Exhibit 4(o)
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XXXXXX BROTHERS INC.
AND
THE BANK OF NEW YORK,
Trustee
----------------------------
Indenture
Dated as of October 23, 1995
----------------------------
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THIS INDENTURE, dated as of October 23, 1995, between XXXXXX BROTHERS INC.,
a corporation duly organized and existing under the laws of the State of
Delaware (the "Company"), and THE BANK OF NEW YORK, a New York banking
corporation (the "Trustee"),
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured notes
or other evidences of indebtedness to be issued in one or more series (the
"Securities"), as in this Indenture provided, up to such principal amount or
amounts as may from time to time be authorized in or pursuant to one or more
resolutions of the Board of Directors; and
WHEREAS, all acts and things necessary to make this Indenture a valid
agreement of the Company according to its terms have been done and performed,
and the execution and delivery of this Indenture have in all respects been duly
authorized,
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which the Securities
are, and are to be, authenticated, issued and delivered, and in consideration of
the premises, of the purchase and acceptance of the Securities by the Holders
thereof and of the sum of one dollar duly paid to it by the Trustee at the
execution and delivery of these presents, the receipt whereof is hereby
acknowledged, the Company covenants and agrees with the Trustee for the equal
and proportionate benefit of the respective Holders from time to time of the
Securities or of any series thereof, as follows:
PARAGRAPH A. Incorporation by Reference.
Articles One through Thirteen of the Xxxxxx Brothers Inc. Standard
Multiple-Series Indenture Provisions dated and filed with the Securities and
Exchange Commission (the "Commission") on October 23, 1995 (the "Standard
Provisions") are hereby incorporated herein by reference with the same force and
effect as though fully set out herein.
PARAGRAPH B. Additional Provisions.
Each of the following provisions, which constitutes part of this Indenture,
is numbered to conform with the format of the Standard Provisions:
2
SECTION 116. Benefits of Indenture.
Nothing in this Indenture or in the Securities or coupons, express 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 615. Other Matters Concerning Trustee.
The Corporate Trust Office of the Trustee at the date of this Indenture is
located at 000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx, Xxx Xxxx, Xxx Xxxx, 00000.
A Responsible Officer means a Vice President, Assistant Vice President,
Assistant Treasurer or any other trust officer of the Trustee customarily
performing functions similar to those performed by persons who at the time shall
be such officers.
SECTION 705. Delivery of Reports by Trustee.
The reports to be transmitted by the Trustee pursuant to the provisions of
Section 703 hereof shall be required to be transmitted on or before July 15,
1995, and on or before July 15 in every year thereafter, so long as any
Securities are outstanding hereunder.
------------------------
The Bank of New York hereby accepts the trusts in this Indenture declared
and provided, upon the terms and conditions hereinabove set forth.
3
IN WITNESS WHEREOF, Xxxxxx Brothers Inc. has caused this Indenture to be
signed and acknowledged by its President, its Chairman of the Board, one of its
Vice Presidents, its Chief Financial Officer or its Treasurer, and its corporate
seal to be affixed hereunto, and the same to be attested by its Secretary, its
Assistant Secretary or one of its Attesting Secretaries, and The Bank of New
York has caused this Indenture to be signed and acknowledged by one of its
Assistant Vice Presidents, and its corporate seal to be affixed hereunto, and
the same to be attested by one of its Assistant Treasurers, as of the day and
year first written above.
[CORPORATE SEAL] XXXXXX BROTHERS INC.
By /s/ Xxxxxxx X. Xxxxxxxxxx
--------------------------
Treasurer
/s/ Xxxxxxx Xxxxxxxxxx
-------------------------
Assistant Secretary
[CORPORATE SEAL] THE BANK OF NEW YORK,
as Trustee
Attest: By /s/ Xxxxxxx Xxxxxxxxx
----------------------------
Title: Assistant Vice President
/s/ Xxxxx Xxxxxx
--------------------------
Title: Assistant Treasurer
4
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 23th day of October, 1995, before me personally came Xxxxxxx X.,
Xxxxxxxxxx, to me known, who, being by me duly sworn, did depose and say that he
is Treasurer of XXXXXX BROTHERS INC., one of the corporations described in and
which executed the foregoing instrument; that he knows the corporate seal of
said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
Xxxxxxxx Xxxxxxx
-------------------
[Notarial Seal]
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 23th day of October, 1995, before me personally came Xxxxxxx
Xxxxxxxxx, to me known, who, being by me duly sworn, did depose and say
that he is an Assistant Vice President of THE BANK OF NEW YORK, one of the
corporations described in and which executed the foregoing instrument; that he
knows the corporate seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that he signed his name thereto by
like authority.
Xxxxxxx Xxxx
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[Notarial Seal]
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XXXXXX BROTHERS INC.
STANDARD MULTIPLE-SERIES
INDENTURE PROVISIONS
Dated, and Filed with the Securities and Exchange Commission
on, October 23, 1995
================================================================================
CROSS REFERENCE SHEET***
between
the provisions of Sections 310 through 318(a) of the Trust Indenture Act of
1939, as amended, and the Xxxxxx Brothers Inc. Standard Multiple-Series
Indenture Provisions:
Section of Standard
Multiple-Series
Section of Act Indenture Provisions
-------------- --------------------
Sec. 310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 609
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 609
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 609
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 608
610
Sec. 311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 613(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 613(b)
(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(a)(2)
703(b)
Sec. 312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 701
702(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702(c)
Sec. 313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(c)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(d)
Sec. 314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 704
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
Sec. 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
Sec. 316(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
502
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 512
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 513
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 508
Sec. 317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1003
Sec. 318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
--------------------------------
* This cross reference sheet is not part of the Standard Multiple-Series
Indenture Provisions.
TABLE OF CONTENTS
Page
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ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION . . . 1
SECTION 101. Definitions . . . . . . . . . . . . . . . . . . . . . . 1
"Act" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Additional Amounts" . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Affected Security" . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Affiliate" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Authenticating Agent" . . . . . . . . . . . . . . . . . . . . . . . . 2
"Authorized Newspaper" . . . . . . . . . . . . . . . . . . . . . . . . 2
"Bearer Security" . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Board of Directors" . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Board Resolution" . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Business Day" . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Cedel" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Code" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Commission" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Company" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Company Request" . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Company Order" . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Component Currency" . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Consolidated Net Worth" . . . . . . . . . . . . . . . . . . . . . . . 3
"Conversion Event" . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Corporate Trust Office" . . . . . . . . . . . . . . . . . . . . . . . 3
"corporation" . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"coupon" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Currency Determination Agent" . . . . . . . . . . . . . . . . . . . . 3
"Defaulted Interest" . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Depositary" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Designated Subsidiary" . . . . . . . . . . . . . . . . . . . . . . . 4
"Determination Notice" . . . . . . . . . . . . . . . . . . . . . . . . 4
"Dollars" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"$" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Dual Currency Security" . . . . . . . . . . . . . . . . . . . . . . . 4
"ECU" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Election Date" . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Euroclear" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"European Communities" . . . . . . . . . . . . . . . . . . . . . . . . 4
"Event of Default" . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Exchange Date" . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Floating Rate Security" . . . . . . . . . . . . . . . . . . . . . . . 5
"Foreign Currency" . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Global Exchange Agent" . . . . . . . . . . . . . . . . . . . . . . . 5
"Government Obligations" . . . . . . . . . . . . . . . . . . . . . . . 5
"Holder" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
i
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"Indenture" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Indexed Security" . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"interest" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Interest Payment Date" . . . . . . . . . . . . . . . . . . . . . . . 6
"LIBOR" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"LIBOR Security" . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"London Banking Day" . . . . . . . . . . . . . . . . . . . . . . . . . 6
"mandatory sinking fund payment" . . . . . . . . . . . . . . . . . . . 6
"Market Exchange Rate" . . . . . . . . . . . . . . . . . . . . . . . . 6
"Maturity" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Officers' Certificate" . . . . . . . . . . . . . . . . . . . . . . . 6
"Opinion of Counsel" . . . . . . . . . . . . . . . . . . . . . . . . . 6
"optional sinking fund payment" . . . . . . . . . . . . . . . . . . . 6
"Original Issue Discount Security" . . . . . . . . . . . . . . . . . . 6
"Outstanding" . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
"Overdue Rate" . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
"Paying Agent" . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
"Person" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
"Place of Payment" . . . . . . . . . . . . . . . . . . . . . . . . . . 8
"Predecessor Security" . . . . . . . . . . . . . . . . . . . . . . . . 8
"Redemption Date" . . . . . . . . . . . . . . . . . . . . . . . . . . 8
"Redemption Price" . . . . . . . . . . . . . . . . . . . . . . . . . . 8
"Registered Holder" . . . . . . . . . . . . . . . . . . . . . . . . . 9
"Registered Security" . . . . . . . . . . . . . . . . . . . . . . . . 9
"Regular Record Date" . . . . . . . . . . . . . . . . . . . . . . . . 9
"Responsible Officer" . . . . . . . . . . . . . . . . . . . . . . . . 9
"Restricted Period" . . . . . . . . . . . . . . . . . . . . . . . . . 9
"Securities" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
"Security Register" . . . . . . . . . . . . . . . . . . . . . . . . . 9
"Security Registrar" . . . . . . . . . . . . . . . . . . . . . . . . . 9
"Special Record Date" . . . . . . . . . . . . . . . . . . . . . . . . 9
"Stated Maturity" . . . . . . . . . . . . . . . . . . . . . . . . . . 9
"Stock Exchange" . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
"Subsidiary" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
"Trustee" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
"Trust Indenture Act" . . . . . . . . . . . . . . . . . . . . . . . . 10
"United States" . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
"United States Alien" . . . . . . . . . . . . . . . . . . . . . . . . 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 . . . . . . . . . . . . . . . . . . . . 11
SECTION 105. Notices, Etc., to Trustee and Company . . . . . . . . . 13
SECTION 106. Notice to Holders; Waiver . . . . . . . . . . . . . . . 13
SECTION 107. Language of Notices, Etc. . . . . . . . . . . . . . . . 14
SECTION 108. Conflict with Trust Indenture Act . . . . . . . . . . . 14
ii
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SECTION 109. Effect of Headings and Table of Contents . . . . . . . 14
SECTION 110. Successors and Assigns . . . . . . . . . . . . . . . . 15
SECTION 111. Separability Clause . . . . . . . . . . . . . . . . . . 15
SECTION 112. Governing Law . . . . . . . . . . . . . . . . . . . . . 15
SECTION 113. Legal Holidays . . . . . . . . . . . . . . . . . . . . 15
SECTION 114. Execution In Counterparts . . . . . . . . . . . . . . . 15
SECTION 115. Immunity of Incorporators, Stockholders, Officers and
Directors . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 116. Certain Matters Relating to Currencies . . . . . . . . 16
SECTION 117. Calculation of Principal Amount . . . . . . . . . . . . 16
ARTICLE TWO
SECURITY FORMS . . . . . . . . . . . . . . 17
SECTION 201. Forms Generally . . . . . . . . . . . . . . . . . . . . 17
SECTION 202. Form of Trustee's Certificate of Authentication . . . . 18
SECTION 203. Securities in Global Form . . . . . . . . . . . . . . . 18
ARTICLE THREE
THE SECURITIES . . . . . . . . . . . . . . 18
SECTION 301. Amount Unlimited; Issuable in Series . . . . . . . . . 18
SECTION 302. Denominations . . . . . . . . . . . . . . . . . . . . . 23
SECTION 303. Execution, Authentication, Delivery and Dating . . . . 23
SECTION 304. Temporary Securities; Exchange of Temporary Global
Securities and Permanent Global Securities in Bearer
Form . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 305. Registration, Registration of Transfer and Exchange . . 30
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities . . . 34
SECTION 307. Payment of Interest; Interest Rights Preserved . . . . 35
SECTION 308. Persons Deemed Owners . . . . . . . . . . . . . . . . . 37
SECTION 309. Cancellation . . . . . . . . . . . . . . . . . . . . . 38
SECTION 310. Computation of Interest . . . . . . . . . . . . . . . . 38
SECTION 311. Currency and Manner of Payments in Respect of
Registered Securities. . . . . . . . . . . . . . . . . 38
SECTION 312. Appointment and Resignation of Successor
Currency Determination Agent . . . . . . . . . . . . 41
SECTION 313. CUSIP Numbers . . . . . . . . . . . . . . . . . . . . . 42
iii
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ARTICLE FOUR
SATISFACTION AND DISCHARGE . . . . . . . . . . . 42
SECTION 401. Satisfaction and Discharge of Securities of any Series 42
SECTION 402. Application of Trust Money . . . . . . . . . . . . . . 46
SECTION 403. Satisfaction and Discharge of Indenture . . . . . . . . 46
ARTICLE FIVE
REMEDIES . . . . . . . . . . . . . . . 47
SECTION 501. Events of Default . . . . . . . . . . . . . . . . . . . 47
SECTION 502. Acceleration of Maturity; Rescission and
Annulment . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . . . . . . . 50
SECTION 504. Trustee May File Proofs of Claim . . . . . . . . . . . 51
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities or coupons . . . . . . . . . . . . . . . . . 52
SECTION 506. Application of Money Collected . . . . . . . . . . . . 52
SECTION 507. Limitation on Suits . . . . . . . . . . . . . . . . . . 53
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest . . . . . . . . . . . . . . . . . 54
SECTION 509. Restoration of Rights and Remedies . . . . . . . . . . 54
SECTION 510. Rights and Remedies Cumulative . . . . . . . . . . . . 54
SECTION 511. Delay or Omission Not Waiver . . . . . . . . . . . . . 54
SECTION 512. Control by Holders . . . . . . . . . . . . . . . . . . 55
SECTION 513. Waiver of Past Defaults . . . . . . . . . . . . . . . . 55
SECTION 514. Undertaking for Costs . . . . . . . . . . . . . . . . . 56
SECTION 515. Waiver of Stay or Extension Laws . . . . . . . . . . . 56
SECTION 516. Judgment Currency . . . . . . . . . . . . . . . . . . . 56
ARTICLE SIX
THE TRUSTEE . . . . . . . . . . . . . . 57
SECTION 601. Certain Duties and Responsibilities . . . . . . . . . . 57
SECTION 602. Notice of Defaults . . . . . . . . . . . . . . . . . . 58
SECTION 603. Certain Rights of Trustee . . . . . . . . . . . . . . . 59
SECTION 604. Not Responsible for Recitals or Issuance of Securities 60
SECTION 605. May Hold Securities . . . . . . . . . . . . . . . . . . 61
SECTION 606. Money Held in Trust . . . . . . . . . . . . . . . . . . 61
SECTION 607. Compensation and Reimbursement . . . . . . . . . . . . 61
SECTION 608. Disqualification; Conflicting Interests . . . . . . . . 62
SECTION 609. Corporate Trustee Required; Eligibility . . . . . . . . 62
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SECTION 610. Resignation and Removal; Appointment of Successor . . . 63
SECTION 611. Acceptance of Appointment by Successor . . . . . . . . 64
SECTION 612. Merger, Conversion, Consolidation or Succession to
Business . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 613. Preferential Collection of Claims Against Company . . . 66
SECTION 614. Appointment of Authenticating Agent . . . . . . . . . . 71
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY . . . . . 73
SECTION 701. Company to Furnish Trustee Names and Addresses of
Holders . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 702. Preservation of Information; Communications to Holders 73
SECTION 703. Reports by Trustee . . . . . . . . . . . . . . . . . . 75
SECTION 704. Reports by Company . . . . . . . . . . . . . . . . . . 76
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE . . . . 77
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms . 77
SECTION 802. Successor Corporation Substituted . . . . . . . . . . . 79
SECTION 803. Opinion of Counsel to be Given Trustee . . . . . . . . 79
ARTICLE NINE
SUPPLEMENTAL INDENTURES . . . . . . . . . . . 79
SECTION 901. Supplemental Indentures Without Consent of Holders . . 79
SECTION 902. Supplemental Indentures with Consent of Holders . . . . 81
SECTION 903. Execution of Supplemental Indentures . . . . . . . . . 83
SECTION 904. Effect of Supplemental Indentures . . . . . . . . . . . 83
SECTION 905. Conformity with Trust Indenture Act . . . . . . . . . . 83
SECTION 906. Reference in Securities to Supplemental
Indentures . . . . . . . . . . . . . . . . . . . . . 83
SECTION 907. Notice of Supplemental Indenture . . . . . . . . . . . 84
ARTICLE TEN
COVENANTS . . . . . . . . . . . . . . . 84
SECTION 1001. Payment of Principal, Premium and Interest . . . . . . 84
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SECTION 1002. Maintenance of Office or Agency . . . . . . . . . . . . 84
SECTION 1003. Money for Securities Payments to Be Held in Trust . . . 86
SECTION 1004. Corporate Existence . . . . . . . . . . . . . . . . . . 88
SECTION 1005. Limitation on Liens on Common Stock of Designated
Subsidiaries . . . . . . . . . . . . . . . . . . . . . 88
SECTION 1006. Statement by Officers as to Default . . . . . . . . . . 88
SECTION 1007. Waiver of Certain Covenants . . . . . . . . . . . . . . 89
SECTION 1008. Payment of Additional Amounts . . . . . . . . . . . . . 89
SECTION 1009. Defeasance of Certain Obligations . . . . . . . . . . . 91
SECTION 1010. Calculation of Original Issue Discount. . . . . . . . . 94
ARTICLE ELEVEN
REDEMPTION OF SECURITIES . . . . . . . . . . . 94
SECTION 1101. Applicability of Article . . . . . . . . . . . . . . . 94
SECTION 1102. Tax Redemption; Special Tax Redemption . . . . . . . . 94
SECTION 1103. Election to Redeem; Notice to Trustee . . . . . . . . . 97
SECTION 1104. Selection by Trustee of Securities to Be Redeemed . . . 97
SECTION 1105. Notice of Redemption . . . . . . . . . . . . . . . . . 98
SECTION 1106. Deposit of Redemption Price . . . . . . . . . . . . . . 99
SECTION 1107. Securities Payable on Redemption Date . . . . . . . . . 99
SECTION 1108. Securities Redeemed in Part . . . . . . . . . . . . . . 100
ARTICLE TWELVE
SINKING FUNDS . . . . . . . . . . . . . . 101
SECTION 1201. Applicability of Article . . . . . . . . . . . . . . . 101
SECTION 1202. Satisfaction of Mandatory Sinking Fund Payments with
Securities . . . . . . . . . . . . . . . . . . . . . . 101
SECTION 1203. Redemption of Securities for Sinking Fund . . . . . . . 102
vi
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ARTICLE THIRTEEN
MEETINGS OF HOLDERS OF SECURITIES . . . . . . . . . 102
SECTION 1301. Purposes for Which Meetings May Be Called . . . . . . . 102
SECTION 1302. Call, Notice and Place of Meetings . . . . . . . . . . 102
SECTION 1303. Persons Entitled to Vote at Meetings . . . . . . . . . 103
SECTION 1304. Quorum; Action . . . . . . . . . . . . . . . . . . . . 103
SECTION 1305. Determination of Voting Rights; Conduct and Adjournment
of Meetings . . . . . . . . . . . . . . . . . . . . . . 104
SECTION 1306. Counting Votes and Recording Action of Meetings . . . . 105
vii
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture and all Securities issued hereunder,
except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles in the United States of America, 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 in the United States
of America 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.
Certain terms, used principally in Article Six, are defined in that
Article.
"Act", when used with respect to any Holder, has the meaning specified in
Section 104.
"Additional Amounts" has the meaning specified in Section 1008.
"Affected Security" has the meaning specified in Section 1102.
"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
2
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Authenticating Agent" means any Person authorized by the Trustee to act on
behalf of the Trustee to authenticate Securities.
"Authorized Newspaper" means a leading newspaper customarily published at
least once a day for at least five days in each calendar week and of general
circulation in New York City and in London and, so long as the Securities are
listed on the Stock Exchange and the Stock Exchange shall so require, in
Luxembourg or, if it shall be impracticable in the opinion of the Trustee to
make such publication, in another principal city in Western Europe. Such
publication is expected to be made in The Wall Street Journal (Eastern edition),
the Financial Times (London edition) and the Luxemburger Wort.
"Bearer Security" means any Security established pursuant to Section 201
which is payable to bearer.
"Board of Directors" means either the board of directors of the Company or
any committee of that board duly authorized to act hereunder or any directors
and/or officers of the Company to whom that board or committee shall have
delegated its authority.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means with respect to any Security, unless otherwise
specified in accordance with Section 301, any day, other than a Saturday or
Sunday, that meets each of the following applicable requirements: such day is
(a) not a day on which banking institutions in the Borough of Manhattan, The
City of New York are authorized or required by law, regulation or executive
order to close; (b) if the Security is denominated in a Foreign Currency other
than the ECU, (x) not a day on which banking institutions are authorized or
required by law or regulation to close in the principal financial center of the
country issuing the Foreign Currency and (y) a day on which banking institutions
in such principal financial center are carrying out transactions in such Foreign
Currency; (c) if the Security is denominated in ECU, (x) not a day on which
banking institutions are authorized or required by law or regulation to close in
Luxembourg and (y) an ECU clearing day, as determined by the ECU Banking
Association in Paris; and (d) if such Security is a LIBOR Security, a London
Banking Day.
"Cedel" means Cedel Bank, societe anonyme.
3
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, or, if at
any time after the execution of this instrument such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
"Company" means Xxxxxx Brothers Inc., a Delaware corporation, until a
successor corporation shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Company" shall mean each such
successor corporation.
"Company Request" or "Company Order" means, respectively, a written request
or order signed in the name of the Company by its Chairman of the Board, its
Chief Executive officer, its President or a Vice President, and by its
Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and
delivered to the Trustee.
"Component Currency" has the meaning specified in Section 311(e).
"Consolidated Net Worth" means consolidated assets minus consolidated
liabilities as calculated in accordance with generally accepted accounting
principles.
"Conversion Event" means, with respect to any Foreign Currency, (i) the
unavailability to the Company of such Foreign Currency for making payments
thereof due to the imposition of exchange controls or other circumstances beyond
the Company's control, (ii) the cessation of use of such Foreign Currency as a
unit of domestic exchange by the government or governments of the country or
countries which so used such currency or (iii) the cessation of use of such
Foreign Currency for the settlement of transactions by public institutions of or
within the international banking community.
"Corporate Trust Office" of the Trustee means the principal office of the
Trustee at which at any particular time its corporate trust business shall be
administered. Such office is set forth in Section 615 of the Indenture.
"corporation" includes corporations, associations, companies and business
trusts.
"coupon" means any interest coupon appertaining to a Bearer Security.
"Currency Determination Agent", with respect to Securities of any series,
means a Person (other than the Trustee) designated pursuant to Section 301 or
Section 312.
4
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Securities of any series issuable
or issued in the form of a global Security, 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 the Standard Provisions,
and thereafter "Depositary" shall mean or include each Person who is then a
Depositary hereunder, and if at any time there is more than one such Person,
"Depositary" as used with respect to the Securities of any such series shall
mean the Depositary with respect to the Securities of that series.
"Designated Subsidiary" means any present or future consolidated subsidiary
the Consolidated Net Worth of which constitutes at least 5 percent of the
Consolidated Net Worth of the Company.
"Determination Notice" has the meaning specified in Section 1102.
"Dollars" and the sign "$" mean the coin or currency of the United States
of America as at the time of payment is legal tender for the payment of public
and private debts.
"Dual Currency Security" means any Security as to which the Company has a
one time option of making all payments of principal (premium, if any) and
interest scheduled after the exercise of such option in a specified currency
other than the currency in which such Security is denominated, all as specified
in accordance with Section 301.
"ECU" means the European Currency Unit as defined and revised from time to
time by the Council of the European Communities.
"Election Date" has the meaning specified in Section 311(e).
"Euroclear" means Xxxxxx Guaranty Trust Company of New York, Brussels
office, or its successor, as operator of the Euroclear System.
"European Communities" means the European Economic Community, the European
Coal and Steel Community and the European Atomic Energy Community.
"Event of Default" has the meaning specified in Section 501.
"Exchange Date" has the meaning specified in Section 304.
5
"Floating Rate Security" means a Security which provides for the payment of
interest at a variable rate determined periodically by reference to an interest
rate index or any other index specified pursuant to Section 301.
"Foreign Currency" means any currency or composite currency actively
maintained as a recognized unit of domestic exchange by the government or
governments of any country or countries other than the United States.
"Global Exchange Agent" has the meaning specified in Section 304.
"Government Obligations" means securities which are (i) direct obligations
of the government which issued the currency in which the Securities of such
series are payable or (ii) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the government which issued the
currency in which the Securities of such series are payable, the payment of
which is unconditionally guaranteed by such government, which, in either case,
are full faith and credit obligations of such government and are not callable or
redeemable at the option of the issuer thereof.
"Holder", when used with respect to any Security, means in the case of a
Registered Security the Person in whose name the Security is registered in the
Security Register and in the case of a Bearer Security the bearer thereof and,
when used with respect to any coupon, means the bearer thereof.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof and shall
include the terms of particular series of Securities established as contemplated
by Section 301.
"Indexed Security" means any Security as to which the amount of payments of
principal, premium, if any, and/or interest due thereon is determined with
reference to the rate of exchange between the currency or currency unit in which
the Security is denominated and any other specified currency or currency unit,
to the relationship between two or more currencies or currency units, to the
price of one or more specified securities or commodities, to one or more
securities or commodities exchange indices or other indices or by other similar
methods or formulas, all as specified in accordance with Section 301.
"interest", when used with respect to an Original Issue Discount Security
which by its terms bears interest only at Maturity, means interest payable at
Maturity.
6
"Interest Payment Date", when used with respect to any Security, means the
Stated Maturity of an instalment of interest on such Security.
"LIBOR" means, with respect to any series of Securities, the rate specified
as LIBOR for such Securities in accordance with Section 301.
"LIBOR Security" means any Security which bears interest at a floating rate
calculated with reference to LIBOR.
"London Banking Day" means, with respect to any LIBOR Security, any day on
which dealings in deposits in the currency in which such LIBOR Security is
denominated are transacted in the London interbank market.
"mandatory sinking fund payment" has the meaning specified in Section 1201.
"Market Exchange Rate" with respect to any Foreign Currency on any date
means, unless otherwise specified in accordance with Section 301, the noon
buying rate in The City of New York for cable transfers in such Foreign Currency
as certified for customs purposes by the Federal Reserve Bank of New York for
such Foreign Currency on the second Business Day prior to such date (or, in the
event such buying rate is not then available, the most recently available buying
rate for such Foreign Currency).
"Maturity", when used with respect to any Security, means the date on which
the principal of such Security or an instalment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, the Chief Executive Officer, any Vice Chairman of the Board, the
President or a Vice President, and by the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary of the Company, and delivered to the
Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for (including an employee of) the Company, and who shall be acceptable to the
Trustee.
"optional sinking fund payment" has the meaning specified in Section 1201.
"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 and
which is designated as an Original Issue Discount Security pursuant to Section
301.
7
"Outstanding" when used with respect to Securities means, as of the date of
determination, all Securities theretofore authenticated and delivered under this
Indenture, except:
(a) Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(b) Securities or portions thereof for whose payment or
redemption money in the necessary amount and in the required currency or
currency unit has been theretofore deposited with the Trustee or any Paying
Agent (other than the Company or any other obligor on the Securities) in
trust for the Holders of such Securities and any related coupons or shall
have been set aside and segregated in trust by the Company or any other
obligor on the Securities (if the Company or any other obligor on the
Securities shall act as its own Paying Agent); provided, however, that, if
such Securities or portions thereof are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made; and
(c) Securities which have been paid pursuant to Section 306 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture other than any such
Securities in respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Securities are held by a bona
fide purchaser in whose hands such Securities are valid obligations of the
Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of Securities Outstanding have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, (i) Securities
owned by the Company or any other obligor upon the Securities or any Affiliate
of the Company or such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which the Trustee actually knows to be so
owned shall be so disregarded (Securities so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or such other obligor), and (ii) the
principal amount of any Indexed Security that shall be deemed to be Outstanding
for such purposes shall be deemed to be the face amount thereof unless the
specified terms of any such Indexed Security provide otherwise and the principal
8
amount of any Dual Currency Security shall be the amount that would be due and
payable with respect to such Dual Currency Security as of the date of such
determination upon a declaration of acceleration pursuant to Section 502.
"Overdue Rate", when used with respect to any series of the Securities,
means the rate designated as such in or pursuant to the Board Resolution or the
supplemental indenture, as the case may be, relating to such series as
contemplated by Section 301.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest, if any, on any Securities on
behalf of the Company.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any series,
means the place or places where the principal of (and premium, if any) and
interest, if any, on the Securities of that series are payable as specified as
contemplated by Section 301 or, if not so specified, as specified in Section
1002.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security, and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen coupon
appertains, as the case may be.
"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, in the currency or currency unit in which such Security is
denominated or which is otherwise provided for pursuant to this Indenture, at
which it is to be redeemed pursuant to the resolution of the Board of Directors
or the supplemental indenture, as the case may be, with respect to the
Securities of such series as contemplated by Section 301, exclusive of interest
accrued and unpaid to the Redemption Date.
9
"Registered Holder" means the Person in whose name a Registered Security is
registered in the Security Register.
"Registered Security" means any Security established pursuant to Section
201 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Interest Payment Date
on the Registered Securities of any series means the date specified for that
purpose as contemplated by Section 301.
"Responsible Officer", when used with respect to the Trustee, means the
person or persons set forth in Section 605 of the Indenture.
"Restricted Period" has the meaning set forth in United States Treasury
Regulation Section 1.163-5(c)(2)(i)(D)(7) (generally, the first 40 days after
the closing date and, with respect to unsold allotments, until sold).
"Securities" means any Securities authenticated and delivered under this
Indenture.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest on the
Registered Securities of any series means a date fixed by the Trustee pursuant
to Section 307.
"Stated Maturity", when used with respect to any Security or any instalment
of principal thereof or interest thereon, means the date specified in such
Security or a coupon representing such instalment of interest as the fixed date
on which the principal of such Security or such instalment of principal or
interest is due and payable.
"Stock Exchange" means the Luxembourg Stock Exchange.
"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 as
long as no senior class of stock has such voting power by reason of any
contingency.
"Trustee" shall mean the Person named as trustee in the first paragraph of
this Indenture as originally executed 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
10
hereunder, and "Trustee" as used with respect to the Securities of any series in
any Article of this Indenture 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, as in force at the date as of which this
instrument was executed, except as provided in Section 905.
"United States" means the United States of America (including the States
and District of Columbia) and its possessions (including Puerto Rico and the
U.S. Virgin Islands, Guam, American Samoa, Wake Island and Northern Mariana
Islands).
"United States Alien" has the meaning specified in Section 1008.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
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 1006) 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
11
investigation as is necessary to enable him to express an informed opinion
as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon 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.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders may
be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent duly appointed in writing.
If Securities of a series are issuable as Bearer Securities, any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Holders of such series may,
alternatively, be embodied in and evidenced by the record of
12
Holders of Securities of such series voting in favor thereof, either in person
or by proxies duly appointed in writing, at any meeting of Holders of Securities
of such series duly called and held in accordance with the provisions of Article
Thirteen, or a combination of such instruments and any such record. Except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments or record or both are delivered to the Trustee
and, where it is hereby expressly required, to the Company. Such instrument or
instruments and any such record (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments or so voting at any such meeting. Proof of
execution of any such instrument or of a writing appointing any such agent, or
of the holding by any Person of a Security, shall be sufficient for any purpose
of this Indenture and (subject to Section 601) conclusive in favor of the
Trustee and the Company, if made in the manner provided in this Section. The
record of any meeting of holders of Securities shall be proved in the manner
provided in Section 1306.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The principal amount and serial numbers of Registered Securities held
by any Person, and the date of holding the same, shall be proved by the Security
Register.
(d) The principal amount and serial numbers of Bearer Securities held by
any Person, and the date of holding the same, may be proved by the production of
such Bearer Securities or by a certificate executed, as depositary, by any trust
company, bank, banker or other depositary, wherever situated, if such
certificate shall be deemed by the Trustee to be satisfactory, showing that at
the date therein mentioned such Person had on deposit with such depositary, or
exhibited to it, the Bearer Securities therein described, or such facts may be
proved by the certificate or affidavit of the Person holding such Bearer
Securities, if such certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Company may assume that such ownership of any
Bearer Security continues until (1) another certificate or affidavit bearing a
later date issued in respect of the same Bearer Security is produced, (2) such
Bearer Security is produced to the Trustee by some other Person, (3) such Bearer
Security is surrendered in exchange for a
13
Registered Security, or (4) such Bearer Security is no longer Outstanding. The
principal amount and serial numbers of Bearer Securities held by any Person, and
the date of holding the same, may also be proved in any other manner which the
Company and the Trustee deem sufficient.
(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, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, (1) such
notice shall be sufficiently given (unless otherwise herein expressly provided)
to Holders of Registered Securities if in writing and mailed, first-class
postage prepaid, to each such 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; and
(2) such notice shall be sufficiently given (unless otherwise herein expressly
provided) to Holders of Bearer Securities if published in an Authorized
Newspaper on a Business Day at least twice, the first such publication to be not
earlier than the earliest date, and not later than the latest date, prescribed
for the giving of such notice.
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In any case where notice to Registered Holders is given by mail, neither
the failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder of a Registered Security shall affect the sufficiency of such
notice with respect to other Holders of Registered Securities or the sufficiency
of any notice to Holders of Bearer Securities given as provided herein. In case
by reason of the suspension of regular mail service or by reason of any other
cause it shall be impracticable to give such notice to Holders of Registered
Securities by mail, then such notification as shall be made with the approval of
the Trustee shall constitute a sufficient notification for every purpose
hereunder.
In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be made
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither the failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of any notice to Holders
of Registered Securities given as provided herein.
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.
SECTION 107. Language of Notices, Etc.
Any request, demand, authorization, direction, notice, consent or waiver
required or permitted under this Indenture shall be in the English language, and
any published notice may also be in an official language of the country of
publication.
SECTION 108. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with the duties
imposed by any of Sections 310 through 317, inclusive, of the Trust Indenture
Act through the operation of Section 318(c) thereof, such imposed duties shall
control.
SECTION 109. Effect of Headings and Table of Contents.
15
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 110. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
SECTION 111. Separability Clause.
In case any provision in this Indenture or in the Securities or coupons
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 112. Governing Law.
This Indenture and the Securities and coupons shall be governed by and
construed in accordance with the laws of the State of New York, without regard
to the conflict of laws principles thereof.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of a Security of any series shall not be a Business Day at the relevant
Place of Payment, then (notwithstanding any other provision of this Indenture or
of the Securities or coupons) payment of interest, if any, or principal (and
premium, if any) with respect to such Security 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.
SECTION 114. Execution In Counterparts.
This Indenture may be executed in any number of counterparts, each of which
shall be an original, but such counterparts shall together constitute but one
and the same instrument.
SECTION 115. Immunity of Incorporators, Stockholders, Officers
16
and Directors.
No recourse shall be had for the payment of the principal of (and premium,
if any) or the interest, if any, on any Security or coupon of any series, or for
any claim based thereon, or upon any obligation, covenant or agreement of this
Indenture, against any incorporator, stockholder, officer or director, as such,
past, present or future, of the Company or of any successor corporation, either
directly or indirectly through 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; it being expressly agreed and understood
that this Indenture and all the Securities and coupons of each series are solely
corporate obligations, and that no personal liability whatever shall attach to,
or is incurred by, any incorporator, stockholder, officer or director, past,
present or future, of the Company or of any successor corporation, either
directly or indirectly through the Company or any successor corporation, because
of the incurring of the indebtedness hereby authorized or under or by reason of
any of the obligations, covenants or agreements contained in this Indenture or
in any of the Securities or coupons of any series, or to be implied herefrom or
therefrom; and that all such personal liability is hereby expressly released and
waived as a condition of, and as part of the consideration for, the execution of
this Indenture and the issue of the Securities and coupons of each series.
SECTION 116. Certain Matters Relating to Currencies.
Each reference to any currency or currency unit in any Security, or in the
Board Resolution or supplemental indenture relating thereto, shall mean only the
referenced currency or currency unit and no other currency or currency unit.
The Trustee shall segregate moneys, funds and accounts held by the Trustee
in one currency or currency unit from any moneys, funds or accounts held in any
other currencies or currency units, notwithstanding any provision herein which
would otherwise permit the Trustee to commingle such amounts.
For the purposes of calculating the principal amount of Securities of any
series payable in a Foreign Currency or currency unit for any purpose under this
Indenture, the principal amount of such Securities at any time outstanding shall
be deemed to be that amount of Dollars that could be obtained for such principal
amount on the basis of a spot rate of exchange specified to the Trustee for such
series in an Officer's Certificate for such Foreign Currency or currency unit
into Dollars as of the date of any such calculation.
SECTION 117. Calculation of Principal Amount.
17
For the purposes of calculating the principal amount of any Security
denominated in a Foreign Currency for any purpose under this Indenture, the
principal amount of such Security at any time outstanding shall be deemed to be
that amount of Dollars that could be obtained for such principal amount on the
basis of a spot rate of exchange specified to the Trustee for such Security in
an Officers' Certificate for such Foreign Currency into Dollars as of the date
of any such calculation.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Registered Securities, if any, of each series and the Bearer
Securities, if any, of each series and related coupons shall be in substantially
the form (including global form) as shall be established by or pursuant to a
Board Resolution or in one or more indentures supplemental hereto, in each case
with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted 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 any law or with any rule or regulation
made pursuant thereto or with any rules of any securities exchange or to conform
to usage or as may, consistently herewith, be determined by the officers
executing such Securities or coupons, as evidenced by their execution of the
Securities or coupons. If temporary Securities of any series are issued in
global form as permitted by Section 304, the form thereof shall be established
as provided in the preceding sentence. If the forms of Securities or coupons of
any series (or any such temporary global Security) are established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 303 for the authentication and delivery of such
Securities (or any such temporary global Security) or coupons.
Unless otherwise specified as contemplated by Section 301, Securities in
bearer form shall have interest coupons attached.
The definitive Securities and coupons, if any, 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 or
coupons, as evidenced by their execution thereof.
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SECTION 202. Form of Trustee's Certificate of Authentication.
The Certificate of Authentication on all Securities shall be in
substantially the following form:
"This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
__________________________,
as Trustee
By________________________
Authorized Signatory
SECTION 203. Securities in Global Form.
If Securities of a series are issuable in global form, any such Security
may provide that it shall represent the aggregate amount of Outstanding
Securities from time to time endorsed thereon and may also provide that the
aggregate amount of Outstanding Securities represented thereby may from time to
time be reduced to reflect exchanges. Any endorsement of a Security in global
form to reflect the amount, or any increase or decrease in the amount, of
Outstanding Securities represented thereby shall be made in such manner and by
such Person or Persons as shall be specified therein. Any instructions by the
Company with respect to a Security in global form, after its initial issuance,
shall be in writing but need not comply with Section 102.
Global Securities may be issued in either registered or bearer form and in
either temporary or permanent form.
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution, or established in one or more
indentures supplemental hereto, prior to the issuance of Securities of any
series,
19
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other series of
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 Section 304, 305, 306, 906 or 1108);
(3) whether Securities of the series are to be issuable as Registered
Securities, Bearer Securities or both;
(4) the date or dates (or manner of determining the same) on which
the principal of the Securities of the series is payable (which, if so
provided in such Board Resolution or supplemental indenture, may be
determined by the Company from time to time and set forth in the Securities
of the series issued from time to time);
(5) the rate or rates (or manner of determining the same) at which
the Securities of the series shall bear interest, if any, and the date or
dates from which such interest shall accrue (which, in either case or both,
if so provided in such Board Resolution or supplemental indenture, may be
determined by the Company from time to time and set forth in the Securities
of the series issued from time to time), the Interest Payment Dates on
which such interest shall be payable (or the manner of determining the
same) and the Regular Record Date for the interest payable on any
Registered Securities on any Interest Payment Date and the extent to which,
or the manner in which, any interest payable on a temporary global Security
on an Interest Payment Date will be paid if other than in the manner
provided in Section 307;
(6) the place or places where, subject to the provisions of Section
1002, the principal of and any premium and any Interest on Securities of
the series shall be payable, any Registered Securities of that series may
be surrendered for registration of transfer, any Securities of the series
may be surrendered for exchange and notices and demands to or upon the
Company in respect of the Securities of the series and this Indenture may
be served;
(7) if Section 311(b) applies, the Election Date (which shall not be
less than 15 days before the payment date);
20
(8) the price or prices at which, and the currency or currency unit
in which, the Securities of the series are payable, and the period or
periods within 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, pursuant to any sinking fund or otherwise;
(9) the obligation, if any, of the Company to redeem, purchase or
repay Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the price or prices at
which, and the currency or currency unit in which, the Securities of the
series are payable, and the period or periods within which and the terms
and conditions upon which Securities of the series shall be redeemed,
purchased or repaid, as a whole or in part, pursuant to such obligation;
(10) if the coin or currency in which the Securities shall be
issuable is Dollars, the denominations in which any Registered Securities
of the series shall be issuable, if other than denominations of $1,000 and
any integral multiple thereof and the denominations in which any Bearer
Securities of the series shall be issuable if other than the denomination
of $5,000;
(11) the date as of which any Bearer Securities of the series and any
global Security representing Outstanding Securities of the series shall be
dated if other than the date of original issuance of the first Security of
the series to be issued;
(12) 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;
(13) if other than Dollars, the coin or currency or currency unit in
which payment of the principal of (and premium, if any) and interest, if
any, on the Securities of the series shall be made or in which the
Securities of the series shall be denominated and the particular provisions
applicable thereto in accordance with, in addition to or in lieu of the
provisions of Section 311;
(14) if the principal of (and premium, if any) or interest, if any,
on the Securities of the series are to be payable, at the election of the
Company or a Holder thereof, in a coin or currency or currency unit other
than that in which the Securities are denominated
21
or stated to be payable, in accordance with, in addition to or in lieu of
the provisions of Section 311, the period or periods within which, and the
terms and conditions upon which, such election may be made, and the time
and manner of determining the exchange rate between the currency or
currency unit in which the Securities are denominated and the currency or
currency unit in which the Securities are stated to be payable;
(15) the designation of the original Currency Determination Agent, if
any;
(16) if the Securities of such series are issuable as Indexed
Securities, the manner in which the amount of payments of principal
(premium, if any) and/or interest due thereon shall be determined;
(17) if the Securities of such series may be converted into or
exchanged for other securities of the Company or any other Persons, the
terms and conditions pursuant to which the Securities of such series may be
converted or exchanged;
(18) if the principal of (or premium, if any) or interest, if any, on
the Securities of such series are to be payable, at the election of the
Company or a Holder thereof, in securities or other property, the type and
amount of such securities or other property, or the method by which such
amount shall be determined, and the periods within which, and the terms and
conditions upon which, any such election may be made;
(19) the applicable Overdue Rate, if any;
(20) any addition to, or modification or deletion of, any Event of
Default or any covenant of the Company specified herein with respect to the
Securities of the series;
(21) if the Securities of such series do not bear interest, the
applicable dates for purposes of Section 701;
(22) if other than as set forth in Section 401, provisions for the
satisfaction and discharge of this Indenture;
(23) the application, if any, of Section 1008 and 1009 to the
Securities of the series;
(24) whether the Securities of the series shall be issued in whole or
in part in the form of a global Security or Securities and, in such case,
the Depositary and Global Exchange Agent, if any, for such
22
global Security or Securities, whether such global form shall be permanent
or temporary and, if applicable, the Exchange Date;
(25) if Securities of the series are to be issuable initially in the
form of a temporary global Security, the circumstances under which the
temporary global Security may be exchanged for permanent Securities and
whether the permanent Securities will be Registered Securities and/or
Bearer Securities and will be in certificated and/or global form and
whether interest in respect of any portion of such global Security payable
in respect of an Interest Payment Date prior to the Exchange Date shall be
paid to any clearing organization with respect to a portion of such global
Security held for its account and, in such event, the terms and conditions
(including any certification requirements) upon which any such interest
payment received by a clearing organization will be credited to the Persons
entitled to interest payable on such Interest Payment Date if other than as
provided in this Article Three;
(26) if the Securities of such series are issuable as Dual Currency
Securities, the specified currency other than the denominated currency in
which all payments of principal (premium, if any) and interest may be made
at the option of the Company, and any other special terms with respect to
such Securities (which terms shall not be inconsistent with the provisions
of this Indenture); and
(27) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and the coupons appertaining to any Bearer
Securities of such series shall be substantially identical except as to
denomination, rate of interest, Stated Maturity and the date from which
interest, if any, shall accrue, which terms, as set forth above, may be
determined by the Company from time to time as to Securities of a series if so
provided in or established pursuant to the authority granted in a Board
Resolution or in any such indenture supplemental hereto, and except as may
otherwise be provided in or pursuant to such Board Resolution and set forth in
such Officers' Certificate (subject to Section 303) or in any such indenture
supplemental hereto. All Securities of any one series need not be issued at the
same time, and unless otherwise provided, a series may be reopened for issuance
of additional Securities of such series.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution, a copy of an
23
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.
Unless otherwise provided with respect to any series of Securities as
contemplated by Section 301, any Registered Securities of a series shall be
issuable in denominations of $1,000 and any integral multiple thereof, any
Bearer Securities of a series shall be issuable in the denomination of $5,000,
and Registered and Bearer Securities shall be payable in Dollars.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities and any related coupons shall be executed on behalf of the
Company by its Chairman of the Board, any Vice Chairman of the Board, its
President, one of its Vice Presidents, its Chief Financial Officer or its
Treasurer, under its corporate seal reproduced thereon attested by its Secretary
or one of its Assistant Secretaries. The signature of any of these officers on
the Securities may be manual or facsimile.
Securities and coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such office at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series, together with any
coupons appertaining thereto, executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and make available for delivery such Securities;
provided, however, that, in connection with the sale of a Security during the
Restricted Period, no Bearer Security in definitive form shall be mailed or
otherwise delivered to any location in the United States; and provided, further
that a Bearer Security in definitive form may be delivered only if the Person
entitled to receive such Bearer Security shall have furnished a certificate
substantially in the form set forth in Exhibit A to this Indenture, dated no
earlier than 15 days prior to the date on which such Bearer Security is
delivered, unless a certificate substantially in the form set forth in Exhibit A
to this Indenture has previously been furnished pursuant to Section 304. If any
Security shall be represented by a permanent global Security, then, for purposes
of
24
this Section and Section 304, the notation of a beneficial owner's interest
therein upon original issuance of such Security or upon exchange of a portion of
a temporary global Security shall be deemed to be delivery in definitive form by
the Company of such beneficial owner's interest in such permanent global
Security. Except as permitted by Section 306 or 307, the Trustee shall not
authenticate and deliver any Bearer Security unless all appurtenant coupons for
interest then matured have been detached and cancelled. If all the Securities
of any one series are not to be issued at one time and if a Board Resolution or
supplemental indenture relating to such series shall so permit, such Company
Order may set forth procedures acceptable to the Trustee for the issuance of
such Securities, including procedures with respect to interest rate, Stated
Maturity, date of issuance and date from which interest, if any, shall accrue.
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 shall be fully protected in relying upon (i) a Board
Resolution or an executed supplemental Indenture, if any, and (ii) an Opinion of
Counsel stating,
(a) if the form of such Securities and any coupons have been
established by or pursuant to Board Resolution or supplemental indenture as
permitted by Section 201, that such forms have been established in
conformity with the provisions of this Indenture;
(b) if the terms of such Securities and any coupons have been
established by or pursuant to Board Resolution or supplemental indenture as
permitted by Section 301, that such terms have been established in
conformity with the provisions of this Indenture;
(c) that such Securities, together with any coupons appertaining
thereto, when authenticated and delivered by the Trustee and issued by the
Company in the manner and subject to any conditions specified in such
Opinion of Counsel, will constitute valid and legally binding obligations
of the Company, enforceable in accordance with their terms, subject to the
effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors'
rights generally, general principles of equity (whether considered in a
proceeding at law or in equity) and by an implied covenant of good faith
and fair dealing; and
(d) that the issuance of such Securities and any related coupons will
not conflict with or result in a breach of the terms or provisions of the
charter or by-laws of the Company, or any indenture, mortgage or other
agreement known to such counsel by which the Company is bound.
25
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the time
of authentication of each Security of such series if such documents are
delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued.
Each Registered Security shall be dated the date of its authentication, and
unless otherwise specified as contemplated by Section 301, each Bearer Security
(including any temporary or permanent Bearer Security in global form) shall be
dated as of the date of original issuance of the first Security of such series
to be issued.
No Security or coupon shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Security
a certificate of authentication substantially in the form provided for herein
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.
Any temporary global Security and any permanent global Security shall,
unless otherwise provided therein, be delivered to a Depositary designated
pursuant to Section 301, for the benefit, in the case of a global Security in
bearer form, of Euroclear and Cedel, and for credit to the respective accounts
of the beneficial owners of such Securities (or to such other accounts as they
may direct). With respect to temporary global Securities in bearer form, on or
prior to the last day of the Restricted Period, the Company shall deliver to the
Trustee or the Global Exchange Agent as applicable definitive Bearer Securities
and definitive Registered Securities, executed by the Company.
Each Depositary designated pursuant to Section 301 for a global Security in
registered form must, at the time of its designation and at all times while it
serves as Depositary, be a clearing agency registered under the Securities
Exchange Act of 1934 and any other applicable statute or regulation.
26
SECTION 304. Temporary Securities; Exchange of Temporary Global
Securities and Permanent Global Securities in
Bearer Form.
Pending the preparation of permanent Securities of any series, the Company
may execute, and upon Company Order the Trustee shall authenticate and make
available for delivery, temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the permanent Securities in lieu of which they are
issued, in registered form or, if authorized, in bearer form with one or more
coupons or without coupons, and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities may
determine, as evidenced by their execution of such Securities. Any such
temporary Securities may be in global form, representing such of the Outstanding
Securities of such series as shall be specified therein.
Except in the case of temporary global Securities in bearer form (which
shall be exchanged in accordance with the provisions of the following
paragraphs), if temporary Securities of any series are issued, the Company will
cause permanent Securities of that series to be prepared within a reasonable
period of time after the issue date of such temporary Securities. After the
preparation of permanent Securities of such series, the temporary Securities of
such series shall be exchangeable for permanent Securities of such series and of
a like Stated Maturity and with like terms and provisions upon surrender of the
temporary Securities of such series at the office or agency of the Company in a
Place of Payment for that series, without charge to the Holder. Upon surrender
for cancellation of any one or more temporary Securities of any series the
Company shall execute and (in accordance with a Company Order delivered at or
prior to the authentication of the first permanent Security of such series) the
Trustee shall authenticate and make available for delivery in exchange therefor
a like principal amount of permanent Securities of the same series of authorized
denominations and of a like Stated Maturity and with like terms and provisions;
provided, however, unless otherwise specified pursuant Section 301, no permanent
Bearer Securities shall be delivered in exchange for a temporary Registered
Security; and provided, further, that permanent Bearer Securities shall be
delivered in exchange for a temporary global Security in bearer form only in
compliance with the conditions set forth in Section 303 and this Section 304.
Until exchanged as herein above provided, the temporary Securities of any series
shall in all respects be entitled to the same benefits under this Indenture as
permanent Securities of the same series and tenor authenticated and delivered
hereunder.
Within a reasonable period of time after the Restricted Period but in any
event not later than the date specified in or
27
determined pursuant to the terms of any temporary global Security in bearer
form, the Securities represented by any such temporary global Security in bearer
form may be exchanged for (i) in whole, definitive Bearer Securities or (ii) in
whole, Securities to be represented thereafter by one or more permanent global
Securities in bearer form, without interest coupons, and/or (iii) in whole or in
part, definitive Registered Securities (the date of such exchange, the "Exchange
Date"); provided, however, that if definitive Bearer Securities have previously
been issued in exchange for an interest in a permanent global Security in bearer
form representing Securities of the same series, then (unless the Securities
which would continue to be represented by any such permanent global Security in
bearer form would be regarded by Euroclear and Cedel as fungible with any such
definitive Bearer Securities issued in partial exchanges for interests in any
such permanent global Security) interests in such temporary global Security in
bearer form shall only thereafter be exchangeable, in whole, for definitive
Bearer Securities, definitive Registered Securities or any combination thereof;
provided, further, however, that if definitive Bearer Securities have previously
been issued in exchange for interests in a temporary global Security in bearer
form representing Securities of the same series, then interests in any such
temporary global Security shall not be exchangeable for interests in a permanent
global Security in bearer form of the series (unless the Securities to be
represented by any such permanent global Security in bearer form would be
regarded by Euroclear and Cedel as fungible with such previously issued
definitive Bearer Securities). On the Exchange Date any such temporary global
Security shall be surrendered by the Depositary to the Trustee as the Company's
agent for such purpose, or the agent appointed by the Company pursuant to
Section 301 to effect the exchange of any such temporary global Security for
permanent Securities (the "Global Exchange Agent"), and following such
surrender, the Trustee or the Global Exchange Agent (as authorized by the
Trustee as an Authenticating Agent pursuant to Section 614) shall (1) endorse
any such temporary global Security to reflect the reduction of its principal
amount by an equal aggregate principal amount of such permanent Securities being
registered, (2) endorse the applicable permanent global Security in bearer form,
if any, to reflect the initial amount, or an increase in the amount of
Securities represented thereby, (3) manually authenticate such definitive Bearer
Securities, definitive Registered Securities or permanent global Security, as
the case may be, (4) make such definitive Bearer Securities or definitive
Registered Securities, as the case may be, available for delivery to the Holder
thereof or, as the case may be, make available for delivery such permanent
global Security in bearer form to the Depositary to be held outside the United
States for the accounts of Euroclear and Cedel, for credit to the respective
accounts at Euroclear and Cedel, designated by or on behalf of the beneficial
owners of such Securities (or to such other accounts as they may direct) and (5)
redeliver such temporary global Security to the Depositary, unless such
temporary global Security shall have been
28
cancelled in accordance with Section 309 hereof provided, however, that, unless
otherwise specified in such temporary global Security or unless a certificate
substantially in the form set forth in Exhibit B to this Indenture has
previously been provided pursuant to this Section 304, upon such presentation by
the Depositary, such temporary global Security shall be accompanied by a
certificate dated the Exchange Date, or a subsequent date and signed by
Euroclear as to the portion of such temporary global Security held for its
account then to be exchanged for definitive Bearer Securities, definitive
Registered Securities or Securities represented by one or more permanent global
Securities in bearer form, as the case may be, and a certificate dated the
Exchange Date or a subsequent date and signed by Cedel, as to the portion of
such temporary global Security held for its account then to be exchanged for
definitive Bearer Securities, definitive Registered Securities or Securities
represented by one or more permanent global Securities in bearer form, as the
case may be, each substantially in the form set forth in Exhibit B to this
Indenture. Each certificate substantially in the form of Exhibit B hereto of
Euroclear or Cedel, as the case may be, shall be based on certificates of the
account holders listed in the records of Euroclear or Cedel, as the case may be,
as being entitled to all or any portion of the applicable temporary global
Security. An account holder of Euroclear or Cedel, as the case may be, desiring
to effect the exchange of an interest in a temporary global Security in bearer
form for definitive Bearer Securities, definitive Registered Securities or
Securities represented by one or more permanent global Securities in bearer
form, as the case may be, shall instruct Euroclear or Cedel, as the case may be,
to request such exchange on its behalf and shall deliver to Euroclear or Cedel,
as the case may be, a certificate substantially in the form of Exhibit A hereto
and dated no earlier than 15 days prior to the Exchange Date.
The delivery to the Trustee or the Global Exchange Agent by Euroclear or
Cedel of any certificate substantially in the form of Exhibit B hereto may be
relied upon by the Company and the Trustee or the Global Exchange Agent as
conclusive evidence that a corresponding certificate or certificates has or have
been delivered to Euroclear or to Cedel, as the case may be, pursuant to the
terms of this Indenture.
At any time after the last day of the Restricted Period, upon 30 days'
notice to the Trustee or the Global Exchange Agent by Euroclear or Cedel, as the
case may be, acting at the request of or on behalf of the beneficial owner,
Securities represented by a permanent global Security in bearer form may be
exchanged in whole for definitive Bearer Securities or in whole or in part for
definitive Registered Securities and the Trustee or the Global Exchange Agent
shall authenticate and make available for delivery, in exchange for each portion
of such permanent global Security, an equal aggregate principal amount of
definitive Securities of the same series of authorized
29
denominations and of like tenor as the portion of such permanent global Security
to be exchanged, which, unless the Securities of the series are not issuable
both as Bearer Securities and as Registered Securities, as contemplated by
Section 301, shall be in the form of Bearer Securities or Registered Securities,
or any combination thereof, as shall be specified by the beneficial owner
thereof; provided, however, that if definitive Bearer Securities are issued in
partial exchange for Securities represented by such a permanent global Security
or by a temporary global Security in bearer form of the same series, such
issuance shall (unless the Securities which would continue to be represented by
such permanent global Security would be regarded by Euroclear and Cedel as
fungible with any such definitive Bearer Securities issued in partial exchange
for Securities represented by any such permanent global Security or any such
temporary global Security of the same series) give rise to the exchange of such
permanent global Security in whole for, at the option of the Holders entitled
thereto, definitive Bearer Securities, definitive Registered Securities or any
combination thereof. On or prior to the thirtieth day following receipt by the
Trustee or the Global Exchange Agent of such notice with respect to the exchange
of such Securities or, if such day is not a Business Day, the next succeeding
Business Day, the permanent global Security shall be surrendered by the
Depositary to the Trustee or the Global Exchange Agent, as the Company's agent
for such purpose, to be so exchanged for definitive Securities following such
surrender, upon the request of Euroclear or Cedel, as the case may be, and the
Trustee or the Global Exchange Agent shall (1) endorse the applicable permanent
global Security to reflect the reduction of its principal amount by the
aggregate principal amount of such definitive Securities being requested, (2)
cause the terms of such Securities and coupons, if any, to be entered on one or
more definitive Bearer Securities and/or definitive Registered Securities, as
the case may be, (3) manually authenticate such definitive Securities and (4)
with respect to definitive Bearer Securities, make available for delivery such
definitive Securities outside the United States to Euroclear or Cedel, as the
case may be, for or on behalf of the beneficial owner thereof, in exchange for a
portion of such permanent global Security.
Unless otherwise specified in any such temporary global Security or
permanent global Security in bearer form, any such exchange shall be made free
of charge to the beneficial owners of such temporary global Security or
permanent global Security, except that a Person receiving definitive Securities
must bear the cost of insurance, postage, transportation and the like in the
event that such Person does not take delivery of such definitive Securities in
person at the offices of Euroclear or Cedel or at the Corporate Trust Office of
the Trustee or at the office or agency in a Place of Payment for Securities of
such series, as the case may be. Definitive Securities in bearer form to be
delivered in exchange for any portion of a temporary global
30
Security or a permanent global Security in bearer form shall be delivered only
outside the United States.
Until exchanged in full as herein above provided, any temporary global
Security or permanent global Security in bearer form shall in all respects be
entitled to the same benefits under this Indenture as definitive Bearer
Securities of the same series and tenor authenticated and delivered hereunder,
except that, unless otherwise specified as contemplated by Section 301, interest
payable on any such temporary global Security on an Interest Payment Date for
Securities of such series occurring prior to the applicable Exchange Date shall
be payable to Euroclear and Cedel on such Interest Payment Date only upon
delivery by Euroclear and Cedel to the Trustee or the Global Exchange Agent of a
certificate or certificates substantially in the form set forth in Exhibit B to
this Indenture, for credit without further interest on or after such Interest
Payment Date to the respective accounts of the Persons who are the beneficial
owners of such temporary global Security on such Interest Payment Date and who
have each delivered to Euroclear or Cedel, as the case may be, a certificate
substantially in the form set forth in Exhibit A to this Indenture.
Any definitive Bearer Security authenticated and made available for
delivery by the Trustee in exchange for a portion of a temporary global Security
in bearer form or a permanent global Security in bearer form shall not bear a
coupon for any interest which shall theretofore have been duly paid by the
Trustee to Cedel or Euroclear or by the Company to the Trustee in accordance
with the provisions of this Section 304.
SECTION 305. Registration, Registration of Transfer and
Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Registered Securities and of transfers of Registered Securities.
The Trustee is hereby appointed Security Registrar for the purpose of
registering Registered Securities and transfers of Registered Securities as
herein provided.
Upon surrender for registration of transfer of any Registered Security of
any series at the office or agency in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and make available for
delivery, in the name of the designated transferee or transferees, one or more
new Registered Securities of the same series, of any authorized denominations
and in a like aggregate principal amount and of a like Stated Maturity and with
like terms and conditions.
31
Except as set forth below, at the option of the Holder, Registered
Securities of any series may be exchanged for other Registered Securities of the
same series, of any authorized denominations and in a like aggregate principal
amount and of a like Stated Maturity and with like terms and conditions, 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 make available for delivery, the Securities
which the Holder making the exchange is entitled to receive. Except as
otherwise specified pursuant to Section 301, Registered Securities may not be
exchanged for Bearer Securities.
Notwithstanding any other provision of this Section or Section 304, unless
and until it is exchanged in whole or in part for Registered Securities in
definitive form, a global Security representing all or a portion of the
Registered Securities of a series may not be transferred except as a whole by
the Depositary for such series to a nominee of such Depositary or by a nominee
of such Depositary to such Depositary or another nominee of such Depositary or
by such Depositary or any such nominee to a successor Depositary for such series
or a nominee of such successor Depositary.
At the option of the Holder, definitive Bearer Securities of any series may
be exchanged for definitive Registered Securities of the same series of any
authorized denominations and of a like aggregate principal amount and tenor,
upon surrender of the definitive Bearer Securities to be exchanged at any such
office or agency, with all unmatured coupons and all matured coupons in default
thereto appertaining. If the Holder of a definitive Bearer Security is unable
to produce any such unmatured coupon or coupons or matured coupon or coupons in
default, such exchange may be effected if the definitive Bearer Securities are
accompanied by payment in funds acceptable to the Company in an amount equal to
the face amount of such missing coupon or coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the Trustee if there
is furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of such
Security shall surrender to any Paying Agent any such missing coupon in respect
of which such a payment shall have been made, such Holder shall be entitled to
receive the amount of such payment; provided, however, that, except as otherwise
provided in Section 1002, interest represented by coupons shall be payable only
upon presentation and surrender of those coupons at an office or agency located
outside the United States. Notwithstanding the foregoing, in case a definitive
Bearer Security of any series is surrendered at any such office or agency in
exchange for a definitive Registered Security of the same series and like tenor
after the close of business at such office or agency on (i) any Regular Record
Date and before the opening of business at such office or agency on the relevant
Interest Payment Date, or (ii)
32
any Special Record Date and before the opening of business at such office or
agency on the related proposed date for payment of Defaulted Interest, such
definitive Bearer Security shall be surrendered without the coupon relating to
such Interest Payment Date or proposed date for payment, as the case may be (or,
if such coupon is so surrendered with such definitive Bearer Security, such
coupon shall be returned to the person so surrendering the definitive Bearer
Security), and interest or Defaulted Interest, as the case may be, will not be
payable on such Interest Payment Date or proposed date for payment, as the case
may be, in respect of the definitive Registered Security issued in exchange for
such Bearer Security, but will be payable only to the Holder of such coupon when
due in accordance with the provisions of this Indenture.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and make available for delivery, the
Securities which the Holder making the exchange is entitled to receive.
If at any time the Depositary for Securities of a series in registered form
notifies the Company that it is unwilling or unable to continue as Depositary
for the Securities of such series or if at any time the Depositary for the
Securities for such series shall no longer be eligible under Section 303, the
Company shall appoint a successor Depositary with respect to the Securities for
such series. If a successor Depositary for the Securities of such series is not
appointed by the Company within 90 days after the Company receives such notice
or becomes aware of such ineligibility, the Company's election pursuant to
Section 301 shall no longer be effective with respect to the Securities for such
series and the Company will issue, and the Trustee, upon receipt of a Company
Order for the authentication and delivery of definitive Registered Securities of
such series, will authenticate and make available for delivery Registered
Securities in definitive form in exchange for an aggregate principal amount
equal to the principal amount of the global Security or Securities representing
such Securities.
The Company may at any time and in its sole discretion determine that the
Registered Securities of any series issued in the form of one or more global
Securities shall no longer be represented by such global Security or Securities.
In such event, the Company will issue, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of definitive Registered
Securities of such series, will authenticate and make available for delivery,
Registered Securities of such series in definitive form and in an aggregate
principal amount equal to the principal amount in exchange for the global
Security or Securities representing such Registered Securities.
If specified by the Company pursuant to Section 301 with respect to a
series of Securities in registered form, the Depositary for such series of
Securities may surrender a global
33
Security for such series of Securities in exchange in whole or in part for
Registered Securities of such series of like tenor and terms and 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 make
available for delivery, without service charge, (i) to each Person specified by
such Depositary a new Registered Security or Securities of the same series, of
like tenor and terms and of any authorized denomination as requested by such
Person in aggregate principal amount equal to and in exchange for such Person'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 Registered Securities delivered
to Holders thereof.
Upon the exchange in full of a global Security for Securities in definitive
form, such global Security shall be cancelled by the Trustee. Registered
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 Registered Securities to the persons in whose names such
Securities are so registered.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or exchange shall (if so required by the Company or the Trustee) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1108 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer of or
exchange Securities of any series during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of
Securities of that series selected for redemption under Section
34
1104 and ending at the close of business on (A) if Securities of the series are
issuable only as Registered Securities, the day of the mailing of the relevant
notice of redemption and (B) if Securities of the series are issuable as Bearer
Securities, the day of the first publication of the relevant notice of redemp-
tion or, if Securities of the series are also issuable as Registered Securities
and there is no publication, the mailing of the relevant notice of redemption,
or (ii) to register the transfer of or exchange any Registered Security so
selected for redemption as a whole or in part, except the unredeemed portion of
any Security being redeemed in part, or (iii) to exchange any Bearer Security so
selected for redemption except that such a Bearer Security may be exchanged for
a Registered Security of that series and like tenor, provided that such
Registered Security shall be simultaneously surrendered for redemption.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security or a Security with a mutilated coupon
appertaining thereto is surrendered to the Trustee, the Company shall execute
and the Trustee shall authenticate and make available for delivery in exchange
therefor a new Security of the same series and in a like aggregate principal
amount and of a like Stated Maturity and with like terms and conditions and
bearing a number not contemporaneously outstanding with coupons corresponding to
the coupons, if any, appertaining to the surrendered Security.
If there shall be delivered to the Company and the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security or coupon
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security or coupon has been acquired by a
bona fide purchaser, the Company shall execute and upon its request the Trustee
shall authenticate and make available for delivery, in lieu of any such
destroyed, lost or stolen Security, or in exchange for the Security to which a
destroyed, lost or stolen coupon appertains (with all appurtenant coupons not
destroyed, lost or stolen), a new Security of the same series and in a like
aggregate principal amount and of a like Stated Maturity and with like terms and
conditions and bearing a number not contemporaneously outstanding with coupons
corresponding to the coupons, if any, appertaining to such destroyed, lost or
stolen Security or to the Security to which such destroyed, lost or stolen
coupon appertains.
In case any such mutilated, destroyed, lost or stolen Security or coupon
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security or coupon; provided,
however, that principal of (and premium, if any) and any interest on Bearer
Securities shall, except as otherwise provided in Section
35
1002, be payable only at an office or agency located outside the United States
and, unless otherwise specified as contemplated by Section 301, any interest on
Bearer Securities shall be payable only upon presentation and surrender of the
coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series, with its coupons, if any, issued pursuant
to this Section in lieu of any destroyed, lost or stolen Security or in exchange
for a Security to which a destroyed, lost or stolen coupon appertains, shall
constitute an original additional contractual obligation of the Company, whether
or not the destroyed, lost or stolen Security and its coupons, if any, or the
destroyed, lost or stolen coupon shall be at any time, enforceable by anyone,
and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series and their
coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Registered Security which is payable, and is punctually
paid or duly provided for, on any Interest Payment Date shall be paid to the
Person in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest.
Unless otherwise provided with respect to the Securities of any series, at
the option of the Company payment of interest may be made (i) by check mailed to
the address of the Person entitled thereto as such address shall appear in the
Security Register, or (ii) at the option of the Company, (1) in the case of a
Bearer Security, by transfer to an account maintained by the payee with a bank
located outside the United States, or (2) in the case of a Registered Security,
by transfer to an account maintained by the payee with a bank located inside the
United States.
Unless otherwise provided or contemplated by Section 301, every permanent
global Security in bearer form will provide that interest, if any, payable on
any Interest Payment Date will be paid to each of Euroclear and Cedel with
respect to that
36
portion of such permanent global Security held for its account by the
Depositary. Each of Euroclear and Cedel will in such circumstances credit the
interest received by it in respect of such permanent global Security to the
accounts of the beneficial owners thereof.
Any interest on any Registered Security of any series which is payable, but
is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable to the
Holder on the relevant Regular Record Date by virtue of having been such Holder,
and such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Registered Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company shall
notify the Trustee in writing of the amount of Defaulted Interest proposed
to be paid on each Registered Security of such series and the date of the
proposed payment, and at the same time the Company shall deposit with the
Trustee an amount of money in the currency or currency unit in which the
Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series and except as
provided in Sections 311(b), 311(d) and 311(e)), 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 Registered Securities of such series at
his address as it appears in the Security Register, not less than 10 days
prior to such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having
37
been so mailed, Defaulted Interest shall be paid to the Persons in whose
names the Registered Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the
following clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustee of the
proposed manner of payment pursuant to this clause, such manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 305, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Registered Security is registered as the
owner of such Registered Security for the purpose of receiving payment of
principal of (and premium, if any) and (subject to Section 307) interest, if
any, on such Security and for all other purposes whatsoever, whether or not such
Security be overdue, and neither the Company, the Trustee nor any agent of the
Company or the Trustee shall be affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining thereto shall
pass by delivery. The Company, the Trustee and any agent of the Company or the
Trustee may treat the bearer of any Bearer Security and the bearer of any coupon
as the absolute owner of such Security or coupon for the purpose of receiving
payment thereof or on account thereof and for all other purposes whatsoever,
whether or not such Security or coupon be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by notice
to the contrary.
None of the Company, the Trustee, any Paying Agent or the 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 of a global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
38
SECTION 309. Cancellation.
All Securities and coupons surrendered for payment, redemption,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be delivered
to the Trustee and, in the case of Registered Securities and matured coupons,
shall be promptly cancelled by it. All Bearer Securities and unmatured coupons
so delivered to the Trustee shall be cancelled by the Trustee. The Company may
at any time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in any
manner whatsoever, and all Securities so delivered shall be promptly cancelled
by the Trustee. Notwithstanding any other provision of this Indenture to the
contrary, in the case of a series all the Securities of which are not to be
originally issued at one time, a Security of such series shall not be deemed to
have been Outstanding at any time hereunder if and to the extent that,
subsequent to the authentication and delivery thereof, such Security is
delivered to the Trustee for cancellation by the Company or any agent thereof
upon the failure of the original purchaser thereof to make payment therefor
against delivery thereof, and any Security so delivered to the Trustee shall be
promptly cancelled by it. No Securities shall be authenticated in lieu of or in
exchange for any Securities cancelled as provided in this Section, except as
expressly permitted by this Indenture. All cancelled Securities and coupons
held by the Trustee shall be returned by the Trustee.
SECTION 310. Computation of Interest.
Except as otherwise specified pursuant to 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. Currency and Manner of Payments in Respect of
Registered Securities.
Unless otherwise specified in accordance with Section 301 with respect to
any series of Registered Securities, the following provisions shall apply:
(a) Except as provided in paragraphs (b) and (d) below, the principal
of (and premium, if any) and interest on Registered Securities of any
series denominated in a Foreign Currency will be payable by the Company in
Dollars based on the equivalent of that Foreign Currency converted into
Dollars in the manner described in paragraph (c) below.
(b) It may be provided pursuant to Section 301 with respect to
Registered Securities of any series
39
denominated in a Foreign Currency that Holders shall have the option,
subject to paragraph (d) below, to receive payments of principal of (and
premium, if any) and interest on such Registered Securities in such Foreign
Currency by delivering to the Trustee (or to any duly appointed Paying
Agent) a written election, to be in form and substance satisfactory to the
Trustee (or to any such Paying Agent), not later than the close of business
on the Election Date immediately preceding the applicable payment date. If
a Holder so elects to receive such payments in such Foreign Currency, such
election will remain in effect for such Holder until changed by such Holder
by written notice to the Trustee (or to any such Paying Agent); provided,
however, that any such change must be made not later than the close of
business on the Election Date immediately preceding the next payment date
to be effective for the payment to be made on such payment date; and
provided, further, that no such change or election may be made with respect
to payments to be made on any Registered Security of such series with
respect to which an Event of Default has occurred, the Company has
exercised any satisfaction or discharge options pursuant to Article Four or
Section 1009 or notice of redemption has been given by the Company pursuant
to Article Eleven. In the event any Holder makes any such election, such
election will not be effective as to any transferee of such Holder and such
transferee shall be paid in Dollars unless such transferee makes an
election as specified above; provided, however, that such election, if in
effect while funds are on deposit with respect to the Registered Securities
as described in Section 401(a)(1)(B) or Section 1009, will be effective on
any transferee of such Holder unless otherwise specified pursuant to
Section 301 for such Registered Securities. Any Holder of any such
Registered Security who shall not have delivered any such election to the
Trustee (or to any duly appointed Paying Agent) not later than the close of
business on the applicable Election Date will be paid the amount due on the
applicable payment date in Dollars.
(c) With respect to any Registered Security denominated in a Foreign
Currency and payable in Dollars, the amount of Dollars so payable will be
determined by the Currency Determination Agent based on the indicative
quotation in The City of New York selected by the Currency Determination
Agent at approximately 11:00 A.M., New York City time, on the second
Business Day preceding the applicable payment date that yields the least
number of Dollars upon conversion of the Foreign Currency. Such selection
shall be made from among the quotations appearing on the bank composite or
multi-contributor pages of the
40
Reuters Monitor Foreign Exchange Service or, if not available, the Telerate
Monitor Foreign Exchange Service. If such quotations are unavailable from
either such foreign exchange service, such selection shall be made from the
quotations received by the Currency Determination Agent from no more than
three nor less than two recognized foreign exchange dealers in The City of
New York selected by the Currency Determination Agent and approved by the
Company (one of which may be the Currency Determination Agent) for the
purchase by the quoting dealer, for settlement on such payment date, of the
aggregate amount of the Foreign Currency payable on such payment date in
respect of all Securities denominated in such Foreign Currency and for
which the applicable dealer commits to execute a contract. If no such bid
quotations are available, payments shall be made in the Foreign Currency.
(d) If a Conversion Event occurs with respect to a Foreign Currency
in which any of the Registered Securities are payable, then with respect to
each date for the payment of principal of (and premium, if any) and
interest on such Registered Securities occurring after the last date on
which such Foreign Currency was used, the Company may make such payment in
Dollars. The Dollar amount to be paid by the Company to the Trustee and by
the Trustee or any Paying Agent to the Holders of such Registered
Securities with respect to such payment date shall be determined by the
Currency Determination Agent on the basis of the Market Exchange Rate. Any
payment in respect of such Security made under such circumstances in
Dollars will not constitute an Event of Default hereunder.
(e) For purposes of this Indenture the following terms shall have the
following meanings:
A "Component Currency" shall mean any currency which is
a component currency of any composite currency, including, without
limitation, the ECU.
"Election Date" shall mean, for any Registered
Security, the date specified pursuant to Section 301(7).
(f) Notwithstanding any other provisions of this Section 311, the
following shall apply: (i) if the official unit of any Component Currency
is altered by way of combination or subdivision, the number of units of
that currency as a component shall be divided or multiplied in the same
proportion, (ii) if two or more Component Currencies are consolidated into
a single currency, the amounts of those currencies as components
41
shall be replaced by an amount in such single currency equal to the sum of
the amounts of the consolidated Component Currencies expressed in such
single currency, (iii) if any Component Currency is divided into two or
more currencies, the amount of that original Component Currency as a
component shall be replaced by the amounts of such two or more currencies
having an aggregate value on the date of division equal to the amount of
the former Component Currency immediately before such division and (iv) in
the event of an official redenomination of any currency (including without
limitation, a composite currency), the obligations of the Company to make
payments in or with reference to such currency on any Registered Securities
shall, in all cases, be deemed immediately following such redenomination to
be obligations to make payments in or with reference to that amount of
redenominated currency representing the amount of such currency immediately
before such redenomination.
(g) All determinations referred to in this Section 311 made by the
Currency Determination Agent shall be in its sole discretion and shall, in
the absence of manifest error, be conclusive for all purposes and
irrevocably binding upon the Holders of the applicable Registered
Securities. The Currency Determination Agent shall promptly give written
notice to the Trustee of any such decision or determination. The Currency
Determination Agent shall have no liability for any determinations referred
to in this Section 311 made by it.
(h) The Trustee shall be fully justified and protected in relying and
acting upon information received by it from the Company and the Currency
Determination Agent with respect to any of the matters addressed in or
contemplated by this Section 311 and shall not otherwise have any duty or
obligation to determine such information independently.
SECTION 312. Appointment and Resignation of Successor
Currency Determination Agent.
(a) If and so long as the Securities of any series (i) are denominated in
a currency other than Dollars or (ii) may be payable in a currency other than
Dollars, or so long as it is required under any other provision of this
Indenture, then the Company will maintain with respect to each such series of
Securities, or as so required, a Currency Determination Agent. The Company will
cause the Currency Determination Agent to make the necessary foreign exchange
determinations at the time and in the manner specified pursuant to Section 301
for the purpose of determining the applicable rate of exchange and for the
purpose of converting the issued currency into the applicable payment
42
currency for the payment of principal and interest, if any, pursuant to Section
311.
(b) No resignation of the Currency Determination Agent and no appointment
of a successor Currency Determination Agent pursuant to this Section shall
become effective until the acceptance of appointment by the successor Currency
Determination Agent as evidenced by a written instrument delivered to the
Company and the Trustee accepting such appointment executed by the successor
Currency Determination Agent.
(c) If the Currency Determination Agent shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of the Currency
Determination Agent for any cause, with respect to the Securities of one or more
series, the Company, by a Board Resolution, shall promptly appoint a successor
Currency Determination Agent or Currency Determination Agents with respect to
the Securities of that or those series (it being understood that any such
successor Currency Determination Agent may be appointed with respect to the
Securities of one or more or all of such series and that at any time there shall
only be one Currency Determination Agent with respect to the Securities of any
particular series).
SECTION 313. 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 numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Securities of any
Series.
(a) The Company shall be deemed to have satisfied and discharged the
entire indebtedness on all the Securities of any particular series and, so long
as no Event of Default shall be continuing, the Trustee, upon Company Request
and at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of such indebtedness, when:
(1) either
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(A) all Securities of such series theretofore authenticated
and delivered and all coupons, if any, appertaining thereto (other
than (i) coupons appertaining to Bearer Securities surrendered for
exchange for Registered Securities and maturing after such exchange,
whose surrender is not required or has been waived as provided in
Xxxxxxx 000, (xx) any Securities and coupons of such series which have
been destroyed, lost or stolen and which have been replaced or paid as
provided in Xxxxxxx 000, (xxx) coupons appertaining to Securities
called for redemption and maturing after the relevant Redemption Date,
whose surrender has been waived as provided in Section 1107 and (iv)
Securities and coupons of such series 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 the last paragraph of Section 1003) have
been delivered to the Trustee for cancellation; or
(B) except as otherwise specified pursuant to Section 301
for the Securities of such series, with respect to all Outstanding
Securities of such series described in (A) above (and, in the case of
(i), (ii) or (iii) below, any coupons appertaining thereto) not
theretofore delivered to the Trustee for cancellation:
(i) the Company has deposited or caused to be
deposited with the Trustee as trust funds in trust an amount
in the currency or currency unit in which the Securities of
such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series
and except as provided in Sections 311(b) and 311(d), in
which case the deposit to be made with respect to Securities
for which an election has occurred pursuant to Section
311(b) or a Conversion Event has occurred as provided in
Section 311(d), shall be made in the currency or currency
unit in which such Securities are payable as a result of
such election or Conversion Event), sufficient to pay and
discharge the entire indebtedness on all such Outstanding
Securities of such series and any related coupons for
principal (and premium, if any) and interest, if any, to the
Stated Maturity, or any Redemption Date as contemplated by
Section 402, as the case may be; or
44
(ii) the Company has deposited or caused to be
deposited with the Trustee as obligations in trust such
amount of Government Obligations as will, in a written
opinion of independent public accountants delivered to the
Trustee, together with the predetermined and certain income
to accrue thereon (without consideration of any reinvestment
thereof), be sufficient to pay and discharge when due the
entire indebtedness on all such Outstanding Securities of
such series and any related coupons for unpaid principal
(and premium, if any) and interest, if any, to the Stated
Maturity or any Redemption Date as contemplated by Section
402, as the case may be; or
(iii) the Company has deposited or caused to be
deposited with the Trustee such combination of trust funds
or obligations in trust pursuant to (i) and (ii) above,
respectively, as will, in a written opinion of independent
public accountants delivered to the Trustee, together with
the predetermined and certain income to accrue on such
obligations in trust, be sufficient to pay and discharge
when due the entire indebtedness on all such Outstanding
Securities of such series and any related coupons for unpaid
principal (and premium, if any) and interest, if any, to the
Stated Maturity or any Redemption Date as contemplated by
Section 402, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
with respect to the Securities of such series and any related coupons;
(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 the
entire indebtedness on all Securities of such series and any related
coupons have been complied with; and
(4) if the Securities of such series and any related coupons are not
to become due and payable at their Stated Maturity within one year of the
date of such deposit or are not to be called for redemption within one year
of the date of such deposit under arrangements satisfactory to the Trustee
as of the date of such deposit, then the Company shall have given, not
45
later than the date of such deposit, notice of such deposit to the Holders
of the Securities of such series.
(b) Upon the satisfaction of the conditions set forth in this Section 401
with respect to all the Securities of any series, the terms and conditions of
such series, including the terms and conditions with respect thereto set forth
in this Indenture, shall no longer be binding upon, or applicable to, the
Company, and the Holders of the Securities of such series and any related
coupons shall look for payment only to the funds or obligations deposited with
the Trustee pursuant to Section 401(a)(1)(B); provided, however, that in no
event shall the Company be discharged from (a) any payment obligations in
respect of Securities of such series and any related coupons which are deemed
not to be Outstanding under clause (c) of the definition thereof if such
obligations continue to be valid obligations of the Company under applicable
law, (b) from any obligations under Sections 402(b), 607, 610 and 1008 and (c)
from any obligations under Sections 304, 305 and 306 (except that Securities of
such series issued upon registration of transfer or exchange or in lieu of
mutilated, lost, destroyed or stolen Securities and any related coupons shall
not be obligations of the Company) and Sections 311, 701 and 1002; and provided,
further, that in the event a petition for relief under Title 11 of the United
States Code or a successor statute is filed and not discharged with respect to
the Company within 91 days after the deposit, the entire indebtedness on all
Securities of such series and any related coupons shall not be discharged, and
in such event the Trustee shall return such deposited funds or obligations as it
is then holding to the Company upon Company Request. Notwithstanding the
satisfaction of the conditions set forth in this Section 401 with respect to all
the Securities of any series not payable in Dollars, upon the happening of any
Conversion Event the Company shall be obligated to make the payments in Dollars
required by Section 311(d) to the extent that the Trustee is unable to convert
any Foreign Currency or currency unit in its possession pursuant to Section
401(a)(1)(B) into the Dollar equivalent of such Foreign Currency or currency
unit, as the case may be. If, after the deposit referred to in Section 401 has
been made, (x) the Holder of a Security is entitled to, and does, elect pursuant
to Section 311(b) to receive payment in a currency or currency unit other than
that in which the deposit pursuant to Section 401 was made, or (y) a Conversion
Event occurs as contemplated in Section 311(d), then the indebtedness
represented by such Security shall be fully discharged to the extent that the
deposit made with respect to such Security shall be converted into the currency
or currency unit in which such Security is payable. The Trustee shall return to
the Company any non-converted funds or securities in its possession after such
payments have been made.
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SECTION 402. Application of Trust Money.
(a) All money and obligations deposited with the Trustee pursuant to
Section 401 or Section 1009 shall be held irrevocably in trust and shall be made
under the terms of an escrow trust agreement in form and substance satisfactory
to the Trustee. Such money and obligations shall be applied by the Trustee, in
accordance with the provisions of the Securities, any coupons, this Indenture
and such escrow trust agreement, 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 of (and
premium, if any) and interest, if any, on the Securities for the payment of
which such money and obligations have been deposited with the Trustee. If
Securities of any series are to be redeemed prior to their Stated Maturity,
whether pursuant to any optional redemption provisions or in accordance with any
mandatory sinking fund requirement, the Company shall make such arrangements as
are satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Company.
(b) The Company shall pay and shall indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against Government Obligations
deposited pursuant to Section 401 or Section 1009 or the interest and principal
received in respect of such Government Obligations other than any such tax, fee
or other charge which by law is payable by or on behalf of Holders. The
obligation of the Company under this Section 402(b) shall be deemed to be an
obligation of the Company under Section 607(2).
(c) Anything in this Article Four to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or Government Obligations held by it as provided in Section
401 or Section 1009 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
have been required to be deposited for the purpose for which such money or
Government Obligations were deposited or received.
SECTION 403. Satisfaction and Discharge of Indenture.
Upon compliance by the Company with the provisions of Section 401 as to the
satisfaction and discharge of each series of Securities issued hereunder, and if
the Company has paid or caused to be paid all other sums payable under this
Indenture, this Indenture shall cease to be of any further effect (except as
otherwise provided herein). Upon Company Request and receipt of an Opinion of
Counsel and an Officers' Certificate, the Trustee
47
(at the expense of the Company) shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture.
Notwithstanding the satisfaction and discharge of this Indenture, any
obligations of the Company under Sections 304, 305, 306, 311, 402(b), 607, 610,
614, 701, 1002 and 1008 and the obligations of the Trustee under Section 402
shall survive.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any Security of that
series and any related coupon 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 making or satisfaction of any sinking fund payment
or analogous obligation when the same becomes due and payable by the terms
of any Security of that series, and continuance of such default for a
period of 30 days; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in respect of the Securities of that series
contained in this Indenture (other than a covenant or warranty in respect
of the Securities of such series, a default in the performance of which or
the breach of which 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), or established in or
pursuant to the authority granted in the Board Resolution or in the
supplemental indenture under which such series of Securities is issued, as
the case may be, as contemplated by Section 301, and continuance of such
default or breach for a period of 90 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
48
Company and the Trustee by the Holders of at least 25% in principal amount
of the Outstanding Securities of that series a written notice specifying
such default or breach and requiring it to be remedied and stating that
such notice is a "Notice of Default" hereunder; or
(5) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary case
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
(6) the commencement by the Company of a voluntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent by it to the entry
of a decree or order for relief in respect of it 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 generally as they become due, or
the taking of corporate action by the Company in furtherance of any such
action; or
(7) any other Event of Default provided in the applicable Board
Resolution or in the supplemental indenture under which such series of
Securities is issued, as the case may be, as contemplated by Section 301.
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SECTION 502. Acceleration of Maturity; Rescission and
Annulment.
If an Event of Default with respect to Securities of any series and any
related coupons at the time outstanding occurs and is continuing, then in every
such case, unless the principal of all of the Securities of such series shall
have already become due and payable, the Trustee or the Holders of not less than
25% in principal amount of the Outstanding Securities of that series may declare
the principal amount (or if any Securities of that series are (i) Original Issue
Discount Securities, such portion of the principal amount as may be specified in
the terms of those Securities, or (ii) Indexed Securities or Dual Currency
Securities, the amount determined in accordance with the specified terms of
those Securities) 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 the 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 and entered 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 in the currency or currency unit in which the Securities
of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series and except as provided in
Sections 311(b) and 311(d)),
(A) all overdue interest, if any, on all Securities of that
series and any related coupons,
(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 Overdue Rate
applicable to that series,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the Overdue Rate applicable to that
series, and
(D) all sums paid or advanced by the Trustee hereunder and
the compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel;
50
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 of
any series and any related coupons when such interest becomes due and
payable and such default continues for a period of 30 days,
(2) default is made in the payment of the principal of (or premium,
if any, on) any Security of any series at the Maturity thereof, or
(3) default is made in the making or satisfaction of any sinking fund
payment or analogous obligation when the same becomes due pursuant to the
terms of the Securities of any series and such default continues for a
period of 30 days,
then the Company will, upon demand of the Trustee, pay to it, for the benefit of
the Holders of such Securities and coupons, the whole amount then due and
payable on such Securities and coupons for principal (and premium, if any) and
interest, if any, with interest upon the overdue principal (and premium, if any)
and, to the extent that payment of such interest shall be legally enforceable,
upon any overdue instalment of interest, at the Overdue Rate of any such
Securities; and, in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, including the compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the
51
manner provided by law out of the property of the Company or any other obligor
upon such Securities, wherever situated.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series and any
related coupons by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid of
the exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities of any series or the property of the Company or of such other obligor
or their creditors, the Trustee (irrespective of whether the principal of the
Securities of such series shall then be due and payable as therein expressed or
by declaration or otherwise and irrespective of whether the Trustee shall have
made any demand on the Company for the payment of overdue principal or interest)
shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(i) to file and prove a claim for the whole amount of principal
(or, if the Securities of such series are Original Issue Discount
Securities, Indexed Securities or Dual Currency Securities, such amount as
may be due and payable with respect to such Securities pursuant to a
declaration in accordance with Section 502) (and premium, if any) and
interest, if any, owing and unpaid in respect of the Securities of such
series and any related coupons and to file such other papers or documents
as may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and of
the Holders of the Securities of such series and any related coupons
allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder of Securities and coupons to make such payments to the Trustee and,
in the event
52
that the Trustee shall consent to the making of such payments directly to the
Holders of Securities and coupons, to pay to the Trustee any amount due 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.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
or coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or coupons of any series or the rights of any Holder
thereof or to authorize the Trustee to vote in respect of the claim of any
Holder of a Security or coupon in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities or coupons.
All rights of action and claims under this Indenture or the Securities or
coupons of any series may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or coupons of such series or the production
thereof in any proceeding relating thereto, and any such proceeding instituted
by the Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders of the
Securities and coupons in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (or premium,
if any) or interest, if any, upon presentation of the several Securities or
coupons, or both, as the case may be, with respect to which such moneys were
collected, and the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
607;
SECOND: To the payment of the amounts then due and unpaid upon such
Securities and coupons for principal of (and premium, if any) and interest,
if any, 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
53
payable on such Securities and coupons for principal (and premium, if any)
and interest, respectively; and
THIRD: The balance, if any, to the Person or Persons entitled thereto.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series or any related coupons shall have
any right to institute any proceeding, judicial or otherwise, with respect to
this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless,
(1) an Event of Default shall have occurred and be continuing and
such Holder has previously given written notice to the Trustee of such
continuing Event of Default with respect to the Securities of that series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
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SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Security or coupon shall have the right, which is absolute and unconditional, to
receive payment, in the currency or currency unit herein prescribed, of the
principal of (and premium, if any) and (subject to Section 307) interest, if
any, on such Security on the Stated Maturities expressed in such Security or
coupon (or, in the case of redemption, on the Redemption Date) and to institute
suit for the enforcement of any such payment, and such rights shall not be
impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security or coupon has instituted any
proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case, subject to any determination in such proceeding, the Company, the Trustee
and the Holders of Securities and coupons 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 or coupons in the last paragraph
of Section 306, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders of Securities or coupons is intended to be exclusive
of any other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of Securities of any
series and any related coupons 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 such Holders
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of Securities or coupons may be exercised from time to time, and as often as may
be deemed expedient, by the Trustee or by such 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 remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee, with respect to the Securities of
such series, provided, that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
(2) such direction would not involve the Trustee in any personal
liability (unless the Trustee is indemnified to its reasonable
satisfaction), 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 and any related coupons may on behalf of
the Holders of all the Securities of such series waive any past default
hereunder with respect to such series and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest, if any, on any Security of such series, or in the payment of any
sinking fund instalment or analogous obligation with respect to the
Securities 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.
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SECTION 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security or
coupon by his acceptance thereof shall be deemed to have agreed, that any court
may in its discretion require, in any suit for the enforcement of any right or
remedy under this Indenture, or in any suit against the Trustee for any action
taken, suffered or omitted by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including reasonable attorneys'
fees and expenses against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in principal
amount of the Outstanding Securities of any series, or to any suit instituted by
any Holder of any Security or coupon for the enforcement of the payment of the
principal of (or premium, if any) or interest, if any, on any Security or the
payment of any coupon on or after the Stated Maturities expressed in such
Security or coupon (or, in the case of redemption, on or after the Redemption
Date).
SECTION 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
SECTION 516. Judgment Currency.
If for the purpose of obtaining a judgment in any court with respect to any
obligation of the Company hereunder or under any Security or any related coupon
it shall become necessary to convert into any other currency or currency unit
any amount in the currency or currency unit due hereunder or under such Security
or coupon, then such conversion shall be made at the spot rate of exchange
prevailing on the date the Company shall make payment to any Person in
satisfaction of such judgment. If pursuant to any such judgment, conversion
shall be made on a date other than the date payment is made and there shall
occur a change between such spot rate of exchange and the spot rate of
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exchange prevailing on the date of payment, the Company agrees to pay such
additional amounts (if any) as may be necessary to ensure that the amount paid
is equal to the amount in such other currency or currency unit which, when
converted at the spot rate of exchange prevailing on the date of payment or
distribution, is the amount then due hereunder or under such Security or coupon.
Any amount due from the Company under this Section 516 shall be due as a
separate debt and is not to be affected by or merged into any judgment being
obtained for any other sums due hereunder or in respect of any Security or
coupon. In no event, however, shall the Company be required to pay more in the
currency or currency unit due hereunder or under such Security or coupon at the
spot rate of exchange prevailing when payment is made than the amount of
currency or currency unit stated to be due hereunder or under such Security or
coupon so that in any event the Company's obligations hereunder or under such
Security or coupon will be effectively maintained as obligations in such
currency or currency unit, and the Company shall be entitled to withhold (or be
reimbursed for, as the case may be) any excess of the amount actually realized
upon any such conversion over the amount due and payable on the date of payment
or distribution.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default with respect to
any series of Securities,
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; but in
the case of any such certificates or opinions which by any provision hereof
are specifically required to be furnished to the Trustee, the Trustee shall
be under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture with respect to each series
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of Securities for which it acts as Trustee and with respect to which an Event of
Default is continuing, and with respect to such series of Securities use the
same degree of care and skill in their exercise as a prudent man would exercise
or use under the circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own wilful misconduct, except that
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction
of the Holders of a majority in principal amount of the Outstanding
Securities of any series, relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Indenture with respect to the Securities of such series; and
(4) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the exercise of any
of its rights or powers.
(d) Whether or not therein expressly so provided, every provision of this
Indenture (except Section 603(b) hereof) 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.
Within 90 days after the occurrence of any default hereunder with respect
to the Securities of any series, the Trustee shall transmit in the manner and to
the extent provided in Section 703(c) and shall publish in the manner and to the
extent provided in Section 106, notice of such default hereunder known to the
Trustee, unless such default shall have been cured or waived; provided, however,
that except in the case of a default in the payment of the principal of (or
premium, if any) or interest, if any, on any Security of such series or in the
59
payment of any sinking fund instalment or analogous obligation with respect to
Securities of such series, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee or a
trust committee of directors or Responsible Officers of the Trustee in good
faith determine that the withholding of such notice is in the interest of the
Holders of Securities of such series and any related coupons; and provided,
further, that in the case of any default of the character specified in Section
501(4) with respect to Securities of such series, no such notice to Holders
shall be given until at least 30 days after the occurrence thereof.
SECTION 603. Certain Rights of Trustee.
(a) Subject to the provisions of Section 601:
(i) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(ii) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order and
any resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(iii) 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;
(iv) the Trustee may consult with counsel of its selection and
the advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon;
(v) 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 of any series or any related coupons
pursuant to this Indenture, unless such Holders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities
60
which might be incurred by it in compliance with such request or direction;
(vi) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon, other evidence of indebtedness or other
paper or document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may see
fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney;
(vii) 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; and
(viii) the Trustee shall not be liable for any action taken,
suffered, or omitted to be taken by it in good faith and reasonably
believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Indenture.
(b) The Trustee shall not be charged with knowledge of any Event of
Default with respect to the Securities of any series for which it is acting as
Trustee unless either (1) a Responsible Officer of the Trustee assigned to the
department of the Trustee specified for such purpose in Section 615 shall have
actual knowledge of the Event of Default or (2) written notice of such Event of
Default shall have been given to the Trustee at the place so specified in
Section 615 by the Company and any other obligor on such Securities or by any
Holder of such Securities.
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, and in any coupons 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 of any
series or coupons. The Trustee or any Authenticating Agent shall not be
accountable for the use or application by the Company of Securities of any
series or the proceeds thereof.
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SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
608 and 613, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed in writing with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees:
(1) to pay to each of the Trustee and any predecessor Trustee from
time to time such compensation in Dollars for all services rendered by it
hereunder as may be mutually agreed in writing between the Company and the
Trustee (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 in Dollars for the Securities of any series upon its request for
all reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its agents
and counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(3) to indemnify the Trustee and each predecessor Trustee in Dollars
for the Securities of any series for, and to hold it harmless against, any
and all loss, damage, claims, liability or expense, including taxes (other
than taxes based on the income of the Trustee) incurred without negligence
or bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder, including
the costs and expenses of defending itself against any claim or liability
in connection with the
62
exercise or performance of any of its powers or duties hereunder.
As security for the performance of the obligations of the Company under
this Section 607, the Trustee shall have a lien prior to the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the benefit of the Holders of particular Securities.
When the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 501(5) or Section 501(6), the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or State bankruptcy, insolvency or
other similar law.
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 608. Disqualification; Conflicting Interests.
The Trustee for the Securities shall be subject to the provisions of
Section 310(b) of the Trust Indenture Act during the period of time required
thereby. Nothing herein shall prevent the Trustee from filing with the
Commission the application referred to in the penultimate paragraph of Section
310(b) of the Trust Indenture Act. In determining whether the Trustee has a
conflicting interest as defined in Section 310(b) of the Trust Indenture Act
with respect to the Securities of any series, there shall be excluded Securities
of any particular series of Securities other than that series.
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 $50,000,000, subject to supervision or examination by Federal, State
or District of Columbia authority and having its Corporate Trust Office in the
Borough of Manhattan, The City of New York, or in such other city as shall be
specified as contemplated by Section 301 with respect to any series of
Securities. 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.
Neither the Company nor any Person directly or indirectly controlling,
controlled by, or under common control with the Company shall serve as Trustee
upon any Securities. If at any
63
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 thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(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. 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
such removal, the Trustee so removed may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 310(b) of the Trust
Indenture Act pursuant to Section 608 hereof with respect to Securities of
any series after written request therefor by the Company or by any Holder
of Securities of such series who has been a bona fide Holder of a Security
of such series for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the Company or by
any such Holder, or
(3) the Trustee shall become incapable of acting with respect to
Securities of any series 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
64
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 Securities of such series, or (ii) subject to Section
514, any Holder of a Security of such series who has been a bona fide Holder of
such 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 Securities of such series 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 in the manner
and to the extent provided in Section 106. Each notice shall include the name
of the successor Trustee with respect to the Securities of such series and the
address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
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(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on 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,
subject to Section 607, shall duly assign, transfer and deliver to such
successor Trustee afl 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 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.
66
(c) Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in
paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee or Authenticating Agent then in
office, any successor by merger, conversion or consolidation to such
authenticating Trustee or Authenticating Agent may adopt such authentication and
deliver the Securities so authenticated with the same effect as if such
successor Trustee or successor Authenticating Agent had itself authenticated
such Securities.
SECTION 613. Preferential Collection of Claims Against Company.
(a) Subject to Subsection (b) of this Section, if the Trustee shall be or
shall become a creditor, directly or indirectly, secured or unsecured, of the
Company within three months prior to a default, as defined in Subsection (c) of
this Section, or subsequent to such a default, then, unless and until such
default shall be cured, the Trustee shall set apart and hold in a special
account for the benefit of the Trustee individually, the Holders of the
Securities and coupons and the holders of other indenture securities, as defined
in Subsection (c) of this Section:
(1) an amount equal to any and all reductions in the amount due and
owing upon any claim as such creditor in respect of principal or interest,
effected after the beginning of such three months' period and valid as
against the Company and its other creditors, except any such reduction
resulting from the receipt or disposition of any property described in
paragraph (2) of this Subsection, or from the exercise of any right
67
of set-off which the Trustee could have exercised if a petition in
bankruptcy had been filed by or against the Company upon the date of such
default; and
(2) all property received by the Trustee in respect of any claim as
such creditor, either as security therefor, or in satisfaction or com-
position thereof, or otherwise, after the beginning of such three months'
period, or in amount equal to the proceeds of any such property, if
disposed of, subject, however, to the rights, if any, of the Company and
its other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee:
(A) to retain for its own account (i) payments made on
account of any such claim by any Person (other than the Company) who
is liable thereon, and (ii) the proceeds of the bona fide sale of any
such claim by the Trustee to a third Person, and (iii) distributions
made in cash, securities or other property in respect of claims filed
against the Company in bankruptcy or receivership or in proceedings
for reorganization pursuant to the Federal Bankruptcy Act, as defined
in Subsection (c) of this Section, or applicable State law;
(B) to realize, for its own account, upon any property held
by it as security for any such claim, if such property was so held
prior to the beginning of such three months' period;
(C) to realize, for its own account, but only to the extent
of the claim hereinafter mentioned, upon any property held by it as
security for any such claim, if such claim was created after the
beginning of such three months' period and such property was received
as security therefor simultaneously with the creation thereof, and if
the Trustee shall sustain the burden of proving that at the time such
property was so received the Trustee had no reasonable cause to
believe that a default, as defined in Subsection (c) of this Section,
would occur within three months; or
(D) to receive payment on any claim referred to in
paragraph (B) or (C), against the release of any property held as
security for such claim as provided in paragraph (B) or (C), as the
case may be, to the extent of the fair value of such property.
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For the purposes of paragraphs (B), (C) and (D), property substituted after
the beginning of such three months' period for property held as security at the
time of such substitution shall, to the extent of the fair value of the property
released, have the same status as the property released, and, to the extent that
any claim referred to in any of such paragraphs is created in renewal of or in
substitution for or for the purpose of repaying or refunding any preexisting
claim of the Trustee as such creditor, such claim shall have the same status as
such preexisting claim.
If the Trustee shall be required to account, the funds and property held in
such special account and the proceeds thereof shall be apportioned among the
Trustee, the Holders and the holders of other indenture securities in such
manner that the Trustee, the holders and the holders of other indenture
securities realize, as a result of payments from such special account and
payments of dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the Federal
Bankruptcy Act or applicable State law, the same percentage of their respective
claims, figured before crediting to the claim of the Trustee anything on account
of the receipt by it from the Company of the funds and property in such special
account and before crediting to the respective claims of the Trustee and the
Holders and the holders of other indenture securities dividends on claims filed
against the Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal Bankruptcy Act or applicable State law,
but after crediting thereon receipts on account of the indebtedness represented
by their respective claims from all sources other than from such dividends and
from the funds and property so held in such special account. As used in this
paragraph, with respect to any claim, the term "dividends" shall include any
distribution with respect to such claim, in bankruptcy or receivership or
proceedings for reorganization pursuant to the Federal Bankruptcy Act or
applicable State law, whether such distribution is made in cash, securities or
other property, but shall not include any such distribution with respect to the
secured portion, if any, of such claim. The court in which such bankruptcy,
receivership or proceedings for reorganization is pending shall have
jurisdiction (i) to apportion among the Trustee, the Holders and the holders of
other indenture securities, in accordance with the provisions of this paragraph,
the funds and property held in such special account and proceeds thereof, or
(ii) in lieu of such apportionment, in whole or in part, to give to the
provisions of this paragraph due consideration in determining the fairness of
the distributions to be made to the Trustee and the Holders and the holders of
other indenture securities with respect to their respective claims, in which
event it shall not be necessary to liquidate or to appraise the value of any
securities or other property held in such special account or as security for any
such claim, or to make a specific allocation of such distributions as between
the secured and unsecured portions of such claims, or
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otherwise to apply the provisions of this paragraph as a mathematical formula.
Any Trustee which has resigned or been removed after the beginning of such
three months' period shall be subject to the provisions of this Subsection as
though such resignation or removal had not occurred. If any Trustee has
resigned or been removed prior to the beginning of such three months' period, it
shall be subject to the provisions of this Subsection if and only if the
following conditions exist:
(i) the receipt of property or reduction of claim, which would
have given rise to the obligation to account, if such Trustee had continued
as Trustee, occurred after the beginning of such three months' period; and
(ii) such receipt of property or reduction of claim occurred
within three months after such resignation or removal.
(b) There shall be excluded from the operation of Subsection (a) of this
Section a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under any
indenture, or any security or securities having a maturity of one year or
more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court of
competent jurisdiction or by this Indenture, for the purpose of preserving
any property which shall at any time be subject to the lien of this
Indenture or of discharging tax liens or other prior liens or encumbrances
thereon, if notice of such advances and of the circumstances surrounding
the making thereof is given to the Holders at the time and in the manner
provided in this Indenture;
(3) disbursements made in the ordinary course of business in the
capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depositary, or other similar
capacity;
(4) an indebtedness created as a result of services rendered or
premises rented; or an indebtedness created as a result of goods or
securities sold in a cash transaction, as defined in Subsection (c) of this
Section;
(5) the ownership of stock or of other securities of a corporation
organized under the provisions of Section 25(a) of the Federal Reserve Act,
as amended,
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which is directly or indirectly a creditor of the Company; and
(6) the acquisition, ownership, acceptance or negotiation of any
drafts, bills of exchange, acceptances or obligations which fall within the
classification of self-liquidating paper, as defined in Subsection (c) of
this Section.
(c) For the purposes of this Section only:
(1) the term "default" means any failure to make payment in full of
the principal of or interest on any of the Securities or upon the other
indenture securities when and as such principal or interest becomes due and
payable,
(2) the term "other indenture securities" means any securities upon
which the Company is an obligor outstanding under any other indenture (i)
under which the Trustee is also trustee, (ii) which contains provisions
substantially similar to the provisions of this Section, and (iii) under
which a default exists at the time of the apportionment of the funds and
property held in such special account;
(3) the term "cash transaction" means any transaction in which full
payment for goods or securities sold is made within seven days after
delivery of the goods or securities in currency or in checks or other
orders drawn upon banks or bankers and payable upon demand;
(4) the term "self-liquidating paper" means any draft, xxxx of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase,
processing, manufacture, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security is
received by the Trustee simultaneously with the creation of the creditor
relationship with the Company arising from the making, drawing, negotiating
or incurring of the draft, xxxx of exchange, acceptance or obligation;
(5) the term "Company" means any obligor upon the Securities of any
series; and
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(6) the term "Federal Bankruptcy Act" means the Bankruptcy Act of
1978 or Title II of the United States Code or any successor statute
thereto.
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 exchange, registration of
transfer or partial redemption thereof or pursuant to Section 306, and
Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and, in the case of any series of Securities denominated and payable
solely in Dollars, such Authenticating Agent 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 act as
Authenticating Agent, having a combined capital and surplus of not less than
$50,000,000 and subject to supervision or examination by Federal or State
authority. If such Authenticating Agent publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be 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 provide notice of such
appointment to all Holders of Securities of the series with respect to which
such Authenticating Agent will serve in the manner and to the extent provided in
Section 106. 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 Company agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section.
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 the series designated therein referred to
in the within-mentioned Indenture.
_____________________________,
As Trustee
By___________________________,
As Authenticating Agent
By____________________________
Authorized Officer
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of
Holders.
The Company will furnish or cause to be furnished to the Trustee with
respect to the Securities of any series (a) semi-annually, on a date not more
than 5 days after each Regular Record Date with respect to an Interest Payment
Date, if any, for the Securities of such series, (b) on semi-annual dates in
each year to be determined pursuant to Section 301 if the Securities of such
series do not bear interest and (c) at such other times as such Trustee may
request in writing, within 30 days after receipt by the Company of any such
request, a list in such form as such Trustee may reasonably require containing
all the information in the possession or control of the Company, or any of its
Paying Agents other than such Trustee, as to the names and addresses of the
Holders of the Securities of such series, obtained since the date as of which
the next previous list, if any, was furnished. Any such list may be dated as of
a date not more than 15 days prior to the time such information is furnished or
caused to be furnished and need not include information received after such
date; provided, however, that as long as such Trustee is the Securities
Registrar for such series, no such list shall be required to be furnished.
SECTION 702. Preservation of Information; Communications to
Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of Securities of each series
contained in the most recent list furnished to the Trustee as provided in
Section 701 and the names and addresses of Holders of Securities of such series
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) If three or more Holders (herein referred to as "applicants") of
Securities of any series apply in writing to the Trustee, and furnish to the
Trustee reasonable proof that each such applicant has owned a Security of such
series for a period of at least six months preceding the date of such
application, and such application states that the applicants desire to
communicate with other Holders of such series with respect to their rights under
this Indenture or under the Securities of such series and is accompanied by a
copy of the form of proxy or other communication which such applicants propose
to transmit, then the Trustee shall, within five business days after the receipt
of such application, at its election, either
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(i) afford such applicants access to the information preserved
at the time by the Trustee in accordance with Section 702(a), or
(ii) inform such applicants as to the approximate number of
Holders of such series whose names and addresses appear in the information
preserved at the time by the Trustee in accordance with Section 702(a), and
as to the approximate cost of mailing to such Holders of such series the
form of proxy or other communication, if any, specified in such
application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder of Securities of such series whose name and address appear
in the information preserved at the time by the Trustee in accordance with
Section 702(a) a copy of the form of proxy or other communication which is
specified in such request, with reasonable promptness after a tender to the
Trustee of the material to be mailed and of payment, or provision for the
payment, of the reasonable expenses of mailing, unless within five days after
such tender the Trustee shall mail to such applicants and file with the
Commission, together with a copy of the material to be mailed, a written
statement to the effect that, in the opinion of the Trustee, such mailing would
be contrary to the best interest of such Holders or would be in violation of
applicable law. Such written statement shall specify the basis of such opinion.
If the Commission, after opportunity for a hearing upon the objections specified
in the written statement so filed, shall enter an order refusing to sustain any
of such objections or if, after the entry of an order sustaining one or more of
such objections, the Commission shall find, after notice and opportunity for
hearing, that all the objections so sustained have been met and shall enter an
order so declaring, the Trustee shall mail copies of such material to all such
Holders with reasonable promptness after the entry of such order and the renewal
of such tender, otherwise the Trustee shall be relieved of any obligation or
duty to such applicants respecting their application.
(c) Every Holder of Securities or coupons, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason of
the disclosure of any such information as to the names and addresses of the
Holders in accordance with Section 702(b), regardless of the source from which
such information was derived, and that the Trustee shall not be held accountable
by reason of mailing any material pursuant to a request made under Section
702(b).
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SECTION 703. Reports by Trustee.
(a) On or before the date provided therefor in Section 705 of this
Indenture with respect to Securities of any series, so long as Securities of
such series are outstanding hereunder, the Trustee for such series shall
transmit by mail to all Holders of Securities of such series, as provided in
Subsection (c) of this Section, a brief report dated as of a date 60 days
preceding such date with respect to any of the following events which may have
occurred within the prior 12 months (but if no such event has occurred within
such period no report need be transmitted):
(1) any change to its eligibility under Section 609 and its
qualification under Section 608;
(2) the creation of any material change to a relationship specified
in Section 310(b)(1) through Section 310(b)(10) of the Trust Indenture Act;
(3) the character and amount of any advances (and if the Trustee
elects so to state, the circumstances surrounding the making thereof) made
by the Trustee (as such) which remain unpaid on the date of such report,
and for the reimbursement of which it claims or may claim a lien or charge,
prior to that of the Securities of any series, on any property or funds
held or collected by it as Trustee, except that the Trustee shall not be
required (but may elect) to report such advances if such advances so
remaining unpaid aggregate not more than 1/2 of 1% of the principal amount
of the Securities Outstanding on the date of such report;
(4) the amount, interest rate and maturity date of all other
indebtedness owing by the Company (or by any other obligor on the
Securities of any series) to the Trustee in its individual capacity, on the
date of such report, with a brief description of any property held as
collateral security therefor, except an indebtedness based upon a creditor
relationship arising in any manner described in Section 613(b)(2), (3), (4)
or (6);
(5) any change to the property and funds, if any, physically in the
possession of the Trustee, as such, on the date of such report;
(6) any additional issue of Securities of such series which the
Trustee has not previously reported; and
(7) any action taken by the Trustee in the performance of its duties
hereunder which it has not previously reported and which in its opinion
materially affects the Securities of any series, except action in
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respect of a default, notice of which has been or is to be withheld by the
Trustee in accordance with Section 602.
(b) The Trustee shall transmit by mail to all Holders of the Securities of
any series, as provided in Subsection (c) of this Section, a brief report with
respect to the character and amount of any advances (and if the Trustee elects
so to state, the circumstances surrounding the making thereof) made by the
Trustee (as such) since the date of the last report transmitted pursuant to
Subsection (a) of this Section (or, if no such report has yet been so
transmitted, since the date of execution of this instrument) for the
reimbursement of which it claims or may claim a lien or charge, prior to that of
the Securities of such series, on property or funds held or collected by it as
Trustee and which it has not previously reported pursuant to this Subsection,
except that the Trustee shall not be required (but may elect) to report such
advances if such advances remaining unpaid at any time aggregate 10% or less of
the principal amount of the Securities of such series Outstanding at such time,
such report to be transmitted within 90 days after such time.
(c) Reports pursuant to this Section shall be transmitted by mail:
(1) to all Holders of Registered Securities, as the names and
addresses of such Holders appear in the Security Register;
(2) to such Holders of the Securities as have, within the two years
preceding such transmission, filed their names and addresses with the
Trustee for that purpose; and
(3) except in the case of reports pursuant to Subsection (b) of this
Section, to each Holder of a Security whose name and address is preserved
at the time by the Trustee, as provided in Section 702(a).
(d) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will promptly notify the Trustee when and as any Securities become listed on any
stock exchange.
SECTION 704. Reports by Company.
The Company shall:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports
and of the
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information, documents and other reports (or copies of such portions of any
of the foregoing as the Commission may from time to time by rules and
regulations prescribe), which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934; or, if the Company is not required to file
information, documents or reports pursuant to either of said Sections, then
it shall file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Securities Exchange Act of 1934 in
respect of a security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules and
regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Company with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations; and
(3) transmit, within 30 days after the filing thereof with the
Trustee, to the Holders of Securities, in the manner and to the extent
provided in Section 703(c) with respect to reports pursuant to Section
703(a), such summaries of any information, documents and reports required
to be filed by the Company pursuant to paragraphs (1) and (2) of this
Section as may be required by rules and regulations prescribed from time to
time by the Commission.
Delivery of such reports, information and documents to the Trustee is for
informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain
Terms.
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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, if any, (including all
Additional Amounts, if any, payable pursuant to Section 1008) on all the
Securities and any related coupons 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 occurred 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 take such
steps as shall be necessary effectively to secure the Securities equally
and ratably with (or prior to) all indebtedness secured thereby;
(4) the successor corporation assuming the Securities and coupons
shall have agreed, by supplemental indenture, to indemnify the individuals
liable therefor for the amount of United States Federal estate tax paid
solely as a result of such assumption in respect of Securities and coupons
held by
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individuals who are not citizens or residents of the United States at the
time of their death; and
(5) 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, complies
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, the Securities and any related
coupons.
SECTION 803. Opinion of Counsel to be Given Trustee.
The Trustee shall be entitled to receive and, subject to Sections 601 and
603, shall be fully protected in relying upon an Opinion of Counsel as
conclusive evidence that any such consolidation, merger, sale, conveyance or
lease and any such assumption complies with the provisions of this Article
Eight.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of
Holders.
Without the consent of any Holders of Securities or coupons, the Company,
when authorized by a Board Resolution, and the Trustee, at any time and from
time to time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the Company
and the assumption by any
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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 any related coupons (and if
such covenants are to be for the benefit of less than all series of
Securities, stating that such covenants are expressly being included solely
for the benefit of such series) or to surrender any right or power herein
conferred upon the Company; or
(3) to add any additional Events of Default; or
(4) to add to or to change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to principal, to
change or eliminate any restrictions on the payment of principal of or any
premium or interest on Bearer Securities, to permit Bearer Securities to be
issued in exchange for Registered Securities, to permit Bearer Securities
to be issued in exchange for Bearer Securities of other authorized
denominations, to provide for the issuance of uncertificated Securities of
any series in addition to or in place of any certificated Securities and to
make all appropriate changes for such purposes; provided that any such
action shall not adversely affect the interests of the Holders of
Securities of any series or any related coupons in any material respect; or
(5) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only
when there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the benefit
of such provision; or
(6) to secure the Securities pursuant to the requirements of Section
1005 or otherwise; or
(7) to establish the form or terms of Securities of any series and
any related coupons as permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor trustee with respect to the Securities of one or
more series or to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 611(b); or
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(9) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Section 401 or 1009,
provided that any such action shall not adversely affect the interests of
the Holders of Securities of such series and any related coupons or any
other series of Securities in any material respect; or
(10) to add to or change or eliminate any provisions of this
Indenture as shall be necessary or desirable in accordance with any
amendments to the Trust Indenture Act, provided such action shall not
adversely affect the interests of the Holders of Securities of any series
and any related coupons in any material respect; or
(11) 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 and any related
coupons in any material respect.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than 66 2/3% in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and
the Trustee, the Company, when authorized by a Board Resolution, and the
Trustee may enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of modifying in any manner the
rights of the Holders of Securities of such series and any related coupons
under this Indenture; provided, however, that no such supplemental indenture
shall, without the consent of the Holder of each Outstanding Security
affected thereby,
(1) change the Stated Maturity of the principal of, or any instalment
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 change any obligation of the Company to pay
Additional Amounts pursuant to Section 1008 (except as contemplated by
Section 801(1) and permitted by Section 901(1)), 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 adversely affect the right of repayment
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or repurchase, if any, at the option of the Holder, or reduce the amount
of, or postpone the date fixed for, any payment under any sinking fund or
analogous provisions for any Security, or change any Place of Payment
where, or the coin or currency or currency unit in which, any Security or
any premium or the interest, if any, thereon is payable, or change or
eliminate the rights of a Holder under Section 311(b), or impair the right
to institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or reduce the requirements of Section 1304 for quorum or voting,
or
(3) change any obligation of the Company to maintain an office or
agency in the places and for the purposes specified in Section 1002, or
(4) modify any of the provisions of this Section, Section 513 or
Section 1007, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder or to each Outstanding Security affected
thereby, provided, however, that this clause shall not be deemed to require
the consent of any Holder of a Security or coupon with respect to changes
in the references to "the Trustee" and concomitant changes in this Section
and Section 1007 in accordance with the requirements of Sections 611(b) and
901(8) or with respect to the deletion of this proviso.
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 one or more 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.
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SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture and that such supplemental indenture,
when executed and delivered by the Company, will constitute a valid and binding
obligation of the Company in accordance with its terms. The Trustee may, but
shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, but only with respect to
the Securities of each series and any related coupons affected by such
supplemental indenture, and such supplemental indenture shall form a part of
this Indenture for all purposes with respect to such series; and every Holder of
Securities theretofore or thereafter authenticated and delivered hereunder and
of any coupons appertaining thereto shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental
Indentures.
Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form 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 and any related coupons 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
and any related coupons.
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SECTION 907. Notice of Supplemental Indenture.
Promptly after the execution by the Company and the appropriate Trustee of
any supplemental indenture pursuant to Section 902, the Company shall transmit
to all Holders of any series of the Securities affected thereby, in the manner
and to the extent provided in Section 106, a notice setting forth in general
terms the substance of such supplemental indenture.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay in the currency or currency unit
in which the Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such series and except
as provided in Sections 311(b) and 311(d)) the principal of (and premium, if
any) and interest, if any, on the Securities of that series in accordance with
the terms of such Securities, any coupons appertaining thereto and this
Indenture. Unless otherwise specified as contemplated by Section 301 with
respect to any series of Securities, any interest due on Bearer Securities on or
before Maturity shall be payable only upon presentation and surrender of the
several coupons for such interest installments as are evidenced thereby as they
severally mature. The interest, if any, due in respect of any temporary or
permanent global Security, together with any Additional Amounts payable in
respect thereof, as provided in the terms and conditions of such Security, shall
be payable, subject to the conditions set forth in Section 1008, only upon
presentation of such Security to the Trustee for notation thereon of the payment
of such interest.
SECTION 1002. Maintenance of Office or Agency.
If Securities of a series are issuable only as Registered Securities, the
Company will maintain in each Place of Payment for such series an office or
agency where Securities of that series may be presented or surrendered for
payment, where Securities of that series may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served. If
Securities of a series are issuable as Bearer Securities, the Company will
maintain (A) in the Borough of Manhattan, The City of New York, an office or
agency where any Registered Securities of that series may be presented or
surrendered for payment, where any Registered Securities of that series may be
surrendered for registration of transfer,
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where Securities of that series may be surrendered for exchange, where notices
and demands to or upon the Company in respect of the Securities of that series
and this Indenture may be served and where Bearer Securities of that series and
related coupons may be presented or surrendered for payment in the circumstances
described in the following paragraph (and not otherwise), (B) subject to any
laws or regulations applicable thereto, in a Place of Payment for that series
which is located outside the United States, an office or agency where Securities
of that series and related coupons may be presented and surrendered for payment;
provided, however, that if the Securities of that series are listed on the Stock
Exchange or any other stock exchange located outside the United States and such
stock exchange shall so require, the Company will maintain a Paying Agent for
the Securities of that series in Luxembourg or any other required city located
outside the United States, as the case may be, so long as the Securities of that
series are listed on such exchange, and (C) subject to any laws or regulations
applicable thereto, in a Place of Payment for that series located outside the
United States an office or agency where any Registered Securities of that series
may be surrendered for registration of transfer, where Securities of that series
may be surrendered for exchange and where notices and demands to or upon the
Company in respect of the Securities of that series and this Indenture may be
served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of any such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
in respect of any series of Securities or shall fail to furnish the Trustee with
the address thereof, such presentations, and surrenders of Securities of that
series may be made and notices and demands may be made or served at the
Corporate Trust Office of the Trustee, except that Bearer Securities of that
series and the related coupons may be presented and surrendered for payment at
the offices specified in the Security, and the Company hereby appoints the same
as its agent to receive such respective presentations, surrenders, notices and
demands.
No payment of principal, premium or interest on Bearer Securities shall be
made at any office or agency of the Company in the United States or by check
mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States; provided, however, that, if
the Securities of a series are denominated and payable in Dollars, payment of
principal of and any premium and interest on any Bearer Security shall be made
at the office of the Company's Paying Agent in the Borough of Manhattan, The
City of New York, if, and only if, payment in Dollars of the full amount of such
principal, premium or interest, as the case may be, at all offices or agencies
outside the United States maintained for the purpose by the Company in
accordance with this Indenture is illegal or effectively precluded by exchange
controls or other similar restrictions.
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The Company may also from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in accordance with the requirements set forth above for Securities of any series
for such purposes. The Company will give prompt written notice to the Trustee
of any such designation or rescission and of any change in the location of any
such other office or agency.
If and so long as the Securities of any series (i) are denominated in a
currency other than Dollars or (ii) may be payable in a currency other than
Dollars, or so long as it is required under any other provision of this
Indenture, then the Company will maintain with respect to each such series of
Securities, or as so required, a Currency Determination Agent.
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 and any related coupons, it will, on or before each
due date of the principal of (and premium, if any) or interest, if any, on any
of the Securities of that series, segregate and hold in trust for the benefit of
the Persons entitled thereto a sum in the currency or currency unit in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series and except as provided in Sections
311(b) and 311(d)) sufficient to pay the principal (and premium, if any) or
interest, if any, so becoming due until such sums shall be paid to such Persons
or otherwise disposed of as herein provided and will promptly notify the Trustee
of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of
Securities and any related coupons, it will, prior to each due date of the
principal of (and premium, if any) or interest, if any, on any Securities of
that series, deposit with a Paying Agent for Securities of that series, a sum
(in the currency or currency unit described in the preceding paragraph)
sufficient to pay the principal (and premium, if any) or interest, if any, so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, if any, 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
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with the Trustee, subject to the provisions of this Section, that such Paying
Agent will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest, if any, on 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, if any, on the
Securities of that series; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of (and premium, if any)
or interest, if any, on any Security of any series and remaining unclaimed for
two years after such principal (and premium, if any) or interest, if any, has
become due and payable shall, unless otherwise required by mandatory provisions
of applicable escheat or abandoned or unclaimed property law as determined by
the Company, be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security or
any coupon appertaining thereto shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease; provided, however,
that the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be transmitted once, in
the manner and to the extent provided in Section 106, 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.
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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, rights (charter and statutory) and franchises; provided, however,
that the Company shall not be required to preserve any such right or franchise
if the Board of Directors shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders.
SECTION 1005. Limitation on Liens on Common Stock of Designated
Subsidiaries.
Except as otherwise specified as contemplated by Section 301 for Securities
of any series, so long as any Securities of any series shall remain Outstanding,
the Company will not, and will not permit any Designated Subsidiary to, directly
or indirectly, create, issue, assume, incur or guarantee any indebtedness for
money borrowed which is secured by a mortgage, pledge, lien, security interest
or other encumbrance of any nature on any of the present or future common stock
of a Designated Subsidiary unless the Securities and, if the Company so elects,
any other indebtedness of the Company ranking at least pari passu with the
Securities, shall be secured equally and ratably with (or prior to) such other
secured indebtedness for money borrowed so long as it is outstanding.
SECTION 1006. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after the end of
each fiscal year of the Company ending after the date hereof, an officers'
certificate of the principal executive officer, principal financial or principal
accounting officer of the Company, stating whether or not to the best knowledge
of the signers thereof the Company is in default in the performance and
observance of any of the terms, provisions and conditions of this Indenture and,
if the Company shall be in default, specifying all such defaults and the nature
and status thereof of which they may have knowledge. For purposes of this
Section 1006, any such default shall be determined without regard to any period
of grace or requirement of notice provided under this Indenture.
In addition, the Company shall file with the Trustee written notice of the
occurrence of any default or Event of Default within five Business Days of its
becoming aware of any such default or Event of Default.
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SECTION 1007. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any term,
provision or condition set forth in Section 1005 or 1008 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.
SECTION 1008. Payment of Additional Amounts.
If specified pursuant to Section 301, the provisions of this Section 1008
shall be applicable to Securities of any series.
The Company will pay to a Holder who is a United States Alien such
additional amounts (the "Additional Amounts") as may be necessary so that every
net payment of principal of (and premium, if any) and interest on any Security
or of any coupon appertaining thereto, after deduction or withholding for or on
account of any present or future tax, assessment or other governmental charge
imposed upon such Holder, or by reason of the making of such payment, by the
United States or any taxing authority thereof or therein, will not be less than
the amount provided for in such Security or in such coupon to be then due and
payable. The Company shall not be required, however, to make any payment of any
Additional Amounts for or on account of:
(A) any tax, assessment or other governmental charge which would not have
been imposed but for (i) the existence of any present or former
connection between such holder (or between a fiduciary, settlor,
beneficiary of, member or shareholder of, or possessor of a power
over, such Holder, if such Holder is an estate, trust, partnership or
corporation) and the United States, including, without limitation,
such Holder (or such fiduciary, settlor, beneficiary, member,
shareholder or possessor) being or having been a citizen or resident
or treated as a resident thereof or being or having been engaged in
trade or business or present therein, or having or having had a
permanent establishment therein, or (ii) the presentation of a
Security or any coupon appertaining thereto for payment on a date more
than 10 days after the date on which such payment
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becomes due and payable or the date on which payment thereof is duly
provided for, whichever occurs later;
(B) any estate, inheritance, gift, sales, transfer, excise, personal
property or similar tax, assessment or other governmental charge;
(C) any tax, assessment or other governmental charge imposed by reason of
such Holder's past or present status as a passive foreign investment
company, a controlled foreign corporation, a personal holding company
or foreign personal holding company with respect to the United States,
or as a corporation which accumulates earnings to avoid United States
Federal income tax;
(D) any tax, assessment or other governmental charge which is payable
otherwise than by withholding from payment of principal of (or
premium, if any) or interest on, such Security or coupon;
(E) any tax, assessment or other governmental charge required to be
withheld by any paying agent from any payment of principal of (or
premium, if any) or interest on, any Security or coupon if such
payment can be made without withholding by any other paying agent;
(F) any tax, assessment or other governmental charge which would not have
been imposed but for the failure to comply with certification,
information, documentation or other reporting requirements concerning
the nationality, residence, identity or connections with the United
States of the Holder or beneficial owner of such Security or coupon,
if such compliance is required by statute or by regulation of the
United States Treasury Department as a precondition to relief or
exemption from such tax, assessment or other governmental charge;
(G) any tax, assessment or other governmental charge imposed on interest
received by (i) a 10% shareholder (as defined in Section 871(h)(3)(B)
of the Code and the regulations that may be promulgated thereunder) of
the Company or (ii) a controlled foreign corporation with respect to
the Company within the meaning of the Code; or
(H) any combination of items (a), (b), (c), (d), (e), (f) and (g);
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nor shall any Additional Amounts be paid to any Holder who is a fiduciary or
partnership or other than the sole beneficial owner of such Security or a coupon
appertaining thereto to the extent that a beneficiary or settlor with respect to
such fiduciary, or a member of such partnership or a beneficial owner thereof
would not have been entitled to the payment of such Additional Amounts had such
beneficiary, settlor, member or beneficial owner been the Holder of the
Securities or any coupon appertaining thereto.
The term "United States Alien" means any corporation, partnership,
individual or fiduciary that is, as to the United States, a foreign corporation,
a nonresident alien individual, a nonresident fiduciary of a foreign estate or
trust, or a foreign partnership one or more of the members of which is, as to
the United States, a foreign corporation, a nonresident alien individual or a
nonresident fiduciary of a foreign estate or trust.
Whenever in this Indenture there is mentioned, in any context, the payment
of the principal of (or premium, if any) or interest on any Security or payment
with respect to any coupon of any series, such mention shall be deemed to
include mention of the payment of Additional Amounts provided for in the terms
of such Securities and this Section to the extent that, in such context,
Additional Amounts are, were or would be payable in respect thereof pursuant to
the provisions of this Section and express mention of the payment of Additional
Amounts (if applicable) in any provisions hereof shall not be construed as
excluding Additional Amounts in those provisions hereof where such express
mention is not made.
SECTION 1009. Defeasance of Certain Obligations.
(a) If specified pursuant to Section 301 to be applicable to the
Securities of any series, the Company may omit to comply with any term,
provision or condition set forth in Section 801, Section 1005 and any other
covenant not set forth herein and specified pursuant to Section 301 to be
applicable to the Securities of such series and subject to this Section 1009,
and any such omission with respect to such Sections shall not be an Event of
Default, in each case with respect to the Securities of such series, provided,
however, that the following conditions have been satisfied:
(1) with respect to all Outstanding Securities of such series and any
coupons appertaining thereto not theretofore delivered to the Trustee for
cancellation,
(i) the Company has deposited or caused to be deposited
with the Trustee as trust funds in trust an amount in the currency or
currency unit in which the Securities of such series are payable
(except as otherwise specified pursuant to Section
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301 for the Securities of such series and except as provided in
Sections 311(b) and 311(d), in which case the deposit to be made with
respect to Securities for which an election has occurred pursuant to
Section 311(b) or a Conversion Event has occurred as provided in
Section 311(d), shall be made in the currency or currency unit in
which such Securities are payable as a result of such election or
Conversion Event), sufficient to pay and discharge the entire
indebtedness on all such Outstanding Securities of such series and any
related coupons for principal (and premium, if any) and interest to
the Stated Maturity or any Redemption Date as contemplated by Section
402, as the case may be; or
(ii) the Company has deposited or caused to be deposited
with the Trustee as obligations in trust such amount of Government
Obligations as will, in a written opinion of independent public
accountants delivered to the Trustee, together with the predetermined
and certain income to accrue thereon (without consideration of any
reinvestment thereof), be sufficient to pay and discharge when due the
entire indebtedness on all such Outstanding Securities of such series
and any related coupons for unpaid principal (and premium, if any) and
interest, if any, to the Stated Maturity or any Redemption Date as
contemplated by Section 402, as the case may be; or
(iii) the Company has deposited or caused to be deposited
with the Trustee such combination of trust funds or obligations in
trust pursuant to (i) and (ii) above, respectively, as will, in a
written opinion of independent public accountants delivered to the
Trustee, together with the predetermined and certain income to accrue
on such obligations in trust, be sufficient to pay and discharge when
due the entire indebtedness on all such Outstanding Securities of such
series any related coupons for principal (and premium if any) and
interest to the Stated Maturity or any Redemption Date as contemplated
by Section 402, as the case may be;
(2) 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;
(3) no Event of Default or event which with the giving of notice or
lapse of time, or both, would become an Event of Default with respect to
the
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Securities of that series shall have occurred and be continuing on the date
of such deposit and no Event of Default under Section 501(6) or Section
501(7) or event which with the giving of notice or lapse of time, or both,
would become an Event of Default under Section 501(6) or Section 501(7)
shall have occurred and be continuing on the 91st day after such date; and
(4) 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 in the Section
have been complied with.
(b) Notwithstanding the satisfaction of the conditions set forth in this
Section 1009 with respect to all the Securities of any series not payable in
Dollars, upon the happening of any Conversion Event the Company shall be
obligated to make the payments in Dollars required by Section 311(d) to the
extent that the Trustee is unable to convert any Foreign Currency or currency
unit in its possession under Section 1009(a) into the Dollar equivalent of such
Foreign Currency or currency unit, as the case may be. If, after the deposit
referred to in Section 1009(a) has been made, (x) the Holder of a Security is
entitled to, and does, elect pursuant to Section 311(b) to receive payment in a
currency or currency unit other than that in which the deposit under Section
1009(a) was made, or (y) a Conversion Event occurs as contemplated in Section
311(d), then the indebtedness represented by such Security shall be fully
discharged to the extent that the deposit made with respect to such Security
shall be converted into the currency or currency unit in which such Security is
payable. The Trustee shall return to the Company any non-converted funds or
securities in its possession after such payments have been made.
All the obligations of the Company under this Indenture with respect to the
Securities of such series, other than with respect to Section 801, Section 1005,
and any other covenant not set forth herein and specified pursuant to Section
301 to be applicable to the Securities of such series and subject to this
Section 1009, shall remain in full force and effect. Anything in this Section
1009 to the contrary notwithstanding, the Trustee for any series of Securities
shall deliver or pay to the Company, from time to time upon Company Request, any
money or Government Obligations held by it as provided in this Section 1009
which, as expressed in a written opinion of independent public accountants
delivered to such Trustee, are in excess of the amount thereof which would have
been required to be deposited for the purpose for which such money or Government
Obligations were deposited or received, provided such delivery can be made
without liquidating any Government Obligations.
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SECTION 1010. Calculation of Original Issue Discount.
The Company shall file with the Trustee promptly at the end of each
calendar year a written notice specifying the amount of original issue discount
(including daily rates and accrual periods) accrued on Outstanding Securities as
of the end of such year.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified as contemplated by Section 301 for Securities of any series) in
accordance with this Article.
SECTION 1102. Tax Redemption; Special Tax Redemption.
(a) Unless otherwise specified pursuant to Section 301, Securities of any
series may be redeemed at the option of the Company in whole, but not in part,
on not more than 60 days' and not less than 30 days' notice, on any Redemption
Date at the Redemption Price specified pursuant to Section 301, if the Company
determines that as a result of any change in or amendment to the laws or
treaties, or any regulations or rulings promulgated thereunder, of the United
States or of any political subdivision or taxing authority thereof or therein
affecting taxation, or any proposed change in such laws, treaties or regulations
or rulings, or any change in the official application, enforcement or
interpretation of such laws, treaties or regulations or filings (including a
holding by a court of competent jurisdiction in the United States) or any other
action (other than an action predicated on law generally known on or before the
date specified in such Security except for proposals before the Congress before
such date) taken by any taxing authority or a court of competent jurisdiction in
the United States, or the official proposal of any such action, whether or not
such action or proposal was taken or made with respect to the Company, (A) the
Security has or will become obligated to pay such Additional Amounts pursuant to
Section 1008 on any Security or coupon or (B) there is a substantial possibility
that the Company will be required to pay such Additional Amounts. Prior to the
publication of any notice of redemption pursuant to this Section 1102(a), the
Company shall deliver to the Trustee (i) an Officers' Certificate stating that
the Company is entitled to effect such redemption and setting forth a statement
of facts showing that the conditions precedent to the right of the Company so to
redeem have occurred, and (ii) an Opinion of Counsel to
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such effect based on such statement of facts. Notice may not be given prior to
60 days before the date on which the Company will or, if applicable, there is a
substantial possibility that the Company will, become obligated to pay such
Additional Amounts if a payment of interest were to be made on such date.
(b) Unless otherwise specified pursuant to Section 301, if the Company
shall determine that any payment made outside the United States by the Company
or any of its Paying Agents in respect of any Bearer Security which is not a
Floating Rate Security (an "Affected Security") would, under any present or
future laws or regulations of the United States, be subject to any
certification, documentation, information or other reporting requirement of any
kind, the effect of which requirement is the disclosure to the Company, any
Paying Agent or any governmental authority of the nationality, residence or
identity of a beneficial owner of such Affected Security that is a United States
Alien (other than such a requirement (i) that would not be applicable to a
payment made by the Company or any one of its Paying Agents (A) directly to the
beneficial owner or (B) to a custodian, nominee or other agent of the beneficial
owner, or (ii) that can be satisfied by such custodian, nominee or other agent
certifying to the effect that the beneficial owner is a United States Alien;
provided that, in any case referred to in clause (i)(B) or (ii), payment by the
custodian, nominee or agent to the beneficial owner is not otherwise subject to
any such requirement), the Company shall elect either (x) (A) in the case of
Affected Securities that are Original Issue Discount Securities, to permit the
Holders of such Affected Securities to elect, but only if done within 90 days
after publication of the Determination Notice as hereunder provided, to
surrender the same for redemption in whole but not in part at the Redemption
Price, and (B) in the case of any other Affected Securities, to redeem such
Affected Securities as a whole but not in part, at the Redemption Price, or (y)
if the conditions of the next succeeding paragraph are satisfied, to pay the
Additional Amounts specified in such paragraph. The Company shall make such
determination as soon as practicable and publish prompt notice thereof (the
"Determination Notice"), stating the effective date of such certification,
documentation, information or reporting requirement, whether the Company elects
to redeem (or, in the case of Original Issue Discount Securities, permit the
Holders to elect to surrender for redemption) the Affected Securities or to pay
the Additional Amounts specified in the next succeeding paragraph, and (if
applicable) the last date by which the redemption of the Affected Securities
must take place. If the Affected Securities are to be redeemed pursuant to this
paragraph, the redemption shall take place on such date, no later than one year
after the publication of the Determination Notice, as the Company shall specify
by notice to the Trustee at least 60 days before the Redemption Date. Notice of
such redemption of the Affected Securities shall be given to the Holders of
Affected Securities not more than 60 days nor less than 30 days prior to the
Redemption Date. Notwithstanding the foregoing, the Company
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shall not so redeem (or, in the case of Original Issue Discount Securities,
permit the Holders to elect to surrender for redemption) the Affected Securities
if the Company shall subsequently determine, not less than 30 days prior to the
Redemption Date, that subsequent payments on the Affected Securities would not
be subject to any such certification, documentation, information or other
reporting requirement, in which case the Company shall publish prompt notice of
such subsequent determination and any earlier redemption notice shall be revoked
and be of no further effect.
If and so long as the certification, documentation, information or other
reporting requirement referred to in the preceding paragraph would be fully
satisfied by payment of a backup withholding tax or similar charge, the Company
may elect to pay such Additional Amounts as may be necessary so that every net
payment made outside the United States following the effective date of such
requirement by the Company or any of its Paying Agents in respect of any
Affected Security of which the beneficial owner is a United States Alien (but
without any requirement that the nationality, residence or identity of such
beneficial owner be disclosed to the Company, any Paying Agent or any
governmental authority), after deduction or withholding for or on account of
such backup withholding tax or similar charge (other than a backup withholding
tax or similar charge which (i) would not be applicable in the circumstances
referred to in the parenthetical clause of the first sentence of the preceding
paragraph, or (ii) is imposed as a result of presentation of any such Affected
Security for payment more than 15 days after the date on which such payment
became due and payable or on which payment thereof was duly provided for,
whichever occurs later), will not be less than the amount provided in any such
Affected Security to be then due and payable. If the Company elects to pay
Additional Amounts pursuant to this paragraph, the Company shall have the right
to redeem (or, in the case of Original Issue Discount Securities, permit the
Holders to elect, but only for the period of 30 days after the publication of
notice of the redemption as hereinafter provided, to surrender for redemption)
the Affected Securities as a whole, but not in part, at any time at the
Redemption Price, subject to the provisions of the last two sentences of the
immediately preceding paragraph. If the Company has made the determination
described in the preceding paragraph with respect to certification,
documentation, information or other reporting requirements applicable only to
interest and subsequently makes a determination in the manner and of the nature
referred to in such preceding paragraph with respect to such requirements
applicable to principal, the Company will redeem the Affected Securities in the
manner and on the terms described in the preceding paragraph unless the Company
elects to have the provisions of this paragraph apply rather than the provisions
of the immediately preceding paragraph. If in such circumstances the Affected
Securities are to be redeemed, the Company shall have no obligation to pay
Additional Amounts pursuant to this paragraph with respect to principal, but
will be
97
obligated to pay such Additional Amounts with respect to interest accrued and
unpaid to the date of such redemption. If the Company elects to pay Additional
Amounts pursuant to this paragraph and the condition specified in the first
sentence of this paragraph should no longer be satisfied, then the Company shall
redeem (or, in the case of Original Issue Discount Securities, permit the
Holders to elect, but only for the period of 30 days after publication of the
notice of redemption as hereinafter provided, to surrender for redemption) the
Affected Securities in whole, but not in part, at the Redemption Price subject
to the provisions of the last two sentences of the immediately preceding
paragraph. If the Company elects to, or is required to, redeem (or, in the case
of Original Issue Discount Securities, is required to permit Holders to elect or
surrender for redemption) the Affected Securities pursuant to the two
immediately preceding sentences, it shall publish in the manner and to the
extent provided in Section 106 prompt notice thereof. If the Affected
Securities are to be redeemed pursuant to this paragraph, the redemption shall
take place on such date, not later than one year after publication of the notice
of redemption, as the Company shall specify by notice to the Trustee at least 60
days prior to the Redemption Date. Any redemption payments made by the Company
pursuant to this paragraph shall be subject to the continuing obligation of the
Company to pay Additional Amounts pursuant to this paragraph.
SECTION 1103. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by
a Board Resolution. In case of any redemption at the election of the Company of
the Securities of any series, the Company shall, at least 60 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and of
the principal amount of Securities of such series to be redeemed. 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 1104. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by lot or such other method as
the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or
98
any integral multiple thereof) of the principal amount of Securities of such
series of a denomination larger than the minimum authorized denomination for
Securities of that series pursuant to Section 302 in the currency or currency
unit in which the Securities of such series are denominated. The portions of
the principal amount of Securities so selected for partial redemption shall be
equal to the minimum authorized denominations for Securities of such series
pursuant to Section 302 in the currency or currency unit in which the Securities
of such series are denominated or any integral multiple thereof, except as
otherwise set forth in the applicable form of Securities.
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
SECTION 1105. Notice of Redemption.
Except as otherwise provided herein, notice of redemption shall be given in
the manner provided in Section 106 not less than 30 nor more than 60 days prior
to the Redemption Date to each Holder of Securities to be redeemed.
All notices of redemption shall identify the Securities to be redeemed
(including CUSIP number) and shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Securities or portions thereof 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, together in the case
of Bearer Securities with all coupons appertaining thereto, if any,
maturing after
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the Redemption Date, are to be surrendered for payment of the Redemption
Price,
(6) that the redemption is for a sinking fund, if such is the case,
(7) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all coupons maturing subsequent to the date fixed for
redemption or the amount of any such missing coupon or coupons will be
deducted from the Redemption Price, and
(8) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such
Bearer Securities may be exchanged for Registered Securities not subject to
redemption on this Redemption Date pursuant to Section 305 or otherwise,
the last date on which such exchanges may be made.
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 1106. 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 in
the currency or currency unit in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 301 for the Securities of
such series and except as provided in Sections 311(b) and 311(d)) sufficient to
pay the Redemption Price of, and accrued interest, if any, on all the Securities
or portions thereof which are to be redeemed on that date.
SECTION 1107. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities or
portions thereof so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, together with accrued
interest, if any, to the Redemption Date in the currency or currency unit in
which the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series and except as provided
in Sections 311(b) and 311(d)), and from and after such date (unless the Company
shall default in the payment of the Redemption Price and accrued interest, if
any) such Securities or portions thereof shall cease to bear interest
100
and the coupons for such interest appertaining to any Bearer Securities so to be
redeemed, except to the extent provided below, shall be void. Upon surrender of
any such Security for redemption in accordance with said notice, together with
all coupons, if any, appertaining thereto maturing after the Redemption Date,
such Security or specified portions thereof shall be paid by the Company at the
Redemption Price, together with accrued interest, if any, to the Redemption
Date; provided, however, that installments of interest on Bearer Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable
only at an office or agency located outside the United States (except as
otherwise provided in Section 1002) and, unless otherwise specified as
contemplated by Section 301, only upon presentation and surrender of coupons for
such interest, and provided, further, that unless otherwise specified as
contemplated by Section 301, installments of interest on Registered Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be accompanied
by all coupons appertaining thereto maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company if there is furnished to it such
security or indemnity as it may require to save the Company and any Paying Agent
harmless. If thereafter the Holder of such Security shall surrender to the
Trustee or any Paying Agent any such missing coupon in respect of which a
deduction shall have been made from the Redemption Price, such Holder shall be
entitled to receive the amount so deducted; provided, however, that interest
represented by coupons shall be payable only at an office or agency located
outside the United States (except as otherwise provided in Section 1002) and,
unless otherwise specified as contemplated by Section 301, only upon
presentation and surrender of those coupons.
If funds for the payment of any Security called for redemption shall not be
so provided for, the principal (and premium, if any) shall, until paid, bear
interest from the Redemption Date at the rate prescribed therefor in the
Security.
SECTION 1108. Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof
or his attorney duly authorized in writing), and the Company shall
101
execute, and the Trustee shall authenticate and make available for delivery to
the Holder of such Security without service charge, a new Registered Security or
Securities of the same series, of any authorized denomination as requested by
such Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of 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.
SECTION 1202. Satisfaction of Mandatory Sinking Fund Payments
with Securities.
The Company (1) may deliver Outstanding Securities of a series (other than
any previously called for redemption), together in the case of any Bearer
Securities of such series with all unmatured coupons appertaining thereto, and
(2) may apply as a credit Securities of a series which have been redeemed either
at the election of the Company pursuant to the terms of such Securities or
through the application of permitted optional sinking fund payments pursuant to
the terms of such Securities, in each case in satisfaction of all or any part of
any mandatory 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 mandatory sinking
fund payment shall be reduced accordingly.
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SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 60 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 mandatory 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 in the currency or
currency unit in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such series
and except as provided in Sections 311(b) and 311(d)) 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 45 days before each such mandatory
sinking fund payment date the Trustee shall select the Securities to be redeemed
upon such mandatory sinking fund payment date in the manner specified in Section
1104 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 1105. Such
notice having been duly given, the redemption of such Securities shall be made
upon the terms and in the manner stated in Sections 1107 and 1108.
ARTICLE THIRTEEN
MEETINGS OF HOLDERS OF SECURITIES
13
SECTION 1301. Purposes for Which Meetings May Be Called.
If Securities of a series are issuable as Bearer Securities, a meeting of
Holders of Securities of such series may be called at any time and from time to
time pursuant to this Article Thirteen to make, give or take any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be made, given or taken by Holders of Securities
of such series.
SECTION 1302. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of Securities of
any series for any purpose specified in Section 1301, to be held at such time
and at such place in the Borough of Manhattan, The City of New York, or in
London, as the Trustee shall determine. Notice of every meeting of Holders of
Securities of any series, setting forth the time and the place of such meeting
and in general terms the action proposed to be taken at such meeting, shall be
given, in the manner provided in Section 106, not less than 20 nor more then 180
days prior to the date fixed for the meeting.
103
(b) In case at any time the Company, pursuant to a Board Resolution, or
the Holders of at least 10% in principal amount of the Outstanding Securities of
any series shall have requested the Trustee to call a meeting of the Holders of
Securities of such series for any purpose specified in Section 1301, by written
request setting forth in reasonable detail the action proposed to be taken at
the meeting, and the Trustee shall not have made the first publication of the
notice of such meeting within 30 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as provided herein, then the
Company or the Holders of Securities of such series in the amount above
specified, as the case may be, may determine the time and the place in the
Borough of Manhattan, The City of New York, or in London, for such meeting and
may call such meeting for such purposes by giving notice thereof as provided in
subsection (a) of this Section.
SECTION 1303. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding Securities of
such series, or (2) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more Outstanding Securities of such series by such
Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Persons
entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its counsel.
SECTION 1304. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series; provided, however, that if any action is
to be taken at such meeting with respect to a consent or waiver which this
Indenture expressly provides may be given by the Holders of not less than
66 2/3% in principal amount of the Outstanding Securities of a series, then
the Persons entitled to vote 66 2/3% in principal amount of the Outstanding
Securities of such series shall constitute a quorum. In the absence of a
quorum within 30 minutes of the time appointed for any such meeting, the
meeting shall, if convened at the request of Holders of Securities of such
series, be dissolved. In any other case the meeting may be adjourned for a
period of not less than 10 days as determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence of a quorum at any
such adjourned meeting, such adjourned meeting may be further adjourned for
a period of not less than 10 days as determined by the chairman of the
meeting prior to the adjournment of such adjourned meeting.
104
Notice of the reconvening of any adjourned meeting shall be given as provided in
Section 1302(a), except that such notice need be given only once not less than
five days prior to the date on which the meeting is scheduled to be reconvened.
Notice of the reconvening of an adjourned meeting shall state expressly the
percentage, as provided above, of the principal amount of the Outstanding
Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted by the affirmative vote of the Holders of a majority
in principal amount of the Outstanding Securities of that series; provided,
however, that, except as limited by the proviso to Section 902, any resolution
with respect to any consent or waiver which this Indenture expressly provides
may be given by the Holders of not less than 66 2/3% in principal amount of the
Outstanding Securities of a series may be adopted at a meeting or an adjourned
meeting duly convened and at which a quorum is present as aforesaid only by the
affirmative vote of the Holders of 66 2/3% in principal amount of the
Outstanding Securities of that series; and provided, further, that, except as
limited by the proviso to Section 902, any resolution with respect to any
request, demand, authorization, direction, notice, consent, waiver or other
action which this Indenture expressly provides may be made, given or taken by
the Holders of a specified percentage, which is less than a majority, in
principal amount of the Outstanding Securities of a series may be adopted at
a meeting or an adjourned meeting duly reconvened and at which a quorum is
present as aforesaid by the affirmative vote of the Holders of such specified
percentage in principal amount of the Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related coupons,
whether or not present or represented at the meeting.
SECTION 1305. Determination of Voting Rights; Conduct and
Adjournment of Meetings.
(a) Notwithstanding any other provision of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities of a series in regard to proof of the holding of
Securities of such series and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall deem appropriate.
Except as otherwise permitted or required by any such regulations, the holding
of
105
Securities shall be proved in the manner specified in Section 104 and the
appointment of any proxy shall be proved in the manner specified in Section 104
or by having the signature of the person executing the proxy witnessed or
guaranteed by any trust company, bank or banker authorized by Section 104 to
certify to the holding of Bearer Securities. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of Securities as provided in Section 1302(b), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy shall
be entitled to one vote for each $1,000 principal amount (or such other amount
as shall be specified as contemplated by Section 301) of Securities of such
series held or represented by him; provided, however, that no vote shall be cast
or counted at any meeting in respect of any Security challenged as not
Outstanding and ruled by the chairman of the meeting to be not Outstanding. The
chairman of the meeting shall have no right to vote, except as a Holder of a
Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 1302 at which a quorum is present may be adjourned from time
to time by Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
SECTION 1306. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in triplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of
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Securities of any series shall be prepared by the secretary of the meeting and
there shall be attached to said record the original reports of the inspectors of
votes on any vote by ballot taken thereat and affidavits by one or more persons
having knowledge of the facts setting forth a copy of the notice of the meeting
and showing that said notice was given as provided in Section 1302 and, if
applicable, Section 1304. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
EXHIBIT A
FORM OF CERTIFICATE TO BE GIVEN BY PERSON
ENTITLED TO RECEIVE BEARER SECURITY
CERTIFICATE
-----------
[Insert Title or Sufficient Description of
Securities to be Delivered]
(the "Securities")
This is to certify that as of the date hereof, and except as set forth
below, the above-captioned Securities held by you for our account (i) are owned
by persons that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of which
is subject to the United States Federal income taxation regardless of its source
("United States persons"), (ii) are owned by United States person(s) that (a)
are foreign branches of a United States financial institution (as defined in
U.S. Treasury Regulations Section 1.165-12(c)(1)(v) ("financial institutions")
purchasing for their own account or for resale, or (b) acquired the Securities
through foreign branches of United States financial institutions and who hold
the Securities through such United States financial institutions on the date
hereof (and in either case (a) or (b), each such United States financial
institution hereby agrees, on its own behalf or through its agent, that you may
advise the issuer or the issuer's agent that it will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of
1986, as amended, and the regulations thereunder), or (iii) are owned by United
States or foreign financial institution(s) for purposes of resale during the
restricted period (as defined in U.S. Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and in addition if the owner of the Securities is a
United States or foreign financial institution described in clause (iii) above
(whether or not also described in clause (i) or (ii)) this is to further certify
that such financial institution has not acquired the Securities for purposes of
resale directly or indirectly to a United States person or to a person within
the United States or its possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the date
on which you intend to submit your certification relating to the Securities held
by you for our account in accordance with your operating procedures if any
applicable statement herein is not correct on such date, and in
2
the absence of any such notification it may be assumed that this certification
applies as of such date.
This certificate excepts and does not relate to $__________ of such
interest in the above Securities in respect of which we are not able to certify
and as to which we understand exchange and delivery of definitive Securities
(or, if relevant, exercise of any rights or collection of any interest) cannot
be made until we do so certify.
We understand that this certification is required in connection with
certain tax laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certification is or would be relevant, we irrevocably authorize
you to produce this certification to any interested party in such proceedings.
Date:_____________, 19__1/
-
By:___________________________________________________
As, or as agent for, the beneficial owner(s) of the
Securities to which this certificate relates.
--------------------
1/ Not earlier than 15 days prior to the Exchange Date or
-
Interest Payment Date to which the certification
relates.
EXHIBIT B
FORM OF CERTIFICATION TO BE GIVEN
BY THE EUROCLEAR OPERATOR OR CEDEL
CERTIFICATE
[Insert title or sufficient description
of Securities to be delivered]
This is to certify that, based solely on certifications we have received in
writing, by tested telex or by electronic transmission from member organizations
appearing in our records as persons being entitled to a portion of the principal
amount of the above-captioned Securities as of the date hereof,
[_______________] principal amount of these Securities (i) is owned by persons
that are not citizens or residents of the United States, domestic partnerships,
domestic corporations or any estate or trust the income of which is subject to
United States Federal income taxation regardless of its source ("United States
persons"), (ii) is owned by United States persons that (a) are foreign branches
of United States financial institutions (as defined in U.S. Treasury Regulations
Section 1.165-12(c)(1)(v) ("financial institutions")) purchasing for their own
account or for resale, or (b) acquired any Securities through foreign branches
of United States financial institutions on the date hereof (and in either case
(a) or (b), each such United States financial institution has agreed, on its own
behalf or through its agent, that we may advise the Issuer or the Issuer's agent
that it will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of
the Internal Revenue Code of 1986, as amended, and the regulations thereunder),
or (iii) is owned by United States or foreign financial institutions for
purposes of resale during the restricted period (as defined in U.S. Treasury
Regulations Section 1.163-5(c)(2)(i)(D)(7), and to the further effect that
United States or foreign financial institutions described in clause (iii) above
(whether or not also described in clause (i) or (ii)) have certified that they
have not acquired the Securities for purposes of resale directly or indirectly
to a United States person or to a person within the United States or its
possessions.
We further certify (i) that we are not making available herewith for
exchange (or, if relevant, exercise of any rights or collection of any interest)
any portion of the temporary global Security excepted in such certifications and
(ii) that as of the date hereof we have not received any notification from any
of our Member Organizations to the effect that the statements made by such
Member Organizations with respect to any such portion of the part submitted
herewith for exchange (or, if relevant, exercise of any rights or collection of
any interest) are no longer true and cannot be relied upon as of the date
hereof.
2
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We understand that this certification is required in connection with
certain tax laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certification is or would be relevant, we irrevocably authorize
you to produce this certification to any interested party in such proceedings.
Date:____________, 19__2/
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[Cedel]
By:___________________________
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2/ Not earlier than the relevant Exchange Date or Interest
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Payment Date to which the certification relates.
