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XXXXXX INDUSTRIES, INC.
SENIOR SUBORDINATED DEBT SECURITIES
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INDENTURE
DATED AS OF
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[ ]
AS TRUSTEE
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CROSS REFERENCE TABLE*
TIA INDENTURE
SECTION SECTION
------- ---------
310 (a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.8; 7.10
(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.8; 7.10
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A
311 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
312 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.7
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.3
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.3
313 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.6
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.6
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.6; 13.2
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.6
314 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2; 13.2
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(c)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.4
(c)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.4
(c)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.5
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3
315 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.5; 13.2
315 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.11
316 (a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.5
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.4
(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.7
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
* Note: This Cross Reference Table shall not, for any purpose, be deemed to
be part of the Indenture.
TIA INDENTURE
SECTION SECTION
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317 (a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.8
(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.9
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.6
318 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.1
TABLE OF CONTENTS*
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.2 OTHER DEFINITIONS . . . . . . . . . . . . . . . . . . 6
SECTION 1.3 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT. . . . 7
SECTION 1.4 RULES OF CONSTRUCTION. . . . . . . . . . . . . . . . . . 7
ARTICLE II
THE SECURITIES
SECTION 2.1 FORMS GENERALLY. . . . . . . . . . . . . . . . . . . . . 7
SECTION 2.2 SECURITIES IN GLOBAL FORM. . . . . . . . . . . . . . . . 8
SECTION 2.3 TITLE, TERMS AND DENOMINATIONS . . . . . . . . . . . . . 10
SECTION 2.4 EXECUTION, AUTHENTICATION, DELIVERY AND DATINg . . . . . 14
SECTION 2.5 REGISTRAR AND PAYING AGENT . . . . . . . . . . . . . . . 17
SECTION 2.6 PAYING AGENT TO HOLD MONEY AND SECURITIES IN TRUST . . . 18
SECTION 2.7 SECURITYHOLDER LISTS . . . . . . . . . . . . . . . . . . 18
SECTION 2.8 TRANSFER AND EXCHANGE. . . . . . . . . . . . . . . . . . 18
SECTION 2.9 REPLACEMENT SECURITIES AND COUPONS . . . . . . . . . . . 22
SECTION 2.10 OUTSTANDING SECURITIES; DETERMINATIONS OF
HOLDERS' ACTION. . . . . . . . . . . . . . . . . . . . . 23
SECTION 2.11 TEMPORARY SECURITIES . . . . . . . . . . . . . . . . . . 24
SECTION 2.12 CANCELLATION . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 2.13 PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED . . . . . 27
SECTION 2.14 PERSONS DEEMED OWNERS. . . . . . . . . . . . . . . . . . 28
SECTION 2.15 COMPUTATION OF INTEREST . . . . . . . . . . . . . . . . 29
ARTICLE III
REDEMPTION
SECTION 3.1 RIGHT TO REDEEM; NOTICES TO TRUSTEE. . . . . . . . . . . 29
SECTION 3.2 SELECTION OF SECURITIES TO BE REDEEMED . . . . . . . . . 29
SECTION 3.3 NOTICE OF REDEMPTION . . . . . . . . . . . . . . . . . . 29
* Note: This Table of Contents shall not, for any purpose, be deemed to be
part of the Indenture.
i
SECTION 3.4 EFFECT OF NOTICE OF REDEMPTION . . . . . . . . . . . . . 30
SECTION 3.5 DEPOSIT OF REDEMPTION PRICE. . . . . . . . . . . . . . . 31
SECTION 3.6 SECURITIES REDEEMED IN PART. . . . . . . . . . . . . . . 31
ARTICLE IV
COVENANTS
SECTION 4.1 PAYMENT OF SECURITIES. . . . . . . . . . . . . . . . . . 32
SECTION 4.2 SEC REPORTS. . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 4.3 COMPLIANCE CERTIFICATE . . . . . . . . . . . . . . . . . 32
SECTION 4.4 FURTHER INSTRUMENTS AND ACTS . . . . . . . . . . . . . . 32
SECTION 4.5 MAINTENANCE OF OFFICE OR AGENCY. . . . . . . . . . . . . 33
SECTION 4.6 ADDITIONAL AMOUNTS . . . . . . . . . . . . . . . . . . . 34
SECTION 4.7 LIMITATIONS ON THE INCURRENCE OF CERTAIN OTHER DEBT. . . 35
ARTICLE V
SUCCESSOR CORPORATION
SECTION 5.1 When Company May Merge or Transfer Assets. . . . . . . . 35
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.1 EVENTS OF DEFAULT. . . . . . . . . . . . . . . . . . . . 36
SECTION 6.2 ACCELERATION . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 6.3 OTHER REMEDIES . . . . . . . . . . . . . . . . . . . . . 38
SECTION 6.4 WAIVER OF PAST DEFAULTS. . . . . . . . . . . . . . . . . 39
SECTION 6.5 CONTROL BY MAJORITY. . . . . . . . . . . . . . . . . . . 39
SECTION 6.6 LIMITATION ON SUITS. . . . . . . . . . . . . . . . . . . 39
SECTION 6.7 RIGHTS OF HOLDERS TO RECEIVE PAYMENT . . . . . . . . . . 40
SECTION 6.8 COLLECTION SUIT BY TRUSTEE . . . . . . . . . . . . . . . 40
SECTION 6.9 TRUSTEE MAY FILE PROOFS OF CLAIM . . . . . . . . . . . . 40
SECTION 6.10 PRIORITIES . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 6.11 UNDERTAKING FOR COSTS. . . . . . . . . . . . . . . . . . 41
SECTION 6.12 WAIVER OF STAY, EXTENSION OR USURY LAWS. . . . . . . . . 42
ii
PAGE
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ARTICLE VII
TRUSTEE
SECTION 7.1 DUTIES OF TRUSTEE. . . . . . . . . . . . . . . . . . . . 42
SECTION 7.2 RIGHTS OF TRUSTEE. . . . . . . . . . . . . . . . . . . . 43
SECTION 7.3 INDIVIDUAL RIGHTS OF TRUSTEE, ETC. . . . . . . . . . . . 45
SECTION 7.4 TRUSTEE'S DISCLAIMER . . . . . . . . . . . . . . . . . . 45
SECTION 7.5 NOTICE OF DEFAULTS . . . . . . . . . . . . . . . . . . . 45
SECTION 7.6 REPORTS BY TRUSTEE TO HOLDERS. . . . . . . . . . . . . . 45
SECTION 7.7 COMPENSATION AND INDEMNITY . . . . . . . . . . . . . . . 45
SECTION 7.8 REPLACEMENT OF TRUSTEE . . . . . . . . . . . . . . . . . 46
SECTION 7.9 SUCCESSOR TRUSTEE BY MERGER. . . . . . . . . . . . . . . 48
SECTION 7.10 ELIGIBILITY; DISQUALIFICATION. . . . . . . . . . . . . . 48
SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY. . . . 48
ARTICLE VIII
SATISFACTION AND DISCHARGE
SECTION 8.1 DISCHARGE OF LIABILITY ON SECURITIES . . . . . . . . . . 48
SECTION 8.2 REPAYMENT TO THE COMPANY . . . . . . . . . . . . . . . . 49
SECTION 8.3 OPTION TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE . . . 49
SECTION 8.4 DEFEASANCE AND DISCHARGE . . . . . . . . . . . . . . . . 49
SECTION 8.5 COVENANT DEFEASANCE. . . . . . . . . . . . . . . . . . . 50
SECTION 8.6 CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE. . . . . 50
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS . . . 51
SECTION 9.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS. . . . . 52
SECTION 9.3 COMPLIANCE WITH TRUST INDENTURE ACT. . . . . . . . . . . 53
SECTION 9.4 REVOCATION AND EFFECT OF CONSENTS, WAIVERS AND ACTIONS . 53
SECTION 9.5 NOTATION ON OR EXCHANGE OF SECURITIES. . . . . . . . . . 54
SECTION 9.6 TRUSTEE TO SIGN SUPPLEMENTAL INDENTURES. . . . . . . . . 54
SECTION 9.7 EFFECT OF SUPPLEMENTAL INDENTURES. . . . . . . . . . . . 54
iii
PAGE
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ARTICLE X
SINKING FUNDS
SECTION 10.1 APPLICABILITY OF ARTICLE . . . . . . . . . . . . . . . . 55
SECTION 10.2 SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES. . 55
SECTION 10.3 REDEMPTION OF SECURITIES FOR SINKING FUND. . . . . . . . 55
ARTICLE XI
ACTIONS OF HOLDERS OF SECURITIES
SECTION 11.1 PURPOSES FOR WHICH MEETINGS MAY BE CALLED. . . . . . . . 56
SECTION 11.2 CALL, NOTICE AND PLACE OF MEETINGS . . . . . . . . . . . 56
SECTION 11.3 PERSONS ENTITLED TO VOTE AT MEETINGS . . . . . . . . . . 56
SECTION 11.4 QUORUM; ACTION . . . . . . . . . . . . . . . . . . . . . 57
SECTION 11.5 DETERMINATION OF VOTING RIGHTS; CONDUCT AND
ADJOURNMENT OF MEETINGS. . . . . . . . . . . . . . . . . 57
SECTION 11.6 COUNTING VOTES AND RECORDING ACTION OF MEETINGS. . . . . 58
SECTION 11.7 ACTIONS OF HOLDERS GENERALLY . . . . . . . . . . . . . . 59
ARTICLE XII
SUBORDINATION
SECTION 12.1. SECURITIES SUBORDINATE TO SENIOR INDEBTEDNESS. . . . . . 60
SECTION 12.2. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.. . . . . 61
SECTION 12.3. ACCELERATION OF SECURITIES . . . . . . . . . . . . . . . 62
SECTION 12.4. DEFAULT IN SENIOR INDEBTEDNESS . . . . . . . . . . . . . 63
SECTION 12.5 PAYMENT PERMITTED IF NO DEFAULT. . . . . . . . . . . . . 64
SECTION 12.6. SUBROGATION RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS . . 65
SECTION 12.7. PROVISION SOLELY TO DEFINE RELATIVE RIGHTS . . . . . . . 65
SECTION 12.8. TRUSTEE TO EFFECTUATE SUBORDINATION. . . . . . . . . . . 66
SECTION 12.9. NO WAIVER OF SUBORDINATION PROVISIONS. . . . . . . . . . 66
SECTION 12.10. NOTICE TO TRUSTEE. . . . . . . . . . . . . . . . . . . . 66
SECTION 12.11. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF
LIQUIDATING AGENT. . . . . . . . . . . . . . . . . . . . 67
SECTION 12.12. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR
INDEBTEDNESS . . . . . . . . . . . . . . . . . . . . . . 68
iv
PAGE
----
SECTION 12.13. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS;
PRESERVATION OF TRUSTEE'S RIGHTS . . . . . . . . . . . . 68
SECTION 12.14. ARTICLE XII APPLICABLE TO PAYING AGENTS. . . . . . . . . 68
ARTICLE XIII
MISCELLANEOUS
SECTION 13.1 TRUST INDENTURE ACT CONTROLS . . . . . . . . . . . . . . 68
SECTION 13.2 NOTICES. . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 13.3 COMMUNICATION BY HOLDERS WITH OTHER HOLDERS. . . . . . . 70
SECTION 13.4 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT . . . 70
SECTION 13.5 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION. . . . . . 70
SECTION 13.6 SEPARABILITY CLAUSE. . . . . . . . . . . . . . . . . . . 71
SECTION 13.7 RULES BY TRUSTEE, PAYING AGENT AND REGISTRAR . . . . . . 71
SECTION 13.8 LEGAL HOLIDAYS . . . . . . . . . . . . . . . . . . . . . 71
SECTION 13.9 GOVERNING LAW AND JURISDICTION . . . . . . . . . . . . . 71
SECTION 13.10 NO RECOURSE AGAINST OTHERS . . . . . . . . . . . . . . . 72
SECTION 13.11 SUCCESSORS . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 13.12 EFFECT OF HEADINGS AND TABLE OF CONTENTS . . . . . . . . 72
SECTION 13.13 BENEFITS OF INDENTURE. . . . . . . . . . . . . . . . . . 72
SECTION 13.14 MULTIPLE ORIGINALS . . . . . . . . . . . . . . . . . . . 72
EXHIBIT A
FORM OF CERTIFICATE 74
v
INDENTURE dated as of May ____, 1997, by and among Xxxxxx Industries, Inc.,
a Delaware corporation ("COMPANY"), and [ ], a [
], as trustee ("TRUSTEE").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"SECURITIES") to be issued in one or more series as in this Indenture provided.
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
ratable benefit of the Holders from time to time of the Securities or each
series thereof as follows:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 DEFINITIONS.
"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 or cause the direction of 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.
"AUTHORIZED NEWSPAPER" means a newspaper, in the English language or, at
the option of the Company, in an official language of the country of
publication, customarily published on each Business Day (with respect to Bearer
Securities, set forth in the Officers' Certificate with respect to a series of
Bearer Securities), whether or not published on Saturdays, Sundays or holidays,
and of general circulation in the place in connection with which the term is
used or in the financial community of such place. Where successive publications
are required to be made in Authorized Newspapers, the successive publications
may be made in the same or in different Authorized Newspapers meeting the
foregoing requirements and in each case on any Business Day.
"BEARER SECURITY" means any Security in the form (to the extent applicable
thereto) established pursuant to Section 2.1 which is payable to the bearer.
"BOARD OF DIRECTORS" means the board of directors of the Company or any
committee of such board authorized with respect to any matter to exercise the
powers of the Board of Directors of the Company.
"BOARD RESOLUTION" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"BUSINESS DAY" means, except as otherwise specified as contemplated by
Section 2.3(a), with respect to any Place of Payment or any other particular
location referred to in this Indenture or m the Securities, means each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions in that Place of Payment or other location are authorized or
obligated by law or executive order to close.
"CAPITAL STOCK" for any corporation means any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) stock issued by that corporation.
"CASH" means such coin or currency of the United States as at any time of
payment is legal tender for the payment of public and private debts.
"CEDEL S.A." means Centrale de Livraison de Valeurs Mobilieres SA.
"COMPANY" means the party named as the "COMPANY" in the first paragraph of
this Indenture until a successor replaces it pursuant to the applicable
provisions of this Indenture and, thereafter, shall mean such successor.
"COMPANY REQUEST" or "COMPANY ORDER" means a written request or order
signed in the name of the Company by its Chairman of the Board, a Vice Chairman,
its Chief Executive Officer, its President or a Vice President, and by its
Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and
delivered to the Trustee or, with respect to Sections 2.4, 2.8, 2.11 and 7.2,
any other employee of the Company named in an Officers' Certificate delivered to
the Trustee.
"COUPON" means any interest coupon appertaining to a Bearer Security.
"DEFAULT" means any event which is, or after notice or passage of time or
both would be, an Event of Default.
"DEPOSITARY" means, with respect to the Securities of any series issuable
or issued in whole or in part in global form, the person specified as
contemplated by Section 2.3(a) as the Depositary with respect to such series of
Securities, until a successor shall
2
have become such pursuant to the applicable provisions of this Indenture, and
thereafter "DEPOSITARY" shall mean or include such successor.
"DEBT" means with respect to any person at any date, without duplication
(i) all obligations of such person for borrowed money, (ii) all obligations of
such person evidenced by bonds, debentures, notes or other similar instruments,
(iii) all Debt of others secured by a lien on any asset of such person, whether
or not such Debt is assumed by such person, (iv) all obligations of such person
pursuant to leases which are required to be capitalized under generally accepted
accounting principles consistently applied and (v) all Debt of others for the
payment of which such person is responsible or liable as obligor or guarantor.
"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 6.2.
"DOLLAR" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States as at the time shall be legal tender for the
payment of public and private debts.
"EURO-CLEAR" means the operator of the Euro-clear System.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"HOLDER" or "SECURITYHOLDER," when used with respect to any Security,
means, in the case of a Registered Security, a person in whose name a Security
is registered on the Registrar's books and, in the case of a Bearer Security,
the bearer thereof and, when used with respect to any coupon, means the bearer
thereof.
"INDENTURE" means this Indenture, as amended or supplemented from time to
time in accordance with the terms hereof and shall include the terms of a
particular series of Securities established as contemplated in Section 2.3(a).
"INTEREST," when used with respect to a Discount Security which by its
terms bears interest only after Maturity, means interest payable after Maturity.
"INTEREST PAYMENT DATE," when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"MATURITY," when used with respect to any Security, means the date on which
the Principal of such Security or an installment of Principal or, in the case of
a Discount Security, the Principal Amount payable upon a declaration of
acceleration pursuant
3
to Section 6.2, becomes due and payable as therein or herein provided, whether
at the Stated Maturity or by declaration of acceleration, call for redemption or
otherwise.
"OFFICER" means the Chairman of the Board, any Vice Chairman, the Chief
Executive Officer, the President, any Vice President, the Treasurer, the
Secretary, any Assistant Treasurer or any Assistant Secretary of the Company.
"OFFICERS' CERTIFICATE" means a written certificate containing the
information specified in Sections 13.4 and 13.5, signed in the name of the
Company by its Chairman of the Board, a Vice Chairman, its Chief Executive
Officer, its President or a Vice President, and by its Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary, and delivered to the
Trustee.
"OPINION OF COUNSEL" means a written opinion containing the information
specified in Sections 13.4 and 13.5, from legal counsel who is acceptable to the
Trustee. The counsel may be an employee of, or counsel to, the Company or the
Trustee.
"PERIODIC OFFERING" means an offering of Securities of a series from time
to time the specific terms of which Securities, including, without limitation,
the rate or rates of interest, if any, thereon, the Stated Maturity or
Maturities thereof, the original issue date or dates thereof, the redemption
provisions, if any, and any other terms specified as contemplated by Section
2.3(a) with respect thereto, are to be determined by the Company, or one or more
of the Company's agents designated in an Officers' Certificate, upon the
issuance of such Securities.
"PERSON" means any individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability company, trust,
unincorporated organization, or government or any agency or political
subdivision thereof.
"PLACE OF PAYMENT," when used with respect to the Securities of any series,
means the place or places where, subject to the provisions of Section 4.5, the
Principal of and any interest on the Securities of that series are payable as
specified as contemplated by Section 2.3(a).
"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 2.9 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen coupon
appertains, as the case may be.
4
"PRINCIPAL" or "PRINCIPAL AMOUNT" of a Security, except as otherwise
specifically provided in this Indenture, means the outstanding principal of the
Security plus the premium, if any, of the Security.
"REDEMPTION DATE" or "REDEMPTION DATE," when used with respect to any
Security to be redeemed, shall mean the date specified for redemption of such
Security in accordance with the terms of such Security and this Indenture.
"REDEMPTION PRICE" or "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.
"REGISTERED SECURITY" means any Security in the form (to the extent
applicable thereto) established pursuant to Section 2.1 which is registered on
the books of the Registrar.
"REGULAR RECORD DATE" for the interest payable on any Interest Payment Date
on the Registered Securities of any series means the date specified for that
purpose as contemplated by Section 2.3(a).
"SEC" means the Securities and Exchange Commission.
"SECURITIES" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture.
"SECURITYHOLDER" or "HOLDER," when used with respect to any Security, means
in the case of a Registered Security, a person in whose name a Security is
registered on the Registrar's books and in the case of a Bearer Security the
bearer thereof and, when used with respect to any coupon, means the bearer
thereof.
"SPECIAL RECORD DATE" for the payment of any Defaulted Interest on the
Registered Securities of any issue means a date fixed by the Trustee pursuant to
Section 2.13.
"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 or a coupon representing such installment of interest as the
fixed date on which an amount equal to the Principal of such Security or an
installment of Principal thereof or interest thereon is due and payable.
"SUBSIDIARY" means, with respect to any person, a corporation of which a
majority of the Capital Stock having voting power under ordinary circumstances
to elect a majority of the board of directors of such corporation is owned by
(i) such person, (ii)
5
such person and one or more Subsidiaries or (iii) one or more Subsidiaries of
such person.
"TIA" means the Trust Indenture Act of 1939 as in effect on the date of
this Indenture, except as provided in Section 9.3.
"TRUST OFFICER" means, when used with respect to the Trustee, any Senior
Trust Officer, any Vice President, any Trust Officer, any Assistant Vice
President or any other officer or assistant officer of the Trustee customarily
performing functions similar to those performed by the persons who at the time
shall be such officers respectively, or to whom any corporate trust matter is
referred because of his or her knowledge of or familiarity with the particular
subject.
"TRUSTEE" means the party named as the "TRUSTEE" in the first paragraph of
this Indenture until a successor replaces it pursuant to the applicable
provisions of this Indenture and, thereafter, shall mean such successor.
"UNITED STATES" means the United States of America, its territories, its
possessions (including the Commonwealth of Puerto Rico), and other areas subject
to its jurisdiction.
"UNITED STATES ALIEN" means any person who, for United States Federal
income tax purposes, is a foreign corporation, a non-resident alien individual,
a non-resident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more of the members of which is, for United States Federal
income tax purposes, a foreign corporation, a non-resident alien individual or a
non-resident alien fiduciary of a foreign estate or trust.
SECTION 1.2 OTHER DEFINITIONS.
Defined in
Term Section
---- -------
"BANKRUPTCY LAW" 6.1
"CUSTODIAN" 6.1
"DEFAULTED INTEREST" 2.13
"EVENT OF DEFAULT" 6.1
"EXCHANGE DATE" 2.11
"LEGAL HOLIDAY" 13.8
"NOTICE OF DEFAULT " 6.1
"OUTSTANDING" 2.10
"PAYING AGENT" 2.5
"REGISTRAR" 2.5
6
"SENIOR INDEBTEDNESS" 12.1
SECTION 1.3 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT. Whenever
this Indenture refers to a provision of the TIA, the provision is incorporated
by reference in and made a part of this Indenture. The following TIA terms used
in this Indenture have the following meanings:
"COMMISSION" means the SEC.
"INDENTURE SECURITIES" means the Securities.
"INDENTURE SECURITY HOLDER" means a Holder or Securityholder.
"INDENTURE TO BE QUALIFIED" means this Indenture.
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee.
"OBLIGOR" on the indenture securities means the Company.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule have the
meanings assigned to them by such definitions.
SECTION 1.4 RULES OF CONSTRUCTION. Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with generally accepted accounting principles in the
United States as in effect from time to time;
(3) "OR" is not exclusive;
(4) "INCLUDING" means including, without limitation; and
(5) words in the singular include the plural, and words in the plural
include the singular.
7
ARTICLE II
THE SECURITIES
SECTION 2.1 FORMS GENERALLY. The Registered Securities, If any, of each
series and the Bearer Securities, if any, of each series and related coupons
shall be in substantially such form (including global form) as shall be
established by delivery to the Trustee of an Officers' Certificate or in one or
more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the Officers executing such Securities
or coupons as evidenced by their execution of the Securities or coupons. The
Officers' Certificate so establishing the form of Security or coupons, if any,
of any series shall be delivered to the Trustee at or prior to the delivery of
the Company Order contemplated by Section 2.4 for the authentication and
delivery of such Securities or coupons.
Unless otherwise specified as contemplated by Section 2.3(a), Bearer
Securities shall have interest coupons attached.
The permanent Securities and coupons, if any, shall be printed,
lithographed, engraved or word processed or produced by any combination of these
methods or may be produced in any other manner, PROVIDED, that such method is
permitted by the rules of any securities exchange on which such Securities may
be listed, all as determined by the Officers executing such Securities as
evidenced by their execution of such Securities.
SECTION 2.2 SECURITIES IN GLOBAL FORM. If Securities of a series are
issuable in temporary or permanent global form, as specified as contemplated by
Section 2.3(a), then, notwithstanding clause (10) of Section 2.3(a) and the
provisions of Section 2.3(b), any such Security shall represent such of the
Outstanding Securities of such series as shall be specified therein and may
provide that it shall represent the aggregate amount of Outstanding Securities
from time to time endorsed thereon or otherwise notated on the books and records
of the Registrar and that the aggregate amount of Outstanding Securities
represented thereby may from time to time be reduced to reflect exchanges. Any
endorsement of a Security in global form to reflect the amount of any increase
or decrease in the amount of Outstanding Securities represented thereby shall be
made by the Trustee in such manner and upon instructions given by such person or
persons as shall be specified therein or in the Company Order to be delivered to
the Trustee pursuant to Section 2.4 or Section 2.11. Subject to the provisions
of Section 2.4 and, if applicable, Section 2.11, the Trustee shall deliver and
redeliver any Security in global form in the manner and upon instructions given
by the person or persons specified therein or in the applicable Company Order.
If a Company Order pursuant to Section
8
2.4 or 2.11 has been, or simultaneously is, delivered, any instructions by the
Company with respect to endorsement or other notation on the books and records
of the Registrar or delivery or redelivery of a Security of such series in
global form shall be in writing but need not comply with Section 13.4 or 13.5
and need not be accompanied by an Opinion of Counsel (except as required by
Section 2.4).
The provisions of the last sentence of Section 2.4 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company, and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 13.4 or 13.5 and need not be accompanied by an Opinion of
Counsel) with regard to the reduction in the Principal Amount of Securities
represented thereby, together with the written statement contemplated by the
last sentence of Section 2.4.
Notwithstanding the provisions of Sections 2.1 and 2.13, unless otherwise
specified as contemplated by Section 2.3(a), payment of Principal of and any
interest on any Security in global form shall be made to the person or persons
specified therein.
Any series of Bearer Securities shall be issued initially in the form of
one temporary global Bearer Security (the "Temporary Global Bearer Security"),
which Temporary Global Bearer Security shall be deposited on behalf of the
beneficial owners of the Bearer Securities represented thereby with the main
office of the Trustee in London, as common depositary (the "Common Depositary"),
for credit to their respective accounts (or to such other accounts as they may
direct) at Xxxxxx Guaranty Trust Company of New York, Brussels office, as
operator of the Euro-Clear or Cedel S.A.
On or before the date 40 days after the later of the announcement of the
offering and the date of settlement (the "Exchange Date"), the Company shall
deliver to a Paying Agent located outside the United States, or its designated
agent, Bearer Securities executed by the Company. On or after the Exchange
Date, the Temporary Global Bearer Security shall be surrendered by the Common
Depositary to the Trustee or its agent, as the Company's agent for such purpose,
to be exchanged, in whole or from time to time in part, at the sole discretion
of the Company for (i) Bearer Securities or (ii) a permanent global Bearer
Security (the "Permanent Global Bearer Security") without charge to Holders, and
the principal Paying Agent or other Paying Agent outside the United States shall
authenticate and deliver (at an office or agency outside the United States), in
exchange for the Temporary Global Bearer Security or the portions thereof to be
exchanged, an equal aggregate principal amount of Bearer Securities or the
Permanent Global Bearer Security, as shall be specified by the beneficial owners
thereof; PROVIDED, HOWEVER, that upon such presentation by the Common
Depositary, the Temporary Global Bearer Security is accompanied by a certificate
dated the Exchange Date or a
9
subsequent date and signed by Euro-Clear as to the portion of the Temporary
Global Bearer Security held for its account then to be exchanged and a
certificate dated the Exchange Date or a subsequent date and signed by Cedel
S.A. as to the portion of the Temporary Global Bearer Security held for its
account then to be exchanged, each to the effect hereinafter provided. The
Company and the Trustee agree that they will cooperate in causing the paying
agent located outside the United States to retain each certificate provided by
Euro-Clear or Cedel S.A. for a period of four calendar years following the year
in which the certificate is received and not to destroy or otherwise dispose of
any such certificate without first offering to deliver it to the Company.
Each certificate to be provided by Euro-Clear and Cedel S.A. shall be
substantially in the form attached hereto as Exhibit A or with such changes
therein as shall be approved by the Company and be satisfactory to the Trustee.
Each certificate received by Euro-Clear and Cedel S.A. from persons
appearing in their records as persons entitled to a portion of the Temporary
Global Bearer Security shall be substantially to the effect set forth in this
Indenture.
Upon any such exchange of a portion of the Temporary Global Bearer Security
for Bearer Securities or the Permanent Global Bearer Security, the Temporary
Global Bearer Security shall be endorsed to reflect the reduction of the
principal amount evidenced thereby. Until so exchanged in full, the Temporary
Global Bearer Security shall in all respects be entitled to the same benefits
under, and subject to the same terms and conditions of, this Indenture as Bearer
Securities authenticated and delivered hereunder, except that none of Euro-
Clear, Cedel S.A. or the beneficial owners of the Temporary Global Bearer
Security shall be entitled to receive payment of interest or other payments
thereon or to convert the Temporary Global Bearer Security, or any portion
thereof, into Common Stock of the Company or any other security, cash or other
property.
SECTION 2.3 TITLE, TERMS AND DENOMINATIONS.
(a) The aggregate Principal Amount of Securities which may be
authenticated and delivered under this Indenture shall be unlimited.
The Securities may be issued in one or more series. There shall be
established and, subject to Section 2.4, set forth, or determined in the manner
provided, in an Officers' Certificate of the Company, or established in one or
more indentures supplemental hereto:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate Principal Amount of the Securities
of the series which may be authenticated and delivered under this Indenture
(except
10
for Securities authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities of the series
pursuant to Sections 2.8, 2.9, 2.11, 3.6, 9.5 or 10.3 and except for any
Securities which, pursuant to Section 2.4, are deemed never to have been
authenticated and delivered hereunder);
(3) whether Securities of the series are to be issuable as Registered
Securities, Bearer Securities or both, whether any Securities of the series
may be represented initially by a Security in temporary or permanent global
form and, if so, the initial Depositary with respect to any such temporary
or permanent global Security, and if other than as provided in Section 2.8
or Section 2.11, as applicable, whether and the circumstances under which
beneficial owners of interests in any such temporary or permanent global
Security may exchange such interests for Securities of such series and of
like tenor of any authorized form and denomination and the Authorized
Newspapers for publication of notices to holders of Bearer Securities;
(4) any other terms required for the establishment of a series of
Bearer Securities, including, but not limited to, tax compliance
procedures;
(5) the person to whom any interest on any Registered 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, the manner in
which, and the person to whom, any interest on any Bearer Security of the
series shall be payable, if otherwise than upon presentation and surrender
of the coupons appertaining thereto as they severally mature, and the
extent to which, or the manner in which (including any certification
requirement and other terms and conditions under which), any interest
payable on a temporary or permanent global Security on an Interest Payment
Date will be paid if other than in the manner provided in Section 2.2 and
Section 2.4, as applicable;
(6) the date or dates on which the Principal of the Securities of the
series is payable or the method of determination thereof;
(7) the rate or rates at which the 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 interest payable on any
Registered Securities on any Interest Payment Date;
(8) the place or places where, subject to the provisions of Section
4.5, the Principal of and any interest on Securities of the series shall be
payable, any
11
Registered Securities of the series may be surrendered for registration of
transfer, Securities of the series may be surrendered for exchange and
notices and demands to or upon the Company in respect of the Securities of
the series and this Indenture may be served;
(9) the period or periods within which, the price or prices at which
and the terms and conditions upon which, Securities of the series may be
redeemed, in whole or in part, at the option of the Company;
(10) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof, the conditions, if any,
giving rise to such obligation, and the period or periods within which, the
price or prices at which and the terms and conditions upon which Securities
of the series shall be redeemed or purchased, in whole or in part, and any
provisions for the remarketing of such Securities;
(11) the denominations in which any Registered Securities of the
series shall be issuable, if other than denominations of $1,000 and any
integral multiple thereof, and the denomination or denominations in which
any Bearer Securities of the series shall be issuable, if other than
denominations of $5,000 and $100,000;
(12) the currency or currencies, including composite currencies, in
which payment of the Principal of and any interest on the Securities of the
series shall be payable if other than the currency of the United States,
and if so, whether the Securities of the series may be satisfied and
discharged other than as provided in Article VIII;
(13) if the amount of payments of principal of and any interest on
the Securities of the series is to be determined with reference to an
index, formula or other method, or based on a coin or currency other than
that in which the Securities are stated to be payable, the manner in which
such amounts shall be determined and the calculation agent, if any, with
respect thereto;
(14) if other than the Principal Amount thereof, the portion of the
Principal Amount of any Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 6.2;
(15) if the Company will pay additional amounts on any of the
Securities and coupons, if any, of the series to any Holder who is a United
States Alien (including any modification in the definition of such term),
in respect of any tax, assessment or governmental charge withheld or
deducted, under what circumstances and with what procedures and
documentation the Company will pay such
12
additional amounts, whether such additional amounts will be treated as
interest or Principal pursuant to this Indenture, and whether the Company
will have the option to redeem such Securities rather than pay additional
amounts (and the terms of any such option);
(16) if other than as defined in Section 1.1, the meaning of
"BUSINESS DAY" when used with respect to any Securities of the series;
(17) if and the terms and conditions upon which the Securities of the
series may or must be converted into securities of the Company or exchanged
for securities of the Company or another enterprise;
(18) any terms applicable to Original Issue Discount, if any, (as
that term is defined in the Internal Revenue Code of 1986 and the
Regulations thereunder) including the rate or rates at which such Original
Issue Discount, if any, shall accrue;
(19) if the Securities of the series may be issued or delivered
(whether upon original issuance or upon exchange of a temporary Security of
such series or otherwise), or any installment of Principal of or any
interest is payable, only upon receipt of certain certificates or other
documents or satisfaction of other conditions in addition to those
specified in this Indenture, the form and terms of such certificates,
documents or conditions; and
(20) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
Section 9.1(7)).
All Securities of any one series and the coupons appertaining to any Bearer
Securities of such series shall be substantially identical except as to
denomination and the rate or rates of interest, if any, and Stated Maturity, the
date from which interest, if any, shall accrue and except as may otherwise be
provided in or pursuant to an Officers' Certificate pursuant to this Section
2.3(a) or in any indenture supplemental hereto. All Securities of any one
series need not be issued at the same time and, unless otherwise provided, a
series may be reopened for issuances of additional Securities of such series or
for the establishment of additional terms with respect to the Securities of such
series.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution, a copy of any 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. With respect to Securities
of a series subject to a Periodic Offering, such Board Resolution or Officers'
Certificate may provide general terms for Securities of such series and provide
either that the specific terms of particular Securities of such series shall be
13
specified in a Company Order or that such terms shall be determined by the
Company, or one or more of the Company's agents designated in an Officers'
Certificate, in accordance with the Company Order as contemplated by the first
proviso of the third paragraph of Section 2.4.
(b) Unless otherwise provided as contemplated by Section 2.3(a) with
respect to any series of Securities, any Registered Securities of a series shall
be issuable in denominations of $1,000 and any integral multiple thereof and any
Bearer Securities of a series shall be issuable in denominations of $5,000 and
$100,000.
SECTION 2.4 EXECUTION, AUTHENTICATION, DELIVERY AND DATING. The
Securities shall be executed on behalf of the Company by its Chairman of the
Board, one of its Vice Chairmen, its President or one of its Vice Presidents, or
the Treasurer or any Assistant Treasurer, 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.
Coupons shall bear the facsimile signature of the Treasurer or any Assistant
Treasurer of the Company.
Securities and coupons 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 (and subject to delivery of the Board Resolution or Officers'
Certificate or supplemental indenture as set forth in Section 2.3 with respect
to the initial issuance of Securities of any series), the Company may deliver
Securities of any series together with any coupons appertaining thereto,
executed by the Company to the Trustee or its authenticating agent with respect
to Bearer Securities for authentication, together with a Company Order for the
authentication and delivery of such Securities; and the Trustee or its
authenticating agent with respect to Bearer Securities in accordance with such
Company Order shall authenticate and deliver such Securities; PROVIDED, HOWEVER,
that, with respect to Securities of a series subject to a Periodic Offering, (a)
such Company Order may be delivered by the Company to the Trustee or its
authenticating agent with respect to Bearer Securities prior to the delivery to
the Trustee of such Securities for authentication and delivery, (b) the Trustee
shall authenticate and deliver Securities of such series for original issue from
time to time, in an aggregate Principal Amount not exceeding the aggregate
Principal Amount established for such series, pursuant to a Company Order or
pursuant to such procedures acceptable to the Trustee as may be specified from
time to time by a Company Order, (c) the rate or rates of interest, if any, the
Stated Maturity or Maturities, the original issue date or dates, the redemption
provisions, if any, and any other terms of Securities of such series shall be
determined by a Company Order or
14
pursuant to such procedures and (d) if provided for in such procedures, such
Company Order may authorize authentication and delivery pursuant to oral or
electronic instructions from the Company, or the Company's duly authorized agent
or agents designated in an Officers' Certificate, which oral instructions shall
be promptly confirmed in writing; and PROVIDED, FURTHER, that no Bearer Security
or coupon shall be mailed or otherwise delivered to any person who is not a
United States Alien or to any location in the United States. Except as
permitted by Section 2.9, the authenticating agent shall not authenticate and
deliver any Bearer Security unless all appurtenant coupons for interest then
matured have been detached and cancelled.
If the forms or terms of the Securities of the series and any related
coupons have been established in or pursuant to one or more Officers'
Certificates as permitted by Sections 2.1 and 2.3(a), 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 7.1) shall be fully protected in relying upon, an Opinion of
Counsel stating:
(a) that the form and terms of such Securities and any coupons have been
duly authorized by the Company and established in conformity with the provisions
of this Indenture; and
(b) that such Securities, together with any coupons appertaining thereto,
when authenticated and delivered by the Trustee or its authenticating agent 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 customary
exceptions;
PROVIDED, HOWEVER, that, with respect to Securities of a series subject to a
Periodic Offering, the Trustee shall be entitled to receive such Opinion of
Counsel only once at or prior to the time of the first authentication of
Securities of such series (provided that such Opinion of Counsel covers all
Securities of such series) and that the Opinion of Counsel above may state:
(x) that the forms of such Securities have been, and the terms of such
Securities (when established in accordance with such procedures as may be
specified from time to time in a Company Order, all as contemplated by and
in accordance with a Board Resolution or an Officers' Certificate or
supplemental indenture pursuant to Section 2.3(a), as the case may be) will
have been, duly authorized by the Company and established in conformity
with the provisions of this Indenture; and
(y) that such Securities, together with the coupons, if any,
appertaining thereto, when (1) executed by the Company, (2) completed,
authenticated and
15
delivered by the Trustee or in the case of Bearer Securities and coupons,
an authenticating agent located outside the United States, in accordance
with this Indenture, and (3) 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 customary
exceptions.
With respect to Securities of a series subject to a Periodic Offering, the
Trustee may conclusively rely, as to the authorization by the Company of any of
such Securities, the form and terms thereof and the legality, validity, binding
effect and enforceability thereof, upon the Opinion of Counsel and other
documents delivered pursuant to Sections 2.1 and 2.3(a) and this Section, as
applicable, at or prior to the time of the first authentication of Securities of
such series unless and until it has received written notification that such
opinion or other documents have been superseded or revoked. In connection with
the authentication and delivery of Securities of a series subject to a Periodic
Offering, the Trustee shall be entitled to assume, unless it has actual
knowledge to the contrary, that the Company's instructions to authenticate and
deliver such Securities do not violate any rules, regulations or orders of any
governmental agency or commission having jurisdiction over the Company.
Notwithstanding the provisions of Section 2.3(a) and of the preceding three
paragraphs, if all Securities of a series are subject to a Periodic Offering, it
shall not be necessary to deliver the Officers' Certificate otherwise required
pursuant to Section 2.3(a) at or prior to the time of authentication of each
Security of such series if such Officers' Certificate is delivered at or prior
to the authentication upon original issuance of the first Security of such
series to be issued.
Each Registered Security shall be dated the date of its authentication;
and, unless otherwise specified as contemplated by Section 2.3(a), each Bearer
Security (including a Bearer Security represented by a temporary global
Security) shall be dated as of the date of original issuance of the first
Security of such series to be issued.
The Trustee may appoint an authenticating agent acceptable to the Company
to authenticate Securities. Unless otherwise provided in the appointment, an
authenticating agent may authenticate Securities whenever the Trustee may do so.
Each reference in this Indenture to authentication by the Trustee includes
authentication by such agent.
No Security or coupon shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Security
a certificate of authentication substantially in the form provided for herein
duly executed by the Trustee by manual signature of an authorized signatory, and
such certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly
16
authenticated and delivered hereunder. The Trustee's certificate of
authentication shall be in substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
[ ], as Trustee
By:
-----------------------------------------
Authorized Officer
Notwithstanding the foregoing, if any Security shall have been duly
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 2.12 together with a written statement (which need not
comply with Section 13.4 or 13.5 and need not be accompanied by an Opinion of
Counsel) stating that such Security has never been issued and sold by the
Company, for all purposes of this Indenture such Security shall be deemed never
to have been authenticated and delivered hereunder and shall never be entitled
to the benefits of this Indenture.
SECTION 2.5 REGISTRAR AND PAYING AGENT. The Company shall maintain, with
respect to each series of Securities, an office or agency where such Securities
may be presented for registration of transfer or for exchange ("REGISTRAR") and
an office or agency where such Securities may be presented for purchase or
payment ("PAYING AGENT"). The Registrar shall keep a register of the Securities
and of their transfer and exchange. The Company may have one or more co-
registrars and one or more additional paying agents. The term Paying Agent
includes any additional paying agent.
The Company shall enter into an appropriate agency agreement with respect
to each series of Securities with any Registrar, Paying Agent or co-registrar
(if not the Trustee). The agreement shall implement the provisions of this
Indenture that relate to such agent. The Company shall notify the Trustee of
the name and address of any such agent. If the Company fails to maintain a
Registrar or Paying Agent for a particular series of Securities, the Trustee
shall act as such and shall be entitled to appropriate compensation therefor
pursuant to Section 7.7. The Company or any Subsidiary or an Affiliate of
either of them may act as Paying Agent, Registrar or co-registrar.
The Company initially appoints the Trustee as the Registrar and Paying
Agent in connection with such Securities and the Trustee, acting through its
main office in London
17
or as provided in the Officer's Certificate establishing the Securities, as
paying agent and authenticating agent for Bearer Securities.
SECTION 2.6 PAYING AGENT TO HOLD MONEY AND SECURITIES IN TRUST. Except as
otherwise provided herein, prior to or on each due date of payments in respect
of any series of Securities, the Company shall deposit with the Paying Agent
with respect to such Securities a sum of money sufficient to make such payments
when so becoming due. The Company shall require each Paying Agent (other than
the Trustee) to agree in writing that the Paying Agent shall hold in trust for
the benefit of Holders or the Trustee all money held by such Paying Agent for
the making of payments in respect of the Securities of such series and shall
notify the Trustee of any default by the Company in making any such payment. At
any time during the continuance of any such default, a Paying Agent shall, upon
the written request of the Trustee, forthwith pay to the Trustee all money so
held in trust with respect to such Securities. If the Company, a Subsidiary or
an Affiliate of either of them acts as Paying Agent for a series of Securities,
it shall segregate the money held by it as Paying Agent with respect to such
Securities and hold it as a separate trust fund. The Company at any time may
require a Paying Agent for a series of Securities to pay all money held by it
with respect to such Securities to the Trustee and to account for any money
disbursed by it. Upon doing so, such Paying Agent shall have no further
liability for the money.
SECTION 2.7 SECURITYHOLDER LISTS. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to it
of the names and addresses of Holders of each series of Securities. If the
Trustee is not the Registrar for any series of Securities, the Company shall
cause to be furnished to the Trustee at least semiannually on June 1 and
December 1 a listing of Holders of such series of Securities dated within 15
days of the date on which the list is furnished and at such other times as the
Trustee may request in writing a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of Securityholders of
such series of Securities.
SECTION 2.8 TRANSFER AND EXCHANGE. Upon surrender for registration of
transfer of any Security at the office or agency of the Company designated
pursuant to Section 4.5 for such purpose in a Place of Payment, 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 any
authorized denomination or denominations of a like aggregate Principal Amount
and tenor. The Company shall not charge a service charge for any registration
of transfer or exchange, but the Company may require payment of a sum sufficient
to pay all taxes, assessments or other governmental charges that may be imposed
in connection with the transfer or exchange of the Securities from the
Securityholder requesting such transfer or exchange (other than any exchange of
a temporary Security for a definitive Security not involving any change in
ownership or any exchange pursuant to Section 2.11, 3.6, 9.5 or 10.3, not
involving any transfer).
18
Notwithstanding any other provisions (other than the provisions set forth
in the sixth and seventh paragraphs) of this Section, a Security in global form
representing all or a portion of the Securities of a series may not be
transferred except as a whole by the Depositary for such series to a nominee of
such Depositary or by a nominee of such Depositary to such Depositary or another
nominee of such Depositary or by such Depositary or any such nominee to a
successor Depositary for such series or a nominee of such successor Depositary.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series of any authorized
denomination or denominations, of a like aggregate Principal Amount and tenor,
upon surrender of the Securities to be exchanged at such office or agency.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive. Bearer Securities may
not be issued in exchange for Registered Securities.
At the option of the Holder, Bearer Securities of any series may be
exchanged for Registered Securities of the same series of any authorized
denomination or denominations and of a like aggregate Principal Amount and
tenor, upon surrender of the Bearer Securities to be exchanged at any office or
agency of the Company located outside the United States, with all unmatured
coupons and all matured coupons in default thereto appertaining. If the Holder
of a Bearer Security is unable to produce any such unmatured coupon or coupons
or matured coupon or coupons in default, such exchange may be effected if the
Bearer Securities are accompanied by payment in funds acceptable to the Company
and the Trustee or Paying Agent in an amount equal to the face amount of such
missing coupon or coupons, or the surrender of such missing coupon or coupons
may be waived by the Company, the Paying Agent and the Trustee if there is
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to any Paying Agent any such missing coupon in respect of which
such a payment shall have been made, such Holder shall be entitled to receive
the amount of such payment; PROVIDED, HOWEVER, that, except as otherwise
provided in Section 4.5, interest represented by coupons shall be payable only
upon presentation and surrender of those coupons at an office or agency located
outside the United States. Notwithstanding the foregoing, in case a Bearer
Security of any series is surrendered at any such office or agency in exchange
for a Registered Security of the same series and like tenor after the close of
business at such office or agency on (i) any Regular Record Date and before the
opening of business at such office or agency on the relevant Interest Payment
Date, or (ii) any Special Record Date and before the opening of business at such
office or agency on the related proposed date for payment of Defaulted Interest,
such Bearer Security shall be surrendered without the coupon relating to such
Interest Payment Date or proposed date for payment, as the
19
case may be, and interest or Defaulted Interest, as the case may be, will not be
payable on such Interest Payment Date or proposed date for payment, as the case
may be, in respect of the Registered Security issued in exchange for such Bearer
Security, but will be payable only to the Holder of such coupon when due in
accordance with the provisions of this Indenture.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee or a duly appointed authenticating agent shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
If at any time the Depositary for the Securities of a series notifies the
Company that it is unwilling or unable to continue as Depositary for the
Securities of such series, the Company shall appoint a successor Depositary with
respect to the Securities of such series. If a successor Depositary for the
Securities of such series is not appointed by the Company within 90 days after
the Company receives such notice, the Company will execute, and the Trustee,
upon receipt of a Company Order for the authentication and delivery of
definitive Securities of such series, will authenticate and deliver Securities
of such series in definitive form in an aggregate Principal Amount equal to the
Principal Amount of the Security or Securities in global form representing such
series in exchange for such Security or Securities in global form in accordance
with the instructions, if any, of the Depositary.
The Company may at any time and in its sole discretion determine that the
Securities of any series issued in the form of one or more global Securities
shall no longer be represented by such global Security or Securities. In such
event the Company will execute, and the Trustee, upon receipt of a Company Order
for the authentication and delivery of definitive Securities of such series,
will authenticate and deliver Securities of such series in definitive form and
in an aggregate Principal Amount equal to the Principal Amount of the Security
or Securities in global form representing such series in exchange for such
Security or Securities in global form in accordance with the instructions, if
any, of the Depositary.
Notwithstanding the foregoing, except as otherwise specified in the
preceding two paragraphs or as contemplated by Section 2.3(a), any global
Security shall be exchangeable only as provided in this paragraph. If the
beneficial owners of interests in a global Security are entitled to exchange
such interests for definitive Securities of such series and of like Principal
Amount and tenor but of another authorized form and denomination, as specified
as contemplated by Section 2.3(a), then without unnecessary delay but in any
event not later than the earliest date on which such interests may be so
exchanged, the Company shall deliver to the Trustee definitive Securities in
aggregate Principal Amount equal to the Principal Amount of such global
Security, executed by the Company. On or after the earliest date on which such
interests may be so exchanged, such global Security shall be surrendered by the
Depositary with respect thereto to the Trustee, as the Company's agent for such
purpose, to be exchanged, in whole or from time to time in part, for definitive
Securities without charge and the Trustee or, in the case of Bearer
20
Securities, an authenticating agent outside the United States shall authenticate
and deliver, in exchange for each portion of such global Security, an equal
aggregate Principal Amount of definitive Securities of the same series of
authorized denominations and of like tenor as the portion of such global
Security to be exchanged which, unless the Securities of the series are not
issuable both as Bearer Securities and as Registered Securities, as specified as
contemplated by Section 2.3(a), shall be in the form of Bearer Securities or
Registered Securities, or any combination thereof, as shall be specified by the
beneficial owner thereof; PROVIDED, HOWEVER, that notwithstanding the last
paragraph of this Section 2.8, no such exchanges may occur during a period
beginning at the opening of business 15 days before any selection of Securities
of that series to be redeemed and ending on the relevant Redemption Date; and
PROVIDED, FURTHER, that no Bearer Security or coupon delivered in exchange for a
portion of a global Security shall be mailed or otherwise delivered to any
person that is not a United States Alien or to any location in the United
States. If a Registered Security is issued in exchange for any portion of a
global Security after the close of business at the office or agency where such
exchange occurs on (i) any Regular Record Date and before the opening of
business at such office or agency on the relevant Interest Payment Date, or (ii)
any Special Record Date and before the opening of business at such office or
agency on the related proposed date for payment of Defaulted Interest, interest
or Defaulted Interest, as the case may be, will not be payable on such Interest
Payment Date or proposed date for payment, as the case may be, in respect of
such Registered Security, but will be payable on such Interest Payment Date or
proposed date for payment, as the case may be, only to the Person to whom
interest in respect of such portion of such global Security is payable in
accordance with the provisions of this Indenture.
Upon the exchange of a Security in global form for Securities in definitive
form, such Security in global form shall be cancelled by the Trustee. All
cancelled Securities and coupons held by the Trustee shall be destroyed by the
Trustee and a certificate of their destruction delivered to the Company unless
the Company directs, by Company Order, that the Trustee shall cancel Securities
and deliver a certificate of destruction to the Company. Registered Securities
issued in exchange for a Security in global form pursuant to this Section 2.8
shall be registered in such names and in such authorized denominations as the
Depositary for such Security in global form, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the Trustee. The
Trustee shall deliver such Registered Securities to the persons in whose names
such Securities are so registered.
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.
21
Every Registered Security presented or surrendered for registration of
transfer or for exchange shall be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Registrar
duly executed, by the Holder thereof or his attorney duly authorized in writing.
The Company shall not be required (i) to issue, register the transfer of or
exchange Securities of any series during a period beginning at the opening of
business 15 days before any selection of Securities of that series to be
redeemed and ending (except as otherwise provided in the first proviso in the
eighth paragraph of this Section 2.8) at the close of business on (A) if
Securities of the Series are issuable only as Registered Securities, the day of
the mailing of the relevant notice of redemption and (B) if Securities of the
series are issuable as Bearer Securities, the day of the first publication of
the relevant notice of redemption or, if Securities of the series are also
issuable as Registered Securities and there is no publication, the mailing of
the relevant notice of redemption, or (ii) to register the transfer of or
exchange any Registered Security so selected for redemption, in whole or in
part, except the unredeemed portion of any Security being redeemed in part, or
(iii) to exchange any Bearer Security so selected for redemption except that
such a Bearer Security may be exchanged for a Registered Security of that series
and like tenor, provided that such Registered Security shall be simultaneously
surrendered for redemption.
SECTION 2.9 REPLACEMENT SECURITIES AND COUPONS. If (a) any mutilated
Security or a Security with a mutilated coupon appertaining thereto is
surrendered to the Trustee or paying agent outside the United States, or (b) the
Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Security or coupon, and there is delivered to
the Company and the Trustee such security or indemnity as may be required by
them to save each of them harmless, then, in the absence of written notice to
the Company, any paying agent or the Trustee that such Security or coupon has
been acquired by a BONA FIDE purchaser, the Company shall execute and upon its
written request the Trustee or paying agent outside the United States shall
authenticate and deliver, in exchange for any such mutilated Security or coupon
or in lieu of any such destroyed, lost or stolen Security or coupon, or in
exchange for the Security to which a mutilated, destroyed, lost or stolen coupon
appertains (with all appurtenant coupons not mutilated, destroyed, lost or
stolen), a new Security of the same series and of like tenor and Principal
Amount, bearing a number not contemporaneously outstanding, with coupons
corresponding to the coupons, if any, appertaining to such destroyed, lost or
stolen Security or coupon, or to the Security to which such destroyed, lost or
stolen coupon appertains.
In case any such mutilated, destroyed, lost or stolen Security or coupon
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 or coupon; PROVIDED,
HOWEVER, that the Principal of and any interest on Bearer Securities shall,
except as otherwise provided
22
in Section 4.5, be payable only at an office or agency located outside the
United States and, unless otherwise specified as contemplated by Section 2.3(a),
any interest on Bearer Securities shall be payable only upon presentation and
surrender of the coupons appertaining thereto.
Upon the issuance of any new Securities 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 mutilated, destroyed, lost or stolen Security, or in exchange for a Security
to which a mutilated, destroyed, lost or stolen coupon appertains, shall
constitute an original additional contractual obligation of the Company, whether
or not the destroyed, lost or stolen Security and its coupons, if any, or the
destroyed, lost or stolen coupon shall be at any time enforceable by anyone, and
any such new Security and coupons, if any, shall be entitled to all benefits of
this Indenture equally and proportionately with any and all other Securities of
that issue and their coupons, if any, 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 or coupons.
SECTION 2.10 OUTSTANDING SECURITIES; DETERMINATIONS OF HOLDERS' ACTION.
Securities of any series "OUTSTANDING" at any time are, as of the date of
determination, all the Securities of such series theretofore authenticated by
the Trustee for such series except for those cancelled by it, those delivered to
it for cancellation and those described in this Section 2.10 as not outstanding.
A Security does not cease to be "OUTSTANDING" because the Company or an
Affiliate thereof holds the Security; PROVIDED, HOWEVER, that in determining
whether the Holders of the requisite Principal Amount of Outstanding Securities
have given or concurred in any request, demand, authorization, direction,
notice, consent or waiver hereunder, Securities owned by the Company or any
other obligor upon the Securities or any Affiliate of the Company or such other
obligor shall be disregarded and deemed not to be outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor upon the Securities or any Affiliate of
the Company or of such other obligor. Subject to the foregoing, only Securities
outstanding at the time of such determination shall be considered in any such
determination (including, without limitation, determinations pursuant to
Articles 6 and 9). In addition, in
23
determining whether the Holders of the requisite Principal Amount of Outstanding
Securities have given or concurred in any request, demand, authorization,
direction, notice, consent or waiver hereunder, (i) the Principal Amount of a
Discount Security that shall be deemed to be Outstanding shall be the amount of
the Principal thereof that would be due and payable as of the date of such
determination upon acceleration of the Maturity thereof pursuant to Section 6.2,
(ii) the Principal Amount of a Security denominated in a foreign currency or
currencies shall be the Dollar equivalent, as determined on the date of original
issuance of such Security, of the Principal Amount (or, in the case of a
Discount Security, the Dollar equivalent on the date of original issuance of
such Security of the amount determined as provided in (i) above) of such
Security.
If a Security has been paid pursuant to Section 2.9 or in exchange for or
in lieu of which another Security has been authenticated and delivered pursuant
to this Indenture, it ceases to be outstanding unless the Trustee receives proof
satisfactory to it that the replaced Security is held by a BONA FIDE purchaser.
If the Trustee (other than the Company) holds, in accordance with this
Indenture, on a Redemption Date or on Stated Maturity, money sufficient to pay
Securities and any coupons thereto appertaining payable on that date, then on
and after that date such Securities shall cease to be outstanding and interest,
if any, on such Securities shall cease to accrue; PROVIDED, that if such
Securities are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to the Trustee has
been made.
SECTION 2.11 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, in registered form or, if authorized, in bearer form with
one or more coupons or without coupons, and with such appropriate insertions,
omissions, substitutions and other variations as the Officers executing such
Securities may determine, as conclusively evidenced by their execution of such
Securities. Such temporary Securities may be in global form.
Except in the case of Securities represented by a temporary global Security
(which shall be exchanged in accordance with the provisions of the three
succeeding paragraphs), if temporary Securities for some or all of the
Securities of any series are issued, the Company will cause definitive
Securities representing such Securities to be prepared without unreasonable
delay. Subject to Section 2.2, after the preparation of such definitive
Securities, the temporary Securities shall be exchangeable for such definitive
Securities of like tenor upon surrender of the temporary Securities at the
office or agency of the Company designated for such purpose pursuant to Section
4.5 in a Place
24
of Payment for such series for the purpose of exchanges of Securities of such
series, without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Securities of any series (accompanied by any unmatured
coupons appertaining thereto), the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like Principal Amount of
definitive Securities of the same series and of like tenor of authorized
denominations; PROVIDED, HOWEVER, that no definitive Bearer Security or
Permanent Global Bearer Security shall be delivered in exchange for a temporary
Registered Security. Until so exchanged the temporary Securities shall in all
respects be entitled to the same benefits under this Indenture as definitive
Securities.
Unless otherwise specified as contemplated by Section 2.3(a), if Bearer
Securities of any series are represented by a Security in temporary global form,
any such temporary global Security shall be delivered to the Depositary for the
benefit of Euro-clear and Cedel S.A., for credit to the respective accounts of
the beneficial owners of such Securities (or to such other accounts as they may
direct).
Without unnecessary delay but in any event not later than the Exchange
Date, the Company shall deliver to the Trustee or paying agent outside the
United States permanent Securities of the same series which may be in definitive
or global form at the sole discretion of the Company, in aggregate Principal
Amount equal to the Principal Amount of such temporary global Security, executed
by the Company. On or after the Exchange Date, such temporary global Security
shall be surrendered by the Depositary to the Trustee or paying agent outside
the United States, as the Company's agent for such purpose, to be exchanged, in
whole or from time to time in part, for permanent Securities of the same series
which may be in definitive or global form at the sole discretion of the Company
and of like tenor without charge and the Trustee shall authenticate and deliver,
in exchange for each portion of such temporary global Security, an equal
aggregate Principal Amount of definitive Securities or interests in Permanent
Global Bearer Security of the same series of authorized denominations and of
like tenor as the portion of such temporary global Security to be exchanged.
The permanent Securities to be delivered in exchange for any such temporary
global Security shall be in definitive bearer form or registered form, or shall
be represented by a Permanent Global Bearer Security, or any combination
thereof, as specified as contemplated by Section 2.3(a), and, if any combination
thereof is so specified, as requested by the beneficial owner thereof PROVIDED,
that no beneficial owner of a registered Temporary Global Bearer Security who is
not a United States alien or who is located in the United States shall be
entitled to receive Bearer Securities.
Unless otherwise specified in any such Temporary Global Bearer Security,
the interest of a beneficial owner of Securities of a series represented by such
Temporary Global Bearer Security shall be exchanged for permanent Securities of
the same series which may be in definitive or global form at the sole discretion
of the Company and of like tenor following the Exchange Date when the account
holder instructs Euro-clear or
25
Cedel S.A., as the case may be, to request such exchange on his behalf and
delivers to Euro-clear or Cedel S.A., as the case may be, any certificate
specified as contemplated by Section 2.3(a). Unless otherwise specified in
such Temporary Global Bearer Security, any such exchange shall be made free of
charge to the beneficial owners of such Temporary Global Bearer Security, except
that a person receiving permanent Securities must bear the cost of insurance,
postage, transportation and the like in the event that such person does not take
delivery of such permanent Securities in person at the offices of Euro-clear or
Cedel S.A.
Until exchanged in full as hereinabove provided, the temporary Securities
of any series shall in all respects be entitled to the same benefits under this
Indenture as permanent Securities of the same series and of like tenor
authenticated and delivered hereunder, except that, unless otherwise specified
as contemplated by Section 2.3(a), interest payable on a temporary global
Security representing a series of Bearer Securities on an Interest Payment Date
for Securities of such series occurring prior to the applicable Exchange Date
shall be payable to Euro-clear and Cedel S.A. on such Interest Payment Date,
upon delivery by Euro-clear and Cedel S.A. to a paying agent outside the United
States of any certificate specified as contemplated by Section 2.3(a), for
credit without further interest on or after such Interest Payment Date to the
respective accounts of the persons who are the beneficial owners of such
Temporary Global Bearer Security on such Interest Payment Date and who have each
delivered to Euro-clear or Cedel S.A., as the case may be, any certificate
specified as contemplated by Section 2.3(a).
SECTION 2.12 CANCELLATION. All Securities or coupons 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 all Registered Securities and matured
coupons so delivered shall be promptly cancelled by it. All Bearer Securities
and unmatured coupons so delivered shall be held by the Trustee and shall be
cancelled. 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 (including Securities
received by the Company in exchange or payment for other Securities of the
Company) and may deliver to the Trustee (or to any other person for delivery to
the Trustee) for cancellation any Securities previously authenticated hereunder
which the Company has not issued and sold, and all Securities so delivered shall
be promptly cancelled by the Trustee. The Company may not reissue, or issue new
Securities to replace, Securities it has paid or delivered to the Trustee for
cancellation. No Securities shall be authenticated in lieu of or in exchange
for any Securities cancelled as provided in this Section, except as expressly
permitted in the form of Securities for any particular series or as permitted by
this Indenture. All cancelled Securities and coupons held by the Trustee shall
be destroyed by the Trustee in accordance with its customary procedures and
evidence of their destruction delivered to the Company unless the
26
Company directs, by Company Order, that the Trustee deliver cancelled Securities
to the Company.
SECTION 2.13 PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED. Unless
otherwise provided as contemplated by Section 2.3(a) with respect to any series
of Securities, interest on any Registered 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. In case a Bearer Security of any series is surrendered in
exchange for a Registered Security of such series after the close of business
(at an office or agency in a Place of Payment for such series) on any Regular
Record Date and before the opening of business (at such office or agency) on the
next succeeding Interest Payment Date, such Bearer Security shall be surrendered
without the coupon relating to such Interest Payment Date and interest will not
be payable on such Interest Payment Date in respect of the Registered Security
issued in exchange for such Bearer Security, but will be payable only to the
Holder of such coupon when due in accordance with the provisions of this
Indenture.
Any interest on any Registered Security of any series which is payable, but
is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "DEFAULTED INTEREST") shall forthwith cease to be payable to the
Holder on the relevant Regular Record Date by virtue of having been such Holder,
and such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Registered Security and the date of the proposed payment, and at
the same time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the persons entitled to
such Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest
which shall be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after the receipt by
the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date and, in the name
and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to
be
27
mailed, first-class postage prepaid, to each Holder of Registered
Securities at his address as it appears in the Security Register, not less
than 10 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
having been so mailed, such Defaulted Interest shall be paid to the persons
in whose names the Securities (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
Registered Securities in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Registered 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 and Section 2.8, 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 2.14 PERSONS DEEMED OWNERS. Prior to due presentment of a
Registered 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
Registered Security is registered as the owner of such Registered Security for
the purpose of receiving payment of Principal of and (except as otherwise
specified as contemplated by Section 2.3(a) and subject to Section 2.8 and
Section 2.13) interest on such Registered Security and for all other purposes
whatsoever, whether or not such Registered 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.
Title to any Bearer Security and any coupons appertaining thereto shall
pass by delivery. The Company, the Trustee and any agent of the Company or the
Trustee may treat the bearer of any Bearer Security and the bearer of any coupon
as the absolute owner of such Bearer Security or coupon for the purpose of
receiving payment thereof or on account thereof and for all other purposes
whatsoever, whether or not such Bearer Security or coupon 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.
None of the Company, the Trustee, any Paying Agent or the Registrar will
have any responsibility or liability for any aspect of the records relating to
or payments made on account of beneficial ownership interests of a Security in
global form or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
28
SECTION 2.15 COMPUTATION OF INTEREST. Except as otherwise specified as
contemplated by Section 2.3(a) for Securities of any series, (i) interest on any
Securities which bear interest at a fixed rate shall be computed on the basis of
a 360-day year comprised of twelve 30-day months and (ii) interest on any
Securities which bear interest at a variable rate shall be computed on the basis
of the actual number of days in an interest period divided by 360.
ARTICLE III
REDEMPTION
SECTION 3.1 RIGHT TO REDEEM; NOTICES TO TRUSTEE. 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 2.3(a) for Securities of any series) in accordance with this Article.
In the case of any redemption at the election of the Company of less than all
the Securities of any series, the Company shall, within the time period set
forth below, notify the Trustee in writing of the Redemption Date, the Principal
Amount of and of any other information necessary to identify the Securities of
such series to be redeemed and the Redemption Price (including the information
set forth in clauses (4), (5) and (6) of Section 3.3).
The Company shall give the notice to the Trustee provided for in this
Section 3.1 at least 60 days before the Redemption Date (unless a shorter notice
shall be satisfactory to the Trustee).
SECTION 3.2 SELECTION OF SECURITIES TO BE REDEEMED. Unless otherwise
specified as contemplated by Section 2.3(a) with respect to any series of
Securities, if less than all the Securities of any series with the same issue
date, interest rate and Stated Maturity are to be redeemed, the Trustee shall
select the particular Securities to be redeemed by a method the Trustee
considers fair and appropriate, which method may provide for the selection for
redemption of portions (equal to the minimum authorized denomination for
Securities of that series or any integral multiple thereof) of the Principal
Amount of Registered Securities of such series of a denomination larger than the
minimum authorized denomination for Securities of that series. The Trustee
shall make the selection not more than 60 days before the Redemption Date from
Outstanding Securities of such series not previously called for redemption.
Provisions of this Indenture that apply to Securities called for redemption also
apply to portions of Securities called for redemption. The Trustee shall notify
the Company promptly in writing of the Securities to be redeemed and, in the
case of any portions of Securities to be redeemed, the principal amount thereof
to be redeemed.
SECTION 3.3 NOTICE OF REDEMPTION. Unless otherwise specified as
contemplated by Section 2.3(a) with respect to any series of Securities, at
least 30 days but not more
29
than 60 days before a Redemption Date, the Company shall mail a notice of
redemption by first-class mail, postage prepaid, to each Holder of Securities to
be redeemed.
The notice shall identify the Securities (including CUSIP/ISIN numbers) to
be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if fewer than all the Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption,
the Principal Amounts) of the particular Securities to be redeemed;
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security (or portion thereof) to be redeemed
and, if applicable, that interest thereon will cease to accrue on and after
said date;
(5) the place or places where such Securities, together in the case
of Bearer Securities with all coupons appertaining thereto, if any,
maturing after the Redemption Date, are to be surrendered for payment of
the Redemption Price; and
(6) that the redemption is for a sinking fund, if such is the case.
A notice of redemption published as contemplated by Section 13.2 need not
identify particular Registered Securities to be redeemed.
At the Company's request, the Trustee shall give the notice of redemption
in the Company's name and at the Company's expense; PROVIDED, HOWEVER, that, in
all cases, the text of such Company notice shall be prepared by the Company.
SECTION 3.4 EFFECT OF NOTICE OF REDEMPTION. Once notice of redemption is
given, Securities called for redemption become due and payable on the Redemption
Date and at the Redemption Price stated in the notice, 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 and the
coupons for such interest appertaining to any Bearer Securities so to be
redeemed, except to the extent provided below, shall be void. Upon surrender of
any such Security for redemption in accordance with said notice, together with
all coupons, if any, appertaining thereto maturing after the Redemption Date,
such Security shall be paid by the Company at the Redemption Price, together
with accrued interest to the Redemption Date; PROVIDED, HOWEVER, that
installments of interest on Bearer Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable only at an office or agency
located outside the United States (except as
30
otherwise provided in Section 4.5) and, unless otherwise specified as
contemplated by Section 2.3(a), only upon presentation and surrender of coupons
for such interest; and PROVIDED, FURTHER, that, unless otherwise specified as
contemplated by Section 2.3(a), installments of interest on Registered
Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Regular
Record Dates according to their terms and the provisions of Sections 2.8 and
2.13.
If any Bearer Security surrendered for redemption shall not be accompanied
by all appurtenant coupons maturing after the Redemption Date, such Security may
be paid after deducting from the Redemption Price an amount equal to the face
amount of all such missing coupons, or the surrender of such missing coupon or
coupons may be waived by the Company and a paying agent outside the United
States if there be furnished to the Company, the Trustee and such paying agent
such security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Security shall
surrender to any Paying Agent any such missing coupon in respect of which a
deduction shall have been made from the Redemption Price, such Holder shall be
entitled to receive the amount so deducted; PROVIDED, HOWEVER, that interest
represented by coupons shall be payable only at an office or agency located
outside the United States (except as otherwise provided in Section 4.5) and,
unless otherwise specified as contemplated by Section 2.3(a), only upon
presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the Principal shall, until paid, bear interest from the
Redemption Date at the rate prescribed therefor in the Security.
SECTION 3.5 DEPOSIT OF REDEMPTION PRICE. Prior to or on the Redemption
Date, the Company shall deposit with the Paying Agent (or if the Company or a
Subsidiary or an Affiliate of either of them is the Paying Agent, shall
segregate and hold in trust) money sufficient to pay the Redemption Price and
(except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, of all Securities to be redeemed on that date other than Securities
or portions of Securities called for redemption which prior thereto have been
delivered by the Company to the Trustee for cancellation. If such money is then
held by the Company in trust and is not required for such purpose, it shall be
discharged from such trust.
SECTION 3.6 SECURITIES REDEEMED IN PART. Any Registered 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 upon such surrender, the Company shall execute and the Trustee
shall authenticate and deliver to the Holder of
31
such Security a new Registered Security or Securities of the same series and of
like tenor, in an authorized denomination as requested by such Holder, equal in
aggregate Principal Amount to and in exchange for the unredeemed portion of the
Principal of the Security surrendered.
ARTICLE IV
COVENANTS
SECTION 4.1 PAYMENT OF SECURITIES. The Company shall promptly make all
payments in respect of each series of Securities on the dates and in the manner
provided in the Securities and any coupons appertaining thereto and, to the
extent not otherwise so provided, pursuant to this Indenture. An installment of
Principal of or interest on the Securities shall be considered paid on the date
it is due if the Trustee or a Paying Agent (other than the Company or an
Affiliate of the Company) holds on that date funds (in the currency or
currencies of payment with respect to such Securities) designated for and
sufficient to pay such installment. Unless otherwise specified as contemplated
by Section 2.3(a) with respect to any series of Securities, any interest due on
Bearer Securities on or before Maturity shall be payable only upon presentation
and surrender of the several coupons for such interest installments as are
evidenced thereby as they severally mature. At the Company's option, payments
of Principal or interest may be made by check or by transfer to an account
maintained by the payee subject, in the case of Bearer Securities, to the
provisions of Section 4.5.
SECTION 4.2 SEC REPORTS. The Company shall file with the Trustee, within
15 days after it files such annual and quarterly reports, information, documents
and other reports with the SEC, copies of its annual report and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as the SEC may by rules and regulations prescribe) which the
Company is required to file with the SEC pursuant to Section 13 or 15(d) of the
Exchange Act. The Company also shall comply with the other provisions of TIA
Section 314(a).
SECTION 4.3 COMPLIANCE CERTIFICATE. The Company shall deliver to the
Trustee within 120 days after the end of each fiscal year (beginning with the
fiscal year ending on July 31, 1997) an Officers' Certificate stating whether or
not the signers know of any Default that occurred during such period. If they
do, such Officers' Certificate shall describe the Default and its status.
SECTION 4.4 FURTHER INSTRUMENTS AND ACTS. Upon request of the Trustee,
the Company will execute and deliver such further instruments and do such
further acts as may be reasonably necessary or proper to carry out more
effectively the purposes of this Indenture.
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SECTION 4.5 MAINTENANCE OF OFFICE OR AGENCY. If Securities of a series
are issuable only as Registered Securities, the Company will maintain in each
Place of Payment for such series 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. If Securities of a series are issuable
as Bearer Securities, the Company will maintain (A) in the Borough of Manhattan,
the City of New York, an office or agency where any Registered Securities of
that series may be presented or surrendered for payment, where any Registered
Securities of that series may be surrendered for registration of transfer, where
Securities of that series may be surrendered for exchange, purchase or
redemption and where notices and demands to or upon the Company in respect of
the Securities of that series and this Indenture may be served and where Bearer
Securities of that series and related coupons may be presented or surrendered
for payment in the circumstances described in the following paragraph (and not
otherwise), (B) subject to any laws or regulations applicable thereto, in a
Place of Payment for that series which is located outside the United States, an
office or agency where Securities of that series and related coupons may be
presented and surrendered for payment (including payment of any additional
amounts payable on Securities of that series pursuant to Section 4.6), and (C)
subject to any laws or regulations applicable thereto, in a Place of Payment for
that series located outside the United States an office or agency where any
Registered Securities of that series may be surrendered for registration of
transfer, where Securities of that series may be surrendered for 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 office of the Trustee, in New
York, New York, shall be such office or agency for all of the aforesaid purposes
unless the Company shall maintain some other office or agency for such purposes
and shall give prompt written notice to the Trustee of the location, and any
change in the location, of such other office or agency. If at any time the
Company shall fail to maintain any such required office or agency in respect of
any series of Securities or shall fail to furnish the Trustee with the address
thereof, such presentations and surrenders of Securities of that series may be
made and notices and demands may be made or served at the address of the Trustee
set forth in Section 13.2, except that Bearer Securities of that series and the
related coupons may be presented and surrendered for payment (including payment
of any additional amounts payable on Bearer Securities of that series pursuant
to Section 4.6) at the place specified for that purpose as contemplated by
Section 2.3(a) or, if no such place is specified, at the main office of the
Trustee in London, and the Company hereby appoints the same as its agent to
receive such respective presentations, surrenders, notices and demands.
No payment of Principal or interest on Bearer Securities shall be made at
any office or agency of the Company in the United States, by check mailed to any
address in the United States, by transfer to an account located in the United
States or upon presentation or surrender in the United States of a Bearer
Security or coupon for payment, even if the
33
payment would be credited to an account located outside the United States;
PROVIDED, HOWEVER, that, if the Securities of a series are denominated and
payable in Dollars, payment of Principal of and any interest on any such Bearer
Security (including any additional amounts payable on Securities of such series
pursuant to Section 4.6) shall be made at the office of the Company's Paying
Agent in the Borough of Manhattan, The City of New York, if (but only if)
payment in Dollars of the full amount of such Principal, interest or additional
amounts, as the case may be, at all offices or agencies outside the United
States maintained for such purpose by the Company in accordance with this
Indenture is illegal or effectively precluded by exchange controls or other
similar restrictions.
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 rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in accordance with the requirements set forth above 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 4.6 ADDITIONAL AMOUNTS. If specified as contemplated by Section
2.3(a), the Securities of a series may provide for the payment of additional
amounts, and in such case, the Company will pay to the Holder of any Security of
such series or any coupon appertaining thereto additional amounts as provided
therein. Wherever in this Indenture there is mentioned, in any context, the
payment of the Principal of or any interest on, or in respect of, any Security
of any series or payment of any related coupon, such mention shall be deemed to
include mention of the payment of additional amounts provided for in this
Section to the extent that, in such context, additional amounts are, were or
would be payable in respect thereof pursuant to the provisions of this Section
and express mention of the payment of additional amounts (if applicable) in any
provisions hereof shall not be construed as excluding additional amounts in
those provisions hereof where such express mention is not made.
If the Securities of a series provide for the payment of additional
amounts, at least 10 days prior to the first Interest Payment Date with respect
to that series of Securities (or if the Securities of that series will not bear
interest prior to Maturity, the first day on which payment of Principal is
made), and at least 10 days prior to each date of payment of Principal and any
interest if there has been any change with respect to the matters set forth in
the below-mentioned Officers' Certificate, the Company will furnish the Trustee
and the Company's Paying Agent or Paying Agents, if other than the Trustee, with
an Officers' Certificate instructing the Trustee and such Paying Agent or Paying
Agents whether such payment of Principal of and any interest on the Securities
of that series shall be made to Holders of Securities of that series or any
related coupons who are
00
Xxxxxx Xxxxxx Aliens without withholding for or on account of any tax,
assessment or other governmental charge described in the Securities of that
series. If any such withholding shall be required, then such Officers'
Certificate shall specify by country the amount, if any, required to be withheld
on such payments to such Holders of Securities or coupons and the Company will
pay to the Trustee or such Paying Agent the additional amounts required by the
Securities of such series and this Section. The Company covenants to indemnify
the Trustee and any Paying Agent for, and to hold them harmless against, any
loss, liability or expense reasonably incurred without negligence or bad faith
on their part arising out of or in connection with actions taken or omitted by
any of them in reliance on any Officers' Certificate furnished pursuant to this
Section.
SECTION 4.7 LIMITATIONS ON THE INCURRENCE OF CERTAIN OTHER DEBT. The
Company shall not create, incur, issue, assume, guaranty or otherwise become
directly or indirectly liable for or with respect to or otherwise permit to
exist any Debt of the Company that is subordinate in right of payment to any
Debt of the Company unless such Debt is either PARI PASSU with the Securities or
subordinate in right of payment to the Securities pursuant to subordination
provisions that are at least as favorable to the holders of the Securities as
the subordination provision set forth in this Indenture with respect to Senior
Indebtedness.
ARTICLE V
SUCCESSOR CORPORATION
SECTION 5.1 WHEN COMPANY MAY MERGE OR TRANSFER ASSETS. The Company, in a
single transaction or through a series of related transactions, shall not
consolidate with or merge with or into any other person or convey or transfer
(by lease, assignment, sale or otherwise) all or substantially all of its
properties and assets to another person or group of affiliated persons, unless:
(a) either (1) the Company shall be the continuing corporation
or (2) the person (if other than the Company) formed by such
consolidation or into which the Company is merged or to which all or
substantially all of the properties and assets of the Company are
conveyed or transferred (i) shall be a corporation, partnership,
limited liability company or trust organized and validity existing
under the laws of the United States or any state thereof or the
District of Columbia and (ii) shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, all of the obligations of the Company
under the Securities and this Indenture;
35
(b) immediately after giving effect to such transaction and the
assumption contemplated by clause (a)(ii), above, no Default or Event
of Default shall have occurred and be continuing; and
(c) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance or transfer 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 satisfied.
For purposes of the foregoing, the conveyance or transfer (by lease,
assignment, sale or otherwise) of the properties and assets of one or more
Subsidiaries (other than to the Company or another wholly owned Subsidiary),
which, if such assets were owned by the Company, would constitute all or
substantially all of the properties and assets of the Company, shall be deemed
to be the conveyance or transfer of all or substantially all of the properties
and assets of the Company.
The successor person formed by such consolidation or into which the Company
is merged or the successor person to which such conveyance or transfer is made
shall succeed to, and be substituted for, and may exercise every right and power
of the Company under this Indenture with the same effect as if such successor
had been named as the Company herein; and thereafter, except in the case of a
lease of its properties and assets substantially as an entirety, the Company
shall be discharged from all obligations and covenants under this Indenture, the
Securities and coupons. The Trustee shall enter into a supplemental indenture
to evidence the succession and substitution of such successor person and such
discharge and release of the Company.
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.1 EVENTS OF DEFAULT. Unless otherwise specified as contemplated
by Section 2.3(a) with respect to any series of securities, an "EVENT OF
DEFAULT" occurs, with respect to each series of the Securities individually, if:
(1) the Company defaults in (a) the payment of the principal of any
Security of such series at its Maturity or (b) the payment of any interest
upon any Security of such series when the same becomes due and payable and
continuance of such default for a period of 30 days;
(2) the Company fails to comply with any of its agreements in the
Securities or this Indenture (other than those referred to in clause (1)
above and other than a
36
covenant or warranty a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with or which has been
expressly included in this Indenture solely for the benefit of a series of
Securities other than such series) and such failure continues for 60 days
after receipt by the Company of a Notice of Default;
(3) there shall have been the entry by a court of competent
jurisdiction of (a) a decree or order for relief in respect of the Company
in an involuntary case or proceeding under any applicable Bankruptcy Law or
(b) a decree or order adjudging the Company bankrupt or insolvent, or
seeking 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 wind up or liquidation of
its affairs, and any such decree or order for relief shall continue to be
in effect, or any such other decree or order shall be unstayed and in
effect, for a period of 60 consecutive days;
(4) (a) the Company commences a voluntary case or proceeding under
any applicable Bankruptcy Law or any other case or proceeding to be
adjudicated bankrupt or insolvent, (b) the Company consents to the entry of
a decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable Bankruptcy Law or to the
commencement of any bankruptcy or insolvency case or proceeding against it,
(c) the Company files a petition or answer or consent seeking
reorganization or substantially comparable relief under any applicable
federal state law, (d) the Company (x) consents to the filing of such
petition or the appointment of, or taking possession by, a custodian,
receiver, liquidator, assignee, trustee, sequestrator or similar official
of the Company or of any substantial part of its property, (y) makes an
assignment for the benefit of creditors or (z) admits in writing its
inability to pay its debts generally as they become due or (e) the Company
takes any corporate action in furtherance of any such actions in this
clause (4); or
(5) any other Event of Default provided with respect to Securities of
that series.
"BANKRUPTCY LAW" means Xxxxx 00, Xxxxxx Xxxxxx Code, or any similar Federal
or state law for the relief of debtors. "CUSTODIAN" means any receiver,
trustee, assignee, liquidator, custodian or similar official under any
Bankruptcy Law.
A Default under clause (2) above is not an Event of Default until the
Trustee notifies the Company, or the Holders of at least 25% in aggregate
Principal Amount of the Outstanding Securities of such series notify the Company
and the Trustee, of the Default and the Company does not cure such Default
within the time specified in clause (2) above
37
after receipt of such notice. Any such notice must specify the Default, demand
that it be remedied and state that such notice is a "NOTICE OF DEFAULT."
SECTION 6.2 ACCELERATION. If an Event of Default with respect to
Securities of any series at the time Outstanding (other than an Event of Default
specified in Section 6.1(3) or (4)) occurs and is continuing, the Trustee by
notice to the Company, or the Holders of at least 25% in aggregate Principal
Amount of the Outstanding Securities of that series by notice to the Company and
the Trustee, may declare the Principal Amount (or, if any of the Securities of
that series are Discount Securities, such portion of the Principal Amount of
such Securities as may be specified in the terms thereof) of all the Securities
of that series to be immediately due and payable. Upon such a declaration, such
Principal (or portion thereof) shall be due and payable immediately. If an
Event of Default specified in Section 6.1(3) or (4) occurs and is continuing,
the Principal (or portion thereof) of all the Securities of that series shall
become and be immediately due and payable without any declaration or other act
on the part of the Trustee or any Securityholders. The Holders of a majority in
aggregate Principal Amount of the Outstanding Securities of any series, by
notice to the Trustee (and without notice to any other Securityholder) may
rescind an acceleration with respect to that series and its consequences if the
rescission would not conflict with any judgment or decree and all existing
Events of Default with respect to Securities of such series have been cured or
waived except nonpayment of the Principal (or portion thereof) of Securities of
such series that has become due solely as a result of such acceleration and if
all amounts due to the Trustee under Section 7.7 have been paid. No such
rescission shall affect any subsequent Default or impair any right consequent
thereto.
SECTION 6.3 OTHER REMEDIES. If an Event of Default with respect to a
series of Outstanding Securities occurs and is continuing, the Trustee may
pursue any available remedy to (a) collect the payment of the whole amount then
due and payable on such Securities for Principal and interest, with interest
upon the overdue Principal and, to the extent that payment of such interest
shall be legally enforceable, upon overdue installments of interest from the
date such interest was due, 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 amounts due the Trustee
under Section 7.7 or (b) enforce the performance of any provision of the
Securities or this Indenture.
The Trustee may maintain a proceeding even if the Trustee does not possess
any of the Securities or coupons or does not produce any of the Securities or
coupons in the proceeding. A delay or omission by the Trustee or any
Securityholder in exercising any right or remedy accruing upon an Event of
Default shall not impair the right or remedy or constitute a waiver of, or
acquiescence in, the Event of Default. No remedy is exclusive of any other
remedy. All available remedies are cumulative.
38
SECTION 6.4 WAIVER OF PAST DEFAULTS. The Holders of a majority in
aggregate Principal Amount of the Outstanding Securities of any series, by
notice to the Trustee (and without notice to any other Securityholder), may on
behalf of the Holders of all the Securities of such series and any related
coupons waive an existing Default with respect to such series and its
consequences except (1) an Event of Default described in Section 6.1(1) with
respect to such series or (2) a Default in respect of a provision that under
Section 9.2 cannot be amended without the consent of the Holder of each
Outstanding Security of such series affected. When a Default is waived, it is
deemed cured, but no such waiver shall extend to any subsequent or other Default
or impair any consequent right.
SECTION 6.5 CONTROL BY MAJORITY. The Holders of a majority in aggregate
Principal Amount of the Outstanding Securities of any series may direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee or of exercising any trust or power conferred on the Trustee with
respect to the Securities of such series. However, the Trustee may refuse to
follow any direction that conflicts with law or this Indenture or that the
Trustee determines in good faith is unduly prejudicial to the rights of other
Securityholders or would involve the Trustee in personal liability.
SECTION 6.6 LIMITATION ON SUITS. A Holder of any Security of any series
or any related coupons may not pursue any remedy with respect to this Indenture
or the Securities unless:
(1) the Holder gives to the Trustee written notice stating that an
Event of Default with respect to the Securities of that series is
continuing;
(2) the Holders of at least 25% in aggregate Principal Amount of the
Outstanding Securities of that series make a written request to the Trustee
to pursue the remedy;
(3) such Holder or Holders offer to the Trustee reasonable security
or indemnity against any loss, liability or expense satisfactory to the
Trustee;
(4) the Trustee does not comply with the request within 60 days after
receipt of the notice, the request and the offer of security or indemnity;
and
(5) the Holders of a majority in aggregate Principal Amount of the
Outstanding Securities of that series do not give the Trustee a direction
inconsistent with such request during such 60-day period.
A Securityholder may not use this Indenture to prejudice the rights of any
other Securityholder or to obtain a preference or priority over any other
Securityholder.
39
SECTION 6.7 RIGHTS OF HOLDERS TO RECEIVE PAYMENT. Notwithstanding any
other provision of this Indenture, the right, which is absolute and
unconditional, of any Holder of any Security or coupon to receive payment of the
Principal of and (subject to Section 2.13) interest on such Security or payment
of such coupon on the Stated Maturity or Maturities expressed in such Security
or coupon (or, in the case of redemption, on the Redemption Date) held by such
Holder, on or after the respective due dates expressed in the Securities or any
Redemption Date, or to bring suit for the enforcement of any such payment on or
after such respective dates, shall not be impaired or affected adversely without
the consent of each such Holder.
SECTION 6.8 COLLECTION SUIT BY TRUSTEE. If an Event of Default described
in Section 6.1(1) with respect to Securities of any series occurs and is
continuing, the Trustee may recover judgment in its own name and as trustee of
an express trust against the Company for the whole amount owing with respect to
such series of Securities and the amounts provided for in Section 7.7.
SECTION 6.9 TRUSTEE MAY FILE PROOFS OF CLAIM. In case of the pendency of
any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Company or any other obligor upon the Securities or the property of the
Company or of such other obligor or their creditors, the Trustee (irrespective
of whether the Principal of the Securities shall then be due and payable as
therein expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for the payment of overdue
Principal or interest) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
(a) to file and prove a claim for the whole amount of Principal
and interest owing and unpaid in respect of the Securities and to file
such other papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel and any other amount due the Trustee
under Section 7.7) and of the Holders of Securities and coupons
allowed in such judicial proceeding, and
(b) 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
similar official in any such judicial proceeding is hereby authorized by each
Holder of Securities and coupons to make such payments to the Trustee and, in
the event that the Trustee shall consent to the making of such payments directly
to the Holders of Securities and coupons, to pay the Trustee any amount due it
for the reasonable compensation, expens-
40
es, disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 7.7.
Nothing herein contained shall be deemed to authorize the Trustee or the
holders of Senior Indebtedness to authorize or consent to or accept or adopt on
behalf of any Holder of a Security or coupon any plan of reorganization,
arrangement, adjustment or composition affecting the Securities or coupons or
the rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Holder of a Security or coupon in any such proceeding.
SECTION 6.10 PRIORITIES. If the Trustee collects any money pursuant to
this Article 6, it shall pay out the money in the following order and, in case
of the distribution of such money on account of Principal or interest, upon
presentation of the Securities or coupons, or both, as the case may be, and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: to the Trustee for amounts due under Section 7.7;
SECOND: to holders of Senior Indebtedness as provided in Article XII;
THIRD: to Securityholders for amounts due and unpaid for the Principal
and interest on the Securities and interest evidenced by coupons 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 and coupons for Principal and interest, respectively;
and
FOURTH: the balance, if any, to the Company.
The Trustee may fix a record date and payment date for any payment to
Securityholders pursuant to this Section 6.10. At least 15 days before such
record date, the Company shall mail to each Securityholder and the Trustee a
notice that states the record date, the payment date and amount to be paid.
SECTION 6.11 UNDERTAKING FOR COSTS. In any suit for the enforcement of
any right or remedy under this Indenture or in any suit against the Trustee for
any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant (other than the Trustee) in the suit of
an undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys' fees, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section 6.11 does not apply
to a suit by the Trustee, a suit by a Holder pursuant to Section 6.7 or a suit
by Holders of more than 10% in aggregate Principal Amount of the Outstanding
Securities of any series, or to any suit instituted by any Holder of any
Security or coupon for the
41
enforcement of the payment of the Principal of or interest on any Security or
the payment of any coupon on or after the Stated Maturity or Maturities
expressed in such Security or coupon (or, in the case of redemption, on or after
the Redemption Date).
SECTION 6.12 WAIVER OF STAY, EXTENSION OR USURY LAWS. The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law or any usury or other 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 VII
TRUSTEE
SECTION 7.1 DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise the rights and powers vested in it by this Indenture and use the
same degree of care and skill in its exercise as a prudent man would exercise or
use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default with respect to
Securities of any series:
(1) the Trustee need perform only those duties that are specifically
set forth in this Indenture and no others; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture. However,
with respect to any certificates or opinions specifically required to be
furnished to the Trustee, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements of
this Indenture.
(c) The Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct, except
that:
42
(1) This paragraph (c) does not limit the effect of paragraph (b) of
this Section 7.1.
(2) The Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.5 or exercising any trust or power
conferred upon the Trustee under this Indenture.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.1.
(e) The Trustee may refuse to perform any duty or exercise any right or
power or extend or risk its own funds or otherwise incur any financial liability
unless it receives indemnity satisfactory to it against any loss, liability or
expense.
(f) 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 not be
liable for any interest on any money received by it except as the Trustee may
otherwise agree with the Company.
SECTION 7.2 RIGHTS OF TRUSTEE. (a) The Trustee may rely on any document
believed by it to be genuine and to have been signed or presented by the proper
person. The Trustee need not investigate any fact or matter stated in the
document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel. The Trustee shall not be liable
for any action it takes or omits to take in good faith in reliance on such
Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible for
the misconduct or negligence of any agent appointed with due care.
(d) Subject to the provisions of Section 7.1 (c), the Trustee shall not be
liable for any action it takes or omits to take in good faith which it believes
to be authorized or within its rights or powers.
(e) Subject to the provisions Section 7.1, the Trustee may rely and shall
be protected in acting or refraining from acting upon any resolution, Officers'
Certificate, Opinion of Counsel (or both), Company Order or any other
certificate, statement,
43
instrument, opinion report, notice, request, consent, order, bond, debenture,
note, coupon, security or other paper believed to be genuine and to have been
signed or presented by the proper party or parties.
(f) Any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by an Officers' Certificate unless other
evidence in respect thereof be herein specifically prescribed); and any
resolution of the Board of Directors may be evidenced to the Trustee by a copy
thereof certified by the secretary or an assistant secretary of the Company.
(g) The Trustee may consult with counsel and any written advice or Opinion
of Counsel shall, subject to the provisions of Section 7.1, be full and complete
authorization and protection in respect of any action taken, suffered or omitted
to be taken by it hereunder in good faith and in reliance thereon in accordance
with such advice or Opinion of Counsel.
(h) The Trustee shall be under no obligation to exercise any of the trusts
or powers vested in it by this Indenture at the request, order or direction of
any of the Securityholders pursuant to the provisions of this Indenture, unless
such Securityholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be incurred
therein or thereby.
(i) Prior to the occurrence of an Event of Default hereunder and after the
curing or waiving of all Events of Default, the Trustee shall not be bound to
make any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request, consent,
order, approval, appraisal, bond, debenture, note, coupon, security or other
paper or document unless requested in writing to do so by the Holders of not
less than a majority in the aggregate principal amount of the Securities of such
series then Outstanding; provided, that, if the payment within a reasonable time
to the Trustee of the costs, expenses or liabilities likely to be incurred by it
in the making of any such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by the terms of
this Indenture, the Trustee may require reasonable indemnity against such
expense or liabilities as a condition to proceeding; the reasonable expense of
every such investigation shall be paid by the Company or, if paid by the Trustee
or any predecessor trustee, shall be repaid by the Company upon demand.
(j) 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 not regularly in its employ and the Trustee shall not be responsible
for any misconduct or negligence on the part of any such agent or attorney
appointed with due care by it hereunder.
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SECTION 7.3 INDIVIDUAL RIGHTS OF TRUSTEE, ETC. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
or coupons and may otherwise deal with the Company or its Affiliates with the
same rights it would have if it were not Trustee. Any Paying Agent, Registrar
or co-registrar or any other agent of the Company may do the same with like
rights. However, the Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.4 TRUSTEE'S DISCLAIMER. The recitals contained herein and in
the Securities, except the Trustee's certificate of authentication, shall be
taken as the statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representation as to the validity or adequacy of this Indenture or the
Securities or coupons. The Trustee shall not be accountable for the Company's
use of the proceeds from the Securities and, shall not be responsible for any
statement in the registration statement for the Securities under the Securities
Act of 1933, as amended, or in the Indenture or the Securities or any coupons
(other than its certificate of authentication) or for the determination as to
which beneficial owners are entitled to receive any notices hereunder.
SECTION 7.5 NOTICE OF DEFAULTS. If a Default with respect to the
Securities of any series occurs and is continuing and if it is known to the
Trustee, the Trustee shall give to each Holder of Securities of such series
notice of such Default in the manner set forth in TIA Section 315(b) within 90
days after it occurs. Except in the case of a Default described in Section
6.1(1) with respect to any Security of such series or a Default in the payment
of any sinking fund installment with respect to any Security of such series, the
Trustee may withhold the notice if and so long as a committee of its Trust
Officers in good faith determines that withholding the notice is in the
interests of the Holders of Securities of such series.
SECTION 7.6 REPORTS BY TRUSTEE TO HOLDERS. Within 60 days after each May
15 beginning with the May 15 following the date of this Indenture, the Trustee
shall mail to each Holder of Securities a brief report dated as of such May 15
that complies with TIA Section 313(a). The Trustee also shall comply with TIA
Section 313(b) and (c).
A copy of each report at the time of its mailing to Holders of Securities
shall be filed with the SEC and each stock exchange on which the Securities of
that series may be listed. The Company agrees to notify the Trustee whenever
the Securities of a particular series become listed on any stock exchange and of
any delisting thereof.
SECTION 7.7 COMPENSATION AND INDEMNITY. The Company agrees:
(a) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited
45
by any provision of law in regard to the compensation of a trustee of an
express trust);
(b) 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, advances 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
(c) to indemnify the Trustee for, and to hold it 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 this trust, 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.
To secure the Company's payment obligations in this Section 7.7, the
Trustee shall have a lien prior to the Securities and any coupons on all money
or property held or collected by the Trustee, except that held in trust to pay
the Principal of or interest, if any, on particular Securities or for the
payment of particular coupons.
The Company's payment obligations pursuant to this Section 7.7 shall
survive the discharge of this Indenture. When the Trustee incurs expenses after
the occurrence of a Default specified in Section 6.1(3) or (4), the expenses are
intended to constitute expenses of administration under any Bankruptcy Law.
SECTION 7.8 REPLACEMENT OF TRUSTEE. The Trustee may resign by so
notifying the Company; PROVIDED, HOWEVER, no such resignation shall be effective
until a successor Trustee has accepted its appointment pursuant to this Section
7.8. The Holders of a majority in aggregate Principal Amount of the Outstanding
Securities of any series at the time outstanding may remove the Trustee with
respect to the Securities of such series by so notifying the Trustee and may
appoint a successor Trustee. The Company shall remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or public officer takes charge of the Trustee or its
property; or
(4) the Trustee otherwise becomes incapable of acting.
46
If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason, with respect to the Securities of one or more series,
the Company shall promptly appoint, by resolution of its Board of Directors, a
successor Trustee 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 series).
In the case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee shall deliver a written
acceptance of its appointment to the retiring Trustee and to the Company.
Thereupon, the resignation or removal of the retiring Trustee shall become
effective and the successor Trustee shall have all the rights, powers and duties
of the Trustee under this Indenture. The successor Trustee shall mail a notice
of its succession to Holders of Securities of the particular series with respect
to which such successor Trustee has been appointed. The retiring Trustee shall
promptly transfer all property held by it as Trustee to the successor Trustee,
subject to the lien provided for in Section 7.7.
In case of the appointment hereunder of a successor Trustee with respect to
the Securities of one or more (but not all) series, the Company, the retiring
Trustee and each successor Trustee with respect to the Securities of one or more
series shall execute and deliver an indenture supplemental hereto wherein each
successor Trustee shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates, (2) if the retiring Trustee
is not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees as co-Trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee
47
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder with respect to the Securities
of that or those series to which the appointment of such successor Trustee
relates, subject, nevertheless, to its lien, if any, provided for in Section
7.7.
If a successor Trustee with respect to the Securities of any series does
not take office within 30 days after the retiring Trustee resigns or is removed,
the retiring Trustee, the Company or the Holders of a majority in aggregate
Principal Amount of the Outstanding Securities of such series at the time
outstanding may petition any court of competent jurisdiction for the appointment
of a successor Trustee with respect to the Securities of such series.
If the Trustee fails to comply with Section 7.10, any Holder of a Security
of such series may petition any court of competent jurisdiction for the removal
of such Trustee and the appointment of a successor Trustee.
SECTION 7.9 SUCCESSOR TRUSTEE BY MERGER. If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all its
corporate trust business or assets to, another corporation, the resulting,
surviving or transferee corporation without any further act shall be the
successor Trustee.
SECTION 7.10 ELIGIBILITY; DISQUALIFICATION. The Trustee shall at all
times satisfy the requirements of TIA Section 310(a)(1) and 310(a)(5). The
Trustee shall have a combined capital and surplus of at least $50,000,000 as set
forth in its most recent published annual report of condition. The Trustee
shall comply with TIA Section 310(b), including the optional provision permitted
by the second sentence of TIA Section 310(b)(9). In determining whether the
Trustee has conflicting interests as defined in TIA Section 310(b)(1), the
provisions contained in the proviso to TIA Section 310(b)(1) shall be deemed
incorporated herein.
SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY. The
Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE VIII
SATISFACTION AND DISCHARGE
SECTION 8.1 DISCHARGE OF LIABILITY ON SECURITIES. Except as otherwise
contemplated by Section 2.3(a), when (a) the Company delivers to the Trustee all
Outstanding Securities or all Outstanding Securities of any series, as the case
may be, theretofore authenticated and delivered and all coupons, if any,
appertaining thereto (other than (i) coupons appertaining to Bearer Securities
surrendered for exchange for Registered
48
Securities and maturing after such exchange, whose surrender is not required or
has been waived as provided in Section 2.8, (ii) Securities or Securities of
such series, as the case may be, and coupons, if any, which have been destroyed,
lost or stolen and which have been replaced or paid as provided in Section 2.9,
(iii) coupons, if any, appertaining to Securities or Securities of such series,
as the case may be, called for redemption and maturing after the relevant
Redemption Date, whose surrender has been waived as provided in Section 3.4, and
(iv) Securities or Securities of such series, as the case may be, and coupons,
if any, 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 2.4) for cancellation or
(b) all Outstanding Securities have become due and payable and the Company
deposits with the Trustee cash sufficient to pay at Stated Maturity the
Principal Amount of all Principal of and interest on Outstanding Securities or
all Outstanding Securities of such series (other than Securities replaced
pursuant to Section 2.9), and if in either case the Company pays all other sums
payable hereunder by the Company, then this Indenture shall, subject to Section
7.7, cease to be of further effect as to all Outstanding Securities or all
Outstanding Securities of any series, as the case may be. The Trustee shall
join in the execution of a document prepared by the Company acknowledging
satisfaction and discharge of this Indenture on demand of the Company
accompanied by an Officers' Certificate and Opinion of Counsel and at the cost
and expense of the Company.
SECTION 8.2 REPAYMENT TO THE COMPANY. The Trustee and the Paying Agent
shall return to the Company on Company Request any money held by them for the
payment of any amount with respect to the Securities that remains unclaimed for
two years; PROVIDED, HOWEVER, that the Trustee or such Paying Agent, before
being required to make any such return, may at the expense and direction of the
Company cause to be published once in an Authorized Newspaper in each Place of
Payment of or mail to each such Holder 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 or mailing, any unclaimed money then remaining
xxxx be returned to the Company. After return to the Company, Holders entitled
to the money must look to the Company for payment as general creditors unless an
applicable abandoned property law designates another person.
SECTION 8.3 OPTION TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE.
Unless otherwise specified as contemplated by Section 2.3(a) with respect to
Securities of a particular series, the Company, may at its option, by Board
Resolution, at any time, with respect to any series of Securities, elect to have
either Section 8.4 or Section 8.5 be applied to all of the outstanding
Securities of any series (the "DEFEASED SECURITIES"), upon compliance with the
conditions set forth below in Article VIII.
SECTION 8.4 DEFEASANCE AND DISCHARGE. Upon the Company's exercise under
Section 8.3 of the option applicable to this Section 8.2, the Company shall be
deemed to have been discharged from its obligations with respect to the Defeased
Securities on the
49
date the conditions set forth below are satisfied (hereinafter "DEFEASANCE").
For this purpose, such defeasance means that the Company shall be deemed to have
paid and discharged the entire indebtedness represented by the defeased
Securities, which shall thereafter be deemed to be "outstanding" only for the
purposes of Sections 2.4, 2.5,2.6, 2.9, 2.11, 2.12, 4.1, 4.5, 6.6, 6.7, 7.7, 7.8
and 8.2 of this Indenture and to have satisfied all its other obligations under
such series of Securities and this Indenture insofar as such series of
Securities are concerned (and the Trustee, at the expense of the Company, and,
upon written request, shall execute proper instruments acknowledging the same).
Subject to compliance with this Article VIII, the Company may exercise its
option under this Section 8.4 notwithstanding the prior exercise of its option
under Section 8.5 with respect to a series of Securities.
SECTION 8.5 COVENANT DEFEASANCE. Upon the Company's exercise under
Section 8.3 of the option applicable this Section 8.5, the Company shall be
released from its obligations under Sections 4.2 and 4.3 and Article V and such
other provisions as may be provided as contemplated by Section 2.3(a) with
respect to Securities of a particular series and with respect to the Defeased
Securities on and after the date the conditions set forth below are satisfied
(hereinafter "COVENANT DEFEASANCE"), and the Defeased Securities shall
thereafter be deemed to be not "outstanding" for the purposes of any direction,
waiver, consent or declaration or act of Holders (and the consequences if any
thereof) in connection with such covenants, but shall continue to be deemed
"outstanding" for all other purposes hereunder. For this purpose, such covenant
defeasance means that, with respect to the Defeased 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 Section or Article, 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 provisions herein or in any other document and such omission to
comply shall not constitute a Default or an Event of Default under Section 6.1
but, except as specified above, the remainder of this Indenture and such
Defeased Securities shall be unaffected thereby.
SECTION 8.6 CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE. The
following shall be the conditions to application of either Section 8.4 or
Section 8.5 to a series of outstanding Securities.
(a) The Company shall have irrevocably deposited with the Trustee, in
trust, (i) sufficient funds in the currency or currency unit in which the
Securities of such series are denominated to pay the Principal of and interest
to Stated Maturity (or redemption) on, the Debt Securities of such series, or
(ii) such amount of direct obligations of, or obligations the principal of and
interest on which are fully guaranteed by, the government which issued the
currency in which the Securities of such series are denominated, and which are
not subject to prepayment, redemption or call, as will, together with the
50
predetermined and certain income to accrue thereon without consideration of any
reinvestment thereof, be sufficient to pay when due the Principal of, and
interest to Stated Maturity (or redemption) on, the Debt Securities of such
series.
(b) The Company shall (i) have delivered an opinion of counsel that the
Holders of the Securities of such series will not recognize income, gain or loss
for United States Federal income tax purposes as a result of such defeasance,
and will be subject to tax in the same manner as if no defeasance and discharge
or covenant defeasance, as the case may be, had occurred or (ii) in the case of
an election under Section 8.4 the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that (A) the Company has received from, or
there has been published by, the Internal Revenue Service a ruling or (B) since
the date this Indenture was first executed, there has been a change in the
applicable federal income tax law, in either case to the effect that, and based
thereon such Opinion of Counsel in the United States shall confirm that, the
holders of Outstanding Securities of that particular series will not recognize
income, gain or loss for federal income tax purposes as a result of such
defeasance.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS. Without
the consent of any Holders of Securities or coupons, the Company 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 corporation to the Company
and the assumption by any such successor of the covenants of the Company
herein and in the Securities; or
(2) to add to the covenants, agreements and obligations of the
Company for the benefit of the Holders of all of the Securities or any
series thereof, or to surrender any right or power herein conferred upon
the Company; or
(3) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to Principal, to
change or eliminate any restrictions (including restrictions relating to
payment in the United States) on the payment of Principal of or any premium
or interest on Bearer Securities, to permit Bearer Securities to be issued
in exchange for Registered Securities, to permit Bearer Securities to be
issued in exchange for Bearer Securities of other authorized denominations
or to permit the issuance of Securities in uncertificated form; or
51
(4) to establish the form or terms of Securities of any series and
any related coupons as permitted by Sections 2.1 and 2.3(a), respectively;
or
(5) 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 7.8; or
(6) to cure any ambiguity, defect or inconsistency; or
(7) to add to, change or eliminate any of the provisions of this
Indenture (which addition, change or elimination may apply to one or more
series of Securities), PROVIDED that any such addition, change or
elimination shall neither (A) apply to any Security of any series created
prior to the execution of such supplemental indenture and entitled to the
benefit of such provision nor (B) modify the rights of the Holder of any
such Security with respect to such provision; or
(8) to secure the Securities; or
(9) to make any other change that does not adversely affect the
rights of any Securityholder.
SECTION 9.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS. With the
written consent of the Holders of at least a majority in aggregate Principal
Amount of the Outstanding Securities of each series affected by such
supplemental indenture, the Company and the Trustee may amend this Indenture or
the Securities of any series or 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 the Securities of such
series and any related coupons under this Indenture; PROVIDED, HOWEVER, that no
such amendment or 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 or interest on, any such Security, or reduce the
Principal Amount thereof or the rate of interest thereon or any premium
payable upon redemption thereof or reduce the amount of Principal of any
such Discount Security that would be due and payable upon a declaration of
acceleration of maturity thereof pursuant to Section 6.2, or change the
Place of Payment, or change the coin or currency in which, any Principal
of, or any installment of interest on, any such Security is payable, or
impair the right to institute suit for the enforcement of any such payment
on or after
52
the Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date);
(2) reduce the percentage in Principal Amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such amendment or 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) with
respect to the Securities of such series provided for in this Indenture;
(3) make any change in the terms of the Subordination of the
Securities in a manner adverse to the Holders of any series of outstanding
Securities; or
(4) modify any of the provisions of this Section, Section 6.4 or 6.7,
except to increase the percentage of Outstanding Securities of such series
required for such actions to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the Holder of
each Outstanding Security affected thereby.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for the consent of the Holders under this Section
9.2 to approve the particular form of any proposed amendment or supplemental
indenture, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment or supplemental indenture under this Section 9.2 becomes
effective, the Company shall mail to each Holder of the particular Securities
affected thereby a notice briefly describing the amendment.
SECTION 9.3 COMPLIANCE WITH TRUST INDENTURE ACT. Every supplemental
indenture executed pursuant to this Article shall comply with the TIA as then in
effect.
SECTION 9.4 REVOCATION AND EFFECT OF CONSENTS, WAIVERS AND ACTIONS. Until
an amendment or waiver with respect to a series of Securities becomes effective,
a consent to it or any other action by a Holder of a Security of that series
hereunder is a continuing consent by the Holder and every subsequent Holder of
that Security or portion of that Security that evidences the same obligation as
the consenting Holder's Security, even if notation of the consent, waiver or
action is not made on the Security. However, any
53
such Holder or subsequent Holder may revoke the consent, waiver or action as to
such Holder's Security or portion of the Security if the Trustee receives the
notice of revocation before the Company or an agent of the Company certifies to
the Trustee that the consent of the requisite aggregate Principal Amount of the
Securities of that series has been obtained. After an amendment, waiver or
action becomes effective, it shall bind every Holder of Securities of that
series.
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Holders entitled to consent to any amendment or
waiver with respect to a series of Securities. If a record date is fixed, then
notwithstanding the first two sentences of the immediately preceding paragraph,
those persons who were Holders of Securities of that series at such record date
(or their duly designated proxies), and only those persons, shall be entitled to
revoke any consent previously given, whether or not such persons continue to be
Holders after such record date. No such consent shall be valid or effective for
more than 90 days after such record date.
SECTION 9.5 NOTATION ON OR EXCHANGE OF SECURITIES. Securities of any
series authenticated and delivered after the execution of any supplemental
indenture with respect to such series pursuant to this Article may, and shall if
required by the Trustee, bear a notation in form approved by the Trustee as to
any matter provided for in such supplemental indenture. If the Company shall so
determine, new Securities of such series so modified as to conform, in the
opinion of the Trustee and the Board of Directors, 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 that series.
SECTION 9.6 TRUSTEE TO SIGN SUPPLEMENTAL INDENTURES. The Trustee shall
sign any supplemental indenture authorized pursuant to this Article 9 if the
amendment does not adversely affect the rights, duties, liabilities or
immunities of the Trustee. If it does, the Trustee may, but need not, sign it.
In signing such amendment, the Trustee shall be entitled to receive, and
(subject to the provisions of Section 7.1) shall be fully protected in relying
upon, an Officers' Certificate and an Opinion of Counsel stating that such
amendment is authorized or permitted by this Indenture.
SECTION 9.7 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, except
to the extent otherwise set forth thereon.
ARTICLE X
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SINKING FUNDS
SECTION 10.1 APPLICABILITY OF ARTICLE. The provisions of this Article
shall be applicable to any sinking fund for the retirement of Securities of a
series, except as otherwise specified as contemplated by Section 2.3(a) for
Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "MANDATORY SINKING FUND
PAYMENT," and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "OPTIONAL SINKING
FUND PAYMENT." If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 10.2. Each sinking fund payment shall be applied to the redemption
of Securities of any series as provided for by the terms of the Securities of
such series.
SECTION 10.2 SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES. The
Company (1) may deliver Outstanding Securities of a series with the same issue
date, interest rate and Stated Maturity (other than any previously called for
redemption), together in the case of any Bearer Securities of such series with
the same issue date, interest rate and Stated Maturity with all unmatured
coupons appertaining thereto, and (2) may apply as a credit Securities of a
series with the same issue date, interest rate and Stated Maturity 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 mandatory sinking fund payment with respect to the
Securities of such series with the same issue date, interest rate and Stated
Maturity; PROVIDED that such Securities have not been previously so credited.
Such Securities shall be received and credited for such purpose by the Trustee
at the Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.
SECTION 10.3 REDEMPTION OF SECURITIES FOR SINKING FUND. Not less than 60
days (or such shorter period as shall be acceptable to the Trustee) prior to
each sinking fund payment date for any series of Securities, the Company will
deliver to the Trustee an Officers' Certificate specifying the amount of the
next ensuing sinking fund payment for that series pursuant to the terms of that
series, the portion thereof, if any, which is to be satisfied by payment of cash
and the portion thereof, if any, which is to be satisfied by delivering and
crediting Securities of that series pursuant to Section 10.2 and will also
deliver to the Trustee any Securities to be so delivered. Not less than 30 days
before 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 3.2 and cause notice of the redemption thereof to be given
in the name of and at the expense of the Company in the manner provided in
Section 3.3. Such notice having been duly
55
given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 3.4 and 3.6.
ARTICLE XI
ACTIONS OF HOLDERS OF SECURITIES
SECTION 11.1 PURPOSES FOR WHICH MEETINGS MAY BE CALLED. A meeting of
Holders of Securities of any series may be called at any time and from time to
time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series.
SECTION 11.2 CALL, NOTICE AND PLACE OF MEETINGS. (a) The Trustee may at
any time call a meeting of Holders of Securities of any series for any purpose
specified in Section 11.1, to be held at such time and at such place in the
Borough of Manhattan, The City of New York or, for a series of Securities issued
as Bearer Securities, in London as the Trustee shall determine or, with the
approval of the Company, at any other place. Notice of every meeting of Holders
of Securities of any series, setting forth the time and the place of such
meeting and in general terms the action proposed to be taken at such meeting,
shall be given, in the manner provided in Section 13.2, not less than 21 nor
more than 180 days prior to the date fixed for the meeting.
(b) In case at any time the Company or the Holders of at least 10% in
Principal Amount of the Outstanding Securities of any series shall have
requested the Trustee to call a meeting of the Holders of Securities of such
series for any purpose specified in Section 11.1, by written request setting
forth in reasonable detail the action proposed to be taken at the meeting, and
the Trustee shall not have made the first publication of the notice of such
meeting within 21 days after receipt of such request or shall not thereafter
proceed to cause the meeting to be held as provided herein, then the Company or
the Holders of Securities of such series in the amount above specified, as the
case may be, may determine the time and the place in the Borough of Manhattan,
The City of New York, or for a series of Securities issued as Bearer Securities,
in London, or in such other place as shall be determined and approved by the
Company, for such meeting and may call such meeting for such purposes by giving
notice thereof as provided in subsection (a) of this Section 11.2.
SECTION 11.3 PERSONS ENTITLED TO VOTE AT MEETINGS. To be entitled to vote
at any meeting of Holders of Securities of any series, a person shall be (1) a
Holder of one or more Outstanding Securities of such series, or (2) a person
appointed by an instrument in writing as proxy for a Holder or Holders of one or
more Outstanding Securities of such series by such Holder or Holders. The only
persons who shall be entitled to be present or to speak at any meeting of
Holders of Securities of any series shall be the persons
56
entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its counsel.
SECTION 11.4 QUORUM; ACTION. The persons entitled to vote a majority in
Principal Amount of the Outstanding Securities of a series shall constitute a
quorum for a meeting of Holders of Securities of such series. In the absence of
a quorum within 30 minutes of the time appointed for any such meeting, the
meeting shall, if convened at the request of Holders of Securities of such
series, be dissolved. In any other case, the meeting may be adjourned for a
period determined by the chairman of the meeting prior to the adjournment of
such meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period determined by the
chairman of the meeting prior to the adjournment of such adjourned meeting.
Notice of the reconvening of any adjourned meeting shall be given as provided in
Section 11.2(a), except that such notice need be given only once not less than
five days prior to the date on which the meeting is scheduled to be reconvened.
Notice of the reconvening of an adjourned meeting shall state expressly the
percentage, as provided above, of the principal amount of the Outstanding
Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 9.2, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted by the affirmative vote of the Holders of a majority
in Principal Amount of the Outstanding Securities of that series; PROVIDED,
HOWEVER, that, except as limited by the proviso to Section 9.2, any resolution
with respect to any request, demand, authorization, direction, notice, consent,
waiver or other action which this Indenture expressly provides may be made,
given or taken by the Holders of a specified percentage, which is less than a
majority, in Principal Amount of the Outstanding Securities of a series may be
adopted at a meeting or an adjourned meeting duly reconvened and at which a
quorum is present as aforesaid by the affirmative vote of the Holders of such
specified percentage in Principal Amount of the Outstanding Securities of that
series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related coupons,
whether or not present or represented at the meeting.
SECTION 11.5 DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF
MEETINGS. (a) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities of a series in regard to proof of the holding
of Securities of such series and of the appointment of proxies and in regard to
the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall
57
deem appropriate. Except as otherwise permitted or required by any such
regulations, the holding of Securities shall be proved in the manner specified
in Section 11.7 and the appointment of any proxy shall be proved in the manner
specified in Section 11.7 or by having the signature of the person executing the
proxy witnessed or guaranteed by any trust company, bank or banker authorized by
Section 11.7 to certify to the holding of Bearer Securities. Such regulations
may provide that written instruments appointing proxies, regular on their face,
may be presumed valid and genuine without the proof specified in Section 11.7 or
other proof.
(b) The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of Securities as provided in Section 11.2(b), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the persons entitled to vote a majority in Principal Amount of the
Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy shall
be entitled to vote with respect to the Outstanding Securities of such series
held or represented by him; PROVIDED, HOWEVER, that no vote shall be cast or
counted at any meeting in respect to any Security challenged as not Outstanding
and ruled by the chairman of the meeting to be not Outstanding. The chairman of
the meeting shall have no right to vote, except as a Holder of a Security of
such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 11.2 at which a quorum is present may be adjourned from time
to time by persons entitled to vote a majority in Principal Amount of the
Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
SECTION 11.6 COUNTING VOTES AND RECORDING ACTION OF MEETINGS. The vote
upon any resolution submitted to any meeting of Holders of Securities of any
series shall be by written ballots on which shall be subscribed signatures of
the Holders of Securities of such series or of their representatives by proxy
and the Principal Amounts and serial numbers of the Outstanding Securities of
such series held or represented by them. The permanent chairman of the meeting
shall appoint two inspectors of votes who shall count all votes cast at the
meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in duplicate of all
votes cast at the meeting. A record, at least in duplicate, of the proceedings
of each meeting of Holders of Securities of any series shall be prepared by the
secretary of the meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken thereat and
affidavits by one or more persons having knowledge of the facts setting forth a
copy of the notice of the meeting and showing that said notice
58
was given as provided in Section 11.2 and, if applicable, Section 11.4. Each
copy shall be signed and verified by the affidavits of the permanent chairman
and secretary of the meeting and one such copy shall be delivered to the
Company, and another to the Trustee to be preserved by the Trustee, the latter
to have attached thereto the ballots voted at the meeting. Any record so signed
and verified shall be conclusive evidence of the matters therein stated.
SECTION 11.7 ACTIONS OF HOLDERS GENERALLY. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders may be embodied in and evidenced
by one or more instruments of substantially similar tenor signed by such Holders
in person or by an agent duly appointed in writing. If Securities of a series
are issuable as Bearer Securities, any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders of such series may, alternatively, be embodied in
and evidenced by the record of Holders of Securities of such series voting in
favor thereof, either in person or by proxies duly appointed in writing, at any
meeting of Holders of Securities of such series duly called and held in
accordance with the provisions of this Article, or a combination of such
instruments and any such record. Except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments or record
or both are delivered to the Trustee and, where it is hereby expressly required,
to the Company. Proof of execution of any such instrument or of a writing
appointing any such agent, or of the holding by any person of a Security, shall
be sufficient for any purpose of this Indenture and (subject to Section 7.1)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section. The record of any meeting of Holders of Securities
shall be proved in the manner provided in Section 11.6.
(b) The fact and date of the execution by any person of any such
instrument or writing, or the authority of the persons executing the same, may
be proved in any reasonable manner which the Trustee deems sufficient.
(c) The Principal Amount and serial numbers of Registered Securities held
by the person, and the date of holding the same, shall be proved by the books of
the Registrar.
(d) The Principal Amount and serial numbers of Bearer Securities held by
any person, and the date of holding the same, may be proved by the production of
such Bearer Securities or by a certificate executed by any trust company, bank,
banker or other depositary, wherever situated, as depositary, if such
certificate shall be deemed by the Trustee to be satisfactory, showing that at
the date therein mentioned such person had on deposit with such depositary, or
exhibited to it, the Bearer Securities therein described; or such facts may be
proved by the certificate or affidavit of the person holding such Bearer
Securities, if such certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Company may assume that such ownership of any
59
Bearer Security continues until (1) another certificate or affidavit bearing a
later date issued in respect of the same Bearer Security is produced, or (2)
such Bearer Security is produced to the Trustee by some other person, or (3)
such Bearer Security is surrendered in exchange for a Registered Security, or
(4) such Bearer Security is no longer Outstanding. The Principal Amount and
serial numbers of Bearer Securities held by any person, and the date of holding
the same, may also be proved in any other manner which the Trustee deems
sufficient.
(e) Any request, demand, authorization, direction, notice, consent, waiver
or other act of the Holder of any Security in accordance with this Section 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.
(f) If the Company shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other act in accordance
with this Section, the Company may, at its option, by or pursuant to an
Officers' Certificate delivered to the Trustee, fix in advance a record date for
the determination of Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or such other act, but the
Company shall have no obligation to do so. If such a record date is fixed, such
request, demand, authorization, direction, notice, consent, waiver or other act
may be given before or after such record date, but only the Holders of record at
the close of business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite percentage of
Outstanding Securities or Outstanding Securities of a series, as the case may
be, have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other act, and for that
purpose the Outstanding Securities or Outstanding Securities of the series, as
the case may be, shall be computed as of such record date; PROVIDED, that no
such authorization, agreement or consent by the Holders on the record date shall
be deemed effective unless such request, demand, authorization, direction,
notice, consent, waiver or other act shall become effective pursuant to the
provisions of clause (a) of this Section 11.7 not later than six months after
the record date.
ARTICLE XII
SUBORDINATION
SECTION 12.1 SECURITIES SUBORDINATE TO SENIOR INDEBTEDNESS. Unless
otherwise specified as contemplated by Section 2.3(a), the Securities shall be
subordinated to Senior Indebtedness as set forth in this Article XII. The
Company covenants and agrees, and each Holder of a Security of any series by
such Holder's acceptance thereof likewise covenants and agrees, that, to the
extent and in the manner hereinafter set forth in this
60
Article XII, the indebtedness represented by the Securities and the payment of
the Principal Amount, interest and such other amounts as provided for in Section
2.3(a), if any, in respect of each and all of the Securities are hereby
expressly made subordinate and subject in right of payment to the prior payment
in full of all Senior Indebtedness.
"SENIOR INDEBTEDNESS" means the principal of (and premium, if any) and
interest on (including interest accruing after the filing of a petition
initiating any proceeding pursuant to any Bankruptcy Law, but only to the extent
allowed or permitted to the holder of such Debt of the Company against the
bankruptcy or any other insolvency estate of the Company in such proceeding) and
other amounts due on or in connection with any Debt of the Company incurred,
assumed or guaranteed by the Company, whether outstanding on the date of the
Indenture or thereafter incurred, assumed or guaranteed and all renewals,
extensions and refundings of any such Debt of the Company; provided, however,
that the following will not constitute Senior Indebtedness:
(a) any Debt of the Company as to which, in the instrument creating
the same or evidencing the same or pursuant to which the same is
outstanding, it is expressly provided that such Debt of the Company shall
be subordinated to any other Debt of the Company, unless such Debt of the
Company expressly provides that such Debt of the Company shall be senior in
right of payment to the Securities;
(b) any Debt of the Company which by its terms states that such Debt
of the Company shall not be senior in right of payment to the Securities;
(c) Debt of the Company in respect of the Securities;
(d) any Debt of the Company to any Affiliate of the Company or a
Subsidiary of the Company; and
(e) any Debt of the Company issued pursuant to that certain
Indenture, dated as of May __, 1997, between the Company, and , as Trustee,
relating to subordinated debt securities of the Company (which debt securities
shall rank junior in right of payment to the Securities).
SECTION 12.2 PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC. Upon any
distribution of assets of the Company in the event of:
(a) any insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relative to the Company or to its
creditors, as such, or to its assets, or
(b) any liquidation, dissolution or other winding up of the Company,
whether voluntary or involuntary and whether or not involving insolvency or
bankruptcy, or
61
(c) any assignment for the benefit of creditors or any other
marshalling of assets and liabilities of the Company,
then and in such event
(1) the holders of Senior Indebtedness shall be entitled to receive
payment in full of all amounts due or to become due on or in respect of all
Senior Indebtedness, or provision shall be made for such payment in cash,
before the Holders of the Securities are entitled to receive any payment on
account of the Principal Amount, interest or such other amounts as may be
provided for in Section 2.3(a), if any, in respect of the Securities; and
(2) any payment or distribution of assets of the Company of any kind
or character, whether in cash, property or securities, by set-off or
otherwise, to which the Holders or the Trustee would be entitled but for
the provisions of this Article XII, including any such payment or
distribution which may be payable or deliverable by reason of the payment
of any other Debt of the Company being subordinated to the payment of the
Securities, shall be paid by the liquidating trustee or agent or other
person making such payment or distribution, whether a trustee in
bankruptcy, a receiver or liquidating trustee or otherwise, directly to the
holders of Senior Indebtedness or their representative or representatives
or to the trustee or trustees under any indenture under which any
instruments evidencing any of such Senior Indebtedness may have been
issued, ratably according to the aggregate amounts remaining unpaid on
account of the principal of, and premium, if any, and interest on the
Senior Indebtedness held or represented by each, to the extent necessary to
make payment in full of all Senior Indebtedness remaining unpaid, after
giving effect to any concurrent payment or distribution to the holders of
such Senior Indebtedness.
In the event that, notwithstanding the foregoing provisions of this Section
12.2, the Trustee or the Holder of any Security shall receive any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, including any such payment or distribution which may be
payable or deliverable by reason of the payment of any other Debt of the Company
being subordinated to the payment of the Securities, before all Senior
Indebtedness is paid in full or payment thereof provided for, and if such fact
shall then have been made known to the Trustee as provided in Section 12.10, or,
as the case may be, such Holder, then and in such event such payment or
distribution shall be paid over or delivered forthwith to the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other
person making payment or distribution of assets of the Company for application
to the payment of all Senior Indebtedness remaining unpaid, to the extent
necessary to pay all Senior Indebtedness in full, after giving effect to any
concurrent payment or distribution to or for the holders of Senior Indebtedness.
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For purposes of this Article XII only, the words "CASH, PROPERTY OR
SECURITIES," or any combination thereof, shall not be deemed to include shares
of Capital Stock of the Company as reorganized or readjusted, or securities of
the Company or any other corporation provided for by a plan of reorganization or
readjustment the payment of which is subordinated, at least to the extent
provided in this Article XII with respect to the Securities, to the payment of
all Senior Indebtedness which may at the time be outstanding; PROVIDED, HOWEVER,
that (i) Senior Indebtedness is assumed by the new corporation, if any,
resulting from any such reorganization or readjustment, and (ii) the rights of
the holders of the Senior Indebtedness are not, without the consent of such
holders, altered, in any manner adverse to such holders, by such reorganization
or readjustment.
The consolidation of the Company with, or the merger of the Company into,
another corporation or the liquidation or dissolution of the Company following
the conveyance or transfer of all or substantially all of its assets to another
person upon the terms and conditions set forth in Article V shall not be deemed
a dissolution, winding up, liquidation, reorganization, assignment for the
benefit of creditors or marshalling of assets and liabilities of the Company for
the purposes of this Section 12.2 if the corporation formed by such
consolidation or into which the Company is merged or the person which acquires
by conveyance or transfer all or substantially all of the assets of the Company,
as the case may be, shall, as a part of such consolidation, merger, conveyance
or transfer, comply with the conditions set forth in Article V.
SECTION 12.3 ACCELERATION OF SECURITIES. In the event that any Securities
are declared due and payable before their Stated Maturity pursuant to Section
6.2, then and in such event the Company shall promptly notify holders of Senior
Indebtedness of such acceleration. The Company may not pay the Securities until
120 days have passed after such acceleration occurs and may thereafter pay the
Securities if this Article XII permits the payment at that time.
In the event that, notwithstanding the foregoing, the Company shall make
any payment to the Trustee or the Holder of any Securities prohibited by the
foregoing provisions of this Section 12.3, and if such facts then shall have
been known or thereafter shall have been made known to the Trustee (as provided
in Section 12.10) or to such Holder, as the case may be, pursuant to the terms
of this Indenture, then and in such event such payment shall be paid over and
delivered forthwith to the Company by or on behalf of the person holding such
payment for the benefit of the holders of Senior Indebtedness.
The provisions of this Section 12.3 shall not apply to any payment with
respect to which Section 12.2 would be applicable.
SECTION 12.4 DEFAULT IN SENIOR INDEBTEDNESS. The Company may not make any
payment of the Principal Amount, interest or other such amounts as may be
provided for
63
in Section 2.3(a), if any, in respect of the Securities and may not acquire any
Securities for cash or property (other than for Capital Stock of the Company)
if:
(1) a default on Senior Indebtedness occurs and is continuing that
permits holders of such Senior Indebtedness to accelerate its maturity; and
(2) the default is the subject of judicial proceedings or the Company
receives a notice of default thereof from any person who may give such
notice pursuant to the instrument evidencing or document governing such
Senior Indebtedness. If the Company receives any such notice, then a
similar notice received within nine months thereafter relating to the same
default on the same issue of Senior Indebtedness shall not be effective for
purposes of this Section 12.4.
The Company may resume payments on the Securities and may acquire
Securities if and when:
(A) the default is cured or waived; or
(B) 120 or more days pass after the receipt by the Company of the
notice described in clause (2) above and the default is not then the
subject of judicial proceedings; and
this Article XII otherwise permits the payment or acquisition at that time.
In the event that, notwithstanding the foregoing, the Company shall make
any payment to the Trustee or the Holder of any Security prohibited by the
foregoing provisions of this Section 12.4, and if such fact then shall have been
known or thereafter shall have been made known to the Trustee as provided in
Section 12.10 or such Holder, as the case may be, pursuant to the terms of this
Indenture, then and in such event such payment shall be paid over and delivered
forthwith to the Company by or on behalf of the person holding such payment for
the benefit of the holders of the Senior Indebtedness.
The provisions of this Section 12.4 shall not apply to any payment with
respect to which Section 12.2 would be applicable.
SECTION 12.5 PAYMENT PERMITTED IF NO DEFAULT. Nothing contained in this
Article XII 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 case,
proceeding, dissolution, liquidation or other winding up, assignment for the
benefit of creditors or other marshalling of assets and liabilities of the
Company referred to in Section 12.2 or under the conditions described in Section
12.3 or 12.4, from making payments at any time of the Principal Amount, interest
or such other amounts as may be provided for in Section
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2.3(a), if any, as the case may be, in respect of the Securities, or (b) the
application by the Trustee or the retention by any Holder of any money deposited
with it hereunder to the payment of or on account of the Principal Amount,
interest or such other amounts as may be provided for in Section 2.3(a), if any,
as the case may be, in respect of the Securities if the Trustee did not have, at
the time provided in the proviso to the first paragraph of Section 12.10, notice
that such payment would have been prohibited by the provisions of this Article
XII.
SECTION 12.6 SUBROGATION RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS.
Subject to the payment in full of all Senior Indebtedness, the Holders of the
Securities shall be subrogated to the extent of the payments or distributions
made to the holders of such Senior Indebtedness pursuant to the provisions of
this Article XII to the rights of the holders of such Senior Indebtedness to
receive payments or distributions of cash, property or securities applicable to
the Senior Indebtedness until the Principal Amount, interest or such other
amounts as provided for in Section 2.3(a), if any, as the case may be, in
respect of the Securities shall be paid in full. For purposes of such
subrogation, no payments or distributions to the holders of the Senior
Indebtedness of any cash, property or securities to which the Holders of the
Securities or the Trustee would be entitled except for the provisions of this
Article XII, and no payments pursuant to the provisions of this Article XII to
the Company or to the holders of Senior Indebtedness by Holders of the
Securities or the Trustee, shall, as between the Company, its creditors other
than holders of Senior Indebtedness and the Holders of the Securities, be deemed
to be a payment or distribution by the Company to or on account of the Senior
Indebtedness.
SECTION 12.7 PROVISION SOLELY TO DEFINE RELATIVE RIGHTS. The provisions
of this Article XII are and are intended solely for the purpose of defining the
relative rights of the Holders of the Securities, on one hand, and the holders
of Senior Indebtedness, on the other hand. Nothing contained in this Article XII
or elsewhere in this Indenture or in the Securities is intended to or shall:
(a) impair, as between the Company and the Holders of the Securities,
the obligation of the Company, which is absolute and unconditional, to pay
to the Holders of the Securities the Principal Amount, interest or such
other amounts as may be provided for in Section 2.3(a), if any, as the case
may be, in respect of the Securities as and when the same shall become due
and payable in accordance with the terms of the Securities and this
Indenture and which, subject to the rights under this Article XII of the
holders of Senior Indebtedness, is intended to rank equally with all other
general obligations of the Company; or
(b) affect the relative rights against the Company of the Holders of
the Securities and creditors of the Company other than holders of Senior
Indebtedness; or
65
(c) prevent the Trustee or the Holder of any Security from exercising
all remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article XII of the
holders of Senior Indebtedness to receive cash, property or securities
otherwise payable or deliverable to the Trustee or such Holder.
SECTION 12.8 TRUSTEE TO EFFECTUATE SUBORDINATION. Each Holder of a
Security 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 appropriate
to effectuate the subordination provided in this Article XII and appoints the
Trustee such Holder's attorney-in-fact for any and all such purposes.
SECTION 12.9 NO WAIVER OF SUBORDINATION PROVISIONS. No right of any
present or future holder of any Senior Indebtedness to enforce subordination as
herein provided shall at any time in any way be prejudiced or impaired by any
act or failure to act on the part of the Company or by any act or failure to
act, in good faith, by any such holder, or by any noncompliance by the Company
with the terms, provisions and covenants of this Indenture, regardless of any
knowledge thereof any such holder may have or be otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph, the
holders of Senior Indebtedness may, at any time and from time to time, without
the consent of, or notice to, the Trustee or the Holders of the Securities,
without incurring responsibility to the Holders of the Securities and without
impairing or releasing the subordination provided in this Article XII or the
obligations hereunder of the Holders of the Securities to the holders of Senior
Indebtedness, do any one or more of the following: (i) change the manner, place
or terms of payment or extend the time of payment of, or renew or alter, Senior
Indebtedness, or otherwise amend or supplement in any manner Senior Indebtedness
or any instrument evidencing the same or any agreement under which Senior
Indebtedness is outstanding; (ii) sell, exchange, release or otherwise dispose
of any property pledged, mortgaged or otherwise securing Senior Indebtedness;
(iii) release any person liable in any manner for the collection of Senior
Indebtedness and (iv) exercise or refrain from exercising any rights against the
Company or any other person.
SECTION 12.10 NOTICE TO TRUSTEE. The Company shall give prompt written
notice to the Trustee of any fact known to the Company which would prohibit the
making of any payment to or by the Trustee in respect of the Securities.
Failure to give such notice shall not affect the subordination of the Securities
to Senior Indebtedness. Notwithstanding the provisions of this Article XII or
any other provision of this Indenture, the Trustee shall not be charged with
knowledge of the existence of any facts which would prohibit the making of any
payment to or by the Trustee in respect of the Securities, unless and until the
Trustee shall have received written notice thereof at the address specified in
Section 13.2 from the Company or a holder of Senior Indebtedness or from
66
any trustee or agent therefor; and, prior to the receipt of any such written
notice, the Trustee, subject to the provisions of Section 7.1, shall be entitled
in all respects to assume that no such facts exist; provided, however, that if a
Trust Officer of the Trustee shall not have received, at least three Business
Days prior to the date upon which by the terms hereof any such money may become
payable for any purpose (including, without limitation, the payment of the
Principal Amount, interest or such other amounts as may be provided for in
Section 2.3(a), if any, as the case may be, in respect of any Security), the
notice with respect to such money provided for in this Section 12.10, then,
anything herein contained to the contrary notwithstanding, the Trustee shall
have full power and authority to receive such money and to apply the same to the
purpose for which such money was received and shall not be affected by any
notice to the contrary which may be received by it within three Business Days
prior to such date.
Subject to the provisions of Section 7.1, the Trustee shall be entitled to
rely on the delivery to it of a written notice by a person representing himself
to be a holder of Senior Indebtedness (or a trustee or agent on behalf of such
holder) to establish that such notice has been given by a holder of Senior
Indebtedness (or a trustee or agent on behalf of any such holder). 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 payment or distribution pursuant to this Article XII, 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, the extent to which such person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
person under this Article XII, and if such evidence is not furnished, the
Trustee may defer any payment which it may be required to make for the benefit
of such person pursuant to the terms of this Indenture pending judicial
determination as to the right of such person to receive such payment.
SECTION 12.11 RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING
AGENT. Upon any payment or distribution of assets of the Company referred to
in this Article XII, the Trustee, subject to the provisions of Section 7.1, and
the Holders of the Securities shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in which such insolvency,
bankruptcy, receivership, liquidation, reorganization, dissolution, winding up
or similar case or proceeding is pending, or a certificate of the trustee in
bankruptcy, liquidating trustee, custodian, receiver, assignee for the benefit
of creditors, agent or other person making such payment or distribution,
delivered to the Trustee or to the Holders of Securities, for the purpose of
ascertaining the persons entitled to participate in such payment or
distribution, the holders of 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
XII.
67
SECTION 12.12 TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR INDEBTEDNESS.
The Trustee shall not be deemed to owe any fiduciary duty to the holders of
Senior Indebtedness and shall not be liable to any such holders if the Trustee
shall in good faith mistakenly pay over or distribute to Holders of Securities
or to the Company or to any other person cash, property or securities to which
any holders of Senior Indebtedness shall be entitled by virtue of this Article
XII or otherwise. The Trustee shall not be charged with knowledge of the
existence of Senior Indebtedness or of any facts that would prohibit any payment
hereunder unless a Trust Officer of the Trustee shall have received notice to
that effect at the address of the Trustee set forth in Section 13.2. With
respect to the holders of Senior Indebtedness, the Trustee undertakes to perform
or to observe only such of its covenants or obligations as are specifically set
forth in this Article XII and no implied covenants or obligations with respect
to holders of Senior Indebtedness shall be read into this Indenture against the
Trustee.
SECTION 12.13 RIGHTS OF TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS;
PRESERVATION OF TRUSTEE'S RIGHTS. The Trustee in its individual capacity shall
be entitled to all the rights set forth in this Article XII with respect to any
Senior Indebtedness which may at any time be held by it, to the same extent as
any other holder of Senior Indebtedness, and nothing in this Indenture shall
deprive the Trustee of any of its rights as such holder.
Nothing in this Article XII shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 7.7.
SECTION 12.14 ARTICLE XII APPLICABLE TO PAYING AGENTS. The term "Trustee"
as used in this Article XII shall (unless the context otherwise requires) be
construed as extending to and including the Paying Agent within its meaning as
fully for all intents and purposes as if the Paying Agent were named in this
Article XII in addition to or in place of the Trustee; provided, however, that
Sections 12.10 and 12.12 shall not apply to the Company or any Affiliate of the
Company if it or such Affiliate acts as Paying Agent.
ARTICLE XIII
MISCELLANEOUS
SECTION 13.1 TRUST INDENTURE ACT CONTROLS. If any provision of this
Indenture limits, qualifies or conflicts with another provision hereof which is
required to be included in this Indenture by the TIA, the required provision
shall control.
SECTION 13.2 NOTICES. Any notice or communication shall be in writing and
delivered in person or mailed by first-class mail, postage prepaid; PROVIDED,
that any notice or communication by and among the Trustee and the Company may be
made by telecopy or other commercially accepted electronic means and shall be
effective upon
68
receipt thereof and shall be confirmed in writing, mailed by first-class mail,
postage prepaid, addressed as follows:
if to the Company:
Xxxxxx Industries, Inc.
00000 Xxxxxxx Xxxxxxxxx
Xxxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: [ ]
if to the Trustee:
[ ]
Attention: [ ]
The Company or the Trustee by notice to the other may designate additional
or different addresses for subsequent notices or communications.
Any notice or communication given to a Holder of Registered Securities
shall be mailed to such Securityholder at the Securityholder's address as it
appears on the registration books of the Registrar and shall be sufficiently
given if so mailed within the time prescribed. Notice shall be sufficiently
given to Holders of Bearer Securities if published in an Authorized Newspaper in
The City of New York and in such other city or cities as may be specified in
such Securities on a Business Day at least twice, the first such publication to
be not earlier than the earliest date, and not later than the latest date,
prescribed for the giving of such notice.
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.
Failure to mail a notice or communication to a Securityholder or any defect
in it shall not affect its sufficiency with respect to other Holders of
Securities of the same series. If a notice or communication is mailed in the
manner provided above, it is duly given, whether or not received by the
addressee.
If the Company mails a notice or communication to the Holders of Securities
of a particular series, it shall mail a copy to the Trustee and each Registrar,
co-registrar or Paying Agent, as the case may be, with respect to such series.
69
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give notice to Holders of
Registered Securities by mail, then such notification as shall be made with the
acceptance of the Trustee shall constitute a sufficient notification for every
purpose hereunder. In any case where notice to Holders of Registered Securities
is given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder of a Registered Security shall affect
the sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice to Holders of Bearer Securities
given as provided herein.
In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither the failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of any notice to Holders
of Registered Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent or waiver
required or permitted under this Indenture shall be in the English language,
except that any published notice may be in an official language of the country
of publication
SECTION 13.3 COMMUNICATION BY HOLDERS WITH OTHER HOLDERS. Securityholders
may communicate pursuant to TIA Section 312(b) with other Securityholders with
respect to their rights under this Indenture or the Securities. The Company and
the Trustee, the Registrar or the Paying Agent with respect to a particular
series of Securities, and anyone else, shall have the protection of TIA Section
312(c).
SECTION 13.4 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT. Upon any
request or application by the Company to the Trustee to take any action under
this Indenture, the Company shall furnish to the Trustee:
(1) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 13.5 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION. Each
Officers' Certificate or Opinion of Counsel with respect to compliance with a
covenant or condition provided for in this Indenture shall include:
70
(1) statement that each person making such Officers' Certificate or
Opinion of Counsel has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
Officers' Certificate or Opinion of Counsel are based;
(3) a statement that, in the opinion of each such person, he has made
such examination or investigation as is necessary to enable such person to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement that, in the opinion of such person, such covenant or
condition has been complied with.
SECTION 13.6 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 13.7 RULES BY TRUSTEE, PAYING AGENT AND REGISTRAR. With respect
to the Securities of a particular series, the Trustee with respect to such
series of Securities may make reasonable rules for action by or a meeting of
Holders of such series of Securities. With respect to the Securities of a
particular series, the Registrar and the Paying Agent with respect to such
series of Securities may make reasonable rules for their functions.
SECTION 13.8 LEGAL HOLIDAYS. A "LEGAL HOLIDAY" is any day other than a
Business Day. If any specified date (including an Interest Payment Date,
Redemption Date or Stated Maturity of any Security, or a date for giving notice)
is a Legal Holiday at any Place of Payment or place for giving notice, then
(notwithstanding any other provision of this Indenture or of the Securities or
coupons other than a provision in the Securities of any series which
specifically states that such provision shall apply in lieu of this Section)
payment of interest or Principal need not be made at such Place of Payment, or
such other action need not be taken, on such date, but the action shall be taken
on the next succeeding day that is not a Legal Holiday 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 or such other date and to the extent
applicable no Original Issue Discount or interest, if any, shall accrue for the
intervening period.
SECTION 13.9 GOVERNING LAW AND JURISDICTION. THIS INDENTURE AND THE
SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE
OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. THE COMPA-
71
NY, THE TRUSTEE, AND EACH HOLDER OF A SECURITY (BY ACCEPTANCE THEREOF) THEREBY,
(I) SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE FEDERAL AND NEW YORK STATE
COURTS LOCATED IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN CONNECTION
WITH ANY SUIT, ACTION OR PROCEEDING RELATED TO THIS INDENTURE, (II) IRREVOCABLY
WAIVES ANY DEFENSE OF LACK OF PERSONAL JURISDICTION IN SUCH SUITS AND (III)
IRREVOCABLY WAIVES TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER
APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING
OF VENUE OF ANY SUIT, ACTION OR PROCEEDING BROUGHT IN THE FEDERAL AND NEW YORK
STATE COURTS LOCATED IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK AND (C)
THAT SUCH SUIT, ACTION OR PROCEEDING HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
SECTION 13.10 NO RECOURSE AGAINST OTHERS. A director, officer, employee
or stockholder, as such, of the Company shall not have any liability for any
obligations of the Company under the Securities or this Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Holder of such Security shall waive and
release all such liability. The waiver and release shall be part of the
consideration for the issue of the Securities.
SECTION 13.11 SUCCESSORS. All agreements of the Company in this Indenture
and the Securities shall bind its successor. All agreements of the Trustee in
this Indenture shall bind its successor.
SECTION 13.12 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 13.13 BENEFITS OF INDENTURE. Nothing in this Indenture or in the
Securities, express or implied, shall give to any person, other than the parties
hereto and their successors hereunder and the Holders of Securities, any
benefits or any legal or equitable right, remedy or claim under this Indenture.
SECTION 13.14 MULTIPLE ORIGINALS. The parties may sign any number of
copies of this Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement. One signed copy is enough to prove
this Indenture.
72
XXXXXX INDUSTRIES, INC.
By:
-------------------------------------
Name:
Title:
Attest:
--------------------------------------
Name:
Title:
[ ]
as Trustee
By
-------------------------------------
Name:
Title:
Attest:
--------------------------------------
Name:
Title:
73
EXHIBIT A
CERTIFICATE
This is to certify that, based on certificates we have received from our
member organizations substantially in the form set out in the Indenture relating
to the above-captioned Securities, as of the date hereof, U.S.$________principal
amount of the above-captioned Securities acquired from Xxxxxx Industries, Inc.
(i) is owned by persons that are not United States persons (as defined below),
(ii) is owned by United States persons that are (a) foreign branches of United
States financial institutions (as defined in United States Treasury Regulations
Section 1.165-12(c)(1)(v) ("financial institutions")) purchasing for their own
account or for resale or (b) United States persons who acquired the Securities
through foreign branches of United States financial institutions and who hold
the Securities through such financial institutions on the date hereof (and in
the case of either clause (a) or (b), each financial institution has agreed for
the benefit of Xxxxxx Industries, Inc. to comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the United States Internal Revenue Code of
1986, as amended, and the regulations thereunder) or (iii) is owned by financial
institutions for purposes of resale during the restricted period (as defined in
United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)). Financial
institutions described in clause (iii) of the preceding sentence (whether or not
also described in clause (i) or (ii)) have certified that they have not acquired
the Securities for purposes of resale directly or indirectly to United States
persons or to persons within the United States or its possessions.
As used in this Certificate, "United States persons" means citizens or
residents of the United States, corporations, partnerships or other entities
created or organized in or under the laws of the United States or any political
subdivision thereof or estates or trusts the income of which is subject to
United States Federal income taxation regardless of the source; "United States"
means the United States of America (including the States and the District of
Columbia), its territories, its possessions and other areas subject to its
jurisdiction; and its "possessions" include Puerto Rico, the U.S. Virgin
Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands.
We further certify that (i) we are not making available herewith for
exchange any portion of the Temporary Global Bearer Security excepted in such
certificates and (ii) as of the date hereof, we have not received any
notification from any of our member organizations to the effect that the
statements made by such member organizations with respect to any portion of the
part submitted herewith for exchange are no longer true and cannot be relied
upon as of the date hereof.
We understand that this certificate is required in connection with certain
tax laws of the United States. In connection therewith, if administrative or
legal proceedings are commenced or threatened in connection with which this
certificate is or would be
74
relevant, we irrevocably authorize you to produce this certificate to any
interested party in such proceedings. We agree to retain each statement
provided by a member organization for a period of four calendar years following
the year in which the statement is received.
Dated: , 19 *
--------- ---
*To be dated no
earlier than the
Exchange Date.
[XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, BRUSSELS OFFICE,
AS OPERATOR OF THE EUROCLEAR
CLEARANCE SYSTEM]
[CEDEL BANK SOCIETE ANONYME]
"
------------------------------
75
