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Exhibit 4(a)
X.X. XXXXX COMPANY
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INDENTURE
Dated as of July 15, 1992
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The First National Bank of Chicago,
Trustee
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TABLE OF CONTENTS
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Parties.......................................................................1
Recitals......................................................................1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions......................................................1
"Act"............................................................2
"Affiliate"......................................................2
"Authorized Newspaper"...........................................2
"Authorized Officer".............................................2
"Bearer Security"................................................2
"Board of Directors".............................................2
"Board Resolution"...............................................2
"Business Day"...................................................3
"Capital Stock"..................................................3
"CEDEL S.A.".....................................................3
"Commission".....................................................3
"Company"........................................................3
"Company Request" and "Company Order"............................3
"Consolidated Net Assets"........................................3
"Corporate Trust Office".........................................3
"Coupon".........................................................4
"Default Interest"...............................................4
"Dollar or $"....................................................4
"DTC"............................................................4
"Euro-clear".....................................................4
"Event of Default"...............................................4
"Funded Debt"....................................................4
"Holder".........................................................4
"Indenture"......................................................4
"Interest".......................................................4
"Interest Payment Date"..........................................4
"Internal Revenue Code"..........................................5
"Maturity".......................................................5
"Officers' Certificate"..........................................5
"Opinion of Counsel".............................................5
"Original Issue Discount Security"...............................5
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"Outstanding"....................................................5
"Paying Agent"...................................................6
"Person".........................................................6
"Place of Payment"...............................................6
"Predecessor Security"...........................................7
"Principal Property".............................................7
"Redemption Date"................................................7
"Redemption Price"...............................................7
"Registered Security"............................................7
"Regular Record Date"............................................7
"Responsible Officer"............................................8
"Restricted Subsidiary"..........................................8
"Securities".....................................................8
"Security Register" and "Security Registrar".....................8
"Special Record Date"............................................8
"Stated Maturity"................................................8
"Subsidiary".....................................................8
"Trustee"........................................................8
"Trust Indenture Act"............................................8
"United States"..................................................9
"United States Alien"............................................9
"U.S. Government Obligations"....................................9
"Voting Stock"...................................................9
SECTION 102. Compliance Certificates and Opinions.............................9
SECTION 103. Form of Documents Delivered to Trustee..........................10
SECTION 104. Acts of Holders.................................................11
SECTION 105. Notices, Etc., to Trustee and Company...........................12
SECTION 106. Notice to Holders; Waiver.......................................13
SECTION 107. Language of Notices, Etc........................................14
SECTION 108. Conflict with Trust Indenture Act...............................14
SECTION 109. Effect of Headings and Table of Contents........................14
SECTION 110. Successors and Assigns..........................................14
SECTION 111. Separability Clause.............................................14
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SECTION 112. Benefits of Indenture...........................................15
SECTION 113. Governing Law...................................................15
SECTION 114. Legal Holidays..................................................15
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.................................................15
SECTION 202. Form of Trustee's Certificate of Authentication.................16
SECTION 203. Securities in Global Form.......................................17
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series............................18
SECTION 302. Denominations...................................................20
SECTION 303. Execution, Authentication, Delivery and Dating..................21
SECTION 304. Temporary Securities............................................23
SECTION 305. Registration, Registration of
Transfer and Exchange...........................................25
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities................29
SECTION 307. Payment of Interest; Interest Rights Preserved..................30
SECTION 308. Persons Deemed Owners...........................................32
SECTION 309. Cancellation....................................................32
SECTION 310. Computation of Interest.........................................32
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ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.........................33
SECTION 402. Application of Trust Money......................................34
SECTION 403. Discharge and Defeasance of
Securities of any Series........................................34
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default...............................................37
SECTION 502. Acceleration of Maturity;
Rescission and Annulment........................................38
SECTION 503. Collection of Indebtedness and
Suits for Enforcement by Trustee................................39
SECTION 504. Trustee May File Proofs of Claim................................40
SECTION 505. Trustee May Enforce Claims Without
Possession of Securities or Coupons.............................41
SECTION 506. Application of Money Collected..................................41
SECTION 507. Limitation on Suits.............................................42
SECTION 508. Unconditional Rights of Holders to
Receive Principal, Premium and Interest.........................42
SECTION 509. Restoration of Rights and Remedies..............................43
SECTION 510. Rights and Remedies Cumulative..................................43
SECTION 511. Delay or Omission Not Waiver....................................43
SECTION 512. Control by Holders..............................................43
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SECTION 513. Waiver of Past Defaults.........................................44
SECTION 514. Undertaking for Costs...........................................44
SECTION 515. Waiver of Stay or Extension Laws................................45
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.............................45
SECTION 602. Notice of Defaults..............................................47
SECTION 603. Certain Rights of Trustee.......................................47
SECTION 604. Not Responsible for Recitals
or Issuance of Securities.......................................48
SECTION 605. May Hold Securities.............................................49
SECTION 606. Money Held in Trust.............................................49
SECTION 607. Compensation and Reimbursement..................................49
SECTION 608. Disqualification; Conflicting Interests.........................50
SECTION 609. Corporate Trustee Required; Eligibility.........................50
SECTION 610. Resignation and Removal;
Appointment of a Successor......................................50
SECTION 611. Acceptance of Appointment by Successor..........................52
SECTION 612. Merger, Conversion, Consolidation
or Succession to Business.......................................54
SECTION 613. Preferential Collection of
Claims Against Company..........................................54
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and
Addresses of Holders of Registered Securities...................54
SECTION 702. Preservation of Information;
Communications to Holders.......................................55
SECTION 703. Reports by Trustee..............................................56
SECTION 704. Reports by Company..............................................58
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc.,
Only on Certain Terms...........................................59
SECTION 802. Successor Substituted...........................................60
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without
Consent of Holders..............................................60
SECTION 902. Supplemental Indentures with
Consent of Holders..............................................62
SECTION 903. Execution of Supplemental Indentures............................63
SECTION 904. Effect of Supplemental Indentures...............................63
SECTION 905. Conformity with Trust Indenture Act.............................63
SECTION 906. Reference in Securities to
Supplemental Indentures.........................................64
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ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest......................64
SECTION 1002. Maintenance of Office or Agency.................................64
SECTION 1003. Money for Security Payments
to Be Held in Trust.............................................66
SECTION 1004. Restrictions on Secured Debt....................................67
SECTION 1005. Statement as to Compliance......................................69
SECTION 1006. Corporate Existence.............................................70
SECTION 1007. Waiver of Certain Covenants.....................................70
SECTION 1008. Additional Amounts..............................................70
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of This Article...................................71
SECTION 1102. Election to Redeem; Notice to Trustee...........................71
SECTION 1103. Selection by Trustee of
Securities to be Redeemed.......................................72
SECTION 1104. Notice of Redemption............................................72
SECTION 1105. Deposit of Redemption Price.....................................73
SECTION 1106. Securities Payable on Redemption Date...........................73
SECTION 1107. Securities Redeemed in Part.....................................75
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ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article........................................75
SECTION 1202. Satisfaction of Sinking Fund
Payments With Securities........................................75
SECTION 1203. Redemption of Securities for Sinking Fund.......................76
ARTICLE THIRTEEN
MEETINGS OF THE HOLDERS OF SECURITIES
SECTION 1301. Purposes for Which Meetings May be Called.......................76
SECTION 1302. Call, Notice and Place of Meetings..............................77
SECTION 1303. Persons Entitled to Vote at Meetings............................77
SECTION 1304. Quorum; Action..................................................78
SECTION 1305. Determination of Voting Rights;
Conduct and Adjournmen..........................................79
SECTION 1306. Counting Votes and Recording
Action of Meetings..............................................80
COUNTERPARTS.................................................................
TESTIMONIUM..................................................................
SIGNATURE AND SEALS..........................................................
ACKNOWLEGEMENTS..............................................................
Exhibit A. Form of Registered Security....................................
Exhibit B. Form of Bearer Security........................................
Exhibit C. Forms of Certification.........................................
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INDENTURE, dated as of July 15, 1992, from X.X. XXXXX COMPANY, a
Pennsylvania corporation (hereinafter called the "Company") having its principal
office at 000 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000, to The First
National Bank of Chicago, a national banking association existing under the laws
of the United States of America (hereinafter called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (hereinafter called the
"Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities or of a
series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them
in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting
principles in the United States, and, except as otherwise herein
expressly provided, the term "generally accepted accounting
principles" with respect to any computation required or permitted
hereunder shall mean such accounting
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principles which are generally accepted in the United States at the
date or time of such computation; and
(4) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in that
Article.
"Act", when used with respect to any Holder, has the meaning specified in
Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authorized Newspaper" means a newspaper, in the English language or in an
official language of the country of publication, customarily published on each
Business Day, whether or not published on Saturdays, Sundays or holidays, and of
general circulation in the place in connection with which the term is used or in
the financial community of such place. Where successive publications are
required to be made in Authorized Newspapers, the successive publications may be
made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
"Authorized Officer", when used with respect to the Company, means the
Chairman of the Board, the Vice Chairman of the Board, the President and Chief
Executive Officer, the chief financial officer, the chief legal officer, the
Treasurer, an Assistant Treasurer, the Controller, an Assistant Controller, the
Secretary or an Assistant Secretary of the Company.
"Bearer Security" means any Security substantially in the form for Bearer
Securities set forth in Exhibit B or established pursuant to Section 201 which
is payable to bearer.
"Board of Directors" means either the board of directors of the Company or
any 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
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Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment or any other
particular location referred to in the Indenture or in the Securities, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment or other location are authorized
or obligated by law or executive order to close, unless otherwise specified for
a particular series of Securities.
"Capital Stock", as applied to the stock of any corporation, means the
capital stock of every class whether now or hereafter authorized, regardless of
whether such capital stock shall be limited to a fixed sum or percentage with
respect to the rights of the holders thereof to participate in dividends and in
the distribution of assets upon the voluntary or involuntary liquidation,
dissolution or winding up of such corporation.
"CEDEL S.A." means Centrale de Livraison de Valeurs Mobilieres S.A.
"Commission" means the Securities and Exchange commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, or if at
any time after the execution of this instrument such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
"Company Request" and "Company Order" mean, respectively, a written request
or order signed in the name of the Company by two Authorized Officers of the
Company, and delivered to the Trustee.
"Consolidated Net Assets" means total assets after deducting therefrom all
current liabilities as set forth on the most recent balance sheet of the Company
and its consolidated subsidiaries and computed in accordance with generally
accepted accounting principles.
"Corporate Trust Office" means the principal corporate trust office of the
Trustee at which, at any particular time, its corporate trust business shall be
administered, which office at the date hereof is located at Xxx Xxxxx Xxxxxxxx
Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000-0000, Attention: Corporate Trust
Services Division, except that for purposes of Section 1002, such term shall
mean the office or
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agency of the Trustee in the Borough of Manhattan, the City of New York, which
office at the date hereof is located at 00 Xxxx Xxxxxx, Xxxxxx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000.
"Coupon" means any interest coupon appertaining to a Bearer Security.
"Default Interest" has the meaning specified in Section 307.
"Dollar or $" means a dollar or other equivalent unit in such coin or
currency of the United States as at the time shall be legal tender for the
payment of public and private debts.
"DTC" means The Depository Trust Company or a nominee thereof or successor
thereto.
"Euro-clear" means the operator of the Euro-clear System.
"Event of Default" has the meaning specified in Section 501.
"Funded Debt" means (i) all indebtedness for money borrowed having a
maturity of more than 12 months from the date as of which the determination is
made or having a maturity of 12 months or less but by its terms being renewable
or extendible beyond 12 months from such date at the option of the borrower and
(ii) rental obligations payable more than 12 months from such date under leases
which are capitalized in accordance with generally accepted accounting
principles (such rental obligations to be included as Funded Debt at the amount
so capitalized and to be included for the purposes of the definition of
Consolidated Net Assets both as an asset and as Funded Debt at the amount so
capitalized).
"Holder" means in the case of a Registered Security the Person in whose
name the Security is registered in the Security Register and in the case of a
Bearer Security or any related coupon the bearer thereof.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof and shall
include the terms of a particular series of Securities established as
contemplated by Section 301.
"Interest", when used with respect to an original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date", when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
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"Internal Revenue Code" means the Internal Revenue Code of 1986, as amended
to the date hereof and from time to time hereafter, and any successor statute.
"Maturity", when used with respect to any Security, means the date on which
the principal of such Security or an installment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by two Authorized
Officers of the Company and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or counsel to the Company or may be other counsel satisfactory to
the Trustee.
"Original Issue Discount Security" means any Security which provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Stated Maturity thereof pursuant to
Section 502.
"Outstanding", when used with respect to Securities of all Series or
Securities of any series means, as of the date of determination, all such
Securities theretofore authenticated and delivered under this Indenture, except:
(i) Such Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Such Securities or portions thereof for whose payment or
redemption (a) money in the necessary amount has been theretofore deposited
in trust with the Trustee or any Paying Agent (other than the Company) 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 any coupons
appertaining thereto or (b) U.S. Government Obligations as contemplated by
Section 403 in the necessary amount have been theretofore deposited in
satisfaction of the requirements of Section 403 with the Trustee (or
another trustee satisfying the requirements of Section 609) in trust for
the Holders of such Securities and any coupons thereto appertaining in
accordance with Section 402; provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been made;
and
(iii) such Securities which have been paid pursuant to Section 306 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture other than any such
Securities in respect of which there shall have been presented to the
Trustee proof
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satisfactory to it that such Securities are held by a bona fide Purchaser
in whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of such Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or whether a
quorum is present at a meeting of Holders of such Securities, (i) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon acceleration of the Stated
Maturity thereof pursuant to Section 502, (ii) the principal amount of
Securities denominated in more than one currency (including composite
currencies) shall be the Dollar equivalent (determined, unless otherwise
provided as contemplated by Section 301, on the basis of the spot rate of
exchange, on the date of such determination, for any currency other than Dollars
as determined by the Company or by an authorized exchange rate agent and
evidenced to the Trustee by an Officers' Certificate) of the principal amount
(or, in the case of an Original Issue Discount Security, the Dollar equivalent
on the date of such determination of the amount determined as provided in (i)
above) of such Securities, and (ii) Securities owned by the Company or any other
obligor upon the Securities or any Affiliate of the Company or such other
obligor shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, or upon
any such determination as to the presence of a quorum only Securities which the
Trustee knows to be so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or such other
obligor. For purposes of clause (ii) above, an exchange rate agent may be
authorized in advance or from time to time by the Company, and may be the
Trustee. Any such determination by the Company or by any such exchange rate
agent shall be conclusive and binding on all Holders of Securities and related
coupons, if any, and the Trustee, and neither the Company nor such exchange rate
agent shall be liable therefor in the absence of bad faith.
"Paying Agent" means any Person (including the Company) authorized by the
Company to pay the principal of (and premium, if any) or interest, if any, on
any securities on behalf of the Company.
"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 any series of Securities or
any coupons, means the place or places where, subject to the provisions of
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Section 1002, the principal of (and premium, if any) and interest, if any, on
the Securities of that series are payable as specified as contemplated by
Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security or the Security to which the
mutilated, destroyed, lost or stolen coupon appertains, as the case may be,
shall be deemed to evidence the same debt as the mutilated, destroyed, lost or
stolen Security or the Security to which the mutilated, destroyed, lost or
stolen coupon appertains, as the case may be.
"Principal Property" means any manufacturing or processing plant or
warehouse owned at the date hereof or hereafter acquired by the Company or any
Restricted Subsidiary of the Company which is located within the United States
and the gross book value (including related land and improvements thereon and
all machinery and equipment included therein without deduction of any
depreciation reserves) of which on the date as of which the determination is
being made exceeds 2% of Consolidated Net Assets, other than (i) any such
manufacturing or processing plant or warehouse or any portion thereof (together
with the land on which it is erected and fixtures comprising a part thereof)
which is financed by industrial development bonds which are tax exempt pursuant
to Section 103 of the Internal Revenue Code (or which receive similar tax
treatment under any subsequent amendments thereto or any successor laws thereof
or under any other similar statute of the United States), (ii) any property
which in the opinion of the Board of Directors is not of material importance to
the total business conducted by the Company as an entirety or (iii) any portion
of a particular property which is similarly found not to be of material
importance to the use or operation of such property.
"Redemption Date", when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture
(including any premium with respect thereto).
"Registered Security" means any Security substantially in the form for
Registered Securities set forth in Exhibit A or established pursuant to
Section 201 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Interest Payment Date
on the Registered Securities of any series means the date specified for that
purpose as contemplated by Section 301.
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"Responsible Officer", when used with respect to the Trustee, means any
officer within the Corporate Trust Services Division (or any successor group of
the Trustee) including any vice president, assistant vice president, any trust
officer, any assistant secretary or any other officer or assistant officer of
the Trustee customarily performing functions similar to those performed by the
persons who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred at the Trustee's principal Corporate Trust
Office because of his knowledge of and familiarity with the particular subject.
"Restricted Subsidiary" means a Subsidiary of the Company (i) substantially
all the property of which is located, or substantially all the business of which
is carried on, within the United States and (ii) which owns a Principal
Property.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest on the
Registered Securities of any series means a date fixed by the Trustee pursuant
to Section 307.
"Stated Maturity", when used with respect to any security or any
installment of principal thereof or interest thereon, means the date specified
in such Security or a coupon representing such installment of interest as the
fixed date on which the principal of such Security or such installment of
principal or interest is due and payable.
"Subsidiary" means any corporation more than 50% of the outstanding Voting
Stock of which at the time of determination is owned, directly or indirectly, by
the Company and/or one or more other Subsidiaries.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument until a successor trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder, and if at any time there is
more than one such Person, "Trustee" as used with respect to the Securities of
any series shall mean the Trustee with respect to Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended and
as in force at the date as of which this instrument was executed, except as
provided in Section 905.
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"United States" means the United States of America (including the States
and the District of Columbia), its territories and possessions and other areas
subject to its jurisdiction.
"United States Alien" means any Person who, for United States Federal
income tax purposes, is a foreign corporation, a non-resident alien individual,
a non-resident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more of the members of which is, for United States Federal
income tax purposes, a foreign corporation, a non-resident alien individual or a
non-resident alien fiduciary of a foreign estate or trust.
"U.S. Government Obligations" means securities which are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such obligation evidenced by such depository receipt or a
specific payment of interest on or principal of any such obligation held by such
custodian for the account of the holder of a depository receipt; provided that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the obligation set forth in
(i) or (ii) above or the specific payment of interest on or principal of such
obligation evidenced by such depository receipt.
"Voting Stock" means Capital Stock of a corporation of the class or classes
having general voting power under ordinary circumstances to elect at least a
majority of the board of directors, managers or trustees of such corporation
(irrespective of whether or not at the time stock of any other class or classes
shall have or might have voting power upon the occurrence of any contingency).
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 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.
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Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than certificates
provided pursuant to Subsection 704(4)) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such condition or covenant 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 condition or covenant
has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or Opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon 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 Authorized Officer or Authorized 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.
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Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders.
(a) 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 agent duly appointed in writing. If
Securities of a series are issuable as Bearer Securities, any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders of such series may,
alternatively, he embodied in and evidenced by the record of Holders of
Securities of such series voting in favor thereof, either in person or by
proxies duly appointed in writing, at any meeting of Holders of Securities of
such series duly called and held in accordance with the provisions of Article
Thirteen, or a combination of such instruments and any such record. Except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments or record, or both, are delivered to the Trustee
and, where it is hereby expressly required, to the Company. Such instrument or
instruments and any such record (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments or so voting at any such meeting. Proof of
execution of any such instrument or of a writing appointing any such agent or
proxy, or of the holding by any Person of a Security, shall be sufficient for
any purpose of this Indenture and (subject to Section 601) conclusive in favor
of the Trustee and the Company and any agent of the Company, if made in the
manner provided in this Section. The record of any meeting of Holders of
Securities shall be proved in the manner provided in Section 1306.
(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 any notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
an officer of a corporation or association or a member of a partnership, or an
official of a public or governmental body, on behalf of such corporation,
association, partnership or public or governmental body or by a fiduciary, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution by any Person of any such
instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner which shall be satisfactory to the Trustee.
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(c) The principal amount and serial numbers of Registered Securities held
by any Person, and the date of holding the same, shall be proved by the Security
Register.
(d) The principal amount and serial numbers of Bearer Securities held by
any Person, and the date of holding the same, may be proved by the production of
such Bearer Securities or by a certificate executed, by any trust company, bank,
banker or other depositary, as depositary, wherever situated, if such
certificate shall be satisfactory to the Trustee, showing that at the date
therein mentioned such Person had on deposit with such depositary, or exhibited
to it, the Bearer Securities therein described; or such facts may be proved by
the certificate or affidavit of the Person holding such Bearer Securities, if
such certificate or affidavit shall be satisfactory to the Trustee. The Trustee
and the Company may assume that such ownership of any Bearer Security continues
until (1) another certificate or affidavit bearing a later date issued in
respect of the same Bearer Security is produced, or (2) such Bearer Security is
produced to the Trustee by some other Person, or (3) such Bearer Security is
surrendered in exchange for a Registered Security, or (4) such Bearer Security
is no longer Outstanding. The principal amount and serial numbers of Bearer
Securities held by any Person, and the date of holding the same, may also be
proved in any other manner which shall be satisfactory to the Trustee.
(e) Any request, demand, authorization, direction, notice, consent, waiver
or other action by 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 or suffered to be done by the Trustee or the Company in reliance
thereon, whether or not notation of such action is made upon such Security.
SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, which, as of the date
of this Indenture, is: one First Xxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxxx 00000-0000, Attention: Corporate Trust Services Division; or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this
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instrument, to the attention of the Corporate Secretary or at any other
address previously furnished in writing to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
Except as otherwise expressly provided herein, where this Indenture
provides for notice to Holders of any event,
(1) such notice shall be sufficiently given to Holders of Registered
Securities if in writing and mailed, first-class postage prepaid, to each
Holder of a Registered Security affected by such event, at his address as
it appears in the Security Register, not later than the latest date, and
not earlier than the earliest date, prescribed for the giving of such
notice;
(2) such notice shall be sufficiently given to Holders of Bearer
Securities if published in an Authorized Newspaper in the City of New York
and in such other city or cities as may be specified in such Securities on
a Business Day at least once, the first such publication to be not earlier
than the earliest date, and not later than the latest date, prescribed for
the giving of such notice.
If, by reason of the suspension of regular mail service, it shall be
impracticable to mail notice of any event to Holders of Registered Securities
when such notice is required to be given pursuant to any provision of this
Indenture, then such manner of giving such notice as shall be acceptable to the
Trustee shall constitute sufficient giving of such notice. In any case where
notice to Holders of Registered Securities is given by mail, neither the failure
to mail such notice, nor any defect in any notice so mailed, to any particular
Holder of a Registered Security shall affect the sufficiency of such notice with
respect to other Holders of Registered Securities or the sufficiency of any
notice with respect to Holders of Bearer Securities given as provided herein.
If by reason of the suspension of publication of any Authorized Newspaper
or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
in a manner satisfactory to the Trustee shall constitute sufficient notice to
such Holders for every purpose hereunder. Neither the failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of any notice to Holders
of Registered Securities given as provided herein.
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
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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.
SECTION 107. Language of Notices, Etc.
Any request, demand, authorization, direction, notice, consent, waiver, Act
of Holders or other document 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 108. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with any obligation
or requirement included or deemed included herein by operation of the Trust
Indenture Act, such obligation or requirement of the Trust Indenture Act shall
control.
SECTION 109. 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 110. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
SECTION 111. Separability Clause.
In case any provision in this Indenture or the Securities or coupons 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.
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SECTION 112. Benefits of Indenture.
Nothing in this Indenture or the Securities or coupons, expressed or
implied, shall give to any Person, other than the parties hereto, their
successors hereunder and the Holders of Securities or coupons, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
SECTION 113. Governing Law.
This Indenture and the Securities and any coupons shall be governed by and
construed in accordance with the laws of the State of New York without giving
effect to the conflicts of laws provisions thereof.
SECTION 114. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity or Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or of the
Securities or coupons other than a provision in the Securities of any series
which specifically states that such provision shall apply in lieu of this
Section) payment of principal (and premium, if any) or interest, if any, need
not be made at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same force and effect
as if made on the Interest Payment Date or Redemption Date, or at the Stated
Maturity or Maturity, provided that no interest shall accrue on the amount so
payable for the period from and after such Interest Payment Date, Redemption
Date, Stated Maturity or Maturity, as the case may be.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Registered Securities, if any, of each series and the Bearer
Securities, if any, of each series and related coupons, if any, shall be in
substantially the form set forth in Exhibit A and Exhibit B to this Indenture,
respectively, or in such other form (including temporary or permanent global
form) as shall be established in one or more indentures supplemental hereto or
approved from time to time by or pursuant to a Board Resolution in accordance
with Section 301, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture and may have such letters, numbers or
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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
and coupons, if any, as evidenced by their execution of the Securities and
coupons, if any. If the forms of Securities and coupons, if any, of any series
(or the form of any such temporary or permanent global Security) are established
by action taken pursuant to a Board Resolution, a copy of an appropriate record
of such action shall be certified by the Secretary or an Assistant Secretary of
the Company and delivered to the Trustee at or prior to the delivery of the
Company Order contemplated by Section 303 for the authentication and delivery of
such securities or coupons (or any such temporary or permanent global Security).
Unless otherwise provided as contemplated by Section 301 with respect to
any series of Securities, the Securities of each series shall be issuable in
registered form without coupons. If so provided as contemplated by Section 301,
the Securities of a series also shall be issuable in bearer form, with interest
coupons, if any, attached.
The definitive Securities and coupons, if any, shall be
printed, lithographed or engraved or produced by any combination of these
methods on steel engraved borders or may be produced in any other manner
permitted by the rules of any securities exchange on which the Securities may be
listed, all as determined by the officers executing such Securities and coupons,
if any, as evidenced by their execution of such Securities and coupons, if any.
SECTION 202. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in substantially the
following form:
This is one of the Securities of the series designated herein referred to
in the within-mentioned Indenture.
The First National Bank of Chicago,
as Trustee
By
--------------------------------
Authorized Officer
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SECTION 203. Securities in Global Form.
If Securities of a series are issuable in global form, as specified as
contemplated by Section 301, then, notwithstanding clause (8) of Section 301 and
the provisions of Section 302, any such Security shall represent such of the
Outstanding Securities of such series as shall be specified therein and may
provide that it shall represent the aggregate amount of Outstanding Securities
from time to time endorsed thereon and that the aggregate amount of Outstanding
Securities represented thereby may from time to time be reduced to reflect
exchanges. Any endorsement of a Security in global form to reflect the amount,
or any decrease in the amount, of Outstanding Securities represented thereby
shall be made by the Trustee in such manner and upon instructions given by such
Person or Persons as shall be specified therein or in the Company Order to be
delivered to the Trustee pursuant to Section 303 or Section 304. Subject to the
provisions of Section 303 and, if applicable, Section 304, the Trustee shall
deliver and redeliver any Security in permanent global form in the manner and
upon instructions given by the Person or Persons specified therein or in the
applicable Company Order. If a Company Order pursuant to Section 303 or 304 has
been, or simultaneously is, delivered, any instructions by the Company with
respect to endorsement or delivery or redelivery of a Security in global form
shall be in writing but need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel.
Notwithstanding the provisions of Sections 201 and 307, unless otherwise
specified as contemplated by Section 301, payment of principal of (and premium,
if any) and interest, if any, on any Security in permanent global form shall be
made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 308 and except as provided in the
preceding paragraph, the Company, the Trustee and any agent of the Company and
the Trustee shall treat a Person as the Holder of such principal amount of
Outstanding Securities represented by a permanent global Security as shall be
specified in a written statement of the Holder of such permanent global Security
or, in the case of a permanent global Security in bearer form, of Euro-clear or
CEDEL S.A., which is produced to the Trustee by such Person.
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ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution, and, subject to Section 303,
set forth in an Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any Series,
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Sections 304, 305, 306, 906 or 1107);
(3) the date or dates on which the principal of the Securities of the
series is payable;
(4) the rate or rates (which may be fixed or floating) at which the
Securities of the series shall bear interest, if any, the date or dates
from which such interest shall accrue, the Interest Payment Dates on which
such interest shall be payable and the Regular Record Date for the interest
payable on Registered Securities on any Interest Payment Date or the
formula or method by which such rate or rates, or date or dates may be
determined;
(5) the place or places where, subject to the provisions of Section
1002, the principal of (and premium, if any) and interest, if any, on
Securities of the series shall be payable, any Registered Securities of the
series may be surrendered for registration of transfer, Securities of the
series may be surrendered for exchange and notices and demands to or upon
the Company in respect of the Securities of the series and this Indenture
may be served;
(6) the period or periods within which, the price or prices at which
and the terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Company;
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(7) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods
within which, the price or prices at which and the terms and conditions
upon which securities of the series shall be redeemed or purchased, in
whole or in part, pursuant to such obligation;
(8) the denominations in which any Registered Securities of the series
shall be issuable, if other than denominations of $1,000 and any integral
multiple thereof, and the denomination or denominations in which any Bearer
Securities of the series shall be issuable, if other than the denomination
of $5,000;
(9) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the Stated Maturity thereof pursuant to
Section 502;
(10) any paying agents, transfer agents, registrars or any other
agents with respect to the Securities of the series;
(11) the currency or currencies, including composite currencies, in
which payment of the principal of (and premium, if any) and interest, if
any, on such Securities shall be payable if other than the currency of the
United States;
(12) if the principal of (and premium, if any), or interest, if any,
on such Securities are to be payable, at the election of the Company or any
Holder thereof, in a coin or currency or currencies, including composite
currencies, other than that or those in which such Securities are stated to
be payable, the coin or currency or currencies, including composite
currencies, in which payment of the principal of (and premium, if any), or
interest, if any, on Securities of such series as to which such election is
made shall be payable, and the period or periods within which, and the
terms and conditions upon which, such election may be made;
(13) if such Securities are to be denominated in more than one
currency, including composite currencies, the basis of determining the
equivalent price in the currency of the United States (if other than as set
forth in the definition of Outstanding) for purposes of determining the
voting rights of Holders of such Securities under this Indenture;
(14) if the amount of payments of principal of (and premium, if any),
or portions thereof, or interest, if any, on such Securities may be
determined
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with reference to an index, formula or other method, the manner in which
such amounts shall be determined;
(15) whether Securities of the series are to be issuable as Registered
Securities, Bearer Securities or both, whether any Securities of the series
are to be issuable initially in temporary global form and whether any
Securities of the series are to be issuable in permanent global form and,
if so, whether beneficial owners of interests in any such permanent global
Security may exchange such interests for Securities of such series and of
like tenor of any authorized form and denomination and the circumstances
under which any such exchanges may occur, if other than in the manner
provided in Section 305;
(16) the applicability of Section 403 of this Indenture to the
Securities of such series; and
(17) any other terms of or provisions applicable to the series (which
terms and provisions shall not be inconsistent with the provisions of this
Indenture).
All Securities of any one series and any coupons appertaining thereto shall
be substantially identical except, in the case of Registered Securities, as to
denomination and except in the case of any series of Securities, as may
otherwise be provided in or pursuant to such Board Resolution referred to above
and (subject to Section 303) set forth in such Officers' Certificate or in any
such indenture supplemental hereto. All Securities of one series need not be
issued at the same time and, unless otherwise provided, a series may be reopened
for issuances of additional Securities of such series. Securities may differ
between series in respect of any matters.
If any of the terms of the Securities of any series are established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of the Securities of such series.
SECTION 302. Denominations.
Unless otherwise provided as contemplated by Section 301 with respect to
the Securities of any series, any Registered Securities of such series shall be
issuable in denominations of $1,000 and any integral multiple thereof and any
Bearer Securities of such series shall be issuable in the denomination of
$5,000.
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SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman
of the Board, President and Chief Executive Officer, any Senior Vice President,
any Vice President or the Treasurer, under its corporate seal reproduced thereon
attested by its Secretary or one of its Assistant Secretaries. The signature of
any of these officers on the Securities may be manual or facsimile. Coupons
shall bear the facsimile signature of the Treasurer or any Assistant Treasurer
of the Company.
Securities and coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series, together with any
coupons appertaining thereto, 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; provided, however, that,
in connection with its original issuance, no Bearer Security shall be mailed or
otherwise delivered to any location in the United States; and provided, further,
that a Bearer Security may be delivered in connection with its original issuance
only if the Person entitled to receive such Bearer Security shall have furnished
a certificate in the form set forth in Exhibit C-1 to this Indenture, dated no
earlier than 15 days prior to the earlier of the date on which such Bearer
Security is delivered and the date on which any temporary global Security first
becomes exchangeable for such Bearer Security in accordance with the terms of
such temporary global Security and this Indenture. If any Security shall be
represented by a permanent global Bearer Security, then, for purposes of this
Section and Section 304, the notation of a beneficial owner's interest therein
upon original issuance of such Security or upon exchange of a portion of a
temporary global Security shall be deemed to be delivery in connection with its
original issuance of such beneficial owner's interest in such permanent global
Security. Except as permitted by Section 306, the Trustee shall not authenticate
and deliver any Bearer Security unless all appurtenant coupons for interest then
matured have been detached and cancelled.
If the forms or terms of the Securities of the series and any related
coupons have been established in or pursuant to one or more Board Resolutions as
permitted by Sections 201 and 301, in authenticating such Securities, and
accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive, and (subject to
Section 601) shall be fully protected in relying upon, an Opinion of Counsel
stating,
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(a) if the forms of such Securities and any coupons have been
established by or pursuant to a Board Resolution as permitted by Section
201, that such forms have been established in conformity with the
provisions of this Indenture;
(b) if the terms of such Securities and any coupons have been
established by or pursuant to a Board Resolution as permitted by Section
301, that such terms have been established in conformity with the
provisions of this Indenture; and
(c) that such Securities, together with any coupons appertaining
thereto, when authenticated and delivered by the Trustee and issued by the
Company in the manner and subject to any conditions specified in such
Opinion of Counsel, will constitute valid and legally binding obligations
of the Company, enforceable in accordance with their terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting the enforcement of
creditors' rights and to general equity principles.
If such forms or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or will otherwise affect the
Trustee in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the time
of authentication of each Security of such series if such documents are
delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued.
A Company Order delivered in the circumstances set forth in the preceding
paragraph may provide that Securities which are the subject thereof will be
authenticated and delivered by the Trustee on original issue from time to time
upon the telephonic or written order of persons designated in such Company Order
(telephonic instructions to be promptly confirmed in writing by such persons)
and that such persons are authorized to determine, consistent with the Officers'
Certificate referred to in Section 301 or any applicable supplemental indenture,
such terms and conditions of said Securities as are specified in such Company
Order, provided the foregoing procedure is acceptable to the Trustee.
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Each Registered Security shall be dated the date of its authentication.
Each Bearer Security of a series shall be dated as of the date of the initial
issuance of Securities of such series.
No Security or any related coupon shall be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose unless there appears on
such Security, or the Security to which such coupon appertains, a certificate of
authentication substantially in the form provided for herein executed by the
Trustee by manual signature, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder and that such Security and any related
coupon are entitled to the benefits of this Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company
may execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued, in
registered form or, if authorized, in bearer form with one or more coupons or
without coupons, and with such appropriate insertions, omissions, substitutions
and other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities. In the case of Bearer
Securities of any series, such temporary Securities may be in global form,
representing all of the Outstanding Bearer Securities of such series. A
temporary Bearer Security shall be delivered only in compliance with the
conditions set forth in Section 303.
Except in the case of temporary Securities in global form (which shall be
exchanged in accordance with the provisions of the following paragraphs), if
temporary Securities of any series are issued, the Company will cause definitive
securities of that series to be prepared without unreasonable delay. After the
preparation of definitive Securities of such series, the temporary Securities of
such series shall be exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series at the office or agency of
the Company maintained pursuant to Section 1002 in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities of any series (accompanied by any unmatured coupons
appertaining thereto) the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like aggregate principal amount
of definitive Securities of the same series and of like tenor of authorized
denominations; provided, however, that no definitive Bearer Security shall be
delivered in exchange for a temporary Registered Security; and provided,
further, that a definitive Bearer Security shall be delivered in exchange for a
temporary Bearer Security only in compliance with the conditions set forth in
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Section 303. Until so exchanged the temporary Securities of any series
shall in all respects be entitled to the same benefits under this Indenture as
definitive Securities of such series.
If temporary Securities of any series are issued in global form, any such
temporary global Security shall, unless otherwise provided therein, be delivered
to the London office of a depositary or common depositary (the "Common
Depositary"), for the benefit of Euro-clear and CEDEL S.A., for credit to the
respective accounts of the beneficial owners of such Securities (or to such
other accounts as they may direct).
Without unnecessary delay but in any event not later than the
date specified in, or determined pursuant to the terms of, any such temporary
global Security of a series (the "Exchange Date"), the Company shall deliver to
the Trustee definitive Securities of such series in aggregate principal amount
equal to the principal amount of such temporary global Security, executed by the
Company. On or after the Exchange Date, such temporary global Security shall be
surrendered by the Common Depositary to the Trustee, as the Company's agent for
such purpose, to be exchanged, in whole or from time to time in part, for
definitive Securities of such series without charge and the Trustee shall
authenticate and deliver, in exchange for each portion of such temporary global
Security, a like aggregate principal amount of definitive Securities of the same
series of authorized denominations and of like tenor as the portion of such
temporary global Security to be exchanged; provided, however, that, unless
otherwise specified in such temporary global Security, upon such presentation by
the Common Depositary, such temporary global Security is accompanied by a
certificate dated the Exchange Date or a subsequent date and signed by
Euro-clear as to the portion of such temporary global Security held for its
account then to be exchanged and a certificate dated the Exchange Date or a
subsequent date and signed by CEDEL S.A. as to the portion of such temporary
global Security held for its account then to be exchanged, each in the form set
forth in Exhibit C-2 to this Indenture. To the extent required by applicable
United States Treasury regulations, in the case of a Bearer Security, the
Exchange Date shall not be later than the expiration of a reasonable period
after the expiration of the 40-day period beginning on the date of issuance of
the temporary global security to be exchanged. The definitive Securities to be
delivered in exchange for any such temporary global Security shall be in bearer
form, registered form, permanent global bearer form or permanent global
registered form, or any combination thereof, as specified as contemplated by
Section 301, and, if any combination thereof is so specified, as requested by
the beneficial owner thereof; provided, however that definitive Bearer
Securities shall be delivered in exchange for a portion of a temporary global
Security only in compliance with the requirements of Section 303.
Unless otherwise specified in such temporary global Security, the interest
of a beneficial owner of Securities of a series in a temporary global Security
shall be exchanged for definitive Securities of the same series and of like
tenor
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following the Exchange Date when the account holder instructs Euro-clear or
CEDEL S.A., as the case may be, to request such exchange on his behalf and
delivers to Euro-clear or CEDEL S.A., as the case may be, a certificate in the
form set forth in Exhibit C-1 to this Indenture, dated no earlier than 15 days
prior to the Exchange Date, copies of which certificate shall be available from
the offices of Euro-clear and CEDEL S.A., the Trustee and each Paying Agent.
Unless otherwise specified in such temporary global Security, any such exchange
shall be made free of charge to the beneficial owners of such temporary global
Security, except that a Person receiving definitive Securities must bear the
cost of insurance, postage, transportation and the like in the event that such
Person does not take delivery of such definitive Securities in person at the
offices of Euro-clear or CEDEL S.A. Definitive Securities in bearer form to be
delivered in exchange for any portion of a temporary global Security shall be
delivered only outside the United States.
Until exchanged in full as hereinabove provided, the temporary Securities
of any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of the same series and of like tenor
authenticated and delivered hereunder, except that, unless otherwise specified
as contemplated by Section 301, interest payable on a temporary global Security
on an Interest Payment Date for Securities of such series occurring prior to the
applicable Exchange Date shall be payable to Euro-clear and CEDEL S.A. on such
Interest Payment Date upon delivery by Euro-clear and CEDEL S.A. to the Trustee
of a certificate or certificates in the form set forth in Exhibit C-3 to this
Indenture, for credit without further interest on or after such Interest Payment
Date to the respective accounts of the Persons who are the beneficial owners of
such temporary global Security on such Interest Payment Date and who have each
delivered to Euro-clear or CEDEL S.A., as the case may be, a certificate in the
form set forth in Exhibit C-4 to this Indenture. Any interest so received by
Euro-clear and CEDEL S.A. and not paid as herein provided shall be returned to
the Trustee immediately prior to the expiration of two years after such Interest
Payment Date in order to be repaid to the Company in accordance with Section
1003.
SECTION 305. Registration, Registration of
Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency to be maintained by the Company in accordance with Section 1002
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 Registered Securities and of transfers of
Registered Securities. The Trustee is hereby appointed "Security Registrar" for
the purpose of registering Registered Securities and transfers of Registered
Securities as herein provided.
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Upon surrender for registration of transfer of any Registered Security of
any series at the office or agency maintained pursuant to Section 1002 for such
purpose in a Place of Payment for that series, the Company shall execute, and
the Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Registered Securities of the same
series, of any authorized denominations and of a like aggregate principal amount
and tenor.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and tenor, upon surrender
of the Securities to be exchanged at such office or agency. Bearer Securities
may not be issued in exchange for Registered Securities.
At the option of the Holder, Bearer Securities of any series may be
exchanged for Registered Securities of the same series of any authorized
denominations and of a like aggregate principal amount and tenor, upon surrender
of the Bearer Securities to be exchanged at any such office or agency, with all
unmatured coupons and all matured coupons in default thereto appertaining. If
the Holder of a Bearer Security is unable to produce any such unmatured or
matured coupon or coupons in default, such exchange may be effected if the
Bearer Securities are accompanied by payment in funds acceptable to the Company
in an amount equal to the face amount of such missing coupon or coupons, or the
surrender of such missing coupon or coupons may be waived by the Company or
jointly by the Company and the Trustee if there is furnished to them such
security or indemnity as they may require to save each of them and any Paying
Agent harmless. If thereafter the Holder of such Security shall surrender to any
Paying Agent any such missing coupon in respect of which such a payment shall
have been made, such Holder shall be entitled to receive the amount of such
payment; provided, however, that, except as otherwise provided in Section 1002,
interest represented by coupons shall be payable only upon presentation and
surrender of those coupons at an office or agency located outside the United
States. Notwithstanding the foregoing, in case a Bearer Security of any series
is surrendered at any such office or agency in exchange for a Registered
Security of the same series and like tenor after the close of business at such
office or agency on (i) any Regular Record Date and before the opening of
business at such office or agency on the relevant Interest Payment Date, or (ii)
any Special Record Date and before the opening of business at such office or
agency on the related proposed date for payment of Defaulted Interest, such
Bearer Security shall be surrendered without the coupon relating to such
Interest Payment Date or proposed date for payment, as the case may be, and
interest or Defaulted Interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in
respect of the Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such coupon when due in accordance
with the provisions of this Indenture.
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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.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent global Security shall be exchangeable
only as provided in this paragraph. If the beneficial owners of interests in a
permanent global Security are entitled to exchange such interests for Securities
of such series and of like tenor and principal amount of another authorized form
and denomination, as specified as contemplated by Section 301, then without
unnecessary delay but in any event not later than the earliest date on which
such interests may be so exchanged, the Company shall deliver to the Trustee
definitive Securities of that series in aggregate principal amount equal to the
principal amount of such permanent global Security, executed by the Company. On
or after the earliest date on which such interests may be so exchanged, such
permanent global Security shall be surrendered by the Common Depositary or such
other depositary as shall be specified in the Company Order with respect thereto
to the Trustee as the Company's agent for such purpose, to be exchanged, in
whole or from time to time in part, for definitive Securities of the same series
without charge and the Trustee shall authenticate and deliver, in exchange for
each for each portion of such permanent global Security, a like aggregate
principal amount of definitive Securities of the same series of authorized
denominations and of like tenor as the portion of such permanent global Security
to be exchanged which, unless the Securities of the series are not issuable both
as Bearer Securities and as Registered Securities, as specified as contemplated
by Section 301, shall be in the form of Bearer Securities or Registered
Securities, or any combination thereof, as shall be specified by the beneficial
owner thereof; provided, however, that no such exchanges may occur during a
period beginning at the opening of business 15 days before any selection of
Securities of that series to be redeemed and ending on the relevant Redemption
Date; and provided, further, that no Bearer Security delivered in exchange for a
portion of a permanent global Security (or, if specified as contemplated by
Section 301, in exchange for Registered Securities) shall be mailed or otherwise
delivered to any location in the United States. Promptly following any such
exchange in part and any endorsement thereon to reflect the amount represented
by such exchange, such permanent global Security shall be returned by the
Trustee to the Common Depositary or such other depositary or Common Depositary
referred to above in accordance with the instructions of the Company referred to
above. If a Registered Security is issued in exchange for any portion of a
permanent global Security after the close of business at the office or agency
where such exchange occurs on (i) any Regular Record Date and before the opening
of business at such office or agency on the relevant Interest Payment Date, or
(ii) any special Record Date and before the opening of business at such office
or agency on the related proposed date for payment of Defaulted Interest,
interest or Defaulted Interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in
respect of such Registered Security, but will be payable on such Interest
Payment Date or proposed date for
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payment, as the case may be, only to the Person to whom interest in respect of
such portion of such permanent global Security is payable in accordance with the
provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee or
any transfer agent) be duly endorsed, or be accompanied by a written instrument
of transfer in form satisfactory to the Company, the Trustee and the Security
Registrar or any transfer agent duly executed, by the Holder thereof or his
attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Sections 304, 906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer of or
exchange Securities of any series during a period beginning at the opening of
business 15 days before any selection of Securities of that series to be
redeemed and ending at the close of business on (A) if Securities of the series
are issuable only as Registered Securities, the day of the mailing of the
relevant notice of redemption and (B) if Securities of the series are issuable
as Bearer Securities, the day of the first publication of the relevant notice of
redemption or, if Securities of the series are also issuable as Registered
Securities and there is no publication, the mailing of the relevant notice of
redemption, (ii) to register the transfer of or exchange any Registered Security
so selected for redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part, or (iii) to exchange any Bearer Security so
selected for redemption except that such a Bearer Security may be exchanged for
a Registered Security of that series and like tenor, provided that such
Registered Security shall be simultaneously surrendered for redemption.
Notwithstanding anything in this Indenture or in the terms of a Security to
the contrary, the exchange of Bearer Securities for Registered Securities will
be subject to satisfaction of the provisions of the United States tax laws in
effect at the time of the exchange. Neither the Company nor the Trustee nor any
agent of the Company or the Trustee shall be required to exchange any Bearer
Security for a Registered Security if (i) as a result thereof and in the
Company's judgment, the Company would incur adverse consequences under then
applicable United States Federal income tax laws and (ii) in the case of the
Trustee or any agent of the
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Company or the Trustee, the Company shall have delivered to such Person an
Officers' Certificate and an Opinion of Counsel as to the matters set forth in
clause (i) above.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security or a Security with a mutilated coupon
appertaining thereto is surrendered to the Trustee, the Company shall execute,
and the Trustee shall authenticate and deliver in exchange therefor, a new
Security of the same series and of like tenor and principal amount and bearing a
number not contemporaneously outstanding, with coupons corresponding to the
coupons, if any, appertaining to the surrendered Security.
If there shall have been delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
or coupon, and (ii) such security or indemnity as may be required by them to
save each of them harmless, then, in the absence of notice to the Company or the
Trustee that such Security or coupon 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 or in
exchange for the Security to which a destroyed, lost or stolen coupon appertains
(with all appurtenant coupons not destroyed, lost or stolen), a new Security of
the same series and of like tenor and principal amount and bearing a number not
contemporaneously outstanding, with coupons corresponding to the coupons, if
any, appertaining to such destroyed, lost or stolen Security or to the Security
to which such destroyed, lost or stolen coupon appertains.
In case any such mutilated, destroyed, lost or stolen Security or coupon
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security or coupon; provided,
however, that principal of (and premium, if any) and interest, if any, on Bearer
Securities shall, except as otherwise provided in Section 1002, be payable only
at an office or agency located outside the United States; and provided, further,
that, unless otherwise specified as contemplated by Section 301 with respect to
any series of Securities, interest on Bearer Securities (but not any additional
amounts payable as provided in Section 1008), shall be payable only upon
presentation and surrender of the coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
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Every new Security of any series with its coupons, if any, issued pursuant
to this Section in lieu of any destroyed, lost or stolen Security, or in
exchange for a Security to which a destroyed, lost or stolen coupon appertains,
shall constitute an original additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security and its coupons, if any,
or the destroyed, lost or stolen coupon shall be at any time enforceable by
anyone, and any such new Security and coupons, if any, shall be entitled to all
the benefits of this Indenture equally and proportionately with any and all
other Securities of that series and their coupons, if any, duly issued
hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Unless otherwise specified as contemplated by Section 301 with respect to
any series of Securities, interest on any Registered Security which is payable,
and is punctually paid or duly provided for, on any Interest Payment Date shall
be paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Unless otherwise specified as contemplated by Section 301 with respect to
any series of securities, any interest due on Bearer Securities on or before
Maturity shall be payable only upon presentation and surrender of the several
coupons for such interest installments as are evidenced thereby as they
severally mature.
Any interest on any Registered Security of any series which is payable, but
is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable to the
Holder on the relevant Regular Record Date by virtue of having been such Holder,
and such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Registered Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company shall
notify the Trustee in writing of the amount of Defaulted Interest proposed
to be paid on each Registered Security of such series and the date of the
proposed payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for
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such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as provided in this clause. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest
which shall be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after the receipt by
the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date and, in the name
and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor (i)
to be mailed, first-class postage prepaid, to each Holder of Registered
Securities of such series at his address as it appears in the Security
Register, not less than 10 days prior to such Special Record Date, and (ii)
with respect to Bearer Securities of such series, to be published as
provided for in Section 106. The Trustee may, in addition, in its
discretion, in the name and at the expense of the Company, cause a similar
notice to be published at least once in a newspaper published in the
English language customarily published on each Business Day and of general
circulation in the Borough of Manhattan, the City of New York, New York,
but such publication shall not be a condition precedent to the
establishment of such Special Record Date. Notice of the proposed payment
of such Defaulted Interest and the Special Record Date therefor having been
mailed as aforesaid, such Defaulted Interest shall be paid to the Persons
in whose names the Registered Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on such Special Record Date and shall no longer be payable pursuant to the
following clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be required by such
exchange, if, after notice is given by the Company to the Trustee of the
proposed payment pursuant to this Clause, such manner of payment shall be
deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 305, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
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SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Registered Security is registered as the
owner of such Registered Security for the purpose of receiving payment of
principal of (and premium, if any) and (subject to Sections 305 and 307)
interest, if any, on such Security and for all other purposes whatsoever,
whether or not such Security be overdue, and neither the Company, the Trustee
nor any agent of the Company or the Trustee shall be affected by notice to the
contrary.
Title to any Bearer Security and any coupons appertaining thereto shall
pass by delivery. The Company, the Trustee and any agent of the Company or the
Trustee may treat the bearer of any Bearer Security and the bearer of any coupon
as the absolute owner of such Bearer Security or coupon for the purpose of
receiving payment thereof or on account thereof and for all other purposes
whatsoever, whether or not such Bearer Security or coupon be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
SECTION 309. Cancellation.
All Securities and coupons surrendered for payment, redemption,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be delivered
to the Trustee and such Securities and coupons shall be promptly cancelled by
the Trustee. 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 cancelled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section, except as expressly permitted by this Indenture. All cancelled
Securities and coupons held by the Trustee shall be destroyed by the Trustee
unless other instructions are furnished to the Trustee by a Company Order.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for the
Securities of any series, interest, if any, on the Securities of each series
shall be computed on the basis of a 360-day year of twelve 30-day months.
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ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
with respect to any series of Securities (except as to any surviving rights of
registration of transfer or exchange of Securities of such series herein
expressly provided for or in the form of Security for such series and any right
to receive additional amounts, as provided in Section 1008), and the Trustee, at
the expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture as to such series, when
(1) either
(A) all Securities of such series theretofore authenticated and
delivered and all coupons, if any, appertaining thereto (other than (i)
coupons appertaining to Bearer Securities surrendered for exchange for
Registered Securities and maturing after such exchange, whose surrender is
not required or has been waived as provided in Section 305, (ii) Securities
of such series and coupons appertaining thereto which have been destroyed,
lost or stolen and which have been replaced or paid as provided in Xxxxxxx
000, (xxx) coupons appertaining to Securities of such series called for
redemption and maturing after the relevant Redemption Date, whose surrender
has been waived as provided in Section 1106 and (iv) Securities of such
series and coupons appertaining thereto for whose payment money has
theretofore been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from such trust,
as provided in Section 1003) have been delivered to the Trustee for
cancellation; or
(B) all such Securities of such series and, in the case of (i) or (ii)
below, any coupons appertaining thereto not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within
one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited or
caused to be deposited with the Trustee as trust funds in
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trust for the purpose an amount sufficient to pay and discharge the entire
indebtedness on such Securities and coupons not theretofore delivered to the
Trustee for cancellation, for principal (and premium, if any) and interest, if
any, to the date of such deposit (in the case of Securities which have become
due and payable), or to the Stated Maturity or the Redemption Date, as the case
may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company with respect to such series; and
(3) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that, with respect to such series, all
conditions precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to such series, the obligations of the Company to the Trustee with
respect to such series under Section 607, and, if money shall have been
deposited with the Trustee pursuant to subclause (B) of clause (1) of this
Section, the obligations of the Trustee under Section 402 and the last paragraph
of Section 1003, shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401, all money and U.S.
Government Obligations deposited with the Trustee (or a successor trustee
satisfying the requirements of Section 609) pursuant to Section 403 and all
money received by the Trustee in respect of U.S. Government Obligations
deposited with the Trustee pursuant to Section 403 shall be held in trust and
shall be applied by it, in accordance with the provisions of the series of
Securities and this Indenture, to the payment, either directly or through any
Paying Agent as the Trustee may determine, to the Persons entitled thereto, of
all sums due and to become due thereon in respect of the principal of (and
premium, if any) and interest, if any, on the Securities for which payment of
such money has been deposited with the Trustee or to make mandatory sinking fund
payments or analogous payments as contemplated by Section 403.
SECTION 403. Discharge and Defeasance of
Securities of any Series.
If this Section 403 is specified, as contemplated by Section 301, to be
applicable to the Securities of any series, then, notwithstanding the provisions
of Section 401, the Company shall be deemed to have paid and discharged the
entire indebtedness on all the Outstanding Securities of any such series on the
91st day after
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the date of the deposit referred to in subparagraph (d) hereof, and the
provisions of this Indenture, as it relates to such Outstanding Securities,
shall no longer be in effect (and the Trustee, at the expense of the Company,
shall, upon Company Request execute proper instruments acknowledging the same),
except as to:
(a) the rights of Holders of Securities of such series to receive,
from the trust funds described in subparagraph (d) hereof, (i) payment of
the principal of (and premium, if any) and each installment of principal of
(and premium, if any) or interest, if any, on the Outstanding Securities of
such series on the Stated Maturity of such principal or installment of
principal or interest and (ii) any mandatory sinking fund payments or
analogous payments applicable to the Securities of such series on the day
on which such payments are due and payable in accordance with the terms of
this Indenture and such Securities; and
(b) the rights, powers, trusts, duties and immunities of the Trustee
hereunder with respect to such series, including those set forth in Section
607; and
(c) either (1) if this Section 403(c)(1) is specified, as contemplated
by Section 301, to be applicable to the Securities of any series, the
Company's obligations with respect to the Securities of such series under
Sections 304, 305, 306, 1002 and 1003; or, alternatively, (2) if this
Section 403(c)(2) is specified, as contemplated by Section 301, to be
applicable to the Securities of any series, the Company's obligations with
respect to such Securities under Sections 304, 305, 306, 1001, 1002 and
1003;
provided that, the following conditions shall have been satisfied:
(d) the Company shall have irrevocably deposited or caused to be
deposited (in accordance with Section 402) with the Trustee (or another
trustee satisfying the requirements of Section 609) as trust funds in trust
specifically pledged as security for, and dedicated solely to, the benefit
of the Holders of the Securities of that series, with reference to this
Section 403 (i) money in an amount, or (ii) U.S. Government Obligations
which through the payment of interest and principal in respect thereof in
accordance with their terms will provide not later than one Business Day
before the due date of any payment referred to in clause (A) or (B) of this
subparagraph (d) money in an amount, or (iii) a combination thereof,
sufficient, in the opinion of a nationally recognized firm of independent
certified public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge (A) the principal of (and
premium, if any) and each installment of principal of (and premium, if any)
and interest, if any, on the Outstanding Securities of such series on the
Stated Maturity of such principal or installment of principal or interest
or on the applicable Redemption Date and (B) any mandatory
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sinking fund payments or analogous payments applicable to the Securities of
such series on the day on which such payments are due and payable in
accordance with the terms of this Indenture and of such Securities;
(e) such deposit shall not cause the Trustee with respect to the
Securities of such series to have a conflicting interest as defined in
Section 608 or for purposes of the Trust Indenture Act with respect to the
Securities of any series;
(f) such deposit will not result in a breach or violation of, or
constitute a default under, any applicable laws, this Indenture or any
other agreement or instrument to which the Company is a party or by which
it is bound;
(g) if this Section 403(g) is specified, as contemplated by
Section 301, to be applicable to the Securities of any series, such
provision would not cause any Outstanding Securities of such series then
listed on the New York Stock Exchange or other nationally recognized
securities exchange to be de-listed as a result thereof;
(h) no Event of Default or event which with the giving of notice or
lapse of time or both would become an Event of Default with respect to the
Securities of that series shall have occurred and be continuing on the date
of such deposit or at any time during the period ending on the 91st day
after such date;
(i) the Company has delivered to the Trustee an Opinion of Counsel to
the effect that, based upon applicable Federal income tax law or a ruling
published by the Internal Revenue Service (which opinion, for the purposes
contemplated by Section 403(c)(1), must be based on a change in applicable
Federal income tax law after the date of this Indenture or a ruling
published by the Internal Revenue Service after the date of this
Indenture), the Holders of the Securities of such series will not recognize
income, gain or loss for Federal income tax purposes as a result of such
deposit, defeasance and discharge and will be subject to Federal income tax
on the same amount and in the same manner and at the same times, as would
have been the case if such deposit, defeasance and discharge had not
occurred; and
(j) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
relating to the defeasance contemplated by this Section have been complied
with.
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ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any installment of interest upon any
Security of that series when it becomes due and payable, and continuance of
such default for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if any,
on) any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as
due by the terms of a Security of that series; or
(4) default in the performance or breach of any covenant or warranty
of the Company in this Indenture (other than a covenant or warranty a
default in whose performance or whose breach is elsewhere in this Section
specifically dealt with or which has expressly been included in this
Indenture solely for the benefit of a particular series of Securities other
than that series) and continuance of such default or breach for a period of
90 days after there has been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the Holders of
at least 25% in principal amount of the Outstanding Securities of that
series a written notice specifying such default or breach and requiring it
to be remedied and stating that such notice is a "Notice of Default"
hereunder; or
(5) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary case
in respect of the Company under any applicable bankruptcy, insolvency,
reorganization or other similar law now or hereafter in effect, or (B) a
decree or order appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of the Company or for any
substantial part of its property, or ordering the winding-up or liquidation
of its affairs and such decree or order shall remain unstayed and in effect
for a period of 60 consecutive days; or
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(6) the commencement by the Company of a voluntary case under any
applicable bankruptcy, insolvency, reorganization or other similar law now
or hereafter in effect, or the consent by it to the entry of an order for
relief in an involuntary case in respect of it under any such law, or the
consent by it to the appointment of or taking possession by a receiver,
liquidator, assignee, trustee, custodian, sequestrator (or similar
official) of the Company or for any substantial part of its property, or
the making by it of any general assignment for the benefit of creditors; or
(7) any other Event of Default provided with respect to Securities of
that series.
SECTION 502. Acceleration of Maturity;
Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, then and in every such case the Trustee or
the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal amount (or, if the
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount of such Securities as may be specified in the terms
thereof) of all of the Securities of that series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such principal amount (or specified
amount) shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue installments of interest on all Securities of
that series,
(B) the principal of (and premium, if any, on) any Securities of
that series which have become due otherwise than by such declaration
of acceleration and interest, if any, thereon at the rate or rates
prescribed therefor in such Securities,
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(C) to the extent that payment of such interest is lawful,
interest upon any overdue installments of interest at the rate or
rates prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that series,
other than the nonpayment of the principal of Securities of that series
which have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and
Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any installment of interest on
any Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security at its Maturity,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities and coupons, the whole amount then due and payable on
such Securities and coupons for principal (and premium, if any) and interest, if
any, and, to the extent that payment of such interest shall be legally
enforceable, interest on the overdue principal (and premium, if any) and on any
overdue installments of interest, at the rate or rates prescribed therefor in
such Securities and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the
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Company or any other obligor upon such Securities and called the moneys adjudged
or decreed to be payable in the manner provided by law out of the property of
the Company or any other obligor upon such Securities, wherever situated.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series and any
related coupons by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid of
the exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or the
creditors of the Company or such other obligor, the Trustee (irrespective of
whether the principal of the Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee
shall have made any demand on the Company for the payment of overdue principal
or interest) shall be entitled and empowered, by intervention in such proceeding
or otherwise,
(i) to file and prove a claim for the whole amount of principal (and
premium, if any) and interest, if any, 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 Securities
and coupons 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, custodian, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder of Securities and coupons to make such payments to the Trustee and,
in the event that the Trustee shall consent to the making of such payments
directly to the Holders of Securities and coupons, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 607.
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Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
or coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or coupons or the rights of any Holder thereof or to
authorize the Trustee to vote in respect of the claim of any Holder of a
Security or coupon in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without
Possession of Securities or Coupons.
All rights of action and claims under this Indenture or the Securities or
coupons may be prosecuted and enforced by the Trustee without the possession of
any of the Securities or coupons or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Holders of the Securities and coupons in respect
of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (or premium,
if any) or interest, if any, upon presentation of the Securities or coupons or
both and the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under
Section 607;
Second: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest, if any, on the Securities
and coupons in respect of which or for the benefit of which such money has
been collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities and coupons for
principal (and premium, if any) and interest, if any, respectively; and
Third: The balance, if any, to the Person or Persons determined to be
entitled thereto.
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SECTION 507. Limitation on Suits.
No Holder of any Security of any series or any related coupons shall have
any right to institute any proceeding, judicial or otherwise, with respect to
this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of the
outstanding securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of the Holders of
Securities of such series 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 such Holders of, or to obtain or to seek to
obtain priority or preference over any other 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 such Holders.
SECTION 508. Unconditional Rights of Holders to
Receive Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Security or coupon shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Sections 305 and 307) interest, if any, on such Security or payment of such
coupon on the Stated Maturity or Maturities expressed in such Security or coupon
(or, in the case of redemption, on the Redemption Date) and to institute suit
for the enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.
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SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder of any Security or coupon 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 of such Securities and coupons
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 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities or coupons in the last paragraph
of Section 306, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders of Securities or coupons is intended to be exclusive
of any other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security or
coupon to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by this Article
or by law to the Trustee or to the Holders of Securities or coupons may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders of Securities or coupons, as the case may be.
SECTION 512. Control by Holders.
(a) The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any
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trust or power conferred on the Trustee, with respect to the Securities of such
series, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture, and
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
(b) The Company may set a record date for purposes of determining the
identity of Holders entitled to vote or consent to any action by vote or consent
authorized or permitted by this Section 512 and Section 513. Such record date
shall be the later of (1) 30 days prior to the first solicitation of such
consent or (2) the date of the most recent list of Holders furnished to the
Trustee pursuant to Section 701 prior to such solicitation.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series and any related coupons waive any past default
hereunder with respect to the Securities of such series and its consequences,
except a default
(1) in the payment of the principal of (or premium, if any) or
interest, if any, on any Securities of such series, or
(2) with respect to a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security or
coupon by his acceptance thereof shall be deemed to have agreed, that any court
may in its discretion require, in any suit for the enforcement of any right or
remedy under this Indenture, or in any suit against the Trustee for any action
taken, suffered or omitted by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and that such court
may in its discretion assess
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reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit, having due regard for the merits and good faith of the
claims or defenses made by such party litigant; but the provisions of this
Section 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% in principal amount of the Outstanding Securities of any series, or to
any suit instituted by any Holder of any Security or coupon for the enforcement
of the payment of the principal of (or premium, if any) or interest, if any, on
any Security or the payment of any coupon on or after the Stated Maturity or
Maturities expressed in such security or coupon (or, in the case of redemption,
on or after the Redemption Date).
SECTION 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.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default with respect to
the Securities of any series,
(1) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture with respect to such
series, 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 provisions
hereof are
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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 Event of Default has occurred with respect to Securities of
any series and is continuing, the Trustee shall exercise such of the rights and
powers vested in it by this Indenture with respect to such series of Securities,
and use the same degree of care and skill in their exercise, as a prudent man
would exercise or use under the circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own 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;
(3) the Trustee shall not be liable with respect to any action taken,
suffered or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in principal amount of the
Outstanding Securities of any series, determined as provided in Section
512, relating to the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture with respect to the
Securities of such series; and
(4) no provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
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SECTION 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with respect
to the Securities of any series, the Trustee shall transmit in the manner and to
the extent provided in section 703(c), notice of such default hereunder known to
the Trustee, unless such default shall have been cured or waived; provided,
however, that, except in the case of a default in the payment of the principal
of (or premium, if any) or interest, if any, on any Security of such series or
in the payment of any sinking fund installment with respect to Securities of
such series, the Trustee shall be protected in withholding such notice if and so
long as the board of directors, the executive committee or a trust committee of
directors and/or Responsible Officers of the Trustee in good faith determines
that the withholding of such notice is in the interest of the Holders of
Securities of such series, and provided, further, that in the case of any
default of the character specified in Section 501(4) with respect to Securities
of such series, no such notice to Holders shall be given until at least 60 days
after the occurrence thereof. For the purpose of this Section, the term
"default" means any event which is, or after notice or lapse of time or both
would become, an Event of Default with respect to Securities of such series.
SECTION 603. Certain Rights of Trustee.
Except as otherwise provided in Section 601:
(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, coupon, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order or as
otherwise expressly provided herein and any resolution of the Board of
Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically presented) may, in the absence of bad faith
on its part, rely upon an Officers' Certificate and such Oficers'
Certificate, in the absence of negligence or bad faith on the part of the
Trustee, shall be full warrant to the Trustee for any action taken,
suffered or omitted by it under the provisions of this Indenture upon the
faith thereof;
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(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders of
Securities of any series or related coupons shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request
or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon, other evidence of indebtedness or other
paper or document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may see
fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney; and
(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.
SECTION 604. Not Responsible for Recitals
or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and the Trustee assumes no responsibility for their correctness. The Trustee
makes no representations as to the validity or sufficiency of this Indenture or
of the Securities or the coupons. The Trustee shall not be accountable for the
use or application by the Company of Securities or the proceeds thereof.
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SECTION 605. 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 or coupons and, subject to Sections 608 and 613, may
otherwise deal with the Company with the same rights it would have if it were
not Trustee, Paying Agent, Security Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Trustee 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 or performance of any of its powers or duties hereunder.
The obligations of the Company under this Section shall constitute
additional indebtedness hereunder and shall survive the satisfaction and
discharges of this Indenture. Such additional indebtedness shall be a senior
claim to that of the Securities upon all property and funds held or collected by
the Trustee as such, except
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funds held in trust for the benefit of the Holders of particular Securities, and
the Securities are hereby subordinated to such senior claim. If the Trustee
incurs expenses after the occurrence of a default specified in Section 501(5) or
501(6), such expenses are intended to constitute expenses of administration
under any bankruptcy law.
SECTION 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by and subject to
the provisions of, the Trust Indenture Act.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States or
of any State or the District of Columbia, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least
$50,000,000, subject to supervision or examination by Federal, State or District
of Columbia authority and having its Corporate Trust Office in the City of
Chicago, Illinois or the Borough of Manhattan, the City of New York, New York.
If such corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. 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. Neither the Company nor any
Affiliate of the Company may serve as Trustee.
SECTION 610. Resignation and Removal;
Appointment of a Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 611.
(b) The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not
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have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(c) The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Trustee and to the
Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months; or
(2) the Trustee shall cease to be eligible under Section 609 and shall
fail to resign after written request therefor by the Company or by any such
Holder; or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
then, in any such case, (i) the Company by Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, with respect
to the Securities of one or more series, the Company, by a Board Resolution,
shall promptly appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all of
such series and that at any time there shall be only one Trustee with respect to
the Securities of any particular series) and shall comply with the applicable
requirements of Section 611. If, within one year after such resignation, removal
or incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be appointed by Act of the Holders
of a majority in principal amount of the Outstanding Securities of such series
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment in accordance
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with the applicable requirements of Section 611, become the successor Trustee
with respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with respect
to the Securities of any series shall have been so appointed by the Company or
the Holders of Securities of that series and accepted appointment in the manner
required by Section 611, any Holder of a Security who has been a bona fide
Holder of a Security of such series for at least six months, subject to Section
514, may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series in the manner
provided in Section 106. Each notice shall include the name of the successor
Trustee with respect to the Securities of such series and the address of its
Corporate Trust Office.
(g) Except in the case of a default in the payment of the principal of or
interest on any Security or in the payment of any sinking or purchase fund
installment, the Trustee shall not be required to resign as provided by this
Section if such Trustee shall have sustained the burden of proving, on
application to the Commission and after opportunity for hearing thereon, that
(1) the default under the Indenture may be cured or waived during a
reasonable period and under the procedures described in such application,
and
(2) a stay of the Trustee's duty to resign will not be inconsistent
with the interest of Holders. The filing of an application shall
automatically stay the performance of the duty to resign until the
Commission orders otherwise.
SECTION 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on request of
the Company or the successor Trustee, such retiring Trustee shall, upon payment
of the charges due it pursuant to Section 607, execute and deliver an instrument
transferring to such successor Trustee all the rights,
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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. 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.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in
paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
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SECTION 612. Merger, Conversion, Consolidation
or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 613. Preferential Collection of
Claims Against Company.
The Trustee shall comply with the provisions of Section 311 of the Trust
Indenture Act.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and
Addresses of Holders of Registered Securities.
The Company shall furnish or cause to be furnished to the Trustee with
respect to the Registered Securities of each series:
(a) semi-annually, not more than 15 days after each Regular
Record Date, or in the case of any series of Securities on which
semi-annual interest is not payable, not more than 15 days after such
semi-annual dates as may be specified by the Trustee, a list, in such
form as the Trustee may reasonably require, of the names and addresses
of the Holders of such Registered Securities as of such Regular Record
Date or such semi-annual date, as the case may be, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar
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form and content as of a date not more than 15 days prior to the time such
list is furnished,
provided, however, that so long as the Trustee is the Security Registrar, no
such list need be furnished.
SECTION 702. Preservation of Information;
Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of Registered Securities (i)
contained in the most recent list furnished to the Trustee as provided in
Section 701, (ii) received by the Trustee in its capacity as Security Registrar
(or Paying Agent, if so acting) and (iii) filed with it during the two preceding
years pursuant to Section 703(c)(2). The Trustee may destroy any list furnished
to it as provided in Section 701 upon receipt of a new list so furnished.
(b) If three or more Holders of Securities of any series (hereinafter
referred to as "applicants") apply in writing to the Trustee, and furnish to the
Trustee reasonable proof that each such applicant has owned a Security for a
period of at least six months preceding the date of such application, and such
application states that the applicants desire to communicate with other Holders
of Securities of such series with respect to their rights under this Indenture
or under the Securities of such series and is accompanied by a copy of the form
of proxy or other communication which such applicants propose to transmit, then
the Trustee shall, within five business days after the receipt of such
application, at its election, either
(i) afford such applicants access to the information preserved at the
time by the Trustee in accordance with Section 702(a), or
(ii) inform such applicants as to the approximate number of Holders of
Registered Securities of such series whose names and addresses appear in
the information preserved at the time by the Trustee in accordance with
Section 702(a), and as to the approximate cost of mailing to such Holders
of Registered Securities of such series the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder of Registered Securities of such series whose name and
address appears in the information preserved at the time by the Trustee in
accordance with Section 702(a), a copy of the form of proxy or other
communication which is
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specified in such request, with reasonable promptness after a tender to the
Trustee of the material to be mailed and of payment, or provision for the
payment, of the reasonable expenses of mailing, unless within five days after
such tender, the Trustee shall mail to such applicants and file with the
Commission, together with a copy of the material to be mailed, a written
statement to the effect that, in the opinion of the Trustee, such mailing would
be contrary to the best interest of the Holders of Registered Securities of such
series or would be in violation of applicable law. Such written statement shall
specify the basis of such opinion. If the Commission, after opportunity for a
hearing upon the objections specified in the written statement so filed, shall
enter an order refusing to sustain any of such objections or if, after the entry
of an order sustaining one or more of such objections the Commission shall find,
after notice and opportunity for hearing, that all the objections so sustained
have been met and shall enter an order so declaring, the Trustee shall mail
copies of such material to all such Holders of Registered Securities of such
series with reasonable promptness after the entry of such order and the renewal
of such tender; otherwise the Trustee shall be relieved of any obligation or
duty to such applicants respecting their application.
(c) Every Holder of Securities or coupons, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee, nor any agent of the Company or the Trustee shall be held accountable
by reason of the disclosure of any such information as to the names and
addresses of the Holders of Registered Securities in accordance with Section
702(b), regardless of the source from which such information was derived, and
that the Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under Section 702(b).
SECTION 703. Reports by Trustee.
(a) Within 60 days after May 15 of each year, commencing with the May 15
following the first issuance of Securities hereunder, the Trustee shall transmit
by mail to all Holders a brief report dated as of such May 15 with respect to
any of the following events which may have occurred within the previous 12
months (but if no such event has occurred within such period no report need be
transmitted):
(1) any change to its eligibility under Section 609 and its
qualifications under Section 608;
(2) the creation of or any material change to a relationship specified
in Section 310(b) of the Trust Indenture Act;
(3) the character and amount of any advances (and if the Trustee
elects so to state, the circumstances surrounding the making thereof) made
by the Trustee (as such), which remain unpaid on the
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date of such report, and for the reimbursement of which it claims or may
claim a lien or charge, prior to that of the Securities, on any property or
funds held or collected by it as Trustee, except that the Trustee shall not
be required (but may elect) to report such advances if such advances so
remaining unpaid aggregate not more than 1/2 of 1% of the principal amount
of the Securities Outstanding on the date of such report;
(4) any change to the amount, interest rate and maturity date of all
other indebtedness owing by the Company (or by any other obligor on the
Securities) to the Trustee in its individual capacity, on the date of such
report, with a brief description of any property held as collateral
security therefor, except an indebtedness based upon a creditor
relationship arising in any manner that is the subject of Section
311(b)(2),(3),(4) or (6) of the Trust Indenture Act;
(5) any change to the property and funds, if any, physically in the
possession of the Trustee as such on the date of such report;
(6) any additional issue of Securities which the Trustee has not
previously reported; and
(7) any action taken by the Trustee in the performance of its duties
hereunder which it has not previously reported and which in its opinion
materially affects the Securities, except action in respect of a default,
notice of which has been or is to be withheld by the Trustee in accordance
with Section 602.
(b) The Trustee shall transmit by mail to all Holders, as provided in
subsection (c) of this Section, a brief report with respect to the character and
amount of any advances (and if the Trustee elects so to state, the circumstances
surrounding the making thereof) made by the Trustee (as such) since the date of
the last report transmitted pursuant to subsection (a) of this Section (or if no
such report has yet been so transmitted, since the date of execution of this
instrument) for the reimbursement of which it claims or may claim a lien, or
charge, prior to that of the Securities, on property or funds held or collected
by it as Trustee, and which it has not previously reported pursuant to this
Subsection, except that the Trustee shall not be required (but may elect) to
report such advances if such advances remaining unpaid at any time aggregate 10%
or less of the principal amount of the Securities Outstanding at such time, such
report to be transmitted within 90 days after such time.
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(c) Reports pursuant to this Section shall be transmitted by mail:
(1) to all Holders of Registered Securities, as the names and
addresses of such Holders appear in the Security Register;
(2) to such Holders of Bearer Securities as have, within the two years
preceding such transmission, filed their names and addresses with the
Trustee for that purpose; and
(3) except in the case of reports pursuant to subsection (b) of this
Section, to each Holder of a Security whose name and address is preserved
at the time by the Trustee, as provided in Section 702(a).
(d) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each securities exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when any securities are listed on any securities
exchange.
SECTION 704. Reports by Company.
The Company shall:
(1) file with the Trustee, within 15 days after the Company files the
same with the Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any
of the foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934; or, if the Company is not required to file
information, documents or reports pursuant to either of said Sections, then
it will file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Securities Exchange Act of 1934, in
respect of a security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules and
regulations;
(2) file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such
additional information, documents, and reports with respect to compliance
by the Company with the conditions and covenants of this Indenture as may
be required from time to time by such rules and regulations; and
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(3) transmit by mail to all Holders, within 30 days after the filing
thereof with the Trustee, in the manner and to the extent provided in
Section 703(c) with respect to reports pursuant to Section 703(a), such
summaries of any information, documents and reports required to be filed by
the Company pursuant to paragraphs (1) and (2) of this Section as may be
required by rules and regulations prescribed from time to time by the
Commission.
(4) furnish to the Trustee, not less often than annually, the
certificate referred to in Section 1005. For purposes of such certificate,
compliance by the Company with respect to the conditions and covenants
under this Indenture shall be determined without regard to any period of
grace or requirement of notice provided under this Indenture.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person or
sell, 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 sale, conveyance, transfer or
lease 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, any state thereof or the District of Columbia;
(2) the Person formed by such consolidation or into which the Company
is merged or the Person which acquires by sale, conveyance, transfer or
lease the properties and assets of the Company substantially as an entirety
shall expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of (and premium, if any) and interest, if
any (including all additional amounts, if any, payable pursuant to Section
1008), on all the Securities and the performance of every covenant of this
Indenture on the part of the Company to be performed or observed;
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(3) immediately after giving effect to such transaction, and treating
any indebtedness which becomes an obligation of the Company or a Subsidiary
as a result of such transaction as having been incurred by the Company or
such Subsidiary at the time of such transaction no Event of Default, and no
event which, after notice or lapse of time, or both, would become an Event
of Default, shall have happened and be continuing; and
(4) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that such consolidation, merger,
sale, conveyance, transfer or lease and, if a supplemental indenture is
required in connection with such transaction, such supplemental indenture
comply with this Article and that all conditions precedent herein provided
for relating to such transaction have been complied with.
SECTION 802. Successor Substituted.
Upon any consolidation or merger by the Company with or into any other
Person, or any sale, conveyance, transfer or lease by the Company of the
properties and assets of the Company substantially as an entirety to any Person
in accordance with Section 801, the successor Person formed by such
consolidation or into which the Company is merged or to which such sale,
conveyance, transfer or lease is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Company under this Indenture with
the same effect as if such successor Person had been named as the Company
herein; and thereafter, the Company (which term shall for this purpose mean the
Person named as the "Company" in the first paragraph of this Indenture or any
successor Person which shall theretofore become such in the manner described in
Section 801) shall be discharged from all obligations and covenants under this
Indenture and the Securities and coupons, and may be dissolved and liquidated.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holder of Securities, the Company, when
authorized by or pursuant to 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:
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(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company herein
and in the Securities contained; or
(2) to add to the covenants of the Company, for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Events of Default; or
(4) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to principal, to
change or eliminate any restrictions on the payment of principal (or
premium, if any) or interest, if any, on Bearer Securities, to permit
Bearer Securities to be issued for Bearer Securities of other authorized
denominations or to permit the issuance of Securities in uncertificated
form, provided that any such action shall not adversely affect the
interests of the Holders of Securities of any series or any related coupons
in any material respect; or
(5) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only
when there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the benefit
of such provision; or
(6) to secure the Securities and related coupons; or
(7) to establish the form or terms of Securities of any series and
related coupons as permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and/or to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant
to the requirements of Section 611(b); or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided that such action shall not
adversely affect the interests of the Holders of Securities of any series
or any related coupons in any material respect.
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SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series and any related coupons under this
Indenture; provided, however, that no such supplemental indenture shall, without
the consent of the Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any installment
of principal of or any interest on, any security, or reduce the principal
amount thereof or any rate of interest thereon or any premium payable upon
the redemption thereof, or change any obligation of the Company to pay
additional amounts pursuant to Section 1008 (except as contemplated by
Section 801(l) and permitted by Section 901(l)), or reduce the amount of
the principal of an Original Issue Discount Security that would be due and
payable upon a declaration of acceleration of the Stated Maturity thereof
pursuant to Section 502, or change the method in which amounts of payments
of principal or any interest thereon are determined, or change any Place of
Payment, or change the coin or currency in which any Security or any
premium or any interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1007, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby, provided, however, that this clause shall not be deemed to require
the consent of any Holder of a Security or coupon with respect to changes
in the references to "the Trustee" and concomitant changes in this Section
and Section 1007, or the deletion of this proviso, in accordance with the
requirements of Sections 611(b) and 901(8).
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A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture, and that such supplemental indenture,
when executed and delivered by the Company, will constitute a valid and binding
obligation of the Company in accordance with its terms. The Trustee may, but
shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
and of any coupons appertaining thereto shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
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SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form acceptable to the Trustee as to any
matter provided for in such supplemental indenture. If the Company shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest, if any, on the Securities of that series in accordance
with the terms of such series of Securities, any coupons appertaining thereto
and this Indenture. Unless otherwise specified as contemplated by Section 301
with respect to any series of Securities, any interest due on Bearer Securities
on or before Maturity shall be payable only upon presentation and surrender of
the several coupons for such interest installments as are evidenced thereby as
they severally mature.
SECTION 1002. Maintenance of Office or Agency.
If Securities of a series are issuable as or exchangeable for Registered
Securities, the Company will maintain in each Place of Payment for such series
an office or agency where Securities of that series may be presented or
surrendered for payment, where Securities of that series may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company with respect to the Securities of that series and this Indenture may
be served, any one or more of which offices or agencies may be the same for one
or more series of Securities.
If Securities of a series are issuable as Bearer Securities, the Company
will maintain (A) in the Borough of Manhattan, the City of New York, an office
or agency where any Registered Securities of that series may be presented or
surrendered for payment, where any Registered Securities of that series may be
surrendered for
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registration of transfer, where Securities of that series may be surrendered for
exchange, where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served and where Bearer
Securities of that series and related coupons may be presented or surrendered
for payment in the circumstances described in the following paragraph (and not
otherwise), (B) subject to any laws or regulations applicable thereto, in a
Place of Payment for that series which is located outside the United States, an
office or agency where Bearer Securities of that series and related coupons may
be presented and surrendered for payment (including payment of any additional
amounts payable on Securities of that series pursuant to Section 1008);
provided, however, that if the Securities of that series are listed on The
International Stock Exchange of the United Kingdom and the Republic of Ireland
Limited, the Luxembourg Stock Exchange or any other stock exchange located
outside the United States and such securities exchange shall so require, the
Company will maintain a Paying Agent for the Securities of that series in
London, Luxembourg or any other required city located outside the United States,
as the case may be, so long as the Securities of that series are listed on such
exchange, and (C) subject to any laws or regulations applicable thereto, in a
Place of Payment for that series located outside the United States an office or
agency where any Registered Securities of that series may be surrendered for
registration of transfer, where Securities of that series may be surrendered for
exchange and where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served.
The Company will give prompt written notice to the Trustee and prompt
notice to the Holders of Securities of such series, as provided in Section 106,
of the location, and of 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 in respect of any series of Securities 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,
except that Bearer Securities of that series and the related coupons may be
presented and surrendered for payment (including payment of any additional
amounts payable on Bearer Securities of that series pursuant to Section 1008) at
any Place of Payment for such series located outside the United States and the
Company hereby appoints the Trustee its agent to receive all such presentations,
surrenders, notices and demands.
No payment of principal, premium or interest on Bearer Securities shall be
made at any office or agency of the Company in the United States or by check
mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States; provided, however, that, if
the Securities of a series are denominated and payable in Dollars, payment of
principal of and any premium and interest on any Bearer Security (including any
additional amounts payable on Securities of such series pursuant to Section
1008) and payment of any coupon related thereto shall be made at the office of
the Company's Paying Agent in the United States, if (but only if) payment in
Dollars of the full amount of such
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principal, premium, interest or additional amounts, as the case may be, at all
offices or agencies outside the United States maintained for the purpose by the
Company in accordance with this Indenture is illegal or effectively precluded by
exchange controls or other similar restrictions.
The Company may also from time to time designate one or more other offices
or agencies (in or outside any Place of Payment) where the Securities of one or
more series and any related coupons 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 for Securities of any
series and related coupons for such purposes. The Company will give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.
SECTION 1003. Money for Security Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect
to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest, if any, on any of the Securities
of that series, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal (and premium, if any) or
interest, if any, 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 for any series of
Securities, it will, prior to each due date of the principal of (and premium, if
any) or interest, if any, on any Securities of that series, deposit with a
Paying Agent a sum sufficient to pay the principal (and premium, if any) or
interest, if any, so becoming due, such sum to be held in trust for the benefit
of the Persons entitled to such principal, premium or interest, and (unless such
Paying Agent is the Trustee) the Company will promptly notify the Trustee of its
action or failure so to act.
The Company will cause each Paying Agent of any series of Securities other
than the Trustee to execute and deliver to the Trustee an instrument in which
such Paying Agent shall agree with the Trustee, subject to the provisions of
this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest, if any, on the Securities of that series in
trust for the benefit of the Persons entitled thereto until such sums shall
be paid to such Persons otherwise disposed of as herein provided;
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(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of that series) in the making of any
payment of principal (and premium, if any) or interest, if any, on the
Securities of that series; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of (and premium, if any)
or interest, if any, on any Security of any series or the payment of any related
coupon and remaining unclaimed for two years after such principal (and premium,
if any) or interest, if any, has become due and payable shall, unless otherwise
required by mandatory provisions of applicable escheat, or abandoned or
unclaimed property law, be paid to the Company on Company Request, or (if then
held by the Company) shall be discharged from such trust; and the Holder of such
Security or any coupon appertaining thereto shall thereafter, as an unsecured
general creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of the Company cause to be
published once, in an Authorized Newspaper in each Place of Payment, notice that
such money remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will, unless otherwise required by
mandatory provisions of applicable escheat, or abandoned or unclaimed property
law, be repaid to the Company.
SECTION 1004. Restrictions on Secured Debt.
The Company covenants and agrees for the benefit of each series of
Securities, other than any series established by or pursuant to a Board
Resolution or in one or more supplemental indentures hereto which specifically
provides otherwise, that it will not itself, and will not permit any Restricted
Subsidiary to, incur, issue, assume, or guarantee any loans, whether or not
evidenced by negotiable instruments
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or securities, or any notes, bonds, debentures or other similar evidences of
indebtedness for money borrowed (loans, and notes, bonds, debentures or other
similar evidences of indebtedness for money borrowed being hereinafter in this
Section 1004 called "Debt"), secured after the date hereof by pledge of, or
mortgage or lien on, any Principal Property of the Company or any Restricted
Subsidiary or any shares of Capital Stock of or Debt of any Restricted
Subsidiary (mortgages, pledges and liens being hereinafter in this Section 1004
called "Mortgage" or "Mortgages"), without effectively providing that the
Securities, other than Securities of a series not entitled to the benefits of
this covenant (together with, if the Company shall so determine, any other Debt
of the Company or such Restricted Subsidiary then existing or thereafter created
which is not subordinate to the Securities) shall be secured equally and ratably
with (or, at the option of the Company, prior to) such secured Debt, so long as
such secured Debt shall be so secured, unless, after giving effect thereto, the
aggregate amount of all such secured Debt would not exceed 10% of Consolidated
Net Assets; provided, however, that this Section 1004 shall not apply to, and
there shall be excluded from secured Debt in any computation under this Section
1004, Debt secured by:
(1) Mortgages on property of, or on any shares of Capital Stock of or
Debt of, any corporation existing at the time such corporation becomes a
Restricted Subsidiary;
(2) Mortgages in favor of the Company or any Restricted Subsidiary;
(3) Mortgages in favor of any governmental body to secure progress,
advance or other payments pursuant to any contract or provision of any
statute;
(4) Mortgages on property, shares of Capital Stock or Debt existing at
the time of acquisition thereof (including acquisition through merger or
consolidation) or to secure the payment of all or any part of the purchase
price thereof or construction thereon or to secure any Debt incurred prior
to, at the time of, or within 360 days after the later of the acquisition
of such property, shares of Capital Stock or Debt or the completion of
construction for the purpose of financing all or any part of the purchase
price thereof or construction thereon;
(5) Mortgages securing obligations issued by a State, territory or
possession of the United States, any political subdivision of any of the
foregoing, or the District of Columbia, or any instrumentality of any of
the foregoing to finance the acquisition or construction of property, and
on which the interest is not, in the opinion of tax counsel of recognized
standing or in accordance with a ruling issued by the Internal Revenue
Service, includible in gross income of the holder by reason of Section
103(a)(1) of the Internal Revenue Code (or any successor to such provision
or any other similar statute
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of the United States) as in effect at the time of the issuance of such
obligations;
(6) Mechanics', materialmen's, carriers' or other like liens arising
in the ordinary course of business (including construction of facilities)
in respect of obligations which are not due or which are being contested in
good faith;
(7) Any mortgage arising by reason of deposits with, or the giving of
any form of security to, any governmental agency or any body created or
approved by law or governmental regulations, which is required by law or
governmental regulation as a condition to the transaction of any business,
or the exercise of any privilege, franchise or license;
(8) Mortgages for taxes, assessments or governmental charges or levies
not yet delinquent, or mortgages for taxes, assessments or governmental
charges or levies already delinquent but the validity of which is being
contested in good faith;
(9) Mortgages (including judgment liens) arising in connection with
legal proceedings so long as such proceedings are being contested in good
faith and, in the case of judgment liens, execution thereon is stayed;
(10) Mortgages existing at the date of this Indenture; and
(11) Any extension, renewal or replacement (or successive extensions,
renewals or replacements), as a whole or in part, of any mortgage referred
to in the foregoing clauses (1) to (10), inclusive; provided, however, that
such extension, renewal or replacement Mortgage shall be limited to all or
part of the same property, shares of Capital Stock or Debt that secured the
Mortgage extended, renewed or replaced (plus improvements on such
property).
SECTION 1005. Statement as to Compliance.
The Company will deliver to the Trustee, within 120 days after the end of
each fiscal year of the Company ending after the date of the first issuance of
Securities hereunder, a certificate of the chief executive officer, chief
financial officer or chief accounting officer, stating, as to each signer
thereof, that
(1) a review of the activities of the Company during such year and of
performance under this Indenture has been made under his supervision, and
(2) to the best of his knowledge, based on such review, the Company
has complied with all of its conditions and covenants under this
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Indenture, or if the Company has not so complied, specifying each such
default known to him and the nature and status thereof.
SECTION 1006. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence.
SECTION 1007. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any term
provision, covenant or condition set forth in Section 1004, if before the time
for such compliance the Holders of at least a majority in principal amount of
the Outstanding Securities of each series shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with such
term, provision, covenant or condition, but no such waiver shall extend to or
affect such term, provision, covenant or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the obligations
of the Company and the duties of the Trustee with respect to any such term,
provision, covenant or condition shall remain in full force and effect.
SECTION 1008. Additional Amounts.
If the Securities of a series provide for the payment of additional
amounts, the Company will pay to the Holder of any Security of such series or
any coupon appertaining thereto additional amounts as provided therein. Whenever
in this Indenture there is mentioned, in any context, the payment of the
principal of or any premium or interest on, or in respect of, any Security of
any series or payment of any related coupon or the net proceeds received on the
sale or exchange of any Security of any series, such mention shall be deemed to
include mention of the payment of additional amounts provided for in this
Section to the extent that, in such context, additional amounts are, were or
would be payable in respect thereof pursuant to the provisions of this Section
and express mention of the payment of additional amounts (if applicable) in any
provisions hereof shall not be construed as excluding additional amounts in
those provisions hereof where such express mention is not made.
If the Securities of a series provide for the payment of additional
amounts, at least 10 days prior to the first Interest Payment Date with respect
to that series of Securities (or if the Securities of that series will not bear
interest prior to Maturity, the first day on which a payment of principal and
any premium is made), and at least 10 days prior to each date of payment of
principal and any premium or interest if there has been any change with respect
to the matters set forth in the
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below-mentioned Officers' Certificate, the Company will furnish the Trustee and
the Company's principal Paying Agent or Paying Agents, if other than the
Trustee, with an Officers' Certificate instructing the Trustee and such Paying
Agent or Paying Agents whether such payment of principal of and any premium or
interest on the Securities of that series shall be made to one or more Holders
of Securities of that series or any related coupons who are United States Aliens
without withholding for or on account of any tax, assessment or other
governmental charge described in the Securities of that series. If any such
withholding shall be required, then such Officers' Certificate shall specify by
country the amount, if any, required to be withheld on such payments to such
Holders of Securities or coupons and the Company will pay to the Trustee or such
Paying Agent the additional amounts required by this Section. The Company
covenants to indemnify the Trustee and any Paying Agent for, and to hold them
harmless against, any loss, liability or expense reasonably incurred without
negligence or bad faith on their part arising out of or in connection with
actions taken or omitted by any of them in reliance on any Officers' Certificate
furnished pursuant to this Section.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of This Article.
Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified as contemplated by Section 301 for Securities of any series) in
accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by
a Board Resolution. In case of any redemption at the election of the Company of
less than all the Securities of any series, the Company shall, at least 60 days
prior to the Redemption Date fixed by the Company (unless a shorter notice shall
be satisfactory to the Trustee), notify the Trustee of such Redemption Date and
of the principal amount of Securities of such series to be redeemed, such notice
to be accompanied by a written statement signed by an Authorized Officer of the
Company stating that no defaults in the payment of interest or Events of Default
with respect to the Securities of that series have occurred (which have not been
waived or cured). In the case of any redemption of Securities (i) prior to the
expiration of any restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture, or (ii) pursuant to an election of
the Company which is subject to a condition specified in the terms of such
Securities, the Company shall furnish the
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Trustee with an Officers' Certificate evidencing compliance with such
restriction or condition.
SECTION 1103. Selection by Trustee of Securities to be Redeemed.
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption by lot or by such other method
as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof) of
the principal amount of Securities of such series of a denomination larger than
the minimum authorized denomination for Securities of that series or of portions
of the principal amount of global Securities of such series.
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section 106
not more than 60 days nor less than (a) 30 days, in the case of Securities in
global form registered in the name of DTC, or (b) 10 days, in the case of other
Securities, prior to the Redemption Date, to the Holders of Securities to be
redeemed.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price and any accrued interest;
(3) if less than all Outstanding Securities of any series are to be
redeemed, the identification (and, in the case of partial redemption, the
principal amounts) of the particular Securities to be redeemed;
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(4) that on the Redemption Date the Redemption Price, and any accrued
interest thereon, will become due and payable upon each such Security to be
redeemed and that interest thereon shall cease to accrue from and after
said date;
(5) the place or places where such Securities are, together in the
case of Bearer Securities with all coupons appertaining thereto, if any,
maturing after the Redemption Date, to be surrendered for payment of the
Redemption Price and any accrued interest thereon;
(6) if such be the case, that the installment of interest on
Registered Securities whose Stated Maturity is the Redemption Date is
payable to the Persons in whose names such Registered Securities are
registered at the close of business on the Regular Record Date immediately
preceding the Redemption Date; and
(7) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed shall be given by the
Company or, at the Company's request, by the Trustee in the name and at the
expense of the Company.
SECTION 1105. Deposit of Redemption Price.
Not later than 12:00 p.m., New York City time, on any Redemption Date, the
Company shall deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) an amount of money sufficient to pay the Redemption
Price of, and (except if the Redemption Date shall be an Interest Payment Date)
any accrued interest on, all the Securities which are to be redeemed on that
date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified together with any accrued interest thereon
and from and after such date (unless the Company shall default in the payment of
the Redemption Price and accrued interest), such Securities shall cease to bear
interest and the coupons for such interest appertaining to any Bearer Securities
so to be redeemed, except to the extent provided below, shall be void. Upon
surrender of any such Securities for redemption in accordance with said notice,
such Securities shall be paid by the Company at the Redemption Price, together
with any accrued interest to the Redemption Date; provided, however, that any
installments of interest on Bearer
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Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable only at an office or agency located outside the United States (except as
otherwise provided in Section 1002) and, unless otherwise specified as
contemplated by Section 301, only upon presentation and surrender of coupons for
such interest, and provided, further, that, unless otherwise specified as
contemplated by Section 301, installments of interest on Registered Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 307.
If any Bearer Security which is to be redeemed in whole or in part (as set
forth in Section 1107), surrendered for redemption shall not be accompanied by
all appurtenant coupons maturing after the Redemption Date, such Security may be
paid after deducting from the Redemption Price an amount equal to the face
amount of all such missing coupons, or the surrender of such missing coupon or
coupons may be waived by the Company or jointly by the Company and the Trustee
if there be furnished to them such security or indemnify as they may require to
save each of them and any Paying Agent harmless. If thereafter, a Holder shall
surrender to the Trustee or any Paying Agent any such missing coupon in respect
of which a deduction shall have been made from the Redemption Price, such Holder
shall be entitled to receive the amount so deducted; provided, however, that
interest represented by coupons shall be payable only upon presentation and
surrender of those coupons at an office or agency located outside of the United
States except as otherwise provided in Section 1002.
If the Company shall default in the payment of the Redemption Price and
accrued interest on any Security called for redemption, the principal (and
premium, if any) of such Security shall, until paid or until payment is provided
for in accordance herewith, bear interest for the Redemption Date at the rate,
if any, prescribed therefor in the Security.
So long as it is known to the Trustee that an Event of Default is
continuing hereunder, the Trustee shall not redeem any Securities of any series
pursuant to this Article (unless all Outstanding Securities of such series are
to be redeemed) or mail or give any notice of redemption of Securities except
that, where the mailing of notice of redemption of any Securities shall
theretofore have been made, the Trustee shall redeem or cause to be redeemed
such Securities, provided that it shall have received from the Company a sum
sufficient for such redemption. Except as aforesaid, any monies theretofore or
thereafter received by the Trustee shall, during the continuance of such Event
of Default, be deemed to have been collected under Article Five and held for the
payment of all such Securities. In case such Event of Default shall have been
waived as provided in Section 513 or the default cured on or before the sixtieth
day preceding the Redemption Date, such monies shall thereafter be applied in
accordance with the provisions of this Article.
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SECTION 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at
any Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing) together, in the case of Bearer Securities, with all
coupons appertaining thereto maturing after the Redemption Date, and the Company
shall execute and the Trustee shall authenticate and deliver to the Holder of
such Security without service charge, a new Security or Securities of the same
series and of like tenor, of any authorized denomination as requested by the
Holder, in an aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of a series except as otherwise specified as
contemplated by Section 301 for the Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of the Securities of any series is herein referred to as an "optional
sinking fund payment." If provided for by the terms of the Securities of any
series, the cash amount of any sinking fund payment may be subject to reduction
as provided in Section 1202. Each sinking fund payment made on the Securities of
a series shall be applied to the redemption of the Securities of such series as
provided for by the terms of the Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments With Securities.
The Company (1) may deliver Outstanding Securities of a series (other than
any previously called for redemption), together in the case of any Bearer
Securities of such series with all unmatured coupons appertaining thereto, and
(2) may apply as a credit the Securities of a series which have been redeemed
either at the election of the Company pursuant to the terms of such Securities
or through the
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application of permitted optional sinking fund payments pursuant to the terms of
such Securities, in each case in satisfaction of all or any part of any sinking
fund payment as specified in the Officers' Certificate delivered pursuant to
Section 1203 with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; provided that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days or such other shorter period as may be acceptable to
the Trustee prior to each sinking fund payment date for any series of
Securities, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities of that series pursuant to
Section 1202 and will also deliver to the Trustee any Securities to be so
delivered. Not less than 30 days before each such sinking fund payment date the
Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 1103 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company
in the manner provided in Section 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
MEETINGS OF THE HOLDERS OF SECURITIES
SECTION 1301. Purposes for Which Meetings May be Called.
If any Securities of a series are issuable as Bearer Securities, a meeting
of Holders of Securities of such series may be called at any time and from time
to time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series.
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SECTION 1302. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of Securities of
any series issuable as Bearer Securities or as Bearer Securities and Registered
Securities for any purpose specified in Section 1301, to be held at such time
and at such place in the Borough of Manhattan, The City of New York, or in
London as the Trustee shall determine. Notice of every meeting of Holders of
Securities of any series, setting forth the time and the place of such meeting
and in general terms the action proposed to be taken at such meeting, shall be
given, in the manner provided in Section 106, not less than 21 nor more than 180
days prior to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board Resolution, or the
Holders of at least 10% in principal amount of the Outstanding Securities of any
series issuable as Bearer Securities or as Bearer Securities and Registered
Securities shall have requested the Trustee to call a meeting of the Holders of
Securities of such series for any purpose specified in Section 1301, by written
request setting forth in reasonable detail the action proposed to be taken at
the meeting, and the Trustee shall not have made the first publication of the
notice of such meeting within 21 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as provided herein, then the
Company or the Holders of Securities of such series in the amount above
specified, as the case may be, may determine the time and the place in the
Borough of Manhattan, The City of New York, or in London for such meeting and
may call such meeting for such purposes by giving notice thereof as provided in
subsection (a) of this Section.
SECTION 1303. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding Securities of
such series, or (2) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more Outstanding Securities of which series by
such Holder or Holders. The only Persons who shall be entitled to be present or
to speak at any meeting of Holders of Securities of any series shall be the
Persons entitled to vote at such meeting and their counsel, any representatives
of the Trustee and its counsel and any representatives of the Company and its
counsel. The Company may set a record date for purposes of determining the
identity of Holders entitled to vote at any meeting of Holders of Securities.
87
78
SECTION 1304. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series; provided, however, that if any action is
to be taken at such meeting with respect to a consent or waiver which this
Indenture or the terms of such series expressly provides may be given by the
Holders of not less than a specified percentage of the principal amount of the
Outstanding Securities of a series, the Persons entitled to vote such specified
percentage in principal amount of the Outstanding Securities of such series
shall constitute a quorum. In the absence of a quorum within 30 minutes of the
time appointed for any such meeting, the meeting shall, if convened at the
request of Holders of Securities of such series be dissolved. In any other case
the meeting may be adjourned for a period of not less than 10 days as determined
by the chairman of the meeting prior to the adjournment of such meeting. In the
absence of a quorum at any such adjourned meeting, such adjourned meeting may be
further adjourned for a period of not less than 10 days as determined by the
chairman of the meeting prior to the adjournment of such adjourned meeting.
Notice of the reconvening of any adjourned meeting shall be given as provided in
Section 1302(a), except that such notice need be given only once not less than
five days prior to the date on which the meeting is scheduled to be reconvened.
Notice of the reconvening of an adjourned meeting shall state expressly the
percentage, as provided above, of the principal amount of the Outstanding
Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted by the affirmative vote of the Holders of a majority
in principal amount of the Outstanding Securities of that series; provided,
however, that, except as limited by the proviso to Section 902, any resolution
with respect to any request, demand, authorization, direction, notice, consent,
waiver or other action which this Indenture or the terms of such series
expressly provides may be made, given or taken by the Holders of a specified
percentage in principal amount of the Outstanding Securities of a series may be
adopted at a meeting or an adjourned meeting duly reconvened and at which a
quorum is present as aforesaid by the affirmative vote of the Holders of such
specified percentage in principal amount of the Outstanding Securities of that
series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related coupons,
whether or not present or represented at the meeting.
88
79
SECTION 1305. Determination of Voting Rights; Conduct and
Adjournment of Meeting.
(a) Notwithstanding any other provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities of a series in regard to proof of the holding of
Securities of such series and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall deem appropriate.
Except as otherwise permitted or required by any such regulations, the holding
of Securities shall be proved in the manner specified in Section 104 and the
appointment of any proxy shall be proved in the manner specified in Section 104
or by having the signature of the person executing the proxy witnessed or
guaranteed by any trust company, bank or banker authorized by Section 104 to
certify to the holding of Bearer Securities. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of Securities as provided in Section 1302(b), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy shall
be entitled to one vote for each $1,000 principal amount of the Outstanding
Securities of such series held or represented by him; provided, however, that no
vote shall be cast or counted at any meeting in respect of any Security
challenged as not Outstanding and ruled by the chairman of the meeting to be not
Outstanding. The chairman of the meeting shall have no right to vote, except as
a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called pursuant
to Section 1302 at which a quorum is present may be adjourned from time to time
by Persons entitled to vote a majority in principal amount of the Outstanding
Securities of such series represented at the meeting; and the meeting may be
held as so adjourned without further notice.
89
80
SECTION 1306. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the Notice of the meeting and
showing that said notice was given as provided in Section 1302 and, if
applicable, Section 1304. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
90
81
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
X. X. XXXXX COMPANY
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President - Finance
and Chief Financial Officer
[Seal]
Attest:
/s/ Xxxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxxx X. Xxxxxx, Xx.
Title: Secretary
The First National Bank of Chicago,
as Trustee
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
[Seal]
Attest:
/s/ Xxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Trust Officer
91
82
COMMONWEALTH OF PENNSYLVANIA )
: ss.:
COUNTY OF ALLEGHENY )
On this, the 29th day of July, 1992, before me Xxxxxxx X. Xxxxxxx, the
undersigned officer, personally appeared Xxxxx X. Xxxxxxxx, to me known, who,
being by me duly sworn, did depose and say that he resides at Pittsburgh,
Pennsylvania; that he is Vice President-Finance and Chief Financial Officer of
X. X. Xxxxx Company, one of the corporations described in and which executed the
above Instrument; that one of the seals affixed to the 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, being
authorized so to do, executed the foregoing instrument for the purposes therein
contained.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed official seal
the day and year in this certificate first written above.
/s/ Xxxxxxx X. Valanik
---------------------------
Notary Public
92
83
STATE OF ILLINOIS )
: ss.:
COUNTY OF XXXX )
On this, the 24th day of July, 1992, before me personally came Xxxxxx
Xxxxxx, to me known, who, being by me duly sworn, did depose and say that he
resided at Glen Ellyn, Illinois; that he is Vice President of the First National
Bank of Chicago, one of the parties described in and which executed the above
instrument; that he knows the corporate seal of said bank; that one of the seals
affixed to the said instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said bank, and that he signed his name
thereto by like authority.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed official seal
the day and year in this certificate first written above.
[SEAL]
/s/ Xxxxxxx XxXxxxx
---------------------------
Notary Public
93
EXHIBIT A
[FORM OF REGISTERED SECURITY]*/
[Form of Face]
[If an Original Issue Discount Security, insert any legend required by the
Internal Revenue Code and the Regulations thereunder.]
X.X. XXXXX COMPANY
---------------------------
No. [R-] [U.S. $]
------------------------- -------------------------
X.X. XXXXX COMPANY, a corporation duly organized and existing under the
laws of the Commonwealth of Pennsylvania (herein called the "Company", which
term includes any successor Person under the Indenture referred to on the
reverse hereof), for value received, hereby promises to pay to _______________,
or registered assigns, the principal sum of __________________________________
[United States] Dollars on ________________________ [If the Security is
interest-bearing, insert-, and to pay interest thereon from ______________ ,
______________ or from the most recent Interest Payment Date to which interest
has been paid or duly provided for, [semi-annually in arrears on
________________ and in each year] [annually in arrears on in each year],
commencing ___________________ at the rate of _____________ % per annum, until
the principal hereof is paid or made available for payment [If applicable,
insert-, and (to the extent that the payment of such interest shall be legally
enforceable) at the rate of _____ % per annum on any overdue principal [and
premium, if any] and on any overdue installment of interest). The interest so
payable, and punctually paid or duly provided for, on any Interest Payment Date
will, as provided in such Indenture, be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest, which shall be the
_______________________ [or _________________] (whether or not a Business Date)
[, as the case may be,] next preceding such Interest Payment Date. Except as
otherwise provided in the Indenture, any such interest not so punctually paid or
duly provided for will forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name this
Security (or one or more
--------
*/ To be completed and supplemented to reflect the terms of any series of
Securities.
94
A-2
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities of this series
not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert- The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity, and in such case the overdue principal of this Security shall bear
interest at the rate of % per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of such
default in payment to the date payment of such principal has been made or duly
provided for. Interest on any overdue principal shall be payable on demand. Any
such interest on any overdue principal that is not so paid on demand shall bear
interest at the rate of % per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of such
demand for payment to the date payment of such interest has been made or duly
provided for, and such interest shall also be payable on demand.] [Payment of
the principal of [(and premium, if any)] and [If applicable, insert- any such]
interest on this Security will be made at [the offices or agencies of the
Company maintained for that purpose in _____________________ , _________________
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 debt.] [If applicable,
insert-; provided, however, that at the option of the Company payment of
interest may be made by [United States dollar] check mailed to the address of
the Person entitled thereto as such address shall appear in the Security
Register].]
[If Securities of the series are to be offered to United States Aliens and
if applicable, insert- The Company will pay to the Holder of this Security who
is a United States Alien (as defined below) such additional amounts as may be
necessary in order that [If the Security is interest-bearing, insert- every net
payment of the principal of [(and premium, if any)] and interest on this
Security] [If the Security is not to bear interest prior to Maturity, insert-
(i) the net payment of principal of (and interest on overdue principal, if any,
on) this Security and (ii) the net proceeds from the sale or exchange of this
Security, including, in each case, amounts received in respect of original issue
discount], after deduction or withholding for or on account of any present or
future tax, assessment or other governmental charge imposed by the United States
(as defined below) or any political subdivision or taxing authority thereof or
therein upon or as a result of such payment [If the Security is not to bear
interest prior to Maturity, insert- or as a result of such sale or exchange],
will not be less than the amount provided for in this Security to be then due
and payable [If the Security is not to bear interest prior to Maturity, insert-
or, in the case of a sale or
95
A-3
exchange, the amount of the net proceeds from the sale or exchange before any
such tax, assessment or other governmental charge); provided, however, that the
foregoing obligation to pay additional amounts will not apply to any one or more
of the following:
(a) any tax, assessment or other governmental charge which would not
have been so imposed but for (i) the existence of any present or former
connection between such Holder (or between a fiduciary, settlor,
beneficiary, member of, or possessor of a power over, or shareholder of
such Holder, if such Holder is an estate, a trust, a partnership or a
corporation) and the United States, including, without limitation, such
Holder (or such fiduciary, settlor, beneficiary, member, possessor or
shareholder being or having been a citizen or resident or treated as a
resident thereof, or being or having been engaged in trade or business or
present therein, or having or having had a permanent establishment therein,
or (ii) such Holder's present or former status as a personal holding
company, a foreign personal holding company, a controlled foreign
corporation for United States tax purposes or a corporation which
accumulates earnings to avoid United States federal income tax;
(b) any tax, assessment or other governmental charge imposed [If the
Security is interest-bearing, insert- on interest received by a Person
holding, actually or constructively, 10% or more of the total combined
voting power of all classes of stock of the Company entitled to vote or by
a foreign organization that is a private foundation or on interest received
by a bank on an extension of credit made pursuant to a loan agreement
entered into in the ordinary course of its trade or business, within the
meaning of sec tion 881(c)(3)(A) of the Internal Revenue Code of 1986, as
amended (the "Code")] [[if the Security is not to bear interest prior to
Maturity insert- by reason of such Holder's past or present status as the
actual or constructive owner of 10% or more of the total combined voting
power of all classes of stock of the Company entitled to vote or by a
foreign organization that is a private foundation or on interest received
by a bank on an extension of credit made pursuant to a loan agreement
entered into the ordinary course of its trade or business, within the
meaning of section 881(c)(3)(A) of the Code];
(c) any tax, assessment or other governmental charge which would not
have been imposed but for the failure to comply with any certification,
identification or other reporting requirements concerning the nationality,
residence, identity or connection with the United States of the Holder or
beneficial owner of this Security, if compliance is required by statute or
by regulation of the United States as a precondition to exemption from such
tax, assessment or other governmental charge;
(d) any estate, inheritance, gift, sales, transfer, personal property
or any similar tax, assessment or governmental charge;
96
A-4
(e) any tax, assessment or other governmental charge which is payable
otherwise than by deduction or withholding from payments of [if the
Security is interest-bearing, insert- principal of [(and premium, if any)]
or interest on this Security] [If the Security is not to bear interest
prior to Maturity, insert- principal of (or interest on overdue principal,
if any, on) this Security or from payments from the proceeds of a sale or
exchange of this Security]; or
(f) any tax, assessment or other governmental charge which would not
have been so imposed but for the presentation by the Holder of this
Security for payment on a date more than 15 days after the date on which
such payment became due and payable or the date on which payment thereof is
duly provided for, whichever occurs later;
nor will additional amounts be paid with respect to any payment of [if the
Security is interest-bearing, insert- principal of [(and premium, if any)] or
interest on this Security] [if the Security is not to bear interest prior to
Maturity, insert- principal of (or interest on overdue principal, if any, on)
this Security or of the proceeds of any sale or exchange of this Security] to
any United States Alien who is a fiduciary or partnership or other than the sole
beneficial owner of any such payment to the extent that a beneficiary or settlor
with respect to such fiduciary, a member of such a partnership or the beneficial
owner would not have been entitled to the additional amounts had such
beneficiary, settlor, member or beneficial owner been the Holder of this
Security. In the case of net proceeds from the sale or exchange of a Bearer
Security, additional amounts with respect to such net proceeds shall not (a)
exceed additional amounts that would have been payable if the Bearer Security
had been redeemed for its issue price plus accrued original issue discount at
the time of such sale or exchange or (b) be paid in respect of any sale or
exchange occurring after the date fixed for redemption of such Security. Except
as previously provided herein with respect to Bearer Securities, the Company
shall not be required to make any payment with respect to any tax, assessment or
other governmental charge imposed by any government or any political subdivision
or taxing authority thereof or therein and may make such withholdings and
deductions on account of any such change as may be required by applicable law or
regulation. The term "United States Alien" means any Person who, for United
States federal income tax purposes, is a foreign corporation, a non-resident
alien individual, a non-resident alien fiduciary of a foreign estate or trust or
a foreign partnership one or more of the members of which is, for United States
federal income tax purposes, a foreign corporation, a non-resident alien
individual or a non-resident alien fiduciary of a foreign estate or trust, and
the term "United States" means the United States of America (including the
States and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.]
97
A-5
Reference is hereby made to the further provisions of this Security set
forth on the reverse side hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof, directly or through an Authenticating
Agent, by manual signature of an authorized signatory, this Security shall not
be entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
-------------------
X.X. XXXXX COMPANY
By
------------------------------
Attest:
-------------------------
98
A-6
[Form of Reverse]
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of July 15, 1992 (herein called the
"Indenture"), between the Company and The First National Bank of Chicago, as
Trustee (herein called the "Trustee", which term includes any successor trustee
under the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Securities [If the Securities of the series are issuable as
Bearer Securities, insert- and any coupons appertaining thereto] and of the
terms upon which the Securities are, and are to be, authenticated and delivered.
This Security is one of the series designated on the face hereof[, limited in
aggregate principal amount to [U.S.] [$]____________]. The Securities of this
series are issuable as [Bearer Securities] [, with interest coupons attached,]
in the denomination of [If Securities of the series are issuable as Bearer
Securities, insert- [U.S. $]_______, and] [only] Registered Securities, without
coupons in denominations of [U.S. $]__________, and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations therein
set forth [Bearer Securities and Registered] Securities of this Series are
exchangeable for a like aggregate principal amount of [Registered] Securities of
this series and of like tenor of any authorized denominations, as requested by
the Holder surrendering the same, upon surrender of the Security or Securities
to be exchanged at [any office or agency described below where Registered
Securities of this series may be presented for registration of transfer].
[Bearer Securities may not be issued in exchange for Registered Securities.]
[If applicable, insert- The Securities of this series are subject to
redemption [(l)] [If applicable, insert- on ____________ in any year commencing
with the year _____________ and ending with the year ______________ through
operation of the sinking fund for this series at a Redemption Price equal to
[100% of the principal amount] [or insert formula for determining the amount],
[and] (2) [If applicable, insert- at any time [on or after _________________ ,
19___], as a whole or in part, at the election of the Company, at the following
Redemption Prices (expressed as percentages of the principal amount): If
redeemed [or before _________________ , ___% and if redeemed] during the
12-month period beginning ____________________ of the years indicated,
Redemption Redemption
Year Price Year Price
-------------------------------------------------------------
99
A-7
and thereafter at a Redemption Price equal to ____% of the principal amount,]
[If applicable, insert- [and (_______)] under the circumstances described in the
next [two] succeeding paragraph[s] at a Redemption Price equal to [100% of the
principal amount,] [or insert formula for determining the amount]] [If the
Security is interest-bearing, insert-, together in the case of any such
redemption [If applicable, insert-(whether through operation of the sinking fund
or otherwise)] with accrued interest to the Redemption Date; provided, however,
that installments of interest on this Security whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holder of this Security, or
one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture].
[If applicable, insert- The Securities of this series are subject to
redemption (1) on _________________ in any year commencing with the year
_________ and ending with the year ____________ through operation of the sinking
fund for this series at the Redemption Prices for redemption through operation
of the sinking fund (expressed as percentages of the principal amount) set forth
in the table below, and (2) at any time [on or after ______________ , _____], as
a whole or in part, at the election of the Company, at the Redemption Prices for
redemption otherwise than through operation of the sinking fund (expressed as
percentages of the principal amount) set forth in the table below: If redeemed
during the 12-month period beginning of the years indicated,
Redemption Price for
Redemption Price for Redemption-Otherwise
Redemption-Through Than Through
Operation of the Operation of the
Year Sinking Fund Sinking-Fund
------------------ -------------------- --------------------
and thereafter at a Redemption Price equal to _____% of the principal amount,
[If applicable, insert- and (3) under the circumstances described in the next
[two] succeeding paragraph[s] at a Redemption Price equal to [100% of the
principal amount] [or insert formula for determining the amount]] [If the
Security is interest-bearing, insert-, together in the case of any such
redemption (whether through operation of the sinking fund or otherwise) with
accrued interest to the Redemption Date; provided, however, that installments of
interest on this Security whose Stated Maturity is on or prior to such
Redemption Date will be payable to the Holder of this Security, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture].]
100
A-8
[Partial redemption must be made in an amount not less than [U.S. $1,000]
principal amount of Securities.]
[Notwithstanding the foregoing, the Company may not, prior to
______________, redeem any Securities of this series as contemplated by Clause
[(2)] above as a part of, or in anticipation of, any refunding operation by the
application, directly or indirectly, of moneys borrowed having an interest cost
to the Company (calculated in accordance with generally accepted financial
practice) of less than % per annum.]
[If Securities of the series are to be offered to United States Aliens,
insert- The Securities may be redeemed, as a whole but not in part, at the
option of the Company, at a Redemption Price [equal to 100% of their principal
amount] [determined as set forth in the preceding paragraph] [If the Security is
interest-bearing, insert-, together with interest accrued to the date fixed for
redemption,] if (i) as a result of any amendment to, or change in, the laws or
regulations of the United States or any political subdivision or taxing
authority thereof or therein affecting taxation, or any amendment to or change
in an official interpretation or application of such laws or regulations, which
amendment or change ("Tax Law Change") is effective on or after
__________________ , _________, the Company has or will become obligated to pay
additional amounts (as described in the face hereof) [If the Security is
interest-bearing, insert- on the next succeeding Interest Payment Date] [If the
Security is not to bear interest prior to Maturity, insert- at Maturity or upon
the sale or exchange of any Security]; provided that, at the time such notice is
given, such obligation to pay such additional amounts remains in effect, or (ii)
in the written opinion of independent counsel selected by the Company there is a
substantial likelihood that the Company has or will become obligated to pay such
additional amounts as a result of any action taken by any taxing authority or of
any action brought in a court of competent jurisdiction in the United States or
any political subdivision thereof or therein, including any of the actions
described in (i) above, whether or not such action has been taken or brought
with respect to the Company, or as a result of any officially proposed Tax Law
Change, which action or proposed change occurs after .]
[If the Securities of the series are issuable as Bearer Securities and if
applicable, insert- In addition, if the Company determines, based upon a written
opinion of independent counsel selected by the Company, that any payment made
outside the United States by the Company or any of its Paying Agents of the full
amount of principal, [(premium, if any)] or interest, if any, due with respect
to any Bearer Security or coupon would, under any present or future laws or
regulations of the United States, be subject to any certification,
identification or other reporting requirement of any kind, the effect of which
requirement is the disclosure to the Company, any Paying Agent or any
governmental authority of the nationality, residence or identity of a beneficial
owner of such Bearer Security or coupon who is a United States Alien (as defined
on the face hereof (other than such a requirement
101
A-9
(a) which would not be applicable to a payment made by the Company or any one of
its Paying Agents (i) directly to the beneficial owner or (ii) to any custodian,
nominee or other agent of the beneficial owner, or (b) which can be satisfied by
the custodian, nominee or other agent certifying that the beneficial owner is a
United States Alien, provided in each case referred to in clauses (a)(ii) and
(b) that payment by such custodian, nominee or other agent of such beneficial
owner is not otherwise subject to any such requirement), the Company at its
election will either (x) redeem the Securities, as a whole but not in part, at a
Redemption Price [equal to 100% of their principal amount] [determined as set
forth in the next preceding paragraph,] together with interest accrued to the
date fixed for redemption, or (y) if and so long as any such certification,
identification or other reporting requirement would be fully satisfied by
payment of a backup withholding tax or similar charge, pay to the Holders of
Bearer Securities who are United States Aliens certain additional amounts
specified in the Bearer Securities of this series. The Company will make such
determination and election and notify the Trustee thereof as soon as
practicable, and the Trustee will promptly give notice of such determination in
the manner provided below (the "Determination Notice"), in each case stating the
effective date of such certification, identification or other reporting
requirement, whether the Company will redeem the Securities or will pay to the
Holders of Bearer Securities who are United States Aliens the additional amounts
specified in the Bearer Securities of this series and (if applicable) the last
day by which the redemption of the Securities must take place. If the Company
elects to redeem the Securities, such redemption shall take place on such date,
not later than one year after publication of the Determination Notice, as the
Company elects by notice to the Trustee at least 60 days before such date,
unless shorter notice is acceptable to the Trustee. Notwithstanding the
foregoing, the Company will not so redeem the Securities if the Company, based
upon an opinion of independent counsel selected by the Company subsequently
determines, not less than 10 days prior to the date fixed for redemption, that
subsequent payments would not be subject to any such requirement, in which case
the Company will notify the Trustee, which will promptly give notice of that
determination in the manner provided below, and any earlier redemption notice
will thereupon be revoked and of no further effect. If the Company elects as
provided in clause (y) above to pay such additional amounts to the Holders of
Bearer Securities who are United States Aliens, and as long as the Company is
obligated to pay such additional amounts to such Holders, the Company may
subsequently redeem the Securities, at any time, as a whole but not in part, at
a Redemption Price [equal to 100% of their principal amount] [determined as set
forth in the next preceding paragraph,] together with interest accrued to the
date fixed for redemption, but without reduction for applicable United States
withholding taxes.]
[The sinking fund for this series provides for the redemption on in each
year, beginning with the year ____________ and ending with the year
_____________ of [not less than] [U.S.] $______________ [("mandatory sinking
fund") and not more than [U.S.] $_______________ ] aggregate principal amount of
Securities of this series. [Securities of this series acquired or redeemed by
102
A-10
the Company otherwise than through [mandatory] sinking fund payments may be
credited against subsequent [mandatory] sinking fund payments otherwise required
to be made in the inverse order in which they become due.]]
[Notice of redemption will be given by mail to Holders of [If the
Securities of the Series are issuable as Bearer Securities, insert- Registered]
Securities, not more than 60 days nor less than (a) 30 days, in the case of
Securities in global form registered in the name of DTC, or (b) 10 days, in the
case of other Securities, prior to the date fixed for redemption, all as
provided in the Indenture.]
In the event of redemption of this Security in part only, a new [If the
Securities of the series are issuable as Bearer Securities, insert- Registered]
Security or Securities of this series and of like tenor for the unredeemed
portion hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, [the] [If an Original Issue Discount Security, insert-
an amount of] principal of the Securities of this series may be declared due and
payable in the manner and with the effect provided in the Indenture. [If an
Original Issue Discount Security, insert- Such amount shall be equal to -insert
formula for determining the amount. Upon payment (i) of the amount of principal
so declared due and payable and (ii) of interest on any overdue principal and
overdue interest (in each case to the extent that the payment of such interest
shall be legally enforceable), all of the Company's obligations in respect of
the payment of the principal of and interest, if any, on the Securities of this
series shall terminate.]
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected [If the Securities of the series are issuable as Bearer Securities and
are interest-bearing, insert- and any related coupons] under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of a
majority in principal amount of the Securities at the time Outstanding of each
series to be affected. The Indenture also contains provisions permitting the
Holders of specified percentages in principal amount of the Securities of each
series at the time Outstanding (with each series voting as a separate class in
certain cases specified in the Indenture, or with all series voting as one
class, in certain other cases specified in the Indenture), on behalf of the
Holders of all Securities of such series [If the Securities of the series are
issuable as Bearer Securities [and are interest-bearing] insert- and any related
coupons], to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notification of such consent or waiver
is made upon this Security.
103
A-11
As set forth in, and subject to, the provisions of the Indenture, no Holder
of any Security of this series will have any right to institute any proceeding
with respect to the Indenture or for any remedy thereunder, unless such Holder
shall have previously given to the Trustee written notice of a continuing Event
of Default with respect to this series, the Holders of not less than 25% in
principal amount of the Outstanding Securities of this series shall have made
written request, and offered reasonable indemnity, to the Trustee to institute
such proceeding as trustee, and the Trustee shall not have received from the
Holders of a majority in principal amount of the Outstanding Securities of this
series a direction inconsistent with such request and shall have failed to
institute such proceedings within 60 days; provided, however, that such
limitations do not apply to a suit instituted by the Holder hereof for the
enforcement of payment of the principal of [(and premium, if any)] or [any]
interest on this Security on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of [(and premium, if any)] and
[any] interest [(including additional amounts, as described on the face hereof)]
on this Security at the times, place[s] and rate, and in the coin or currency,
herein prescribed.
[Title to Bearer Securities shall pass by delivery.] As provided in the
Indenture and subject to certain limitations therein set forth, the transfer of
[this] [Registered] Security is registrable in the Security Register, upon
surrender of [this] [Registered] Security for registration of transfer at the
office or agency of the Company in [any place where the principal of [(and
premium, if any)] and [any] interest on such Security are payable], duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new [If the Securities of the series are issuable as Bearer Securities,
insert- Registered] Securities of this series and of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
[If the Securities of the series are not issuable as Bearer Securities
insert- The Securities of this series are issuable only in registered form,
without coupons, in denominations of [$]______ and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations therein
set forth, Securities of this series are exchangeable for a like aggregate
principal amount of Securities of this series and of like tenor of a different
authorized denomination, as requested by the Holder surrendering the same.]
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
104
A-12
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 is overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
Notwithstanding anything in the Indenture or in the terms of this Security
to the contrary, the exchange of this Security for a Registered Security will be
subject to satisfaction of the provisions of the United States tax laws in
effect at the time of the exchange. Neither the Company nor the Trustee nor any
agent of the Company or the Trustee shall be required to exchange this Security
for a Registered Security if (i) as a result thereof and in the Company's
judgment, the Company would incur adverse consequences under then applicable
United States Federal income tax laws and (ii) in the case of the Trustee or any
agent of the Company or the Trustee, the Company shall have delivered to such
Person an Officers' Certificate and an Opinion of Counsel as to the matters set
forth in clause (i) above.
The Indenture, [and] the Securities and [If the Securities of the series
are issuable as Bearer Securities, insert- any coupons appertaining thereon]
shall be governed by and construed in accordance with the laws of the State of
New York, without giving effect to the conflicts of laws provisions thereof.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
105
EXHIBIT B
[FORM OF BEARER SECURITY
AND FORM OF RELATED COUPON]*/
[Form of Face of Security]
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE [If an
Original Issue Discount Security, insert any legend recruited by the Internal
Revenue Code and the Regulations thereunder.]
X.X. XXXXX COMPANY
----------------
No. B [U.S. $ ]
-------------------- ------------------
X.X. XXXXX COMPANY, a corporation duly organized and existing under the
laws of the Commonwealth of Pennsylvania (herein called the "Company," which
term includes any successor Person under the Indenture referred to on the
reverse hereof), for value received, hereby promises to pay to bearer upon
presentation and surrender of this Security the principal sum of _____ [United
States dollars] on ________________ . [If the Security is interest-bearing,
insert-, and to pay interest thereon, from the date hereof, [semi-annually in
arrears on ______________ and _____________ in each year] [annually in arrears
on ________________ in each year], commencing __________________ , _____ , at
the rate of ____ % per annum, until the principal hereof is paid or made
available for payment [If applicable, insert-, and (to the extent that the
payment of such interest shall be legally enforceable) at the rate of ____% per
annum on any overdue principal and premium and on any overdue installment of
interest)].
[If the Security is not to bear interest prior to Maturity, insert- The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity, and in such case the overdue principal of this Security shall bear
interest at the rate of _____% per annum (to the extent that the payment of
such interest shall be legally enforceable), which shall accrue from the date of
such default in payment to the date
--------
*/ To be completed and supplemented to reflect the terms of any series of
Securities.
106
B-2
payment of such principal has been made or duly provided for. Interest on any
overdue principal shall be payable on demand. Any such interest on any overdue
principal that is not so paid on demand shall bear interest at the rate of ____%
per annum (to the extent that the payment of such interest shall be legally
enforceable), which shall accrue from the date of such demand for payment to the
date payment of such interest has been made or duly provided for, and such
interest shall also be payable on demand.] Such payments [(including premium, if
any)] shall be made, subject to any laws or regulations applicable thereto and
to the right of the Company (limited as provided in the Indenture) to rescind
the designation of any such Paying Agent, at the [main] office of
____________________ in ___________________ , ____________________ in
__________________ , ________________in _________________ , ________________ in
and ______________ in _________________, or at such other offices or agencies
outside the United States (as defined below) as the Company may designate, at
the option of the Holder, by [United States dollar] check drawn on a bank in The
City of New York or by transfer of [United States dollars] to an account
maintained by the payee with a bank located outside the United States. [If the
Security is interest-bearing, insert- Interest on this Security due on or before
Maturity shall be payable only upon presentation and surrender at such an office
or agency of the interest coupons hereto attached as they severally mature.] No
payment of principal[, or] [premium] [or interest] on this Security shall be
made at any office or agency of the Company in the United States or by check
mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States [If the Security is
denominated and Payable in United States dollars, insert-; provided, however,
that payment of principal of [(and premium, if any)] and [any] interest on this
Security (including any additional amounts which may be payable as provided
below) shall be made at the office of the Company's Paying Agent in the United
States of America, if (but only if) payment in United States dollars of the full
amount of such principal[, premium] [, interest] or additional amounts, as the
case may be, at all offices or agencies outside the United States maintained for
the purpose by the Company in accordance with the Indenture is illegal or
effectively precluded by exchange controls or other similar restrictions, as
determined by the Company].
The Company will pay to the Holder of this Security [If the Security is
interest-bearing, insert- or any coupon appertaining hereto] who is a United
States Alien (as defined below) such additional amounts as may be necessary in
order that [If the Security is interest-bearing, insert- every net payment of
the principal of [(and premium, if any)] and interest on this Security] [If the
Security is not to bear interest Prior to Maturity, insert- (i) the net payment
of principal of (and interest on overdue principal, if any, on) this Security
and (ii) the net proceeds from the sale or exchange of this Security, including,
in each case, amounts received in respect of original issue discount], after
deduction or withholding for or on account of any present or future tax,
assessment or other governmental charge imposed by the United States or any
political subdivision or taxing authority thereof or therein upon or as a result
of such
107
B-3
payment [If the Security is not to bear interest prior to Maturity, insert- or
as a result of such sale or exchange], will not be less than the amount provided
for in this Security [If the Security is interest-bearing, insert- or, in the
case of a sale or exchange, the amount of the net proceeds from the sale or
exchange before any such tax, assessment or other governmental charge];
provided, however, that the foregoing obligation to pay additional amounts will
not apply to any one or more of the following:
(a) any tax, assessment or other governmental charge which would not
have been so imposed but for (i) the existence of any present or former
connection between such Holder (or between a fiduciary, settlor,
beneficiary, member of, or possessor of a power over, or shareholder of
such Holder, if such Holder is an estate, a trust, a partnership or a
corporation) and the United States, including, without limitation, such
Holder (or such fiduciary, settlor, beneficiary, member, possessor or
shareholder) being or having been a citizen or resident or treated as a
resident thereof, or being or having been engaged in trade or business or
present therein, or having or having had a permanent establishment therein,
or (ii) such Holder's present or former status as a personal holding
company, a foreign personal holding company, a controlled foreign
corporation for United States tax purposes or a corporation which
accumulates earnings to avoid United States federal income tax;
(b) any tax, assessment or other governmental charge imposed [If the
Security is interest-bearing, insert- on interest received by a Person
holding, actually or constructively, 10% or more of the total combined
voting power of all classes of stock of the Company entitled to vote or by
a foreign organization that is a private foundation or on interest received
by a bank on an extension of credit made pursuant to a loan agreement
entered into in the ordinary course of its trade or business, within the
meaning of section 881(c)(3)(A) of the Internal Revenue Code of 1986, as
amended (the "Code")] [[If the Security is not to bear interest prior to
Maturity, insert- by reason of such Holder's past or present status as the
actual or constructive owner of 10% or more of the total combined voting
power of all classes of stock of the Company entitled to vote or by a
foreign organization that is a private foundation or on interest received
by a bank on an extension of credit made pursuant to a loan agreement
entered into in the ordinary course of its trade or business, within the
meaning of section 881(c)(3)(A) of the Code];
(c) any tax, assessment or other governmental charge which would not
have been imposed but for the failure to comply with any certification,
identification or other reporting requirements concerning the nationality,
residence, identity or connection with the United States of the Holder or
beneficial owner of this Security [If the Security is interest-bearing,
insert- or any coupon appertaining hereto], if compliance is required by
statute or by
000
X-0
xxxxxxxxxx xx xxx Xxxxxx Xxxxxx as a precondition to exemption from such
tax, assessment or other governmental charge;
(d) any estate, inheritance, gift, sales, transfer, personal property
or any similar tax, assessment or governmental charge;
(e) any tax, assessment or other governmental charge which is payable
otherwise than by deduction or withholding from payments of [If the
Security is interest-bearing, insert- principal of [(and premium, if any)]
or interest on this Security.] [If the Security is not to bear interest
prior to Maturity, insert- principal of (or interest on overdue principal,
if any, on) this Security or from payments from the proceeds of a sale or
exchange of this Security]; or
(f) any tax, assessment or other governmental charge which would not
have been so imposed but for the presentation by the Holder of this
Security [If Security is interest-bearing, insert- or any coupon
appertaining hereto] for payment on a date more than 15 days after the date
on which such payment became due and payable or the date on which payment
thereof is duly provided for, whichever occurs later;
nor will additional amounts be paid with respect to any payment of [If the
Security is interest-bearing, insert- principal of [(and premium, if any)] or
interest on this Security] [If the Security is not to bear interest prior to
Maturity, insert- principal of (or interest on overdue principal, if any, on)
this Security or of the proceeds of any sale or exchange of this Security] to
any United States Alien who is a fiduciary or partnership or other than the sole
beneficial owner of any such payment to the extent that a beneficiary or settlor
with respect to such fiduciary, a member of such a partnership or the beneficial
owner would not have been entitled to the additional amounts had such
beneficiary, settlor, member or beneficial owner been the Holder of this
Security [If the Security is interest-bearing, insert- or any coupon
appertaining hereto]. In the case of net proceeds from the sale or exchange of a
Bearer Security, additional amounts with respect to such net proceeds shall not
(a) exceed additional amounts that would have been payable if the Bearer
Security had been redeemed for its issue price plus accrued original issue
discount at the time of such sale or exchange or (b) be paid in respect of any
sale or exchange occurring after the date fixed for redemption of such Security.
Except as previously provided herein with respect to Bearer Securities, the
Company shall not be required to make any payment with respect to any tax,
assessment or other governmental charge imposed by any government or any
political subdivision or taxing authority thereof or therein and may make such
withholdings and deductions on account of any such change as may be required by
applicable law or regulation. The term "United States Alien" means any Person
who, for United States federal income tax purposes, is a foreign corporation, a
non-resident alien individual, a non-resident alien fiduciary of a foreign
estate or trust, or a foreign partnership one or more of the members of which
is, for United
109
B-5
States federal income tax purposes, a foreign corporation, a non-resident alien
individual or a non-resident alien fiduciary of a foreign estate or trust, and
the term "United States" means the United States of America (including the
States and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
[Notwithstanding the foregoing, if and so long as a certification,
identification or other reporting requirement referred to in the [fourth]
[fifth] paragraph on the reverse hereof would be fully satisfied by payment of a
backup withholding tax or similar charge, the Company may elect, by so stating
in the Determination Notice (as defined in such paragraph), to have the
provisions of this paragraph apply in lieu of the provisions of such paragraph.
In such event, the Company will pay as additional amounts such amounts as may be
necessary so that every net payment made following the effective date of such
requirements outside the United States by the Company or any of its Paying
Agents of principal [(and premiums, if any)] [If the Security is
interest-bearing, insert- or interest] due in respect of any Bearer Security [If
the Security is interest-bearing, insert- or any coupon] of which the beneficial
owner is a United States Alien (but without any requirement that the
nationality, residence or identity of such beneficial owner be disclosed to the
Company, any Paying Agent or any governmental authority), after deduction or
withholding for or on account of such backup withholding tax or similar charge
other than a backup withholding tax or similar charge which is (i) the result of
a certification, identification or other reporting requirement described in the
second parenthetical clause of such paragraph, or (ii) imposed as a result of
the fact that the Company or any of its Paying Agents has actual knowledge that
the beneficial owner of such Bearer Security [If the Security is
interest-bearing, insert - or any coupon] is within the category of Persons
described in clause (a) of the [third] paragraph of this security, or (iii)
imposed as a result of presentation of such Bearer Security [If the Security is
interest-bearing, insert- or coupon] for payment more than 15 days after the
date on which such payment becomes due and payable or on which payment thereof
is duly provided for, whichever occurs later, will not be less than the amount
provided for in such Bearer Security [If the Security is interest-bearing,
insert- or coupon] to be then due and payable.]
Reference is made to the further provisions of this Security set forth on
the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof, or through an authenticating agent,
by manual signature of an authorized signatory, neither this Security, nor any
coupon
110
B-6
appertaining hereto, shall be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal and coupons bearing the facsimile signature of
[its Treasurer] [one of its Assistant Treasurers] to be annexed hereto.
Dated as of ______________, _____
X.X. XXXXX COMPANY
By:
------------------------
Attest:
------------------------
111
B-7
[Form of Reverse of Security]
This security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of July 15, 1992 (herein called the
"Indenture"), between the Company and The First National Bank of Chicago, as
Trustee (herein called the "Trustee", which term includes any successor trustee
under the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Securities are, and are to be, authenticated and delivered. This
Security is one of the series designated on the face hereof [, limited in
aggregate principal amount to [U.S. $] ______ ]. The Securities of this series
are issuable as Bearer Securities, with interest coupons attached, in the
denomination of [U.S. $ ______ [, and as Registered Securities, without coupons,
in denominations of [U.S. $] ______ ] and any integral multiple thereof.] [As
provided in the Indenture and subject to certain limitations therein set forth,
Bearer Securities and Registered Securities of this series are exchangeable for
a like aggregate principal amount of Registered Securities of this series and of
like tenor of any authorized denominations, as requested by the Holder
surrendering the same, upon surrender of the Security or Securities to be
exchanged, with all unmatured coupons and all matured coupons in default thereto
appertaining, at any office or agency described below where Registered
Securities of this series may be presented for registration of transfer,
provided, however, that Bearer Securities surrendered in exchange for Registered
Securities between a Record Date and the relevant Interest Payment Date shall be
surrendered without the coupon relating to such Interest Payment Date. Bearer
Securities may not be issued in exchange for Registered Securities.]
[If applicable, insert- The Securities of this series are subject to
redemption [(l)] [If applicable, insert- on (1) ______ in any year commencing
with the year ______ and ending with the year ______ through operation of the
sinking fund for this series at a Redemption Price equal to [100% of the
principal amount] [or Insert formula for determining the amount], and (2)] [If
applicable, insert- at any time [on or after ______ ], as a whole or in part, at
the election of the Company, at the following Redemption Prices (expressed as
percentages of the principal amount): If redeemed [or before ______, ______%,
and if redeemed] during the 12-month period beginning of the years indicated,
112
B-8
Year Redemption Price Year Redemption Year
---- ---------------- ---- ---------------
and thereafter at a Redemption Price equal to ______% of the principal amount,]
[and (______)] (under the circumstances described in the next [two] succeeding
paragraphs at a Redemption Price equal to [100% of the principal amount] [or
insert formula for determining the amount] [If the Security is interest-bearing,
insert-, together in the case of any such redemption [If applicable, insert-
(whether through operation of the sinking fund or otherwise)] with accrued
interest to the Redemption Date; provided, however, that interest installments
on this Security whose Stated Maturity is on or prior to such Redemption Date
will be payable only upon presentation and surrender of coupons for such
interest (at an office or agency located outside the United States, except as
herein provided otherwise)].]
[If applicable, insert- The Securities of this series are subject to
redemption (1) on ______ in any year commencing with the year ______ and ending
with the year ______ through operation of the sinking fund for this series at
the Redemption Prices for redemption through operation of the sinking fund
(expressed as percentages of the principal amount) set forth in the table below,
and (2) at any time [on or after ______], as a whole or in part, at the election
of the Company, at the Redemption Prices for redemption otherwise than through
operation of the sinking fund (expressed as percentages of the principal amount)
set forth in the table below: If redeemed during the 12-month period beginning
______ of the years indicated.
Redemption Price for
Redemption Price Redemption Otherwise
for Redemption Than Through
Through Operation Operation
Year of the Sinking Fund of the Sinking Fund
---- ------------------- -------------------
and thereafter at a Redemption Price equal to ______% of the principal amount,
and (3) under the circumstances described in the next [two] succeeding
paragraphs at a Redemption Price equal to 100% of the principal amount [or
insert formula for determining the amount] [If the Security is interest-bearing,
insert- together in the case of any such redemption (whether through operation
of the sinking fund or otherwise) with accrued interest to the Redemption Date;
provided, however, that
113
B-9
interest installments on this Security whose Stated Maturity is on or prior to
such Redemption Date will be payable only upon presentation and surrender of
coupons for such interest (at an office or agency located outside the United
States, except as herein provided otherwise)].]
[Partial redemption must be in an amount not less than [U.S. $5,000]
principal amount of Securities.] [Notwithstanding the foregoing, the Company may
not, prior to ______, redeem any Securities of this series as contemplated by
Clause [(2)] above as a part of, or in anticipation of, any refunding operation
by the application, directly or indirectly, of moneys borrowed having an
interest cost to the Company (calculated in accordance with generally accepted
financial practice) of less than ______% per annum.]
[The Securities may be redeemed, as a whole but not in part, at the option
of the Company, at a Redemption Price [equal to 100% of their principal amount]
[determined as set forth in the preceding paragraph] [If the Security is
interest bearing, insert-, together with interest accrued to the date fixed for
redemption,] if (i), as a result of any amendment to, or change in, the laws or
regulations of the United States or any political subdivision or taxing
authority thereof or therein affecting taxation, or any amendment to or change
in an official interpretation or application of such laws or regulations, which
amendment or change ("Tax Law Change") is effective on or after ______, ______,
the Company has or will become obligated to pay additional amounts (as described
on the face hereof) [If the Security is interest-bearing, insert- on the next
succeeding Interest Payment Date] [If the Security is not to bear interest Prior
to Maturity, insert- at Maturity or upon the sale or exchange of any Security]
at the time such notice is given, such obligation to pay such additional amounts
remains in effect or (ii) in the written opinion of independent counsel selected
by the Company there is a substantial likelihood that the Company has or will
become obligated to pay such additional amounts as a result of any action taken
by any taxing authority or of any action brought in a court of competent
jurisdiction in the United States or any political subdivision thereof or
therein, including any of the actions described in (i) above, whether or not
such action has been taken or brought with respect to the Company, or as a
result of any officially proposed Tax Law Change, which action or proposed
change occurs after __________.
[If applicable, insert- In addition, if the Company determines, based upon
a written opinion of independent counsel selected by the Company, that any
payment made outside the United States by the Company or any of its Paying
Agents of the full amount of principal [(, premium, if any)] or interest due
with respect to any Bearer Security or coupon would, under any present or future
laws or regulations of the United States, be subject to any certification,
identification or other reporting requirement of any kind, the effect of which
requirement is the disclosure to the Company, any Paying Agent or any
governmental authority of the nationality, residence or identity of a beneficial
owner of such Bearer Security or coupon who is a
114
B-10
United States Alien (as defined on the face hereof) (other than such a
requirement (a) which would not be applicable to a payment made by the Company
or any one of its Paying Agents (i) directly to the beneficial owner, or (ii) to
any custodian, nominee or other agent of the beneficial owner, or (b) which can
be satisfied by the custodian, nominee or other agent certifying that the
beneficial owner is a United States Alien, provided in each case referred to in
clauses (a)(ii) and (b) that payment by such custodian, nominee or other agent
of such beneficial owner is not otherwise subject to any such requirement), the
Company at its election will either (x) redeem the Securities, as a whole but
not in part, at a Redemption Price [equal to 100% of their principal amount,]
[determined as set forth in the next preceding paragraph,] together with
interest accrued to the date fixed for redemption, or (y) if and so long as the
conditions of the [third] paragraph on the face of this Security are satisfied,
pay the additional amounts specified in such paragraph. The Company will make
such determination and election and notify the Trustee thereof as soon as
practicable, and the Trustee will promptly give notice of such determination in
the manner provided below (the "Determination Notice"), in each case stating the
effective date of such certification, identification or other reporting
requirement, whether the Company will redeem the securities or will pay the
additional amounts specified in such paragraph and (if applicable) the last day
by which the redemption of the Securities must take place. If the Company elects
to redeem the Securities, such redemption shall take place on such date, not
later than one year after publication of the Determination Notice, as the
Company elects by notice to the Trustee at least 60 days before such date,
unless shorter notice is acceptable to the Trustee. Notwithstanding the
foregoing, the Company will not so redeem the Securities if the Company, based
upon an opinion of independent counsel selected by the Company, subsequently
determines, not less than 10 days prior to the date fixed for redemption, that
subsequent payments would not be subject to any such requirement, in which case
the Company will notify the Trustee, which will promptly give notice of that
determination in the manner provided below, and any earlier redemption notice
will thereupon be revoked and of no further effect. If the Company elects as
provided in clause (y) above to pay such additional amounts, the Company may
subsequently redeem the Securities, at any time, as a whole or in part, at a
Redemption Price [equal to 100% of their principal amount] [determined as set
forth in the next preceding paragraph,] together with interest accrued to the
date fixed for redemption, but without reduction for applicable United States
withholding taxes.]
[If applicable, insert- In addition, if the Company determines, based upon
a written opinion of independent counsel selected by the Company, that any
payment made outside the United States by the Company or any of its Paying
Agents of the full amount due with respect to any Bearer Security would, under
any present or future laws or regulations of the United States, be subject to
any certification, identification or other reporting requirement of any kind,
the effect of which requirement is the disclosure to the Company, any Paying
Agent or any governmental authority of the nationality, residence or identity of
a beneficial owner of such Bearer Security who is a United States Alien (as
defined on the face hereof) (other than such
115
B-11
a requirement (a) which would not be applicable to a payment made by the Company
or any one of its Paying Agents (i) directly to the beneficial owner or (ii) to
any custodian, nominee or other agent of the beneficial owner, or (b) which can
be satisfied by the custodian, nominee or other agent certifying to the effect
that such beneficial owner is a United States Alien, provided in each case
referred to in clauses (a)(ii) and (b) that payment by such custodian, nominee
or other agent of such beneficial owner is not otherwise subject to any such
requirement), the Company at its election will either (x) permit any Holder of a
Bearer Security to present such Bearer Security for redemption within 90 days of
notice of such redemption, at a Redemption Price determined as set forth in the
next preceding paragraph, or (y) if and so long as the conditions of the [fifth]
paragraph on the face of this Security are satisfied, pay the additional amounts
specified in such paragraph. The Company will make such determination and
election and notify the Trustee thereof as soon as practicable, and the Trustee
will promptly give notice of such determination in the manner provided below
(the "Determination Notice"), in each case stating the effective date of such
certification, identification or other reporting requirement, whether the
Company has elected to permit redemption of the Bearer Securities or to pay the
additional amounts specified in such paragraph and (if applicable) the last day
by which the Company may publish any notice of redemption. If the Company elects
to permit redemption of the Bearer Securities, notice of the redemption will be
given not more than 268 days following the Determination Notice and will specify
the date fixed for redemption. The Bearer securities will be redeemed on the day
97 days after notice of the redemption has been given. Notwithstanding the
foregoing, the Company will not permit redemption of the Bearer Securities if
the Company, based upon an opinion of independent counsel, subsequently
determines, not less than 10 days prior to the date fixed for redemption, that
no payment would be subject to any such requirement, in which case the Company
will promptly notify the Trustee, which will promptly give notice of that
determination in the manner described below, and any earlier redemption notice
will thereupon be revoked and of no further effect.]
[The sinking fund for this series provides for the redemption on
____________________ in each year, beginning with the year ______ and ending
with the year ______, of [not less than] [U.S.] $______ [("mandatory sinking
fund") and not more than [U.S. $______]] aggregate principal amount of
Securities of this series. [Securities of this series acquired or redeemed by
the Company otherwise than through [mandatory] sinking fund payments may be
credited against subsequent [mandatory] sinking fund payments otherwise required
to be made -- in the inverse order in which they become due.]]
[Notice of redemption will be given by publication in an Authorized
Newspaper in The City of New York and, if the Securities of this series are then
listed on [The International Stock Exchange of the United Kingdom and the
Republic of Ireland Limited] [the Luxembourg Stock Exchange] [or] any [other]
stock exchange located outside the United States and such stock exchange shall
so require, in [London] [Luxembourg] [or] in any [other] required city outside
the United States, or,
116
B-12
if not practicable, elsewhere in Europe, [and by mail to Holders of Registered
Securities] not less than 30 nor more than 60 days prior to the date fixed for
redemption, all as provided in the Indenture.]
If an Event of Default with respect to Securities of this series shall
occur and be continuing, [the] [If an original Issue Discount Security, insert-
an amount of] principal of the Securities of the series may be declared due and
payable in the manner and with the effect provided in the Indenture [the] [If an
original Issue Discount Security, insert- such amount shall be equal to- insert
formula for determining the amount. Upon payment (i) of the amount of principal
so declared due and payable and (ii) of interest on any overdue principal and
overdue interest (in each case to the extent that the payment of such interest
shall be legally enforceable), all of the Company's obligations in respect of
the payment of the principal of and interest, if any, on the Securities of this
series shall terminate.]
The Indenture permits with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected [If the Securities of the series are interest-bearing, insert- and any
related coupons] under the Indenture at any time by the Company and the Trustee
with the consent of the Holders of a majority in principal amount of the
Securities at the time Outstanding of each series to be affected. The Indenture
also contains provisions permitting the Holders of specified percentages in
principal amount of the Securities of each series at the time Outstanding (with
each series voting as a separate class in certain cases specified in the
Indenture, or with all series voting as one class, in certain other cases
specified in the Indenture), on behalf of the Holders of all Securities of such
series [If the Securities of the series are interest bearing, insert- and any
related coupons], to waive compliance by the Company with certain provisions of
the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future Holders of this
Security and any coupon appertaining hereto and of any Security issued in
exchange hereof or in lieu hereof, whether or not notation of such consent or
waiver is made upon this Security.
As set forth in, and subject to, the provisions of the Indenture, no Holder
of any Security of this series [if the Security is interest-bearing, insert- or
any related coupon] will have any right to institute any proceeding with respect
to the Indenture or for any remedy thereunder, unless such Holder shall have
previously given to the Trustee written notice of a continuing Event of Default
with respect to this series, the Holders of not less than 25% in principal
amount of the Outstanding Securities of this series shall have made written
request, and offered reasonable indemnity, to the Trustee to institute such
proceeding as trustee, and the Trustee shall not have received from the Holders
of a majority in principal amount of the Outstanding Securities of this series a
direction inconsistent with such request and shall have failed to institute such
proceeding within 60 days; provided, however, that
117
B-13
such limitations do not apply to a suit instituted by the Holder hereof [If the
Security is interest-bearing, insert- or any related coupon] for the enforcement
of payment for the principal of [(and premium, if any)] or [any] interest on
this Security [If the Security is interest-bearing, insert- or payment of such
coupon] on or after the respective due dates expressed herein [If the Security
is interest-bearing, insert- or payment of such coupon] on or after the
respective due dates expressed herein [If the Security is interest bearing,
insert- or in such coupon].
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of [(and premium, if any)] and
[any] interest [(including additional amounts, as described on the face hereof)]
on this Security at the times, place[s] and rate, and in the coin or currency,
herein prescribed.
Title to [Bearer] Securities and coupons shall pass by delivery. [As
provided in the Indenture and subject to certain limitations therein set forth,
the transfer of Registered Securities is registrable in the Security Register,
upon surrender of a Registered Security for registration of transfer at the
[Corporate Trust Office of the Trustee or such other] office or agency of the
Company in any place where the principal of (premium, if any) and interest, if
any, on such Security are payable, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed by, the Holder thereof or his attorney duly authorized
in writing, and thereupon one or more new [Registered] Securities of this series
and of like tenor, of authorized denominations, and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.]
[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.]
The Company, the Trustee and any agent of the Company or the Trustee may
treat the bearer of a Bearer security of any series [If the Securities of the
series are interest-bearing, insert- and any coupon appertaining thereto] [, and
prior to due presentment of a Registered Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered,] as the owner thereof for
all purposes, whether or not such Security [If the Securities of the series are
interest-bearing, insert- or such coupon] is overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the contrary.
Notwithstanding anything in the Indenture or in the terms of this Security
to the contrary, the exchange of this Security for a Registered Security will be
subject to satisfaction of the provisions of the United States tax laws in
effect at
118
B-14
the time of the exchange. Neither the Company nor the Trustee nor any agent of
the Company or the Trustee shall be required to exchange this Security for a
Registered Security if (i) as a result thereof and in the Company's judgment,
the Company would incur adverse consequences under then applicable United States
Federal income tax laws and (ii) in the case of the Trustee or any agent of the
Company or the Trustee, the Company shall have delivered to such Person an
Officers' Certificate and an Opinion of Counsel as to the matters set forth in
clause (i) above.
The Indenture, the Securities and any coupons appertaining thereto shall be
governed by and construed in accordance with the laws of the State of New York
without giving effect to the conflicts of laws provisions thereof. All terms
used in this Security which are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
119
B-15
[Form of Face of Coupon]
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTION 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
[R-]
---------------
X.X. XXXXX COMPANY [U.S. $]
---------------
Due
---------------
--------------------------
Unless the Security to which this coupon appertains shall have been called
for previous redemption and payment thereof duly provided for on the date set
forth hereon, X.X. XXXXX COMPANY (herein called the "Company") will pay to
bearer, upon surrender hereof, the amount shown hereon (together with any
additional amounts in respect thereof which the Company may be required to pay
according to the terms of said Security and the Indenture referred to therein)
[at the initial Paying Agents set out on the reverse hereof or at such other
offices or agencies (which, except as otherwise provided in the Security to
which this coupon appertains, shall be located outside the United States of
America (including the States and the District of Columbia), its territories,
its possessions and other areas subject to its jurisdiction (the "United
States")) as the Company may designate from time to time,] at the option of the
Holder, by [United States dollar check] drawn on a bank in The City of New York
or by transfer of [United States dollars] to an account maintained by the payee
with a bank located outside the United States, being [one year's] interest then
payable on said Security.
X.X. XXXXX COMPANY
By:
---------------------------
120
B-16
[Reverse of Coupon]*
-----------------------------
-----------------------------
-----------------------------
-----------------------------
-----------------------------
----------
* Insert names and addresses of Initial Paying Agents located outside the
United States.
121
EXHIBIT C-1
[FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE BEARER SECURITY
Whenever any provision of this Indenture or the forms of Security
contemplates that certification be given by a Person entitled to receive a
Bearer Security, such certification shall be provided substantially in the form
of the following certificate, with only such changes as shall be approved by the
Company:]
CERTIFICATE
-----------------
[Insert title or sufficient description of Securities to be delivered]
[This is to certify that as of the date hereof, and except as set forth
below, the above-captioned Securities held by you for our account (i) are owned
by person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or other entities created or organized in or
under the laws of the United States or any political subdivision thereof, or any
estate or trust the income of which is subject to United States federal income
taxation regardless of its source ("United States person(s)"), (ii) are owned by
United States person(s) that are (a) foreign branches of United States financial
institutions (financial institutions as defined in United States Treasury
Regulations section 1.165-12(c)(1)(v), are herein referred to as "financial
institutions") purchasing for their own account or for resale, or (b) United
States person(s) who acquired the Securities through foreign branches of United
States financial institutions and who hold the Securities through such United
States financial institutions on the date hereof (and in either case (a) or (b),
each such United States financial institution hereby agrees, on its own behalf
or through its agent, that you may advise X.X. Xxxxx Company or its agent that
such financial institution will comply with the requirements of section
165(j)(3)(A), (B) or (C) of the United States Internal Revenue Code of 1986, as
amended, and the regulations thereunder), or (iii) are owned by United States or
foreign financial institution(s) for purposes of resale during the restricted
period (as defined in United States Treasury Regulations section
1.163-5(c)(2)(i)(D)(7)), and, in addition, if the owner is a United States or
foreign financial institution described in clause (iii) above (whether or not
also described in clause (i) or (ii)), this is to further certify that such
financial institution has not acquired the Securities for purposes of resale
directly or indirectly to a United States person or to a person within the
United States or its possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
including Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake
Island and the Northern Mariana Islands.
122
C-1-2
We undertake to advise you promptly by tested telex if the above statement
as to beneficial ownership is not correct on the date of delivery of the
above-captioned Securities in bearer form as to all of such Securities.
If the undersigned is a dealer, the undersigned agrees to obtain a similar
certificate from each person entitled to delivery of any of the above-captioned
Securities in bearer form purchased from it; provided, however, that, if the
undersigned has actual knowledge (as defined in applicable Internal Revenue
Service regulations) that the information contained in such a certificate is
false, the undersigned will not deliver a Security in temporary or definitive
bearer form to a person who signed such certificate notwithstanding the delivery
of such certificate to the undersigned.
This certificate excepts and does not relate to $_______of such interest in
the above-captioned Securities in respect of which we are not able to certify
and as to which we understand an exchange for and delivery of definitive
Securities (or, if relevant, collection of any payment) cannot be made until we
do so certify.
We understand that this certificate may be required in connection with
certain tax laws of the United States. If administrative or legal proceedings
are commenced or threatened in connection with which this certificate is or
would be relevant, we irrevocably authorize you to produce this certificate or a
copy thereof to any interested party in such proceedings.]
Dated: , 19
--------------- -----
[To be dated no earlier
than the 15th day prior
to the Exchange Date or
prior to the date of the
[ ] certificate, if later]
[Name of Person Making Certification]
-------------------------------------
(Authorized Signatory)
Name:
Title:
123
Exhibit C-2
[FORM OF CERTIFICATE TO BE GIVEN BY EURO-CLEAR
OR CEDEL S.A.
IN CONNECTION WITH THE EXCHANGE OF A PORTION
OF A TEMPORARY GLOBAL SECURITY
Whenever any provision of this Indenture or the forms of Security
contemplates that certification be given by Euro-clear or CEDEL S.A. in
connection with the exchange of a portion of a temporary global Security, such
certification shall be provided substantially in the form of the following
certificate, with only such changes as shall be approved by the Company:]
CERTIFICATE
----------------
[Insert title or sufficient description
of Securities to be delivered]
This is to certify that based solely on written certifications that we have
received in writing, by tested telex or by electronic transmission from each of
the persons appearing in our records as persons entitled to a portion of the
Principal Amount at Maturity set forth below (our "Member Organizations")
substantially in the form attached hereto, as of the date hereof $_________
Principal Amount at Maturity of the above-captioned Securities (i) is owned by
person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or other entities created or organized in or
under the laws of the United States or any political subdivision thereof, or any
estate or trust the income of which is subject to United States Federal income
taxation regardless of its source ("United States person(s)"), (ii) is owned by
United States person(s) that are (a) foreign branches of United States financial
institutions (financial institutions, as defined in U.S. Treasury Regulations
section 1.165-12(c)(1)(v), are herein referred to as "financial institutions")
purchasing for their own account or for resale, or (b) United States person(s)
who acquired the Securities through foreign branches of United States financial
institutions and who hold the Securities through such United States financial
institutions on the date hereof (and in either case (a) or (b), each such
financial institution has agreed on its own behalf or through its agent that we
may advise X.X. Xxxxx Company or its agent that such financial institution will
comply with the requirements of section 165(j)(3)(A), (B) or (C) of the Internal
Revenue Code of 1986, as amended, and the regulations thereunder), or (iii) is
owned by United States or foreign financial institution(s) for purposes of
resale during the restricted period (as defined in United States Treasury
Regulations section 1.163-5(c)(2)(i)(D)(7)) and, to the further effect, that
financial institutions described in clause (iii) above (whether or not also
described in clause (i) or (ii)) have certified that they have not acquired the
Securities for purposes of resale directly or indirectly to a United States
person or to a person within the United States or its possessions.
124
C-2-2
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
including Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake
Island and the Northern Mariana Islands.
We further certify that (i) we are not making available herewith for
exchange (or, if relevant, collection of any amounts) any portion of the
temporary global Security representing the above-captioned Securities excepted
in the above-referenced certificates of Member Organizations and (ii) as of the
date hereof we have not received any notification from any of our Member
Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted herewith for
exchange (or, if relevant, collection of any amounts) are no longer true and
cannot be relief upon as of the date hereof.
We understand that this certification is required in connection with
certain tax laws of the United States. If administrative or legal proceedings
are commenced or threatened in connection with which this certificate is or
would be relevant, we irrevocably authorize you to produce this certificate or a
copy thereof to any interested party in such proceedings.
Dated: , 19
------------- -----
[Certification may be dated
no earlier than the Exchange
Date.]
[XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, BRUSSELS OFFICE,
as Operator of the Euro-clear system)
[CEDEL S.A.]
By:
---------------------------------
125
Exhibit C-3
[FORM OF CERTIFICATE TO BE GIVEN BY
EURO-CLEAR AND CEDEL S.A.
TO OBTAIN INTEREST PRIOR TO AN EXCHANGE DATE
whenever any provision of this Indenture or the forms of Security
contemplates that certification be given by Euro-clear or CEDEL S.A. to obtain
interest prior to an Exchange Date, such certification shall be provided
substantially in the form of the following certificate, with only such changes
as shall be approved by the Company:]
CERTIFICATE
-------------------
[Insert title or sufficient description of Securities]
This is to certify that based solely on written certifications that we have
received in writing, by tested telex or by electronic transmission from each of
the persons appearing in our records as persons entitled to a portion of the
Principal Amount at Maturity set forth below (our "Member Organizations")
substantially in the form attached hereto, as of the date hereof $_________
Principal Amount at Maturity of the above-captioned Securities (i) is owned by
person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or other entities created or organized in or
under the laws of the United States or any political subdivision thereof, or any
estate or trust the income of which is subject to United States Federal income
taxation regardless of its source ("United States person(s)"), (ii) is owned by
United States person(s) that are (a) foreign branches of United States financial
institutions (financial institutions, as defined in U.S. Treasury Regulations
section 1.165-12(c)(1)(v), are herein referred to as "financial institutions")
purchasing for their own account or for resale, or (b) United States person(s)
who acquired the Securities through foreign branches of United States financial
institutions and who hold the Securities through such United States financial
institutions on the date hereof (and in either case (a) or (b), each such
financial institution has agreed, on its own behalf or through its agent, that
we may advise X.X. Xxxxx Company or its agent that such financial institution
will comply with the requirements of section 165(j)(3)(A), (B) or (C) of the
Internal Revenue Code of 1986, as amended, and the regulations thereunder), or
(iii) is owned by United States or foreign financial institution(s) for purposes
of resale during the restricted period (as defined in United States Treasury
Regulations section 1.163-5(c)(2)(i)(D)(7)) and, to the further effect, that
financial institutions described in clause (iii) above (whether or not also
described in clause (i) or (ii)) have certified that they have not acquired the
Securities for purposes of resale directly or indirectly to a United States
person or to a person within the United States or its possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include
126
C-3-2
Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
We understand that this certification is required in connection with
certain tax laws of the United States. If administrative or legal proceedings
are commenced or threatened in connection with which this certificate is or
would be relevant, we irrevocably authorize you to produce this certificate or a
copy thereof to any interested party in such proceedings.
We undertake that any interest received by us and not paid to a person
described in clauses (i) through (iii) above shall be returned to the Trustee
for the above Securities immediately prior to the expiration of two years after
such Interest Payment Date in order to be repaid by such Trustee to the above
issuer at the end of two years after such Interest Payment Date.
Dated: , 19
---------------- ----
[To be dated on or after the relevant
Interest Payment Date]
[XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK,
BRUSSELS OFFICE, as Operator of the
Euro-clear System] [CEDEL S.A.]
By:
-------------------------------
127
Exhibit C-4
[FORM OF CERTIFICATION BY BENEFICIAL OWNERS TO
OBTAIN INTEREST PRIOR TO AN EXCHANGE DATE
Whenever any provision of this Indenture or the forms of Security
contemplates that certification be given by a Person who beneficially owns any
[Bearer] Security in connection with obtaining any interest prior to an Exchange
Date relating to such Bearer Security, such certification shall be provided
substantially in the form of the following certificate, with only such changes
as shall be approved by the Company:]
CERTIFICATE
----------------
[Insert title or sufficient description of Securities]
This is to certify that as of the date hereof, and except as set forth
below, the above-captioned Securities held by you for our account (i) are owned
by person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or other entities created or organized in or
under the laws of the United States or any political subdivision thereof, or any
estate or trust the income of which is subject to United States federal income
taxation regardless of its source ("United States person(s)"), (ii) are owned by
United States person(s) that are (a) foreign branches of United States financial
institutions (financial institutions, as defined in United States Treasury
Regulations section 1.165-12(c)(1)(v), are herein referred to as "financial
institutions") purchasing for their own account or for resale, or (b) United
States person(s) who acquired the Securities through foreign branches of United
States financial institutions and who hold the Securities through such United
States financial institutions on the date hereof (and in either case (a) or (b),
each such United States financial institution hereby agrees, on its own behalf
or through its agent, that you may advise X.X. Xxxxx Company or its agent that
such financial institution will comply with the requirements of section
165(j)(3)(A), (B) or (C) of the United States Internal Revenue Code of 1936, as
amended, and the regulations thereunder) or (iii) are owned by United States or
foreign financial institution(s) for purposes of resale during the restricted
period (as defined in United States Treasury Regulations section
1.163-5(c)(2)(i)(D)(7)), and, in addition, if the owner is a United States or
foreign financial institution described in clause (iii) above (whether or not
also described in clause (i) or (ii)), this is to further certify that such
financial institution has not acquired the Securities for purposes of resale
directly or indirectly to a United States person or to a person within the
United States or its possessions.
As used herein, "United States person" means any citizen or resident of the
United States, any corporation, partnership or other entity created or organized
in or under the laws of the United States and any estate or trust the income of
which is
128
C-4-2
subject to United States Federal income taxation regardless of its source, and
"United States" means the United States of America (including the States and the
District of Columbia), its territories, its possessions and other areas subject
to its jurisdiction.
This certificate excepts and does not relate to [U.S. $_________] principal
amount of the above-captioned Securities appearing in your books as being held
for our account as to which we were not yet able to certify and as to which we
understand interest cannot be credited unless and until we are able so to
certify.
We understand that this certificate may be required in connection with
certain securities and tax legislation in the United States. If administrative
or legal proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: , 19
--------------- -----
[To be dated on or after the
relevant Interest Payment Date]
[Name of Person Entitled to
Receive Interest]
By:
-----------------------------
(Authorized Signatory)
Name:
Title:
