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Exhibit 4.1
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ROHM AND XXXX COMPANY
TO
CHASE MANHATTAN TRUST COMPANY, NATIONAL ASSOCIATION
as Trustee
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INDENTURE
Dated as of July 1, 1999
Providing for the Issuance of
Debt Securities in a Series
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ROHM AND XXXX COMPANY
Reconciliation and tie between Trust Indenture Act of 1939 and
Indenture, dated as of July 1, 1999
Trust Indenture
Act Section Indenture Section
Section 310(a)(1)................................................................................... 609
(a)(2)................................................................................... 609
(a)(3)................................................................................... Not Applicable
(a)(4)................................................................................... Not Applicable
(b)...................................................................................... 608, 610
Section 311(a)...................................................................................... 613(a)
(b)...................................................................................... 613(b)
(b)(2)................................................................................... 703(a)(2), 703(b)
Section 312(a)...................................................................................... 701, 702(a)
(b)...................................................................................... 702(b)
(c)...................................................................................... 702(c)
Section 313(a)...................................................................................... 703(a)
(b)...................................................................................... 703(b)
(c)...................................................................................... 703(a), 703(b)
(d)...................................................................................... 703(c)
Section 314(a)...................................................................................... 704
(b)...................................................................................... Not Applicable
(c)(1)................................................................................... 102
(c)(2)................................................................................... 102
(c)(3)................................................................................... Not Applicable
(d)...................................................................................... Not Applicable
(e)...................................................................................... 102
Section 315(a)...................................................................................... 601(a)
(b)...................................................................................... 602, 703(a)(6)
(c)...................................................................................... 601(b)
(d)...................................................................................... 601(c)
(d)(1)................................................................................... 601(a)(1)
(d)(2)................................................................................... 601(c)(2)
(d)(3)................................................................................... 601(c)(3)
(e)...................................................................................... 514
Section 316(a)...................................................................................... 101
(a)(1)(A)................................................................................ 502, 512
(a)(1)(B)................................................................................ 513
(a)(2)................................................................................... Not Applicable
(b)...................................................................................... 508
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Section 317(a)(1)................................................................................... 503
(a)(2)................................................................................... 504
(b)...................................................................................... 1003
Section 318(a)...................................................................................... 107
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions......................................................................... 1
Act.............................................................................................. 2
Affiliate........................................................................................ 2
Attributable Debt................................................................................ 2
Authenticating Agent............................................................................. 2
Board of Directors............................................................................... 2
Board Resolution................................................................................. 3
Business Day..................................................................................... 3
Certified Board Resolution....................................................................... 3
Commission....................................................................................... 3
Common Stock..................................................................................... 3
Company.......................................................................................... 3
Company Request or Company Order................................................................. 3
Consolidated Net Worth........................................................................... 3
Corporate Trust Office........................................................................... 3
Corporation...................................................................................... 3
Debt............................................................................................. 3
Default Day...................................................................................... 3
Defaulted Interest............................................................................... 3
Definitive Securities............................................................................ 4
Depositary....................................................................................... 4
Event of Default................................................................................. 4
Exchange Act..................................................................................... 4
Exchange Offers.................................................................................. 4
Exchange Offer Registration Statement............................................................ 4
Funded Debt...................................................................................... 4
Global Security.................................................................................. 4
Holder........................................................................................... 4
Indenture........................................................................................ 4
Interest......................................................................................... 5
Interest Payment Date............................................................................ 5
Liquidated Damages............................................................................... 5
Maturity ........................................................................................ 5
Mortgage ........................................................................................ 5
Notice of Redemption............................................................................. 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............................................................................. 6
Principal Operating Property..................................................................... 6
Prospectus....................................................................................... 7
QIB or Qualified Institutional Buyer............................................................. 7
Redemption Date.................................................................................. 7
Redemption Price................................................................................. 7
Registration Default............................................................................. 7
Registration Rights Agreement.................................................................... 7
Registration Statement........................................................................... 7
Regulation S..................................................................................... 7
Regular Record Date.............................................................................. 8
Responsible Officer.............................................................................. 8
Restricted Subsidiary............................................................................ 8
Rule 144 ........................................................................................ 8
Rule 144A........................................................................................ 8
Rule 144(k)...................................................................................... 8
Rule 415 ........................................................................................ 8
Rule 904 ........................................................................................ 8
Securities Act................................................................................... 8
Security or Securities........................................................................... 8
Security Custodian............................................................................... 8
Security Register and Security Registrar......................................................... 8
Shelf Registration Period........................................................................ 8
Shelf Registration Statement..................................................................... 8
Special Record Date.............................................................................. 9
Stated Maturity.................................................................................. 9
Subsidiary....................................................................................... 9
Time of Delivery................................................................................. 9
Transfer Restricted Securities................................................................... 9
Transfer Restriction Termination Date............................................................ 9
Trustee.......................................................................................... 9
Trust Indenture Act.............................................................................. 9
U.S. Government Obligations...................................................................... 9
Unrestricted Subsidiary.......................................................................... 10
Vice President................................................................................... 10
SECTION 102. Compliance Certificates and Opinions................................................ 10
SECTION 103. Form of Documents Delivered to Trustee.............................................. 11
SECTION 104. Acts of Holders; Record Dates....................................................... 11
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SECTION 105. Notices, Etc., to Trustee and Company............................................... 12
SECTION 106. Notice to Holders; Waiver........................................................... 13
SECTION 107. Conflict with Trust Indenture Act................................................... 13
SECTION 108. Effect of Headings and Table of Contents............................................ 13
SECTION 109. Successors and Assigns.............................................................. 13
SECTION 110. Separability Clause................................................................. 13
SECTION 111. Benefits of Indenture............................................................... 14
SECTION 112. Governing Law....................................................................... 14
SECTION 113. Legal Holidays...................................................................... 14
ARTICLE II
SECURITY FORMS
SECTION 201. Forms Generally..................................................................... 14
SECTION 202. Form of Face of Security............................................................ 15
SECTION 203. Form of Reverse of Security......................................................... 18
SECTION 204 Additional Provisions Required in Global Security................................... 25
SECTION 205. Securities Issuable in the Form of a Global Security................................ 25
SECTION 206. Form of Trustee's Certificate of Authentication..................................... 28
ARTICLE III
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series................................................ 29
SECTION 302. Denominations....................................................................... 31
SECTION 303. Execution, Authentication, Delivery and Dating...................................... 31
SECTION 304. Temporary Securities................................................................ 33
SECTION 305. Registration, Registration of Transfer and Exchange; Restrictions on Transfer....... 33
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.................................... 40
SECTION 307. Payment of Interest; Interest Rights Preserved...................................... 40
SECTION 308. Persons Deemed Owners............................................................... 41
SECTION 309. Cancellation........................................................................ 42
SECTION 310. Computation of Interest............................................................. 42
SECTION 311. CUSIP Numbers....................................................................... 42
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture............................................. 42
SECTION 402. Application of Trust Money; Indemnification......................................... 44
SECTION 403. Defeasance and Discharge of Indenture............................................... 44
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ARTICLE V
REMEDIES
SECTION 501. Events of Default................................................................... 46
SECTION 502. Acceleration of Maturity; Rescission and Annulment.................................. 47
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee..................... 48
SECTION 504. Trustee May File Proofs of Claim.................................................... 49
SECTION 505. Trustee May Enforce Claims Without Possession of Securities......................... 49
SECTION 506. Application of Money Collected...................................................... 50
SECTION 507. Limitation of Suits................................................................. 50
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and Interest........... 51
SECTION 509. Restoration of Rights and Remedies.................................................. 51
SECTION 510. Rights and Remedies Cumulative...................................................... 51
SECTION 511. Delay or Omission Not Waiver........................................................ 51
SECTION 512. Control by Holders.................................................................. 51
SECTION 513. Waiver of Past Defaults............................................................. 52
SECTION 514. Undertaking for Costs............................................................... 52
SECTION 515. Waiver of Stay or Extension Laws.................................................... 52
ARTICLE VI
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities................................................. 53
SECTION 602. Notice of Defaults.................................................................. 53
SECTION 603. Certain Rights of Trustee........................................................... 53
SECTION 604. Not Responsible for Recitals or Issuance of Securities.............................. 54
SECTION 605. May Hold Securities and Serve as Trustee Under Other Indentures..................... 54
SECTION 606. Money Held in Trust................................................................. 55
SECTION 607. Compensation and Reimbursement...................................................... 55
SECTION 608. Disqualification; Conflicting Interests............................................. 55
SECTION 609. Corporate Trustee Required; Eligibility............................................. 56
SECTION 610. Resignation and Removal; Appointment of Successor................................... 56
SECTION 611. Acceptance of Appointment by Successor.............................................. 57
SECTION 612. Merger, Conversion, Consolidation or Succession to Business......................... 58
SECTION 613. Preferential Collection of Claims Against Company................................... 59
SECTION 614. Appointment of Authenticating Agent................................................. 59
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ARTICLE VII
HOLDERS' LIST AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders........................... 61
SECTION 702. Preservation of Information; Communications to Holders.............................. 61
SECTION 703. Reports by Trustee.................................................................. 61
SECTION 704. Reports by Company.................................................................. 62
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms................................ 62
SECTION 802. Successor Corporation Substituted................................................... 63
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.................................. 63
SECTION 902. Supplemental Indentures with Consent of Holders..................................... 64
SECTION 903. Execution of Supplemental Indentures................................................ 65
SECTION 904. Effect of Supplemental Indentures................................................... 65
SECTION 905. Conformity with Trust Indenture Act................................................. 66
SECTION 906. Reference in Securities to Supplemental Indenture................................... 66
ARTICLE X
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.......................................... 66
SECTION 1002. Maintenance of Office or Agency..................................................... 66
SECTION 1003. Money for Securities Payments to Be Held in Trust................................... 67
SECTION 1004. Corporate Existence................................................................. 68
SECTION 1005. Maintenance of Properties........................................................... 68
SECTION 1006. Payment of Taxes and Other Claims................................................... 69
SECTION 1007. Maintenance of Insurance............................................................ 69
SECTION 1008. Statement as to Compliance.......................................................... 69
SECTION 1009. Limitation Upon Mortgages........................................................... 69
SECTION 1010. Limitation Upon Sale and Leaseback Transactions..................................... 71
SECTION 1011. Defeasance of Certain Obligations................................................... 72
SECTION 1012. Waiver of Certain Covenants......................................................... 73
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ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article............................................................ 73
SECTION 1102. Election to Redeem; Notice to Trustee............................................... 74
SECTION 1103. Selection by Trustee of Securities to Be Redeemed................................... 74
SECTION 1104. Notice of Redemption................................................................ 74
SECTION 1105. Deposit of Redemption Price......................................................... 75
SECTION 1106. Securities Payable on Redemption Date............................................... 75
SECTION 1107. Securities Redeemed in Part......................................................... 76
ARTICLE XII
SINKING FUNDS
SECTION 1201. Applicability of Article............................................................ 76
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities............................... 77
SECTION 1203. Redemption of Securities for Sinking Fund........................................... 77
TESTIMONIUM.......................................................................................... 78
SIGNATURES AND SEALS................................................................................. 78
Schedule 305(h)(v)................................................................................... S-1
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INDENTURE, dated as of July 1, 1999, between ROHM AND XXXX COMPANY, a
corporation duly organized and existing under the laws of the State of Delaware
(herein called the "Company"), having its principal office at 000 Xxxxxxxxxxxx
Xxxx Xxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx, and CHASE MANHATTAN TRUST COMPANY,
NATIONAL ASSOCIATION, a national banking association duly organized and existing
under the laws of the United States of America, as Trustee (herein called the
"Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance (i) from time to time in one or more
transactions either exempt from, or not subject to, the registration provisions
of the Securities Act of 1933, as amended (the "Securities Act"), of one or more
series of unsecured debentures, notes or other evidences of indebtedness ("Debt
Securities") and (ii) in one or more exchange offers registered under the
Securities Act for the then outstanding Debt Securities, of substantially
identical series of unsecured debentures, notes or other evidences of
indebtedness (except in the absence of the legend set forth in Section 305
manifesting the transfer restrictions and the terms with respect to the
liquidated damage payments applicable to the Debt Securities) (the "Exchange
Securities" and, together with the "Debt Securities," the "Securities).
The Company has duly authorized the execution and delivery of this
Indenture to provide, among other things, for the authentication, delivery and
administration of the Securities.
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 any
series thereof, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
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(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall mean
such accounting principles as are generally accepted at the date 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.
"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.
"Attributable Debt" in respect of a Sale and Leaseback Transaction
referred to in Sections 1009 and 1010 means, at the time of determination, the
present value (discounted at the rate per annum not greater than the rate borne
by any Debt Securities of any series, compounded semi-annually) of the total
obligations of the lessee for net rental payments during the remaining term of
the lease included in such arrangement (including any period for which such
lease has been extended or may, at the option of the lessor, be extended). The
term "net rental payments" under any lease for any period shall mean the sum of
the rental and other payments required to be paid in such period by the lessee
thereunder, not including, however, any amounts required to be paid by such
lessee (whether or not designated as rental or additional rental) on account of
maintenance and repairs, insurance, taxes, assessments, water rates or similar
charges required to be paid by such lessee thereunder. In the case of any lease
which is terminable by the lessee upon the payment of a penalty, such net amount
shall also include the amount of such penalty, but no rent shall be considered
as required to be paid under such lease subsequent to the first date upon which
it may be so terminated.
"Authenticating Agent" means any Person authorized by the Trustee to
act on behalf of the Trustee to authenticate Securities.
"Board of Directors" means either the board of directors of the Company
or any duly authorized committee of that board.
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"Board Resolution" means a resolution duly adopted by the Board of
Directors.
"Business Day" when used with respect to any Place of Payment, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law
to close.
"Certified Board Resolution" means a copy of a Board Resolution
certified by the Secretary or an Assistant Secretary of the Company to have been
duly adopted by the Board of Directors and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act, or, if at any time after
the execution of this instrument such Commission is not existing and performing
the duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Stock" means, with respect to each series of Securities subject
to Article Thirteen, Common Stock of the Company as it exists on the date of
issuance of such series.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its President,
its Vice Chairman or a Vice President, and by its Chief Financial Officer, its
Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and
delivered to the Trustee.
"Consolidated Net Worth" means the aggregate of capital stock and
surplus and surplus reserves which would be included on a consolidated balance
sheet of the Company and its Subsidiaries determined on a consolidated basis in
accordance with generally accepted accounting principles, less the cost of any
treasury shares as included on such balance sheet.
"Corporate Trust Office" means the principal office of the Trustee in
Philadelphia, Pennsylvania at which at any particular time its corporate trust
business shall be administered.
"Corporation" includes corporations, associations, companies and
business trusts.
"Debt" has the meaning specified in Section 1009.
"Default Day" has the meaning specified in Section 202.
"Defaulted Interest" has the meaning specified in Section 307.
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"Definitive Securities" means Securities that are in the form of the
Securities set forth in Article Two hereof that do not include the information
called for by Section 204.
"Depositary" means, with respect to the Securities of any series
issuable or issued in the form of one or more Global Securities, the Person
designated as Depositary by the Company pursuant to Section 301 until a
successor depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or include
such Person who is then a Depositary hereunder, and if at any time there is more
than one such Person, "Depositary" as used with respect to the Securities of
such series shall mean the Depositary with respect to the Global Securities of
that series.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Offers" means the offers that may be made by the Company
pursuant to a Registration Rights Agreement to exchange Debt Securities for
Exchange Securities.
"Exchange Offer Registration Statement" means a registration statement
of the Company on an appropriate form under the Securities Act with respect to
the Exchange Offers, and all amendments and supplements to such registration
statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material incorporated
by reference therein.
"Funded Debt" means any indebtedness for money borrowed maturing on, or
extendible at the option of the obligor to, a date more than one year from the
date of the creation thereof.
"Global Security" means a Security in the form prescribed in Article
Two hereof that contains the legend and additional schedule referred to in
Section 204 hereof, evidencing all or part of a series of Securities, which is
executed by the Company and authenticated and delivered by the Trustee to the
Depositary or pursuant to the Depositary's instruction, all in accordance with
this Indenture and pursuant to a Company Order, which shall be registered in the
name of the Depositary or its nominee.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"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,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of particular
series of Securities established as contemplated by Section 301.
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"Interest", (i) when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity and (ii) includes Liquidated Damages if and when payable
pursuant to Section 202.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Liquidated Damages" has the meaning specified in Section 202.
"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.
"Mortgage" means and includes any mortgage, pledge, lien, security
interest, conditional sale or other title retention agreement or other similar
encumbrance.
"Notice of Redemption" has the meaning specified in Section 1104.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President, the Vice Chairman or a Vice President, and by the
Chief Financial Officer, the Treasurer, an Assistant Treasurer, the Secretary or
an Assistant Secretary, of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee
or delivered to the Trustee for cancellation;
(ii)Securities for whose payment or redemption money
in the necessary amount has been theretofore deposited with the Trustee
or any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities; provided that, if
such Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
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(iii) Securities which have been paid pursuant to
Section 306 or in exchange for or in lieu of which other Securities
have been authenticated and delivered pursuant to this Indenture, other
than any such Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such Securities
are held by a bona fide purchaser in whose hands such Securities are
valid obligations of the Company; and
(iv) For purposes of selection of Securities for
partial redemption, Securities not deemed Outstanding pursuant to
Section 1103;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, (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 Maturity
thereof pursuant to Section 502, and (ii) Securities owned by the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor upon the Securities or any Affiliate of
the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest 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 the Securities of any
series, means the place or places where the principal of (and premium, if any)
and interest on the Securities of that series are payable and where the
Securities of that series may be presented for exchange or conversion as
specified as contemplated by Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Principal Operating Property" means any principal manufacturing plant
and related physical facilities (other than facilities constructed or acquired
subsequent to December 31, 1985 for the
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control or abatement of atmospheric pollutants or contaminants, water pollution,
noise, odor or other pollution) which on the date of this Indenture or at any
time subsequent thereto is located in the United States, any of its territories
or possessions or Puerto Rico and has been owned and operated by the Company or
any Subsidiary for more than 90 days; provided, however, that any principal
manufacturing plant and related physical facilities (not theretofore owned by
the Company or a Subsidiary) owned and operated by a corporation which becomes a
Subsidiary after the original execution and delivery of this Indenture shall not
constitute a Principal Operating Property unless owned and operated by such
corporation for more than 90 days after it becomes a Subsidiary; and provided,
further, that the Board of Directors may by resolution declare that any plant is
not of material importance to the business of the Company and its Restricted
Subsidiaries as a whole, in which case such plant shall not be deemed to be a
Principal Operating Property.
"Prospectus" means the prospectus included in any Registration
Statement (including a prospectus that discloses information previously omitted
from a prospectus filed as part of an effective registration statement in
reliance upon Rule 430A under the Securities Act), as amended or supplemented by
any prospectus supplement, with respect to the terms of the offering of any
portion of the Debt Securities or the Exchange Securities covered by such
Registration Statement, and all amendments and supplements to the Prospectus,
including post-effective amendments.
"QIB" or "Qualified Institutional Buyer" means "Qualified Institutional
Buyer" as such term is defined in Rule 144A.
"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.
"Registration Default" has the meaning specified in Section 202.
"Registration Rights Agreement" means an agreement which may be entered
into from time to time between the Company and the holders of Debt Securities or
the broker or dealer offering such Debt Securities providing for, among other
things, an offer to exchange such Debt Securities for the corresponding series
of Exchange Securities and the filing of a Shelf Registration Statement under
the circumstances described therein.
"Registration Statement" means any Exchange Offer Registration
Statement or Shelf Registration Statement that covers any of the Debt Securities
or the Exchange Securities pursuant to the provisions of any Registration Rights
Agreement, and amendments and supplements to such registration statement,
including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated by
reference therein.
"Regulation S" means Regulation S under the Securities Act, or any
successor provision.
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"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
"Responsible Officer", when used with respect to the Trustee, means the
chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, and vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the controller
or any assistant controller or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Restricted Subsidiary" means as of the date of determination any
Subsidiary of the Company which owns or leases any Principal Operating Property.
"Rule 144" means Rule 144 under the Securities Act or any successor
provision.
"Rule 144A" means Rule 144A under the Securities Act or any successor
provision.
"Rule 144(k)" means Rule 144(k) under the Securities Act or any
successor provision.
"Rule 415" means Rule 415 under the Securities Act or any successor
provision.
"Rule 904" means Rule 904 under the Securities Act or any successor
provision.
"Securities Act" has the meaning set forth in the first recital of this
Indenture.
"Security" or "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 Custodian" means the Trustee, as custodian with respect to
Global Securities, or any successor entity thereto.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Shelf Registration Period" means the shorter of (i) two years (or, if
Rule 144(k) is amended to provide a shorter restrictive period, such shorter
period) and (ii) such period that will terminate when all of the Debt Securities
or Exchange Securities, as applicable, covered by the particular Shelf
Registration Statement have been sold pursuant to such Shelf Registration
Statement.
"Shelf Registration Statement" means a "shelf" registration statement
of the Company which covers some or all of the Debt Securities or the Exchange
Securities, as applicable, on an appropriate
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form and complying with Rule 415, and amendments and supplements to such
registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting stock" means stock
which ordinarily has voting power for the election of directors, whether at all
times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"Time of Delivery" means the date on which any series of Debt
Securities is initially issued.
"Transfer Restricted Securities" means Securities that bear or are
required to bear the legend set forth in Section 305(h)(i) or (ii) hereof.
"Transfer Restriction Termination Date" means the earlier of the first
date on which (i) the Securities of a series (other than such Securities
acquired by the Company or any Affiliate thereof since the Time of Delivery of
such Securities) may be sold pursuant to Rule 144(k) (or any successor
provision) and (ii) all such Securities have been exchanged or sold pursuant to
an effective registration statement.
"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
by the Trust Indenture Reform Act of 1990; provided, however, if the Trust
Indenture Act is amended after the date hereof, "Trust Indenture Act" means, to
the extent required by any such amendment, the Trust Indenture Act as so
amended.
"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
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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 U.S. Government Obligation or a specific payment of interest on or
principal of any such U.S. Government 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 U.S. Government Obligation or the specific payment
of interest on or principal of the U.S. Government Obligation evidenced by such
depository receipt.
"Unrestricted Subsidiary" means any Subsidiary other than a Restricted
Subsidiary.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
SECTION 102. Compliance Certificates and Opinions.
Except as otherwise expressly provided by, or as contemplated in,
Section 301 or 303 of this Indenture, upon any application or request by the
Company to the Trustee to take any action under any provision of this Indenture
(except for the initial issuances of Securities hereunder), 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, where this Indenture provides that
compliance with conditions precedent is subject to verification by accountants,
a certificate or opinion of an accountant, together with 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.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than certificates
provided pursuant to Section 1008) shall include:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
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(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, any such Person may certify or
give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders; Record Dates.
(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; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
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such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The Company may fix any day as the record date for the
purpose of determining the Holders of Securities of any series entitled to give
or take any request, demand, authorization, direction, notice, consent, waiver
or other action, or to vote on any action, authorized or permitted to be given
or taken by Holders of Securities of such series. If not set by the Company
prior to the first solicitation of a Holder of Securities of such series made by
any Person in respect of any such action, or, in the case of any such vote,
prior to such vote, the record date for any such action or vote shall be the
30th day (or, if later, the date of the most recent list of Holders required to
be provided pursuant to Section 701) prior to such first solicitation or vote,
as the case may be. With regard to any record date for action to be taken by the
Holders of one or more series of Securities, only the Holders of Securities of
such series on such date (or their duly designated proxies) shall be entitled to
give or take, or vote on, the relevant action.
(d) The ownership of Securities shall be proved by the
Security Register.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee or
the Company in reliance thereon, whether or not notation of such action is made
upon such Security.
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,
Attention: Capital Markets Fiduciary Services, 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 Attention: Treasury Department
at the address of its principal office specified in the first paragraph
of this instrument or at any other address previously furnished in
writing to the Trustee by the Company.
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SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice. In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders. Where this Indenture provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision
of the Trust Indenture Act that is required under the Trust Indenture Act to be
a part of and to govern this Indenture, the latter shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the provision as so modified
or excluded shall be deemed to apply.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
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SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, expressed or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
SECTION 112. Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA WITHOUT GIVING
EFFECT TO CONFLICT OF LAWS PROVISIONS THEREOF.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the
Securities) payment of interest or principal (and premium, if any) need not be
made at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same force and effect
as if made on the Interest Payment Date or Redemption Date, or at the Stated
Maturity, provided that no interest shall accrue for the period from and after
such Interest Payment Date, Redemption Date or Stated Maturity, as the case may
be.
ARTICLE II
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities of each series shall be in substantially the form set
forth in this Article, or in such other form or forms as shall be established by
or pursuant to a Board Resolution or in one or more indentures supplemental
hereto, in each case with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture, and may
have such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution of the
Securities. If the form of Securities of any series is established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 303 for the authentication and delivery of such
Securities.
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The Trustee's certificates of authentication shall be in substantially
the form set forth in this Article.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
SECTION 202. Form of Face of Security.
[If the Security is an Original Issue Discount Security,
insert any legend required by the United States Internal Revenue Code and the
regulations thereunder.]
ROHM AND XXXX COMPANY
_____________________
No._____ $_____
ROHM AND XXXX COMPANY, a corporation duly organized and existing under
the laws of Delaware (herein called the "Company", which term includes any
successor corporation under the Indenture hereinafter referred to), for value
received, hereby promises to pay to ________________ or registered assigns, the
principal sum [if Global Security, insert -- set forth above or such other
principal sum on the Schedule attached hereto (which shall not exceed
$_________] [of Dollars] on [if the Security is to bear interest prior to
Maturity, 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 on _____ and _____ in each year, commencing _____ , at the rate of
_____ % per annum, until the principal hereof is paid or made available for
payment]; [if applicable, insert -- provided, however, in the event (each such
event in clauses (i) through (iv) below being referred to as a "Registration
Default") that: (i) neither the Exchange Offer Registration Statement nor the
Shelf Registration Statement is filed with the Commission on or prior to the
90th calendar day following the Time of Delivery; (ii) the Company is permitted
under the law and currently prevailing interpretations of the Commission's staff
to effect the Exchange Offers and the Exchange Offer Registration Statement is
not declared effective on or prior to the (A) 150th day following the Time of
Delivery or (B) the Exchange Offers are not consummated on or prior to the 180th
day following the Time of Delivery; or (iii) the Company is required to file a
Shelf Registration Statement, and the applicable Shelf Registration Statement is
not declared effective on or prior to the 210th day following the Time of
Delivery; or (iv) after a Shelf Registration Statement is declared effective,
(A) such Shelf Registration Statement ceases to be effective prior to the end of
the Shelf Registration Period (except as permitted under the Registration Rights
Agreement); or (B) such Shelf Registration Statement or the related Prospectus
ceases to be useable in connection with resales of Securities covered by such
Shelf Registration Statement prior to the end of the Shelf Registration Period
(except as permitted under the Registration Rights Agreement) because (1) the
Company
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determines that any event occurs as a result of which the related Prospectus
forming part of such Shelf Registration Statement would include any untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein in the light of the circumstances under which they
were made not misleading, (2) the Company determines that it shall be necessary
to amend such Shelf Registration Statement, or supplement the related
Prospectus, to comply with the Securities Act or the Exchange Act or the rules
thereunder, or (3) the Company determines that it is advisable to suspend use of
the Prospectus for a discrete period of time due to pending material corporate
developments or similar material events that have not yet been publicly
disclosed and as to which the Company believes public disclosure will be
prejudicial to the Company, then, in addition to the stated interest set forth
in the title of this Security, liquidated damages ("Liquidated Damages") shall
accrue on this Security, over and above the interest rate set forth in the title
of this Security, following the occurrence of each Registration Default set
forth in clauses (i), (ii) and (iii) above from and including the next day
following each such Registration Default, in each case at a rate equal to 0.25%
per annum; provided, however, that in any case, if one or more Registration
Defaults referred to in clause (iv) above occurs and continues for more than 60
days (whether or not consecutive) in any twelve-month period (the 61st day being
referred to as the "Default Day") then from the Default Day until the earlier of
(i) the date such Shelf Registration Statement is again deemed effective or is
useable, (ii) the date that is the second anniversary of the Time of Delivery
(or, if Rule 144(k) is amended to provide a shorter restrictive period, such
shorter period) or (iii) the date on which all of the Securities are sold
pursuant to such Shelf Registration Statement, Liquidated Damages shall accrue
at a rate of 0.25% per annum; provided, further, that the aggregate amount of
Liquidated Damages payable pursuant to the Registration Rights Agreement will in
no event exceed 0.25% per annum. The Liquidated Damages attributable to each
Registration Default referred to in clauses (i), (ii) and (iii) above shall
cease to accrue from the date of the filing of the Exchange Offer Registration
Statement or Shelf Registration Statement after such 90-day period, in the case
of clause (i) above, the date of effectiveness of the Exchange Offer
Registration Statement after such 150-day period, in the case of clause (ii)(A)
above, the consummation of the Registered Exchange Offers after such 180-day
period in the case of clause (ii)(B) above or the date of effectiveness of the
applicable Shelf Registration Statement after such 210-day period, in the case
of clause (iii) above.]
[if applicable insert -- , In the event of any overdue principal and premium and
any overdue installment of interest, the Company hereby promises to pay interest
(to the extent that the payment of such interest shall be legally enforceable)
at the rate of % per annum on any such overdue principal and premium and on any
such overdue installment of interest]. The interest [if applicable, insert --
(and Liquidated Damages, if any)] so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in such Indenture,
be paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest, which shall be the _____ or _____ (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for will forthwith cease to be
payable to the Holder on such Regular Record Date and may either be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof
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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 [if applicable, insert -- (and Liquidated Damages,
if any)] on this Security will be made at the office or agency of the Company
maintained for that purpose in _____ , in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts [if applicable, insert -- ; provided, however, that at
the option of the Company payment of interest may be made by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register or by wire transfer to an account maintained by the Person
entitled thereto as specified in the Security Register, provided that such
Person shall have given the Trustee written wire instructions at least five
Business Days prior to the applicable Interest Payment Date].
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under this Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under a facsimile of its corporate seal.
Dated:
ROHM AND XXXX COMPANY
[Corporate Seal] By:_____________________________________
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Attest:
_____________________________________
SECTION 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of July 1, 1999 (herein called the
"Indenture"), between the Company and CHASE MANHATTAN TRUST COMPANY, NATIONAL
ASSOCIATION, 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 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 $___].
[If applicable, insert -- The Securities are redeemable, as a whole or
in part, at the option of the Company, at any time or from time to time, on at
least 30 days, but not more than 60 days, prior notice mailed to the registered
address of each holder of Securities. The redemption prices will be equal to the
greater of (1) 100% of the principal amount of the Securities to be redeemed and
(2) the sum of the present values of the Remaining Scheduled Payments (as
defined below) discounted, on a semi-annual basis (assuming a 360-day year
consisting of twelve 30-day months), at a rate equal to the sum of the
applicable Treasury Rate (as defined below) plus __ basis points. Accrued
interest will also be paid to the date of redemption.
"Treasury Rate" means, with respect to any redemption date, the rate
per annum equal to the semi-annual equivalent yield to maturity (computed as of
the second business day immediately preceding such redemption date) of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such redemption date.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term of such series of Securities to be redeemed that would be
utilized, at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of such series of Securities. "Independent
Investment Banker" means one of the Reference Treasury Dealers appointed by the
Company.
"Comparable Treasury Price" means, with respect to any redemption date,
the average of the Reference Treasury Dealer Quotations for such redemption
date. "Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the
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average, as determined by the Trustee, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Trustee by such Reference Treasury
Dealer at 3:30 p.m., New York City time, on the third business day preceding
such redemption date.
"Reference Treasury Dealer" means Xxxxxxx Xxxxx Xxxxxx Inc. and its
successor. If it shall cease to be a primary U.S. Government securities dealer
(a "Primary Treasury Dealer"), the Company shall substitute another nationally
recognized investment banking firm that is a Primary Treasury Dealer.
"Remaining Scheduled Payments" means, with respect to Securities to be
redeemed, the remaining scheduled payments of principal of and interest on such
Securities that would be due after the related redemption date but for such
redemption. If such redemption date is not an interest payment date with respect
to such Securities, the amount of the next succeeding scheduled interest payment
on such Securities will be reduced by the amount of interest accrued on such
Securities to such redemption date.
On and after the redemption date, interest will cease to accrue on the
Securities or any portion of the Securities called for redemption (unless the
Company defaults in the payment of the redemption price and accrued interest).
On or before the redemption date, the Company will deposit with a paying agent
(or the Trustee) money sufficient to pay the redemption price of and accrued
interest on the Securities to be redeemed on such date. If less than all of the
Securities of any series are to be redeemed, the Securities to be redeemed shall
be selected by the Trustee by such method as the Trustee shall deem fair and
appropriate.]
[If applicable, insert -- The Securities of this series are subject to
redemption upon not less than 30 days nor more than 60 days' notice by mail,
such 30 or 60 days, as the case may be, to be counted from the date notice is
mailed, [if applicable, insert -- (1) on _____ in any year commencing with the
year ____ and ending with the year _____ through operation of the sinking fund
for this series at a Redemption Price equal to 100% of the principal amount, and
(2)] at any time [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 [on or before _____ , _____ %,
and if redeemed] during the 12-month period beginning ______ of the years
indicated,
Redemption Redemption
Year Price Year Price
---- ---------- ---- ----------
and thereafter at a Redemption Price equal to _____% of the principal amount,
together in the case of any such redemption [if applicable insert -- (whether
through operation of the sinking fund or
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otherwise)] with accrued interest to the Redemption Date, but interest
installments whose Stated Maturity is on or prior to such Redemption Date will
be payable to the Holders of such Securities, or one or more Predecessor
Securities, of record at the close of business on the relevant Record Dates
referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert -- The Securities of this series are subject to
redemption upon not less than 30 days nor more than 60 days' notice by mail,
such 30 or 60 days, as the case may be, to be counted from the date notice is
mailed, (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 REDEMPTION PRICE FOR
THROUGH OPERATION REDEMPTION OTHERWISE
OF THE THAN THROUGH OPERATION
YEAR SINKING FUND OF THE SINKING FUND
---- ----------------- ----------------------
and thereafter at a Redemption Price equal to _____% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[Notwithstanding the foregoing, the Company may not, prior to _____,
redeem any Securities of this series as contemplated by [Clause (2) of] the
preceding paragraph as a part of, or in anticipation of, any refunding operation
by the application, directly or indirectly, of moneys borrowed having an
interest cost to the Company (calculated in accordance with generally accepted
financial practice) of less than _____% per annum.]
[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] $__________ [("mandatory sinking fund") and not more than
$_____________] aggregate principal amount of Securities of this series.
[Securities of this series acquired or redeemed by the Company otherwise than
through [mandatory] sinking fund payments may be credited against subsequent
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[mandatory] sinking fund payments otherwise required to be made -- in the
inverse order in which they become due.]
[If the Securities do not have a sinking fund, then insert -- the
Securities do not have the benefit of any sinking fund obligations.]
[If the Security is subject to redemption, insert -- In the event of
redemption of this Security in part only, a new Security or Securities of this
series and of like tenor for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.]
[If the Security is not subject to redemption, insert -- The Securities
of this series are not redeemable prior to Stated Maturity.]
[If applicable, insert -- The Indenture contains provisions for
defeasance at any time of [the entire indebtedness of this Security][and/or]
[certain restrictive covenants and Events of Default with respect to this
Security][, in each case) upon compliance with certain conditions set forth in
the Indenture.]
[If the Security is not an Original Issue Discount Security, insert --
If an Event of Default with respect to Securities of this series shall occur and
be continuing, the principal of the Securities of this series may be declared
due and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert -- If
an Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to -- insert formula for determining the
amount. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal 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 under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of a
majority in principal amount of the Securities at the time Outstanding of each
series to be affected. The Indenture also contains provisions permitting the
Holders of specified percentages in principal amount of the Securities of each
series at the time Outstanding, on behalf of the Holders of all Securities of
such series, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
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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
interest [if applicable insert -- (and Liquidated Damages, if any)] on this
Security at the times, place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of (and
premium, if any) and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
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.
No recourse shall be had for the payment of the principal of (or
premium, if any) or the interest [if applicable, insert -- (or Liquidated
Damages, if any)] on this Security, or for any claim based hereon, or otherwise
in respect hereof, or based on or in respect of the Indenture or any indenture
supplemental thereto, against any incorporator, stockholder, officer, director
or employee, as such, past, present or future, of the Company or any successor
corporation, whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise, all such liability
being, by the acceptance hereof and as part of the consideration for the issue
hereof, expressly waived and released.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
[If applicable, insert -- Interest on this Security shall be computed
on the basis of a 360-day year of twelve 30-day months. The amount of interest
payable for any period shorter than a full semi-annual period for which interest
is computed will be computed on the basis of the actual number of days elapsed
per 30-day month. In the event that any date on which principal, premium, if
any, or interest is payable on the Securities is not a Business Day, then
payment of the principal,
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premium, if any, or interest that is payable on that date will be made on the
next succeeding day that is a Business Day (and without any interest or other
payment in respect of any such delay)].
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
The Indenture and this Security shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania without giving
effect to conflict of laws principles thereof.
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CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER OF SECURITIES
This Certificate relates to $_____ principal amount of
Securities held in *________ global or *_______ definitive form by
________________ (the "Transferor").
The Transferor*:
[ ] has requested the Trustee by written order to deliver in exchange for
its beneficial interest in the Global Security held by the Depository a
Security or Securities in definitive, registered form of authorized
denominations in an aggregate principal amount equal to its beneficial
interest in such Global Security (or the portion thereof indicated
above); or
[ ] has requested the Trustee by written order to exchange or register the
transfer of a Security or Securities.
In connection with such request and in respect of each such Security, the
Transferor does hereby certify and agree that Transferor is familiar with the
Indenture relating to the above captioned Securities, and as provided in Section
305 of such Indenture, the transfer of this Security does not require
registration under the Securities Act of 1933, as amended (the "Securities
Act"), because:*
[ ] Such Security is being acquired for the Transferor's own account,
without transfer (in satisfaction of Section 305(b)(ii)(A) or Section
305(e)(i)(A) of the Indenture).
[ ] Such Security is being transferred to a "qualified institutional buyer"
(as defined in Rule 144A under the Securities Act in reliance on Rule
144A (in satisfaction of Section 305(b)(ii)(B) or Section 305(e)(i)(B)
of the Indenture) or pursuant to an exemption from registration in
accordance with Rule 904 under the Securities Act (in satisfaction of
Section 305(b)(ii)(B) or Section 305(e)(i)(B) of the Indenture.)
[ ] Such Security is being transferred in accordance with Rule 144 under
the Securities Act or pursuant to an effective registration statement
under the Securities Act (in satisfaction of Section 305(b)(ii)(B) or
Section 305(e)(i)(B) of the Indenture).
[ ] Such Security is being transferred in reliance on and in compliance
with an exemption from the registration requirements of the Securities
Act, other than Rule 144A, Rule 144 or Rule 904 under the Securities
Act, and any applicable state securities laws. An Opinion of Counsel to
the effect that such transfer does not require registration under the
Securities Act accompanies this Certificate (in satisfaction of Section
305(b)(ii)(C) or Section 305(e)(i)(C) of the Indenture).
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___________________________
[INSERT NAME OF TRANSFEROR]
Dated:______ By: _____________________________
*Check applicable box.
SECTION 204. Additional Provisions Required in Global Security.
Any Global Security issued hereunder shall, in addition to the
provisions contained in Sections 202 and 203 and in addition to any legend
required by the Depositary, bear a legend in substantially the following form:
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE
BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY
THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A
NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX) ("XXX"), TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
(AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
In addition, the reverse of each Global Security shall have attached to
it a Schedule in the following form:
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SCHEDULE OF EXCHANGES
The following exchanges of a part of this Global Security have been
made:
Signature of
Amount of increase in Principal Amount of this authorized
Amount of decrease in Principal Amount of Global Security signatory
Date of Principal Amount of this Global following such decrease of Trustee or
Exchange this Global Security Security (or increase) Security Custodian
-------- --------------------- --------------------- ------------------------ ------------------
SECTION 205. Securities Issuable in the Form of a Global Security.
If the Company shall establish pursuant to Section 301 that the
Securities of a particular series are to be issued in whole or in part in the
form of one or more Global Securities, then the Company shall execute and the
Trustee shall, in accordance with Section 303 and the Company Order delivered to
the Trustee thereunder, authenticate and deliver, such Global Security or
Securities, which (i) shall represent, and shall be denominated in an amount
equal to the aggregate principal amount of, the Outstanding Securities of such
series to be represented by such Global Security or Securities, (ii) shall be
registered in the name of the Depositary for such Global Security or Securities
or its nominee, (iii) shall be delivered by the Trustee to the Depositary or
pursuant to the Depositary's instruction and (iv) shall bear a legend
substantially to the following effect: "Unless and until it is exchanged in
whole or in part for the individual Securities represented hereby, this Global
Security may not be transferred except as a whole by the Depositary to a nominee
of the Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary."
Notwithstanding any other provision of this Section 205 or of Section
305, unless the terms of a Global Security for Exchange Securities expressly
permit such Global Security to be exchanged in whole or in part for individual
Securities, a Global Security may be transferred, in whole but not in part and
in the manner provided in Section 305, only to another nominee of the Depositary
for such Global Security, or to a successor Depositary for such Global Security
selected or approved by the Company or to a nominee of such successor
Depositary.
If at any time the Depositary for a Global Security notifies the
Company that it is unwilling or unable to continue as Depositary for such Global
Security or if at any time the Depositary for the Securities for such series
shall no longer be eligible or in good standing under the Securities Exchange
Act of 1934, as amended, or other applicable statute or regulation, the Company
shall appoint a successor Depositary with respect to such Global Security. If a
successor Depositary for such Global Security is not appointed by the Company
within 90 days after the Company receives such notice or becomes aware of such
ineligibility, the Company's election pursuant to Section 301
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shall no longer be effective with respect to such Global Security and the
Company will execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of individual Securities of such series in exchange
for such Global Security, will authenticate and deliver individual Securities of
such series of like tenor and terms in definitive form in an aggregate principal
amount equal to the principal amount of the Global Security in exchange for such
Global Security.
The Company may at any time and in its sole discretion determine that
the Securities of any series issued or issuable in the form of one or more
Global Securities shall no longer be represented by such Global Security or
Global Securities. In such event the Company will execute, and the Trustee, upon
receipt of a Company Order for the authentication and delivery of individual
Securities of such series in exchange in whole or in part for such Global
Security, will authenticate and deliver individual Securities of such series of
like tenor and terms in definitive form in an aggregate principal amount equal
to the principal amount of such Global Security or Global Securities
representing such series in exchange for such Global Security or Global
Securities.
If specified by the Company pursuant to Section 301 with respect to
Securities issued or issuable in the form of a Global Security, the Depositary
for such Global Security may surrender such Global Security in exchange in whole
or in part for individual Securities of such series of like tenor and terms in
definitive form on such terms as are acceptable to the Company and such
Depositary. Thereupon the Company shall execute, and the Trustee shall
authenticate and deliver, without service charge, (i) to each Holder specified
by such Depositary a new Security or Securities of the same series of like tenor
and terms and of any authorized denomination as requested by such Holder in
aggregate principal amount equal to and in exchange for such Holder's beneficial
interest in the Global Security; and (ii) to such Depositary a new Global
Security of like tenor and terms and in a denomination equal to the difference,
if any, between the principal amount of the surrendered Global Security and the
aggregate principal amount of Securities delivered to Holders thereof.
In any exchange provided for in any of the preceding three paragraphs,
the Company will execute and the Trustee will authenticate and deliver
individual Securities in definitive registered form in authorized denominations.
Upon the exchange of a Global Security for individual Securities, such Global
Security shall be cancelled by the Trustee. Securities issued in exchange for a
Global Security pursuant to this Section shall be registered in such names and
in such authorized denominations as the Depositary for such Global Security,
pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee. The Trustee shall deliver such Securities to the
persons in whose names such Securities are so registered.
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SECTION 206. 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 a series designated under the
Indenture described herein.
Dated: __________
CHASE MANHATTAN TRUST COMPANY,
NATIONAL ASSOCIATION
as Trustee
By:_____________________________________
Authorized Officer
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ARTICLE III
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, or determined in writing in the manner provided in, an Officers'
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from 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 Xxxxxxx 000, 000, 000, 000, 000,
xx 0000 and except for any Securities which, pursuant to Section 303,
are deemed never to have been authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the
series shall be payable, if other than the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest;
(4) the date or dates on which the principal of the Securities
of the series is payable;
(5) the rate or rates 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 any
Interest Payment Date;
(6) the place or places where the principal of (and premium,
if any) and interest on Securities of the series shall be payable and
where such Securities may be presented for exchange;
(7) 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, as a whole or in part, at the option of the Company;
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(8) 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, as a whole or in part, pursuant to such
obligation;
(9) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the series
shall be issuable;
(10) if the amount of payments of principal of and any premium
or interest on the Securities of the series may be determined with
reference to an index, the manner in which such amounts shall be
determined;
(11) 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 Maturity thereof
pursuant to Section 502;
(12) whether the Securities of the series will be issued in
whole or in part in the form of a Global Security or Global Securities;
the terms and conditions, if any, upon which such Global Security or
Global Securities may be exchanged in whole or in part for other
individual Securities; and the Depositary for such Global Security or
Global Securities, provided, however, that each Depositary must, at the
time of its designation and at all times while it serves as Depositary,
be a clearing agency registered under the Securities Exchange Act of
1934, as amended, and any other applicable statute or regulation;
(13) the method of setting the Record Date for determining the
identity of Holders entitled to vote or consent to any action permitted
by this Indenture, if other than the method provided in the Trust
Indenture Act; and
(14) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to the Board Resolution referred to above and (subject to Section 303) set forth
in the Officers' Certificate referred to above or in any such indenture
supplemental hereto.
The Debt Securities of a particular series and any corresponding series
of Exchange Securities shall be identical in all material respects (except that
the Exchange Securities will not contain the legend set forth in Section 305
manifesting the transfer restrictions or the terms with respect to the
Liquidated Damages applicable to the Debt Securities). The Exchange Securities
of a particular series shall be originally issued only in exchange for the then
outstanding Debt Securities of the corresponding series tendered at the option
of the Holders thereof pursuant to the applicable Exchange Offer. The Exchange
Securities of a particular series and the Debt Securities
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of the corresponding series shall for all purposes under this Indenture be
deemed to be the same series of Securities, and shall vote together as a single
series.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
SECTION 302. Denominations.
The Securities of each series shall be issuable in registered form
without coupons in such denominations as shall be specified as contemplated by
Section 301. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President, its Vice Chairman or one of its Vice
Presidents under its corporate seal reproduced thereon and attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities. If the
form or terms of the Securities of the series have been established 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,
(a) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 201, that such form has
been established in conformity with the provisions of this Indenture;
(b) if the terms of such Securities have been established by
or pursuant to Board Resolution as permitted by Section 301, that such terms
have been established in conformity with the provisions of this Indenture; and
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(c) that such Securities, when authenticated and delivered by
the Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company, enforceable in accordance with their
terms, subject to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting the enforcement of creditors'
rights and to general equity principles.
If such form or terms have been so established, the Trustee shall not
be required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all of the 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 time of authentication upon original issuance of
the first Security of such series to be issued. After the original issuance of
the first Security of each such series, the Trustee shall authenticate such
additional securities of such series in accordance with a written determination
of the Company in the manner provided in the Officer's Certificate.
If the Company shall establish pursuant to Section 301 that the
Securities of a series are to be issued in whole or in part in the form of one
or more Global Securities, then the Company shall execute and the Trustee shall,
in accordance with this Section and the Company Order with respect to such
series, authenticate and deliver or make available for delivery one or more
Securities in such form that (i) shall represent and shall be denominated in an
amount equal to the aggregate principal amount of the Outstanding Securities of
such series to be represented by such Global Security or Securities, (ii) shall
be registered in the name of the Depositary for such Global Security or
Securities or the nominee of such Depositary, (iii) shall be delivered by the
Trustee to such Depositary or pursuant to such Depositary's instruction and (iv)
shall bear the legend set forth in Section 204.
Unless otherwise established pursuant to Section 301, each Depositary
designated pursuant to Section 301 for a Global Security must, at the time of
its designation and at all times while it serves as Depositary, be a clearing
agency registered under the Exchange Act and any other applicable statute or
regulation. The Trustee shall have no responsibility to determine if the
Depositary is so registered. Each Depositary shall enter into an agreement with
the Trustee governing the respective duties and rights of such Depositary and
the Trustee with regard to Global Securities.
Each Security shall be dated the date of the authentication.
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No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder and is entitled to the
benefits of this Indenture. Notwithstanding the foregoing, if any Security shall
have been authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 309 together with a written statement (which
need not comply with Section 102 and need not be accompanied by an Opinion of
Counsel) stating that such Security has never been issued and sold by the
Company, for all purposes of this Indenture such Security shall be deemed never
to have been authenticated and delivered hereunder and shall never be entitled
to the benefits of this Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder. Subject to Section 205, upon surrender for
cancellation of any one or more temporary Securities of any series the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Securities of the same series and
of like tenor of authorized denominations. 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.
SECTION 305. Registration, Registration of Transfer and Exchange;
Restrictions on Transfer.
(a) General Provisions Relating to Transfers and Exchanges.
(i) The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register (the register maintained in such
office and in any other office or agency of the Company in a Place of
Payment being herein sometimes collectively referred to as the
"Security Register") in which, subject to such reasonable regulations
as it may prescribe, the Company shall provide for the registration of
Securities and of transfers and exchanges of Securities. The Trustee is
hereby appointed "Security Registrar" for the purpose of registering
Securities and transfers and exchanges of Securities as herein
provided. To
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permit registrations, transfers and exchanges of Securities, the
Company shall execute and the Trustee shall authenticate Definitive
Securities and Global Securities at the Security Registrar's request.
Notwithstanding anything herein to the contrary, there shall be only
one Security Register with respect to each series of Securities.
(ii) No service charge shall be made to a Holder for any
registration of transfer or exchange of Securities, but the Company may
require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1107 not involving any
transfer.
(iii) Notwithstanding any other provision in this Indenture,
unless and until it is exchanged as a whole or in part for Securities
that are not in the form of a Global Security, a Global Security may
not be transferred or exchanged except as a whole by the Depositary
with respect to such Global Security to a nominee of such Depositary or
by a nominee of such Depositary to such Depositary or another nominee
of such Depositary.
(iv) All Definitive Securities and Global Securities issued
upon any registration of transfer or exchange of Definitive Securities
or Global Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Definitive Securities or Global Securities
surrendered upon such registration of transfer or exchange.
(v) 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 the day of the
mailing of a notice of redemption of Securities of that series selected
for redemption under Section 1103 and ending at the close of business
on the day of such mailing, or (ii) to register the transfer of or
exchange any Security so selected for redemption as a whole or in part,
except the unredeemed portion of any Security being redeemed in part.
(vi) Upon surrender for registration of transfer of any
Security of any series at the office or agency of the Company in a
Place of Payment for that series, the Company shall execute, and the
Trustee shall authenticate and deliver or make available for delivery,
in the name of the designated transferee or transferees, one or more
new Securities of the same series, of any authorized denominations and
of a like aggregate principal amount and tenor.
(vii) At the option of the Holder, Securities of any series
may be exchanged for other Securities of the same series, of any
authorized denominations and of a like aggregate principal amount and
tenor, upon surrender of the Securities to be exchanged at such office
or agency. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver
or make available for delivery, the Securities which the Holder making
the exchange is entitled to receive.
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(viii) Every Security presented or surrendered for
registration of transfer or for exchange shall (if so required by the
Company, the Security Registrar or the Trustee) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to
the Company, the Security Registrar and the Trustee duly executed, by
the Holder thereof or his attorney duly authorized in writing.
(ix) Notwithstanding the foregoing, any Global Security shall
be exchangeable pursuant to this Section 305 for Securities registered
in the names of Persons other than the Depositary for such Security or
its nominee only if (i) such Depositary notifies the Company that it is
unwilling or unable to continue as Depositary for such Global Security
or if at any time such Depositary ceases to be a clearing agency
registered under the Exchange Act and the Company does not appoint a
successor Depositary within 90 days after receipt by it of such notice
or after it becomes aware of such cessation, (ii) the Company executes
and delivers to the Trustee a Company Order that such Global Security
shall be so exchangeable or (iii) there shall have occurred and be
continuing an Event of Default with respect to the Securities. Any
Global Security that is exchangeable pursuant to the preceding sentence
shall be exchangeable for Securities registered in such names as such
Depositary shall direct.
(x) None of the Company, the Trustee, any Paying Agent or the
Security Registrar will have any responsibility or liability for any
aspect of the records relating to or payments made on account of
beneficial ownership interests in a Global Security or for maintaining,
supervising or reviewing any records relating to such beneficial
ownership interests.
(b) Transfer and Exchange of Securities. When Definitive Securities are
presented by a Holder to the Security Registrar with a request: (x) to register
the transfer of the Definitive Securities; or (y) to exchange such Definitive
Securities for an equal principal amount of Definitive Securities of other
authorized denominations, the Security Registrar shall register the transfer or
make the exchange as requested if its requirements for such transactions are
met; provided, however, that the Definitive Securities presented or surrendered
for register of transfer or exchange: (i) shall be duly endorsed or accompanied
by a written instruction of transfer in form satisfactory to the Security
Registrar duly executed by such Holder or by his attorney, duly authorized in
writing; and (ii) in the case of a Definitive Security that is a Transfer
Restricted Security, such request shall be accompanied by the following
additional information and documents, as applicable: (A) if such Transfer
Restricted Security is being delivered to the Security Registrar by a Holder for
registration in the name of such Holder, without transfer, a certification to
that effect from such Holder (in substantially the form of the "Certificate to
be Delivered Upon Exchange or Registration of Transfer of Securities" set forth
in Section 203); or (B) if such Transfer Restricted Security is being
transferred to a "qualified institutional buyer" (as defined in Rule 144A) in
accordance with Rule 144A or pursuant to an exemption from registration in
accordance with Rule 144 or Rule 904 or pursuant to an effective registration
statement under the Securities Act, a certification to that effect from such
Holder (in substantially the form of the "Certificate to be Delivered Upon
Exchange or Registration of Transfer of Securities" set forth in Section 203) or
(C) if such Transfer Restricted Security is being transferred in reliance on
another exemption from the registration requirements of
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the Securities Act or the securities laws of any other applicable jurisdiction,
a certification to that effect from such Holder (in substantially the form of
the "Certificate to be Delivered Upon Exchange or Registration of Transfer of
Securities" set forth in Section 203) and an Opinion of Counsel from such Holder
or the transferee reasonably acceptable to the Company and to the Security
Registrar to the effect that such transfer is in compliance with the Securities
Act.
(c) Transfer of a Definitive Security for a Beneficial Interest in a
Global Security. A Definitive Security may not be exchanged for a beneficial
interest in a Global Security except upon satisfaction of the requirements set
forth below. Upon receipt by the Trustee of a Definitive Security, duly endorsed
or accompanied by appropriate instruments of transfer, in form satisfactory to
the Trustee, together with: (i) if such Definitive Security is a Transfer
Restricted Security, a certification from the Holder thereof (in substantially
the form of the "Certificate to be Delivered Upon Exchange or Registration of
Transfer of Securities" set forth in Section 203) to the effect that such
Definitive Security is being transferred by such Holder to a "qualified
institutional buyer" (as defined in Rule 144A) in accordance with Rule 144A; and
(ii) whether or not such Definitive Security is a Transfer Restricted Security,
written instructions from the Holder thereof directing the Trustee to make, or
to direct the Security Custodian to make, an endorsement on the Global Security
to reflect an increase in the aggregate principal amount of the Securities
represented by the Global Security, in which case the Trustee shall cancel such
Definitive Security in accordance with Section 309 hereof and cause, or direct
the Security Custodian to cause, in accordance with the standing instructions
and procedures existing between the Depositary and the Security Custodian, the
aggregate principal amount of Securities represented by the Global Security to
be increased accordingly. If no Global Securities are then outstanding, the
Company shall issue and, upon receipt of a Company Order in accordance with
Section 303 hereof, the Trustee shall authenticate a new Global Security in the
appropriate principal amount.
(d) Transfer and Exchange of Global Securities. The transfer and
exchange of Global Securities or beneficial interests therein shall be effected
through the Depositary, in accordance with this Indenture and the procedures of
the Depositary therefor, which shall include restrictions on transfer comparable
to those set forth herein to the extent required by the Securities Act.
(e) Transfer of a Beneficial Interest in a Global Security for a
Definitive Security.
(i) Any Person having a beneficial interest in a Global
Security for a Transfer Restricted Security may upon request exchange
such beneficial interest for a Definitive Security. Upon receipt by the
Trustee of written instructions or such other form of instructions as
is customary for the Depositary, from the Depositary or its nominee on
behalf of any Person having a beneficial interest in a Global Security,
and, in the case of a Transfer Restricted Security, the following
additional information and documents (all of which may be submitted by
facsimile): (A) if such beneficial interest is being transferred to the
Person designated by the Depositary as being the beneficial owner, a
certification to that effect from such Person (in substantially the
form of the "Certificate to be Delivered Upon Exchange or Registration
of Transfer of Securities" set forth in Section 203) or (B) if such
beneficial interest is being transferred to a "qualified institutional
buyer" (as defined in Rule 144A) in
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accordance with Rule 144A or pursuant to an exemption from registration
in accordance with Rule 144 or Rule 904 or pursuant to an effective
registration statement under the Securities Act, a certification to
that effect from the transferor (in substantially the form of
"Certificate to be Delivered Upon Exchange or Registration of Transfer
of Securities" set forth in Section 203) or (C) if such beneficial
interest is being transferred in reliance on another exemption from the
registration requirements of the Securities Act or the securities laws
of any other applicable jurisdiction, a certification to that effect
from the transferor (in substantially the form of the "Certificate to
be Delivered Upon Exchange or Registration of Transfer of Securities"
set forth in Section 203) and an Opinion of Counsel from the transferee
or transferor reasonably acceptable to the Company and to the Security
Registrar to the effect that such transfer is in compliance with the
Securities Act, and in the case of a beneficial interest in a Global
Security other than a Transfer Restricted Security, compliance with
Section 305(d), in which case the Trustee or the Security Custodian, at
the direction of the Trustee, shall, in accordance with the standing
instructions and procedures existing between the Depositary and the
Security Custodian, cause the aggregate principal amount of Global
Securities to be reduced accordingly and, following such reduction, the
Company shall execute and, upon receipt of a Company Order in
accordance with Section 303 hereof, the Trustee shall authenticate and
deliver to the transferee a Definitive Security in the appropriate
principal amount.
(ii) Definitive Securities issued in exchange for a beneficial
interest in a Global Security pursuant to this Section 305(e) shall be
registered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Definitive Securities to the Persons in whose names
such Securities are so registered.
(f) Restrictions on Transfer and Exchange of Global Securities.
Notwithstanding any other provision of this Indenture (other than the provisions
set forth in subsection (g) of this Section 305), a Global Security may not be
transferred as a whole except by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor Depositary or
a nominee of such successor Depositary.
(g) Authentication of Securities in Absence of Depositary. If at any
time: (i) the Depositary for the Securities notifies the Company that the
Depositary is unwilling or unable to continue as Depositary for the Global
Securities and a successor Depositary for the Global Securities is not appointed
by the Company within 90 days after delivery of such notice; or (ii) the
Company, at its sole discretion, notifies the Trustee in writing that it elects
to cause the issuance of Definitive Securities under this Indenture, then the
Company shall execute, and the Trustee shall, upon receipt of a Company Order in
accordance with Section 303 hereof, authenticate and deliver, Definitive
Securities in an aggregate principal amount equal to the principal amount of the
Global Securities in exchange for such Global Securities.
(h) Legends and Authentication of Securities under Specified
Circumstances.
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(i) Except as permitted by the following paragraphs (iii) and
(iv), each Security certificate evidencing Global Securities and
Definitive Securities (and all Securities issued in exchange therefor
or substitution thereof) issued other than pursuant to Regulation S
shall bear a legend in substantially the following form:
"THIS [NOTE] [DEBENTURE] HAS NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND
MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT
(A)(1) TO A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A UNDER THE SECURITIES ACT ("RULE 144A") IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 144A, (2) TO AN INSTITUTIONAL ACCREDITED
INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE FOR
THIS [NOTE] [DEBENTURE] A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER
OF THE SECURITY EVIDENCED HEREBY (THE FORM OF WHICH LETTER CAN BE
OBTAINED FROM THE TRUSTEE), (3) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES
ACT OR (4) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) AND (B)
IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE
UNITED STATES."
(ii) Except as permitted by the following paragraphs (iii) and
(iv), each Security certificate evidencing Global Securities and
Definitive Securities (and all Securities issued in exchange therefor
or substitution thereof) issued pursuant to Regulation S shall bear a
legend in substantially the following form:
"THIS [NOTE] [DEBENTURE] HAS NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND,
PRIOR TO THE EXPIRATION OF A DISTRIBUTION COMPLIANCE PERIOD (DEFINED AS
40 DAYS AFTER THE ISSUE DATE WITH RESPECT TO THE [NOTES] [DEBENTURES]),
MAY NOT BE: OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT
(A)(1) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903
OR 904 OF REGULATION S OR (2) TO A QUALIFIED INSTITUTIONAL BUYER WITHIN
THE MEANING OF RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, OR (3) TO AN
INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER,
FURNISHES TO THE TRUSTEE FOR THIS [NOTE] [DEBENTURE] A SIGNED LETTER
CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
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RELATING TO THE RESTRICTIONS ON TRANSFER OF THE SECURITY EVIDENCED
HEREBY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE), AND
(B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF
THE UNITED STATES."
(iii) Upon any sale or transfer of a Transfer Restricted
Security (including any Transfer Restricted Security represented by a
Global Security) pursuant to Rule 144 or pursuant to an effective
registration statement under the Securities Act: (A) in the case of any
Transfer Restricted Security that is a Definitive Security, the
Security Registrar shall permit the Holder thereof to exchange such
Transfer Restricted Security for a Definitive Security that does not
bear the legend set forth in (i) or (ii) above and rescind any
restriction on the transfer of such Transfer Restricted Security; and
(B) in the case of any Transfer Restricted Security represented by a
Global Security, such Transfer Restricted Security shall not be
required to bear the legend set forth in (i) or (ii) above, but shall
continue to be subject to the provisions of Section 305(e) hereof;
provided, however, that with respect to any request for an exchange of
a Transfer Restricted Security that is represented by a Global Security
for a Definitive Security that does not bear the legend set forth in
(i) or (ii) above, which request is made in reliance upon Rule 144, the
Holder thereof shall certify in writing to the Security Registrar that
such request is being made pursuant to Rule 144 (such certification to
be substantially in the form of the "Certificate to be Delivered Upon
Exchange or Registration of Transfer of Securities" set forth in
Section 203).
(iv) Notwithstanding the foregoing, upon consummation of the
Exchange Offer, the Company shall issue and, upon receipt of a Company
Order in accordance with Section 303 hereof, the Trustee shall
authenticate Exchange Securities in exchange for Debt Securities
accepted for exchange in the Exchange Offer, which Exchange Securities
shall not bear the legend set forth in (i) or (ii) above, and the
Security Registrar shall rescind any restriction on the transfer of
such Securities, in each case unless the Holder of such Debt Securities
is either (A) a broker-dealer, (B) a Person participating in the
distribution of the Debt Securities or (C) a Person who is an affiliate
(as defined in Rule 144A) of the Company.
(v) The letter required to be provided pursuant to paragraphs
(i) and (ii) above shall be substantially in the form of Schedule
305(h)(v) hereto.
(i) Cancellation and/or Adjustment of Global Securities. At such time
as all beneficial interests in Global Securities have been exchanged for
Definitive Securities, redeemed, repurchased or cancelled, all Global Securities
shall be returned to or retained and cancelled by the Trustee in accordance with
Section 309 hereof. At any time prior to such cancellation, if any beneficial
interest in a Global Security is exchanged for Definitive Securities, redeemed,
repurchased or cancelled, the Trustee or the Security Custodian, at the
direction of the Trustee, shall, in accordance with the standing instructions
and procedures existing between the Depository and the Security Custodian, cause
the aggregate amount of Global Securities to be reduced accordingly.
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SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence
to their respective satisfaction of the destruction, loss or theft of any
Security and (ii) such security or indemnity as may be required by either of
them to save each of them and any agent or either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security has been
acquired by a bona fide purchaser, the Company shall execute and upon its
request the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security, a new Security of the same series and of
like tenor and principal amount and bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Unless otherwise provided as contemplated by Section 301 with respect
to any series of Securities, interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith
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cease to be payable to the Holder on the relevant Regular Record Date by virtue
of having been such Holder, and such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series
(or their respective Predecessor Securities) are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security of such series and the
date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to
be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed payment.
The Trustee shall promptly notify the Company of such Special Record
Date and, in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder of 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. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed,
such Defaulted Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor Securities)
are registered at the close of business on such Special Record Date and
shall no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on
the Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this Clause, such manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is
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registered as the owner of such Security for the purpose of receiving payment of
principal of (and premium, if any) and (subject to Section 307) interest on such
Security and for all other purposes whatsoever, whether or not such Security be
overdue, and neither the Company, the Trustee nor any agent of the Company or
the Trustee shall be affected by notice to the contrary.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer, exchange or conversion or for credit against any sinking fund payment
shall, if surrendered to any Person other than the Trustee, be delivered to the
Trustee and shall be promptly canceled by it. The Company may at any time
deliver to the Trustee for cancellation any Securities previously authenticated
and delivered hereunder which the Company may have acquired in any manner
whatsoever and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly canceled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided
in this Section, except as expressly permitted by this Indenture. All canceled
Securities held by the Trustee shall be disposed of as directed by a Company
Order.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
SECTION 311. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided, that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such CUSIP numbers. The Company will promptly
notify the Trustee of any change in the CUSIP numbers.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of registration of transfer, conversion or
exchange of Securities herein expressly
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provided for), and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture,
when
(1) either
(A) all Securities theretofore authenticated and
delivered (other than (i) Securities which have been
destroyed, lost or stolen and which have been replaced or paid
as provided in Section 306 and (ii) Securities for whose
payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as
provided in Section 1003) have been delivered to the Trustee
for cancellation; or
(B) all such Securities not theretofore delivered to
the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at
their Stated Maturity within one
year, or
(iii) are to be called for redemption
within one year under arrangements
satisfactory to the Trustee for the
giving of notice of redemption by
the Trustee in the name, and at the
expense, of the Company,
and the Company, in the case of (B)(i), (ii) or (iii) above,
has deposited or caused to be deposited with the Trustee as
trust funds in trust for the purpose an amount sufficient to
pay and discharge the entire indebtedness on such Securities
not theretofore delivered to the Trustee for cancellation, for
principal (and premium, if any) and interest to the date of
such deposit (in the case of Securities which have become due
and payable) or to the Stated Maturity or Redemption Date, as
the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Trustee to any Authenticating Agent under Section 614 and, if money shall
have been deposited with the Trustee pursuant to
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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; Indemnification.
(a) 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 pursuant to Section
403 or 1011 and all money received by the Trustee in respect of U.S. Government
Obligations deposited with the Trustee pursuant to Section 403 or 1011, shall be
held in trust and applied by it, in accordance with the provisions of the
Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal (and
premium, if any) and interest for whose payment such money has been deposited
with or received by the Trustee or to make mandatory sinking fund payments or
analogous payments as contemplated by Section 403 or 1011.
(b) The Company shall pay and shall indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against U.S.
Government Obligations deposited pursuant to Section 403 or 1011 or the interest
and principal received in respect of such obligations other than any payable by
or on behalf of Holders.
(c) The Trustee shall deliver or pay to the Company from time
to time upon Company Request and with satisfactory indemnity from the Company
any U.S. Government Obligations or money held by it as provided in Section 403
or which, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, are then in excess of the amount thereof which then would have been
required to be deposited for the purpose for which such obligations or money
were deposited or received.
SECTION 403. Defeasance and Discharge of Indenture.
The Company shall be deemed to have paid and discharged the entire
indebtedness on all the Outstanding Securities on the 91st day after 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 at Company
Request, execute proper instruments acknowledging the same), except as to:
(a) the rights of Holders of Securities to receive, from the
trust funds described in subparagraph (d) hereof, (i) payment of the principal
of (and premium, if any) or interest on the Outstanding Securities on the Stated
Maturity of such principal or installment of principal or interest and (ii) the
benefit of any mandatory sinking fund payments applicable to the Securities on
the day on which such payments are due and payable in accordance with the terms
of this Indenture and the Securities;
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(b) the Company's obligations with respect to such Securities
under Sections 305, 306, 1002 and 1003; and
(c) the rights, powers, trusts, duties and immunities of the
Trustee hereunder;
provided that, the following conditions shall have been satisfied:
(d) the Company has deposited or caused to be irrevocably
deposited (except as provided in Section 402) with the Trustee (or another
trustee satisfying the requirements of Section 609) as trust funds in the trust,
specifically pledged as security for, and dedicated solely to, the benefit of
the Holders of the Securities, (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 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 on the
Outstanding Securities on the Stated Maturity of such principal or installment
of principal or interest and (B) any mandatory sinking fund payments applicable
to the Securities on the day on which such payments are due and payable in
accordance with the terms of this Indenture and of the Securities;
(e) such deposit shall not cause the Trustee with respect to
the Securities to have a conflicting interest as defined in the Trust Indenture
Act with respect to the Securities;
(f) such deposit will not result in a breach or violation of,
or constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound;
(g) such provision would not cause any Outstanding Securities
then listed on the New York Stock Exchange or other securities exchange to be
delisted as a result thereof;
(h) no Event of Default or event which with notice or lapse of
time would become an Event of Default with respect to the Securities shall have
occurred and be continuing on the date of such deposit or during the period
ending on the 91st day after such date;
(i) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel to the effect that the Company has
received from, or there has been published by, the Internal Revenue Service a
ruling to the effect that Holders of the Securities will not recognize income,
gain or loss for Federal income tax purposes as a result of such deposits,
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
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(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.
ARTICLE V
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 the payment of any interest upon any Security of
that series when it becomes due and payable, and continuance of such
default for a period of 30 days; or
(2) default in the payment of the principal of (or 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 series of
Securities other than that series), and continuance of such default or
breach for a period of 60 days after there has been given, by
registered or certified mail, to the Company by the Trustee or the
Company and the Trustee by the Holders of at least 10% in principal
amount of the Outstanding Securities of that series a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(5) a default under any mortgage, indenture or instrument
under which there may be issued or by which there may be secured or
evidenced any indebtedness for money borrowed by the Company (including
this Indenture), whether such indebtedness now exists or shall
hereafter be created, which default shall constitute a failure to pay
any portion of the principal of such indebtedness when due and payable
after the expiration of any applicable grace period with respect
thereto or shall have resulted in such indebtedness becoming or being
declared due and payable prior to the date on which it would otherwise
have become due and payable, without such indebtedness having been
discharged, or such acceleration
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having been rescinded or annulled, within a period of 10 days after
there shall have been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the Holders
of at least 10% in principal amount of the Outstanding Securities of
that series a written notice specifying such default and requiring the
Company to cause such indebtedness to be discharged or cause such
acceleration to be rescinded or annulled and stating that such notice
is a "Notice of Default" hereunder; provided, however, that, subject to
the provisions of Sections 601 and 602, the Trustee shall not be deemed
to have knowledge of such default unless either (A) a Responsible
Officer of the Trustee shall have actual knowledge of such default or
(B) the Trustee shall have received written notice thereof from the
Company, from any Holder, from the holder of any such indebtedness or
from the trustee under any such mortgage, indenture or other
instrument; or
(6) the entry by a court having jurisdiction in the premises
of (A) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or (B) a
decree or order adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company
under any applicable Federal or State law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 60 consecutive
days; or
(7) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the consent by
it to the entry of a decree or order for relief in respect of the
Company in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency case
or proceeding against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under any applicable
Federal or State law, or the consent by it to the filing of such
petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or similar
official of the Company or of any substantial part of its property, or
the making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts general as
they become due, or the taking of corporate action by the Company in
furtherance of any such action; or
(8) any other Event of Default provided with respect to
Securities of that series.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
In an Event of Default with respect to Securities of any series at the
time Outstanding occurs and is continuing, then in every such case the Trustee
or the Holders of not less than 25% in
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principal amount of the Outstanding Securities of that series may declare the
principal amount (or, if any of 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 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 thereon at
the rate or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate or rates
prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel;
and
(2) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of Securities of
that series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
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(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest and, to the extent
that payment of such interest shall be legally enforceable, interest on any
overdue principal (and premium, if any) and on any overdue interest, at the rate
or rates prescribed therefor in such Securities, and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other property remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company or any other
obligor upon the Securities, its property or its creditors, the Trustee shall be
entitled and empowered, by intervention in such proceeding or otherwise, to take
any and all actions authorized under the Trust Indenture Act in order to have
claims of the Holders and the Trustee allowed in any such proceeding. In
particular, the Trustee shall be authorized to collect and receive any moneys or
other property payable or deliverable on any such claims to distribute the same,
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the
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Trustee, its agents and counsel, be for the ratable benefit of the Holders of
the Securities in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (or premium,
if any) or interest, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607; and
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Securities in
respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for
principal (and premium, if any) and interest, respectively.
SECTION 507. Limitation of Suits.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities
of that series;
(2) the Holder 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
satisfactory indemnity against the costs, expenses and liabilities to
be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or
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preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all of such Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 307) interest on such Security on the Stated Maturity or Maturities
expressed in such Security (or, in the case of redemption, on the Redemption
Date) or to institute suit for the enforcement of any such payment right, and
such rights shall not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved to the Trustee
or to the Holders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
SECTION 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any
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remedy available to the Trustee, or exercising any trust or power conferred on
the Trustee, with respect to the Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of
law of with this Indenture,
(2) the Trustee may request satisfactory indemnity, and
(3) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waiver any past default hereunder with respect to such
series and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess reasonable
costs, including reasonable attorneys' fees, against any such party litigant in
the manner and to the extent provided in the Trust Indenture Act, provided that
this Section 514 shall have no application to any suit instituted by the Company
or the Trustee.
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
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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 VI
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by
the Trust Indenture Act. Notwithstanding the foregoing, 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.
Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
SECTION 602. Notice of Defaults.
If a default occurs hereunder with respect to the Securities of any
series, the Trustee shall give the Holders of Securities of such series notice
of such default as and to the extent provided by the Trust Indenture Act;
provided, however, that in the case of any default of the character specified in
Section 501(4) with respect to Securities of such series, no such notice to
Holders shall be given until at least 30 days after the occurrence thereof. For
the purpose of this Section, the term "default" means any event which is, or
after notice or lapse of time or both would become, an Event of Default with
respect to Securities of such series.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of 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, 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 by, or as contemplated in Section 301 or Section
303 herein and any resolution of the Board of Directors may be sufficiently
evidenced by a Certified Board Resolution;
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(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith on
its part, rely upon an Officers' Certificate;
(d) the Trustee may 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
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, 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 or any Authenticating Agent assumes no
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities. The Trustee
or any Authenticating Agent shall not be accountable for the use or application
by the Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities and Serve as Trustee Under Other
Indentures.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
608 and 613, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
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Subject to the provisions of Section 608, the Trustee may become and
act as trustee under other indentures under which other securities, or
certificates of interest or participation in other securities, of the Company
are outstanding in the same manner as if it were not Trustee.
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 and hold the Trustee and its directors,
officers, agents and employees (collectively, the "Indemnitees")
harmless from and against any and all claims, liabilities, losses,
damages, fines, penalties and expenses, including out-of-pocket
expenses, incidental expenses and fees and expenses of outside counsel
("Losses") that may be imposed on, incurred by, or asserted against,
the Indemnitees or any of them for following any instruction or other
direction upon which the Trustee is authorized to rely pursuant to the
terms of this Indenture. In addition to and not in limitation of the
immediately preceding sentence, the Company also agrees to indemnify
and hold the Indemnitees and each of them harmless from and against any
and all Losses that may be imposed on, incurred by, or asserted against
the Indemnitees or any of them in connection with or arising out of the
Trustee's performance under this Indenture, provided that the Trustee
has not acted in negligence or engaged in misconduct. The provisions of
this Section 607(3) shall survive the termination of this Indenture and
the resignation or removal of the Trustee for any reason.
SECTION 608. Disqualification; Conflicting Interests.
Provisions relating to disqualification of the Trustee shall be as
provided in the Trust Indenture Act. To the extent permitted by the Trust
Indenture Act, the Trustee shall not be deemed
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to have a conflicting interest by being the successor trustee under the
Indenture between the Company and Mellon Bank, N.A. (successor trustee to
CoreStates Bank, N.A., formerly The Philadelphia National Bank), dated as of
April 1, 1986, and supplemented by amendments dated December 15, 1988 and May 1,
1992.
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 of
America, any State thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least $25,000,000 subject to supervision or examination by Federal or
State authority. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such 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.
SECTION 610. Resignation and Removal; Appointment of 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 in
accordance with the applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice to the Company. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(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 the
provisions of the Trust Indenture Act applicable in respect of
a conflicting interest 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
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(3) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of the
Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 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 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 and accepted appointment in the
manner required by Section 611, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
(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
by mailing written notice of such event by first-class mail, postage prepaid, to
all Holders of Securities of such series as their names and addresses appear in
the Security Register. Each notice shall include the name of the successor
Trustee with respect to the Securities of such series and the address of its
Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
(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,
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without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities 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 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.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate
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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.
Provisions relating to preference collection of claims against the
Company shall be as provided by the Trust Indenture Act.
SECTION 614. Appointment of Authenticating Agent.
At any time when any of the Securities remain Outstanding the Trustee
may appoint an Authenticating Agent or Agents with respect to one or more series
of Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon the exchange, registration of
transfer or partial redemption or conversion thereof or pursuant to Section 306,
and Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if authenticated
by the Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any State thereof or the
District of Columbia, authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus of not less than $25,000,000 and subject
to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
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An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its service under this Section, and the Trustee
shall be entitled to be reimbursed for such payments, subject to the provisions
of Section 607.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternate
certificate of authentication in the following form:
This is one of the Securities of a series designated under the
Indenture described herein.
CHASE MANHATTAN TRUST COMPANY,
NATIONAL ASSOCIATION
__________________________________
As Trustee
By________________________________
As Authenticating Agent
By________________________________
Authorized Officer
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ARTICLE VII
HOLDERS' LIST AND REPORTS BY
TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not later than May 15 and November 15 in
each year, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders as of the preceding May 1 or November 1, 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 form and content as of a date not more than 15 days prior to the time
such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the most
recent list furnished to the Trustee as provided in Section 701 and the names
and addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders
with respect to their rights under this Indenture or under the Securities, and
the corresponding rights and privileges of the Trustee, shall be as provided by
the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason of
any disclosure of information as to names and addresses of Holders made pursuant
to the Trust Indenture Act.
SECTION 703. Reports by Trustee.
To the extent and in the manner required by the Trust Indenture Act,
reports by the Trustee will be transmitted to Holders within 60 days after May
15 of each year.
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SECTION 704. Reports by Company.
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to such Act; provided that any such
information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the
Trustee within 15 days after the same is so required to be filed with the
Commission.
ARTICLE VIII
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
corporation or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, and the Company shall not permit any Person to
consolidate with or merge into the Company or convey, transfer or lease its
properties and assets substantially as an entirety to the Company, unless:
(1) in case the Company shall consolidate with or merge into
another corporation or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, the corporation
formed by such consolidation or into which the Company is merged or the
Person which acquires by conveyance or transfer, or which leases, the
properties and assets of the Company substantially as an entirety shall
be a corporation organized and existing under the laws of the United
States of America, any State thereof or the District of Columbia and
shall expressly assume, by an indenture supplemental hereto, executed
and delivered to the Trustee, in form satisfactory to the Trustee, the
due and punctual payment of the principal of (and premium, if any) and
interest on all the Securities and the performance of every covenant of
this Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction 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;
(3) if, as a result of any such consolidation or merger or
such conveyance, transfer or lease, properties or assets of the Company
would become subject to a mortgage, pledge, lien, security interest or
other encumbrance which would not be permitted by this Indenture, the
Company or such successor corporation or Person, as the case may be,
shall
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take such steps as shall be necessary effectively to secure the
Securities equally and ratably with (or prior to) all indebtedness
secured thereby; and
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction,
such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction
have been complied with.
SECTION 802. Successor Corporation Substituted.
Upon any consolidation by the Company with or merger by the Company
into any other corporation or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety in accordance
with Section 801, the successor corporation formed by such consolidation or into
which the Company is merged or to which such conveyance, transfer or lease is
made shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor corporation had been named as the Company herein, and thereafter,
except in the case of a lease, the predecessor corporation shall be relieved of
all obligations and covenants under this Indenture and the Securities.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from to time, may enter into
one or more indentures supplemental hereto, in form satisfactory to the Trustee,
for any of the following purposes:
(1) to evidence the succession of another corporation to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of
the Holders 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
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(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or facilitate
the issuance of Securities in bearer form, registrable or not
registrable as to principal, and with or without interest coupons; 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; or
(7) to establish the form or terms of Securities of any series
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 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 inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided such action shall not
adversely affect the interests of the Holders of Securities of any
series in any material respect.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium
payable upon the redemption thereof, 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 Maturity thereof
pursuant to Section 502, or change any Place of Payment where, or the
coin or currency in which, any Security or any premium or the interest
thereon is payable, or make any change that adversely affects the right
to convert
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any Security 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 to enforce
such conversion right, 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 1012, except to increase any such percentage or to provide
that certain other provisions of this indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security
affected thereby, provided, however, that this clause shall not be
deemed to require the consent of any Holder with respect to changes in
the references to "the Trustee" and concomitant changes in this Section
and Section 1012, or the deletion of this proviso, in accordance with
the requirements of Sections 611(b) and 901(8).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
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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.
SECTION 906. Reference in Securities to Supplemental Indenture.
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 approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE X
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 on the Securities of that series in accordance with the
terms of the Securities and this Indenture.
The Company will have the right to require the Holder of a Security of
any series, in connection with the payment of the principal of and interest on
the Security, to present at either office or agency to be maintained by the
Company in accordance with Section 1002 a certificate, in such form as the
Company may from time to time prescribe, to enable it to determine its duties
and liabilities with respect to any taxes, assessments or governmental charges
which it may be required to deduct or withhold therefrom under any present or
future law of the Untied States of America or of any State, county, municipality
or taxing authority therein and giving, among other information, the identity
and residence of the Holder of such Security; and the Company will be entitled
to determine its duties and liabilities with respect to such deduction or
withholding on the basis of the information contained in such certificate or, if
no such certificate shall be so presented, on the basis of any presumption
created by any such law, and shall be entitled to act in accordance with such
determination.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer, exchange or conversion and
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where notices and demands to or upon the Company in respect of the Securities of
that series and this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and any change in the location,
of such office or agency. If at any time the Company shall fail to maintain any
such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such presentations, surrenders,
notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in each Place of Payment for Securities of any series for such
purposes. The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such office
or agency.
SECTION 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal (and premium, if any) or interest
so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, prior to each due date of the principal of (and
premium, if any) or interest on any Securities of that series, deposit with a
Paying Agent a sum sufficient to pay the principal (and premium, if any) or
interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium or interest, and (unless such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of its action
or failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal
of (and premium, if any) or interest on Securities of that series in
trust for the benefit of the Persons entitled thereto until such sums
shall be paid to such Persons or otherwise disposed of as herein
provided,
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of that series) in the making of
any payment of principal (and premium, if any) or interest of the
Securities of that series; and
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(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 on any Security of any series and remaining unclaimed for three
years after such principal (and premium, if any) or interest has become due and
payable shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York, notice that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Company.
SECTION 1004. 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 and that of each Subsidiary and the rights (charter and statutory) and
franchises of the Company or any Subsidiary; provided, however, that the Company
shall not be required to preserve any such right or franchise if the Company
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company or any Subsidiary and that the loss
thereof is not disadvantageous in any material respect to the Holders.
SECTION 1005. Maintenance of Properties.
The Company will cause all properties used or useful in the conduct of
its business or the business of any Subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company may
be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided, however, that
nothing in this Section shall prevent
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the Company from discontinuing the operation or maintenance of any of such
properties if such discontinuance is, in the judgment of the Company, desirable
in the conduct of its business or the business of any Subsidiary and not
disadvantageous in any material respect to the Holders.
SECTION 1006. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary, and (2)
all lawful claims for labor, materials and supplies which if unpaid, might by
law become a lien upon the property of the Company or any Subsidiary; provided,
however, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
SECTION 1007. Maintenance of Insurance.
The Company will insure and keep insured, and will cause each
Subsidiary to insure and keep insured, with reputable insurance companies, so
much of their respective properties, to such an extent and against such risks
(including fire), as companies engaged in similar businesses customarily insure
properties of a similar character; or, in lieu thereof, in the case of itself or
of any one or more of its Subsidiaries, the Company will maintain or cause to be
maintained a system or systems of self-insurance which will accord with the
approved practices of companies owning or operating properties of a similar
character and maintaining such systems, and, in such cases of self-insurance,
will maintain or cause to be maintained an insurance reserve or reserves in
adequate amounts.
SECTION 1008. Statement as to Compliance.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year, a written statement signed by the principal executive
officer, the principal financial officer or the principal accounting officer,
stating 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;
(2) to the best of his knowledge, based on such review, (a)
the Company has fulfilled all its obligations under this Indenture
throughout such year, or, if there has been a default in the
fulfillment of any such obligation (determined without regard to any
period of grace or requirement of notice provided for in this
indenture), specifying each such default known to him and the nature
and status thereof, and (b) no event has occurred and is continuing
which is, or after notice or lapse of time or both would become, an
Event of Default under Clauses (3) or (5) of Section 501, or, if such
an event has occurred and is continuing, specifying each such event
known to him and the nature and status thereof; and
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(3) setting forth arithmetical computations sufficient to show
compliance with the provisions of Sections 1009 and 1010 during such
fiscal year.
SECTION 1009. Limitation Upon Mortgages.
The Company will not itself, and will not permit any Restricted
Subsidiary to, incur, issue, assume, guarantee or suffer to exist any
indebtedness for money borrowed (indebtedness for money borrowed (indebtedness
for money borrowed being hereinafter in this Section 1009 called "Debt") secured
by a Mortgage on any Principal Operating Property of the Company or any
Restricted Subsidiary, or any shares of stock of or Debt of any Restricted
Subsidiary, without effectively providing that the Securities (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 plus all Attributable Debt of the Company and its Restricted
Subsidiaries in respect of sale and leaseback transactions (as defined in
Section 1010, but excluding leases exempt from the prohibition of Section 1010
by Clauses (2) through (7), inclusive, thereof) would not exceed 5% of
Consolidated Net Worth; provided, however, that this Section 1009 shall not
apply to, and there shall be excluded from secured Debt in any computation under
this Section, Debt secured by:
(1) Mortgages on property of, or on any shares of 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 (including leasehold estates),
shares of 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 120 days after the latest of the acquisition, the
completion of construction or the commencement of full operation of
such property or within 120 days after the acquisition of such shares
or Debt for the purpose of financing all or any part of the purchase
price thereof or construction thereon, it being understood that if a
bona fide commitment from a bank, insurance company or other lender or
investor (not including the Company or any Subsidiary) for such
financing is made prior to or within such 120-day period, the
applicable Mortgage shall be deemed to be included in this Clause (4)
whether or not such Mortgage is created within such 120-day period; or
(5) 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
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(1) to (4), inclusive, provided, that such extension, renewal or
replacement Mortgage shall be limited to all or part of the same
property, shares of stock or Debt that secured the Mortgage extended,
renewed or replaced (plus improvements on such property).
SECTION 1010. Limitation Upon Sale and Leaseback Transactions.
Except as hereinafter provided, the Company will not itself, and it
will not permit any Restricted Subsidiary to, enter into any transaction with
any bank, insurance company or other lender or investor, or to which any such
bank, company, lender or investor is a party, providing for the leasing by the
Company or a Restricted Subsidiary of any Principal Operating Property which has
been or is to be sold or transferred by the Company or such Restricted
Subsidiary to such bank, company, lender or investor, or to any Person to whom
funds have been or are to be advanced by such bank, company, lender or investor
on the security of such Principal Operating Property (herein referred to as a
"sale and leaseback transaction"). This covenant shall not apply to any sale and
leaseback transaction if:
(1) the Company or such Restricted Subsidiary could create
Debt secured by a Mortgage pursuant to Section 1009, without regard to
Clauses (1) through (5) thereof, on the Principal Operating Property to
be leased in an amount equal to the Attributable Debt with respect to
such sale and leaseback transaction without equally and ratably
securing the Securities; or
(2) the Company or a Restricted Subsidiary, within 120 days
after the sale or transfer shall have been made by the Company or by a
Restricted Subsidiary, applies on amount equal to the greater of the
net proceeds from the sale of the Principal Operating Property leased
pursuant to such arrangement or the fair market value of the Principal
Operating Property so leased at the time of entering into such
arrangement (as determined in any manner approved by the Board of
Directors) to the retirement of Funded Debt of the Company or a
Restricted Subsidiary (except that no Securities shall be retired if
such retirement of Securities pursuant to this provision would be
prohibited by Section 1101); provided, that the amount to be applied to
the retirement of Funded Debt of the Company or a Restricted Subsidiary
shall be reduced by (a) the principal amount of any Securities (or
other debentures or notes constituting Funded Debt of the Company or a
Restricted Subsidiary not subordinate to the Securities) delivered to
the Trustee or other applicable trustee for retirement and cancellation
within 75 days after such sale or transfer shall have been made and (b)
the principal amount of Funded Debt, other than Funded Debt included
under Clause (a), voluntarily retired by the Company or a Restricted
Subsidiary within 75 days after such sale (notwithstanding the
foregoing, no retirement referred to in this Clause (2) may be effected
by payment at maturity or pursuant to any mandatory sinking fund
payment or any mandatory prepayment provision); or
(3) the Company or a Restricted Subsidiary, within 120 days
after the sale or transfer shall have been made by the Company or by a
Restricted Subsidiary, applies an amount equal to the greater of the
net proceeds from the sale of the Principal Operating
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Property leased pursuant to such arrangement or the fair market value
of the Principal Operating Property so leased at the time of entering
into such arrangement (as determined in any manner approved by the
Board of Directors) to the purchase of a manufacturing plant and
related physical facilities similar to the Principal Operating Property
leased pursuant to such arrangement; or
(4) the sale or transfer of the Principal Operating Property
is made within 120 days after the latest to occur of the date of (a)
the acquisition of such Principal Operating Property, (b) the
completion of construction or (c) the commencement of full operation
thereof; or
(5) the sale or transfer of the Principal Operating Property
is made pursuant to a bona fide commitment for such sale or transfer
entered into with such bank, company, lender or investor within 120
days after the latest to occur of the events specified in Clause (4)
above; or
(6) the lease in such sale and leaseback transaction is for a
period, including renewals, of not in excess of three years; or
(7) such arrangement is between the Company and a Restricted
Subsidiary or between Restricted Subsidiaries.
SECTION 1011. Defeasance of Certain Obligations.
The Company may omit to comply with any term, provision or condition
set forth in Sections 1009 and 1010, with respect to the Securities if:
(1) With reference to this Section 1011, the Company has
deposited or caused to be irrevocably deposited 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, (1) 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 day before the due date of
any payment referred to in clause (A) or (B) of this subparagraph (1)
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 on the Outstanding Securities on the Stated Maturity of such
principal or installment of principal or interest and (B) any mandatory
sinking fund payments applicable to the Securities on the day on which
such payments are due and payable in accordance with the terms of the
Indenture and of the Securities;
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(2) Such deposit shall not cause the Trustee with respect to
the Securities to have a conflicting interest as defined in the Trust
Indenture Act with respect to the Securities;
(3) Such deposit will not result in a breach or violation of,
or constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound;
(4) No Event of Default or event which with notice or lapse of
time would become an Event of Default with respect to the Securities
shall have occurred and be continuing on the date of such deposit;
(5) The Company has delivered to the Trustee an Opinion of
Counsel to the effect that Holders of the Securities will not recognize
income, gain or loss for Federal income tax purposes as a result of
such deposit and defeasance of certain obligations 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 and
defeasance had not occurred; and
(6) The Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the defeasance contemplated
by this Section have been complied with.
SECTION 1012. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 1004 to 1010, inclusive, with
respect to the Securities of any series if before the time for such compliance
the Holders of at least a majority in principal amount of the Outstanding
Securities of such series shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such term,
provision or condition, but no such waiver shall extend to or affect such term,
provision or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such term, provision or condition shall remain in
full force and effect.
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any series)
in accordance with this Article.
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SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced
by a Certified 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 45 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. In the case of any redemption of Securities prior to the expiration of
any restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
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 such method as the Trustee
shall deem fair and appropriate (including by lot) 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 such series of a denomination larger than the
minimum authorized denomination for Securities of that 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.
If any Security selected for partial redemption is surrendered for
conversion pursuant to Article Thirteen after such selection, the converted
portion of such Security shall be deemed (so far as may be) to be the portion
selected for redemption. Upon any redemption of less than all the Securities of
a series, for purposes of selection for redemption, the Company and the Trustee
may treat as Outstanding Securities surrendered for conversion during the period
of 15 days next preceding the mailing of a notice of redemption and need not
treat as Outstanding any Security authenticated and delivered during such period
in exchange for the unconverted portion of any Security converted in part during
such period.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given by first class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
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Each notice of redemption (herein "Notice of Redemption") shall state:
(1) the Redemption Date,
(2) the Redemption Price and the Conversion Price, if any,
(3) if less than all of the Outstanding Securities of any
series are to be redeemed, the identification (and, in the case of
partial redemption, the principal amounts) of the particular Securities
to be redeemed,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after
said date,
(5) the place or places where such Securities are to be
surrendered for payment of the Redemption Price or for conversion, if
applicable,
(6) if the Securities called for redemption are subject to
Article Thirteen, that Securities called for redemption may be
converted, the requirements for conversion and the date on which the
right to convert Securities will expire, and
(7) that the redemption is for a sinking fund, if such is the
case.
Notice of Redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1105. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date. If any Security called for redemption is
converted pursuant to Article Thirteen, any money deposited with the Trustee or
with a Paying Agent or segregated and held in trust for the redemption of such
Security shall be paid to the Company at the Company's request, or if then held
by the Company, shall be discharged from such trust.
SECTION 1106. Securities Payable on Redemption Date.
Notice of Redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest and shall cease to be
convertible.
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Upon surrender of any such Security for redemption in accordance with said
notice, such Security shall be paid by the Company at the Redemption Price,
together with accrued interest to the Redemption Date; provided, however, that
installments of interest 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 Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security and remain convertible into Common Stock in accordance
with its terms.
SECTION 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered
at a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities of the same series and of like tenor, of
any authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
ARTICLE XII
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 Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any series,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 1202. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
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SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been converted into Common Stock or which have
been redeemed either at the election of the Company pursuant to the terms of
such Securities or through the application of permitted optional sinking fund
payments pursuant to the terms of such Securities, in each case in satisfaction
of all or any part of any sinking fund payment with respect to 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 45 days 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.
The Company's obligation to make a mandatory or optional sinking fund
payment shall automatically be reduced by an amount equal to the Redemption
Price allocable to any Securities or portion thereof called for redemption
pursuant to the preceding paragraph on any sinking fund payment date and
converted into Common Stock; provided, however, that if the Trustee is not the
Conversion Agent for the Securities, the Company or such Conversion Agent shall
give the Trustee written notice prior to the date fixed for redemption of the
principal amount of Securities or portions thereof so converted.
*****
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.
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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.
ROHM AND XXXX COMPANY
By:
-------------------------------------
Xxxxxx X. Xxxxxxx
Treasurer
Attest:
---------------------------
Xxxx X. Xxxxxxx
Secretary [SEAL]
CHASE MANHATTAN TRUST COMPANY,
NATIONAL ASSOCIATION
By:
-------------------------------------
Xxxxxxxxx Xxxxxxxx
Authorized Officer
Attest:
--------------------------- [SEAL]
88
Schedule 305(h)(v)
We understand that the ____________________ of Rohm and Xxxx Company
(the "Securities") were issued in a transaction not involving any public
offering within the United States within the meaning of the Securities Act of
1933, as amended (the "Securities Act"), and that the Securities have not been
registered under the Securities Act, and we agree, on our own behalf and on
behalf of each account for which we acquire any Securities, that, if in the
future we decide to resell or otherwise transfer any Securities, such Securities
may be resold or otherwise transferred only (i) to Rohm and Xxxx Company or any
subsidiary thereof, (ii) pursuant to an effective registration statement under
the Securities Act, (iii) to a person who is a "qualified institutional buyer"
(as defined in Rule 144A under the Securities Act) in a transaction meeting the
requirements of Rule 144A, (iv) to an Institutional Accredited Investor (as
defined below) that, prior to such transfer, furnishes to Chase Manhattan Trust
Company, N.A., as Trustee (the "Trustee"), a signed letter substantially in the
form hereof, (v) outside the United States in a transaction meeting the
requirements of Rule 904 under the Securities Act or (vi) pursuant to the
exemption from registration provided by Rule 144 under the Securities Act (if
applicable) and (vii) in each case, in accordance with any applicable securities
laws of the United States or any other applicable jurisdiction and in accordance
with the legends set forth on the Securities. We further agree to provide any
person purchasing any of the Securities from us a notice advising such purchaser
that resales of such Securities are restricted as stated herein. We understand
that the registrar for the Securities will not be required to accept for
registration of transfer any Securities, except upon presentation of evidence
satisfactory to Rohm and Xxxx Company that the foregoing restrictions on
transfer have been complied with. We further understand that any Securities will
be in the form of definitive physical certificates and that such certificates
will bear a legend reflecting the substance of this paragraph.
We confirm that:
(i) we are an "accredited investor" within the meaning of Rule
501(a)(1), (2), (3) or (7) under the Securities Act (an "Institutional
Accredited Investor");
(ii) any purchase of Securities by us will be for our own
account or for the account of one or more Institutional Accredited
Investors or as fiduciary for the account of one or more trusts, each
of which is an "accredited investor" within the meaning of Rule
501(a)(7) under the Securities Act and for each of which we exercise
sole investment discretion;
(iii) in the event that we purchase any Securities, we will
acquire Securities having a minimum purchase price of not less than
$100,000 for our own account or for any separate account for which we
are acting;
(iv) we have such knowledge and experience in financial and
business matters that we are capable of evaluating the merits and risks
of purchasing the Securities; and
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(v) we are not acquiring the Securities with a view to
distribution thereof or with any present intention of offering or
selling the Securities, except as permitted above and provided that the
disposition of our property and property of any accounts for which we
are acting as fiduciary shall remain at all times within our control.
We acknowledge that Rohm and Xxxx Company, you and others will rely
upon our confirmations, acknowledgments and agreements set forth herein, and we
agree to notify you promptly in writing if any of our representations or
warranties herein ceases to be accurate and complete.
(Name of Purchaser)
By:
-------------------------------------
Name:
Title:
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