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EXHIBIT 4.6
APACHE CORPORATION,
Issuer
to
THE CHASE MANHATTAN BANK,
Trustee
-----------------------
INDENTURE
------------------------
Dated as of __________, 2000
Subordinated Debt Securities
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Reconciliation and tie between
Trust Indenture Act of 1939 (the "Trust Indenture Act")
and Indenture
Trust Indenture
Act Section Indenture Section
Section 310(a)(1) 607
(a)(2) 607
(b) 608
Section 311 604
Section 312(a) 701
(b) 702
(c) 702
Section 313(a) 703
(c) 703
(d) 703
Section 314(a) 704
(c)(1) 102
(c)(2) 102
(e) 102
(f) 102
Section 315(a) 303
(b) 303
(c) 303
(d) 303
(e) 608
Section 316(a)(last sentence) 101
(a)(1)(A) 502,512
(a)(1)(B) 513
(b) 508
Section 317(a)(1) 503
(a)(2) 504
(b) 1003
Section 318(a) 108
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Note: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture.
Attention should also be directed to Section 318(c) of the Trust
Indenture Act, which provides that the provisions of Sections 310 to and
including 317 are a part of and govern every qualified indenture, whether or not
physically contained therein.
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TABLE OF CONTENTS
RECITALS..........................................................................................................1
ARTICLE 1.
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions.....................................................................................1
"Act".......................................................................................................2
"Additional Amounts"........................................................................................2
"Affiliate..................................................................................................2
"Authenticating Agent"......................................................................................2
"Authorized Newspaper"......................................................................................2
"Bearer Security"...........................................................................................2
"Board of Directors"........................................................................................3
"Board Resolution"..........................................................................................3
"Business Day"..............................................................................................3
"Change in Control".........................................................................................3
"Change in Control Purchase Date"...........................................................................3
"Change in Control Purchase Notice".........................................................................3
"Change in Control Purchase Price"..........................................................................3
"Commission"................................................................................................3
"Common Stock"..............................................................................................3
"Company"...................................................................................................3
"Company Request" and "Company Order".......................................................................3
"Conversion Agent"..........................................................................................3
"Conversion Event".........................................................................................3
"Corporate Trust Office"....................................................................................4
"Corporation"...............................................................................................4
"Coupon"....................................................................................................4
"Currency"..................................................................................................4
"CUSIP number"..............................................................................................4
"Default"...................................................................................................4
"Defaulted Interest"........................................................................................4
"Direct Action".............................................................................................4
"Dollars" or "$"............................................................................................4
"EC Treaty".................................................................................................4
"Euro"......................................................................................................4
"European Monetary System"..................................................................................4
"Event of Default"..........................................................................................4
"Foreign Currency"..........................................................................................4
"GAAP"......................................................................................................5
"Government Obligations"....................................................................................5
"Holder"....................................................................................................5
"Indebtedness"..............................................................................................5
"Indebtedness Ranking on a Parity with the Securities"......................................................6
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"Indebtedness Ranking Junior to the Securities".............................................................6
"Indenture".................................................................................................6
"Independent Public Accountants"............................................................................6
"Indexed Security"..........................................................................................6
"Interest"..................................................................................................6
"Interest Payment Date".....................................................................................7
"Judgment Currency".........................................................................................7
"Legal Holidays"............................................................................................7
"Maturity"..................................................................................................7
"New York Banking Day"......................................................................................7
"Office" or "Agency"........................................................................................7
"Officers' Certificate".....................................................................................7
"Opinion of Counsel"........................................................................................7
"Original Issue Discount Security"..........................................................................7
"Outstanding"...............................................................................................7
"Paying Agent"..............................................................................................9
"Person"....................................................................................................9
"Place of Payment"..........................................................................................9
"Predecessor Security"......................................................................................9
"Preferred Securities"......................................................................................9
"Redemption Date"...........................................................................................9
"Redemption Price"..........................................................................................9
"Registered Security".......................................................................................9
"Regular Record Date".......................................................................................9
"Required Currency".........................................................................................9
"Responsible Officer".......................................................................................9
"Security" or "Securities".................................................................................10
"Security Register" and "Security Registrar"...............................................................10
"Senior Indebtedness"......................................................................................10
"Special Record Date"......................................................................................10
"Stated Maturity"..........................................................................................10
"Subsidiary"...............................................................................................10
"Trust"....................................................................................................10
"Trust Agreement"..........................................................................................10
"Trust Indenture Act"......................................................................................10
"Trust Securities".........................................................................................10
"Trustee"..................................................................................................10
"United States"............................................................................................11
"United States Alien"......................................................................................11
"U.S. Depository" or "Depository"..........................................................................11
"Vice President"...........................................................................................11
"Voting Stock".............................................................................................11
Section 102. Compliance Certificates and Opinions...........................................................11
Section 103. Form of Documents Delivered to Trustee.........................................................12
Section 104. Acts of Holders and Holders of Preferred Securities............................................12
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Section 105. Notices, etc. to Trustee and Company...........................................................14
Section 106. Notice to Holders of Securities; Waiver........................................................15
Section 107. Language of Notices............................................................................16
Section 108. Conflict with Trust Indenture Act..............................................................16
Section 109. Effect of Headings and Table of Contents.......................................................16
Section 110. Successors and Assigns.........................................................................16
Section 111. Separability Clause............................................................................16
Section 112. Benefits of Indenture..........................................................................16
Section 113. Governing Law..................................................................................16
Section 114. Legal Holidays.................................................................................17
Section 115. Counterparts...................................................................................17
Section 116. Judgment Currency..............................................................................17
ARTICLE 2.
SECURITIES FORM
Section 201. Forms Generally................................................................................18
Section 202. Form of Trustee's Certificate of Authentication................................................18
Section 203. Securities in Global Form......................................................................18
ARTICLE 3.
THE SECURITIES
Section 301. Amount Unlimited, Issuable in Series...........................................................19
Section 302. Currency; Denominations........................................................................23
Section 303. Execution, Authentication, Delivery and Dating.................................................23
Section 304. Temporary Securities...........................................................................25
Section 305. Registration, Transfer and Exchange............................................................26
Section 306. Mutilated, Destroyed, Lost and Stolen Securities...............................................29
Section 307. Payment of Interest and Certain Additional Amounts; Rights to Interest and
Certain Additional Amounts Preserved...........................................................30
Section 308. Persons Deemed Owners..........................................................................32
Section 309. Cancellation...................................................................................33
Section 310. Computation of Interest........................................................................33
ARTICLE 4.
SATISFACTION AND DISCHARGE OF INDENTURE
Section 401. Satisfaction and Discharge.....................................................................33
Section 402. Defeasance and Covenant Defeasance.............................................................35
Section 403. Application of Trust Money.....................................................................39
Section 404. Reinstatement..................................................................................39
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ARTICLE 5.
REMEDIES
Section 501. Events of Default..............................................................................40
Section 502. Acceleration of Maturity: Rescission and Annulment.............................................41
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee................................43
Section 504. Trustee May File Proofs of Claim...............................................................43
Section 505. Trustee May Enforce Claim without Possession of Securities or Coupons..........................44
Section 506. Application of Money Collected.................................................................44
Section 507. Limitations on Suits...........................................................................45
Section 508. Unconditional Right of Holders to Receive Principal and any Premium, Interest and
Additional Amounts.............................................................................46
Section 509. Restoration of Rights and Remedies.............................................................46
Section 510. Rights and Remedies Cumulative.................................................................46
Section 511. Delay or Omission Not Waiver...................................................................47
Section 512. Control by Holders of Securities...............................................................47
Section 513. Waiver of Past Defaults........................................................................47
Section 514. Waiver of Stay or Extension Laws...............................................................48
Section 515. Undertaking for Costs..........................................................................48
Section 516. Direct Action Right of Holders of Trust Preferred Securities...................................48
ARTICLE 6.
THE TRUSTEE
Section 601. Certain Rights of Trustee......................................................................49
Section 602. Notice of Defaults.............................................................................50
Section 603. Not Responsible for Recitals or Issuance of Securities.........................................50
Section 604. May Hold Securities............................................................................51
Section 605. Money Held in Trust............................................................................51
Section 606. Compensation and Reimbursement.................................................................51
Section 607. Corporate Trustee Require; Eligibility.........................................................52
Section 608. Resignation and Removal, Appointment of Successor..............................................52
Section 609. Acceptance of Appointment by Successor.........................................................54
Section 610. Merger, Conversion, Consolidation or Succession to Business....................................55
Section 611. Appointment of Authenticating Agent............................................................55
ARTICLE 7.
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and Addresses of Holders......................................57
Section 702. Preservation of Information; Communications to Holders.........................................57
Section 703. Reports by Trustee.............................................................................58
Section 704. Reports by Company.............................................................................58
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ARTICLE 8.
CONSOLIDATION, MERGER AND SALES
Section 801. Company May Consolidate, Etc., Only on Certain Terms...........................................59
Section 802. Successor Person Substituted for Company.......................................................59
ARTICLE 9.
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures without Consent of Holders.............................................60
Section 902. Supplemental Indentures with Consent of Holders................................................61
Section 903. Execution of Supplemental Indentures...........................................................62
Section 904. Effect of Supplemental Indentures..............................................................63
Section 905. Reference in Securities to Supplemental Indentures.............................................63
Section 906. Conformity with Trust Indenture Act............................................................63
ARTICLE 10.
COVENANTS
Section 1001. Payment of Principal, any Premium and Interest.................................................63
Section 1002. Maintenance of Office or Agency................................................................64
Section 1003. Money for Securities Payments to Be Held in Trust..............................................65
Section 1004. Additional Amounts.............................................................................67
Section 1005. No Restriction on Indebtedness or Liens........................................................68
Section 1006. Corporate Existence............................................................................68
Section 1007. Payment of Expenses of Each Trust..............................................................68
Section 1008. Waiver of Certain Covenants....................................................................68
Section 1009. Company Statement as to Compliance; Notice of Certain Defaults.................................68
ARTICLE 11.
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article.......................................................................69
Section 1102. Election to Redeem; Notice to Trustee..........................................................69
Section 1103. Selection by Trustee of Securities to be Redeemed..............................................69
Section 1104. Notice of Redemption...........................................................................70
Section 1105. Deposit of Redemption Price....................................................................71
Section 1106. Securities Payable on Redemption Date..........................................................71
Section 1107. Securities Redeemed in Part....................................................................72
ARTICLE 12.
REPAYMENT AT THE OPTION OF HOLDERS
Section 1201. Applicability of Article.......................................................................73
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ARTICLE 13.
SECURITIES IN FOREIGN CURRENCIES
Section 1301. Applicability of Article.......................................................................73
ARTICLE 14.
MEETINGS OF HOLDERS OF SECURITIES
Section 1401. Purposes for Which Meetings May Be Called......................................................74
Section 1402. Call, Notice and Place of Meetings.............................................................74
Section 1403. Persons Entitled to Vote at Meetings...........................................................74
Section 1404. Quorum; Action.................................................................................75
Section 1405. Determination of Voting Rights, Conduct and Adjournment of Meetings............................75
Section 1406. Counting Votes and Recording Action of Meetings................................................76
ARTICLE 15.
PURCHASE OF SECURITIES UPON CHANGE IN CONTROL
Section 1501. Purchase of Securities at Option of the Holder upon Change in Control..........................77
Section 1502. Effect of Change in Control Purchase Notice....................................................80
Section 1503. Deposit of Change in Control Purchase Price....................................................80
Section 1504. Covenant to Comply With Securities Laws Upon Purchase of Securities............................81
Section 1505. Repayment to the Company.......................................................................81
ARTICLE 16.
SUBORDINATION
Section 1601. Securities Subordinated to Senior Indebtedness.................................................81
Section 1602. Priority and Payment of Proceeds in Certain Events: Remedies Standstill........................81
Section 1603. Payments which May Be Made Prior to Notice.....................................................83
Section 1604. Rights of Holders of Senior Indebtedness Not to Be Impaired....................................83
Section 1605. Trustee May Take Action to Effectuate Subordination............................................83
Section 1606. Subrogation....................................................................................83
Section 1607. Obligations of Company Unconditional; Reinstatement............................................84
Section 1608. Trustee Entitled to Assume Payments Not Prohibited in Absence of Notice........................84
Section 1609. Right of Trustee to Hold Senior Indebtedness...................................................85
Section 1610. Notice to Trustee..............................................................................85
Section 1611. Reliance on Judicial Order or Certificate of Liquidating Agent.................................86
Section 1612. Trustee Not Fiduciary for Holders of Senior Indebtedness.......................................86
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INDENTURE, dated as of ____________, 2000 (the "Indenture"), among
APACHE CORPORATION, a corporation duly organized and existing under the laws of
the State of Delaware (hereinafter called the "Company"), having its principal
executive office located at One Post Oak Central, 0000 Xxxx Xxx Xxxxxxxxx, Xxxxx
000, Xxxxxxx, Xxxxx 00000-0000, and The Chase Manhattan Bank, a banking
corporation duly organized and existing under the laws of the State of New York
(hereinafter called the "Trustee"), having its Corporate Trust Office located at
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
RECITALS
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its subordinated
unsecured debentures, notes or other evidence of Indebtedness (hereinafter
called the "Securities"), unlimited as to principal amount, to bear such rates
of interest, to mature at such time or times, to be issued in one or more series
and to have such other provisions as shall be fixed as hereinafter provided.
The Company may from time to time create or establish one or more
statutory business trusts for the purpose of issuing undivided beneficial
interests in the assets thereof and using the proceeds thereof to acquire the
Company's Securities.
The Company has duly authorized the execution and delivery of this
Indenture. All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
This Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, and the rules and regulations of the Securities and
Exchange Commission promulgated thereunder that are required to be part of this
Indenture and, to the extent applicable, shall be governed by such provisions.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders (as herein defined) thereof, it is mutually covenanted
and agreed, for the equal and proportionate benefit of all Holders of the
Securities or of any series thereof and any Coupons (as herein defined) as
follows:
ARTICLE 1.
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions.
Except as otherwise expressly provided in or pursuant to this Indenture
or unless the context otherwise requires, for all purposes of this Indenture:
(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;
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(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles and, except as otherwise herein expressly
provided, the terms "generally accepted accounting principles" or
"GAAP" with respect to any computation required or permitted hereunder
shall mean such accounting principles as are generally accepted at the
date of such computation;
(4) the words "herein", "hereof", "hereto" 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; and
(5) the word "or" is always used inclusively (for example, the
phrase "A or B" means "A or B or both", not "either A or B but not
both").
Certain terms used principally in certain Articles hereof are defined
in those Articles.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Additional Amounts" means any additional amounts which are required
hereby or by any Security, under circumstances specified herein or therein, to
be paid by the Company in respect of certain taxes, assessments or other
governmental charges imposed on Holders specified therein and which are owing to
such Holders.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control", when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have the meanings correlative to
the foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 611 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Authorized Newspaper" means a newspaper, in an official language of
the place of publication or in the English language, customarily published on
each day that is a Business Day in the place of publication, whether or not
published on days that are Legal Holidays in the place of publication, and of
general circulation in each place in connection with which the term is used or
in the financial community of each such place. Where successive publications are
required to be made in Authorized Newspapers, the successive publications may be
made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any day that is a Business Day in the
place of publication.
"Bearer Security" means any Security in the form established pursuant
to Section 201 which is payable to bearer.
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"Board of Directors" means the board of directors of the Company or any
committee of that board duly authorized to act generally or in any particular
respect for the Company hereunder.
"Board Resolution" means a copy of one or more resolutions, 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, delivered to the Trustee.
"Business Day", with respect to any Place of Payment or other location,
means, unless otherwise specified with respect to any Securities pursuant to
Section 301, any day other than a Saturday, Sunday or other day on which banking
institutions in such Place of Payment or other location are authorized or
obligated by law, regulation or executive order to close.
"Change in Control" has the meaning specified in Section 1501.
"Change in Control Purchase Date" has the meaning specified in Section
1501.
"Change in Control Purchase Notice" has the meaning specified in
Section 1501.
"Change in Control Purchase Price" has the meaning specified in Section
1501.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the execution of this Indenture such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"Common Stock" includes any stock of any class of the Company which has
no preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the Company
and which is not subject to redemption by the Company.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture and thereafter "Company"
shall mean such successor Person.
"Company Request" and "Company Order" mean, respectively, a written
request or order, as the case may be, signed in the name of the Company by the
Chairman of the Board of Directors, a Vice Chairman, 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.
"Conversion Agent" means any Person authorized by the Company to
convert or exchange any Security pursuant to its terms on behalf of the Company.
"Conversion Event" means the cessation of use of (i) a Foreign Currency
(other than the Euro) both by the government of the country or the confederation
which issued such Foreign Currency and for the settlement of transactions by a
central bank or other public institutions of
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or within the international banking community, (ii) the Euro both within the
European Monetary System and for the settlement of transactions by public
institutions of or within the European Monetary System or (iii) any currency
unit or composite currency other than the Euro for the purposes for which it was
established.
"Corporate Trust Office" means the principal corporate trust office of
the Trustee at which at any particular time its corporate trust business shall
be administered, which office at the date of original execution of this
Indenture is located at 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000.
"Corporation" includes corporations and limited liability companies
and, except, for purposes of Article Eight, associations, companies and business
trusts.
"Coupon" a means any interest coupon appertaining to a Bearer Security.
"Currency," with respect to any payment, deposit or other transfer in
respect of the principal of or any premium or interest on or any Additional
Amounts with respect to any Security, means Dollars or the Foreign Currency, as
the case may be, in which such payment, deposit or other transfer is required to
be made by or pursuant to the terms hereof or such Security and, with respect to
any other payment, deposit or transfer pursuant to or contemplated by the terms
hereof or such Security, means Dollars.
"CUSIP number" means the alphanumeric designation assigned to a
Security by Standard & Poor's Ratings Group, CUSIP Service Bureau.
"Default" means any event which is, or after notice or passage of time,
or both, would be, an Event of Default pursuant to Section 501.
"Defaulted Interest" has the meaning specified in Section 307.
"Direct Action" has the meaning specified in Section 516.
"Dollars" or "$" means a dollar or other equivalent unit of legal
tender for payment of public or private debts in the United States of America.
"EC Treaty" means the treaty establishing the European Community
(signed in Rome on 25th March, 1957), as amended by the Treaty on European Union
(signed in Maastricht on 7th February, 1992).
"Euro" means the lawful currency of the member states of the European
Union that adopt the single currency in accordance with the EC Treaty.
"European Monetary System" means the European Economic and Monetary
Union.
"Event of Default" has the meaning specified in Section 501.
"Foreign Currency" means any currency, currency unit or composite
currency, including, without limitation, the Euro, issued by the government of
one or more countries
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other than the United States of America or by any recognized confederation or
association of such governments.
"GAAP" means such accounting principles as are generally accepted in
the United States of America as of the date or time of any computation required
hereunder.
"Government Obligations" means securities which are (i) direct
obligations of the United States of America or the other government or
governments in the confederation which issued the Foreign Currency in which the
principal of or any premium or interest on such security or any additional
amounts in respect thereof shall be payable, in each case where the payment or
payments thereunder are supported by the full faith and credit of such
government or governments or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America or such other government or governments, in each case where the timely
payment or payments thereunder are unconditionally guaranteed as a full faith
and credit obligation by the United States of America or such other government
or governments, and which, in the case of (i) or (ii), are not callable or
redeemable at the option of the issuer or issuers thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such Government Obligation or a specific payment of interest on
or principal of or other amount with respect to any such Government Obligation
held by such custodian for the account of the holder of a depository receipt,
provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the Government
Obligation or the specific payment of interest on or principal of or other
amount with respect to the Government Obligation evidenced by such depository
receipt.
"Holder," in the case of any Registered Security, means the Person in
whose name such Security is registered in the Security Register and, in the case
of any Bearer Security, means the bearer thereof and, in the case of any Coupon,
means the bearer thereof.
"Indebtedness," with respect to any Person, means (a) indebtedness for
borrowed money and deferred payment obligations representing the unpaid purchase
price of real or personal property of, or guaranteed by, such Person, other than
accounts payable arising in the ordinary course of business payable on terms
customary in the trade, (b) indebtedness secured by Liens (as defined in Section
1005) or payable out of the proceeds of production from property, (c)
indebtedness which is evidenced by mortgages, notes, bonds, debentures,
acceptances or other instruments, (d) indebtedness which must be capitalized as
liabilities under GAAP, (e) liabilities under interest rate swap, exchange,
collar or cap agreements and all other agreements or arrangements designed to
protect against fluctuations in interest rates or currency exchange rates, (f)
liabilities under commodity hedge, commodity swap, exchange, collar or cap
agreements, fixed price agreements and all other agreements or arrangements
designed to protect against fluctuations in oil and gas prices, (g) guarantees
and endorsements of obligations of others, directly or indirectly, and all
other repurchase agreements and indebtedness in effect guaranteed through an
agreement, contingent or otherwise, to purchase such indebtedness, or to
purchase or sell property, or to purchase or sell services, primarily for the
purpose of enabling the debtor to make payment of the indebtedness or to assure
the owner of the indebtedness against loss, or to supply funds to or in any
manner invest in the debtor, or otherwise to assure a creditor against loss (but
excluding guarantees and endorsements of notes, bills and checks made in the
ordinary course of business); and (h) indebtedness relative to the amount of all
letters of credit; provided, however, that such term shall not include any
amounts included as deferred credits on the financial statements of such Person
or of a consolidated group including such Person, and computed in accordance
with GAAP.
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"Indebtedness Ranking on a Parity with the Securities" means (i)
Indebtedness, whether outstanding on the date of execution of this Indenture or
thereafter created, assumed or incurred, to the extent such Indebtedness
specifically by its terms ranks pari passu with and not prior to the Securities
in the right of payment upon the happening of the dissolution, winding-up,
liquidation or reorganization of the Company.
"Indebtedness Ranking Junior to the Securities" means any Indebtedness,
whether outstanding on the date of execution of this Indenture or thereafter
created, assumed or incurred, to the extent such Indebtedness by its terms ranks
junior to and not pari passu with or prior to the Securities (and any other
Indebtedness Ranking on a Parity with the Securities) in right of payment upon
the happening of the dissolution, winding-up, liquidation or reorganization of
the Company. The securing of any Indebtedness otherwise constituting
Indebtedness Ranking Junior to the Securities shall not be deemed to prevent
such Indebtedness from constituting Indebtedness Ranking Junior to the
Securities.
"Indenture" means this instrument 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, with respect to any
Security, by the terms and provisions of such Security and any Coupon
appertaining thereto established pursuant to Section 301 (as such terms and
provisions may be amended pursuant to the applicable provisions hereof).
"Independent Public Accountants" means accountants or a firm of
accountants that, with respect to the Company and any other obligor under the
Securities or the Coupons, are independent public accountants within the meaning
of the Securities Act of 1933, as amended, and the rules and regulations
promulgated by the Commission thereunder, who may be the independent public
accountants regularly retained by the Company or who may be other independent
public accountants. Such accountants or firm shall be entitled to rely upon any
Opinion of Counsel as to the interpretation of any legal matters relating to
this Indenture or certificates required to be provided hereunder.
"Indexed Security" means a Security the terms of which provide that the
principal amount thereof payable at Stated Maturity may be more or less than the
principal face amount thereof at original issuance.
"Interest", with respect to any Original Issue Discount Security which
by its terms bears interest only after Maturity, means interest payable after
Maturity and, when used with respect to a Security which provides for the
payment of Additional Amounts pursuant to Section 1004, includes such Additional
Amounts.
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"Interest Payment Date", with respect to any Security, means the Stated
Maturity of an installment of interest on such Security.
"Judgment Currency" has the meaning specified in Section 116.
"Legal Holidays", with respect to any Place of Payment or other
location, means a Saturday, a Sunday or a day on which banking institutions in
such Place of Payment or other location are not authorized or obligated to be
open.
"Maturity", with respect to any Security, means the date on which the
principal of such Security or an installment of principal becomes due and
payable as provided in or pursuant to this Indenture, whether at the Stated
Maturity or by declaration of acceleration, notice of redemption or repurchase,
notice of option to elect repayment or otherwise, and includes the Redemption
Date and Change in Control Purchase Date.
"New York Banking Day" has the meaning specified in Section 116.
"Office" or "Agency," with respect to any Securities, means an office
or agency of the Company maintained or designated in a Place of Payment for such
Securities pursuant to Section 1002 or any other office or agency of the Company
maintained or designated for such Securities pursuant to Section 1002 or, to the
extent designated or required by Section 1002 in lieu of such office or agency,
the Corporate Trust Office of the Trustee.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, a Vice Chairman, the President or a Vice President, and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of
the Company, that complies with the requirements of Section 314(e) of the Trust
Indenture Act and is delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or counsel for the Company or other counsel who shall be reasonably
acceptable to the Trustee, that, if required by the Trust Indenture Act,
complies with the requirements of Section 314(e) of the Trust Indenture Act and
is delivered to the Trustee.
"Original Issue Discount Security" means a Security issued pursuant to
this Indenture which provides for declaration of an amount less than the
principal face amount thereof to be due and payable upon acceleration pursuant
to Section 502.
"Outstanding," when used with respect to any Securities, means, as of
the date of determination, all such Securities theretofore authenticated and
delivered under this Indenture, except:
(a) any such Security theretofore cancelled by the Trustee or the
Security Registrar or delivered to the Trustee or the Security
Registrar for cancellation;
(b) any such Security for whose payment either at the Maturity
thereof or upon the Company becoming obligated (subject to
withdrawal of any Change in Control Purchase Notice) to pay
the Change in Control Purchase Price, money in the necessary
amount has been theretofore deposited pursuant hereto (other
than
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pursuant to Section 402) with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated
in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities and any
Coupons appertaining thereto, provided that, if such
Securities are to be redeemed, notice of such redemption has
been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made;
(c) any such Security with respect to which the Company has
effected defeasance or covenant defeasance pursuant to Section
402, except to the extent provided in Section 402;
(d) any such Security which has 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,
unless there shall have been presented to the Trustee proof
satisfactory to it that such Security is held by a protected
purchaser in whose hands such Security is a valid obligation
of the Company; and
(e) if the Securities are convertible or exchangeable into other
securities, Securities converted or exchanged as contemplated
by this Indenture, and such Securities if such other
securities have been either (i) delivered to the Holders
thereof in accordance with this Indenture or (ii) deposited
with and are held by the Paying Agent in trust for the Holders
of such Securities in accordance with this Indenture and such
Securities, provided in the case of this clause (ii) that any
applicable notice of conversion or exchange has been duly
given to the Holders thereof pursuant to this Indenture and
such securities.
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders of Securities for quorum purposes, (i) the principal amount
of an Original Issue Discount Security that may be counted in making such
determination and that shall be deemed to be Outstanding for such purposes shall
be equal to the amount of the principal thereof that pursuant to the terms of
such Original Issue Discount Security would be declared (or shall have been
declared to be) due and payable upon a declaration of acceleration thereof
pursuant to Section 502 at the time of such determination, and (ii) the
principal amount of any Indexed Security that may be counted in making such
determination and that shall be deemed outstanding for such purpose shall be
equal to the principal face amount of such Indexed Security at original
issuance, unless otherwise provided in or pursuant to this Indenture, and (iii)
the principal amount of a Security denominated in a Foreign Currency shall be
the Dollar equivalent, determined on the date of original issuance of such
Security, of the principal amount (or, in the case of an Original Issue Discount
Security, the Dollar equivalent on the date of original issuance of such
Security of the amount determined as provided in (i) above) of such Security,
and (iv) Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company (other than any Trust so long as any
of the Preferred Securities of such Trust are outstanding) or such other
obligor, shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in making any such
determination or relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which a Responsible
Officer
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of the Trustee knows to be so owned shall be so disregarded. Securities so owned
which shall have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee (A) the pledgee's
right so to act with respect to such Securities and (B) that the pledgee is not
the Company or any other obligor upon the Securities or any Coupons appertaining
thereto or an Affiliate of the Company or such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of, or any premium or interest on, or any Additional Amounts with
respect to, any Security or any Coupon on behalf of the Company.
"Person" means any individual, Corporation, partnership, joint venture,
joint-stock company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
"Place of Payment," with respect to any Security, means the place or
places where the principal of, or any premium or interest on, or any Additional
Amounts with respect to such Security are payable as provided in or pursuant to
this Indenture or such Security.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same Indebtedness 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 lost, destroyed, mutilated or stolen Security or any Security to which
a mutilated, destroyed, lost or stolen Coupon appertains shall be deemed to
evidence the same Indebtedness as the lost, destroyed, mutilated or stolen
Security or the Security to which a mutilated, destroyed, lost or stolen Coupon
appertains.
"Preferred Securities" means the preferred securities of a Trust,
representing undivided beneficial interests in the assets of such Trust.
"Redemption Date", with respect to any Security or portion thereof to
be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture or such Security.
"Redemption Price," with respect to any Security or portion thereof to
be redeemed, means the price at which it is to be redeemed as determined by or
pursuant to this Indenture or such Security.
"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 Registered
Security on any Interest Payment Date therefor means the date, if any, specified
in or pursuant to this Indenture or such Security as the "Regular Record Date".
"Required Currency" has the meaning specified in Section 116.
"Responsible Officer" means any officer of the Trustee in its Corporate
Trust Office with direct responsibility for the administration of this Indenture
and also means, with respect
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to a particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Security" or "Securities" means any note or notes, bond or bonds,
debenture or debentures, or any other evidences of Indebtedness, as the case may
be, authenticated and delivered under this Indenture; provided, however, that,
if at any time there is more than one Person acting as Trustee under this
Indenture, "Securities", with respect to any such Person, shall mean Securities
authenticated and delivered under this Indenture, exclusive, however, of
Securities of any series as to which such Person is not Trustee.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Indebtedness" means all Indebtedness, whether outstanding on
the date of execution of this Indenture or thereafter created, assumed or
incurred, except Indebtedness Ranking on a Parity with the Securities or
Indebtedness Ranking Junior to the Securities.
"Special Record Date" for the payment of any Defaulted Interest on any
Registered Security means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity" with respect to any Security or any installment of
principal thereof or interest thereon or any Additional Amounts with respect
thereto, means the date established by or pursuant to this Indenture or such
Security as the fixed date on which the principal of such Security or such
installment of principal or interest is, or such Additional Amounts are, due and
payable.
"Subsidiary" means any Corporation of which at the time of
determination the Company or one or more Subsidiaries owns or controls directly
or indirectly more than 50% of the shares of Voting Stock.
"Trust" means any statutory business trust created or established by
the Company as a direct or indirect wholly-owned subsidiary to issue Trust
Securities and to use the proceeds from the sale thereof to purchase Securities.
"Trust Agreement" means the agreement or declaration establishing the
terms and conditions of a Trust.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, and any reference herein to the Trust Indenture Act or a particular
provision thereof shall mean such Act or provision, as the case may be, as
amended or replaced from time to time or as supplemented from time to time by
rules or regulations adopted by the Commission under or in furtherance of the
purposes of such Act or provision, as the case may be.
"Trust Securities" means the Preferred Securities and common securities
of a Trust, each representing undivided beneficial interests in the assets of
such Trust.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
with respect to one or more series
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of Securities pursuant to the applicable provisions of this Indenture, and
thereafter "Trustee" shall mean each Person who is then a Trustee hereunder;
provided, however, that if at any time there is more than one such Person,
"Trustee" shall mean each such Person and as used with respect to the Securities
of any series shall mean the Trustee with respect to the Securities of such
series.
"United States", except as otherwise provided in or pursuant to this
Indenture or any Security, means the United States of America (including the
states thereof and the District of Columbia), its territories and possessions
and other areas subject to its jurisdiction.
"United States Alien," except as otherwise provided in or pursuant to
this Indenture or any Security, means any Person who, for United States Federal
income tax purposes, is a foreign corporation, a non-resident alien individual,
a non-resident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more of the members of which is, for United States Federal
income tax purposes, a foreign corporation, a non-resident alien individual or a
non-resident alien fiduciary of a foreign estate or trust.
"U.S. Depository" or "Depository" means, with respect to any Security
issuable or issued in the form of one or more global Securities, the Person
designated as U.S. Depository or Depository by the Company in or pursuant to
this Indenture, which Person must be, to the extent required by applicable law
or regulation, a clearing agency registered under the Securities Exchange Act of
1934, as amended, and, if so provided with respect to any Security, any
successor to such Person. If at any time there is more than one such Person,
"U.S. Depository" or "Depository" shall mean, with respect to any Securities,
the qualifying entity which has been appointed with respect to such Securities.
"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".
"Voting Stock" means stock of a Corporation of the class or classes
having general voting power under ordinary circumstances to elect at least a
majority of the board of directors, managers or trustees of such Corporation,
provided that, for the purposes hereof, stock which carries only the right to
vote conditionally on the happening of an event shall not be considered voting
stock whether or not such event shall have happened.
Section 102. Compliance Certificates and Opinions.
Except as otherwise expressly provided in this Indenture, 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
or any of them is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
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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 an Opinion of Counsel, unless such
officer knows, or in the exercise of reasonable care should know, that the
opinion with respect to the matters upon which his certificate or opinion is
based are erroneous. Any such 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 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 respell 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 or any Security, they may, but need not, be
consolidated and form one instrument.
Section 104. Acts of Holders and Holders of Preferred Securities.
(1) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by or pursuant to this
Indenture to be given or taken by Holders or by holders of Preferred
Securities may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Holders or holders of
Preferred Securities, as applicable, in person or by an agent duly
appointed in writing. If, but only if, Securities of a series are
issuable as Bearer Securities, any request, demand, authorization,
direction, notice, consent, waiver or other action provided in or
pursuant to this Indenture to be given or taken by Holders of
Securities of such series or by holders of Preferred Securities may,
alternatively, be embodied in and evidenced by the record of Holders of
Securities of such series or by holders of Preferred Securities 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 Fourteen,
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 or holders of Preferred Securities
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 315 of the Trust Indenture Act) conclusive in favor
of the Trustee
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and the Company and any agent of the Trustee or the Company, if made in
the manner provided in this Section 104. The record of any meeting of
Holders of Securities shall be proved in the manner provided in Section
1406.
Without limiting the generality of this Section 104, unless
otherwise provided in or pursuant to this Indenture, a Holder,
including a U.S. Depository that is a Holder of a global Security, may
make, give or take, by a proxy, or proxies, duly appointed in writing,
any request, demand, authorization, direction, notice, consent, waiver
or other Act provided in or pursuant to this Indenture to be made,
given or taken by Holders, and a U.S. Depository that is a Holder of a
global Security may provide its proxy or proxies to the beneficial
owners of interests in any such global Security through such U.S.
Depository's standing instructions and customary practices.
The Trustee shall fix a record date for the purpose of
determining the Persons who are beneficial owners of interest in any
permanent global Security held by a U.S. Depository entitled under the
procedures of such U.S. Depository to make, give or take, by a proxy or
proxies duly appointed in writing, any request, demand, authorization,
direction, notice, consent, waiver or other Act provided in or pursuant
to this Indenture to be made, given or taken by Holders. If such a
record date is fixed, the Holders on such record date or their duly
appointed proxy or proxies, and only such Persons, shall be entitled to
make, give or take such request, demand, authorization, direction,
notice, consent, waiver or other Act, whether or not such Holders
remain Holders after such record date. No such request, demand,
authorization, direction, notice, consent, waiver or other Act shall be
valid or effective if made, given or taken more than 90 days after such
record date.
(2) The fact and date of the execution by any Person of any
such instrument or writing may be proved in any reasonable manner which
the Trustee deems sufficient and in accordance with such reasonable
rules as the Trustee may determine; and the Trustee may in any instance
require further proof with respect to any of the matters referred to in
this Section 104.
(3) The ownership, principal amount and serial numbers of
Registered Securities held by any Person, and the date of the
commencement and the date of the termination of holding the same, shall
be proved by the Security Register.
(4) The ownership, principal amount and serial numbers of
Bearer Securities held by any Person, and the date of the commencement
and the date of the termination 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
reasonably acceptable to the Company, wherever situated, if such
certificate shall be deemed by the Company and 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
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bearing a later date issued in respect of the same Bearer Security is
produced, or (2) such Bearer Security is produced to the Trustee by
some other Person, or (3) such Bearer Security is surrendered in
exchange for a Registered Security, or (4) such Bearer Security is no
longer Outstanding. The ownership, principal amount and serial numbers
of Bearer Securities held by the Person so executing such instrument or
writing and the date of the commencement and the date of the
termination of holding the same may also be proved in any other manner
which the Company and the Trustee deem sufficient.
(5) If the Company shall solicit from the Holders of any
Registered Securities any request, demand, authorization, direction,
notice, consent, waiver or other Act, the Company may at its option
(but is not obligated to), by Board Resolution, fix in advance a record
date for the determination of Holders of Registered Securities entitled
to give such request, demand, authorization, direction, notice,
consent, waiver or other Act. If such a record date is fixed, such
request, demand, authorization, direction, notice, consent, waiver or
other Act may be given before or after such record date, but only the
Holders of Registered Securities of record at the close of business on
such record date shall be deemed to be Holders for the purpose of
determining whether Holders of the requisite proportion of Outstanding
Securities have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other Act,
and for that purpose the Outstanding Securities shall be computed as of
such record date; provided that no such authorization, agreement or
consent by the Holders of Registered Securities shall be deemed
effective unless it shall become effective pursuant to the provisions
of this Indenture not later than six months after the record date.
(6) Any request, demand, authorization, direction, notice,
consent, waiver or other Act by the Holder of any Security shall bind
every future Holder of the same Security and the Holder of every
Security issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof in respect of anything done or
suffered to be done by the Trustee, any Security Registrar, any Paying
Agent, any Conversion Agent or the Company in reliance thereon, whether
or not notation of such Act is made upon such Security.
Section 105. Notices, etc. to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of Holders or holders of Preferred Securities 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 holder of a Preferred
Security or the Company shall be sufficient for every purpose hereunder
if made, given, furnished or filed in writing to or with the Trustee at
its Corporate Trust Office, Attention: Corporate Market Fiduciary
Services, or
(2) the Company by the Trustee or any Holder or holder of a
Preferred Security 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 the attention
of its Treasurer at the address of its principal office specified in
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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 of Securities; Waiver.
Except as otherwise expressly provided in or pursuant to this
Indenture, where this Indenture provides for notice to Holders of Securities of
any event,
(1) such notice shall be sufficiently given to Holders of
Registered Securities if in writing and mailed, first-class postage
prepaid, to each Holder of a Registered Security affected by such
event, at his address as it appears in the Security Register, not later
than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice; and
(2) such notice shall be sufficiently given to Holders of
Bearer Securities, if any, if published in an Authorized Newspaper in
The City of New York and, if such Securities are then listed on any
stock exchange outside the United States, in an Authorized Newspaper in
such city as the Company shall advise the Trustee that such stock
exchange so requires, on a Business Day at least twice, the first such
publication to be not earlier than the earliest date and the second
such publication not later than the latest date prescribed for the
giving of such notice.
In any case where notice to Holders of Registered Securities is given
by mail, neither the failure to mail such notice, nor any defect in any notice
so mailed, to any particular Holder of a Registered Security shall affect the
sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice to Holders of Bearer Securities
given as provided herein. Any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given or provided. In
case by reason of the suspension of regular mail service or by reason of any
other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither 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 mailed to
Holders of Registered Securities as provided above.
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 of Securities 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.
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Section 107. Language of Notices.
Any request, demand, authorization, direction, notice, consent,
election or waiver required or permitted under this Indenture shall be in the
English language, except that, if the Company so elects, any published notice
may be in an official language of the country of publication.
Section 108. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with any duties
under any required provision of the Trust Indenture Act imposed hereon by
Section 318(c) thereof, such required provision shall control.
Section 109. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 110. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
Section 111. Separability Clause.
In case any provision in this Indenture, any Security or any Coupon
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. Benefits of Indenture.
Except as otherwise expressly provided herein with respect to holders
of Senior Indebtedness and holders of Preferred Securities, nothing in this
Indenture, any Security or any Coupon, express or implied, shall give to any
Person, other than the parties hereto, any Security Registrar, any Paying Agent,
any Conversion Agent and their successors hereunder and the Holders of
Securities or Coupons, any benefit or any legal or equitable right, remedy or
claim under this Indenture.
Section 113. Governing Law.
This Indenture, the Securities and any Coupons shall be governed by and
construed in accordance with the laws of the State of New York applicable to
agreements made or instruments entered into and, in each case, performed in said
state without regard to the conflict of laws principles thereof.
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Section 114. Legal Holidays.
Unless otherwise specified in or pursuant to this Indenture or any
Securities, in any case where any Interest Payment Date, Business Day following
any Change in Control Purchase Date or Stated Maturity or Maturity of any
Security shall be a Legal Holiday at any Place of Payment, then (notwithstanding
any other provision of this Indenture, any Security or any Coupon other than a
provision in any Security or Coupon that specifically states that such provision
shall apply in lieu hereof) payment need not be made at such Place of Payment on
such date, and no interest shall accrue on the amount payable on such date or at
such time for the period from and after such Interest Payment Date, Business Day
following any Change in Control Purchase Date, Stated Maturity or Maturity, as
the case may be, to the next succeeding Business Day.
Section 115. Counterparts.
This Indenture may be executed in several counterparts, each of which
shall be an original and all of which shall constitute but one and the same
instrument.
Section 116. Judgment Currency.
The Company agrees, to the fullest extent that it may effectively do so
under applicable law, that (a) if for the purpose of obtaining judgment in any
court it is necessary to convert the sum due in respect of the principal of, or
premium or interest, if any, or Additional Amounts on the Securities of any
series (the "Required Currency") into a currency in which a judgment will be
rendered (the "Judgment Currency"), the rate of exchange used shall be the rate
at which in accordance with normal banking procedures the Trustee could purchase
in The City of New York the Required Currency with the Judgment Currency on the
New York Banking Day preceding that on which a final unappealable judgment is
given and (b) the Company's obligations under this Indenture to make payments in
the Required Currency (i) shall not be discharged or satisfied by any tender, or
any recovery pursuant to any judgment (whether or not entered in accordance with
clause (a)), in any currency other than the Required Currency, except to the
extent that such tender or recovery shall result in the actual receipt, by the
payee, of the full amount of the Required Currency expressed to be payable in
respect of such payments, (ii) shall be enforceable as an alternative or
additional cause of action for the purpose of recovering in the Required
Currency the amount, if any, by which such actual receipt shall fall short of
the full amount of the Required Currency so expressed to be payable and (iii)
shall not be affected by judgment being obtained for any other sum due under
this Indenture. For purposes of the foregoing, "New York Banking Day" means any
day except a Saturday, Sunday or a legal holiday in The City of New York or a
day on which banking institutions in The City of New York are authorized or
obligated by law, regulation or executive order to be closed.
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ARTICLE 2.
SECURITIES FORM
Section 201. Forms Generally.
Each Registered Security, Bearer Security, Coupon and temporary or
permanent global Security issued pursuant to this Indenture shall be in the form
established by or pursuant to a Board Resolution, an Officer's Certificate or in
one or more indentures supplemental hereto, shall have such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by or pursuant to this Indenture or any indenture supplemental hereto
and may have such letters, numbers or other marks of identification and such
legends or endorsements placed thereon as may consistently herewith be
determined by the Officers executing such Security or Coupon as evidenced by
their execution of such Security or Coupon.
Unless otherwise provided in or pursuant to this Indenture or any
Securities, the Securities shall be issuable in registered form without Coupons
and shall not be issuable upon the exercise of warrants.
Definitive Securities and definitive Coupons shall be printed,
lithographed or engraved or produced by any combination of these methods on a
steel engraved border or steel engraved borders or may be produced in any other
manner, all as determined by the officers of the Company executing such
Securities or Coupons, as evidenced by their execution of such Securities or
Coupons.
Section 202. Form of Trustee's Certificate of Authentication.
Subject to Section 611, the Trustee's certificate of authentication
shall be in substantially the following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By
-----------------------------
Authorized Officer
Section 203. Securities in Global Form.
Unless otherwise provided in or pursuant to this Indenture or any
Securities, the Securities shall not be issuable in temporary or permanent
global form. If Securities of a series shall be issuable in global form, any
such Securities may provide that it or any number of such Securities shall
represent the aggregate amount of all Outstanding Securities of such series (or
such lesser amount as is permitted by the terms thereof) 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 increased or reduced to
reflect exchanges. Any endorsement of any
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Security in global form to reflect the amount, or any increase or decrease in
the amount, or changes in the rights of Holders, of Outstanding Securities
represented thereby shall be made in such manner and by such Person or Persons
as shall be specified therein or in the Company Order to be delivered pursuant
to Section 303 or 304 with respect thereto. Subject to the provisions of Section
303 and, if applicable, Section 304, the Trustee shall deliver and redeliver any
Security in permanent global form in the manner and upon instructions given by
the Person or Persons specified therein or in the applicable Company Order. If a
Company Order pursuant to Section 303 or 304 has been, or simultaneously is,
delivered, any instructions by the Company with respect to a Security in global
form shall be in writing but need not be accompanied by or contained in an
Officers' Certificate and need not be accompanied by an Opinion of Counsel.
Notwithstanding the provisions of Section 307, unless otherwise
specified in or pursuant to this Indenture or any Securities, payment of
principal of, any premium and interest on, and any Additional Amounts in respect
of, any Security in temporary or permanent global form shall be made to the
Person or Persons specified therein.
Notwithstanding the provisions of Section 308 and except as provided in
the preceding paragraph, the Company, the Trustee and any agent of the Company
and the Trustee shall treat the Holder of a global security in registered form
as the Holder of the principal amount of Outstanding Securities represented by
such global Security.
ARTICLE 3.
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.
With respect to any Securities to be authenticated and delivered
hereunder, there shall be established in or pursuant to a Board Resolution, an
Officers' Certificate or established in one or more indentures supplemental
hereto,
(1) the title of such Securities and the series in which such
Securities shall be included;
(2) any limit upon the aggregate principal amount of the
Securities of such title or the Securities of such series which may be
authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration or transfer of, or in
exchange for, or in lieu of, other Securities of such series pursuant
to Section 304, 305, 306, 905 or 1107, upon repayment on part of any
Registered Security of such series pursuant to Article Twelve or
pursuant to the terms of such Securities);
(3) if such Securities are to be issuable as Registered
Securities, as Bearer Securities or alternatively as Bearer Securities
and Registered Securities, and whether the
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Bearer Securities are to be issuable with Coupons, without Coupons or
both, and any restrictions applicable to the offer, sale or delivery of
the Bearer Securities and the terms, if any, upon which Bearer
Securities may be exchanged for Registered Securities and vice versa;
(4) if any of such Securities are to be issuable in global
form, when any of such Securities are to be issuable in global form and
(i) whether such Securities are to be issued in temporary or permanent
global form or both, (ii) whether beneficial owners of interests in any
such global Security may exchange such interests for Securities of the
same series and of like tenor and of any authorized form and
denomination, and the circumstances under which any such exchanges may
occur, if other than in the manner specified in Section 305, and (iii)
the name of the Depository or the U.S. Depository, as the case may be,
with respect to any global Security;
(5) if any of such Securities are to be issuable as Bearer
Securities or in global form, the date as of which any such Bearer
Security or global Security shall be dated (if other than the date of
original issuance of the first of such Securities to be issued);
(6) if any of such Securities are to be issuable as Bearer
Securities, whether interest in respect of any portion of a temporary
Bearer Security in global form payable in respect of an Interest
Payment Date therefor prior to the exchange, if any, of such temporary
Bearer Security for definitive Securities shall be paid to any clearing
organization with respect to the portion of such temporary Bearer
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;
(7) the date or dates, or the method or methods, if any, by
which such date or dates shall be determined, on which the principal of
such Securities is payable;
(8) the rate or rates at which such Securities shall bear
interest, if any, or the method or methods, if any, by which such rate
or rates are to be determined, the date or dates, if any, from which
such interest shall accrue or the method or methods, if any, by which
such date or dates are to be determined, the Interest Payment Dates, if
any, on which such interest shall be payable and the Regular Record
Date, if any, for the interest payable on Registered Securities on any
Interest Payment Date, whether and under what circumstances Additional
Amounts on such Securities or any of them shall be payable, the notice,
if any, to Holders regarding the determination of interest on a
floating rate Security and the manner of giving such notice, and the
basis upon which interest shall be calculated if other than that of a
360-day year of twelve 30-day months;
(9) any deletions from, modifications of or additions to the
subordination provisions of Article Sixteen with respect to such
Securities, whether or not such subordination provisions are consistent
with the subordination provisions set forth therein;
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(10) the right, if any, to extend the interest payment periods
and the duration of any such extension, including the maximum
consecutive period, if any, during which interest payment periods may
be extended;
(11) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or
analogous provisions (including payments made in cash in anticipation
of future sinking fund obligations) or at the option of a Holder and
the date or dates on which or the period or periods within which, the
price or prices at which, and the terms and conditions upon which,
Securities of the series shall be redeemed or purchased, in whole or in
part, pursuant to such obligation;
(12) if in addition to or other than the Borough of Manhattan,
The City of New York, the place or places where the principal of, any
premium and interest on or any Additional Amounts with respect to such
Securities shall be payable, any of such Securities that are Registered
Securities may be surrendered for registration of transfer or exchange
and notices or demands to or upon the Company in respect of such
Securities and this Indenture may be served, the extent to which, or
the manner in which, any interest payment or Additional Amounts on a
global Security on an Interest Payment Date, will be paid and the
manner in which any principal of or premium, if any, on any global
Security will be paid;
(13) whether any of such Securities are to be redeemable at
the option of the Company and, if so, the date or dates on which, the
period or periods within which, the price or prices at which and the
other terms and conditions upon which such Securities may be redeemed,
in whole or in part, at the option of the Company;
(14) the right or obligation of any Holder or the Company to
convert or exchange any Security into Common Stock of the Company or
other securities of the Company and the terms and conditions of any
such conversion or exchange and, if so provided, the terms and
conditions upon which such conversion or exchange will be effected,
including the conversion or exchange price, the conversion or exchange
date(s) or period(s), provisions as to whether conversion or exchange
will be at the option of the Holder or the Company, the events
requiring adjustment of the conversion or exchange price and provisions
affecting conversion or exchange in the event of redemption of the
Security of any series and any deletions from or modifications or
additions to this Indenture to permit or to facilitate the issuance of
such convertible or exchangeable Securities or the administration
thereof;
(15) the denominations in which any of such Securities that
are Registered Securities shall be issuable if other than denominations
of $1,000 and any integral multiple thereof, and the denominations in
which any of such Securities that are Bearer Securities shall be
issuable if other than the denomination of $5,000;
(16) if other than the principal amount thereof, the portion
of the principal amount of any of such Securities that shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 502 or the method by which such portion is to be determined;
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(17) if other than Dollars, the Foreign Currency in which
payment of the principal of, any premium or interest on or any
Additional Amounts with respect to any of such Securities shall be
payable;
(18) if the principal of, any premium or Interest on or any
Additional Amounts with respect to any of such Securities are to be
payable, at the election of the Company or a Holder thereof or
otherwise, in Dollars or in a Foreign Currency other than that in which
such Securities are stated to be payable, the date or dates on which,
the period or periods within which, and the other terms and conditions
upon which, such election may be made, and the time and manner of
determining the exchange rate between the Currency in which such
Securities are stated to be payable and the Currency in which such
Securities or any of them are to be paid pursuant to such election, and
any deletions from or modifications of or additions to the terms of
this Indenture to provide for or to facilitate the issuance of
Securities denominated or payable, at the election of the Company or a
Holder thereof or otherwise, in a Foreign Currency;
(19) whether the amount of payments of principal of, any
premium or interest on or any Additional Amounts with respect to such
Securities may be determined with reference to an index, formula or
other method or methods (which index, formula or method or methods may
be based, without limitation, on one or more Currencies, commodities,
equity indices or other indices), and, if so, the terms and conditions
upon which and the manner in which such amounts shall be determined and
paid or payable;
(20) any deletions from, modifications of or additions to the
Events of Default or covenants of the Company with respect to any of
such Securities, whether or not such Events of Default or covenants are
consistent with the Events of Default or covenants set forth herein;
(21) if either or both of Section 402(2) relating to
defeasance or Section 402(3) relating to covenant defeasance shall be
applicable to the Securities of such series, or any covenants in
addition to those specified in Section 402(3) relating to the
Securities of such series shall be subject to covenant defeasance, and
any deletions from, or modifications or additions to, the provisions of
Article Four in respect of the Securities of such series;
(22) if any of such Securities are to be issuable upon the
exercise of warrants, and the time, manner and place for such
Securities to be authenticated and delivered;
(23) if any of such Securities are to be issuable in global
form and are to be issuable in definitive form (whether upon original
issue or upon exchange of a temporary Security) only upon receipt of
certain certificates or other documents or satisfaction of other
conditions, then the form and terms of such certificates, documents or
conditions;
(24) if there is more than one Trustee, the identity of the
Trustee and, if not the Trustee, the identity of each Security
Registrar, Paying Agent, Conversion Agent or Authenticating Agent with
respect to such Securities;
(25) the Change in Control Purchase Price, if applicable;
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(26) the name of the applicable Trust (which shall distinguish
such statutory business trust from all other Trusts), if any, to which
the Securities of such series are to be deposited as assets and the
date of its Trust Agreement; and
(27) any other terms of such Securities and any deletions from
or modifications or additions to this Indenture in respect of such
Securities.
All Securities of any one series and all Coupons, if any, appertaining
to Bearer Securities of such series shall be substantially identical except as
to Currency of payments due thereunder, denomination and the rate of interest,
or method of determining the rate of interest, if any, Maturity, and the date
from which interest, if any, shall accrue and except as may otherwise be
provided by the Company in or pursuant to the Board Resolution and set forth in
the Officers' Certificate or in any indenture or indentures supplemental hereto
pertaining to such series of Securities. The terms of the Securities of any
series may provide, without limitation, that the Securities shall be
authenticated and delivered by the Trustee on original issue from time to time
upon telephonic or written order of persons designated in the Officers'
Certificate or supplemental indenture (telephonic instructions to be promptly
confirmed in writing by such person) and that such persons are authorized to
determine, consistent with such Officers' Certificate or any applicable
supplemental indenture, such terms and conditions of the Securities of such
series as are specified in such Officers' Certificate or supplemental indenture.
All Securities of any one series need not be issued at the same time and, unless
otherwise so provided by the Company, a series may be reopened for issuances of
additional Securities of such series or to establish additional terms of such
series of Securities.
If any of the terms of the Securities of any series shall be
established by action taken by or pursuant to a Board Resolution, the Board
Resolution shall be delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of such series.
Section 302. Currency; Denominations.
Unless otherwise provided in or pursuant to this Indenture, the
principal of, any premium and interest on and any Additional Amounts with
respect to the Securities shall be payable in Dollars. Unless otherwise provided
in or pursuant to this Indenture, Registered Securities denominated in Dollars
shall be issuable in registered form without Coupons in denominations of $1,000
and any integral multiple thereof, and the Bearer Securities denominated in
Dollars shall be issuable in the denomination of $5,000. Securities not
denominated in Dollars shall be issuable in such denominations as are
established with respect to such Securities in or pursuant to this Indenture.
Section 303. Execution, Authentication, Delivery and Dating.
Securities shall be executed on behalf of the Company by its Chairman
of the Board, one of its Vice Chairmen, its President, its Treasurer, one of its
Assistant Treasurers or one of its Vice Presidents under its corporate seal
reproduced thereon and attested by its Secretary or one of its Assistant
Secretaries. Coupons shall be executed on behalf of the Company by the
Treasurer, one of its Vice Presidents or any Assistant Treasurer of the Company.
The signature
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of any of these officers on the Securities or any Coupons appertaining thereto
may be manual or facsimile.
Securities and any Coupons appertaining thereto bearing the manual or
facsimile signatures of individuals who were at any time the proper officers of
the Company shall bind the Company, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the authentication and
delivery of such Securities or did not hold such offices at the date of such
Securities or Coupons.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities, together with any Coupons
appertaining thereto, executed by the Company, to the Trustee for authentication
and, provided that the Board Resolution and Officers' Certificate or
supplemental indenture or indentures with respect to such Securities referred to
in Section 301 and a Company Order for the authentication and delivery of such
Securities have been delivered to the Trustee, the Trustee in accordance with
the Company Order and subject to the provisions hereof and of such Securities
shall authenticate and deliver such Securities. In authenticating such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities and any Coupons appertaining thereto, the Trustee
shall be entitled to receive, and (subject to Sections 315(a) through 315(d) of
the Trust Indenture Act) shall be fully protected in relying upon,
(1) an Opinion of Counsel to the effect that:
(a) the form or forms and terms of such Securities and
Coupons, if any, have been established in conformity with the
provisions of this Indenture;
(b) all conditions precedent to the authentication and
delivery of such Securities and Coupons, if any, appertaining thereto,
have been complied with and that such Securities, and Coupons, when
completed by appropriate insertions, executed under the Company's
corporate seal and attested by duly authorized officers of the Company,
delivered by duly authorized officers of the Company to the Trustee for
authentication pursuant to this Indenture, and 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 legally valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, except
as enforcement thereof may be subject to or limited by bankruptcy,
insolvency, reorganization, moratorium, arrangement, fraudulent
conveyance, fraudulent transfer or other similar laws relating to or
affecting creditors' rights generally, and subject to general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law) and will entitle the Holders thereof to
the benefits of this Indenture; such Opinion of Counsel need express no
opinion as to the availability of equitable remedies;
(c) all laws and requirements in respect of the execution and
delivery by the Company of such Securities and Coupons, if any, have
been complied with; and
(d) this Indenture has been qualified under the Trust
Indenture Act; and
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(2) an Officers' Certificate stating that, to the best
knowledge of the Persons executing such certificate, no event which is,
or after notice or lapse of time or both would become, an Event of
Default with respect to any of the Securities shall have occurred and
be continuing.
If all the Securities of any series are not to be issued at one time,
it shall not be necessary to deliver an Opinion of Counsel and an Officers'
Certificate at the time of issuance of each Security, but such opinion and
certificate, with appropriate modifications, shall be delivered at or before the
time of issuance of the first Security of such series. After any such first
delivery, any separate request by the Company that the Trustee authenticate
Securities of such series for original issue will be deemed to be a
certification by the Company that all conditions precedent provided for in this
Indenture relating to authentication and delivery of such Securities continue to
have been complied with.
The Trustee shall not be required to authenticate or to cause an
Authenticating Agent to authenticate any 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 or if the Trustee,
being advised by counsel, determines that such action may not lawfully be taken.
Each Registered Security shall be dated the date of its authentication.
Each Bearer Security and any Bearer Security in global form shall be dated as of
the date specified in or pursuant to this Indenture.
No Security or Coupon appertaining thereto 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 in Section 202 or 611 executed by or on behalf of the
Trustee or by the Authenticating Agent by the manual signature of one of its
authorized officers. Such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly authenticated
and delivered hereunder. Except as permitted by Section 306 or 307, the Trustee
shall not authenticate and deliver any Bearer Security unless all Coupons
appertaining thereto then matured have been detached and cancelled.
Section 304. Temporary Securities.
Pending the preparation of definitive Securities, the Company may
execute and deliver to the Trustee and, upon Company Order, the Trustee shall
authenticate and deliver, in the manner provided in Section 303, temporary
Securities in lieu thereof which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued, in registered form or, if authorized in of pursuant to this
Indenture, in bearer form with one or more Coupons or without Coupons and with
such appropriate insertions, omissions, substitutions and other variations as
the officers of the Company executing such Securities may determine, as
conclusively evidenced by their execution of such Securities. Such temporary
Securities may be in global form.
Except in the case of temporary Securities in global form, which shall
be exchanged in accordance with the provisions thereof, if temporary Securities
are issued, the Company shall
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cause definitive Securities to be prepared without unreasonable delay. After the
preparation of definitive Securities of the same series and containing terms and
provisions that are identical to those of any temporary Securities, such
temporary Securities shall be exchangeable for such definitive Securities upon
surrender of such temporary Securities at an Office or Agency for such
Securities, without charge to any Holder thereof. Upon surrender for
cancellation of any one or more temporary Securities (accompanied by any
unmatured Coupons appertaining thereto), the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a like principal
amount of definitive Securities of authorized denominations of the same series
and containing identical terms and provisions; provided, however, that no
definitive Bearer Security, except as provided in or pursuant to this Indenture,
shall be delivered in exchange for a temporary Registered Security; and
provided, further, that a definitive Bearer Security shall be delivered in
exchange for a temporary Bearer Security only in compliance with the conditions
set forth in or pursuant to this Indenture. Unless otherwise provided in or
pursuant to this Indenture with respect to a temporary global Security, until so
exchanged the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
such series.
Section 305. Registration, Transfer and Exchange.
With respect to the Registered Securities of each series, if any, the
Company shall cause to be kept a register (each such register being herein
sometimes referred to as the "Security Register") at an Office or Agency for
such series in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of the Registered
Securities of such series and of transfers of the Registered Securities of such
series. Such Office or Agency shall be the "Security Registrar" for that series
of Securities. Unless otherwise specified in or pursuant to this Indenture or
the Securities, the Trustee shall be the initial Security Registrar for each
series of Securities. The Company shall have the right to remove and replace
from time to time the Security Registrar for any series of Securities; provided
that no such removal or replacement shall be effective until a successor
Security Registrar with respect to such series of Securities shall have been
appointed by the Company and shall have accepted such appointment by the
Company. In the event that the Trustee shall not be or shall cease to be
Security Registrar with respect to a series of Securities, it shall have the
right to examine the Security Register for such series at all reasonable times.
There shall be only one Security Register for each series of Securities.
Upon surrender for registration of transfer of any Registered Security
of any series at any Office or Agency for such series, the Company shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Registered Securities of
the same series denominated as authorized in or pursuant to this Indenture, of a
like aggregate principal amount bearing a number not contemporaneously
outstanding and containing identical terms and provisions.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series containing
identical terms and provisions, in any authorized denominations, and of a like
aggregate principal amount, upon surrender of the Securities to be exchanged at
any Office or Agency for such series. Whenever any Registered Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
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authenticate and deliver, the Registered Securities which the Holder making the
exchange is entitled to receive.
If provided in or pursuant to this Indenture, with respect to
Securities of any series, at the option of the Holder, Bearer Securities of such
series may be exchanged for Registered Securities of such series containing
identical terms, denominated as authorized in or pursuant to this Indenture and
in the same aggregate principal amount, upon surrender of the Bearer Securities
to be exchanged at any Office or Agency for such series, with all unmatured
Coupons and all matured Coupons in default thereto appertaining. If the Holder
of a Bearer Security is unable to produce any such unmatured Coupon or Coupons
or matured Coupon or Coupons in default, such exchange may be effected if the
Bearer Securities are accompanied by payment in funds acceptable to the Company
and the Trustee 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 Bearer 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 for such series located outside the United
States. Notwithstanding the foregoing, in case a Bearer Security of any series
is surrendered at any such Office or Agency for such series in exchange for a
Registered Security of such series and like tenor after the close of business at
such Office or Agency on (i) any Regular Record Date and before the opening of
business at such Office or Agency on the relevant Interest Payment Date, or (ii)
any Special Record Date and before the opening of business at such Office or
Agency on the related date for payment of Defaulted Interest, such Bearer
Security shall be surrendered without the Coupon relating to such Interest
Payment Date or proposed date of payment, as the case may be (or, if such Coupon
is so surrendered with such Bearer Security, such Coupon shall be returned to
the Person so surrendering the Bearer Security), and interest or Defaulted
Interest, as the case may be, shall not be payable on such Interest Payment Date
or proposed date for payment, as the case may be, in respect of the Registered
Security issued in exchange for such Bearer Security, but shall be payable only
to the Holder of such Coupon when due in accordance with the provisions of this
Indenture.
If provided in or pursuant to this Indenture with respect to Securities
of any series, at the option of the Holder, Registered Securities of such series
may be exchanged for Bearer Securities upon such terms and conditions as may be
provided in or pursuant to this Indenture with respect to such series.
Whenever any Securities are surrendered for exchange as contemplated by
the immediately preceding two paragraphs, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise provided in or
pursuant to this Indenture, any global Security shall be exchangeable for
definitive Securities only if (i) the Depository is at any time unwilling,
unable or ineligible to continue as Depository and a
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successor depository is not appointed by the Company within 90 days of the date
the Company is so informed in writing, (ii) the Company executes and delivers to
the Trustee a Company Order to the effect that such global Security shall be so
exchangeable, or (iii) an Event of Default has occurred and is continuing with
respect to the Securities. If the beneficial owners of interests in a global
Security are entitled to exchange such interests for definitive Securities as
the result of an event described in clause (i), (ii) or (iii) of the preceding
sentence, then without unnecessary delay but in any event not later than the
earliest date on which such interests may be so exchanged, the Company shall
deliver to the Trustee definitive Securities in such form and denominations as
are required by or pursuant to this Indenture, and of the same series,
containing identical terms and in aggregate principal amount equal to the
principal amount of such global Security, executed by the Company. On or after
the earliest date on which such interests may be so exchanged, such global
Security shall be surrendered from time to time by the U.S. Depository or such
other Depository as shall be specified in the Company Order with respect
thereto, and in accordance with instructions given to the Trustee and the U.S.
Depository or such other Depository, as the case may be (which instructions
shall be in writing but need not be contained in or accompanied by an Officers'
Certificate or be accompanied by an Opinion of Counsel), as shall be specified
in the Company Order with respect thereto to the Trustee, as the Company's agent
for such purpose, to be exchanged, in whole or in part, for definitive
Securities as described above without charge. The Trustee shall authenticate and
make available for delivery, in exchange for each portion of such surrendered
global Security, a like aggregate principal amount of definitive Securities of
the same series of authorized denominations and of like tenor as the portion of
such global Security to be exchanged, which (unless such Securities are not
issuable both as Bearer Securities and as Registered Securities, in which case
the definitive Securities exchanged for the global Security shall be issuable
only in the form in which the Securities are issuable, as provided in or
pursuant to this Indenture) shall be in the form of Bearer Securities or
Registered Securities, or any combination thereof, as shall be specified by the
beneficial owner thereof, but subject to the satisfaction of any certification
or other requirements to the issuance of Bearer Securities; provided, however,
that no such exchanges may occur during a period beginning at the opening of
business 15 days before any selection of Securities of the same series to be
redeemed and ending on the relevant Redemption Date; and provided, further, that
(unless otherwise provided in or pursuant to this Indenture) no Bearer Security
delivered in exchange for a portion of a global Security shall be mailed or
otherwise delivered to any location in the United States. Promptly following any
such exchange in part, such global Security shall be returned by the Trustee to
such Depository or the U.S. Depository, as the case may be, or such other
Depository or U.S. Depository referred to above in accordance with the
instructions of the Company referred to above. If a Registered Security is
issued in exchange for any portion of a global Security after the close of
business at the Office or Agency for such Security where such exchange occurs on
or after (i) any Regular Record Date for such Security and before the opening of
business at such Office or Agency on the next Interest Payment Date, or (ii) any
Special Record Date for such Security and before the opening of business at such
Office or Agency on the related proposed date for payment of interest or
Defaulted Interest, as the case may be, interest shall not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in
respect of such Registered Security, but shall be payable on such Interest
Payment Date or proposed date for payment, as the case may be, only to the
Person to whom interest in respect of such portion of such global Security shall
be payable in accordance with the provisions of this Indenture.
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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 entitling the Holders thereof to the same benefits under this Indenture
as the Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange or redemption shall (if so required by the Company or
the Security Registrar for such Security) be duly endorsed, or be accompanied by
a written instrument of transfer in form satisfactory to the Company and the
Security Registrar for such Security 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, or redemption of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge.
Except as otherwise provided in or pursuant to this Indenture, the
Company shall not be required (i) to issue, register the transfer of or exchange
any Securities during a period beginning at the opening of business 15 days
before the day of the selection for redemption of Securities of like tenor and
the same series under Section 1103 and ending at the close of business on the
day of such selection, or (ii) to register the transfer of or exchange any
Registered Security so selected for redemption in whole or in part, except in
the case of any Security to be redeemed in part, the portion thereof not to be
redeemed, or (iii) to exchange any Bearer Security so selected for redemption
except, to the extent provided with respect to such Bearer Security, that such
Bearer Security may be exchanged for a Registered Security of like tenor and the
same series, provided that such Registered Security shall be immediately
surrendered for redemption with written instruction for payment consistent with
the provisions of this Indenture or (iv) to issue, register the transfer of or
exchange any Security which, in accordance with its terms, has been surrendered
for repayment at the option of the Holder, except the portion, if any, of such
Security not to be so repaid.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security or a Security with a mutilated Coupon
appertaining to it is surrendered to the Trustee, subject to the provisions of
this Section 306, the Company shall execute and the Trustee shall authenticate
and deliver in exchange therefor a new Security of the same series containing
identical terms and of like principal amount and bearing a number not
contemporaneously outstanding, with Coupons appertaining thereto corresponding
to the Coupons. if any, appertaining to the surrendered Security.
If there be delivered to the Company and to 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
protected purchaser. the Company shall execute and, upon Company Request the
Trustee shall authenticate and deliver, in exchange for or in lieu of any such
mutilated, 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
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Security of the same series containing identical terms and of like principal
amount and bearing a number not contemporaneously outstanding, with Coupons
corresponding to the Coupons, if any, appertaining to such destroyed, lost or
stolen Security or to the Security to which such destroyed, lost or stolen
Coupon appertains.
Notwithstanding the foregoing provisions of this Section 306, in case
any 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, any premium or interest on or any Additional Amounts with respect
to any Bearer Securities shall, except as otherwise provided in Section 1002, be
payable only at an Office or Agency for such Securities located outside the
United States and, unless otherwise provided in or pursuant to this Indenture,
any interest on Bearer Securities and any Additional Amounts with respect to
such interest shall be payable only upon presentation and surrender of the
Coupons appertaining thereto.
Upon the issuance of any new Security under this Section 306, 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, with any Coupons appertaining thereto issued
pursuant to this Section 306 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 a separate obligation of the Company, whether or not
the destroyed, lost or stolen Security and Coupons appertaining thereto 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 such series and the
Coupons, if any, duly issued hereunder.
The provisions of this Section 306, as amended or supplemented pursuant
to this Indenture with respect to particular Securities or generally, shall be
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 and Certain Additional Amounts; Rights
to Interest and Certain Additional Amounts Preserved.
Unless otherwise provided in or pursuant to this Indenture, any
interest on and any Additional Amounts with respect to any Registered Security
which shall be payable, and are punctually paid or duty provided for, on any
Interest Payment Date shall be paid to the Person in whose name such Security
(or one or more Predecessor Securities) is registered as of the close of
business on the Regular Record Date for such interest. Unless otherwise provided
in or pursuant to this Indenture, in case a Bearer Security is surrendered in
exchange for a Registered Security after the close of business at an Office or
Agency for such Security on any Regular Record Date therefor and before the
opening of business at such Office or Agency on the next succeeding Interest
Payment Date therefor, such Bearer Security shall be surrendered without the
Coupon relating to such Interest Payment Date and interest shall not be payable
on such Interest Payment Date in respect of the Registered Security issued in
exchange for such Bearer Security, but shall
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be payable only to the Holder of such Coupon when due in accordance with the
provisions of this Indenture.
Unless otherwise provided in or pursuant to this Indenture, any
interest on and any Additional Amounts with respect to any Registered Security
which shall be payable, but shall not be punctually paid or duly provided for,
on any Interest Payment Date for such Registered Security (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holder thereof
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 Person in whose name such Registered Security (or a
Predecessor Security thereof) shall be 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 such Registered Security and the date of the
proposed payment, and at the same time the Company shall deposit with
the Trustee an amount of money equal to the aggregate amount proposed
to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit on or prior
to the date of the proposed payment, such money when so deposited to be
held in trust for the benefit of the Person 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 the
Holder of such Registered Security (or a Predecessor Security thereof)
at his address as it appears in the Security Register not less than 10
days prior to such Special Record Date. The Trustee may, in its
discretion, in the name and at the expense of the Company cause a
similar notice to be published at least once in an Authorized Newspaper
of general circulation in the Borough of Manhattan, The City of New
York, but such publication shall not be a condition precedent to the
establishment of such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
having been mailed as aforesaid, such Defaulted Interest shall be paid
to the Person in whose name such Registered Security (or a Predecessor
Security thereof) shall be registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the
following clause (2). In case a Bearer Security is surrendered at the
Office or Agency for such Security in exchange for a Registered
Security after the close of business at such Office or Agency on any
Special Record Date and before the opening of business at such Office
or Agency on the related proposed date for payment of Defaulted
Interest, such Bearer Security shall be surrendered without the Coupon
relating to such Defaulted Interest and Defaulted Interest shall not be
payable on such proposed date of payment in respect of the Registered
Security issued in exchange for such Bearer Security, but shall be
payable
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only to the Holder of such Coupon when due in accordance with the
provisions of this Indenture.
(2) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which such Security may be listed, and upon such
notice as may be required by such exchange, if, after notice given by
the Company to the Trustee of the proposed payment pursuant to this
Clause, such payment shall be deemed practicable by the Trustee.
Unless otherwise provided in or pursuant to this Indenture or the
Securities of any particular series, at the option of the Company, interest on
Registered Securities that bear interest may be paid by mailing a check to the
address of the Person entitled thereto as such address shall appear in the
Security Register or by transfer to an account maintained by the payee with a
bank located in the United States.
Subject to the foregoing provisions of this Section 307 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.
If any convertible or exchangeable Security of any series is converted
or exchanged after any Regular Record Date and on or prior to the next
succeeding Interest Payment Date (other than any Security with respect to which
the Stated Maturity Date is prior to such Interest Payment Date), interest that
is due on such Interest Payment Date shall be payable on such Interest Payment
Date notwithstanding such conversion or exchange, and such interest (whether or
not punctually paid or duly provided for ) shall be paid to the Person in whose
name that Security is registered at the close of business on such Regular Record
Date. Except as otherwise expressly provided in the immediately preceding
sentence, in the case of any Security that is converted or exchanged, interest
shall not be payable if the Regular Record Date is after the date of conversion
or exchange of such 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 in the
Security Register as the owner of such Registered Security for the purpose of
receiving payment of principal of, any premium and (subject to Sections 305 and
307) interest on and any Additional Amounts with respect to such Registered
Security and for all other purposes whatsoever, whether or not any payment with
respect to such Registered Security shall be overdue, and neither the Company,
the Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the bearer of any Bearer Security or 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 any payment with respect to such Security or Coupon shall
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be overdue, and neither the Company, nor the Trustee or any agent of the Company
or the Trustee shall be affected by notice to the contrary.
No holder of any beneficial interest in any global Security held on its
behalf by a Depository shall have any rights under this Indenture with respect
to such global Security, and such Depository may be treated by the Company, the
Trustee, and any agent of the Company or the Trustee as the owner of such global
Security for all purposes whatsoever. None of the Company, the Trustee, any
Paying Agent, any Conversion 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.
Section 309. Cancellation.
All Securities and Coupons surrendered for payment, redemption,
registration of transfer, exchange or conversion or for credit against any
sinking fund payment shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee, and any such Securities and Coupons, as well as
Securities and Coupons surrendered directly to the Trustee for any such purpose,
shall be cancelled promptly 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 cancelled promptly by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section 309, except as expressly
permitted by or pursuant to this Indenture. All cancelled Securities and Coupons
held by the Trustee shall be destroyed by the Trustee, unless by a Company Order
the Company directs their return to it.
Section 310. Computation of Interest.
Except as otherwise provided in or pursuant to this Indenture or in any
Security, interest on the Securities shall be computed on the basis of a 360-day
year of twelve 30-day months.
ARTICLE 4.
SATISFACTION AND DISCHARGE OF INDENTURE
Section 401. Satisfaction and Discharge.
Upon the direction of the Company by a Company Order, this Indenture
shall cease to be of further effect with respect to any series of Securities
specified in such Company Order and any Coupons appertaining thereto, and the
Trustee, on receipt of a Company Order, at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture as to such series, when:
(1) either:
(a) all Securities of such series theretofore authenticated
and delivered and all Coupons appertaining thereto (other than (i)
Coupons appertaining to Bearer Securities of such series surrendered in
exchange for Registered Securities of
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such series and maturing after such exchange whose surrender is not
required or has been waived as provided in Xxxxxxx 000, (xx) 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 of such series 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 in the applicable
Currency has theretofore been deposited in trust or segregated and held
in trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(b) all Securities of such series and, in the case of (i) or
(ii) below, any Coupons appertaining thereto not theretofore delivered
to the Trustee for cancellation:
(i) have become due and payable; or
(ii) will become due and payable at their Stated
Maturity within one year; or
(iii) if redeemable at the option of the Company, are
to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of
the Company;
and the Company, in the case of (i), (ii) or (iii) above, has deposited
or caused to be deposited with the Trustee as trust funds in trust for
such purpose, money in the Currency in which such Securities are
payable in an amount sufficient to pay and discharge the entire
indebtedness on such Securities and any Coupons appertaining thereto
not theretofore delivered to the Trustee for cancellation, including
the principal of, any premium and interest on, and any Additional
Amounts with respect to such Securities and any Coupons appertaining
thereto, to the date of such deposit (in the case of Securities which
have become due and payable) or to the Maturity thereof, as the case
may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company with respect to the Outstanding
Securities of such series and any Coupons appertaining thereto; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture as to such series have been complied with.
In the event there are Securities of two or more series hereunder, the
Trustee shall be required to execute an instrument acknowledging satisfaction
and discharge of this Indenture only if requested to do so with respect to
Securities of such series as to which it is Trustee and if the other conditions
thereto are met.
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Notwithstanding the satisfaction and discharge of this Indenture with
respect to any series of Securities, the obligations of the Company to the
Trustee under Section 606 and, if money shall have been deposited with the
Trustee pursuant to subclause (b) of clause (1) of this Section 401, the
obligations of the Company and the Trustee with respect to the Securities of
such series under Sections 305, 306, 403, 1002, 1003 and Article Twelve, with
respect to the payment of Additional Amounts, if any, with respect to such
Securities as contemplated by Section 1004 (but only to the extent that the
Additional Amounts payable with respect to such Securities exceed the amount
deposited in respect of such Additional Amounts pursuant to subclause (b) of
clause (1) of this Section 401), and, unless otherwise provided pursuant to
Section 301 with respect to the Securities of such series, any rights to convert
or exchange the Securities of such series into other securities or rights in
accordance with their terms, shall survive.
Section 402. Defeasance and Covenant Defeasance.
(1) If, pursuant to Section 301, either or both of (i)
defeasance of the Securities of or within a series under clause (2) of
this Section 402, or (ii) covenant defeasance of the Securities of or
within a series under clause (3) of this Section 402 shall be
applicable with respect to the Securities of such series, then such
provisions, together with the other provisions of this Section 402
(with such modifications thereto as may be specified pursuant to
Section 301 with respect to any Securities), shall be applicable to
such Securities and any Coupons appertaining thereto, and the Company
may at its option by Board Resolution or Officers' Certificate, at any
time, with respect to such Securities and any Coupons appertaining
thereto, elect to have Section 402(2) or Section 402(3) be applied to
such Outstanding Securities and any Coupons appertaining thereto upon
compliance with the conditions set forth below in this Section 402.
(2) Upon the Company's exercise of the above option applicable
to this Section 402(2) with respect to any Securities of or within a
series, the Company shall be deemed to have been discharged from its
obligations with respect to such Outstanding Securities and any Coupons
appertaining thereto on the date the conditions set forth in clause (4)
of this Section 402 are satisfied (hereinafter, "defeasance"). For this
purpose, such defeasance means that the Company shall be deemed to have
paid and discharged the entire Indebtedness represented by such
Outstanding Securities and any Coupons appertaining thereto, which
shall thereafter be deemed to be "Outstanding" only for the purposes of
clause (5) of this Section 402 and the other Sections of this Indenture
referred to in clauses (i) and (ii) below, and to have satisfied all of
its other obligations under such Securities and any Coupons
appertaining thereto and this Indenture insofar as such Securities and
any Coupons appertaining thereto are concerned (and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
the same), except for the following which shall survive until otherwise
terminated or discharged hereunder: (i) the rights of Holders of such
Outstanding Securities and any Coupons appertaining thereto to receive,
solely from the trust fund described in clause (4) of this Section 402
and as more fully set forth in such Section, payments in respect of the
principal of (and premium, if any) and interest, if any, on, and
Additional Amounts, if any, with respect to, such Securities and any
Coupons appertaining thereto when such payments are due, and any rights
of such Holder to convert or exchange such Securities
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into Common Stock or other Securities, (ii) the obligations of the
Company and the Trustee with respect to such Securities under Sections
305, 306, 1002 and 1003, with respect to the payment of Additional
Amounts, if any, on such Securities as contemplated by Section 1004
(but only to the extent that the Additional Amounts payable with
respect to such Securities exceed the amount deposited in respect of
such Additional Amounts pursuant to Section 402(4)(a) below), (iii) the
rights, powers, trusts, duties and immunities of the Trustee hereunder
and (iv) this Section 402. The Company may exercise its option under
this Section 402(2) notwithstanding the prior exercise of its option
under clause (3) of this Section 402 with respect to such Securities
and any Coupons appertaining thereto.
(3) Upon the Company's exercise of the above option applicable
to this Section 402(3) with respect to any Securities of or within a
series, the Company shall, to the extent specified pursuant to Section
301, be released from its obligations in respect of any covenant
applicable to such Securities, with respect to such Outstanding
Securities and any Coupons appertaining thereto on and after the date
the conditions set forth in clause (4) of this Section 402 are
satisfied (hereinafter, "covenant defeasance"), and such Securities and
any Coupons appertaining thereto shall thereafter be deemed to be not
"Outstanding" for the purposes of any direction, waiver, consent or
declaration or Act of Holders (and the consequences of any thereof) in
connection with any such covenant, but shall continue to be deemed
"Outstanding" for all other purposes hereunder. For this purpose, such
covenant defeasance means that, with respect to such Outstanding
Securities and any Coupons appertaining thereto, the Company may omit
to comply with, and shall have no liability in respect of, any term,
condition or limitation set forth in any such Section or such other
covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any such Section or such other covenant or by
reason of reference in any such Section or such other covenant to any
other provision herein or in any other document and such omission to
comply shall not constitute a default or an Event of Default under
Section 501(4) or 501(6) or otherwise, as the case may be, but, except
as specified above, the remainder of this Indenture and such Securities
and Coupons appertaining thereto shall be unaffected thereby.
(4) The following shall be the conditions to application of
clause (2) or (3) of this Section 402 to any Outstanding Securities of
or within a series and any Coupons appertaining thereto:
(a) The Company shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee
satisfying the requirements of Section 607 who shall agree to
comply with the provisions of this Section 402 applicable to
it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such
Securities and any Coupons appertaining thereto:
(1) an amount in Dollars or in such Foreign
Currency in which such Securities and any Coupons
appertaining thereto are then specified as payable at
Stated Maturity; or
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(2) Government Obligations applicable to
such Securities and Coupons appertaining thereto
(determined on the basis of the Currency in which
such Securities and Coupons appertaining thereto are
then specified as payable at Stated Maturity) which
through the scheduled payment of principal and
interest in respect thereof in accordance with their
terms will provide, not later than one day before the
due date of any payment of principal of and any
premium, interest and Additional Amounts on such
Securities and any Coupons appertaining thereto,
money in an amount; or
(3) a combination thereof;
in any case, in an amount, sufficient, without
consideration of any reinvestment of such principal
and interest, in the opinion of a nationally
recognized firm of independent public accountants
expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and
which shall be applied by the Trustee (or other
qualifying trustee) to pay and discharge, the
principal of and any premium, interest and Additional
Amounts on such Outstanding Securities and any
Coupons appertaining thereto on the Stated Maturity
of such principal or installment of principal or
interest on the day on which such payments are due
and payable in accordance with the terms of this
Indenture and of such Securities and any Coupons
appertaining thereto.
(b) Such defeasance or covenant defeasance shall not
result in a breach or violation of, or constitute a default
under, this Indenture or any other material agreement or
instrument to which the Company is a party or by which it is
bound.
(c) No Event of Default or event which with notice or
lapse of time or both would become an Event of Default with
respect to such Securities and any Coupons appertaining
thereto shall have occurred and be continuing on the date of
such deposit and, with respect to defeasance only, at any time
during the period ending on the 91st day after the date of
such deposit (it being understood that this condition shall
not be deemed satisfied until the expiration of such period).
(d) In the case of an election under clause (2) of
this Section 402, the Company shall have delivered to the
Trustee an Opinion of Counsel stating that (i) the Company has
received from the Internal Revenue Service a letter ruling, or
there has been published by the Internal Revenue Service a
Revenue Ruling, or (ii) since the date of execution of this
Indenture, there has been a change in the applicable Federal
income tax law, in either case to the effect that, and based
thereon such opinion shall confirm that, the Holders of such
Outstanding Securities and any Coupons appertaining thereto
will not recognize income, gain or loss for Federal income tax
purposes as a result of such defeasance and will be subject to
Federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such
defeasance had not occurred.
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(e) In the case of an election under clause (3) of
this Section 402, the Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that the Holders
of such Outstanding Securities and any Coupons appertaining
thereto will not recognize income, gain or loss for Federal
income tax purposes as a result of such covenant defeasance
and will be subject to Federal income tax on the same amounts,
in the same manner and at the same times as would have been
the case if such covenant defeasance had not occurred.
(f) The Company shall have delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent to the defeasance or
covenant defeasance under clause (2) or (3) of this Section
402 (as the case may be) have been complied with.
(g) Notwithstanding any other provisions of this
Section 402(4), such defeasance or covenant defeasance shall
be effected in compliance with any additional or substitute
terms, conditions or limitations which may be imposed on the
Company in connection therewith pursuant to Section 301.
(5) Subject to the provisions of the last paragraph of Section
1003, all money and Government Obligations (or other property as may be
provided pursuant to Section 301) (including the proceeds thereof)
deposited with the Trustee (or other qualifying trustee, collectively
for purposes of this Section 402(5) and Section 403, the "Trustee")
pursuant to clause (4) of Section 402 in respect of any Outstanding
Securities of any series and any Coupons appertaining thereto shall be
held in trust and applied by the Trustee, in accordance with the
provisions of such Securities and any Coupons appertaining thereto and
this Indenture, to the payment, either directly or through any Paying
Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Holders of such Securities and any
Coupons appertaining thereto of all sums due and to become due thereon
in respect of principal of and any premium, interest and Additional
Amounts, but such money need not be segregated from other funds except
to the extent required by law.
Unless otherwise specified in or pursuant to this Indenture or any
Security, if, after a deposit referred to in Section 402(4)(a) has been made,
(a) the Holder of a Security in respect of which such deposit was made is
entitled to, and does, elect pursuant to Section 301 or the terms of such
Security to receive payment in a Currency other than that in which the deposit
pursuant to Section 402(4)(a) has been made in respect of such Security, or (b)
a Conversion Event occurs in respect of the Foreign Currency in which the
deposit pursuant to Section 402(4)(a) has been made, the indebtedness
represented by such Security and any Coupons appertaining thereto shall be
deemed to have been, and will be, fully discharged and satisfied through the
payment of the principal of and any premium and interest on, and any Additional
Amounts with respect to, such Security as the same becomes due out of the
proceeds yielded by converting (from time to time as specified below in the case
of any such election) the amount or other property deposited in respect of such
Security into the Currency in which such Security becomes payable as a result of
such election or Conversion Event based on (x) in the case of payments made
pursuant to clause (a) above, the
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applicable market exchange rate for such Currency in effect on the second
Business Day prior to each payment date, or (y) with respect to a Conversion
Event, the applicable market exchange rate for such Foreign Currency in effect
(as nearly as feasible) at the time of the Conversion Event. Unless otherwise
provided pursuant to Section 301, the right, if any, to extend an interest
payment period shall terminate upon defeasance or covenant defeasance, as the
case may be.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge, imposed on or assessed against the Government Obligations
deposited pursuant to this Section 402 or the principal or interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of such Outstanding Securities and any Coupons
appertaining thereto.
Anything in this Section 402 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 (or other property and any proceeds
therefrom) held by it as provided in clause (4) of this Section 402 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 be required to be deposited to
effect a defeasance or covenant defeasance, as applicable, in accordance with
this Section 402.
Section 403. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all
money and Government Obligations deposited with the Trustee pursuant to Section
401 or 402 shall be held in trust and applied by it, in accordance with the
provisions of the Securities, the Coupons and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as its
own Paying Agent) as the Trustee may determine, to the Persons entitled thereto,
of the principal, premium, interest and Additional Amounts for whose payment
such money has or Government Obligations have been deposited with or received by
the Trustee; but such money and Government Obligations need not be segregated
from other funds except to the extent required by law.
Section 404. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article with respect to any Securities by reason of any
order or judgment of any court or governmental authority enjoining, restraining
or other wise prohibiting such application, then the obligations under this
Indenture and such Securities from which the Company has been discharged or
released pursuant to this Article shall be revived and reinstated as though no
deposit has occurred pursuant to this Article with respect to such Securities,
until such time as the Trustee or Paying Agent is permitted to apply all money
held in trust pursuant to this Article with respect to such Securities in
accordance with this Article; provided, however, that if the Company makes any
payment of principal of or any premium or interest on or Additional Amounts with
respect to any such Security following reinstatement of its obligations, the
Company shall be subrogated to the rights (if any) of the Holders of such
Securities to receive such payment from the money so held in trust.
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ARTICLE 5.
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),
unless such event is specifically deleted or modified in or pursuant to the
supplemental indenture, Board Resolution or Officers' Certificate establishing
the terms of such Series pursuant to this Indenture:
(1) failure to pay any interest on or any Additional Amounts
payable in respect of any Security of such series when such interest
becomes or such Additional Amounts become due and payable, and
continuance of such default for a period of 30 days; or
(2) failure to pay the principal of or any premium on any
Security of such series when it becomes due and payable at either its
Maturity or, if applicable, at 12:00 noon, New York City time, on the
Business Day following the Change in Control Purchase Date; or
(3) if applicable, failure by the Company to deliver the
required securities or other rights upon an appropriate conversion or
exchange election by Holders of the Securities or the related Preferred
Securities; or
(4) failure to perform or the breach, of any covenant or
warranty of the Company in this Indenture or the Securities (other than
a covenant or warranty a default in the performance or the breach of
which is elsewhere in this Section 501 specifically dealt with or which
has been expressly included in this Indenture solely for the benefit of
a series of Securities other than such series), and continuance of such
failure or breach for a period of 60 days after there has been given,
by registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities of such series, a written notice
specifying such failure or breach and requiring it to be remedied and
stating that such notice is a `Notice of Default' hereunder; or
(5) default in the deposit of any sinking fund payment when
and as due by the terms of a Security of such series; or
(6) the entry by a court having competent jurisdiction of:
(a) a decree or order for relief in respect of the
Company or any Subsidiary in an involuntary proceeding under
any applicable bankruptcy, insolvency, reorganization or other
similar law and such decree or order shall remain unstayed and
in effect for a period of 60 consecutive days; or
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(b) a decree or order adjudging the Company or any
Subsidiary to be insolvent, or approving a petition seeking
reorganization, arrangement, adjustment or composition of the
Company or any Subsidiary and such decree or order shall
remain unstayed and in effect for a period of 60 consecutive
days; or
(c) a final and non-appealable order appointing a
custodian, receiver, liquidator, assignee, trustee or other
similar official of the Company or any Subsidiary or of any
substantial pare of the property of the Company or any
Subsidiary, as the case may be, or ordering the winding up or
liquidation of the affairs of the Company or any Subsidiary;
or
(7) the commencement by the Company or any Subsidiary of a
voluntary proceeding under any applicable bankruptcy, insolvency,
reorganization or other similar law or of a voluntary proceeding
seeking to be adjudicated insolvent or the consent by the Company or
any Subsidiary to the entry of a decree or order for relief in an
involuntary proceeding under any applicable bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any
insolvency proceedings against it, or the filing by the Company or any
Subsidiary of a petition or answer or consent seeking reorganization or
relief under any applicable law, or the consent by the Company or any
Subsidiary to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee,
trustee or similar official of the Company or any Subsidiary or any
substantial part of the property of the Company or any Subsidiary or
the making by the Company or any Subsidiary of an assignment for the
benefit of creditors, or the taking of corporate action by the Company
or any Subsidiary in furtherance of any such action; or
(8) any other Event of Default provided in or pursuant to this
Indenture with respect to Securities of such series.
Section 502. Acceleration of Maturity: Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the
time Outstanding (other than an Event of Default specified in clause (6) or (7)
of Section 501) occurs and is continuing, then the Trustee or the Holders of not
less than 25% in principal amount of the Outstanding Securities of such series
may declare the principal of all the Securities of such series, or such lesser
amount as may be provided for in the Securities of such 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 or such
lesser amount shall become immediately due and payable; provided that in the
case of a series of Securities then held by a Trust, if upon an Event of Default
with respect to the Securities of that series the Trustee has, or the Holders of
not less than 25% in principal amount of the Outstanding Securities of such
series have, failed to declare the principal of all the Securities of such
series to be due and payable immediately, the holders of not less than 25% in
aggregate liquidation amount of the outstanding Preferred Securities of that
Trust shall have such right by a notice in writing to the Company and to the
Trustee.
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If an Event of Default specified in clause (6) or (7) of Section 501
occurs, all unpaid principal of and accrued interest on the Outstanding
Securities of that series (or such lesser amount as may be provided for in the
Securities of such series) shall ipso facto become and be immediately due and
payable without any declaration or other act on the part of the Trustee or any
Holder of any Security of that series.
At any time after Securities of any series have been accelerated and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter in this Article provided, the Holders of not less
than a majority in principal amount of the Outstanding Securities of such series
(subject to, in the case of any series of Securities held as assets of a Trust
and with respect to which a Security Exchange has not theretofore occurred, such
consent of the holders of the Preferred Securities and the common securities of
such Trust as may be required under the Trust Agreement of such Trust), 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
of money sufficient to pay:
(a) all overdue installments of any interest on and
Additional Amounts with respect to all Securities of such
series and any Coupon appertaining thereto;
(b) the principal of and any premium on any
Securities of such series which have become due otherwise than
by such declaration of acceleration and interest thereon and
any Additional Amounts with respect thereto at the rate or
rates borne by or provided for in such Securities;
(c) to the extent that payment of such interest or
Additional Amounts is lawful, interest upon overdue
installments of any interest and Additional Amounts at the
rate or rates borne by or provided for in such Securities; and
(d) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel and all other amounts due the Trustee under Section
606; and
(2) all Events of Default with respect to Securities of such
series, other than the non-payment of the principal of, any premium and
interest on, and any Additional Amounts with respect to Securities of
such series which shall have become due solely by such declaration of
acceleration, shall have been cured or waived as provided in Section
513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
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Section 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if:
(1) there is a failure to pay any installment of interest on
or any Additional Amounts with respect to any Security or any Coupon
appertaining thereto when such interest or Additional Amounts shall
have become due and payable and such default continues for a period of
30 days; or
(2) there is a failure to pay the principal of or any premium
on any Security at its Maturity;
the Company shall, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities and any Coupons appertaining thereto,
the whole amount of money then due and payable with respect to such Securities
and any Coupons appertaining thereto, with interest upon the overdue principal,
any premium and, to the extent that payment of such interest shall be legally
enforceable, upon any overdue installments of interest and Additional Amounts at
the rate or rates borne by or provided for in such Securities, and, in addition
thereto, such further amount of money as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and all other
amounts due to the Trustee under Section 606.
If the Company fails to pay the money it is required to pay the Trustee
pursuant to the preceding paragraph forthwith upon the demand of the Trustee,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the money so due and unpaid, and 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 any Coupons
appertaining thereto and collect the monies adjudged or decreed to be payable in
the manner provided by law out of the property of the Company or any other
obligor upon such Securities and any Coupons appertaining thereto, 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 Coupons appertaining thereto 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 such Securities or in aid of the exercise of any power granted
herein or therein, or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of any
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overdue principal, premium, interest or Additional Amounts) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(1) to file and prove a claim for the whole amount, or such
lesser amount as may be provided for in the Securities of such series,
of the principal and any premium, interest and Additional Amounts owing
and unpaid in respect of the Securities and any Coupons appertaining
thereto 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 or counsel) and of the Holders of
Securities or any Coupons allowed in such judicial proceeding, and
(2) to collect and receive any monies 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 or any Coupons to make such payments to the Trustee
and, in the event that the Trustee shall consent to the making of such payments
directly to the Holders of Securities or any Coupons, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel and any other amounts due the
Trustee under Section 606.
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 any Coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or Coupons or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder of a
Security, or any Coupon in any such proceeding; provided, however, that the
Trustee may, on behalf of the Holders, vote for the election of a trustee in
bankruptcy or similar official and be a member of a creditors' committee or
other similar committee.
Section 505. Trustee May Enforce Claim without Possession of Securities
or Coupons.
All rights of action and claims under this Indenture or any of the
Securities or Coupons may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or Coupons or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery or judgment, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, shall be for the ratable benefit of each and every Holder of a
Security or Coupon 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 any
premium, interest or Additional Amounts, upon
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presentation of the Securities or Coupons, or both, as the case may be, and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 606;
SECOND: To the payment of the amounts then due and unpaid upon
the Securities and any Coupons for principal and any premium, interest
and Additional Amounts 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 aggregate amounts due and payable on such
Securities and Coupons for principal and any premium, interest and
Additional Amounts, respectively;
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
Section 507. Limitations on Suits.
Except as provided in Section 508 or 516, no Holder of any Security of
any series or any Coupons appertaining thereto or holder of Preferred Securities
of the Trust, if any, that is the Holder of Securities of that series, shall
have any right to institute any proceeding, judicial or otherwise, with respect
to this Indenture, or for the appointment of a receiver or trustee or for any
other remedy hereunder, unless:
(1) such Holder or holder of Preferred Securities has
previously given written notice to the Trustee of a continuing Event of
Default with respect to the Securities of such series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities of such series or the holders of not less
than 25% in aggregate liquidation amount of such outstanding Preferred
Securities 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 of such Outstanding Securities of
such series or the holder or holders of such outstanding Preferred
Securities 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 such
series or the holders of a majority in aggregate liquidation amount of
such outstanding Preferred Securities;
it being understood and intended that no one or more of such Holders of such
Outstanding Securities of such series or the holder or holders of such
outstanding Preferred Securities shall
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have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture or any Security to affect, disturb or prejudice the
rights of any other such Holders or Holders of Securities of any other series or
holder or holders of Preferred Securities of another Trust, or to obtain or to
seek to obtain priority or preference over any other Holders of such Outstanding
Securities of such series or the holder or holders of such outstanding Preferred
Securities or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all such Holders or
holders.
Section 508. Unconditional Right of Holders to Receive Principal and
any Premium, Interest and Additional Amounts.
Notwithstanding any other provision in this Indenture, the Holder of
any Security or Coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of, any premium and (subject
to Sections 305 and 307) interest on, and any Additional Amounts with respect to
such Security or payment of such Coupon, as the case may be, on the respective
Stated Maturity or Maturities therefor specified in such Security or Coupon (or,
in the case of redemption, on the Redemption Date or, in the case of repayment
at the option of such Holder if provided in or pursuant to this Indenture, on
the date such repayment is due, or in the case of a Change in Control, or as to
any Change in Control Purchase Notice given timely, on the Change in Control
Purchase Date) and to convert or exchange such Security in accordance with its
terms, if applicable, and to institute suit for the enforcement of any such
payment or conversion or exchange, and such right 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 a Coupon has instituted
any proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case the Company, the Trustee and each such Holder shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of the
Trustee and each such Holder 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 each and every Holder of a Security or a Coupon is intended
to be exclusive of any other right or remedy, and every right and remedy, to the
extent permitted by law, shall 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, to the extent permitted by law, prevent the
concurrent assertion or employment of any other appropriate right or remedy.
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Section 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security or
Coupon to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by this Article
or by law to the Trustee or to any Holder of a Security or a Coupon may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by such Holder, as the case may be,
Section 512. Control by Holders of Securities.
Subject to Section 601(5), the Holders of a majority in principal
amount of the Outstanding Securities of any series or, if that series of
Securities is held by a Trust, the holders of a majority in aggregate
liquidation amount of the Preferred Securities of that Trust, 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 and any Coupons
appertaining thereto, provided that:
(1) such direction shall not be in conflict with any rule of
law or with this Indenture or with the Securities of any series;
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction; and
(3) such direction is not unduly prejudicial to the rights of
the other Holders of Securities of such series not joining in such
action.
Section 513. Waiver of Past Defaults.
Subject to Section 502, the Holders of not less than a majority in
principal amount of the Outstanding Securities of any series, or, if that series
of Securities is held by a Trust, the holders of a majority in aggregate
liquidation amount of the Preferred Securities of that Trust, on behalf of the
Holders of all the Securities of such series and any Coupons appertaining
thereto, may waive any past or prospective default hereunder with respect to
such series and its consequences, except a default:
(1) in the payment of the principal of, any premium or
interest on, or any Additional Amounts with respect to, any Security of
such series or any Coupons appertaining thereto; 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. Waiver of Stay or Extension Laws.
The Company covenants that (to the extent that it may lawfully do so)
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 expressly waives (to the extent
that it may lawfully do so) 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 515. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security 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 or
omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit having due regard to the merits and good
faith of the claim or defenses made by such party litigant; but the provisions
of this Section 515 shall not apply to any suit instituted by the Trustee, to
any suit instituted by any Holder, or group of Holders, holding in the aggregate
more than 10% in principal amount of Outstanding Securities of any series, or,
if a series of Securities is held by a Trust, the holders of more than 10%
aggregate liquidation amount of the Preferred Securities of that Trust, or to
any suit instituted by any Holder or holder of Preferred Securities, if any, for
the enforcement of the payment of the principal of or any premium or interest on
or Additional Amounts with respect to any Security on or after the respective
Stated Maturities expressed in such Security or pursuant to Section 516 (or, in
the case of redemption, on or after the Redemption Date, in the case of
repayment, on or after the date for repayment and, in the case of Change of
Control, on or after the date for payment of the Change of Control Purchase
Price).
Section 516. Direct Action Right of Holders of Trust Preferred
Securities.
If an Event of Default has occurred and is continuing and is
attributable either to (a) the failure of the Company to pay the principal of or
any premium or interest on or Additional Amounts with respect to the Securities
on the due date therefor or (b) the failure by the Company to deliver the
required securities or other property upon an appropriate conversion or exchange
right election, and an event of default has occurred and is continuing under the
applicable Trust Agreement, a holder of the related Preferred Securities, in
lieu of any action that may otherwise be taken hereunder as a Holder of
Securities, may institute a legal proceeding directly against the Company for
enforcement of payment to such holder of the principal of or any premium or
interest on or Additional Amounts with respect to such Securities having a
principal amount equal to the liquidation amount of the Preferred Securities
held by such holder or for enforcement of such conversion or exchange rights, as
the case may be (a "Direct Action"). Notwithstanding anything contained herein
to the contrary, the Company may not amend this Indenture to remove the
foregoing right to bring a Direct Action without the prior written
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consent of the holders of all of the Preferred Securities outstanding.
Notwithstanding any payments made to a holder of Preferred Securities by the
Company in connection with a Direct Action, the Company shall remain obligated
to pay the principal of and any premium or interest on or Additional Amounts
with respect to the related Securities, and the Company shall be subrogated to
the rights of the holder of such Preferred Securities with respect to payments
on the Preferred Securities to the extent of any payments made by the Company to
such holder in any Direct Action.
ARTICLE 6.
THE TRUSTEE
Section 601. Certain Rights of Trustee.
Subject to Sections 315(a) through 315(d) of the Trust Indenture Act:
(1) 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, security, note, coupon or other paper or document
reasonably believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or a Company Order
(in each case, other than delivery of any Security, together with any
Coupons appertaining thereto, to the Trustee for authentication and
delivery pursuant to Section 303 which shall be sufficiently evidenced
as provided therein) and any resolution of the Board of Directors may
be sufficiently evidenced by a Board Resolution;
(3) 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 shall be herein specifically prescribed)
may, in the absence of bad faith on its part, rely upon an Officers'
Certificate;
(4) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(5) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by or pursuant to this Indenture
at the request or direction of any of the Holders of Securities of any
series or any Coupons appertaining thereto pursuant to this Indenture,
unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which
might be incurred by it in compliance with such request or direction;
(6) 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,
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request, direction, consent, order, bond, security, coupon 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, during
business hours and upon reasonable notice, the books, records and
promises of the Company, personally or by agent or attorney;
(7) 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;
(8) the Trustee shall not be charged with knowledge of any
default (as defined in Section 602) or 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
Corporate Trust Department of the Trustee (or any successor division or
department of the Trustee) shall have actual knowledge of such default
or Event of Default or (2) written notice of such default or Event of
Default shall have been given to the Trustee by the Company or any
other obligor on such Securities or by any Holder of such Securities;
and
(9) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Indenture.
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 by mail to
all Holders of Securities of such series entitled to receive reports pursuant to
Section 703(3), 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, or Additional Amounts with respect to, any Security of
such series, the Trustee shall be protected in withholding such notice if and so
long as a committee of Responsible Officers of the Trustee in good faith
determines that the withholding of such notice is in the best interest of the
Holders of Securities and Coupons of such series. For the purpose of this
Section, the term "default" means any event which is, or after notice or lapse
of time or both would become, an Event of Default with respect to Securities of
such series.
Section 603. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificate of authentication, and in any Coupons shall be taken as
the statements of the Company and neither the Trustee nor any Authenticating
Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or the Coupons.
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Neither the Trustee nor any Authenticating Agent shall be accountable for the
use or application by the Company of the Securities or the proceeds thereof.
Section 604. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Conversion
Agent, any Security Registrar or any other Person that may be an agent of the
Trustee or the Company, in its individual or any other capacity, may become the
owner or pledgee of Securities or Coupons and, subject to Sections 310(b) and
311 of the Trust Indenture Act, may otherwise deal with the Company with the
same rights it would have if it were not Trustee, Authenticating Agent, Paying
Agent, Conversion Agent, Security Registrar or such other Person.
Section 605. Money Held in Trust.
Except as provided in Section 403 and Section 1003, money held by the
Trustee in trust hereunder need not be segregated from other funds except to the
extent required by law and shall be held uninvested. 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 606. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by the Trustee hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to the Trustee's negligence or bad faith; and
(3) to indemnify the Trustee and its agents for, and to hold
them harmless against, any loss, liability or expense incurred without
negligence or bad faith on their 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 themselves against any
claim or liability in connection with the exercise or performance of
any of their powers or duties hereunder.
As security for the performance of the obligations of the Company under
this Section 606, the Trustee shall have a lien prior to the Securities of any
series upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of, and premium or
interest on or any Additional Amounts with respect to particular Securities or
any Coupons appertaining thereto.
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Any compensation or expense incurred by the Trustee after a default
specified by Section 501 is intended to constitute an expense of administration
under any then applicable bankruptcy or insolvency law. "Trustee" for purposes
of this Section 606 shall include any predecessor Trustee but the negligence or
bad faith of any Trustee shall not affect the rights of any other Trustee under
this Section 606.
The Company's obligations under this Section 606 and any lien hereunder
shall survive the resignation or removal of any Trustee, the discharge of the
Company's obligations pursuant to Article Four of this Indenture and the
termination of this Indenture.
Section 607. Corporate Trustee Require; Eligibility.
There shall at all times be a Trustee hereunder that is a Corporation,
organized and doing business under the laws of the United States of America, any
state thereof or the District of Columbia, eligible under Section 310(a)(1) of
the Trust Indenture Act to act as trustee under an indenture qualified under the
Trust Indenture Act and that has a combined capital and surplus (computed in
accordance with Section 310(a)(2) of the Trust Indenture Act) of at least
$50,000,000 subject to supervision or examination by Federal or state authority.
If at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section 607, it shall resign immediately in the manner and
with the effect hereinafter specified in this Article Six.
Section 608. Resignation and Removal, Appointment of Successor.
(1) 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 pursuant to Section 609.
(2) 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 609 shall not have been delivered to the Trustee
within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to such series.
(3) 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 the Company.
(4) If at any time:
(a) the Trustee shall fail to comply with the
obligations imposed upon it under Section 310(b) of the Trust
Indenture Act with respect to Securities of any series after
written request therefor by the Company or any Holder of a
Security of such series who has been a bona fide Holder of a
Security of such series for at least six months, or
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(b) the Trustee shall cease to be eligible under
Section 607 and shall fail to resign after written request
therefor by the Company or any such Holder; or
(c) the Trustee shall become incapable of acting or
shall be adjudged bankrupt or insolvent or a receiver of the
Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation,
conservation or liquidation;
then, in any such case, (i) the Company, by or pursuant to a Board Resolution,
may remove the Trustee with respect to all Securities or the Securities of such
series, or (ii) subject to Section 315(e) of the Trust Indenture Act, any Holder
of a Security 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 removal of the Trustee with
respect to all Securities of such series and the appointment of a successor
Trustee or Trustees.
(5) 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 or pursuant to 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
609. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee
with respect to the Securities 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 609, become the successor Trustee with respect
to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee
with respect to the Securities of any series shall have been so
appointed by the Company or the Holders of Securities and accepted
appointment in the manner required by Section 609, any Holder of a
Security 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.
(6) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities
of any series by mailing written notice of such event by first-class
mail, postage prepaid, to the Holders of Registered Securities, if any,
of such series as their names and addresses appear in the Security
Register and, if Securities of such series arc issued as Bearer
Securities, by publishing notice of such event once in an Authorized
Newspaper in each Place of Payment located outside the United States.
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.
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Section 609. Acceptance of Appointment by Successor.
(1) Upon the appointment hereunder of any successor Trustee
with respect to all Securities, such successor Trustee so appointed
shall execute, acknowledge and deliver to the Company and 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, trusts and duties
hereunder of the retiring Trustee; but, on the request of the Company
or such successor Trustee, such retiring Trustee, upon payment of its
charges, shall execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring
Trustee and, subject to Section 1003, shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such
retiring Trustee hereunder, subject nevertheless to its claim, if any,
provided for in Section 606.
(2) Upon the appointment hereunder of any successor Trustee
with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and such successor Trustee 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, such 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, that each such Trustee shall be
trustee of a trust or trusts hereunder separate and apart from any
trust or trusts hereunder administered by any other such Trustee and
that no Trustee shall be responsible for any notice given to, or
received by, or any act or failure to act on the part of any other
Trustee hereunder, 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, such
retiring Trustee shall have no further responsibility for the exercise
of rights and powers or for the performance of the duties and
obligations vested in the Trustee under this Indenture with respect to
the Securities of that or those series to which the appointment of such
successor Trustee relates other than as hereinafter expressly set
forth, 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 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 such successor Trustee, such
retiring Trustee, upon payment of its charges with respect to the
Securities of that or those series to which the appointment of such
successor relates and subject to Section 1003 shall duly assign,
transfer and deliver to such successor Trustee, to the extent
contemplated by such
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supplemental indenture, the property and money held by such retiring
Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates,
subject to its claim, if any, provided for in Section 606.
(3) Upon request of any Person appointed hereunder as a
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 (1) or (2) of this Section 609, as the case may be.
(4) No Person shall accept its appointment hereunder as a
successor Trustee unless at the time of such acceptance such successor
Person shall be qualified and eligible under this Article Six.
Section 610. Merger, Conversion, Consolidation or Succession to
Business.
Any Corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any Corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
Corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated
but not delivered by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
Section 611. Appointment of Authenticating Agent.
The Trustee may appoint one or more Authenticating Agents acceptable to
the Company with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of that or
those series issued upon original issue, exchange, registration of transfer,
partial redemption or partial repayment 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,
except as provided in or pursuant to this Indenture, shall at all times be a
corporation that would be permitted by the Trust Indenture Act to act as trustee
under an indenture qualified under the Trust Indenture Act, is authorized under
applicable law and by its charter to act as an Authenticating Agent and has a
combined capital and surplus (computed in accordance with Section 310(a)(2) of
the Trust Indenture Act) of at least $50,000,000. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 611, it shall resign immediately in the manner and
with the effect specified in this Section 611.
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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 all or substantially all of
the corporate agency or corporate trust business of an Authenticating Agent,
shall be the successor of such Authenticating Agent hereunder, provided such
Corporation shall be otherwise eligible under this Section 611, without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and 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 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 611, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall (i) mail
written notice of such appointment by first-class mail, postage prepaid, to all
Holders of Registered Securities, if any, of the series with respect to which
such Authenticating Agent shall serve, as their names and addresses appear in
the Security Register, and (ii) if Securities of the series are issued as Bearer
Securities, publish notice of such appointment at least once in an Authorized
Newspaper in the place where such successor Authenticating Agent has its
principal office if such office is located outside the United States. 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 611.
The Company agrees to pay each Authenticating Agent from time to time
reasonable compensation for its services under this Section 611. If the Trustee
makes such payments, it shall be entitled to be reimbursed for such payments,
subject to the provisions of Section 606.
The provisions of Sections 308, 603 and 604 shall be applicable to each
Authenticating Agent.
If an Authenticating Agent is appointed with respect to one or more
series of Securities pursuant to this Section 611, the Securities of such series
may have endorsed thereon, in addition to or in lieu of the Trustee's
certificate of authentication, an alternate certificate of authentication in
substantially the following form:
This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
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THE CHASE MANHATTAN BANK,
As Trustee
By
--------------------------------------
As Authenticating Agent
By
--------------------------------------
Authorized Officer
If all of the Securities of any series may not be originally issued at
one time, and if the Trustee does not have an office capable of authenticating
Securities upon original issuance located in a Place of Payment where the
Company wishes to have Securities of such series authenticated upon original
issuance, the Trustee, if so requested in writing (which writing need not be
accompanied by or contained in an Officers' Certificate by the Company), shall
appoint in accordance with this Section 611 an Authenticating Agent having an
office in a Place of Payment designated by the Company with respect to such
series of Securities.
ARTICLE 7.
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and Addresses of Holders.
In accordance with Section 312(a) of the Trust Indenture Act, the
Company shall furnish or cause to be furnished to the Trustee:
(1) semiannually with respect to Securities of each series not
later than March 15 and September 15 of the year or upon such other
dates as are set forth in or pursuant to the Board Resolution,
Officers' Certificate or indenture supplemental hereto authorizing such
series, a list, in each case in such form as the Trustee may reasonably
require, of the names and addresses of Holders as of the applicable
date; and
(2) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished;
provided, however, that so long as the Trustee is the Security Registrar no such
list shall be required to be furnished.
Section 702. Preservation of Information; Communications to Holders.
The Trustee shall comply with the obligations imposed upon it pursuant
to Section 312 of the Trust Indenture Act.
Every Holder of Securities or Coupons, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company, the
Trustee, any Paying Agent, any
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Conversion Agent or any Security Registrar shall be held accountable by reason
of the disclosure of any such information as to the names and addresses of the
Holders of Securities in accordance with Section 312(c) of the Trust Indenture
Act, regardless of the source from which such information was derived, and that
the Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under Section 312(b) of the Trust Indenture Act.
Section 703. Reports by Trustee.
(1) Within 60 days after May 15 of each year commencing with
May 15, 2001, if required by Section 313(a) of the Trust Indenture Act,
the Trustee shall transmit, pursuant to Section 313(c) of the Trust
Indenture Act, a brief report dated as of such May 15 with respect to
any of the events specified in said Section 313(a) which may have
occurred since the later of the immediately preceding May 15 and the
date of this Indenture.
(2) The Trustee shall transmit the reports required by Section
313(a) of the Trust Indenture Act at the times specified therein.
(3) Reports pursuant to this Section 703 shall be transmitted
in the manner and to the Persons required by Sections 313(c) and 313(d)
of the Trust Indenture Act.
Section 704. Reports by Company.
The Company, pursuant to Section 314(a) of the Trust Indenture Act,
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 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, in the manner and to the extent provided in Section 313(c) of
the Trust Indenture Act, such summaries of any information, documents
and reports required to be filed by the
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Company pursuant to paragraphs (1) and (2) of this Section 704 as may
be required by rules and regulations prescribed from time to time by
the Commission.
ARTICLE 8.
CONSOLIDATION, MERGER AND SALES
Section 801. Company May Consolidate, Etc., Only on Certain Terms.
Nothing contained in this Indenture or in any of the Securities shall
prevent any consolidation or merger of the Company with or into any other Person
or Persons (whether or not affiliated with the Company), or successive
consolidations or mergers in which the Company or its successor or successors
shall be a party or parties, or shall prevent any conveyance, transfer or lease
of the property of the Company as an entirety or substantially as an entirety,
to any other Person (whether or not affiliated with the Company); provided,
however, that:
(1) in case the Company shall consolidate with or merge into
another Person or convey, transfer or lease its properties and assets
as an entirety or substantially as an entirety to any Person, the
entity 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 as an entirety or
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 (or indentures, if at such time there is more than one
Trustee) supplemental hereto, executed by the successor Person and
delivered to the Trustee, in form satisfactory to the Trustee, the due
and punctual payment of the principal of, any premium and interest on
and any Additional Amounts with respect to all the Securities and the
performance of every obligation in this Indenture and the Outstanding
Securities on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no
Event of Default or event which, after notice or lapse of time, or
both, would become an Event of Default, shall have occurred and be
continuing, including any default pursuant to the Holder's Change of
Control Purchase Option set forth in Article Fifteen; and
(3) either the Company or the successor Person shall have
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 satisfaction, such supplemental indenture comply
with this Article Eight and that all conditions precedent herein
provided for relating to such transaction have been complied with.
Section 802. Successor Person Substituted for Company.
Upon any consolidation by the Company with or merger of the Company
into any other Person or any conveyance, transfer or lease of the properties and
assets of the Company substantially as an entirety to any Person in accordance
with Section 801, the successor Person
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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 Person had been named as the Company
herein, and thereafter, except in the case of a lease, the predecessor Person
shall be released from all obligations and covenants under this Indenture, the
Securities and the Coupons.
ARTICLE 9.
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 or pursuant to a Board Resolution) and the Trustee,
at any time and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any of the
following purposes:
(1) to evidence the succession of another Person to the
Company, and the assumption by any such successor of the covenants of
the Company contained 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 (as shall be specified
in such supplemental indenture or indentures) or to surrender any right
or power herein conferred upon the Company; or
(3) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the payment of
principal of, any premium or interest on or any Additional Amounts with
respect to Securities, to permit Bearer Securities to be issued in
exchange for Registered Securities, to permit Bearer Securities to be
exchanged for Bearer Securities of other authorized denominations or to
permit or facilitate the issuance of Securities in uncertificated form,
provided any such action shall not adversely affect the interests of
the Holders of Securities of any series or any Coupons appertaining
them to in any material respect; or
(4) to establish the form or terms of Securities of any series
and any Coupons appertaining them to as permitted by Sections 201 and
301; or
(5) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 609; or
(6) to cure any ambiguity or to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture which
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shall not adversely affect the interests of the Holders of Securities
of any series then Outstanding or any Coupons appertaining thereto in
any material respect; or
(7) to add to, delete from or revise the conditions,
limitations and restrictions on the authorized amount, terms or
purposes of issue, authentication and delivery of Securities, as herein
set forth; or
(8) to add any additional Events of Default with respect to
all or any series of Securities (as shall be specified in such
supplemental indenture); or
(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
Article Four, provided that any such action shall not adversely affect
the interests of any Holder of a Security of such series and any
Coupons appertaining thereto or any other Security or Coupon in any
material respect; or
(10) to secure the Securities; or
(11) to make provisions with respect to conversion or exchange
rights of Holders of Securities of any series; or
(12) to amend or supplement any provision contained herein or
in any supplemental indenture, provided that no such amendment or
supplement shall materially adversely affect the interests of the
Holders of any Securities then Outstanding.
Section 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture (and, in the case of any series of Securities held as
assets of a Trust, such consent of holders of the Preferred Securities and the
common securities of such Trust as may be required under the Trust Agreement of
such Trust), by Act of said Holders delivered to the Company and the Trustee,
the Company (when authorized by or pursuant to a Company's Board Resolution),
and the Trustee may enter into an indenture or indentures supplemental hereto
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of modifying in any
manner the rights of the Holders of Securities of such series under this
Indenture or of the Securities of such series; provided, however, that no such
supplemental indenture, without the consent of the Holder of each Outstanding
Security affected thereby, shall:
(1) except as permitted by the terms of the Securities, change
the Stated Maturity of the principal of, or any premium or installment
of interest on or any Additional Amounts with respect to, any Security,
or reduce the principal amount thereof or the rate (or modify the
calculation of such rate) of interest thereon or any Additional Amounts
with respect thereto, or any premium payable upon the redemption
thereof or otherwise, or change the duration of the maximum consecutive
period, if any, that payments of interest on such Securities may be
deferred, if applicable, or change the obligation of the Company to pay
Additional Amounts pursuant to Section 1004 (except as contemplated by
Section 801(l) and permitted by Section 901(l)), or reduce the amount
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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 the amount thereof provable in
bankruptcy pursuant to Section 504, change the redemption, conversion
or exchange provisions or adversely affect the right of repayment at
the option of any Holder as contemplated by Article Twelve, or change
the subordination provisions that apply to the terms of such Securities
in a manner adverse to Holders, or change the Place of Payment,
Currency in which the principal of, any premium or interest on, or any
Additional Amounts with respect to any Security is payable, or impair
the right to institute suit for the enforcement of any such payment on
or after the Stated Maturity thereof (or, in the case of redemption, on
or after the Redemption Date or, in the case of repayment at the option
of the Holder, on or after the date for repayment or in the case of
change in control, after the Change in Control Purchase 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 1404 for quorum or voting; or
(3) modify any of the provisions of this Section 902, Section
513 or Section 1008, except to increase any such percentage or to
provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each
Outstanding Security affected thereby.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which shall have been included expressly and
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with respect to
such covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders of Securities under
this Section 902 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
Section 903. Execution of Supplemental Indentures.
As a condition to executing, or accepting the additional trusts created
by, any supplemental indenture permitted by this Article Nine or the
modifications thereby of the trust created by this Indenture, the Trustee shall
be entitled to receive (in addition to those documents required by Section 102),
and (subject to Section 315 of the Trust Indenture Act) shall be fully protected
in relying upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The Trustee
may, but shall not be obligated to, enter into any such supplemental indenture
which affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
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Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of a Security theretofore or thereafter authenticated and delivered hereunder
and of any Coupon appertaining thereto shall be bound thereby.
Section 905. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article Nine may, and
shall if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities of any series so modified as to
conform, in the opinion of the Trustee and the Company, to any such supplemental
indenture may be prepared and executed by the Company and authenticated and
delivered by the Trustee in exchange for Outstanding Securities of such series.
Section 906. 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.
ARTICLE 10.
COVENANTS
Section 1001. Payment of Principal, any Premium and Interest.
(1) The Company shall pay the principal of, any premium and
interest on (including interest accruing during any extension period
and/or on or after the filing of a petition in bankruptcy or
reorganization relating to the Company, whether or not a claim for
post-filing interest is allowed in such proceeding) and any Additional
Amounts with respect to the Securities on or prior to the dates and in
the manner provided in such Securities or pursuant to this Indenture.
An installment of principal, and any premium, interest or Additional
Amounts shall be considered paid on the applicable due date if on such
date the Trustee or the Paying Agent holds, in accordance with this
Indenture, money sufficient to pay all of such installment then due.
With respect to any Security, the Company shall pay interest on overdue
principal and interest on overdue installments of interest (including
interest accruing during any extension period and/or on or after the
filing of a petition in bankruptcy or reorganization relating to the
Company, whether or not a claim for post-filing interest is allowed in
such proceeding), or Additional Amounts to the extent lawful, at the
rate accruing on such Security, compounded with the same frequency as
interest is payable on such Securities. Interest on overdue interest
shall accrue from the date such amounts become overdue.
(2) Notwithstanding the provisions of Section 1001 (1) or any
other provision herein to the contrary, the Company shall have the
right, as provided in an Officer's Certificate or supplemental
indenture issued pursuant to Article Nine, in its sole and
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absolute discretion at any time and from time to time while the
Securities of any series are outstanding, so long as no Event of
Default with respect to such series of Securities has occurred and is
continuing, to defer payments of interest by extending the interest
payment period for such series of Securities for the maximum
consecutive period, if any, specified for such series of Securities,
provided that such extension period must end on an Interest Payment
Date and shall not extend beyond the Stated Maturity or Redemption Date
of any Security of such series, and provided further that at the end of
each extension period the Company shall pay all interest then accrued
and unpaid (together with interest thereon to the extent permitted by
applicable law at the rate accruing on such Securities). Prior to the
termination of an extension period, the Company may shorten or may
further extend the interest payment period for such series of
Securities, provided that such extension period together with all such
previous and further extensions may not exceed the maximum consecutive
period specified for such series of Securities, end on a date other
than an Interest Payment Date or extend beyond the Stated Maturity or
Redemption Date of any Security of such series. The Company shall give
the Trustee notice of the Company's election to begin an extension
period for any series of Securities and any shortening or extension
thereof at least five Business Days prior to: (i) the date notice of
payment of interest on such Securities is required to be given to any
national securities exchange on which the related Preferred Securities,
if any, or Securities are then listed or other applicable
self-regulatory organization, or (ii) the date of the notice of the
record or payment date of the related distribution on the Preferred
Securities issued by the Trust which is the Holder of the Securities of
such series, but in any event not less than five Business Days prior to
the Record Date fixed by the Company for the payment of such interest.
The Company shall give or cause the Trustee to give notice (a form of
which shall be provided by the Company to the Trustee) of the Company's
election to begin an extension period to the Holders by first class
mail, postage prepaid.
Section 1002. Maintenance of Office or Agency.
The Company shall maintain in each Place of Payment for any series of
Securities an Office or Agency where Securities of such series (but not Bearer
Securities, except as otherwise provided below, unless such Place of Payment is
located outside the United States) may be presented or surrendered for payment,
where Securities of such series may be surrendered for registration of transfer
or exchange, where Securities of such series may be presented and surrendered in
the event of a conversion or exchange, and where notices and demands to or upon
the Company in respect of the Securities of such series relating thereto and
this Indenture may be served. If Securities of a series are issuable as Bearer
Securities, the Company shall maintain, subject to any laws or regulations
applicable thereto, an Office or Agency in a Place of Payment for such series
which is located outside the United States where Securities of such series and
any Coupons appertaining thereto may be presented and surrendered for payment;
provided, however, that if the Securities of such series are listed on The Stock
Exchange of the United Kingdom and the Republic of Ireland or the Luxembourg
Stock Exchange or any other stock exchange located outside the United States and
such stock exchange shall so require, the Company shall maintain a Paying Agent
and a Conversion Agent, if applicable, in London, Luxembourg or any other
required city located outside the United States, as the case may be, so long as
the Securities of such series are listed on such exchange. The Company will give
prompt written notice to the Trustee of the location, and any change in the
location, of such Office or
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Agency. If at any time the Company shall fail to maintain any such required
Office or Agency or shall fail to furnish the Trustee with the addresses
thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee, except that Bearer
Securities of such series and any Coupons appertaining thereto may only be
presented and surrendered for payment at the place specified for the purpose
with respect to such Securities as provided in or pursuant to this Indenture,
and the Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
Except as otherwise provided in or pursuant to this Indenture, no
payment of principal, premium, interest or Additional Amounts with respect to
Bearer Securities shall be made at any Office or Agency 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, if
amounts owing with respect to any Bearer Securities shall be payable in Dollars,
payment of principal of, any premium or interest on and any Additional Amounts
with respect to any such Security may be made at the Corporate Trust Office of
the Trustee or any Office or Agency designated by the Company in the Borough of
Manhattan, The City of New York, if (but only if) payment of the full amount of
such principal, premium, interest or Additional Amounts at all offices outside
the United States maintained for such purpose by the Company in accordance with
this Indenture is illegal or effectively precluded by exchange controls or other
similar restrictions.
The Company may also from time to time designate one or more other
Offices or Agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an Office
or Agency in each Place of Payment for Securities of any series for such
purposes. The Company shall 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. Unless otherwise provided in or pursuant to this
Indenture, the Company hereby designates as the Place of Payment for each series
of Securities the Borough of Manhattan, The City of New York, and initially
appoints the Corporate Trust Office of the Trustee as the Office or Agency of
the Company in the Borough of Manhattan, The City of New York for such purpose.
The Company may subsequently appoint a different Office or Agency in the Borough
of Manhattan, The City of New York for the Securities of any series.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, if and so long as the Securities of any series (i) are denominated
in a Foreign Currency or (ii) may be payable in a Foreign Currency, 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,
at least one, exchange rate 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, it shall, on or before each due date of the
principal of, any premium or interest on or Additional Amounts with respect to
any of the Securities of such series, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum in the Currency or Currencies in
which
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the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series) sufficient to pay the
principal of or any premium, interest or Additional Amounts so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as herein
provided, and shall promptly notify the Trustee of its action or failure so to
act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it shall, on or prior to each due date of the principal
of, any premium or interest on or any Additional Amounts with respect to any
Securities of such series, deposit with any Paying Agent a sum (in the Currency
or Currencies described in the preceding paragraph) sufficient to pay the
principal of or any premium, interest or Additional Amounts so becoming due,
such sum to be held in trust for the benefit of the Persons entitled thereto,
and (unless such Paying Agent is the Trustee) the Company will promptly notify
the Trustee of its action or failure so to act.
The Company shall cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section 1003, that such Paying Agent shall:
(1) hold all sums held by it for the payment of the principal
of, any premium or interest on or any Additional Amounts with respect
to Securities of such 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 provided in or pursuant to this Indenture;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of such series) in the making of
any payment of principal of, any premium or interest on or any
Additional Amounts with respect to the Securities of such 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 a 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 terms 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 sums.
Except as otherwise provided herein or pursuant hereto, 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, any premium or interest on or any
Additional Amounts with respect to any Security of any series or any Coupon
appertaining thereto and remaining unclaimed for two years after such principal
or any such premium or interest or any such Additional Amount shall have become
due and payable shall be paid to the Company on Company Request, or (if then
held by the Company) shall be discharged from such trust; and the Holder of such
Security or any
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Coupon appertaining thereto shall thereafter, as an unsecured general creditor,
look only to the Company for payment thereof, and all liability of the Trustee
or such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in an Authorized
Newspaper in each Place of Payment for such series or to be mailed to Holders of
Registered Securities of such series, or both, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such publication or mailing nor shall it be later than
two years after such principal and any premium or interest or Additional Amounts
shall have become due and payable, any unclaimed balance of such money then
remaining will be repaid to the Company.
Section 1004. Additional Amounts.
If any Securities of a series provide for the payment of Additional
Amounts, the Company agrees to pay to the Holder of any such Security or any
Coupon appertaining thereto Additional Amounts as provided in or pursuant to
this Indenture or such Securities. Whenever in this Indenture there is
mentioned, in any context, the payment of the principal of or any premium or
interest on, or in respect of, any Security of any series or any Coupon or the
net proceeds received on the sale or exchange of any Security of any series,
such mention shall be deemed to include mention of the payment of Additional
Amounts provided by the terms of such series established hereby or pursuant
hereto to the extent that, in such context, Additional Amounts are, were or
would be payable in respect thereof pursuant to such terms, and express mention
of the payment of Additional Amounts, if applicable, in any provision hereof
shall not be construed as excluding Additional Amounts in those provisions
hereof where such express mention is not made.
Except as otherwise provided in or pursuant to this Indenture or the
Securities of the applicable series, if the Securities of a series provide for
the payment of Additional Amounts, at least 10 days prior to the first Interest
Payment Date with respect to such series of Securities (or if the Securities of
such series shall not bear interest prior to Maturity, the first day on which a
payment of principal is made), and at least 10 days prior to each date of
payment of principal or interest if there has been any change with respect to
the matters set forth in the below-mentioned Officers' Certificate, the Company
shall furnish to the Trustee and the principal Paying Agent or Paying Agents, if
other than the Trustee, an Officers' Certificate instructing the Trustee and
such Paying Agent or Paying Agents whether such payment of principal of and
premium, if any, or interest on the Securities of such series shall be made to
Holders of Securities of such series or the Coupons appertaining thereto who are
United States Aliens without withholding for or on account of any tax,
assessment or other governmental charge described in the Securities of such
series. If any such withholding shall be required, then such Officers'
Certificate shall specify by country the amount, if any, required to be withheld
on such payments to such Holders of Securities or Coupons, and the Company
agrees to pay to the Trustee or such Paying Agent the Additional Amounts
required by the terms of such Securities. The Company covenants to indemnify the
Trustee and any Paying Agent for, and to hold them harmless against any loss,
liability or expense reasonably incurred without negligence or bad faith on
their part arising out of or in connection with actions taken or omitted by any
of them in reliance on any Officers' Certificate furnished pursuant to this
Section 1004.
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Section 1005. No Restriction on Indebtedness or Liens.
Nothing in this Indenture or in the Securities shall in any way
restrict or prevent the Company or any Subsidiary from issuing, assuming,
guaranteeing or otherwise incurring or securing any Indebtedness, or otherwise
granting any Liens in respect thereof.
For purposes of this Section 1005, "Lien" shall mean, with respect to
any asset, any mortgage, lien, pledge, security interest or encumbrances of any
kind in respect of such asset, whether or not filed, recorded or otherwise
perfected under applicable law.
Section 1006. Corporate Existence.
Subject to Articles Eight and Fifteen, the Company shall do or cause to
be done all things necessary to preserve and keep in full force and effect its
corporate existence and that of each Subsidiary and their respective rights
(charter and statutory) and franchises; provided, however, that the foregoing
shall not obligate the Company or any Subsidiary to preserve any such right or
franchise if the Company or any Subsidiary shall determine that the preservation
thereof is no longer desirable in the conduct of its business or the business of
such Subsidiary.
Section 1007. Payment of Expenses of Each Trust. The Company covenants
for the benefit of the Holders of each series of Securities owned by a Trust to
pay all of the obligations, costs and expenses of such Trust (other than
payments in respect of Trust Securities) in accordance with the provisions of
its Trust Agreement and to pay the taxes of such Trust in accordance with the
provisions of its Trust Agreement in order to permit such Trust to make
distributions on and redemptions of its Preferred Securities in accordance with
its Trust Agreement.
Section 1008. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 1001(2) or 1006 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, by Act of such Holders, either shall waive such compliance in
such instance or generally shall have waived 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 1009. Company Statement as to Compliance; Notice of Certain
Defaults.
(1) The Company shall deliver to the Trustee, within 120 days
after the end of each fiscal year, a written statement (which need not
be contained in or accompanied by an Officers' Certificate) signed by
the principal executive officer, the principal financial officer or the
principal accounting officer of the Company, stating that:
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(a) a review of the activities of the Company during
such year and of its performance under this Indenture has been
made under his or her supervision; and
(b) to the best of his or her knowledge, based on
such review, (i) the Company has complied with all the
conditions and covenants imposed on it under this Indenture
throughout such year, or, if there has been a default in the
fulfillment of any such condition or covenant, specifying each
such default known to him or her and the nature and status
thereof, and (ii) no event has occurred and is continuing
which is, or after notice or lapse of time or both would
become, an Event of Default, or, if such an event has occurred
and is continuing, specifying each such event known to him and
the nature and status thereof.
(2) the Company shall deliver to the Trustee, within five days
after the occurrence thereof, written notice of any Event of Default or
any Default.
ARTICLE 11.
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article.
Redemption of Securities of any series at the option of the Company as
permitted or required by the terms of such Securities shall be made in
accordance with the terms of such Securities and (except as otherwise provided
herein or pursuant hereto) this Article Eleven.
Section 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced
by or pursuant to a Board Resolution or an Officers' Certificate. In case of any
redemption at the election of the Company of (a) less than all of the Securities
of any series or (b) all of the Securities of any series, with the same issue
date, interest rate or formula, Stated Maturity and other terms, 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.
Section 1103. Selection by Trustee of Securities to be Redeemed.
If less than all of the Securities of any series with the same issue
date, interest rate or formula, Stated Maturity and other terms are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee from the Outstanding
Securities of such series not previously called for redemption, by such method
as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions of the principal amount of Registered
Securities of such series; provided, however, that no such partial redemption
shall reduce the portion of the principal amount of a Registered Security of
such series not redeemed to less than the minimum denomination for a Security of
such series established herein or pursuant hereto.
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The Trustee shall promptly notify the Company and the Security
Registrar (if other than itself) 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 of such Securities which has been or is to be redeemed.
Section 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section
106, not less than 30 nor more than 60 days prior to the Redemption Date, unless
a shorter period is specified in the Securities to be redeemed, to the Holders
of Securities to be redeemed. Failure to give notice by mailing in the manner
herein provided to the Holder of any Registered Securities designated for
redemption as a whole or in part, or any defect in the notice to any such
Holder, shall not affect the validity of the proceedings for the redemption of
any other Securities or portion thereof.
Any notice that is mailed to the Holder of any Registered Securities in
the manner herein provided shall be conclusively presumed to have been duly
given, whether or not such Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all Outstanding Securities of any series are
to be redeemed, the identification (and, in the case of partial
redemption, the principal amount) of the particular Security or
Securities to be redeemed;
(4) in case any Security is to be redeemed in part only, the
notice which relates to such Security shall state that on and after the
Redemption Date, upon surrender of such Security, the Holder of such
Security will receive, without charge, a new Security or Securities of
authorized denominations for the principal amount thereof remaining
unredeemed;
(5) that, on the Redemption Date, the Redemption Price shall
become due and payable upon each such Security or portion thereof to be
redeemed, and, if applicable, that interest thereon shall cease to
accrue on and after said date;
(6) the place or places where such Securities, together (in
the case of Bearer Securities) with all Coupons appertaining thereto,
if any, maturing after the Redemption Date, are to be surrendered for
payment of the Redemption Price and any accrued interest and Additional
Amounts pertaining thereto;
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(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, unless security or indemnity
satisfactory to the Company, the Trustee and any Paying Agent is
furnished;
(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 the Redemption Date pursuant to Section 305 or
otherwise, the last date, as determined by the Company, on which such
exchanges may be made;
(9) that the redemption is out of a sinking fund, if such is
the case;
(10) in the case of Securities of any series that are
convertible or exchangeable into other securities or rights, the
conversion or exchange price or rate, the date or dates on which or the
period or periods during which the right to convert or exchange the
principal of the Securities of such series to be redeemed will commence
or terminate and the place or places where such Securities may be
surrendered for conversion or exchange; and
(11) the CUSIP number or the Euroclear or the Clearstream
Luxembourg reference numbers of such Securities, if any (or any other
numbers used by a Depository to identify such Securities).
A notice of redemption mailed as contemplated by Section 106 need not
identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
Section 1105. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit, with
respect to the Securities of any series called for redemption pursuant to
Section 1104, 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 applicable Currency sufficient to pay
the Redemption Price of, and (except if the Redemption Date shall be an Interest
Payment Date, unless otherwise specified pursuant to Section 301 or in the
Securities of such series) any accrued interest on and Additional Amounts with
respect thereto, all such Securities or portions thereof which are to be
redeemed on that date.
Section 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the
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Redemption Price and accrued interest) such Securities shall cease to bear
interest and the Coupons for such interest appertaining to any Bearer Securities
so to be redeemed, except to the extent provided below, shall be void. Upon
surrender of any such Security for redemption in accordance with said notice,
together with all Coupons, if any, appertaining thereto maturing after the
Redemption Date, such Security shall be paid by the Company at the Redemption
Price, together with any accrued interest and Additional Amounts to the
Redemption Date; provided, however, that, except as otherwise provided in or
pursuant to this Indenture or the Bearer Securities of such series, installments
of interest on Bearer Securities whose Stated Maturity is on or prior to the
Redemption Date shall be payable only upon presentation and surrender of Coupons
for such interest (at an Office or Agency located outside the United States
except as otherwise provided in Section 1002), and provided, further, that,
except as otherwise specified in or pursuant to this Indenture or the Registered
Securities of such series, 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 Regular Record Dates therefor
according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant Coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing Coupons, or the surrender of such missing
Coupon or Coupons may be waived by the Company and the Trustee if there be
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 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 any interest or Additional Amounts represented by Coupons shall be
payable only upon presentation and surrender of those Coupons at an Office or
Agency for such Security located outside of the United States except as
otherwise provided in Section 1002.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium, until paid,
shall bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
Section 1107. Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part shall be
surrendered at any Office or Agency for such Security (with, if the Company or
the Trustee so requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing) and the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Registered Security or Securities of the
same series, containing identical terms and provisions, 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. If a Security in global form is so surrendered, the Company shall
execute, and the Trustee shall authenticate and deliver to the U.S. Depository
or other Depository for such Security in global form as shall be specified in
the Company Order
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with respect thereto to the Trustee, without service charge, a new Security in
global form in a denomination equal to and in exchange for the unredeemed
portion of the principal of the Security in global form so surrendered.
ARTICLE 12.
REPAYMENT AT THE OPTION OF HOLDERS
Section 1201. Applicability of Article.
Securities of any series which are repayable at the option of the
Holders thereof before their Stated Maturity shall be repaid in accordance with
the terms of the Securities of such series. The repayment of any principal
amount of Securities pursuant to such option of the Holder to require repayment
of Securities before their Stated Maturity, for purposes of Section 309, shall
not operate as a payment, redemption or satisfaction of the Indebtedness
represented by such Securities unless and until the Company, at its option,
shall deliver or surrender the same to the Trustee with a directive that such
Securities be cancelled. Notwithstanding anything to the contrary contained in
this Section 1201, in connection with any repayment of Securities, the Company
may arrange for the purchase of any Securities by an agreement with one or more
investment bankers or other purchasers to purchase such Securities by paying to
the Holders of such Securities on or before the close of business on the
repayment date an amount not less than the repayment price payable by the
Company on repayment of such Securities, and the obligation of the Company to
pay the repayment price of such Securities shall be satisfied and discharged to
the extent such payment is so paid by such purchasers.
ARTICLE 13.
SECURITIES IN FOREIGN CURRENCIES
Section 1301. Applicability of Article.
Whenever this Indenture provides for (i) any action by, or the
determination of any of the rights of, Holders of Securities of any series in
which not all of such Securities are denominated in the same Currency, or (ii)
any distribution to Holders of Securities, in the absence of any provision to
the contrary in the form of Security of any particular series or pursuant to
this Indenture or the Securities, any amount in respect of any Security
denominated in a Currency other than Dollars shall be treated for any such
action or distribution as that amount of Dollars that could be obtained for such
amount on such reasonable basis of exchange and as of the record date with
respect to Registered Securities of such series (if any) for such action,
determination of rights or distribution (or, if there shall be no applicable
record date, such other date reasonably proximate to the date of such action,
determination of rights or distribution) as the Company may specify in a written
notice to the Trustee or, in the absence of such written notice, as the Trustee
may determine.
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ARTICLE 14.
MEETINGS OF HOLDERS OF SECURITIES
Section 1401. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of any series may be called at any
time and from time to time pursuant to this Article Fourteen to make, give or
take any request, demand, authorization, direction, notice, consent, waiver or
other Act provided by this Indenture to be made, given or taken by Holders of
Securities of such series.
Section 1402. Call, Notice and Place of Meetings.
(1) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 1401, to
be held at such time and at such place in the Borough of Manhattan, The
City of New York, or, if Securities of such series have been issued in
whole or in part as Bearer Securities, in London or in such place
outside the United States as the Trustee shall determine. Notice of
every meeting of Holders of Securities of any series, setting forth the
time and the place of such meeting and in general terms the action
proposed to be taken at such meeting, shall be given in the manner
provided in Section 106 not less than 21 nor more than 180 days prior
to the date fixed for the meeting.
(2) In case at any time the Company (by or 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 1401, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting, and
the Trustee shall not have mailed notice of or made the first
publication of the notice of such meeting within 21 days after receipt
of such request (whichever shall be required pursuant to Section 106)
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, if Securities of such series are to be issued as Bearer
Securities, in London for such meeting and may call such meeting for
such purposes by giving notice thereof as provided in clause (1) of
this Section 1402.
Section 1403. 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.
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Section 1404. 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 at least 66-2/3% in
principal amount of the Outstanding Securities of a series, 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 after
the time appointed for any such meeting, the meeting shall, if convened at the
request of Holders of Securities of such series, be dissolved. In any other
case, the meeting may be adjourned for a period of not less than 10 days as
determined by the chairman of the meeting prior to the adjournment of such
meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10 days
as determined by the chairman of the meeting prior to the adjournment of such
adjourned meeting. Notice of the reconvening of any adjourned meeting shall be
given as provided in Section 1402(l), 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 only 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 at least 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 Act
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 such series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section 1404 shall be
binding on all the Holders of Securities of such series and the Coupons
appertaining thereto, whether or not such Holders were present or represented at
the meeting.
Section 1405. Determination of Voting Rights, Conduct and Adjournment
of Meetings.
(1) Notwithstanding any other provisions of this Indenture,
the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Holders of
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Securities of such series in regard to proof of the holding of
Securities of such series and of the appointment of proxies and in
regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence
of the right to vote, and such other matters concerning the conduct of
the meeting as it shall deem appropriate. Except as otherwise permitted
or required by any such regulations, the holding of Securities shall be
proved in the manner specified in Section 104 and the appointment of
any proxy shall be proved in the manner specified in Section 104 or by
having the signature of the person executing the proxy witnessed or
guaranteed by any trust company, bank or banker authorized by Section
104 to certify to the holding of Bearer Securities. Such regulations
may provide that written instruments appointing proxies, regular on
their face, may be presumed valid and genuine without the proof
specified in Section 104 or other proof.
(2) 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 1402(2), 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.
(3) At any meeting, each Holder of a Security of such series
or proxy shall be entitled to one vote for each $1,000 principal amount
of 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.
(4) Any meeting of Holders of Securities of any series duly
called pursuant to Section 1402 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 1406. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
triplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the
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meeting and showing that said notice was given as provided in Section 1402 and,
if applicable, Section 1404. 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.
ARTICLE 15.
PURCHASE OF SECURITIES UPON CHANGE IN CONTROL
Section 1501. Purchase of Securities at Option of the Holder upon
Change in Control.
(1) If on or prior to Maturity, there shall have occurred a
Change in Control (as defined herein), the Securities shall be
purchased, at the option of the Holder thereof, by the Company at the
purchase price specified in the Securities (the "Change in Control
Purchase Price"), on the date that is 35 Business Days after the
occurrence of the Change in Control (the "Change in Control Purchase
Date"), subject to satisfaction by or on behalf of the Holder of the
requirements set forth in Section 1501(3).
A "Change in Control" shall be deemed to have occurred at such time as
any of the following events shall occur:
(a) Any person (for purposes of paragraph (a) of this
Section 1501(1) only, the term "person" shall mean a "person"
as defined in or for purposes of Section 13(d)(3) or Section
14(d)(2) of the Exchange Act of 1934 (as defined herein), or
any successor provision to either of the foregoing, including
any "group" acting for the purposes of acquiring, holding or
disposing of Securities within the meaning of Rule 13D-5(b)(1)
under the Exchange Act of 1934), together with its Affiliates
and Associates (as defined herein), shall file or become
obligated to file a report under or in response to Schedule
13D or 14D-1 (or any successor schedule, form or report)
pursuant to the Exchange Act of 1934 disclosing that such
person has become the beneficial owner (as the term
"beneficial owner" is defined in Rule 13d-3 under the Exchange
Act of 1934, or any successor provision) of either (A) 50% or
more of the shares of Common Stock then outstanding or (B) 50%
or more of the voting power of the Voting Stock of the Company
then outstanding; provided, however, that for purposes of
paragraph (a) of this Section 1501(1), a person shall not be
deemed the beneficial owner of (1) any Securities tendered
pursuant to a tender offer or exchange offer made by or on
behalf of such person, or its Affiliates or Associates, until
such tendered Securities are accepted for purchase or exchange
thereunder, or (2) any Securities in respect of which
beneficial ownership by such person arises solely as a result
of a revocable proxy delivered in response to a proxy or
consent solicitation that is made pursuant to, and in
accordance with, the Exchange Act of 1934 and the applicable
rules and regulations thereunder and is not then reportable on
Schedule 13D (or any successor schedule, form or report) under
the Exchange Act of 1934;
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(b) There shall be consummated any sale, transfer,
lease or conveyance of all or substantially all of the
properties and assets of the Company to any other Corporation
or Corporations or other person or persons (other than a
Subsidiary of the Company);
(c) There shall be consummated any consolidation of
the Company with or merger of the Company with or into any
other Person (whether or not affiliated with the Company) in
which the Company is not the sole surviving or continuing
corporation or pursuant to which the shares of Common Stock
outstanding immediately prior to the consummation of such
consolidation or merger are converted into cash, securities or
other property, other than a consolidation or merger in which
the holders of shares of Common Stock receive, directly or
indirectly, (A) 75% or more of the common stock of the sole
surviving or continuing Corporation outstanding immediately
following the consummation of such consolidation or merger and
(B) securities representing 75% or more of the combined voting
power of the Voting Stock of the sole surviving or continuing
corporation outstanding immediately following the consummation
thereof of such consolidation or merger.
"Exchange Act of 1934" shall mean the Securities Exchange Act of 1934,
as amended.
"Associate" shall have the meaning ascribed to such term in Rule 12b-2
under the Exchange Act of 1934, as in effect on the date hereof.
(2) Within 15 Business Days after the occurrence of a Change
in Control, the Company shall mail a written notice of Change in
Control by first-class mail to the Trustee and to each Holder (and to
beneficial owners as required by applicable law, including, without
limitation, Rule 13c-4 under the Securities Exchange Act of 1934) and,
if any Bearer Securities are then outstanding, shall cause a copy of
such notice to be published at least once in an Authorized Newspaper
located in The City of New York and, if any Securities are then listed
on any stock exchange located outside the United States, in an
Authorized Newspaper in such city as the stock exchange so requires.
The notice shall include or transmit a form of Change in Control
Purchase Notice (as described below) to be completed by the Holder and
shall state:
(a) the events causing a Change in Control and the
date of such Change in Control;
(b) the date by which the Change in Control Purchase
Notice pursuant to this Section 1501 must be given;
(c) the Change in Control Purchase Date;
(d) the Change in Control Purchase Price;
(e) the name and address of the Trustee and the
Office or Agency;
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(f) that the Securities must be surrendered to the
Trustee or the Office or Agency to collect payment;
(g) that the Change in Control Purchase Price for any
Security as to which a Change in Control Purchase Notice has
been duly given and not withdrawn will be paid promptly
following the later of the Change in Control Purchase Date or
the time of surrender of such Security as described in Section
1501(2)(f);
(h) the procedures the Holder must follow to exercise
rights under this Section 1501(2) and a brief description of
those rights; and
(i) the procedures for withdrawing a Change in
Control Purchase Notice.
(3) A Holder may exercise its rights specified in Section
1501(l) upon delivery of a written notice of purchase (a "Change in
Control Purchase Notice") to the Trustee or to the Office or Agency at
any time prior to the close of business of the Change in Control
Purchase Date, stating:
(a) the certificate number or numbers of the Security
or Securities, except in the case of global Securities, which
the Holder will deliver to be purchased;
(b) the portion of the principal amount of the
Security or Securities which the Holder will deliver to be
purchased, which portion must be $1,000 or an integral
multiple thereof; and
(c) that such Security or Securities shall be
purchased on the Change in Control Purchase Date pursuant to
the terms and conditions specified in the Securities.
The delivery of the Security, by hand or by registered mail prior to,
on or after the Change in Control Purchase Date (together with all necessary
endorsements), to the Trustee or to the Office or Agency shall be a condition
precedent to the obligation of the Company to pay to the Holder the Change in
Control Purchase Price therefor; provided, however, that such Change in Control
Purchase Price shall be so paid pursuant to this Section 1501 only if the
Security so delivered to the Trustee or such Office or Agency shall conform in
all respects to the description thereof set forth in the related Change in
Control Purchase Notice.
Notwithstanding anything herein to the contrary, any Holder delivering
to the Trustee or to the Office or Agency, the Change in Control Purchase Notice
contemplated by this Section 1501(3) shall have the right to withdraw such
Change in Control Purchase Notice at any time prior to or on the Change in
Control Purchase Date by delivery of a written notice of withdrawal to the
Trustee or to such office or agency in accordance with Section 1502.
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Section 1502. Effect of Change in Control Purchase Notice.
Upon receipt by the Company of the Change in Control Purchase Notice
specified in Section 1501(3), the Holder of the Security in respect of which
such Change in Control Purchase Notice was given shall (unless such Change in
Control Purchase Notice is withdrawn as specified in the following paragraph)
thereafter be entitled to receive solely the Change in Control Purchase Price
with respect to such Security. Such Change in Control Purchase Price shall be
paid to such Holder promptly following the later of (x) the Change in Control
Purchase Date, as the case may be, with respect to such Security (provided the
conditions in Section 1501(3), as applicable, have been satisfied) and (y) the
time of delivery of such Security to the Trustee or to the Office or Agency by
the Holder thereof in the manner required by Section 1501(3) as applicable.
A Change in Control Purchase Notice may be withdrawn by means of a
written notice of withdrawal delivered to the office of the Trustee or to the
Office or Agency at any time prior to the close of business on the Change in
Control Purchase Date, specifying:
(1) the certificate number or numbers of the Security or
Securities, except in the case of global Securities, in respect of
which such notice of withdrawal is being submitted;
(2) the principal amount of the Security or Securities with
respect to which such notice of withdrawal is being submitted, and
(3) the principal amount, if any, of such Security or
Securities which remains subject to the original Change in Control
Purchase Notice, and which has been and will be delivered for purchase
by the Company.
There shall be no purchase of any Securities pursuant to Section 1501
if there has occurred and is continuing an Event of Default (other than a
default in the payment of the Change in Control Purchase Price).
Section 1503. Deposit of Change in Control Purchase Price.
Prior to 12:00 Noon (local time in The City of New York) on the
Business Day following the Change in Control Purchase Date, the Company shall
deposit with the Trustee (or, if the Company or a Subsidiary or an Affiliate of
either of them is acting as Paying Agent, shall segregate and hold in trust as
provided in Section 1003) an amount of cash in immediately available funds or
Securities, if expressly permitted hereunder, sufficient to pay the aggregate
Change in Control Purchase Price of all the Securities or portions thereof which
are to be purchased. If a deposit is made with the Trustee of the aforesaid
amount of cash or Securities, the Securities or portions thereof with respect to
which a Change in Control Purchase Notice has been delivered and not validly
withdrawn shall become due and payable as of the Business Day following the
applicable Change in Control Purchase Date, and on and after such date interest
payable in respect of such Securities shall cease and all other rights of the
Holders thereof shall terminate, other than the right to receive the Change in
Control Purchase Price upon delivery of such Securities to the Trustee.
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Section 1504. Covenant to Comply With Securities Laws Upon Purchase of
Securities.
In connection with any purchase of Securities under Section 1501
hereof, the Company shall (a) comply with Rule 13e-4 under the Securities
Exchange Act of 1934, if applicable, (b) file the related Schedule 13E-4 (or any
successor schedule, form or report) under the Securities Exchange Act of 1934,
if applicable, and (c) otherwise comply with all Federal and state securities
laws regulating the purchase of the Securities (including positions of the
Commission under applicable no-action letters) so as to permit the rights and
obligation under Section 1501 to be exercised in the time and in the manner
specified in Section 1501 and 1502.
Section 1505. Repayment to the Company.
The Trustee shall return to the Company any cash, together with
interest or dividends, if any, thereon (subject to the provisions of Section
605) held by it for the payment of the Change in Control Purchase Price of the
Securities that remain unclaimed as provided in the Securities; provided,
however, that to the extent the aggregate amount of cash deposited by the
Company pursuant to Section 1503 exceeds the aggregate Change in Control
Purchase Price of the Securities or portions thereof to be purchased, then
promptly after the Change in Control Purchase Date, the Trustee shall return any
such excess to the Company together with interest or dividends, if any, thereon
(subject to the provisions of Section 605).
ARTICLE 16.
SUBORDINATION
Section 1601. Securities Subordinated to Senior Indebtedness.
Notwithstanding the provisions of Section 506 or any other provision
herein or in any Security, the Company and the Trustee and, by their acceptance
thereof, the Holders of the Securities (a) covenant and agree that all payments
by the Company of the principal of and any premium or interest on and any
Additional Amounts with respect to the Securities (other than Securities which
have been discharged pursuant to Article Four or Securities that provide for a
sinking fund pursuant to the Board Resolution, Officers' Certificate or
supplemental indenture establishing the series as to which such sinking fund is
applicable) shall be subordinated in accordance with the provisions of this
Article Sixteen in right of payment to the prior payment in full, in cash or
cash equivalents, of all amounts payable on, under or in connection with Senior
Indebtedness, and (b) acknowledge that holders of Senior Indebtedness are or
shall be relying on this Article Sixteen. Nothing herein or in any Security is
intended to or shall limit the amount of Senior Indebtedness the Company may
incur.
Section 1602. Priority and Payment of Proceeds in Certain Events:
Remedies Standstill.
(1) Upon any payment or distribution of assets or securities
of the Company, as the case may be, of any kind or character, whether
in cash, property or securities, upon any dissolution or winding up or
total or partial liquidation or reorganization of the Company, whether
voluntary or involuntary, or in bankruptcy, insolvency, receivership or
other proceedings, all amounts payable on, under or in connection with
Senior
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Indebtedness (including any interest accruing on such Senior
Indebtedness subsequent to the commencement of a bankruptcy,
insolvency, receivership or similar proceeding) shall first be paid,
ratably according to the aggregate amounts remaining unpaid on account
of the principal of and any premium and interest on the Senior
Indebtedness held or represented by each, to the extent necessary to
make payment in full of all Senior Indebtedness remaining unpaid, in
cash, or payment provided for in cash or cash equivalents, ratably
according to the aggregate amounts remaining unpaid on account of the
principal of and any premium and interest on the Senior Indebtedness
held or represented by each, to the extent necessary to make payment in
full of all Senior Indebtedness remaining unpaid, before the Holders or
the Trustee on behalf of the Holders or the holders of Preferred
Securities, if any, shall be entitled to receive from the Company any
payment of principal of or any premium or interest on or Additional
Amounts with respect to the Securities or distribution of any assets or
securities.
(2) No direct or indirect payment by or on behalf of the
Company of principal of or any premium or interest on or Additional
Amounts with respect to the Securities (other than Securities which
have been discharged pursuant to Article Four or Securities that
provide for a sinking fund), whether pursuant to the terms of the
Securities or upon acceleration or otherwise, shall be made if, at the
time of such payment, there exists (a) a default in the payment of all
or any portion of any Senior Indebtedness and the Trustee has received
written notice thereof from the Company, from holders of Senior
Indebtedness or from any trustee, representative or agent therefor, or
(b) any other default affecting Senior Indebtedness as a result of
which the maturity of Senior Indebtedness has been accelerated and the
Trustee has received written notice from the Company, from holders of
Senior Indebtedness or from any trustee, representative or agent
therefor, and such default shall not have been cured or waived by or on
behalf of the holders of such Senior Indebtedness.
(3) If, notwithstanding the foregoing provisions prohibiting
such payment or distribution, the Trustee or any Holder shall have
received any payment on account of the principal of or any premium or
interest on or Additional Amounts with respect to the Securities when
such payment is prohibited by this Section 1602 and before all amounts
payable on, under or in connection with Senior Indebtedness are paid in
full in cash or cash equivalents, then and in such event (subject to
the provisions of Section 1608) such payment or distribution shall be
received and held in trust for the holders of Senior Indebtedness and,
at the written direction of the trustee, representative or agent for
the holders of the Senior Indebtedness, shall be paid to the holders of
the Senior Indebtedness remaining unpaid to the extent necessary to pay
such Senior Indebtedness in full in cash or cash equivalents.
Upon any payment or distribution of assets or securities referred to in
this Article Sixteen, the Trustee and the Holders shall be entitled to rely upon
any order or decree of a court of competent jurisdiction in which such
dissolution, winding up, liquidation or reorganization proceedings are pending
or upon a certificate of the receiver, trustee in bankruptcy, liquidating
trustee, agent or other Person making any such payment or distribution,
delivered to the Trustee or to the Holders for the purpose of ascertaining the
Persons entitled to participate in such distribution, the holders of Senior
Indebtedness and other Indebtedness of the Company, the
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amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article Sixteen.
Section 1603. Payments which May Be Made Prior to Notice.
Nothing in this Article Sixteen or elsewhere in this Indenture shall
prevent (1) the Company, except under the conditions described in Section 1602,
from making payments of principal of or any premium or interest on or Additional
Amounts with respect to the Securities or from depositing with the Trustee any
monies for such payments, or (2) the application by the Trustee of any monies
deposited with it for the purpose of making such payments of principal of or any
premium or interest on or Additional Amounts with respect to the Securities, to
the Holders entitled thereto, unless at least two Business Days prior to the
date when such payment would otherwise (except for the prohibitions contained in
Section 1602) become due and payable, the Trustee shall have received the
written notice provided for in Section 1602(2)(a) or (b).
Section 1604. Rights of Holders of Senior Indebtedness Not to Be
Impaired.
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time or in any way be
prejudiced or impaired by any act or failure to act in good faith by any such
holder, or by any noncompliance by the Company with the terms and provisions and
covenants herein regardless of any knowledge thereof any such holder may have or
otherwise be charged with.
The provisions of this Article Sixteen are intended to be for the
benefit of, and shall be enforceable directly by, the holders of Senior
Indebtedness. Notwithstanding anything to the contrary in this Article Sixteen,
to the extent any Holders or the Trustee have paid over or delivered to any
holder of Senior Indebtedness any payment or distribution received on account of
the principal of or any premium or interest on or Additional Amounts with
respect to the Securities to which any other holder of Senior Indebtedness shall
be entitled to share in accordance with Section 1602, no holder of Senior
Indebtedness shall have a claim or right against any Holders or the Trustee with
respect to any such payment or distribution or as a result of the failure to
make payments or distributions to such other holder of Senior Indebtedness.
Section 1605. Trustee May Take Action to Effectuate Subordination.
Each Holder of a Security, by his acceptance thereof, authorizes and
directs the Trustee on his behalf to take such action as may be required by the
trustee, representative or agent for holders of Senior Indebtedness or by the
Company to effectuate, as between the holders of Senior Indebtedness and the
Holders, the subordination as provided in this Article Sixteen and appoints the
Trustee his attorney-in-fact for any and all such purposes.
Section 1606. Subrogation.
Upon the payment in full, in cash or cash equivalents, of all Senior
Indebtedness, any Holder shall be subrogated to the rights of the holders of
such Senior Indebtedness to receive payments or distributions of assets of the
Company in respect of such Senior Indebtedness until the Securities shall be
paid in full; and for the purposes of such subrogation, no payments or
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distributions to holders of such Senior Indebtedness of any cash property or
securities to which such Holders of the Securities would be entitled except for
this Article Sixteen, and no payment pursuant to this Article Sixteen to holders
of such Senior Indebtedness by such Holders of the Securities, shall, as between
the Company, its creditors other than holders of such Senior Indebtedness and
such Holders of the Securities, be deemed to be a payment by the Company to or
on account of such Senior Indebtedness, it being understood that the provisions
of this Article Sixteen are solely for the purpose of defining the relative
rights of the holders of such Senior Indebtedness, on the one hand, and such
Holders of the Securities, on the other hand.
If any payment or distribution to which Holders of Securities would
otherwise have been entitled but for the provisions of this Article Sixteen
shall have been applied, pursuant to this Article Sixteen, to the payment of all
Senior Indebtedness, then and in such case such Holders of the Securities shall
be entitled to receive from the holders of such Senior Indebtedness at the time
outstanding any payments or distributions received by such holders of Senior
Indebtedness in excess of the amount sufficient to pay, in cash or cash
equivalents, all such Senior Indebtedness in full.
Section 1607. Obligations of Company Unconditional; Reinstatement.
Nothing in this Article Sixteen or elsewhere in this Indenture or in
any Security is intended to or shall impair, as among the Company, its creditors
other than holders of Senior Indebtedness and Holders of the Securities, the
obligations of the Company, which are absolute and unconditional, to pay to such
Holders the principal of and any premium and interest on and Additional Amounts
with respect to the Securities as and when the same shall become due and payable
in accordance with their terms, or is intended to or shall affect the relative
rights of such Holders of the Securities and creditors of the Company other than
the holders of the Senior Indebtedness, nor shall anything herein or therein
prevent the Trustee or any Holder of Securities or holder of Preferred
Securities, as applicable, from exercising all remedies otherwise permitted by
applicable law under this Indenture, subject to the rights, if any, under this
Article Sixteen of the holders of such Senior Indebtedness in respect of cash,
property or securities of the Company received upon the exercise of any such
remedy.
The failure to make a scheduled payment of principal of or any premium
or interest on or Additional Amounts with respect to the Securities by reason of
Section 1602 shall not be construed as preventing the occurrence of a Default or
an Event of Default under Section 501; provided, however, that if (1) the
conditions preventing the making of such payment no longer exist, and (2) such
Holders of the Securities are made whole with respect to such omitted payments,
the Default or Event of Default relating thereto (including any failure to pay
any accelerated amounts) shall be automatically waived, and the provisions of
the Indenture shall be reinstated as if no such Event of Default had occurred.
Section 1608. Trustee Entitled to Assume Payments Not Prohibited in
Absence of Notice.
The Trustee or Paying Agent shall not be charged with the knowledge of
the existence of any default in the payment of all or a portion of any Senior
Indebtedness or any other default affecting Senior Indebtedness as a result of
which the maturity of the Senior Indebtedness has been accelerated, unless and
until the Trustee or Paying Agent shall have received written notice
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thereof from the Company or one or more holders of Senior Indebtedness or from
any trustee, representative or agent therefor; and, prior to the receipt of any
such written notice, the Trustee or Paying Agent may conclusively assume that no
such facts exist.
Unless at least two Business Days prior to the date when by the terms
of this Indenture any monies are to be deposited by the Company with the Trustee
or any Paying Agent for any purpose (including, without limitation, the payment
of the principal of or any premium or interest on or Additional Amounts with
respect to any Security), the Trustee or Paying Agent shall have received with
respect to such monies the notice provided for in Section 1602, the Trustee or
Paying Agent shall have full power and authority to receive and apply such
monies to the purpose for which they were received. Neither of them shall be
affected by any notice to the contrary, which may be received by either on or
after such second Business Day. The foregoing shall not apply to the Paying
Agent if the Company is acting as Paying Agent. Nothing in this Section 1608
shall limit the right of the holders of Senior Indebtedness to recover payments
as contemplated by Section 1602. The Trustee or Paying Agent shall be entitled
to rely on the delivery to it of a written notice by a Person representing
himself or itself to be a holder of such Senior Indebtedness (or a trustee,
representative or agent on behalf of such holder) to establish that such notice
has been given by a holder of such Senior Indebtedness or a trustee,
representative or agent on behalf of any such holder. The Trustee shall not be
deemed to have any fiduciary duty to the holders (and shall be fully protected
in relying upon such notice) of Senior Indebtedness.
Section 1609. Right of Trustee to Hold Senior Indebtedness.
The Trustee and any Paying Agent shall be entitled to all of the rights
set forth in this Article Sixteen in respect of any Senior Indebtedness at any
time held by them, to the same extent as any other holder of such Senior
Indebtedness, and nothing in this Indenture shall be construed to deprive the
Trustee or any Paying Agent of any of its rights as such holder.
Section 1610. Notice to Trustee.
The Company shall give prompt written notice to the Trustee or Paying
Agent of any fact known to the Company which would prohibit the making of any
payment to or by the Trustee in respect of the Securities. Failure to give such
notice shall not affect the subordination of the Securities to Senior
Indebtedness. Notwithstanding the provisions of this or any other provision of
this Indenture, the Trustee or Paying Agent shall not be charged with knowledge
of the existence of any facts which would prohibit the making of any payment to
or by the Trustee or Paying Agent in respect of the Securities, unless and until
the Trustee or Paying Agent shall have received written notice from the Company
or a holder of Senior Indebtedness or from any trustee or agent therefor; and,
prior to the receipt of any such written notice, the Trustee, subject to the
provisions of Section 601, or Paying Agent shall be entitled in all respects to
assume that no such facts exist; provided, however, that if a Responsible
Officer of the Trustee or Paying Agent shall not have received, at least three
Business Days prior to the date upon which by the terms hereof any such money
may become payable for any purpose (including, without limitation, the payment
of the principal of or any premium or interest on or Additional Amounts with
respect to any Security, the notice with respect to such money provided for in
this Section 1610, then, anything herein contained to the contrary
notwithstanding, the Trustee or Paying Agent shall have full power and authority
to receive such money and to apply the same to the purpose for
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which such money was received and shall not be affected by any notice to the
contrary which may be received by it within three Business Days prior to such
date.
The Trustee, subject to the provisions of Section 601, or Paying Agent
shall be entitled to conclusively rely on the delivery to it of a written notice
by a Person representing himself or itself to be a holder of Senior Indebtedness
(or a trustee or agent on behalf of such holder) to establish that such notice
has been given by a holder of Senior Indebtedness (or a trustee or agent on
behalf of any such holder). In the event that the Trustee or Paying Agent
determines in good faith that further evidence is required with respect to the
right of any Person as a holder of Senior Indebtedness to participate in any
payment or distribution pursuant to this Article Sixteen, the Trustee or Paying
Agent may request such Person to furnish evidence to the reasonable satisfaction
of the Trustee or Paying Agent as to the amount of Senior Indebtedness held by
such Person, the extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
Person under this Article Sixteen, and if such evidence is not furnished, the
Trustee or Paying Agent may defer any payment which it may be required to make
for the benefit of such Person pursuant to the terms of this Indenture pending
judicial determination as to the rights of such Person to receive such payment.
Section 1611. Reliance on Judicial Order or Certificate of Liquidating
Agent.
Upon any payment or distribution of assets of the Company referred to
in this Article Sixteen, the Trustee, subject to the provisions of Section 601,
and the Holders of the Securities shall be entitled to rely upon any order or
decree entered by any court of competent jurisdiction in which such insolvency,
bankruptcy, receivership, liquidation, reorganization, dissolution, winding up
or similar case or proceeding is pending, or a certificate of the trustee in
bankruptcy, liquidating trustee, Custodian, receiver, assignee for the benefit
of creditors, agent or other Person making such payment or distribution,
delivered to the Trustee or to the Holders of Securities, for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of Senior Indebtedness and other indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article
Sixteen.
Section 1612. Trustee Not Fiduciary for Holders of Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness and shall not be liable to any such holders if
the Trustee shall in good faith mistakenly pay over or distribute to Holders of
Securities or to the Company or to any other Person cash, property or securities
to which any holders of Senior Indebtedness shall be entitled by virtue of this
Article or otherwise. With respect to the holders of Senior Indebtedness, the
Trustee undertakes to perform or to observe only such of its covenants or
obligations as are specifically set forth in this Article and no implied
covenants or obligations with respect to holders of Senior Indebtedness shall be
read into this Indenture against the Trustee.
Nothing in this Article shall apply to claims of or payments to, the
Trustee under or pursuant to Section 606.
* * * * *
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This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed, all
as of the day and year first above written.
(SEAL] APACHE CORPORATION
Attest:
By By
----------------------------------- ---------------------------------
Name: Name:
Title: Title:
(SEAL] THE CHASE MANHATTAN BANK,
as Trustee
Attest:
By By
----------------------------------- ---------------------------------
Name: Name:
Title: Title:
00
00
XXXXX XX XXXXX )
) ss.
COUNTY OF XXXXXX )
On the ____ day of _________________, before me personally came
____________, to me known, who, being by me duly sworn, did depose and say that
he is an Assistant Treasurer of APACHE CORPORATION, a State of Delaware
corporation, one of the persons described in and who executed the foregoing
instrument; that he knows the seal of said Corporation; that the seal affixed to
said instrument is such Corporation's 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.
-----------------------------------
Notary Public
[NOTARIAL SEAL]
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STATE OF TEXAS )
) ss.
COUNTY OF XXXXXX )
On the ____ day of _________________, ____, before me personally came
____________, to me known, who, being by me duly sworn, did depose and say that
he is a ______________ of ________________________, a [banking corporation]
organized and existing under the laws of the ______________________, one of the
persons described in and who executed the foregoing instrument; that he knows
the seal of said Corporation; that the seal affixed to said instrument is such
Corporation's 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.
-----------------------------------
Notary Public
[NOTARIAL SEAL]
89
