1
EXHIBIT 4(q)
XXXXXXX XXXXX XXXXXX HOLDINGS INC.
to
THE CHASE MANHATTAN BANK,
Trustee
===========
FORM OF
FORWARD CONTRACT AND INDENTURE
WITH RESPECT TO
COMMON STOCK OF
===========
Dated as of , 1999
2
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101 Definitions....................................................1
SECTION 102 Compliance Certificates and Opinions...........................8
SECTION 103 Form of Documents Delivered to Trustee.........................9
SECTION 104 Acts of Holders...............................................10
SECTION 105 Notices, Etc., to Trustee and Company.........................10
SECTION 106 Notice to Holders; Waiver.....................................11
SECTION 107 Conflict with Trust Indenture Act.............................11
SECTION 108 Effect of Headings and Table of Contents......................11
SECTION 109 Successors and Assigns........................................11
SECTION 110 Separability Clause...........................................12
SECTION 111 Benefits of Indenture.........................................12
SECTION 112 Governing Law.................................................12
SECTION 113 Legal Holidays................................................12
ARTICLE II
SECURITY FORMS
SECTION 201 Forms Generally...............................................12
SECTION 202 Definitive Securities.........................................13
SECTION 203 Form of Trustee's Certificate of Authentication...............13
SECTION 204 Securities in Global Form.....................................13
ARTICLE III
THE SECURITIES
SECTION 301 Amount to be Issued...........................................14
SECTION 302 Execution, Authentication, Delivery and Dating................14
SECTION 303 Global Securities; Temporary Securities.......................15
SECTION 304 Registration, Registration of Transfer and Exchange...........17
SECTION 305 Mutilated, Destroyed, Lost and Stolen Securities..............18
SECTION 306 Persons Deemed Owners.........................................19
SECTION 307 Cancellation..................................................19
SECTION 308 Yield Enhancement Payments....................................19
ARTICLE IV
PAYMENT AT MATURITY, ETC.
SECTION 401 Satisfaction and Discharge of Indenture.......................21
i
3
SECTION 402 Maturity......................................................22
SECTION 403 Dilution Adjustments..........................................22
SECTION 404 Adjustment for Consolidation, Merger or Other Reorganization
Event.........................................................26
SECTION 405 Adjustments of Exchange Rate..................................27
ARTICLE V
REMEDIES
SECTION 501 Acceleration Events...........................................27
SECTION 502 Acceleration of Maturity......................................28
SECTION 503 Taxes.........................................................29
SECTION 504 Treatment of Forward Contract.................................29
SECTION 505 Notices.......................................................29
SECTION 506 Collection of Amounts Owed and Suits for Enforcement
by Trustee ...................................................29
SECTION 507 Trustee May Enforce Claims Without Possession of Securities...30
SECTION 508 Application of Money Collected................................30
SECTION 509 Limitation on Suits...........................................31
SECTION 510 Restoration of Rights and Remedies............................31
SECTION 511 Rights and Remedies Cumulative................................31
SECTION 512 Delay or Omission Not Waiver..................................32
SECTION 513 Control by Holders............................................32
SECTION 514 Waiver of Past Defaults.......................................32
SECTION 515 Waiver of Stay or Extension Laws..............................33
SECTION 516 Filing Proofs of Claim........................................33
SECTION 517 Unconditional Right of Holders to Receive Payments............34
SECTION 518 Restoration of Rights and Remedies............................34
SECTION 519 Undertaking for Costs.........................................34
ARTICLE VI
THE TRUSTEE
SECTION 601 Certain Rights of Trustee.....................................34
SECTION 602 Certain Duties and Responsibilities of Trustee................36
SECTION 603 Not Responsible for Recitals or Issuance of Securities........37
SECTION 604 May Hold Securities...........................................37
SECTION 605 Money Held in Trust...........................................37
SECTION 606 Compensation and Reimbursement................................37
SECTION 607 Corporate Trustee Required; Eligibility.......................38
SECTION 608 Resignation and Removal; Appointment of Successor.............38
SECTION 609 Acceptance of Appointment by Successor........................40
SECTION 610 Merger, Conversion, Consolidation or Succession to Business...41
SECTION 611 Disclosure of Names and Addresses of Holders..................41
SECTION 612 Reports by Trustee............................................41
ii
4
ARTICLE VII
CONSOLIDATION, MERGER OR SALE
SECTION 701 Consolidation, Merger or Sale.................................41
SECTION 702 Successor Corporation Substituted.............................42
ARTICLE VIII
SUPPLEMENTAL INDENTURES
SECTION 801 Supplemental Indentures without Consent of Holders............42
SECTION 802 Supplemental Indentures with Consent of Holders...............43
SECTION 803 Execution of Supplemental Indentures..........................44
SECTION 804 Effect of Supplemental Indentures.............................44
SECTION 805 Conformity with Trust Indenture Act...........................44
SECTION 806 Reference in Securities to Supplemental Indentures............45
ARTICLE IX
COVENANTS
SECTION 901 Payment.......................................................45
SECTION 902 Maintenance of Office or Agency...............................45
SECTION 903 Money for Securities Payments to Be Held in Trust.............45
SECTION 904 Limitation on Liens...........................................47
SECTION 905 Waiver of Certain Covenants...................................47
SECTION 906 Officers' Certificate as to Default...........................47
SECTION 907 Payment of Expenses...........................................47
EXHIBIT A-1................................................................A-1
iii
5
Xxxxxxx Xxxxx Xxxxxx Holdings Inc.
Reconciliation and tie between Trust Indenture Act of 1939 and
Indenture, dated as of
Trust Indenture
Act Section Indenture Section
ss. 310 (a)(1)............................................. 607
(a)(2)............................................. 607
(a)(3)............................................. Not Applicable
(a)(4)............................................. Not Applicable
(a)(5)............................................. 607
(b)................................................ 608
(c)................................................ Not Applicable
ss. 311 (c)................................................ Not Applicable
ss. 312 (a)................................................ 611
(b)................................................ 611
(c)................................................ 611
ss. 313 (a)................................................ 612
(c)................................................ 612
ss. 314 (c)................................................ 102
(d)................................................ Not Applicable
(e)................................................ 102
ss. 315 (a)................................................ 601, 602(a)
(c)................................................ 602(b)
(d)................................................ 601, 602(c)
(e)................................................ 519
ss. 316 (a)(1)(A).......................................... 513
(a)(1)(B).......................................... 514
(a)(2)............................................. Not Applicable
(b)................................................ 517
ss. 317 (a)(1)............................................. 506
(a)(2)............................................. 516
(b)................................................ 903
ss. 318 (a)................................................ 107
----------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
iv
6
INDENTURE, dated as of , 1999, between XXXXXXX XXXXX BARNEY
HOLDINGS INC., a corporation duly organized and existing under the laws of the
State of Delaware (herein called the "Company") with principal executive offices
at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and THE CHASE MANHATTAN BANK,
a New York banking corporation (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance of certain securities (the "Securities")
representing interests in a forward contract relating to the Common Stock of
and having the terms set forth in this Indenture (the "Forward Contract"),
which will be purchased by TARGETS Trust III, a business trust established under
the laws of the State of Delaware (the "Trust"). This Indenture is subject to
the provisions of the Trust Indenture Act (as hereinafter defined) that are
required to be part of this Indenture and, to the extent applicable, shall be
governed by such provisions.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101 Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles in the United States; and, except as otherwise herein or in any
indenture supplemental hereto expressly provided, the term "generally
accepted accounting principles" with
7
respect to any computation required or permitted hereunder shall mean such
accounting principles as are generally accepted at the date of such
computation; and
(4) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
"Accelerated Maturity Date" has the meaning specified in Section
502.
"Accelerated Maturity Payment" has the meaning specified in Section
502.
"Acceleration Event" has the meaning specified in Section 501.
"Act," when used with respect to any Holder, has the meaning
specified in Section 103.
"Affiliate" of any specified Person means any other person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent Member" has the meaning specified in Section 204.
"Appreciation Cap" has the meaning specified in Section 402.
"Authorized Newspaper" means a newspaper of general circulation in
the place of publication, printed in the official language of the country of
publication and customarily published on each Business Day, whether or not
published on Saturdays, Sundays or holidays. Whenever successive weekly
publications in an Authorized Newspaper are authorized or required hereunder,
they may be made (unless otherwise expressly provided herein) on the same or
different days of the week and in the same or different Authorized Newspapers.
"Board of Directors" means either the Board of Directors of the
Company, or the Executive Committee or any other duly authorized committee of
that Board.
"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.
"Book-Entry Security" means a security evidencing all or part of the
Securities, issued to the Depositary of Securities in accordance with Section
303, and bearing the legend prescribed in Section 303.
"Business Day" means any day on which commercial banks are open for
business in New York City and the New York Stock Exchange is not closed;
provided that, when used
2
8
with respect to any Place of Payment, "Business Day" means each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which banking institutions
in that Place of Payment are authorized or obligated by law to close.
"Calculation Period" means any period of Trading Days for which an
average security price must be determined pursuant to the Securities.
"Closing Price" of the Common Stock or any marketable security on
any date of determination means the daily closing sale price (or, if no closing
sale price is reported, the last reported sale price) of such security as
reported on the New York Stock Exchange ("NYSE") or which is quoted on a
national securities market on such date of determination or, if such security is
not traded on NYSE or quoted on a national securities market on any such date,
as reported in the composite transactions for the principal United States
securities exchange on which if such security is so listed, or if such security
is not so listed on a United States national or regional securities exchange,
the last quoted bid price for the Common Stock in the over-the-counter market as
reported by the National Quotation Bureau or similar organization.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, or,
if at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Common Stock" means the common stock of the Designated Issuer.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"Company Request" or "Company Order" means a written request or
order signed in the name of the Company by the Chairman of the Board or a
Vice-Chairman, a Vice President, the Chief Financial Officer or the Chief
Accounting Officer and by the Treasurer, the Deputy Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, and delivered to the
Trustee.
"Corporate Trust Office" means the principal office of the Trustee
in the Borough of Manhattan, The City of New York, at which at any particular
time its corporate trust business shall be administered, which office at the
date of initial execution of this Indenture is 000 Xxxx 00xx Xxxxxx - 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"corporation" includes corporations, associations, companies and
business trusts.
"Current Market Price" per share of Common Stock as of a particular
date means the average of the Closing Prices of a share of Common Stock on each
of the 10 Trading Days immediately prior to but not including that particular
date.
3
9
"Defaulted Yield Enhancement Payments" has the meaning specified in
Section 308.
"Depositary" means, with respect to the Securities issuable or
issued in whole or in part in global form, including Book-Entry Securities, the
Person designated as Depositary by the Company until a successor Depositary
shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter "Depositary" shall mean or include each Person who is then a
Depositary hereunder, and if at any time there is more than one such person
"Depositary" shall be a collective reference to such Persons.
"Designated Issuer" means , a corporation, together with any
successor entity in a merger, consolidation or amalgamation.
"Dilution Adjustment" means any fraction or number by which the
Exchange Rate shall be multiplied pursuant to Section 403 (a), (b), (c) or (d).
"Dollar" means the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
"Excess Purchase Payment" has the meaning providing in Section
403(d).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Rate" has the meaning provided in Section 402.
"Forward Contract" has the meaning specified in the first recital
of this Indenture.
"Global Security" has the meaning specified in Section 204.
"Holder" means, with respect to a Security, the person in whose name
such Security is registered in the Security Register.
"Indenture" means this instrument originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof.
"majority" of the Outstanding Securities means, except as otherwise
provided by the Trust Indenture Act, Outstanding Securities representing an
aggregate of more than 50% of all outstanding interests in the Forward Contract.
"Marketable Securities" has the meaning specified in Section 404.
"Maturity," when used with respect to the Forward Contract, means
the date on which the Maturity Payment or Accelerated Maturity Payment becomes
due and payable as the case may be and as therein or herein provided, whether on
the Maturity Date or an Accelerated Maturity Date.
4
10
"Maturity Date" means .
"Maturity Payment" has the meaning specified in Section 402.
"New York Business Day" means any day other than a Saturday, Sunday
or a day on which banking institutions in The City of New York are permitted or
required by any applicable law to close.
"Officers' Certificate" means a written certificate containing the
information specified in Section 102 signed by the Chairman or a Vice Chairman
of the Board, a Vice President, the Chief Financial Officer or the Chief
Accounting Officer and by the Controller, the Treasurer, the Deputy Treasurer,
an Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company,
which certificate complies with the applicable requirements of Section 314(e) of
the Trust Indenture Act, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be reasonably acceptable to the Trustee.
"Outstanding," when used with respect to any Securities, means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for whose payment money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by
the Company (if the Company shall act as its own Paying Agent) for the
Holders of such Securities; and
(iii) Securities that have been paid pursuant to Sections 402
or 502 or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Securities are held by a bona
fide purchaser in whose hands such Securities are valid obligations of the
Company;
provided, however, that in determining whether the Holder of the requisite
amount or percentage of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting for quorum purposes, and for the purpose of making the calculations
required by Section 316 of the Trust Indenture Act, any Securities owned by the
Company or any other obligor upon such Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities that the Trustee knows to be so owned shall
be so disregarded. Any Securities so owned that have been pledged in good faith
may be regarded as Outstanding if the pledgee establishes to the satisfaction of
the
5
11
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor. In determining whether the
requisite percentage of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, such percentage
refers to Outstanding Securities representing an aggregate interest in the
Forward Contract equaling at least such percentage.
"Paying Agent" means any Person authorized by the Company to pay
amounts owed on Securities on behalf of the Company.
"Payment Date" means , , and of each year, or, in the case of
Defaulted Yield Enhancement Payments, if any, the date established for payment
pursuant to Section 308.
"Permitted Dividend" has the meaning specified in Section 403(d).
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities, means
the place or places where any amounts owed in respect of the Securities are
payable.
"Record Date" means, with respect to any Payment Date, either (i)
the day that is one Business Day prior to such Payment Date so long as the
Securities are in book-entry only form, or (ii) if the Securities are not in
book-entry only form, the day that is 15 days prior to such Payment Date.
"Reorganization Event" has the meaning specified in Section 404.
"Responsible Officer," when used with respect to the Trustee, means
the chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, any assistant vice
president, the secretary, any assistant secretary, the treasurer, any assistant
treasurer, the cashier, any assistant cashier, any senior trust officer, any
trust officer or assistant trust officer, the controller or any assistant
controller or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers and, in any
case, that has direct responsibility for the administration of this Indenture
and also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his knowledge of and
familiarity with the particular subject.
"Restricted Subsidiary" means Xxxxxxx Xxxxx Xxxxxx Inc. and any
Subsidiary which owns or may hereafter own, directly or indirectly, any of the
voting stock of, or succeeds to any substantial part of the business now
conducted by, Xxxxxxx Xxxxx Barney Inc. For the purposes of this definition and
the definition of "Subsidiary", "voting stock" means stock having
6
12
voting power for the election of directors, whether at all times or only for so
long as no senior class of stock has such voting power by reason of any
contingency.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 304.
"Special Record Date" means, for the payment of any Defaulted Yield
Enhancement Payments, if any, a date fixed by the Trustee pursuant to Section
308.
"Stated Amount" means $ .
"Subsidiary" means a corporation, a majority of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries, or by the Company and one or more other
Subsidiaries.
"Then-Current Market Price" of the Common Stock, for the purpose of
applying any adjustment pursuant to Section 403, means the average Closing Price
per share of the Common Stock for the Calculation Period of 10 Trading Days
immediately prior to the time such adjustment is effected (or, in the case of an
adjustment effected at the opening of business on the Business Day next
following a record date as described in Section 403(f)(i), immediately prior to
the earlier of the time such adjustment is effected and the related ex-date);
provided that if no Closing Price for the Common Stock is determined for one or
more (but not all) of such Trading Days, such Trading Day shall be disregarded
in the calculation of the Then-Current Market Price (but no additional trading
days shall be added to the Calculation Period). If no Closing Price for the
Common Stock may be determined for any of such Trading Days, the Then-Current
Market Price shall be the Closing Price for the Common Stock for the most recent
Trading Day prior to such 10 Trading Days for which a Closing Price for the
Common Stock may be determined pursuant to the "Closing Price" definition. The
"ex-date" with respect to any dividend, distribution or issuance shall mean the
first date on which the shares of Common Stock trade regular way on their
principal market without the right to receive such dividend, distribution or
issuance.
"Trading Day" means a day on which the Common Stock (A) is not
suspended from trading on any national or regional securities exchange,
securities market or association or over-the-counter market at the close of
business and (B) has traded at least once on the national or regional securities
exchange, securities market or association or over-the-counter market that is
the primary market for the trading of such security.
"Transaction Value" has the meaning specified in Section 404.
"Trust" has the meaning specified in the first recital of this
Indenture.
7
13
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, as in force at the date as of which this instrument was executed,
except as provided in Section 805.
"Trust Securities" has the meaning specified in Section 907.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder.
"Vice President," when used with respect to the Company, means any
vice president, whether or not designated by a number or a word or words added
before or after the title "vice president."
"Yield Enhancement Payment" means % per annum of the Stated
Amount, accruing from , 1999, computed on the basis of a 360-day year
of twelve 30-day months and, for any period less than a full calendar month, the
number of days elapsed in such month, together with, in the case of any
Defaulted Yield Enhancement Payment, interest thereon in accordance with Section
308.
SECTION 102 Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to
take any action under any provision of this Indenture, the Company shall furnish
to the Trustee an Officers' Certificate stating that all conditions precedent,
if any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of any such documents is specifically required by any provision of this
Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
covenant or condition provided for in this Indenture (other than pursuant to
Section 907) shall include:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
8
14
(4) a statement as to whether, in the opinion of each such
individual, such covenant or condition has been complied with.
SECTION 103 Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Any certificate or opinion delivered by the Company to the Trustee
may evidence a signature by facsimile; provided that the Company shall deliver
to the Trustee such certificate or opinion with an original signature within a
reasonable period of time.
(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, and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and conclusive in favor of the Trustee and the Company, if made in the
manner provided in this Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of
9
15
deeds, certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Where such execution is by a signer
acting in a capacity other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his authority. The fact and
date of the execution of any such instrument or writing, or the authority of the
Person executing the same, may also be proved in any other manner which the
Trustee deems sufficient.
SECTION 104 Acts of Holders.
(a) The ownership of Securities shall be proved by the
Security Register, and the Depositary, or its nominee, shall be deemed the owner
of the Global Securities, and owners of beneficial interests in a Global
Security will not be considered the owners of any Securities.
(b) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee or
the Company in reliance thereon, whether or not notation of such action is made
upon such Security.
(c) If the Company shall solicit from the Holders any request,
demand, authorization, direction, notice, consent, waiver or other Act, the
Company may, at its option, by or pursuant to a Board Resolution, fix in advance
a record date for the determination of Holders entitled to give such request,
demand, authorization, direction, notice, consent, waiver or 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 proportion of
Outstanding Securities 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 shall be computed as of such record
date; provided that no such authorization, agreement or consent by the Holders
on such record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than six months after the
record date.
SECTION 105 Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed
in writing to or with the Trustee at its Corporate Trust Office, or
10
16
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, by first-class mail, postage prepaid,
to the Company addressed to it at the address of its principal office
specified in the first paragraph of this Indenture or at any other address
previously furnished in writing to the Trustee by the Company.
SECTION 106 Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event,
such notice to the Holders thereof shall be sufficiently given (unless otherwise
herein expressly provided) if in writing and mailed, by first-class mail,
postage prepaid, to each Holder affected by such event, at the address of such
Holder as it appears in the Security Register, within the time prescribed for
the giving of such notice. In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice as
provided above, then such notification as shall be made with the approval of the
Trustee (which shall include, but not be limited to, hand-delivery or overnight
courier) shall constitute a sufficient notification for every purpose hereunder.
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.
Any request, demand, authorization, direction, notice, consent,
election 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 107 Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with the
Trust Indenture Act, the Trust Indenture Act shall control.
SECTION 108 Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
SECTION 109 Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
11
17
SECTION 110 Separability Clause.
In case any provision in this Indenture or the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111 Benefits of Indenture.
Nothing in this Indenture or in the Securities, expressed or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder and the Holders, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 112 Governing Law.
This Indenture and the Securities shall be governed by and construed
in accordance with the laws of the State of New York.
SECTION 113 Legal Holidays.
In any case where any Maturity of any Security or any Payment Date
shall not be a Business Day at any Place of Payment, then (notwithstanding any
other provision of this Indenture or of the Securities) payment at such Maturity
or Payment Date need not be made at such Place of Payment on such date, but may
be made on the next succeeding Business Day at such Place of Payment with the
same force and effect as if made at such Maturity or Payment Date, as the case
may be, except that, if such Business Day is in the next succeeding calendar
year, such payment shall be made on the immediately preceding Business Day, in
each case with the same force and effect as if made on such date.
ARTICLE II
SECURITY FORMS
SECTION 201 Forms Generally.
The Securities shall be in substantially in the form of Exhibit A
hereto with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this indenture, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Securities as evidenced by their execution of the
Securities. If temporary Securities are issued in global form as permitted by
Section 303, the form thereof also shall be established as provided in the
preceding sentence.
12
18
SECTION 202 Definitive Securities.
The definitive Securities shall be printed, lithographed or engraved
on steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities as evidenced by their
execution of such Securities.
SECTION 203 Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be in
substantially the form set forth below.
This is one of the Securities designated in the within-mentioned
Indenture.
THE CHASE MANHATTAN BANK
as Trustee
By:______________________________
Authorized Signatory
SECTION 204 Securities in Global Form.
Except as provided in Section 304 hereof, owners of beneficial
interests in Global Securities will not be entitled to receive physical delivery
of certificated Securities. If Securities are issuable in whole or in part in
global form, any such Security may provide that it shall represent the aggregate
or specified number of Outstanding Securities from time to time endorsed thereon
and may also provide that the aggregate number of Outstanding Securities
represented thereby may from time to time be reduced or increased to reflect
exchanges. Any endorsement of a Security in global form to reflect the amount,
or any increase or decrease in the amount or changes in the rights of Holders of
Outstanding Securities represented thereby, shall be made in such manner and by
such Person or Persons as shall be specified therein.
This Section 204 shall apply only to Securities issued in global
form ("Global Securities") and deposited with or on behalf of the Depositary.
The Company shall execute and the Trustee shall, in accordance with
this Section 204, authenticate and deliver initially one or more Global
Securities that (a) shall be registered in the name of the Depositary for such
Global Security or Global Securities or the nominee of such Depositary and (b)
shall be delivered by the Trustee to such Depositary or pursuant to such
Depositary's written instructions or held by the Trustee as custodian for the
Depositary.
Members of, or participants in, a Depositary ("Agent Members") shall
have no rights under this Indenture with respect to any Global Security held on
their behalf by the Depositary or under the Global Security, and the Depositary
may be treated by the Company, the Trustee, and any agent of the Company or the
Trustee as the absolute owner of such Global Security for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall
13
19
prevent the Company, the Trustee, or any agent of the Company or the Trustee
from giving effect to any written certification, proxy or other authorization
furnished by the Depositary or impair, as between the Depositary and its Agent
Members, the operation of customary practices governing the exercise of the
rights of a holder of any Security.
ARTICLE III
THE SECURITIES
SECTION 301 Amount to be Issued.
Securities evidencing an aggregate beneficial interest in the
Forward Contract of not more than 100% may be authenticated and delivered under
this Indenture. All Securities shall be substantially identical in form except
for the beneficial interest in the Forward Contract represented thereby.
SECTION 302 Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by the
Chairman or a Vice Chairman of the Board, a Vice President, the Chief Financial
Officer or the Chief Accounting Officer, under its corporate seal reproduced
thereon attested by the signature of its Secretary or one of its Assistant
Secretaries or its Treasurer, the Deputy Treasurer or one of its Assistant
Treasurers. The signature of any of these officers on the Securities may be
manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Securities executed by the Company to
the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities.
The Trustee shall have the right to decline to authenticate and
deliver such Securities if the Trustee, being advised by counsel, determines
that such action may not lawfully be taken or if the Trustee in good faith by
its board of directors or trustees, executive committee, or a trust committee of
directors or trustees and/or Responsible Officers shall determine that such
action would expose the Trustee to personal liability to existing Holders or
would adversely affect the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
If all of the Securities are not to be originally issued at the same
time, then the documents required to be delivered pursuant to this Section 302
must be delivered only once, prior to the authentication and delivery of the
first Security; provided, however, that any
14
20
subsequent request by the Company to the Trustee to authenticate Securities upon
original issuance shall constitute a representation and warranty by the Company
that, as of the date of such request, the statements made in any Opinion of
Counsel delivered pursuant to this Section 302 shall be true and correct as if
made on such date.
If Securities are to be issued in whole or in part in global form,
then the Company shall execute and the Trustee shall, in accordance with this
Section and the Company Order, authenticate and deliver one or more Securities
in global form that (i) shall represent the number of the Outstanding Securities
to be represented by such Global Securities, (ii) shall be registered, if in
registered form, in the name of the Depositary for such Book-Entry Security or
Securities or the nominee of such Depositary, (iii) shall be delivered by the
Trustee to such Depositary or pursuant to such Depositary's instruction and (iv)
shall bear a legend substantially to the following effect: "Unless and until it
is exchanged in whole or in part for Securities in certificated form, this
Security may not be transferred except as a whole by the Depositary to a nominee
of the Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary" or to such other
effect as the Depositary and the Trustee may agree.
Each Depositary designated for a Book-Entry Security in registered
form must, at the time of its designation and at all times while it serves as
Depositary, be a clearing agency registered under the Exchange Act and any other
applicable statute or regulation. The Trustee shall have no responsibility to
determine if the Depositary is so registered. Each Depositary shall enter into
an agreement with the Trustee governing their respective duties and rights with
regard to Book-Entry Securities.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein duly
executed by the Trustee by manual signature of one of its authorized
signatories, and such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly authenticated
and delivered hereunder and is entitled to the benefits of this Indenture.
The Trustee may appoint an authenticating agent (each, an
"Authentication Agent") to authenticate the Securities. Any Authenticating Agent
may authenticate Securities whenever the Trustee may do so. Each reference in
this Indenture to authentication by the Trustee includes authentication by any
such Authenticating Agent.
SECTION 303 Global Securities; Temporary Securities.
(a) No definitive Security shall be issued in exchange for a
Global Security deposited with the Depositary pursuant to Section 302
representing any Securities unless such transfer complies with Section 304 of
this Indenture and (i) the Depositary notifies the Company that it is unwilling
or unable to continue as Depositary for such Global Security or,
15
21
in the case of a Depositary located in the United States, if at any time such
Depositary ceases to be a "clearing agency" registered under the Exchange Act
and a successor depositary is not appointed by the Issuer within 90 days of such
notice or (ii) the Company determines not to have the Securities represented by
a Global Security; provided, however, that the Company may not make such
determination during any period during which the Securities must be held in
global form as may be required by the Securities Act.
(b) Any Global Security that is transferable to the beneficial
owners thereof pursuant to this Section 303 shall be surrendered by the
Depositary to the Trustee located in the Borough of Manhattan, The City of New
York, to be so transferred, in whole or from time to time in part, without
charge, and the Trustee shall authenticate and deliver, upon such transfer of
each portion of such Global Security, an equal aggregate number of Securities.
Any portion of a Global Security transferred pursuant to this Section 303 shall
be executed, authenticated and delivered as specified in Section 304 and
registered in such names as the Depositary shall direct.
(c) Subject to the provisions of Section 303(b) above, the
registered holder of a Security may grant proxies and otherwise authorize any
Person, including Agent Members and Persons that may hold interests through
Agent Members, to take any action that a holder is entitled to take under this
Indenture or such Securities.
(d) In the event of the occurrence of any of the events
specified in paragraph (a) of this Section 303 the Company will promptly make
available to the Trustee a reasonable supply of certificated Securities in
definitive, fully registered form.
Pending the preparation of definitive Securities, the Company may
execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which may be in global form, that are printed,
lithographed, typewritten, mimeographed or otherwise reproduced, substantially
of the tenor of the definitive Securities in lieu of which they are issued and
with such appropriate insertions, omissions, substitutions and other variations
as the officers executing such Securities may determine, as conclusively
evidenced by their execution of such Securities.
If temporary Securities are issued, the Company will cause
definitive Securities to be prepared without unreasonable delay. The definitive
Securities shall be printed, lithographed or engraved, or provided by any
combination thereof, or in any other manner permitted by the rules and
regulations of any applicable securities exchange, all as determined by the
officers executing such definitive Securities. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of such temporary Securities at the office
or agency maintained by the Company for such purpose pursuant to Section 902,
without charge to the Holder in a Place of Payment. Upon surrender for
cancellation of any temporary Securities, the Company shall execute, and the
Trustee shall authenticate and deliver, in exchange therefor the same aggregate
number of definitive Securities. Until so exchanged, the temporary Securities
shall in all respects be entitled to the same benefits under this Indenture as
definitive Securities.
16
22
SECTION 304 Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the register maintained in such office and in any other
office or agency of the Company maintained pursuant to Section 902 in a Place of
Payment being herein sometimes collectively referred to as the "Security
Register") in which, subject to such reasonable regulations as it may prescribe,
the Company shall provide for the registration of Securities and of transfers of
Securities. The Trustee is hereby appointed "Security Registrar" for the purpose
of registering Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security at the
office or agency maintained pursuant to Section 902 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,
evidencing a like aggregate beneficial interest in the Forward Contract.
At the option of the Holder, Securities (except a Global Security
representing all or a portion of the Securities which may be exchanged in
accordance with Section 303 hereof) may be exchanged for other Securities
evidencing a like aggregate interest in the Forward Contract, upon surrender of
the Securities to be exchanged at such office or agency.
If at any time the Depositary for the Securities notifies the
Company that it is unwilling or unable to continue as Depositary for the
Securities or if at any time the Depositary for the Securities shall no longer
be eligible under Section 302, the Company shall appoint a successor Depositary
with respect to the Securities.
The Depositary may surrender a Global Security in exchange in whole
or in part for Securities in certificated form on such terms as are acceptable
to the Company and such Depositary. Thereupon, the Company shall execute, and
the Trustee shall authenticate and deliver, without service charge, to each
Person specified by such Depositary a new certificated Security or Securities of
like tenor, in aggregate number equal to and in exchange for such Person's
beneficial interest in the Global Security, and to such Depositary a new Global
Security of like tenor representing an aggregate number of securities equal to
the difference, if any, between the aggregate beneficial interest in the Forward
Contract represented by the surrendered Global Security and the aggregate
beneficial interest in the Forward Contract represented by the certificated
Securities delivered to Holders thereof.
Upon the exchange in full of a Global Security for Securities in
certificated form, such Global Security shall be canceled by the Trustee. Except
as provided in Section 303(a) and (b) hereof, Securities issued in exchange for
a Book-Entry Security pursuant to this Section shall be registered in such names
as the Depositary for such Book-Entry Security, pursuant to instructions from
its direct or indirect participants or otherwise, shall instruct the Trustee.
The Trustee shall make available such Securities to the Persons in whose names
such Securities are so registered.
17
23
Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange
of Securities shall be the valid obligations of the Company, evidencing the same
obligation, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange. The
Trustee shall have no liability for any transfers or exchanges of the Securities
in accordance with the provisions of this Indenture being in compliance with the
Securities Act or any other applicable law.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar, duly executed by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company or the Securities Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 303 or 806 not involving
any transfer.
SECTION 305 Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of like tenor and evidencing a like aggregate beneficial
interest in the Forward Contract.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen Security
a new Security evidencing a like aggregate beneficial interest in the Forward
Contract.
Upon the issuance of any new Security under this Section, the
Company or the Securities Registrar 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 issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone,
18
24
and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities 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 any mutilated, destroyed, lost or stolen Securities.
SECTION 306 Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment in respect of amounts owed on such
Security and for all other purposes whatsoever, whether or not such payments
shall 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; provided,
however, that the Depositary, or its nominee, shall be deemed the owner of any
Global Securities registered in its name, and owners of beneficial interests in
a Global Security will not be considered the owners of any Securities for
purposes of this Indenture.
SECTION 307 Cancellation.
All Securities surrendered for payment, registration of transfer or
exchange shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee and shall be promptly canceled by it. The Company may
at any time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in any
manner whatsoever, and all Securities so delivered shall be promptly canceled by
the Trustee. No Securities shall be authenticated in lieu of or in exchange for
any Securities canceled as provided in this Section, except as expressly
permitted by this Indenture. All canceled Securities shall be destroyed by the
Trustee and a certificate evidencing such destruction shall be delivered to the
Company.
SECTION 308 Yield Enhancement Payments.
A pro rata portion (based on the beneficial interest in the Forward
Contract represented by each of the Securities) of the Yield Enhancement
Payment, if any, shall be remitted (a) by the Company to the Paying Agent prior
to 10:00 am on each Payment Date and (b) thereafter by the Paying Agent on each
Payment Date to the Persons in whose name such Securities are registered at the
close of business on the Record Date therefor. At least 5 Business Days prior to
the applicable Record Date, the Company shall notify the Trustee in writing of
the aggregate amount of the Yield Enhancement Payment, if any, to be paid on
each Payment Date.
In the event of acceleration of maturity of the Forward Contract to
an Accelerated Maturity Date occurring after any Record Date and on or prior to
the next succeeding Payment Date, Yield Enhancement Payments, if any, otherwise
payable on such Payment Date shall be payable on the Accelerated Maturity Date,
and such Yield Enhancement Payments (in the amounts determined as provided
above) shall be paid to the Persons in whose name
19
25
the Securities are registered at the close of business on such Record Date.
Except as otherwise expressly provided in the immediately preceding sentence, in
the case of acceleration of maturity of the Forward Contract to an Accelerated
Maturity Date, Yield Enhancement Payments, if any, that would otherwise be
payable after the Accelerated Maturity Payment with respect to the Forward
Contract shall not be payable.
The Company shall have the right, at any time and from time to time
during the term of the Securities, to defer making Yield Enhancement Payments
during the period until the Maturity Date or the Accelerated Maturity Date, as
the case may be. Yield Enhancement Payments, if any, which are payable, but are
deferred by the Company and not punctually paid or duly provided for, on any
Payment Date shall forthwith cease to be payable to the Holder on the relevant
Record Date by virtue of having been such Holder, and such Yield Enhancement
Payments, together with, to the extent permitted by applicable law, interest
thereon at the rate of % compounded quarterly for each quarter until such
Yield Enhancement Payments are paid (herein called "Defaulted Yield Enhancement
Payments"), 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
Yield Enhancement Payments, if any, to the Persons in whose names the
Securities are registered at the close of business on a Special Record
Date for the payment of such Defaulted Yield Enhancement Payments, if any,
which shall be fixed in the following manner. The Company shall notify the
Trustee in writing at least one Business Day prior to the Payment Date on
which Yield Enhancement Payments would otherwise be payable of the
aggregate amount of Defaulted Yield Enhancement Payments, if any, proposed
to be paid on the Securities and the date of the proposed payment.
Thereupon the Trustee shall fix a Special Record Date for the payment of
such Defaulted Yield Enhancement Payments, if any, which shall be (i) not
more than 15 Business Days and not less than 10 Business Days prior to the
date of the proposed payment or (ii) if the Company proposes to pay such
Defaulted Yield Enhancement Payments as part of the Maturity Payment, the
Record Date with respect to the Maturity Date. 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 Yield Enhancement Payments, if any, and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each Holder of
Securities at such Holder's address as it appears in the Security
Register, not less than 10 Business Days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted Yield Enhancement
Payments, if any, and the Special Record Date therefor having been so
mailed, such Defaulted Yield Enhancement Payments, if any, shall be paid
to the Person in whose name the 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 Yield
Enhancement Payments, if any, in any other lawful manner not inconsistent
with the requirements of any stock exchange or national securities market
on which any securities issued by the Trust are listed, and upon such
notice as may be required by such exchange
20
26
or market, 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.
At the option of the Company, Yield Enhancement Payments, if any,
shall be remitted by the Trustee (i) by mailing a check to the address of the
persons entitled thereto as such address shall appear in the Security Register
or (ii) by wire transfer to an account maintained by the persons entitled
thereto as specified in the applicable Security Register if such person (a)
shall have provided wire instructions to the Paying Agent at least five (5)
Business Days prior to the relevant Record Date and (b) holds an aggregate
Security representing the right to receive, at maturity, at least $5,000,000.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to Yield Enhancement
Payments, if any, accrued and unpaid, and to be accrued, which were carried by
such other Security.
ARTICLE IV
PAYMENT AT MATURITY, ETC.
SECTION 401 Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further
effect with respect to Securities (except as to any surviving rights of
registration of transfer or exchange of Securities and replacement of lost,
stolen or mutilated Securities herein expressly provided for), and the Trustee,
at the expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when either
(A) all Securities theretofore authenticated and
delivered have been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the
Trustee for cancellation have become due and payable and the Company
has deposited or caused to be deposited with the Trustee as trust
funds in trust for the purpose an amount sufficient to pay and
discharge all amounts owed in respect of such Securities not
theretofore delivered to the Trustee for cancellation.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company to the Trustee under Section 606 and, if money
shall have been deposited with the Trustee pursuant to subclause (B) of this
Section, the obligations of the Trustee under the last paragraph of Section 903,
shall survive.
21
27
SECTION 402 Maturity.
Subject to earlier acceleration of maturity in accordance with
Article V hereof, on the Maturity Date the Company shall be obligated to pay to
the Holders, in respect of the Securities held by them, an amount in cash (the
"Maturity Payment") equal to a pro rata portion (based on the beneficial
interest in the Forward Contract represented by such Securities) of the sum of
(A) the product of (i) multiplied by (ii) the Current Market Price of the
Common Stock as of the date one New York Business Day prior to the Maturity Date
multiplied by (iii) the Exchange Rate and (B) any accrued and unpaid Yield
Enhancement Payments (if any) through the Maturity Date.
The "Exchange Rate" shall be determined in accordance with the
following formula, subject to adjustment as a result of certain events as
provided in Sections 403, 404 and 405: (i) if the Current Market Price of the
Common Stock as of the Maturity Date or the Accelerated Maturity Date, as the
case may be, is less than or equal to $ (the "Appreciation Cap"), then the
Exchange Rate shall be , and (ii) if the Current Market Price of the Common
Stock as of the Maturity Date or the Accelerated Maturity Date, as the case may
be, is greater than the Appreciation Cap, then the Exchange Rate shall be a
fraction (rounded upward or downward to the nearest 1/10,000th or, if there is
not a nearest 1/10,000th, to the next lower 1/10,000th), of which the numerator
is the Appreciation Cap, and of which the denominator is the Current Market
Price of the Common Stock as of the Maturity Date or the Accelerated Maturity
Date, as the case may be.
SECTION 403 Dilution Adjustments.
The Exchange Rate and the Appreciation Cap shall be subject to
adjustment from time to time as follows:
(a) Stock Dividends, Splits Reclassifications. Etc. If the
Designated Issuer shall, after the date hereof,
(i) pay a stock dividend or make a distribution with respect
to Common Stock in shares of such stock;
(ii) subdivide or split the outstanding shares of Common Stock
into a greater number of shares of Common Stock;
(iii) combine the outstanding shares of Common Stock into a
smaller number of shares; or
(iv) issue by reclassification of shares of its Common Stock
any shares of other common stock of the Designated Issuer;
then, in each such case, the Exchange Rate shall be multiplied by a Dilution
Adjustment equal to the number of shares of Common Stock (or in the case of a
reclassification referred to in clause (iv) above, the number of shares of other
common stock of the Designated Issuer issued pursuant
22
28
thereto), or the fraction thereof that a holder who held one share of Common
Stock immediately prior to such event would be entitled solely by reason of such
event to hold immediately after such event. The Appreciation Cap shall also be
adjusted in the manner described in paragraph (e).
(b) Right or Warrant Issuances. If the Designated Issuer
shall, after the date hereof, issue, or declare a record date in respect of an
issuance of, rights or warrants to all holders of Common Stock entitling them to
subscribe for or purchase shares of Common Stock at a price per share less than
the Then-Current Market Price of the Common Stock (other than rights to purchase
Common Stock pursuant to a plan for the reinvestment of dividends or interest),
then, in each such case, the Exchange Rate shall be multiplied by a Dilution
Adjustment equal to a fraction the numerator of which shall be the number of
shares of Common Stock outstanding immediately prior to the time the adjustment
is effected by reason of the issuance of such rights or warrants, plus the
number of additional shares of Common Stock offered for subscription or purchase
pursuant to such rights or warrants, and the denominator of which shall be the
number of shares of Common Stock outstanding immediately prior to the time the
adjustment is effected, plus the number of additional shares of Common Stock
which the aggregate offering price of the total number of shares of Common Stock
so offered for subscription or purchase pursuant to such rights or warrants
would purchase at the Then-Current Market Price of the Common Stock, which shall
be determined by multiplying the total number of shares so offered for
subscription or purchase by the exercise price of such rights or warrants and
dividing the product so obtained by such Then-Current Market Price. To the
extent that, after the expiration of such rights or warrants, the shares of
Common Stock offered thereby shall not have been delivered, the Exchange Rate
shall be further adjusted to equal the Exchange Rate which would have been in
effect had such adjustment for the issuance of such rights or warrants been made
upon the basis of delivery of only the number of shares of Common Stock actually
delivered. The Appreciation Cap shall also be adjusted in the manner described
in paragraph (e).
(c) Distributions of Other Assets. If the Designated Issuer
shall, after the date hereof, declare or pay a dividend or make a distribution
to all holders of Common Stock, in either case, of evidences of its indebtedness
or other non-cash assets (excluding any dividends or distributions referred to
in paragraph (a) above) or shall issue to all holders of Common Stock rights or
warrants to subscribe for or purchase any of its securities (other than rights
or warrants referred to in paragraph (b) above), then, in each such case, the
Exchange Rate shall be multiplied by a Dilution Adjustment equal to a fraction,
the numerator of which shall be the Then-Current Market Price per share of the
Common Stock, and the denominator of which shall be such Then-Current Market
Price per share less the fair market value (as determined by a nationally
recognized independent investment banking firm retained for this purpose by the
Company, whose determination shall be final) as of the time the adjustment is
effected of the portion of the assets, evidences of indebtedness, rights or
warrants so distributed or issued applicable to one share of Common Stock. The
Appreciation Cap shall also be adjusted in the manner described in subparagraph
(e). Notwithstanding the foregoing, in the event that, with respect to any
dividend or distribution to which this paragraph (c) would otherwise apply, the
denominator in the fraction referred to above formula is less than $1.00 (or is
a negative number), then the Company may, at its option, elect to have the
adjustment provided by this
23
29
paragraph (c) not be made and in lieu of such adjustment, on the Maturity Date,
the Company shall deliver to the Holders of the Securities an additional amount
of cash equal to the fair market value of such indebtedness, assets, rights or
warrants (determined, as of the date such dividend or distribution is made, by a
nationally recognized independent investment banking firm retained for this
purpose by the Company, whose determination shall be final) so distributed or
issued.
(d) Cash Dividends; Excess Purchase Payments. If, after the
date hereof, the Designated Issuer declares a record date in respect of a
distribution of cash (other than any Permitted Dividends, any cash distributed
in consideration of fractional shares of Common Stock and any cash distributed
in a Reorganization Event), by dividend or otherwise, to all holders of Common
Stock, or makes an Excess Purchase Payment, then the Exchange Rate shall be
multiplied by a Dilution Adjustment equal to a fraction, the numerator of which
shall be the Then-Current Market Price of the Common Stock on such record date,
and the denominator of which shall be such Then-Current Market Price less the
amount of such distribution applicable to one share of Common Stock which would
not be a Permitted Dividend (or in the case of an Excess Purchase Payment, less
the aggregate amount of such Excess Purchase Payment for which adjustment is
being made at such time divided by the number of shares of Common Stock
outstanding on such record date). For purposes of these adjustments, (A)
"Permitted Dividend" means any quarterly cash dividend in respect of Common
Stock, other than a quarterly cash dividend that exceeds the immediately
preceding quarterly cash dividend, and then only to the extent that the per
share amount of such dividend results in an annualized dividend yield on the
Common Stock in excess of 10.0% and (B) "Excess Purchase Payment" means the
excess, if any, of (x) the cash and the value (as determined by a nationally
recognized independent investment banking firm retained for this purpose by the
Company, whose determination shall be final) of all other consideration paid by
the Designated Issuer or any of its subsidiaries with respect to one share of
Common Stock acquired in a tender offer or exchange offer by the Designated
Issuer or any of its subsidiaries, over (y) the Then-Current Market Price of the
Common Stock. The Appreciation Cap shall also be adjusted in the manner
described in subparagraph (e). Notwithstanding the foregoing, in the event that,
with respect to any dividend or distribution to which this paragraph (d) would
otherwise apply, the denominator in the fraction referred to above formula is
less than $1.00 (or is a negative number), then the Company may, at its option,
elect to have the adjustment provided by this paragraph (d) not be made and in
lieu of such adjustment, on the Maturity Date, the Company shall deliver to the
Holders of the Securities an additional amount of cash equal to the amount of
cash plus the fair market value of such other consideration (determined, as of
the date such dividend or distribution is made, by a nationally recognized
independent investment banking firm retained for this purpose by the Company,
whose determination shall be final) so distributed (or applied to the
acquisition of the Common Stock in such a tender offer or exchange offer).
(e) Adjustments to Appreciation Cap and Closing Prices. (i) If
any adjustment is made to the Exchange Rate pursuant to paragraph (a), (b), (c)
or (d) this Section 403, an adjustment shall also be made to the Appreciation
Cap. The required adjustment shall be made by dividing the Appreciation Cap by
the relevant Dilution Adjustment.
24
30
(ii) If, during any Calculation Period used in calculating the
Current Market Price, the Then-Current Market Price or the Transaction Value,
there shall occur any event requiring an adjustment to be effected pursuant to
this Section 403, then the Closing Price for each Trading Day in the Calculation
Period occurring prior to the day on which such adjustment is effected shall be
adjusted by being divided by the relevant Dilution Adjustment.
(f) Timing of Dilution Adjustments. Each Dilution Adjustment
shall be effected:
(i) in the case of any dividend, distribution or issuance, at
the opening of business on the Business Day next following the record date
for determination of holders of Common Stock entitled to receive such
dividend, distribution or issuance or, if the announcement of any such
dividend, distribution, or issuance is after such record date, at the time
such dividend, distribution or issuance shall be announced by the
Designated Issuer;
(ii) in the case of any subdivision, split, combination or
reclassification, on the effective date of such transaction;
(iii) in the case of any Excess Purchase Payment for which the
Designated Issuer shall announce, at or prior to the time it commences the
relevant share repurchase, the repurchase price per share for shares
proposed to be repurchased, on the date of such announcement; and
(iv) in the case of any other Excess Purchase Payment on the
date that the holders of the repurchased shares become entitled to payment
in respect thereof.
(g) General; Failure of Dilution Event to Occur. All Dilution
Adjustments shall be rounded upward or downward to the nearest 1/10,000th (or if
there is not a nearest 1/10,000th to the next lower 1/10,000th). No adjustment
in the Exchange Rate shall be required unless such adjustment would require an
increase or decrease of at least one percent therein; provided, however, that
any adjustments which by reason of this sentence are not required to be made
shall be carried forward and taken into account in any subsequent adjustment. If
any announcement or declaration of a record date in respect of a dividend,
distribution, issuance or repurchase requiring an adjustment pursuant to this
Section 403 shall subsequently be canceled by the Designated Issuer, or such
dividend, distribution, issuance or repurchase shall fail to receive requisite
approvals or shall fail to occur for any other reason, then, upon such
cancellation, failure of approval or failure to occur, the Exchange Rate shall
be further adjusted to the Exchange Rate which would then have been in effect
had adjustment for such event not been made. If a Reorganization Event shall
occur after the occurrence of one or more events requiring an adjustment
pursuant to this Section 403, the Dilution Adjustments previously applied to the
Exchange Rate in respect of such events shall not be rescinded but shall be
applied to the new Exchange Rate provided for under Sections 404 and 405.
25
31
SECTION 404 Adjustment for Consolidation, Merger or Other Reorganization Event.
In the event of (i) any consolidation or merger of the Designated
Issuer, or any surviving entity or subsequent surviving entity of the Designated
Issuer (a "Designated Issuer Successor"), with or into another entity (other
than a merger or consolidation in which the Designated Issuer is the continuing
corporation and in which the Common Stock outstanding immediately prior to the
merger or consolidation is not exchanged for cash, securities or other property
of the Designated Issuer or another Person), (ii) any sale, transfer, lease or
conveyance to another Person of the property of the Designated Issuer or any
Designated Issuer Successor as an entirety or substantially as an entirety,
(iii) any statutory exchange of securities of the Designated Issuer or any
Designated Issuer Successor with another Person (other than in connection with a
merger or acquisition) or (iv) any liquidation, dissolution or winding up of the
Designated Issuer or any Designated Issuer Successor (any such event described
in clause (i), (ii), (iii) or (iv), a "Reorganization Event"), the Exchange Rate
shall be adjusted so that, on the Maturity Date, the Holders of the Securities
shall receive cash in an amount equal to the product of the number of Trust
Securities held by such Holder multiplied by (i) if the Transaction Value is
less than or equal to the Appreciation Cap, times the Transaction Value, and
(ii) if the Transaction Value is greater than the Appreciation Cap, times the
Appreciation Cap.
"Transaction Value" means the sum of: (a) for any cash received in
any such Reorganization Event, the amount of cash received per share of Common
Stock; (b) for any property other than cash or Marketable Securities received in
any such Reorganization Event, an amount equal to the market value on the date
the Reorganization Event is consummated of such property received per share of
Common Stock (as determined by a nationally recognized independent investment
banking firm retained for this purpose by the Company, whose determination shall
be final); and (c) for any Marketable Securities received in any such
Reorganization Event, an amount equal to the average Closing Price per share of
such Marketable Securities for the Calculation Period of 10 Trading Days
immediately prior to the date one New York Business Day prior to the Maturity
Date multiplied by the number of such Marketable Securities received for each
share of Common Stock; provided that if no Closing Price for such Marketable
Securities may be determined for one or more (but not all) of such Trading Days
such Trading Day shall be disregarded in the calculation of such average Closing
Price (but no additional trading days shall be added to the Calculation Period).
If no Closing Price for the Marketable Securities may be determined for all such
Trading Days, the calculation in the preceding clause (c) shall be based on the
most recently available Closing Price for the Marketable Securities prior to
such 10 Trading Days.
"Marketable Securities" means any perpetual equity securities or
debt securities with a stated maturity after the Maturity Date, in each case
that are listed on a U.S. national securities exchange or reported by the Nasdaq
National Market. The number of shares of any equity securities constituting
Marketable Securities included in the calculation of Transaction Value pursuant
to the preceding clause (c) shall be subject to adjustment if any event that
would, had it occurred with respect to the Common Stock or the Designated
Issuer, have required an adjustment pursuant to Section 403 shall occur with
respect to such Marketable Securities or the
26
32
issuer thereof between the time of the Reorganization Event and the Maturity
Date. Adjustment for such subsequent events shall be as nearly equivalent as
practicable to the adjustments provided for in Section 403.
SECTION 405 Adjustments of Exchange Rate.
The Company shall be responsible for the effectuation and
calculation of any adjustment pursuant this Article IV and shall furnish the
Trustee with notice of any such adjustment. The Trustee shall be under no duty
or obligation to review or determine any calculations, adjustments, dividend
calculations, determination of either the Maturity Payment or Accelerated
Maturity Payment payable hereunder, exchange rate determinations or any other
calculation set forth in this Article IV or in Section 502 hereof.
ARTICLE V
REMEDIES
SECTION 501 Acceleration Events.
"Acceleration Event," wherever used herein, means any one of the
following events:
(a) the entry of a decree or order for relief in respect of
the Company by a court having jurisdiction in the premises in an involuntary
case under the Federal bankruptcy laws, as now or hereafter constituted, or any
other applicable Federal or State bankruptcy, insolvency or other similar law,
or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator
(or other similar official) of the Company or of any substantial part of its
property, or ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order unstayed and in effect for a period of
90 consecutive days; or
(b) the commencement by the Company of a voluntary case under
the Federal bankruptcy laws, as now or hereafter constituted, or any other
applicable Federal or State bankruptcy, insolvency or other similar law, or the
consent by it to the entry of an order for relief in an involuntary case under
any such law or to the appointment of a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or other similar official) of the Company or
of any substantial part of its property, or the making by it of an assignment
for the benefit of its creditors, or the admission by it in writing of its
inability to pay its debts generally as they become due, or the taking of
corporate action by the Company in furtherance of any action; or
(c) the receipt by the Company of an opinion of a nationally
recognized independent tax counsel experienced in such matters to the effect
that there has been (a) an amendment to, change in or announced proposed change
in the laws (or any regulations thereunder) of the United States or any
political subdivision or taxing authority thereof or therein, (b) a judicial
decision interpreting, applying, or clarifying such laws or regulations, (c) an
administrative pronouncement or action that represents an official position
(including a clarification of an official position) of the governmental
authority or regulatory body making
27
33
such administrative pronouncement or taking such action, or (d) a threatened
challenge asserted in connection with an audit of the Company, any of its
subsidiaries or the Trust, or a threatened challenge asserted in writing against
any other taxpayer that has raised capital through the issuance of securities
that are substantially similar to the Securities or the TARGETS, which amendment
or change is adopted or which proposed change, decision or pronouncement is
announced or which action, clarification or challenge occurs on or after the
date of the Prospectus relating to the original issuance of the TARGETS
(collectively a "Tax Action"), which Tax Action relates to any of the items
described in (i) and (ii) below, and that there is more than an insubstantial
risk that (i) the Trust is, or will be subject to United States federal income
tax with respect to income accrued or received in respect of the Forward
Contract or the Treasury Securities, or (ii) the Trust is, or will be subject to
more than a de minimis amount of other taxes, duties or other governmental
charges; or
(d) the receipt by the Company of an opinion of a nationally
recognized independent counsel experienced in such matters to the effect that as
a result of the occurrence on or after the date hereof of a change in law or
regulation or a change in interpretation or application of law or regulation by
any legislative body, court, governmental agency or regulatory authority, the
Trust is or will be considered an Investment Company which is required to be
registered under the Investment Company Act.
SECTION 502 Acceleration of Maturity.
(a) If an Acceleration Event described in Section 501 shall
occur and be continuing, then the Company shall give written notice thereof to
the Trustee, which notice shall include a statement as to the amount of the
Accelerated Maturity Payment. On the Accelerated Maturity Date the Forward
Contract shall be automatically accelerated and the Accelerated Maturity Amount
shall be immediately due and payable. Upon receipt by the Trustee of the
Accelerated Maturity Amount, the Trustee shall remit to the Holders, in respect
of the Securities held by them, an amount in cash (the "Accelerated Maturity
Payment") equal to a pro rata portion (based on the beneficial interest in the
Forward Contract represented by such Securities) of the sum of (A) the product
of (i) multiplied by (ii) the Current Market Price of the Common Stock as of
the date one New York Business Day prior to the Accelerated Maturity Date,
multiplied by (iii) the Exchange Rate and (B) any accrued and unpaid Yield
Enhancement Payments (if any) through the Accelerated Maturity Date.
(b) As used herein, the "Accelerated Maturity Date" means the
date of the occurrence of the event or events constituting such Acceleration
Event.
(c) The Company agrees, and each Holder of Securities, by such
Holder's acceptance thereof, agrees that the Accelerated Maturity Amount is a
reasonable pre-estimate of loss to such Holder and is not a penalty. Such amount
is payable for the loss of bargain and a Holder will not be entitled to recover
additional damage as a consequence of loss resulting from any Acceleration
Event.
28
34
SECTION 503 Taxes.
The Company shall pay any and all documentary, stamp, transfer or
similar taxes and charges that may be payable in respect of the entry into this
Indenture and the performance of its obligations hereunder.
SECTION 504 Treatment of Forward Contract.
The Company hereby agrees that: (i) it will not treat this
Indenture, any portion of the Securities, or any obligation hereunder (except in
regards to any Yield Enhancement Payments (if any)) as giving rise to any
interest income or other inclusion of ordinary income on the part of the Holders
of the Securities; (ii) it will not treat the delivery of any portion of the
cash to be delivered pursuant to this Indenture (except in regards to any Yield
Enhancement Payments (if any)) as the payment of interest or ordinary income;
(iii) it will treat this Indenture in its entirety as a forward contract for the
delivery of such cash, under the terms of which contract (a) at the time of
issuance of the Securities the Holder deposits irrevocably with the Company a
fixed amount of cash equal to the purchase price of the Securities to assure
the fulfillment of the Holder's purchase obligation described in clause (c)
below, which deposit will unconditionally and irrevocably be applied at
Maturity to satisfy such obligation, (b) until Maturity the Company may be
obligated to pay Yield Enhancement Payments on such deposit as compensation to
the Holder for the Company's use of such cash deposit during the term of the
Securities, and (c) at Maturity such cash deposit unconditionally and
irrevocably will be applied by the Company in full satisfaction of the Holder's
obligation under the forward purchase contract, and the Company will deliver to
the Holder the amount of cash that the Holder is entitled to receive at that
time pursuant to the terms of the Securities; and (iv) it will not take any
action (including filing any tax return or form or taking any position in any
tax proceeding) that is inconsistent with the obligations contained in the
foregoing clauses (i) through (iii). Notwithstanding the preceding sentence, the
Company may take any action or position required by law, provided that the
Company delivers to the Trustee an opinion of counsel, nationally recognized as
expert in Federal tax matters, to the effect that such action or position is
required by a statutory change, Treasury regulation, or applicable court
decision published after the date of this Indenture.
SECTION 505 Notices.
The Company will or will cause to be delivered to the Trustee and to
each Holder:
(a) Immediately upon the occurrence of any Acceleration Event
hereunder, or upon the Company's obtaining knowledge that any of the conditions
or events described in Section 501(a) or (b) shall have occurred with respect to
the Designated Issuer, notice of such occurrence; and
(b) In case at any time prior to the Maturity Date the Company
receives notice, or otherwise obtains knowledge, that any event requiring that
an adjustment be effected pursuant to Sections 403, 404 and 405 hereof shall
have occurred or be pending, then the Company shall promptly cause to be
delivered to the Trustee and each Holder a notice identifying such event and
stating, if known to the Company, the date on which such event is to occur and,
if applicable, the record date relating to such event. The Company shall cause
further notices to be delivered to the Trustee and each Holder if the Company
shall subsequently receive notice, or otherwise obtain knowledge, of any further
or revised information regarding the terms or timing of such event or any record
date relating thereto.
SECTION 506 Collection of Amounts Owed and Suits for Enforcement by Trustee.
The Company covenants that if default is made in the payment of
amounts owed on any Security at Maturity, the Company will, upon demand of the
Trustee, pay to it, for the
29
35
benefit of the Holders of such Securities the whole amount then due and payable
on such Securities and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company fails to pay such amount forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may and shall
at the direction of the Holders of a majority of the Outstanding Securities,
institute a judicial proceeding for the collection of the sums so due and
unpaid, and may and shall, at the direction of the Holders of a majority of the
Outstanding Securities, prosecute such proceeding to judgment or final decree,
and may and shall, at the direction of the Holders of a majority of the
Outstanding Securities, enforce the same against the Company or any other
obligor upon such Securities, and collect the monies adjudged or decreed to be
payable in the manner provided by law out of the property of the Company or any
other obligor upon such Securities wherever situated.
If an Acceleration Event occurs and is continuing, the Trustee may
in its discretion proceed to protect and enforce its rights and the rights of
the Holders of the Securities by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
SECTION 507 Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expense,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 508 Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of the Securities, upon
presentation of the Securities and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under Section
606; and
Second: To the payment of the amounts then due and unpaid on the
Securities in respect of which or for the benefit of which such money has
been collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities.
30
36
Third: The balance, if any, to the Person or Persons entitled
thereto.
SECTION 509 Limitation on Suits.
No Holder of any Security shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has (i) previously given written notice to the
Trustee of a continuing Acceleration Event with respect to the Forward
Contract and (ii) the Holders of not less than 25% of the Outstanding
Securities shall have made written request to the Trustee to institute
proceedings in respect of such Acceleration Event in its own name as
Trustee hereunder;
(2) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(3) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(4) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority of the Outstanding Securities; it being understood and intended
that no one or more of such Holders shall have any right in any manner
whatever by virtue of, or by availing of, any provision of this Indenture
to affect, disturb or prejudice the rights of any other of such Holders,
or to obtain or to seek to obtain priority or preference over any other of
such Holders or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and ratable benefit of all of
Holders. For the protection and enforcement of the provisions of this
Section 509, each and every Holder of Securities and the Trustee shall be
entitled to such relief as can be given at law or in equity.
SECTION 510 Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 511 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of a mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 305, no right or
31
37
remedy herein conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 512 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Securities to exercise any right or remedy accruing upon any Acceleration Event
shall impair any such right or remedy or constitute a waiver of any such
Acceleration Event or an acquiescence therein. Every right and remedy given by
this Article V or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
SECTION 513 Control by Holders.
The Holders of a majority of the Outstanding Securities shall have
the right to direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust or power conferred
on the Trustee, with respect to the Securities, provided that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture, and
(2) subject to the provisions of Section 601, the Trustee
shall have the right to decline to follow any such direction if the
Trustee in good faith shall, by a Responsible Officer or Responsible
Officers of the Trustee, determine that the proceeding so directed would
be unjustly prejudicial to the Holders of Securities not joining in any
such direction; and
(3) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 514 Waiver of Past Defaults.
The Holders of not less than a majority of the Outstanding
Securities may on behalf of the Holders of all the Securities waive any past
default hereunder and its consequences, except a default in the payment of
amounts owed in respect of any Security, or in respect of a covenant or
provision hereof which under Article Eight cannot be modified or amended without
the consent of the Holder of each Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and any
Acceleration Event arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture,
32
38
but no such waiver shall extend to any subsequent or other default or impair any
right consequent thereon.
SECTION 515 Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
SECTION 516 Filing Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, competition or
other judicial proceedings, or any voluntary or involuntary case under the
Federal bankruptcy laws, as now or hereafter constituted, 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 amount owed on such Securities shall then be due and payable as
therein expressed or by declaration of acceleration or otherwise and
irrespective of whether the Trustee shall have made any demand on the Company
for the payment of amounts due on the Securities) shall be entitled and
empowered, any intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amounts owing and
unpaid in respect of the Securities and to file such other
papers or documents as may be necessary or advisable in order
to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel) and of the Holders of
such Securities allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, custodian, liquidator, sequestrator (or
other similar official) in any such proceeding is hereby authorized by each such
Holder to make such payments to the Trustee, and in the event that the Trustee
shall consent to the making of such payments directly to such Holders, to pay to
the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 606 of this Indenture.
Nothing herein shall be deemed to authorize the Trustee to authorize
or consent to or accept or adopt, on behalf of any Holder any plan or
reorganization, arrangement, adjustment
33
39
or composition affecting the Securities or the rights of any Holder thereof, or
to authorize the Trustee to vote in respect of the claim of any Holder in such
proceeding.
SECTION 517 Unconditional Right of Holders to Receive Payments.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the amounts owed on such Security and to institute suit for
the enforcement of any such payment and interest thereon, and such right shall
not be impaired without the consent of the Holder.
SECTION 518 Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case the Company, the
Trustee and the Holders shall, subject to any determination in such proceeding,
be restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 519 Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security
by such Holder's acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant,
but the provisions of this Section 519 shall not apply to any suit instituted by
the Trustee, to any suit instituted by any Holder or group of Holders holding in
the aggregate more than 10% of the Outstanding Securities, or to any suit
instituted by any Holder of a Security for the enforcement of the payment of
amounts owed on such Security on or after the Maturity Date or Accelerated
Maturity Date.
ARTICLE VI
THE TRUSTEE
SECTION 601 Certain Rights of Trustee.
Subject to the provisions of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other
34
40
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request, certification, order, act or direction of the
Company mentioned herein shall be sufficiently evidenced by a Company Request or
Company Order and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith on
its part, rely upon an Officers' Certificate;
(d) the Trustee may at any time (i) consult with counsel and
the advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon and (ii) seek instructions
concerning the administration of this Indenture from any court of competent
jurisdiction;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such Holders
shall have provided to the Trustee reasonable security or indemnity against the
costs, expenses (including attorney's fees and expenses and the expenses of the
Trustee's agents, nominees and custodians) and liabilities which might be
incurred by it in compliance with such request or direction including such
reasonable advances as may be requested by the Trustee;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
(including, without limitations, any instruments or certificates delivered
pursuant to Section 304 hereof), but the Trustee, in its discretion, may make
such further inquiry or investigation into such facts or matters as it may see
fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises
of the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due care by it
hereunder;
(h) the Trustee shall not be required to expend or risk its
own funds or otherwise incur any financial liability in the performance of any
of its duties hereunder, or in the exercise of any of its rights or powers, if
it shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it;
35
41
(i) the granting of any right to the Trustee hereunder shall
not be deemed to impose on the Trustee an obligation to exercise such rights,
subject to Section 601(j); and
(j) the Trustee shall not be obligated to take any action or
to exercise any remedy hereunder unless directed to do so by the Holders of a
majority of the Securities then Outstanding and shall have no liability for its
failure to act pending receipt by it of any such direction.
This Section 601 is in furtherance of and subject to Sections 315
and 316 of the Trust Indenture Act.
SECTION 602 Certain Duties and Responsibilities of Trustee.
(a) Except upon the occurrence of an Acceleration Event;
(1) the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture,
and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture; but in the case of any such certificates or
opinions which by any provision hereof are specifically required to
be furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform to the
requirements of this Indenture.
(b) In case an Acceleration Event with respect to the
Securities, of which a Responsible Officer of the Trustee has actual knowledge,
has occurred and is continuing, the Trustee shall exercise such of the rights
and powers vested in it by this Indenture, and use the same degree of care and
skill in their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that
(1) this subsection shall not be construed to limit the
effect of subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it
shall be proved that the Trustee was negligent in ascertaining the
pertinent facts;
36
42
(3) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a majority of the
Outstanding Securities determined as provided in Section 513,
relating to the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee, under this Indenture with respect
to the Securities; and
(4) no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such
funds or indemnity, reasonably satisfactory to it, against such risk
or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of
this Section.
SECTION 603 Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities. The Trustee shall not be accountable for the use
or application by the Company of Securities or the proceeds thereof.
SECTION 604 May Hold Securities.
The Trustee, any Paying Agent, any Security Registrar or any other
agent of the Company, in its individual or any other capacity, may become the
owner or pledgee of Securities and may otherwise deal with the Company with the
same rights it would have if it were not Trustee, Paying Agent, Security
Registrar or such other agent.
SECTION 605 Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
SECTION 606 Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard
to the compensation of a trustee
37
43
of an express trust as set forth in a separate fee letter between
the Trustee and the Company);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or
advance as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee 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 the trust or trusts
hereunder, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise of
performance of any of its powers or duties hereunder.
SECTION 607 Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder that shall be
eligible to act as Trustee under an indenture qualified under the Trust
Indenture Act and that has a combined capital and surplus of at least
$50,000,000. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of federal, state, territorial
or District of Columbia supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time the Trustee shall cease
to be eligible in accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect hereinafter specified in
this Article VI.
SECTION 608 Resignation and Removal; Appointment of Successor.
(a) The Trustee may resign at any time with respect to the
Securities upon giving written notice thereof to the Company. If the instrument
of acceptance by a successor Trustee required by Section 609 shall not have been
delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities.
(b) The Trustee may be removed at any time with respect to the
Securities by Act of the Holders of a majority of the Outstanding Securities,
delivered to the Trustee and to the Company.
(c) If at any time:
38
44
(1) the Trustee shall fail to comply with Section 310(b)
of the Trust Indenture Act after written request therefor by the
Company or by any Holder who has been a bona fide Holder of a
Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section
310(a) of the Trust Indenture Act and shall fail to resign after
written request therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of the
Trustee or of its property shall be appointed or any public officer
shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 315(c) of the
Trust Indenture Act, any Holder who has been a bona fide Holder of Security for
at least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee with
respect to all Securities and the appointment of a successor Trustee or
Trustees.
(d) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, with respect to the Securities, the Company, by a Board Resolution,
shall promptly appoint a successor Trustee or Trustees with respect to the
Securities (it being understood that any such successor Trustee may be appointed
with respect to the Securities and that at any time there shall be only one
Trustee with respect to the Securities) and shall comply with the applicable
requirements of Section 609. If, within one year after such resignation, removal
or incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities shall be appointed by Act of the Holders of a majority
of the Outstanding Securities delivered to the Company and the retiring Trustee,
the successor Trustee so appointed shall, forthwith upon its acceptance of such
appointment in accordance with the applicable requirements of Section 609,
become the successor Trustee with respect to the Securities and to that extent
supersede the successor Trustee appointed by the Company. If no successor
Trustee with respect to the Securities shall have been so appointed by the
Company or the Holders and accepted appointment in the manner required by
Section 609, any Holder who has been a bona fide Holder of a Security for at
least six months may, on behalf of such Holder and all others similarly
situated, petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities.
(e) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities and each appointment of a
successor Trustee with respect to the Securities in the manner provided in
Section 106. Each notice shall include the name of the successor Trustee with
respect to the Securities and the address of its Corporate Trust Office.
39
45
SECTION 609 Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor
Trustee with respect to the Securities, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee,
but, on the request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities, the Company, the retiring Trustee and
each successor Trustee with respect to the Securities 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, (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 shall continue
to be vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities but, on request of the
Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be qualified and
eligible under the Trust Indenture Act.
40
46
SECTION 610 Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
SECTION 611 Disclosure of Names and Addresses of Holders.
Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that none of the Company or the Trustee
or any agent of either of them shall be held accountable by reason of the
disclosure of any information as to the names and addresses of the Holders of
Securities in accordance with Section 312 of the Trust Indenture Act, regardless
of the source from which such information was derived, and that the Trustee
shall not be held accountable by reason of mailing any material pursuant to a
request made under Section 312(b) of the Trust Indenture Act.
SECTION 612 Reports by Trustee.
Within 60 days after April 15 of each year commencing with the first
May 15 after the first issuance of Securities pursuant to this Indenture, the
Trustee shall transmit by mail to all Holders of Securities as provided in Trust
Indenture Act Section 313(c) a brief report dated as of such April 15 if
required by Trust Indenture Act Section 313(a).
ARTICLE VII
CONSOLIDATION, MERGER OR SALE
SECTION 701 Consolidation, Merger or Sale.
The Company shall not consolidate with or merge into any other
corporation or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, unless:
(1) the Person formed by such consolidation or into
which the Company is merged or the Person which acquires by
conveyance or transfer, or which leases, the properties and assets
of the Company substantially as an entirety shall be a corporation
organized and existing under the laws of the United States of
America, any State thereof or the District of Columbia and shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the
41
47
Trustee, in form satisfactory to the Trustee, the due and punctual
payment of amounts owed on all Securities and the performance of
every covenant of this Indenture on the part of the Company to be
performed or observed,
(2) immediately after giving effect to such transaction,
no Acceleration Event, and no event which, after notice or lapse of
time or both, would become an Acceleration Event, shall have
happened and be continuing; and
(3) the Company has delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each stating that
such consolidation, merger, conveyance, transfer or lease and such
supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such
transaction have been complied with.
SECTION 702 Successor Corporation Substituted.
Upon any consolidation by the Company with or merger by the Company
into any other Person or any conveyance, transfer or lease of the properties and
assets of the Company substantially as an entirety in accordance with Section
701, the successor corporation formed by such consolidation or into which the
Company is merged or to which such conveyance, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
corporation had been named as the Company herein, and thereafter, except in the
case of a lease, the predecessor corporation shall be relieved of all
obligations and covenants under this Indenture and the Securities.
ARTICLE VIII
SUPPLEMENTAL INDENTURES
SECTION 801 Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by
a Board Resolution, and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental hereto, in form satisfactory to
the Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to
the Company and the assumption by any such successor of the
covenants of the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the
benefit of the Holders or to surrender any right or power herein
conferred upon the Company; or
42
48
(3) to add any additional Acceleration Events with
respect to the Forward Contract; or
(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or
facilitate the issuance of the Securities in bearer form,
registrable or not registrable, or to provide for an uncertificated
(commonly known as "book-entry") Security on terms satisfactory in
substance to the Trustee; or
(5) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become
effective only when there is no Outstanding Security which is
entitled to the benefit of such provision; or
(6) to secure the Securities; or
(7) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Securities 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 609(b); or
(8) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided such action shall
not adversely affect the interests of the Holders of Securities in
any material respect.
SECTION 802 Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority of the
Outstanding Securities, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities under this Indenture; provided, however, that no
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby,
(1) change the Maturity of the Forward Contract, or
reduce the Maturity Payment payable on the Maturity Date, or reduce
the Accelerated Maturity Payment that would be due and payable on an
Accelerated Maturity Date pursuant to Section 502, or reduce the
Yield Enhancement Payments, if any, that would be due and payable
pursuant to Section 308, or change the coin or currency in which
amounts owed in respect of the Forward Contract are payable, or
impair the right to institute suit for the enforcement of any such
payment, on or after the Maturity thereof, or reduce the percentage
of the Outstanding Securities, the
43
49
consent of whose Holders is required for any such supplemental
indenture, or the consent of whose Holders is required for any
waiver of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences provided for in
this Indenture, or
(2) change any obligation of the Company to maintain an
office or agency in the places and for the purposes specified in
Section 902, or
(3) modify any of the provisions of this Section 802,
Section 515, or Section 905, except to increase any such percentage
in Section 905 to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the
Holder of each Outstanding Security affected thereby; provided,
however, that this clause shall not be deemed to require the consent
of any Holder with respect to changes in the references to "the
Trustee" and concomitant changes in this Section, or the deletion of
this proviso, in accordance with the requirements of Sections 608(b)
and 801(7).
It shall not be necessary for any Act of Holders under this Section
to approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
SECTION 803 Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and shall be fully protected in relying upon, an Opinion of Counsel, the
preparation of which shall not be at the expense of the Trustee, stating that
the execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
SECTION 804 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 805 Conformity with Trust Indenture Act.
After this Indenture is qualified pursuant to the Trust Indenture
Act, every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
44
50
SECTION 806 Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
any new Securities so modified as to conform, in the opinion of the Trustee and
the Company, to any such supplemental indenture may be prepared and executed by
the Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities.
ARTICLE IX
COVENANTS
SECTION 901 Payment.
The Company covenants and agrees for the benefit of the Holders of
the Securities that it will duly and punctually pay all amounts owed on the
Securities in accordance with the terms of the Securities and this Indenture.
SECTION 902 Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for the
Securities an office or agency where the Securities may be presented or
surrendered for payment, where the Securities may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company in respect of the Securities and this Indenture may be served. The
Company will give prompt written notice to the Trustee of the location, and any
change in the location, of any such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof; such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee as its agent to receive all
such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in each
Place of Payment for the Securities 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 903 Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any Securities, it will, on or before each due date of amounts owed
on such Securities, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the amounts
45
51
owed so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents with
respect to the Securities, it will, prior to each due date of amounts owed in
respect of the Securities, deposit with any such Paying Agent a sum sufficient
to pay the amounts owed in respect of the Securities so becoming due, such sum
to be held in trust for the benefit of the Persons entitled thereto, and (unless
such Paying Agent is the Trustee) the Company will promptly notify the Trustee
of its action or failure so to act.
The Company will cause each Paying Agent of the Securities other
than the Trustee to execute and deliver to the Trustee an instrument in which
such Paying Agent shall agree with the Trustee, subject to the provisions of
this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of amounts
owed in respect to the Securities in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the
Company (or any other obligor upon the Securities) in the making of
any payment of amounts owed in respect to the Securities; and
(3) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith pay to
the Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the amounts owed in respect to
any Security and remaining unclaimed for two years after such amount has become
due and payable shall be paid to the Company on Company Request along with any
interest that has accumulated thereon as a result of such money being invested
at the direction of the Company, or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security shall thereafter, as
an unsecured general creditor, look only to the Company for payment of such
amounts without interest thereon, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the Company
as trustee thereof, shall thereupon cease; provided, however, that the Trustee
or such Paying Agent, before being required to make any such repayment, may at
the expense of the Company cause to be published once, in a newspaper
46
52
published in the English language, customarily published on each Business Day
and of general circulation in The City of New York, or cause to be mailed to
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 balance of such money then remaining will
be repaid to the Company.
SECTION 904 Limitation on Liens.
The Company will not, and will not permit any Restricted Subsidiary
to, incur, issue, assume guarantee or suffer to exist any indebtedness for
borrowed money (indebtedness for borrowed money being hereinafter in this
section called "debt") if such debt is secured by a pledge of, lien on, or
security interest in any shares of stock of any Restricted Subsidiary, whether
such stock is now owned or shall hereafter be acquired, without effectively
providing that the Securities shall be secured equally and ratably with such
debt.
SECTION 905 Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
covenant, set forth herein, if before the time for such compliance, the Holders
of at least a majority of the Outstanding Securities shall, by Act of such
Holders, either waive such compliance in such instance or generally waive
compliance with such covenant, but no such waiver shall extend to or affect such
covenant except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the duties of the Trustee
in respect of any such covenant shall remain in full force and effect.
SECTION 906 Officers' Certificate as to Default.
The Company will deliver to the Trustee, on or before a date not
more than four months after the end of each fiscal year of the Company (which on
the date hereof is the calendar year) ending after the date hereof, an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observation of any of the
terms, provisions and conditions of this Indenture, and, if the Company shall be
in default, specifying all such defaults and the nature thereof of which they
may have knowledge.
The Company will deliver written notice to the Trustee promptly
after any officer of the Company has knowledge of the occurrence of any event
that with the giving of notice or the lapse of time or both would become an
Acceleration Event under Section 501.
SECTION 907 Payment of Expenses.
(a) In connection with the offering, sale and issuance of the
Securities and in connection with the sale of any securities by the Trust
(collectively, the "Trust Securities"), the Company, in its capacity as issuer
with respect to the Securities, shall:
(i) pay all costs and expenses relating to the offering,
sale and issuance of the Trust Securities, including
commissions and
47
53
compensation to the underwriters payable pursuant to any
applicable underwriting agreement and compensation of
the Trustee under this Indenture in accordance with the
provisions of Section 606;
(ii) pay all costs and expenses of the Trust (including, but
not limited to, costs and expenses relating to the
organization of the Trust, the offering, sale and
issuance of the Trust Securities of the Trust (including
commissions and compensation to the underwriters in
connection therewith), the fees and expenses of the
Institutional Trustee, the Regular Trustees and the
Delaware Trustee of the Trust, the costs and expenses
relating to the operation, maintenance and dissolution
of the Trust and the enforcement by the Institutional
Trustee of the rights of the holders of the Trust
Securities, including without limitation, costs and
expenses of accountants, attorneys, statistical or
bookkeeping services, expenses for printing and
engraving and computing or accounting equipment, paying
agent(s), registrar(s), transfer agent(s), duplicating,
travel and telephone and other telecommunications
expenses and costs and expenses incurred in connection
with the acquisition, financing, and disposition of
assets of the Trust);
(iii) be primarily liable for any indemnification obligations
arising with respect to the Declaration of the Trust and
the Amended and Restated Declaration of the Trust; and
(iv) pay any and all taxes (other than United States
withholding taxes in respect of amounts paid on the
Securities held by the Trust) and all liabilities, costs
and expenses with respect to such taxes of the Trust.
(b) Upon termination of this Indenture or the Securities or
the removal or resignation of the Trustee pursuant to Section 608, the Company
shall pay to the Trustee all amounts accrued and owing to the Trustee to the
date of such termination, removal or resignation. Upon termination of the
Amended and Restated Declaration of the Trust or the removal or resignation of
the Delaware Trustee or the Institutional Trustee, as the case may be, pursuant
to Section 5.6 of the Amended and Restated Declaration of the Trust, the Company
shall pay to such Delaware Trustee or such Institutional Trustee, as the case
may be, all amounts accrued and owing to such Delaware Trustee or such
Institutional Trustee, as the case may be, to the date of such termination,
removal or resignation.
48
54
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
XXXXXXX XXXXX XXXXXX HOLDINGS INC.
By:_______________________________
Name:
Title:
[SEAL]
Attest:
_____________________________
THE CHASE MANHATTAN BANK,
Trustee
By:_______________________________
Name:
Title:
[SEAL]
Attest:
_____________________________
49
55
STATE OF NEW YORK )
ss.:
COUNTY OF NEW YORK )
On this day of , before me personally appeared , to be
known, who, being by me duly sworn, did depose and say that he is a of
XXXXXXX XXXXX XXXXXX HOLDINGS INC., the corporation described in and which
executed the foregoing instrument; that he knows the seal of the said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the board of directors of said
corporation; and that he signed his name thereto by like authority.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
____________________________________
Notary Public
[Notarial Seal]
50
56
STATE OF NEW YORK )
ss.:
COUNTY OF NEW YORK )
On the day of , before me personally appeared , to me
known, who, being by me duly sworn, did depose and say that she is a of The
Chase Manhattan Bank, the New York banking corporation described in and which
executed the forgoing instrument; that she knows the seal of said New York
banking corporation; that the seal affixed to said instrument is such seal;
that it was so affixed by authority of the Board of Directors of said New York
banking corporation, and that she signed her name thereto by like authority.
____________________________________
Notary Public
[Notarial Seal]
51
57
EXHIBIT A
NO. 1
XXXXXXX XXXXX XXXXXX HOLDINGS INC.
Forward Contract
with respect to Common Stock
XXXXXXX XXXXX BARNEY HOLDINGS INC., a corporation duly organized and
existing under the laws of Delaware (herein called the "Company," which term
includes any successor Person), for value received, hereby certifies that The
Chase Manhattan Bank, as Institutional Trustee of TARGETS Trust III, or
registered assigns, is the owner of a 100% interest in the Forward Contract (as
defined in the Indenture referred to below) and, as such, is entitled to receive
from the Company its pro rata share of (i) the Maturity Payment on , subject to
acceleration to an Accelerated Maturity Date and adjustment to the Accelerated
Maturity Payment pursuant to the terms of the Indenture and (ii) the Yield
Enhancement Payments, if any, on each Payment Date.
Payment of (i) the Maturity Payment or Accelerated Maturity Payment,
as the case may be, and (ii) the Yield Enhancement Payments, if any, with
respect to this Security will be made at the office or agency of the Company
maintained for that purpose in the Borough of Manhattan, The City of New York,
in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts.
Reference is hereby made to the further provisions of this Security
set forth after the Trustee's certificate of authentication, which further
provisions shall for all purposes have the same effect as if set forth at this
place.
Unless the certificate of authentication hereon has been executed by
the Trustee by manual signature, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose.
A-1
58
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed under its corporate seal.
Dated:
XXXXXXX XXXXX XXXXXX HOLDINGS INC.
__________________________________________
By:
__________________________________________
By:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned Indenture.
The Chase Manhattan Bank, as Trustee
By:_________________________________
Authorized Signatory
A-2
59
XXXXXXX XXXXX XXXXXX HOLDINGS INC.
Forward Contract
with respect to Common Stock
This Security is one of a duly authorized issue of the Company
(herein called the "Securities"), issued and to be issued under an Indenture
dated as of , 1999 (herein called the "Indenture") between the Company
and The Chase Manhattan Bank (herein called the "Trustee," which term includes
any successor trustee under the Indenture), relating to a Forward Contract with
respect to Common Stock, to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered.
The Securities are not subject to redemption at the option of the
Company or at the option of the Holder prior to maturity; however, if certain
Acceleration Events shall have occurred and be continuing, the maturity of the
Securities will be accelerated to the Accelerated Maturity Date pursuant to the
terms of the Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities to be affected under the
Indenture at any time by the Company and the Trustee with the consent of the
Holders of not less than a majority of the Securities at the time Outstanding to
be affected. The Indenture also contains provisions permitting the Holders of
specified percentages of the Securities at the time Outstanding, on behalf of
the Holders of all Securities, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by a Holder of this Security
shall be conclusive and binding upon such Holder and upon all future Holders of
this Security and of any Security issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay (i) the Maturity Payment or
Accelerated Maturity Payment, as the case may be, and (ii) the Yield Enhancement
Payments, if any, with respect to this Security at the time, place and rate, and
in the coin or currency, prescribed in the Indenture.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in the Borough of Manhattan, The City of New
York, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Security Registrar and duly executed
by, the Holder hereof or the Holder's attorney duly authorized in writing, and
thereupon one or more new Securities will be issued to the designated transferee
or transferees.
A-3
60
The Securities are issuable only in registered form. As provided in
the Indenture and subject to certain limitations therein set forth, the
Securities are exchangeable for one or more new Securities of like tenor and
representing an equal aggregate beneficial interest in the Forward Contract to
be surrendered for exchange. If (a) any Depositary is at any time unwilling or
unable to continue as depositary and a successor depositary is not appointed by
the Company within 90 days or (b) the Company executes and delivers to the
Trustee a Company Order to the effect that the Global Securities shall be
exchangeable for certificated Securities, the Global Securities will be
exchangeable for Securities in definitive certificated form of like tenor. Such
definitive Securities shall be registered in such name or names as the
Depositary shall instruct the Trustee.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security that are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
A-4
61
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
[Please Insert Social Security Number or Other Identifying Number of Assignee]
________________________________________________________________________________
[PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF ASSIGNEE:]
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
The within Security of Xxxxxxx Xxxxx Xxxxxx Holdings Inc. and does hereby
irrevocably constitute and appoint
________________________________________________________________________________
Attorney to transfer said Security on the books of said Company, with full power
of substitution in the premises.
Dated:____________________________ ________________________________________
NOTICE: The signature to this
assignment must correspond with the
name as written upon the first page of
the within Security in every
particular, without alteration or
enlargement or any change whatever,
and be guaranteed by the endorser's
bank or broker.
A-5
