of interest thereon (including any change in the
index, indices or formula pursuant to which such rate is
determined that would reduce such rate for any period) or
any premium payable upon the redemption thereof, or reduce
the amount of the principal of an Original Issue Discount
Security or any other Security which would be due and
payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 502, or change any Place of
Payment where, or the coin or currency in which, any
Security or any premium or interest thereon is payable, or
impair the right to institute suit for the enforcement of
any such payment on or after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption
Date) or modify the provisions of this Indenture with
respect to the subordination of the Securities in a manner
adverse to the Holders, or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose
Holders is required for any such supplemental indenture,
or the consent of whose Holders is required for any waiver
(of compliance with certain provisions of this Indenture
or certain defaults hereunder and their consequences)
provided for in this Indenture, or
(3) modify any of the provisions of this Section,
Section 513 or Section 1008, except to increase any such
percentage or to provide that certain other provisions of
this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security
affected thereby; provided, however, that this clause
shall not be deemed to require the consent of any Holder
with respect to changes in the references to "the Trustee"
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and concomitant changes in this Section and Section 1008,
or the deletion of this proviso, in accordance with the
requirements of Sections 611 and 901(8).
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has
expressly been included solely for the benefit of one or more
particular series of Securities, or which modifies the rights
of the Holders of Securities of such series with respect to
such covenant or other provision, shall be deemed not to affect
the rights under this Indenture of the Holders of Securities of
any other series.
It shall not be necessary for any Act of Holders
under this Section to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if
such Act shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures.
------------------------------------
In executing, or accepting the additional trusts
created by, any supplemental indenture permitted by this
Article or the modifications thereby of the trusts created by
this Indenture, the Trustee shall be entitled to receive, and
(subject to Section 601) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to,
enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture
or otherwise.
Section 904. Effect of Supplemental Indentures.
---------------------------------
Upon the execution of any supplemental indenture
under this Article, this Indenture shall be modified in
accordance therewith, and such supplemental indenture shall
form a part of this Indenture for all purposes; and every
Holder of Securities theretofore or thereafter authenticated
and delivered hereunder shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to
this Article shall conform to the requirements of the Trust
Indenture Act.
Section 906. Reference in Securities to Supplemental
Indentures. ---------------------------------------
----------
Securities of any series authenticated and delivered
after the execution of any supplemental indenture pursuant to
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this Article may, and shall if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company
shall so determine, new Securities of any series so modified as
to conform, in the opinion of the Trustee and the Company, to
any such supplemental indenture may be prepared and executed by
the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
Section 907. Subordination Unimpaired.
------------------------
No provision in any supplemental indenture that
affects the superior position of the holders of Senior
Indebtedness shall be effective against holders of Senior
Indebtedness.
ARTICLE TEN
COVENANTS
---------
Section 1001. Payment of Principal, Premium and Interest.
------------------------------------------
The Company covenants and agrees for the benefit of
each series of Securities that it will duly and punctually pay
the principal of and any premium and interest on the Securities
of that series in accordance with the terms of the Securities
and this Indenture.
Section 1002. Maintenance of Office or Agency.
-------------------------------
The Company will maintain in each Place of Payment
for any series of Securities an office or agency where
Securities of that series may be presented or surrendered for
payment, where Securities of that series may be surrendered for
registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Securities of
that series and this Indenture may be served. The Company will
give prompt written notice to the Trustee of the location, and
any change in the location, of such office or agency. If at
any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of
the Trustee, and the Company hereby appoints the Trustee as its
agent to receive all such presentations, surrenders, notices
and demands.
The Company may also from time to time designate one
or more other offices or agencies where the Securities of one
or more series may be presented or surrendered for any or all
such purposes and may from time to time rescind such
designations; provided, however, that no such designation or
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rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in each Place of
Payment for Securities of any series for such purposes. The
Company will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the
location of any such other office or agency.
Section 1003. Money for Securities Payments to Be Held in
Trust. -------------------------------------------
-----
If the Company shall at any time act as its own
Paying Agent with respect to any series of Securities, it will,
on or before each due date of the principal of or any premium
or interest on any of the Securities of that series, segregate
and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal and any premium
and interest so becoming due until such sums shall be paid to
such Persons or otherwise disposed of as herein provided and
will promptly notify the Trustee of its action or failure so to
act.
Whenever the Company shall have one or more Paying
Agent for any series of Securities, it will, prior to each due
date of the principal of or any premium or interest on any
Securities of that series, deposit with a Paying Agent a sum
sufficient to pay such amount, such sum to be held as provided
by the Trust Indenture Act, and (unless such Paying Agent is
the Trustee) the Company will promptly notify the Trustee of
its action or failure so to act.
The Company will cause each Paying Agent for any
series of Securities other than the Trustee to execute and
deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this
Section, that such Paying Agent will (1) comply with the
provisions of the Trust Indenture Act applicable to it as a
Paying Agent and (2) during the continuance of any default by
the Company (or any other obligor upon the Securities of that
series) in the making of any payment in respect of the
Securities of that series, upon the written request of the
Trustee, forthwith pay to the Trustee all sums held in trust by
such Paying Agent for payment in respect of the Securities of
that series.
The Company may at any time, for the purpose of
obtaining the satisfaction and discharge of this Indenture or
for any other purpose, pay, or by Company Order direct any
Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were
held by the Company or such Paying Agent; and, upon such
payment by any Paying Agent to the Trustee, such Paying Agent
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shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying
Agent, or then held by the Company, in trust for the payment of
the principal of or any premium or interest on any Security of
any series and remaining unclaimed for two years after such
principal, premium or interest has become due and payable shall
be paid to the Company on Company request, or (if then held by
the Company) shall be discharged from such trust; and the
Holder of such Security shall thereafter, as an unsecured
general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company
as trustee thereof, shall thereupon cease; provided, however,
that the Trustee or such Paying Agent, before being required to
make any such repayment, may at the expense of the Company
cause to be published once, in a newspaper published in the
English language, customarily published on each Business Day
and of general circulation in the Borough of Manhattan,
The City of New York, notice that such money remains unclaimed
and that, after a date specified therein, which shall not be
less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining will be repaid
to the Company.
Section 1004. Statement by Officers as to Default.
-----------------------------------
The Company will deliver to the Trustee, within
120 days after the end of each fiscal year of the Company
ending after the date hereof, an Officers' Certificate stating
that a review of the activities of the Company and its
subsidiaries during the preceding fiscal year has been made
under the supervision of such officers with a view to
determining whether the Company has kept, performed, fulfilled
and observed its obligations under this Indenture and stating
as to each such officer signing such Officers' Certificate
that, to the best of such officers' knowledge, the Company has
kept, observed, performed and fulfilled each and every covenant
contained in this Indenture and is not in default in the
performance and observance of any of the terms, provisions and
conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and, if the
Company is in default, specifying all such defaults and the
nature and status thereof of which such officer may have
knowledge.
The Company will, so long as any of the Securities
are outstanding, deliver to the Trustee forthwith upon becoming
aware of (i) an Event of Default or default in the performance
of a covenant or agreement or condition contained in this
Indenture or (ii) any default or Event of Default of the type
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provided for herein specifying such default or Event of
Default, notice of such default or Event of Default.
Section 1005. Existence.
---------
Subject to Article Eight, the Company will do or
cause to be done all things necessary to preserve and keep in
full force and effect its existence, rights (charter and
statutory) and franchises and the existence, rights (charter
and statutory) and franchises of its subsidiaries; provided,
however, that the Company shall not be required to preserve any
such right or franchise if the Board of Directors shall
determine that the preservation thereof is no longer desirable
in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the
Holders.
Section 1006. Maintenance of Properties.
-------------------------
The Company will cause all properties used or useful
in the conduct of its business or the business of any
Subsidiary to be maintained and kept in good condition, repair
and working order and supplied with all necessary equipment and
will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in
the judgment of the Company may be necessary so that the
business carried on in connection therewith may be properly and
advantageously conducted at all times; provided, however, that
nothing in this Section shall prevent the Company from
discontinuing the operation or maintenance of any of such
properties if such discontinuance is, in the judgement of the
Company, desirable in the conduct of its business or the
business of any Subsidiary and not disadvantageous in any
material respect to the Holders.
Section 1007. Payment of Taxes and Other Claims.
---------------------------------
The Company will pay or discharge or cause to be paid
or discharged, before the same shall become delinquent, (1) all
taxes, assessments and governmental charges levied or imposed
upon the Company or any Subsidiary or upon the income, profits
or property of the Company or any Subsidiary, and (2) all
lawful claims for labor, materials and supplies which, if
unpaid, might by law become a lien upon the property of the
Company or any Subsidiary; provided, however, that the Company
shall not be required to pay or discharge or cause to be paid
or discharged any such tax, assessment, charge or claim whose
amount, applicability or validity is being contested in good
faith by appropriate proceedings.
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Section 1008. Waiver of Certain Covenants.
---------------------------
Except as otherwise specified as contemplated by
Section 301 for Securities of such series, the Company may,
with respect to the Securities of any series, omit in any
particular instance to comply with any term, provision or
condition set forth in any covenant provided pursuant to
Section 301(19), 901(2) or 901(7) for the benefit of the
Holders of such series, if before the time for such compliance
the Holders of at least a majority in principal amount of the
Outstanding Securities of such series shall, by act of such
Holders, either waive such compliance in such instance or
generally waive compliance with such term, provision or
condition, but no such waiver shall extend to or affect such
term, provision or condition except to the extent so expressly
waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in
respect of any such term, provision or condition shall remain
in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
------------------------
Section 1101. Applicability of Article.
------------------------
Securities of any series which are redeemable before
their Stated Maturity shall be redeemable in accordance with
their terms and (except as otherwise specified as contemplated
by Section 301 for such Securities) in accordance with this
Article.
Section 1102. Election to Redeem; Notice to Trustee.
-------------------------------------
The election of the Company to redeem any Securities
shall be evidenced by a Board Resolution or in another manner
specified as contemplated by Section 301 for such Securities.
In case of any redemption at the election of the Company of
less than all the Securities of any series (including any such
redemption affecting only a single Security), the Company
shall, at least 60 days prior to the Redemption Date fixed by
the Company (unless a shorter notice shall be satisfactory to
the Trustee), notify the Trustee in writing of such Redemption
Date, of the principal amount of Securities of such series to
be redeemed and, if applicable, of the tenor of the Securities
to be redeemed. In the case of any redemption of Securities
prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such
restriction.
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Section 1103. Selection by Trustee of Securities to Be
Redeemed. ----------------------------------------
--------
If less than all the Securities of any series are to
be redeemed (unless all the Securities of such series and of a
specified tenor are to be redeemed or unless such redemption
affects only a single Security), the particular Securities to
be redeemed shall be selected not more than 60 days prior to
the Redemption Date by the Trustee, from the Outstanding
Securities of such series not previously called for redemption,
by such method as the Trustee shall deem fair and appropriate
and which may provide for the selection for redemption of a
portion of the principal amount of any Security of such series,
provided that the unredeemed portion of the principal amount of
any Security shall be in an authorized denomination (which
shall not be less than the minimum authorized denomination) for
such Security. If less than all the Securities of such series
and of a specified tenor are to be redeemed (unless such
redemption affects only a single Security), the particular
Securities to be redeemed shall be selected not more than
60 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series and specified tenor not
previously called for redemption in accordance with the
preceding sentence.
The Trustee shall promptly notify the Company in
writing of the Securities selected for redemption as aforesaid
and, in case of any Securities selected for partial redemption
as aforesaid, the principal amount thereof to be redeemed.
The provisions of the two preceding paragraphs shall
not apply with respect to any redemption affecting only a
single Security, whether such Security is to be redeemed in
whole or in part. In the case of any such redemption in part,
the unredeemed portion of the principal amount of the Security
shall be in an authorized denomination (which shall not be less
than the minimum authorized denomination) for such Security.
For all purposes of this Indenture, unless the
context otherwise requires, all provisions relating to the
redemption of Securities shall relate, in the case of any
Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has
been or is to be redeemed.
Section 1104. Notice of Redemption.
--------------------
Notice of redemption shall be given by first-class
mail, postage prepaid, mailed not less than 30 nor more than
60 days prior to the Redemption Date, to each Holder of
Securities to be redeemed, at his address appearing in the
Security Register.
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All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of
any series consisting of more than a single Security are
to be redeemed, the identification (and, in the case of
partial redemption of any such Securities, the principal
amounts) of the particular Securities to be redeemed and,
if less than all the Outstanding Securities of any series
consisting of a single Security are to be redeemed, the
principal amount of the particular Security to be
redeemed,
(4) that on the Redemption Date the Redemption Price
will become due and payable upon each such Security to be
redeemed and, if applicable, that interest thereon will
cease to accrue on and after said date,
(5) the place or places where each such Security is
to be surrendered for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if
such is the case.
Notice of redemption of Securities to be redeemed at
the election of the Company shall be given by the Company or,
at the Company's request, by the Trustee in the name and at the
expense of the Company.
Section 1105. Deposit of Redemption Price.
---------------------------
Prior to any Redemption Date, the Company shall
deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 1003) an amount of money
sufficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) accrued
interest on, all the Securities which are to be redeemed on
that date.
Section 1106. Securities Payable on Redemption Date.
-------------------------------------
Notice of redemption having been given as aforesaid,
the Securities so to be redeemed shall, on the Redemption Date,
become due and payable at the Redemption Price therein
specified, and from and after such date (unless the Company
shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest.
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Upon surrender of any such Security for redemption in
accordance with said notice, such Security shall be paid by the
Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that, unless
otherwise specified as contemplated by Section 301,
installments of interest whose Stated Maturity is on or prior
to the Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered
as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 307.
If any Security called for redemption shall not be so
paid upon surrender thereof for redemption, the principal and
any premium shall, until paid, bear interest from the
Redemption Date at the rate prescribed therefor in the
Security.
Section 1107. Securities Redeemed in Part.
---------------------------
Any Security which is to be redeemed only in part
shall be surrendered at a Place of Payment therefor (with, if
the Company or the Trustee so requires, due endorsement by, or
a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or
his attorney duly authorized in writing), and the Company shall
execute, and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge, a new Security
or Securities of the same series and of like tenor, of any
authorized denomination as requested by such Holder, in
aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so
surrendered.
ARTICLE TWELVE
SINKING FUNDS
-------------
Section 1201. Applicability of Article.
------------------------
The provisions of this Article shall be applicable to
any sinking fund for the retirement of Securities of any series
except as otherwise specified as contemplated by Section 301
for such Securities.
The minimum amount of any sinking fund payment
provided for by the terms of any Securities 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 such
Securities is herein referred to as an "optional sinking fund
payment". If provided for by the terms of any Securities, the
cash amount of any sinking fund payment may be subject to
reduction as provided in Section 1202. Each sinking fund
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payment shall be applied to the redemption of Securities as
provided for by the terms of such Securities.
Section 1202. Satisfaction of Sinking Fund Payments with
Securities. ------------------------------------------
----------
The Company (1) may deliver Outstanding Securities of
a series (other than any previously called for redemption) and
(2) may apply as a credit Securities of a series which have
been redeemed either at the election of the Company pursuant to
the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms
of such Securities, in each case in satisfaction of all or any
part of any sinking fund payment with respect to any Securities
of such series required to be made pursuant to the terms of
such Securities as and to the extent provided for by the terms
of such Securities; provided that the Securities to be so
credited have not been previously so credited. The Securities
to be so credited shall be received and credited for such
purpose by the Trustee at the Redemption Price, as specified in
the Securities so to be redeemed, for redemption through
operation of the sinking fund and the amount of such sinking
fund payment shall be reduced accordingly.
Section 1203. Redemption of Securities for Sinking Fund.
-----------------------------------------
Not less than . . . . . . days prior to each sinking
fund payment date for any Securities, the Company will deliver
to the Trustee an Officers' Certificate specifying the amount
of the next ensuing sinking fund payment for such Securities
pursuant to the terms of such Securities, the portion thereof,
if any, which is to be satisfied by payment of cash and the
portion thereof, if any, which is to be satisfied by delivering
and crediting Securities pursuant to Section 1202 and will also
deliver to the Trustee any Securities to be so delivered. Not
less than . . . . . . days prior to each such sinking fund
payment date, the Trustee shall select the Securities to be
redeemed upon such sinking fund payment date in the manner
specified in Section 1103 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 1104. Such notice
having been duly given, the redemption of such Securities shall
be made upon the terms and in the manner stated in
Sections 1106 and 1107.
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ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
----------------------------------
Section 1301. Applicability of Article; Company's Option to
Effect Defeasance or Covenant Defeasance.
------------------------------------------------------------
Unless otherwise provided pursuant to Section 301,
this Article Thirteen shall be applicable to the Securities of
such series, and the Company may at its option by Board
Resolution, at any time, with respect to the Securities of such
series, elect to have either Section 1302 (if applicable) or
Section 1303 (if applicable) be applied to the Outstanding
Securities of such series upon compliance with the conditions
set forth below in this Article Thirteen.
Section 1302. Defeasance and Discharge.
------------------------
Upon the Company's exercise of its option (if any) to
have this Section applied to any Securities or any series of
Securities, as the case may be, the Company shall be deemed to
have been discharged from its obligations, and the provisions
of Article Fourteen shall cease to be effective, with respect
to such Securities as provided in this Section on and after the
date the conditions set forth in Section 1304 are satisfied
(hereinafter called "Defeasance"). For this purpose, such
Defeasance means that the Company shall be deemed to have paid
and discharged the entire indebtedness represented by such
Securities and to have satisfied all its other obligations
under such Securities and this Indenture insofar as such
Securities are concerned (and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging the
same), subject to the following which shall survive until
otherwise terminated or discharged hereunder; (1) the rights of
Holders of such Securities to receive, solely from the trust
fund described in Section 1304 and as more fully set forth in
such Section, payments in respect of the principal of and any
premium and interest on such Securities when payments are due,
(2) the Company's obligations with respect to such Securities
under Sections 304, 305, 306, 1002 and 1003, (3) the rights,
powers, trusts, duties and immunities of the Trustee hereunder,
and (4) this Article. Subject to compliance with this Article,
the Company may exercise its option (if any) to have this
Section applied to any Securities notwithstanding the prior
exercise of its option (if any) to have Section 1303 applied to
such Securities.
Section 1303. Covenant Defeasance.
-------------------
Upon the Company's exercise of its option (if any) to
have this Section applied to any Securities or any series of
Securities, as the case may be, (1) the Company shall be
released from its obligations under Sections 1006 and 1007 (and
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any other Sections or covenants applicable to such Securities
that are determined pursuant to Section 301 to be subject to
this provision), and any covenants provided pursuant to
Section 301(19), 901(2) or 901(7) for the benefit of the
Holders of such Securities, (2) the occurrence of any event
specified in Section 501(4) (with respect to Sections 1006
and 1007 (and any other Sections or covenants applicable to
such Securities that are determined pursuant to Section 301 to
be subject to this provision), and any such Covenants provided
pursuant to Sections 301(19), 901(2) or 901(7) and 501(7) shall
be deemed not to be or result in an Event of Default and
(3) the provisions of Article Fourteen shall cease to be
effective, in each case with respect to such Securities as
provided in this Section on and after the date the conditions
set forth in Section 1304 are satisfied (hereinafter called
"Covenant Defeasance"). For this purpose, such Covenant
Defeasance means that, with respect to such Securities, the
Company may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any
such specified Section (to the extent so specified in the case
of Section 501(4) or Article Fourteen, whether directly or
indirectly by reason of any reference elsewhere herein to any
such Section or Article or by reason of any reference in any
such Section or Article to any other provision herein or in any
other document, but the remainder of this Indenture and such
Securities shall be unaffected thereby.
Section 1304. Conditions to Defeasance or Covenant Defeasance.
-----------------------------------------------
The following shall be the conditions to the
application of Section 1302 or Section 1303 to any Securities
or any series of Securities, as the case may be:
(1) The Company shall irrevocably have deposited or
caused to be deposited with the Trustee (or another
trustee which satisfies the requirements contemplated by
Section 609 and agrees to comply with the provisions of
this Article applicable to it) as trust funds in trust for
the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the
benefit of the Holders of such Securities, (A) in the case
of Securities of such series denominated in U.S. dollars,
(i) money in an amount, (ii) U.S. Government Obligations
that through the scheduled payment of principal and
interest in respect thereof in accordance with their terms
will provide, not later than one day before the due date
of any payment, money in an amount, or (iii) a combination
thereof, in each case sufficient, in the opinion of a
nationally recognized firm of independent public
accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and which
shall be applied by the Trustee (or any such other
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qualifying trustee) to pay and discharge, the principal of
and any premium and interest on such Securities on the
respective Stated Maturities, in accordance with the terms
of this Indenture and such Securities. As used herein,
"U.S. Government Obligation" means (x) any security that
is (i) a direct obligation of the United States of America
for the payment of which the full faith and credit of the
United States of America is pledged or (ii) an obligation
of a Person controlled or supervised by and acting as an
agency or instrumentality of the United States of America
the payment of which is unconditionally guaranteed as a
full faith and credit obligation by the United States of
America, which, in either case (i) or (ii), is not
callable or redeemable at the option of the issuer
thereof, and (y) any depositary receipt issued by a bank
(as defined in Section 3(a)(2) of the Securities Act) as
custodian with respect to any U.S. Government Obligation
which is specified in Clause (x) above and held by such
bank for the account of the holder of such depositary
receipt, or with respect to any specific payment of
principal of or interest on any U.S. Government Obligation
which is so specified and held, provided 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 U.S. Government Obligation or
the specific payment of principal or interest evidenced by
such depositary receipt or (B) in the case of Securities
of such series denominated in a currency other than the
U.S. dollar, (i) money in such currency in an amount, or
(ii) Foreign Government Obligations that through the
scheduled payment of principal and interest in respect
thereof in accordance with their terms will provide, not
later than one day before the due date of any payment,
money in such currency in an amount, or (iii) a
combination thereof, in each case sufficient, in the
opinion of a nationally recognized firm of independent
public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge,
and which shall be applied by the Trustee (or any such
other qualifying trustee) to pay and discharge, the
principal of and any premium and interest on the
Securities of such series on the respective Stated
Maturities, in accordance with the terms of this Indenture
and the Securities of such series. As used herein,
"Foreign Government Obligation" means (x) any security
that is (i) a direct obligation of the government that
issued such currency for the payment of which full faith
and credit of such government is pledged or (ii) an
obligation of a Person controlled or supervised by and
acting as an agency or instrumentality for such government
the payment of which is unconditionally guaranteed as a
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full faith and credit obligation by such government,
which, in either case (i) or (ii), is not callable or
redeemable at the option of the issuer thereof, and
(y) any depositary receipt issued by a bank (as defined in
Section 3(a)(2) of the Securities Act) as custodian with
respect to any Foreign Government Obligation which is
specified in Clause (x) and held by such bank for the
account of the holder of such depositary receipt, or with
respect to any specific payment of principal of or
interest on any such Foreign Government Obligation which
is so specified and held, provided 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 Foreign Government Obligation
or the specific payment of principal or interest evidenced
by such depositary receipt.
(2) In the event of an election to have Section 1302
apply to any Securities or any series of Securities, as
the case may be, the Company shall have delivered to the
Trustee an Opinion of Counsel stating that (A) the Company
has received from, or there has been published by, the
Internal Revenue Service a ruling or (B) since the date of
this instrument, there has been a change in the applicable
Federal income tax law, in either case (A) or (B) to the
effect that, and based thereon such opinion shall confirm
that, the Holders of such Securities will not recognize
gain or loss for Federal income tax purposes as a result
of the deposit, Defeasance and discharge to be effected
with respect to such Securities and will be subject to
Federal income tax on the same amount, in the same manner
and at the same times as would be the case if such
deposit, Defeasance and discharge were not to occur.
(3) In the event of an election to have Section 1303
apply to any Securities or any series of Securities, as
the case may be, the Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that the
Holders of such Securities will not recognize gain or loss
for Federal income tax purposes as a result of the deposit
and Covenant Defeasance to be effected with respect to
such Securities and will be subject to Federal income tax
on the same amount, in the same manner and at the same
times as would be the case if such deposit and Covenant
Defeasance were not to occur.
(4) The Company shall have delivered to the Trustee
an Officer's Certificate to the effect that neither such
Securities nor any other Securities of the same series, if
then listed on any securities exchange, will be delisted
as a result of such deposit.
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(5) No event which is, or after notice or lapse of
time or both would become, an Event of Default with
respect to such Securities or any other Securities shall
have occurred and be continuing at the time of such
deposit or, with regard to any such event specified in
Sections 501(5) and (6), at any time on or prior to the
90th day after the date of such deposit (it being
understood that this condition shall not be deemed
satisfied until after such 90th day).
(6) Such Defeasance or Covenant Defeasance shall not
cause the Trustee to have a conflicting interest within
the meaning of the Trust Indenture Act (assuming all
Securities are in default within the meaning of such Act).
(7) Such Defeasance or Covenant of Defeasance shall
not result in a breach or violation of, or constitute a
default under, any other agreement or instrument to which
the Company is a party or by which it is bound.
(8) Such Defeasance or Covenant of Defeasance shall
not result in the trust arising from such deposit
constituting an investment company within the meaning of
the Investment Company Act unless such trust shall be
registered under such Act or exempt from registration
thereunder.
(9) At the time of such deposit, (A) no default in
the payment of any principal of or premium or interest on
any Senior Indebtedness shall have occurred and be
continuing, (B) no event of default with respect to any
Senior Indebtedness shall have resulted in such Senior
Indebtedness becoming, and continuing to be, due and
payable prior to the date on which it would otherwise have
become due and payable (unless payment of such Senior
Indebtedness has been made or duly provided for ),
and (C) no other event of default with respect to any
Senior Indebtedness shall have occurred and be continuing
permitting (after notice or lapse of time or both) the
holders of such Senior Indebtedness (or a trustee on
behalf of such holders) to declare such Senior
Indebtedness due and payable prior to the date on which it
would otherwise have become due and payable.
(10) The Company shall have delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent with respect to such
Defeasance or Covenant of Defeasance have been complied
with.
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Section 1305. Deposited Money and U.S. Government Obligations
to Be Held in Trust; Miscellaneous Provisions.
--------------------------------------------------------------
Subject to the provisions of the last paragraph of
Section 1003, all money and U.S. Government Obligations or
Foreign Government Obligations (including the proceeds thereof)
deposited with the Trustee or other qualifying trustee (solely
for purposes of this Section and Section 1306, the Trustee and
any such other trustee are referred to collectively as the
"Trustee") pursuant to Section 1304 in respect of any
Securities shall be held in trust and applied by the Trustee,
in accordance with the provisions of such Securities and this
Indenture, to the payment, either directly or through any such
Paying Agent (including the Company acting as its own Paying
Agent) as the Trustee may determine, to the Holders of such
Securities, of all sums due and to become due thereon in
respect of principal and any premium and interest, but money so
held in trust need not be segregated from other funds except to
the extent required by law. Money, U.S. Government Obligations
and Foreign Government Obligations so held in trust shall not
be subject to the provisions of Article Fourteen.
The Company shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on or assessed
against the U.S. Government Obligations or Foreign Government
Obligations deposited pursuant to Section 1304 or the principal
and interest received in respect thereof other than any such
tax, fee or other charge which by law is for the account of the
Holders of Outstanding Securities.
Anything in this Article to the contrary
notwithstanding, the Trustee shall deliver or pay to the
Company from time to time upon Company Request any money or
U.S. Government Obligations held by it as provided in
Section 1304 with respect to any Securities that, in the
opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of an amount thereof
which would then be required to be deposited to effect the
Defeasance or Covenant Defeasance, as the case may be, with
respect to such Securities.
Section 1306. Reinstatement.
-------------
If the Trustee or the Paying Agent is unable to apply
any money in accordance with this Article with respect to any
Securities by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise
prohibiting such application, then the obligations under this
Indenture and such Securities from which the Company has been
discharged or released pursuant to Section 1302 or 1303 shall
be revived and reinstated as though no deposit had occurred
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pursuant to this Article with respect to such Securities, until
such time as the Trustee or Paying Agent is permitted to apply
all money held in trust pursuant to Section 1305 with respect
to such Securities in accordance with this Article; provided,
however, that if the Company makes any payment of principal of
or any premium or interest on any such Security following such
reinstatement of its obligations, the Company shall be
subrogated to the rights (if any) of the Holders of such
Securities to receive such payment from the money so held in
trust.
ARTICLE FOURTEEN
SUBORDINATION OF SECURITIES
---------------------------
Section 1401. Debt Securities Subordinate to Senior
Indebtedness. -------------------------------------
------------
The Company covenants and agrees that anything in
this Indenture or the Securities of any series to the contrary
notwithstanding, the indebtedness evidenced by the Securities
of each series and any coupons appurtenant thereto is
subordinate and junior in right to payment to all Senior
Indebtedness to the extent provided herein, and each Holder of
Securities of each series and coupons appurtenant thereto, by
such Holder's acceptance thereof, likewise covenants and agrees
to the subordination herein provided and shall be bound by the
provisions hereof. Senior Indebtedness shall continue to be
Senior Indebtedness and entitled to the benefits of these
subordination provisions irrespective of any amendment,
modification or waiver of any term of the Senior Indebtedness
or extension or renewal of the Senior Indebtedness.
In the event that the Company shall default in the
payment of any principal of (or premium, if any) or interest on
any Senior Indebtedness (or any fee, indemnity or other amount
comprising Senior Indebtedness) when the same become due and
payable, whether at maturity or at a date fixed for prepayment
or by declaration of acceleration or otherwise, then, unless
and until such default shall have been cured or waived or shall
have ceased to exist, no direct or indirect payment (in cash,
property, securities, by set-off or otherwise) shall be made or
agreed to be made on account of the principal of (or premium,
if any) or interest on any of the Securities, or in respect of
any redemption, repayment, retirement, Defeasance, purchase or
other acquisition of any of the Securities; PROVIDED that this
paragraph shall not be binding on the Trustee with respect to
any funds held by the Trustee prior to its receipt of written
notice of such payment default from any Holder of Senior
Indebtedness (or any agent or trustee therefor).
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Other than as provided in the immediately preceding
paragraph, upon the occurrence and continuation of an event of
default under Designated Senior Indebtedness pursuant to which
the maturity thereof may be accelerated (a "Non-payment
Default") and after the receipt by the Trustee and the Company
from the Bank Agent or other representative or holder of the
Designated Senior Indebtedness of written notice of such Non-
payment Default, no payment or distribution of any assets of
the Company of any kind or character may be made by the Company
on account of the principal of, premium, if any, or interest
on, the Securities or on account of the redemption, repayment,
retirement, Defeasance, purchase or other acquisition of any of
the Securities for the period specified below (the "Payment
Blockage Period").
The Payment Blockage Period shall commence upon the
receipt of notice of the Non-payment Default by the Trustee and
the Company from the Bank Agent or other representative or
holder of the Designated Senior Indebtedness and shall end on
the earliest of (x) 179 days after receipt of such notice by
the Trustee (provided the Designated Senior Indebtedness as to
which notice was given shall not theretofore have been
accelerated), (y) the date on which the Non-payment Default
(with respect to which the Trustee and the Company have
received notice) shall have been cured or waived or shall have
ceased to exist or the Designated Senior Indebtedness related
thereto shall have been discharged or paid in full or (z) the
date such Payment Blockage Period shall have been terminated by
written notice to the Company or the Trustee from the Bank
Agent or other representative or holder of the Designated
Senior Indebtedness that gave notice of a Non-payment Default
at or after the initiation of such Payment Blockage Period,
after which the Company shall resume making any and all
required payments in respect of the Securities, including any
missed payments. In no event will a Payment Blockage Period
extend beyond 179 days from the date of the receipt by the
Trustee of the notice initiating the first such Payment
Blockage Period (such 179-day period referred to as the
"Initial Period"). During any 365-day consecutive period only
one such period during which payment of principal of, premium,
if any, or interest on, the Securities may not be made may
commence and the duration of such period may not exceed 179
days. No Non-payment Default with respect to the Designated
Senior Indebtedness which was known by the representative or
holder giving such blockage notice to have existed or be
continuing on the date of the commencement of any Payment
Blockage Period will be, or can be, made the basis for the
commencement of a second Payment Blockage Period (whether or
not within a period of 365 consecutive days), unless such
default has been cured or waived for a period of not less than
90 consecutive days (it being understood that any breach of any
financial covenant for the period commencing after the date of
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commencement of such Payment Blockage Period which would give
rise to a Non-payment Default pursuant to any provision under
which a Non-payment Default previously existed or was
continuing shall constitute a new Non-payment Default).
In the event that, notwithstanding the foregoing, any
payment shall be received by the Trustee or any Holder when
such payment is prohibited as provided above, the Trustee shall
promptly notify the holders of Senior Indebtedness (or
Designated Senior Indebtedness, as applicable) of such
prohibited payment and such payment shall be held in trust for
the benefit of, and shall be paid over or delivered to, the
holders of Senior Indebtedness (or Designated Senior
Indebtedness, as applicable) or their respective
representatives, or to the trustee or trustees under any
indenture pursuant to which any of such Senior Indebtedness (or
Designated Senior Indebtedness, as applicable) may have been
issued, as their respective interests may appear, but only to
the extent that, upon notice from the Trustee to the holders of
Senior Indebtedness (or Designated Senior Indebtedness, as
applicable) that such prohibited payment has been made, the
holders of the Senior Indebtedness (or Designated Senior
Indebtedness, as applicable), or their representative or
representatives or a trustee, within 30 days of receipt of such
notice from the Trustee notify the Trustee of the amounts then
due and owing on the Senior Indebtedness (or Designated Senior
Indebtedness, as applicable), if any, and only the amounts
specified in such notice to the Trustee shall be paid to the
holders of Senior Indebtedness (or Designated Senior
Indebtedness, as applicable) and any excess above such amounts
due and owing on Senior Indebtedness (or Designated Senior
Indebtedness, as applicable) shall be paid to the Company.
In the event of
(a) any insolvency, bankruptcy, receivership,
liquidation, reorganization, readjustment, composition or other
similar proceeding relating to the Company, its creditors or
its property,
(b) any proceeding for the liquidation, dissolution,
or other winding up of the Company, voluntary or involuntary,
whether or not involving insolvency or bankruptcy proceedings,
(c) any assignment by the Company for the benefit of
creditors, or
(d) any other marshalling of the assets of the
Company,
all Senior Indebtedness (including any interest thereon
accruing after the commencement of any such proceedings) shall
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first be paid in full before any payment or distribution,
whether in cash, securities or other property, and shall be
made to any Holder of any of the Securities or coupons
appurtenant thereto on account thereof. Any payment or
distribution, whether in cash, securities or other property
(other than securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment the
payment of which is subordinate, at least to the extent
provided in these subordination provisions with respect to the
indebtedness evidenced by the Securities, to the payment of all
Senior Indebtedness at the time outstanding and to any
securities issued in respect thereof under any such plan of
reorganization or readjustment), which would otherwise (but for
these subordination provisions) be payable or deliverable in
respect of the Securities of any series or coupons appurtenant
thereto shall be paid or delivered directly to the Holders of
Senior Indebtedness in accordance with the priorities then
existing among such Holders until all Senior Indebtedness
(including any interest thereon accruing after the commencement
of any such proceedings) shall have been paid in full. In the
event of any such proceeding, after payment in full of all sums
owing with respect to Senior Indebtedness, the Holders of the
Securities and coupons appurtenant thereto, together with the
Holders of any obligations of the Company ranking on a parity
with the Securities, shall be entitled to be paid from the
remaining assets of the Company the amounts at the time due and
owing on account of unpaid principal of (and premium, if any)
and interest on the Securities and such other obligations
before any payment or other distribution, whether in cash,
property or otherwise, shall be made on account of any capital
stock or any obligations of the Company ranking junior to the
Securities and such other obligations.
In the event that, notwithstanding the foregoing, any
payment or distribution of any character or any security,
whether in cash, securities or other property (other than
securities of the Company or any other corporation provided for
by a plan of reorganization or readjustment the payment of
which is subordinate, at least to the extent provided in these
subordination provisions with respect to the indebtedness
evidenced by the Securities, to the payment of all Senior
Indebtedness at the time outstanding with respect to the
indebtedness evidenced by the Securities, to the payment of all
Senior Indebtedness at the time outstanding and to any
securities issued in respect thereof under any such plan of
reorganization or readjustment), shall be received by the
Trustee or any Holder in contravention of any of the terms
hereof such payment or dissolution or security shall be
received in trust for the benefit of, and shall be paid over or
delivered and transferred to, the holders of the Senior
Indebtedness at the time outstanding in accordance with the
priorities then existing among such holders for application to
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the payment of all Senior Indebtedness remaining unpaid, to the
extent necessary to pay all such Senior Indebtedness in full.
In the event of the failure of the Trustee or any Holder to
endorse or assign any such payment, distribution or security,
each holder of Senior Indebtedness is hereby irrevocably
authorized to endorse or assign the same.
No present or future holder of any Senior
Indebtedness shall be prejudiced in the right to enforce
subordination of the indebtedness evidenced by the Securities
by any act or failure to act on the part of the Company.
Nothing contained herein shall impair, as between the Company
and the Holders of Securities of each series the obligation of
the Company to pay to such Holders the principal of (and
premium, if any) and interest on such Securities and coupons
appurtenant thereto or prevent the Trustee or the Holder from
exercising all rights, powers and remedies otherwise permitted
by applicable law or hereunder upon a default or Event of
Default hereunder, all subject to the rights of the holders of
the Senior Indebtedness to receive cash, securities or other
property otherwise payable or deliverable to the Holders.
Senior Indebtedness shall not be deemed to have been
paid in full unless the holders thereof shall have received
cash, securities or other property equal to the amount of such
Senior Indebtedness then outstanding. Upon the payment in full
of all Senior Indebtedness, the Holders of Securities of each
series and coupons appurtenant thereto, if any, shall be
subrogated to all rights of any holders of Senior Indebtedness
to receive any further payments or distributions applicable to
the Senior Indebtedness until the indebtedness evidenced by the
Securities of such series and coupons appertaining thereto, if
any, shall have been paid in full, and such payments or
distributions received by such Holders, by reason of such
subrogation, of cash, securities or other property which
otherwise would be paid or distributed to the holders of Senior
Indebtedness, shall, as between the Company and its creditors
other than the holders of Senior Indebtedness, on the one hand,
and such Holders, on the other hand, be deemed to be a payment
by the Company on account of Senior Indebtedness, and not on
account of the Securities of such series.
The Trustee and Holders will take such action
(including without limitation, the delivery of this Indenture
to an agent for the holders of Senior Indebtedness or consent
to the filing of a financing statement with respect hereto) as
may, in the opinion of counsel designated by the holders of a
majority in principal amount of the Senior Indebtedness at the
time outstanding, be necessary or appropriate to assure the
effectiveness of the subordination effected by these
provisions.
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The provisions of this Section 1401 shall not impair
any rights, interests, remedies or powers of any secured
creditor of the Company in respect of any security interest the
creation of which is not prohibited by the provisions of this
Indenture.
The securing of any obligations of the Company,
otherwise ranking on a parity with the Securities or ranking
junior to the Securities, shall not be deemed to prevent such
obligations from constituting, respectively, obligations
ranking on a parity with the Securities or ranking junior to
the Securities.
Section 1402. Trustee And Holders Of Debt Securities May Rely
On Certificate Of Liquidating Agent; Trustee May Require
Further Evidence As To Ownership Of Senior Indebtedness;
Trustee Not Fiduciary To Holders Of Senior Indebtedness.
--------------------------------------------------------------
Upon any payment or distribution of assets of the
Company referred to in this Article Fourteen, the Trustee and
the Holders shall be entitled to rely upon an order or decree
made by any court of competent jurisdiction in which such
dissolution or winding up or liquidation or reorganization or
arrangement proceedings are pending or upon a certificate of
the trustee in bankruptcy, receiver, assignee for the benefit
of creditors or other Person making such payment or
distribution, delivered to the Trustee or to the Holders, for
the purpose of ascertaining the persons entitled to participate
in such distribution, the holders of the Senior Indebtedness
and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this
Article Fourteen. In the absence of any such bankruptcy
trustee, receiver, assignee or other Person, the Trustee shall
be entitled to rely upon a written notice by a Person
representing himself or herself to be a holder of Senior
Indebtedness (or a trustee or representative on behalf of such
holder) as evidence that such Person is a holder of such Senior
Indebtedness (or is such a trustee or representative). In the
event that the Trustee determines, in good faith, that further
evidence is required with respect to the right of any Person as
a holder of Senior Indebtedness to participate in any payments
or distributions pursuant to this Article Fourteen, the Trustee
may request such person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior
Indebtedness held by such Person, as to the extent to which
such Person is entitled to participate in such payment or
distribution, and as to other facts pertinent to the rights of
such Person under this Article Fourteen, and if such evidence
is not furnished, the Trustee may offer any payment to such
Person pending judicial determination as to the right of such
Person to receive payment. The Trustee, however, shall not be
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deemed to owe any fiduciary duty to the holders of Senior
Indebtedness.
Section 1403. Payment Permitted If No Default.
-------------------------------
Nothing contained in this Article Fourteen or
elsewhere in this Indenture, or in any of the Securities, shall
prevent (a) the Company at any time, except during the pendency
of any dissolution, winding up, liquidation or reorganization
proceedings referred to in, or under the conditions described
in Section 1401, from making payments of the principal of (or
premium, if any) or interest on the Securities or (b) the
application by the Trustee or any Paying Agent of any moneys
deposited with it hereunder to payments of the principal of or
interest on the Securities, if, at the time of such deposit,
the Trustee or such Paying Agent, as the case may be, did not
have the written notice provided for in Section 1404 of any
event prohibiting the making of such deposit, or if, at the
time of such deposit (whether or not in trust) by the Company
with the Trustee or any Paying Agent (other than the Company)
such payment would not have been prohibited by the provisions
of this Article, and the Trustee or any Paying Agent shall not
be affected by any notice to the contrary received by it on or
after such date.
Section 1404. Trustee Not Charged With Knowledge Of
Prohibition. -------------------------------------
-----------
Anything in this Article Fourteen or elsewhere in
this Indenture contained to the contrary notwithstanding, the
Trustee shall not at any time be charged with knowledge of the
existence of any facts which would prohibit the making of any
payment of money to or by the Trustee and shall be entitled
conclusively to assume that no such facts exist and that no
event specified in Section 1401 has happened, until the Trustee
shall have received an Officers' Certificate to that effect or
notice in writing to that effect signed by or on behalf of the
holder or holders, or their representatives, of Senior
Indebtedness who shall have been certified by the Company or
otherwise established to the reasonable satisfaction of the
Trustee to be such holder or holders or representatives or from
any trustee under any indenture pursuant to which such Senior
Indebtedness shall be outstanding. The Company shall give
prompt written notice to the Trustee and to the Paying Agent of
any facts which would prohibit the payment of money to or by
the Trustee or any Paying Agent.
Section 1405. Trustee to Effectuate Subordination.
-----------------------------------
Each Holder of Securities or coupons by such Holder's
acceptance thereof authorizes and directs the Trustee on such
Holder's behalf to take such action as may be necessary or
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appropriate to effectuate the subordination as between such
Holder and holders of Senior Indebtedness as provided in this
Article and appoints the Trustee its attorney-in-fact for any
and all such purposes.
Section 1406. Rights Of Trustee As Holder Of Senior
Indebtedness. -------------------------------------
------------
The Trustee shall be entitled to all the rights set
forth in this Article with respect to any Senior Indebtedness
which may at the time be held by it, to the same extent as any
other holder of Senior Indebtedness; provided that nothing in
this Article shall deprive the Trustee of any rights as such
holder and provided further that nothing in this Article shall
apply to claims of, or payments to, the Trustee under or
pursuant to Section 607.
Section 1407. Article Applicable To Paying Agents.
-----------------------------------
In case at any time any Paying Agent other than the
Trustee shall have been appointed by the Company and be then
acting hereunder, the term "Trustee" as used in this Article
shall in such case (unless the context shall otherwise require)
be construed as extending to and including such Paying Agent
within its meaning as fully for all intents and purposes as if
the Paying Agent were named in this Article in addition to or
in place of the Trustee; provided, however, that Sections 1404
and 1406 shall not apply to the Company or any Affiliate of the
Company if the Company or such Affiliate acts as Paying Agent.
Section 1408. Subordination Rights Not Impaired By Acts Or
Omissions Of The Company Or Holders Of Senior Indebtedness.
----------------------------------------------------------
No right of any present or future holders of any
Senior Indebtedness to enforce subordination as herein provided
shall at any time in any way be prejudiced or impaired by any
act or failure to act on the part of the Company or by any act
or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and
covenants of this Indenture, regardless of any knowledge
thereof which any such holder may have or be otherwise charged
with. The holders of Senior Indebtedness may, at any time or
from time to time and in their absolute discretion, change the
manner, place or terms of payment, change or extend the time of
payment of, or renew or alter, any such Senior Indebtedness, or
amend or supplement any instrument pursuant to which any such
Senior Indebtedness is issued or by such it may be secured, or
release any security therefor, or exercise or refrain from
exercising any other of their rights under the Senior
Indebtedness including, without limitation, the waiver of
default thereunder, all without notice to or assent from the
Holders of the Securities or the Trustee and without affecting
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the obligations of the Company, the Trustee or the Holders of
the Securities under this Article.
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be
an original, but all such counterparts shall together
constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed, and their respective
corporate seals to be hereunto affixed and attested, all as of
the day and year first above written.
NORTHROP GRUMMAN CORPORATION
By _____________________________
ATTEST:
______________________
THE CHASE MANHATTAN BANK (NATIONAL
ASSOCIATION), as Trustee
By ______________________________
ATTEST:
________________________
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State of California )
)
County of __________ )
On ______________ before me, __________________, Notary Public,
personally appeared ___________________________________,
[ ] personally known to me or [ ] proved to me on the basis of
satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which
the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
_______________________________
State of New York )
)
County of __________ )
On ______________ before me, __________________, Notary Public,
personally appeared ___________________________________,
[ ] personally known to me or [ ] proved to me on the basis of
satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which
the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
_______________________________
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