EXHIBIT 4.1
UNITED PARCEL SERVICE OF AMERICA, INC.
AND
CITIBANK, N.A.
(as Trustee)
____________________________
I N D E N T U R E
____________________________
Dated as of __________________________________, 1999
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. Definitions................................................. 6
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SECTION 1.02. Compliance Certificates and Opinions........................15
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SECTION 1.03. Form of Documents Delivered to Trustee......................16
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SECTION 1.04. Acts of Holders; Record Dates...............................16
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SECTION 1.05. Notices, Etc., to Trustee and Company.......................18
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SECTION 1.06. Notice to Holders; Waiver...................................18
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SECTION 1.07. Conflict with Trust Indenture Act...........................18
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SECTION 1.08. Effect of Headings and Table of Contents....................18
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SECTION 1.09. Successors and Assigns......................................19
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SECTION 1.10. Separability Clause.........................................19
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SECTION 1.11. Benefits of Indenture.......................................19
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SECTION 1.12. Governing Law...............................................19
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SECTION 1.13. Legal Holidays..............................................19
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ARTICLE II
SECURITY FORMS
SECTION 2.01. Forms Generally.............................................19
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SECTION 2.02. Form of Face of Security....................................20
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SECTION 2.03. Form of Reverse of Security.................................21
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SECTION 2.04. Form of Legend for Global Securities........................24
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SECTION 2.05. Form of Trustee's Certificate of Authentication.............25
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ARTICLE III
THE SECURITIES
SECTION 3.01. Amount Unlimited; Issuable in Series........................26
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SECTION 3.02. Denominations...............................................28
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SECTION 3.03. Execution, Authentication, Delivery and Dating..............28
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SECTION 3.04. Temporary Securities........................................29
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SECTION 3.05. Registration, Transfer and Exchange.........................30
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SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities............31
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SECTION 3.07. Payment of Interest; Interest Rights Preserved..............32
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SECTION 3.08. Persons Deemed Owners.......................................33
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SECTION 3.09. Cancellation................................................33
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SECTION 3.10. Computation of Interest.....................................33
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SECTION 3.11. CUSIP Numbers...............................................33
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ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.01. Satisfaction and Discharge of Indenture.....................................33
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SECTION 4.02. Application of Trust Money..................................................34
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ARTICLE V
REMEDIES
SECTION 5.01. Event of Default............................................................34
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SECTION 5.02. Acceleration of Maturity; Rescission and Annulment..........................35
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SECTION 5.03. Collection of Indebtedness and Suits for Enforcement by Trustee.............36
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SECTION 5.04. Trustee May File Proofs of Claim............................................37
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SECTION 5.05. Trustee May Enforce Claims Without Possession of Securities.................37
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SECTION 5.06. Application of Money Collected..............................................37
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SECTION 5.07. Limitation on Suits.........................................................38
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SECTION 5.08. Unconditional Right of Holder To Receive Principal, Premium and
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Interest....................................................................38
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SECTION 5.09. Restoration of Rights and Remedies..........................................38
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SECTION 5.10. Rights and Remedies Cumulative..............................................38
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SECTION 5.11. Delay or Omission Not Waiver................................................39
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SECTION 5.12. Control by Holders..........................................................39
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SECTION 5.13. Waiver of Past Defaults.....................................................39
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SECTION 5.14. Undertaking for Costs.......................................................39
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SECTION 5.15. Waiver of Usury, Stay or Extension Laws.....................................40
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SECTION 5.16. Undertaking for Costs.......................................................40
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ARTICLE VI
THE TRUSTEE
SECTION 6.01. Certain Duties and Responsibilities.........................................40
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SECTION 6.02. Notice of Defaults..........................................................40
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SECTION 6.03. Certain Rights of Trustee...................................................40
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SECTION 6.04. Not Responsible for Recitals or Issuance of Securities......................42
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SECTION 6.05. May Hold Securities.........................................................42
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SECTION 6.06. Money Held in Trust.........................................................42
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SECTION 6.07. Compensation and Reimbursement..............................................42
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SECTION 6.08. Conflicting Interests.......................................................43
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SECTION 6.09. Corporate Trustee Required; Eligibility.....................................43
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SECTION 6.10. Resignation and Removal; Appointment of Successor...........................43
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SECTION 6.11. Acceptance of Appointment by Successor......................................44
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SECTION 6.12. Merger, Conversion, Consolidation or Succession to Business.................45
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SECTION 6.13. Preferential Collection of Claims Against Company...........................45
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SECTION 6.14. Appointment of Authenticating Agent.........................................45
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ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.01. Company To Furnish Trustee Names and Addresses of Holders...................47
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SECTION 7.02. Preservation of Information; Communications to Holders......................47
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SECTION 7.03. Reports by Trustee..........................................................47
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SECTION 7.04. Reports by Company..........................................................47
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ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.01. Company May Consolidate, Etc. Only on Certain Terms..................................48
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SECTION 8.02. Successor Substituted................................................................48
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ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures without Consent of Holders...................................49
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SECTION 9.02. Supplemental Indentures with Consent of Holders......................................50
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SECTION 9.03. Execution of Supplemental Indentures.................................................51
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SECTION 9.04. Effect of Supplemental Indentures....................................................51
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SECTION 9.05. Conforming with Trust Indenture Act..................................................51
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SECTION 9.06. Reference in Securities to Supplemental Indentures...................................51
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ARTICLE X
COVENANTS
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SECTION 10.01. Delivery or Payment of Maturity Consideration and Interest..........................51
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SECTION 10.02. Maintenance of Office or Agency.....................................................51
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SECTION 10.03. Money or Other Consideration for Securities Payments To Be Held in Trust............52
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SECTION 10.04. Statement by Officers as to Default.................................................53
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SECTION 10.05. Existence...........................................................................53
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SECTION 10.06. Limitation on Secured Debt..........................................................53
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SECTION 10.07. Limitation on Sale and Leaseback Transactions.......................................53
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SECTION 10.08. Calculation of Original Issue Discount..............................................54
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SECTION 10.09. Waiver of Certain Covenants.........................................................54
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ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.01. Applicability of Article............................................................54
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SECTION 11.02. Election to Redeem; Notice to Trustee...............................................54
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SECTION 11.03. Selection by Trustee of Securities To Be Redeemed...................................54
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SECTION 11.04. Notice of Redemption................................................................55
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SECTION 11.05. Deposit of Redemption Price.........................................................56
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SECTION 11.06. Securities Payable on Redemption Date...............................................56
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SECTION 11.07. Securities Redeemed in Part.........................................................56
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ARTICLE XII
SINKING FUNDS
SECTION 12.01. Applicability of Article............................................................56
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SECTION 12.02. Satisfaction of Sinking Fund Payments with Securities...............................57
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SECTION 12.03. Redemption of Securities for Sinking Fund...........................................57
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ARTICLE XIII
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 13.01. Company's Option To Effect Defeasance or Covenant Defeasance.................57
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SECTION 13.02. Defeasance and Discharge.....................................................57
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SECTION 13.03. Covenant Defeasance..........................................................58
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SECTION 13.04. Conditions To Defeasance or Covenant Defeasance..............................58
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SECTION 13.05. Deposited Money and U.S. Government Obligations To Be Held in Trust;
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Miscellaneous Provisions.....................................................59
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SECTION 13.06. Reinstatement................................................................60
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ARTICLE XIV
REPAYMENT AT THE OPTION OF HOLDERS
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SECTION 14.01. Applicability of Article.....................................................60
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ARTICLE XV
SECURITIES IN FOREIGN CURRENCIES
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SECTION 15.01. Applicability of Article.....................................................61
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ARTICLE XVI
MEETINGS OF HOLDERS OF SECURITIES
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SECTION 16.01 Purposes for Which Meetings May Be Called.....................................61
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SECTION 16.02 Call, Notice and Place of Meetings............................................61
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SECTION 16.03 Persons Entitled to Vote at Meetings..........................................61
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SECTION 16.04 Quorum; Action................................................................62
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SECTION 16.05. Determination of Voting Rights; Conduct and Adjournment of Meetings...........62
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SECTION 16.06. Counting Votes and Recording Action of Meetings...............................63
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ARTICLE XVII
MISCELLANEOUS PROVISIONS
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SECTION 17.01. Maturity Consideration........................................................63
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INDENTURE, dated as of ___________, 1999, between UNITED PARCEL SERVICE OF
AMERICA, INC., a corporation duly organized and existing under the laws of the
State of Delaware (herein called the "Company"), having its principal executive
office at 00 Xxxxxxxx Xxxxxxx X.X., Xxxxxxx, Xxxxxxx 00000 and CITIBANK, N.A., a
national banking association, duly incorporated and existing under the laws of
the United States of America, as Trustee (herein called the "Trustee");
W I T N E S S E T H :
WHEREAS, the Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided;
and
WHEREAS, all things necessary to make this Indenture a valid agreement of
the Company, in accordance with its terms, have been done.
NOW, THEREFORE, for and in consideration of the premises and the purchase
of the Securities by the Holders thereof, it is mutually agreed, for the equal
and proportionate benefit of all Holders of the Securities or of any series
thereof, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. Definitions. For all purposes of this Indenture, except as
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otherwise expressly provided:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meaning
assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as
are generally accepted at the date of this instrument;
(4) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may
be, of this Indenture; and
(5) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning specified in
Section 1.04.
"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
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securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings corresponding to the foregoing.
"Attributable Debt" means, as of the date of its determination, the present
value (discounted semiannually at an interest rate of 7.0% per annum) of the
obligation of a lessee for rental payments pursuant to any Sale and Leaseback
Transaction (reduced by the amount of the rental obligations of any sublessee of
all or part of the same property) during the remaining term of such Sale and
Leaseback Transaction (including any period for which the lease relating thereto
has been extended), such rental payments not to include amounts payable by the
lessee for maintenance and repairs, insurance, taxes, assessments and similar
charges and for contingent rents (such as those based on sales). In the case of
any Sale and Leaseback Transaction in which the lease is terminable by the
lessee upon the payment of a penalty, such rental payments shall be considered
for purposes of this definition to be the lesser of (a) the rental payments to
be paid under such Sale and Leaseback Transaction until the first date (after
the date of such determination) upon which it may be so terminated plus the then
applicable penalty upon such termination and (b) the rental payments required to
be paid during the remaining term of such Sale and Leaseback Transaction
(assuming such termination provision is not exercised).
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 6.14 to act on behalf of the Trustee to authenticate Securities of
one or more series.
"Board of Directors" means either the board of directors of the Company or
committee of that board duly authorized to act for it in respect hereof.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment, means each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
commercial banks in that Place of Payment are authorized or obligated by law or
executive order to close.
"Capitalized Lease Obligation" means any obligation to pay rent or other
amounts under a lease of (or other agreement conveying the right to use) real or
personal property that is required to be classified and accounted for as a
capital lease obligation under generally accepted accounting principles, and,
for the purposes of this Indenture, the amount of such obligation at any date
shall be the capitalized amount thereof at such date, determined in accordance
with such principles.
"Capital Stock", as applied to the stock of any corporation, means the
capital stock of every class whether now or hereafter authorized, regardless of
whether such capital stock shall be limited to a fixed sum or percentage with
respect to the rights of the holders thereof to participate in dividends and in
the distribution of assets upon the voluntary or involuntary liquidation,
dissolution or winding up of such corporation.
"Certificate" means a certificate signed by a duly authorized signatory of
the Company and delivered to the Trustee.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
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"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" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Vice
Chairman of the Board, its President or a Vice President, and by its Treasurer,
an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"Consolidated Net Tangible Assets" means at any date, the total assets
appearing on the most recently prepared consolidated balance sheet of the
Company and the Subsidiaries as of the end of a fiscal quarter of the Company,
prepared in accordance with generally accepted accounting principles, less (a)
all current liabilities as shown on such balance sheet and (b) Intangible
Assets.
"Corporate Trust Office" means the principal office of the Trustee at any
time where its corporate trust business is administered, which on the date
hereof is located at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Global Agency & Trust Services, or other such address as the Trustee may
designate from time to time by notice to the Holders and the Company or the
principal corporate trust office of any successor Trustee (or such other address
as a successor Trustee may designate from time to time by notice to the Holders
and the Company).
"Corporation" means a corporation, association, company, joint-stock
company or business trust.
"Covenant Defeasance" has the meaning specified in Section 13.03.
"Defaulted Interest" has the meaning specified in Section 3.07.
"Defeasance" has the meaning specified in Section 13.02.
"Depositary" means, with respect to Securities of any series issuable in
whole or in part in the form of one or more Global Securities, a clearing agency
registered under the Exchange Act that is designated to act as Depositary for
such Securities as contemplated by Section 3.01.
"Event of Default" has the meaning specified in Section 5.01.
"Exchange Act" means the Securities Exchange Act of 1934 and any applicable
statute successor thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 1.04.
"Funded Debt" means any indebtedness maturing by its terms more than one
year from the date of issuance thereof, including any indebtedness renewable or
extendible at the option of the obligor to a date later than one year from the
date of the original issuance thereof.
"Global Security" means a Security that evidences all or part of the
Securities of any series and bears the legend set forth in Section 2.04 (or such
legend as may be specified as contemplated by Section 3.01 for such Securities).
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indebtedness" means (a) any liability of any Person (1) for borrowed
money, or under any reimbursement obligation relating to a letter of credit, or
(2) evidenced by a bond, note, debenture or similar instrument (including a
purchase money obligation) given in connection with the acquisition of any
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businesses, properties or assets of any kind or with services incurred in
connection with capital expenditures (other than a trade payable or a current
liability arising in the ordinary course of business), or (3) for the payment of
money relating to a Capitalized Lease Obligation, or (4) for Interest Rate
Protection Obligations; (b) any liability of others described in the preceding
clause (a) that the Person has guaranteed or that is otherwise its legal
liability; and (c) any amendment, supplement, modification, deferral, renewal,
extension or refunding of any liability of the types referred to in clauses (a)
and (b) above.
"Indenture" means this instrument as originally executed and as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, including, for
all purposes of this instrument and any such supplemental indenture, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this instrument and any such supplemental indenture, respectively. The term
"Indenture" shall also include the terms of particular series of Securities
established as contemplated by Section 3.01.
"Intangible Assets" means at any date the value (net of any applicable
reserves), as shown on or reflected in the most recently prepared consolidated
balance sheet of the Company, prepared in accordance with generally accepted
accounting principles of: (i) all trade names, trademarks, licenses, patents,
copyrights and goodwill; (ii) organizational and development costs; (iii)
deferred charges (other than prepaid items such as insurance, taxes, interest,
commissions, rents and similar items and tangible assets being amortized); and
(iv) unamortized debt discount and expense, less unamortized premium.
"Interest", when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date", when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Interest Rate Protection Obligations" of any Person means the obligations
of such Person pursuant to any arrangement with any other Person whereby,
directly or indirectly, such Person is entitled to receive from time to time
periodic payments calculated by applying a fixed rate of interest on a stated
notional amount in exchange for periodic payments made by such Person calculated
by applying a floating rate of interest on the same notional amount.
"Investment Company Act" means the Investment Company Act of 1940 and any
statute successor thereto, in each case as amended from time to time.
"Lien" means any mortgage, lien, pledge, security interest, charge or
encumbrance.
"Maturity", when used with respect to any Security, means the date on which
the Maturity Consideration of such Security or an installment of such Maturity
Consideration becomes due and payable or deliverable as therein or herein
provided, whether at the Stated Maturity or by declaration of acceleration, call
for redemption or otherwise.
"Maturity Consideration" means the securities (whether or not issued by, or
the obligation of, the Company), the amount of cash (including payment of
principal and premium, if any), or a combination of cash, securities and/or
property, in either case payable or deliverable upon payment and discharge of
the Securities of a series when due or upon redemption as established in or
pursuant to, from time to time, a Board Resolution, and set forth in a
Certificate or established in one or more supplemental indentures.
"Notice of Default" means a written notice of the kind specified in Section
5.01(4) or 5.01(5).
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"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or counsel for the Company, or other counsel reasonably acceptable
to the Trustee.
"Original Issue Discount Security" means any Security which provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 5.02.
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"Outstanding", when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(1) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(2) Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by
the Company (if the Company shall act as its own Paying Agent) for the
Holders of such Securities; provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been made;
(3) Securities as to which Defeasance has been effected pursuant to
Section 13.02; and
(4) Securities which have been paid pursuant to Section 3.06 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
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principal amount of the Outstanding Securities have given, made or taken any
request, demand, authorization, direction, notice, consent, waiver or other
action hereunder as of any date, (A) the principal amount of an Original Issue
Discount Security which shall be deemed to be Outstanding shall be the amount of
the principal thereof which would be due and payable as of such date upon
acceleration of the Maturity thereof to such date pursuant to Section 5.02, (B)
if, as of such date, the principal amount payable at the Stated Maturity of a
Security is not determinable, the principal amount of such Security which shall
be deemed to be Outstanding shall be the amount as specified or determined as
contemplated by Section 3.01, (C) the principal amount of a Security denominated
in one or more foreign currencies or currency units which shall be deemed to be
Outstanding shall be the U.S. dollar equivalent, determined as of such date in
the manner provided as contemplated by Section 3.01, of the principal amount of
such Security (or, in the case of a Security described in Clause (A) or (B)
above, of the amount determined as provided in such Clause), and (D) Securities
owned by the Company or any Affiliate of the Company shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent, waiver or other action, only Securities which a
Responsible Officer of the Trustee actually knows to be so owned shall be so
disregarded. Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any Affiliate of the Company or of such other
obligor.
"Paying Agent" means any Person authorized by the Company to pay or deliver
the Maturity Consideration or interest on any Securities on behalf of the
Company.
"Person" means any individual, corporation, partnership, joint venture,
trust, unincorporated organization or government or any agency or political
subdivision thereof or any other entity.
"Place of Payment", when used with respect to any Security, means the place
or places where the Maturity Consideration and interest on that Security are
payable or deliverable as specified pursuant to this Indenture.
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"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.06 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Principal Property" means any land, land improvements, buildings and
associated factory, distribution, laboratory and office equipment (excluding any
products marketed by the Company or any Subsidiary) constituting a distribution
facility, operating facility, manufacturing facility, development facility,
warehouse facility, service facility or office facility (including any portion
thereof), which facility (a) is owned by or leased to the Company or any
Restricted Subsidiary, (b) is located within the United States and (c) has an
acquisition cost plus capitalized improvements in excess of 0.50% of
Consolidated Net Tangible Assets as of the date of such determination, other
than (i) any such facility, or portion thereof, which has been financed by
obligations issued by or on behalf of a State, a Territory or a possession of
the United States, or any political subdivision of any of the foregoing, or the
District of Columbia, the interest on which is excludable from gross income of
the holders thereof (other than a "substantial user" of such facility or a
"related Person" as those terms are used in Section 103 of the Internal Revenue
Code of 1986, as amended (the "Code")) pursuant to the provisions of Section 103
of the Code (or any similar provision hereafter enacted) as in effect at the
time of issuance of such obligations, (ii) any such facility which the Board of
Directors may by Board Resolution declare is not of material importance to the
Company and the Restricted Subsidiaries taken as a whole and (iii) any such
facility, or portion thereof, owned or leased jointly or in common with one or
more Persons other than the Company and any Subsidiary and in which the interest
of the Company and all Subsidiaries does not exceed 50%.
"Redemption Date", when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Interest Payment Date
on the Securities of any series means the date specified for that purpose
pursuant to this Indenture.
"Responsible Officer", when used with respect to the Trustee, means any
Vice President, Assistant Vice President, Senior Trust Officer, trust officer or
any other officer associated with the corporate trust department of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of such
person's knowledge of and familiarity with the particular subject.
"Restricted Securities" means any shares of the capital stock or
Indebtedness of any Restricted Subsidiary.
"Restricted Subsidiary" means (a) any Subsidiary (i) which has
substantially all its property within the United States of America, (ii) which
owns or is a lessee of any Principal Property, and (iii) in which the investment
of the Company and all other Subsidiaries exceeds 0.50% of Consolidated Net
Tangible Assets as of the date of such determination; provided, however, that
the term "Restricted Subsidiary" shall not include (A) any Subsidiary (x)
primarily engaged in the business of purchasing, holding, collecting, servicing
or otherwise dealing in and with installment sales contracts, leases, trust
receipts, mortgages, commercial paper or other financing instruments, and any
collateral or agreements relating thereto, including in the business,
individually or through partnerships, of financing (whether through long- or
short-term borrowings, pledges, discounts or otherwise) the sales, leasing or
other operations of the
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Company and the Subsidiaries or any of them, or (y) engaged in the business of
financing the assets and operations of third parties, and (z) in any case, not,
except as incidental to such financing business, engaged in owning, leasing or
operating any property which but for this proviso would qualify as Principal
Property or (B) any Subsidiary acquired or organized after ______________, 1999,
for the purpose of acquiring the stock or business or assets of any Person other
than the Company or any Restricted Subsidiary, whether by merger, consolidation,
acquisition of stock or assets or similar transaction analogous in purpose or
effect, so long as such Subsidiary does not acquire by merger, consolidation,
acquisition of stock or assets or similar transaction analogous in purpose or
effect all or any substantial part of the business or assets of the Company or
any Restricted Subsidiary; and (b) any other Subsidiary which is hereafter
designated by the Board of Directors as a Restricted Subsidiary.
"Sale and Leaseback Transaction" means any arrangement with any Person
providing for the leasing by the Company or any Restricted Subsidiary of any
Principal Property (whether such Principal Property is now owned or hereafter
acquired) that has been or is to be sold or transferred by the Company or such
Restricted Subsidiary to such Person, other than (a) temporary leases for a
term, including renewals at the option of the lessee, of not more than three
years; (b) leases between the Company and a Restricted Subsidiary or between
Restricted Subsidiaries; and (c) leases of Principal Property executed by the
time of, or within 180 days after the latest of, the acquisition, the completion
of construction or improvement (including any improvements on property which
will result in such property becoming Principal Property), or the commencement
of commercial operation of such Principal Property.
"Secured Indebtedness" means (a) Indebtedness of the Company or a
Restricted Subsidiary which is secured by any Lien upon any Principal Property
or Restricted Securities and (b) Indebtedness of the Company or a Restricted
Subsidiary in respect of any conditional sale or other title retention agreement
covering Principal Property or Restricted Securities; but "Secured Indebtedness"
shall not include any of the following:
(i) Indebtedness of the Company and the Restricted Subsidiaries
outstanding on ________________, 1999, secured by then existing Liens upon,
or incurred in connection with conditional sales agreements or other title
retention agreements with respect to, Principal Property or Restricted
Securities;
(ii) Indebtedness which is secured by (A) purchase money Liens upon
Principal Property acquired after _________, 1999, or (B) Liens placed on
Principal Property after _________, 1999, during construction or
improvement thereof (including any improvements on property which will
result in such property becoming Principal Property) or placed thereon
within 180 days after the later of acquisition, completion of construction
or improvement or the commencement of commercial operation of such
Principal Property or improvement, or placed on Restricted Securities
acquired after _________, 1999, or (C) conditional sale agreements or other
title retention agreements with respect to any Principal Property or
Restricted Securities acquired after _________, 1999, if (in each case
referred to in this subparagraph (ii)) (x) such Lien or agreement secures
all or any part of the Indebtedness incurred for the purpose of financing
all or any part of the purchase price or cost of construction of such
Principal Property or improvement or Restricted Securities and (y) such
Lien or agreement does not extend to any Principal Property or Restricted
Securities other than the Principal Property so acquired or the Principal
Property, or portion thereof, on which the property so constructed or such
improvement is located; provided, however, that the amount by which the
-------- -------
aggregate principal amount of Indebtedness secured by any such Lien or
agreement exceeds the cost to the Company or such Restricted Subsidiary of
the related acquisition, construction or improvement shall be considered to
be "Secured Indebtedness";
13
(iii) Indebtedness which is secured by Liens on Principal Property or
Restricted Securities, which Liens exist at the time of acquisition (by any
manner whatsoever) of such Principal Property or Restricted Securities by
the Company or a Restricted Subsidiary;
(iv) Indebtedness of Restricted Subsidiaries owing to the Company or
any other Restricted Subsidiary and Indebtedness of the Company owing to
any Restricted Subsidiary;
(v) In the case of any corporation which becomes (by any manner
whatsoever) a Restricted Subsidiary after _________, 1999, Indebtedness
which is secured by Liens upon, or conditional sale agreements or other
title retention agreements with respect to, its property which constitutes
Principal Property or Restricted Securities, which Liens exist at the time
such corporation becomes a Restricted Subsidiary;
(vi) Guarantees by the Company of Secured Indebtedness and
Attributable Debt of any Restricted Subsidiaries and guarantees by a
Restricted Subsidiary of Secured Indebtedness and Attributable Debt of the
Company and any other Restricted Subsidiaries;
(vii) Indebtedness arising from any Sale and Leaseback Transaction;
(viii) Indebtedness secured by Liens on property of the Company or a
Restricted Subsidiary in favor of the United States of America, any State,
Territory or possession thereof, or the District of Columbia, or any
department, agency or instrumentality or political subdivision of the
United States of America or any State, Territory or possession thereof, or
the District of Columbia, or in favor of any other country or any political
subdivision thereof, if such Indebtedness was incurred for the purpose of
financing all or any part of the purchase price or the cost of construction
of the property subject to such Lien; provided, however, that the amount by
-------- -------
which the aggregate principal amount of Indebtedness secured by any such
Lien exceeds the cost to the Company or such Restricted Subsidiary of the
related acquisition or construction shall be considered to be "Secured
Indebtedness";
(ix) Indebtedness secured by Liens on aircraft, airframes or aircraft
engines, aeronautic equipment or computers and electronic data processing
equipment; and
(x) The replacement, extension or renewal (or successive replacements,
extensions or renewals) of any Indebtedness (in whole or in part) excluded
from the definition of "Secured Indebtedness" by subparagraphs (i) through
(ix) above; provided, however, that no Lien securing, or conditional sale
-------- -------
or title retention agreement with respect to, such Indebtedness shall
extend to or cover any Principal Property or any Restricted Securities,
other than such property which secured the Indebtedness so replaced,
extended or renewed (plus improvements on or to any such Principal
Property); provided further, however, that to the extent that such
---------------- -------
replacement, extension or renewal increases the principal amount of
Indebtedness secured by such Lien or is in a principal amount in excess of
the principal amount of Indebtedness excluded from the definition of
"Secured Indebtedness" by subparagraphs (i) through (ix) above, the amount
of such increase or excess shall be considered to be "Secured
Indebtedness".
In no event shall the foregoing provisions be interpreted to mean or their
operation to cause the same Indebtedness to be included more than once in the
calculation of "Secured Indebtedness" as that term is used in this Indenture.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture.
14
"Securities Act" means the Securities Act of 1933 and any applicable
statute successor thereto, in each case as amended from time to time.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 3.05.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.07.
"Stated Maturity", when used with respect to any Security or any
installment of the Maturity Consideration or interest thereon, means the date
specified in such Security as the fixed date on which the Maturity Consideration
of such Security or such installment of Maturity Consideration or interest is
due and payable or deliverable.
"Subsidiary" means any corporation of which, at the time of determination,
the Company and/or one or more Subsidiaries owns or controls directly or
indirectly more than 50% of the shares of voting stock. "Wholly Owned", when
used with reference to a Subsidiary, means a Subsidiary of which all of the
outstanding capital stock is owned by the Company or by one or more wholly owned
Subsidiaries. "Voting Stock", when used with reference to a Subsidiary, means
stock 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 of this
definition, 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.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended,
and any applicable statute successor thereto, in each case as amended from time
to time.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder, and if at any time there is
more than one such Person, "Trustee" as used with respect to the Securities of
any series shall mean the Trustee with respect to Securities of that series.
"U.S. Government Obligation" has the meaning specified in Section 13.04.
"Vice President", when used with respect to the Company, means any vice
president, whether or not designated by a number or a word or words added before
or after the title "vice president".
SECTION 1.02. Compliance Certificates and Opinions. Upon any application
------------------------------------
or request by the Company to the Trustee to take any action under any provision
of this Indenture, the Company shall furnish to the Trustee such certificates
and opinions as may be required under the Trust Indenture Act. Each such
certificate or opinion shall be given in the form of a Certificate, if to be
given by an authorized signatory of the Company, or an Opinion of Counsel, if to
be given by counsel, and shall comply with the requirements of the Trust
Indenture Act and any other requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (except for certificates provided for in
Section 10.04) shall include:
(1) a statement that the person making such certificate or opinion has
read such covenant or condition;
15
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he or
she has made such examination or investigation as is necessary to enable
him or her to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 1.03. 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, provided,
--------
that such officer has no reason to believe and does not believe that such
Opinion of Counsel with respect to such matters is 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 the information with respect to such factual matters is in
the possession of the Company, provided that such counsel, after reasonable
--------
inquiry, has no reason to believe and does not believe that the certificate or
opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.04. Acts of Holders; Record Dates. Any request, demand,
-----------------------------
authorization, direction, notice, consent, waiver or other action provided or
permitted by this Indenture to be given, made or taken by Holders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by agent duly appointed in writing;
and, except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee and,
where it is hereby expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and (subject to Section 6.01) conclusive in favor of the Trustee and the
Company, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such instrument or
writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued
16
upon the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the
Trustee or the Company in reliance thereon, whether or not notation of such
action is made upon such Security.
The Company may set any day as a record date for the purpose of determining
the Holders of Outstanding Securities of any series entitled to give, make or
take any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Indenture to be given, made or taken
by Holders of Securities of such series; provided that the Company may not set a
--------
record date for, and the provisions of this paragraph shall not apply with
respect to, the giving or making of any notice, declaration, request or
direction referred to in the next paragraph. If any record date is set pursuant
to this paragraph, the Holders of Outstanding Securities of the relevant series
on such record date, and no other Holders, shall be entitled to take the
relevant action, whether or not such Holders remain Holders after such record
date; provided that no such action shall be effective hereunder unless taken on
or prior to the applicable Expiration Date (as hereinafter defined) by Holders
of the requisite principal amount of Outstanding Securities of such series on
such record date. Nothing in this paragraph shall be construed to prevent the
Company from setting a new record date for any action for which a record date
has previously been set pursuant to this paragraph (whereupon the record date
previously set shall automatically and with no action by any Person be canceled
and of no effect), and nothing in this paragraph shall be construed to render
ineffective any action taken by Holders of the requisite principal amount of
Outstanding Securities of the relevant series on the date such action is taken.
Promptly after any record date is set pursuant to this paragraph, the Company,
at its own expense, shall cause notice of such record date, the proposed action
by Holders and the applicable Expiration Date to be given to the Trustee in
writing and to each Holder of Securities of the relevant series in the manner
set forth in Section 1.06.
The Trustee may set any day as a record date for the purpose of determining
the Holders of Outstanding Securities of any series entitled to join in the
giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Section 5.02, (iii) any request to institute
proceedings referred to in Section 5.07(2) or (iv) any direction referred to in
Section 5.12, in each case with respect to Securities of such series. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of such series on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or direction, whether or
not such Holders remain Holders after such record date; provided that no such
--------
action shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date. Nothing in this paragraph shall
be construed to prevent the Trustee from setting a new record date for any
action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and with
no action by any Person be canceled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite Securities of the relevant series on or after any record date
is set pursuant to this paragraph, the Trustee, at the Company's expense, shall
cause notice of such record date, the proposed action by Holders and the
applicable expiration Date to be given to the Company in writing and to each
Holder of Securities of the relevant series in the manner set forth in Section
1.06.
With respect to any record date set pursuant to this Section, the party
hereto which sets such record date may designate any day as the "Expiration
Date" and from time to time may change the Expiration Date to any earlier or
later day; provided that no such change shall be effective unless notice of the
--------
proposed new Expiration Date is given to the other party hereto in writing, and
to each Holder of Securities of the relevant series in the manner set forth in
Section 1.06, on or prior to the existing Expiration Date. If an Expiration Date
is not designated with respect to any record date set pursuant to this Section,
the party hereto which set such record date shall be deemed to have initially
designated the 180th day after such record date as the Expiration Date with
respect thereto, subject to its right to change the
17
Expiration Date as provided in this paragraph. Notwithstanding the foregoing, no
Expiration Date shall be later than the 180th day after the applicable record
date.
Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Security may do so with regard to
all or any part of the principal amount of such Security or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.
SECTION 1.05. Notices, Etc., to Trustee and Company. Any request, demand,
-------------------------------------
authorization, direction, notice, consent, waiver or other Act of Holders or
other document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with:
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed, in
writing, to or with the Trustee at its Corporate Trust Office, Attention:
Global Agency & Trust Services, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal executive office specified
in the first paragraph of this instrument or at any other address
previously furnished in writing to the Trustee by the Company.
SECTION 1.06. Notice to Holders; Waiver. Where this Indenture provides
-------------------------
for notice to Holders of any event, such notice shall be sufficiently given
(unless otherwise herein expressly provided) if in writing and mailed, first-
class postage prepaid, to each Holder affected by such event, at his address as
it appears in the Security Register, not later than the latest date (if any),
and not earlier than the earliest date (if any), prescribed for the giving of
such notice. In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders. Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
SECTION 1.07. Conflict with Trust Indenture Act. If any provision hereof
---------------------------------
limits, qualifies or conflicts with a provision of the Trust Indenture Act which
is required under such Act to be a part of and govern this Indenture, the
provision of the Trust Indenture Act shall control. If any provision of this
Indenture modifies or excludes any provision of the Trust Indenture Act which
may be so modified or excluded, the provision of this Indenture shall control.
SECTION 1.08. 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 1.09. Successors and Assigns. All covenants and agreements in this
----------------------
Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.
18
SECTION 1.10. Separability Clause. In case any provision in this Indenture
-------------------
or in the Securities shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 1.11. Benefits of Indenture. Nothing in this Indenture or in the
---------------------
Securities, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder and the Holders, any benefit or any legal
or equitable right, remedy or claim under this Indenture.
SECTION 1.12. Governing Law. This Indenture and the Securities shall be
-------------
governed by and construed in accordance with the law of the State of New York
without giving effect to principles of conflicts of laws of such state.
SECTION 1.13. Legal Holidays. In any case where any Interest Payment Date,
--------------
Redemption Date, Stated Maturity or Maturity of any Security shall not be a
Business Day at any Place of Payment, then (notwithstanding any other provision
of this Indenture or of the Securities (other than a provision of any Security
which specifically states that such provision shall apply in lieu of this
Section)) payment of interest or principal (and premium, if any) need not be
made at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same force and effect
as if made on the Interest Payment Date, Redemption Date or at the Stated
Maturity or Maturity, and, if such payment is made, no interest shall accrue on
such payment for the period from and after any such Interest Payment Date,
Redemption Date, Stated Maturity or Maturity, as the case may be.
SECTION 1.14. Immunity of Incorporators, Stockholders, Officers and
-----------------------------------------------------
Directors. No recourse shall be had for the payment or delivery of the
---------
principal, Maturity Consideration, premium, if any, or the interest, on any
Securities, or for any claim based thereon, or upon any obligation, covenant or
agreement of this Indenture, against any incorporator, stockholder, officer or
director, as such, past, present or future, of the Company or of any successor
corporation, either directly or indirectly through the Company or any successor
corporation, whether by virtue of any constitution, statute, or rule of law, or
by the enforcement of any assessment of penalty or otherwise; it being expressly
agreed and understood that this Indenture and all the Securities are solely
corporate obligations, and that no personal liability whatever shall attach to,
or is incurred by, any incorporator, stockholder, officer or director, past,
present or future, of the corporation, because of the incurring of the
indebtedness hereby authorized or under or by reason of any of the obligations,
covenants or agreements contained in this Indenture or in any of the Securities
or implied therefrom, or for any claim based thereon or in respect thereof, all
such liability and any and all such claims being hereby expressly waived and
released as a condition of, and as part of the consideration for, the execution
of this Indenture and the issuance of the Securities.
ARTICLE II
SECURITY FORMS
--------------
SECTION 2.01. Forms Generally. The Securities of each series shall be in
---------------
substantially the form set forth in this Article, or in such other form or forms
as shall be established by or pursuant to a Board Resolution or one or more
indentures supplemental hereto, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or Depositary
therefor or as may, consistently herewith, be determined by the officers
executing such Securities, as evidenced by their execution thereof. If the form
or forms of Securities of any series is established by action taken pursuant to
a Board Resolution or indenture supplemental hereto, a copy of an appropriate
record of such action shall be certified by the Secretary or an Assistant
Secretary of the Company and delivered to the Trustee at or prior to the
delivery of the Company Order contemplated by Section 3.03 for the
authentication and delivery of such Securities.
19
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
SECTION 2.02. Form of Face of Security. [Insert any legend required by the
------------------------
Internal Revenue Code and the regulations thereunder.]
UNITED PARCEL SERVICE OF AMERICA, INC.
No. $
United Parcel Service of America, Inc., a corporation duly organized and
existing under the laws of Delaware (herein called the "Company", which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to _____________________________, or
registered assigns, the principal sum of _____________________________ Dollars
on ____________________________ [if the Security is to bear interest prior to
Maturity, insert ___ and to pay interest thereon from ___________________ or
from the most recent date to which interest has been paid or duly provided for,
semiannually on _______________ and ___________________ in each year (each, an
"Interest Payment Date"), commencing __________________________, at the rate of
___% per annum, until the principal hereof is paid or made available for payment
[if applicable, insert ___; provided that any principal and premium, and any
such installment of interest which is overdue shall bear interest at the rate of
__% per annum (to the extent that the payment of such interest shall be legally
enforceable), from the dates such amounts are due until they are paid or made
available for payment, and such interest shall be payable on demand]. The
interest so payable and punctually paid or duly provided for on any Interest
Payment Date will, as provided in such Indenture, be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, which shall be
the _________________ or ________________ (whether or not a Business Day), as
the case may be, next preceding such Interest Payment Date. Any such interest
not so punctually paid or duly provided for shall forthwith cease to be payable
to the Holder on such Regular Record Date and may either be paid to the Person
in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be set by the Trustee, notice whereof shall be given
to Holders of Securities of this series not less than 10 days prior to such
Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert ___ The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal and any overdue premium shall
bear interest at the rate of __% per annum (to the extent that the payment of
such interest shall be legally enforceable), from the dates such amounts are due
until they are paid or made available for payment. Interest on any overdue
principal or premium shall be payable on demand. Any such interest on overdue
principal or premium which is not paid on demand shall bear interest at the rate
of __% per annum (to the extent that the payment of such interest on interest
shall be legally enforceable), from the date of such demand until the amount so
demanded is paid or made available for payment. Interest on any overdue interest
shall be payable on demand.]
Delivery of the Maturity Consideration and [if applicable, insert ___
payment of interest on] this Security will be made at the office or agency of
the Company maintained for that purpose in _______________, and payment of
interest on this Security (and, if the Company elects to deliver Maturity
Consideration in the form of cash at Maturity, the amount of cash payable at
Maturity) will be made in such
20
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts [if applicable insert ___;
provided, however, that at the option of the Company, payment of interest may be
-------- -------
made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register].
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
UNITED PARCEL SERVICE OF AMERICA, INC.
By
------------------------------------
SECTION 2.03. Form of Reverse of Security. This Security is one of a
---------------------------
duly authorized issue of securities of the Company (herein called the
"Securities"), issued and to be issued in one or more series under an Indenture,
dated as of ______________ (herein called the "Indenture", which term shall have
the meaning assigned to it in such instrument), between the Company and
____________, as Trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), and reference is hereby made to the
Indenture for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Company, the Trustee and the Holders of
the Securities, and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof [if applicable, insert ___ limited in aggregate principal amount
to $ _____________].
[If applicable, insert ___ The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, [if applicable, insert
___ (1) on _____________ in each year commencing with the year ________________
and ending with the year ______________ through operation of the sinking fund
for this series at a Redemption Price equal to 100% of the principal amount, and
(2)] at any time [if applicable, insert ___ on or after _________________, ] as
a whole or in part, at the election of the Company, at the following Redemption
Prices (expressed as percentages of the principal amount): If redeemed [if
applicable, insert ___ on or before ____________ , _____, _____% and if
redeemed] during the 12-month period beginning _____________ of the years
indicated,
Year Redemption Price Year Redemption Price
---- ---------------- ---- ----------------
and thereafter at a Redemption Price equal to __% of the principal amount,
together in the case of any such redemption [if applicable, insert ___ (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor
21
Securities, of record at the close of business on the relevant Record Dates
referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert ___ The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, (1) on ___________ in
each year commencing with the year __________ ending with the year ____________
through operation of the sinking fund for this series at the Redemption Prices
for redemption through operation of the sinking fund (expressed as percentages
of the principal amount) set forth in the table below, and (2) at any time [if
applicable, insert ___ on or after ________], as a whole or in part, at the
election of the Company, at the Redemption Prices for redemption otherwise than
through operation of the sinking fund (expressed as percentages of the principal
amount) set forth in the table below: If redeemed during the 12-month period
beginning of the years indicated,
Redemption Price Redemption Price For
For Redemption Otherwise
Redemption Through Than Through
Operation of the Operation of the
Year Sinking Fund Sinking Fund
---- ------------------ ---------------------
and thereafter at a Redemption Price equal to ___% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert ___ Notwithstanding the foregoing, the Company may
not, prior to _______________ redeem any Securities of this series as
contemplated by [if applicable, insert ___ Clause (2) of] the preceding
paragraph as a part of, or in anticipation of, any refunding operation by the
application, directly or indirectly, of moneys borrowed having an interest cost
to the Company (calculated in accordance with generally accepted financial
practice) of less than % per annum.]
[If applicable, insert ___ The sinking fund for this series provides for
the redemption (on ____________ each year commencing with the year
________________ and ending with the year __________ of [if applicable insert
___ not less than $ ____________ ("mandatory sinking fund") and not more than
$____________ aggregate principal amount] of Securities of this series.
Securities of this series acquired or redeemed by the Company otherwise than
through [if applicable, insert ___ mandatory] sinking fund payments may be
credited against subsequent [if applicable, insert ___ mandatory] sinking fund
payments otherwise required to be made [if applicable, insert ___ , in the
inverse order in which they become due).]
[If the Security is subject to redemption of any kind, insert ___ In the
event of redemption of this Security in part only, a new Security or Securities
of this series and of like tenor for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.]
The Indenture contains provisions for defeasance at any time of the entire
indebtedness of this Security or certain restrictive covenants and Events of
Default with respect to this Security, in each case upon compliance with certain
conditions set forth in the Indenture.
22
[If the Security is not an Original Issue Discount Security, insert ___ If
an Event of Default with respect to Securities of this series shall occur and be
continuing, the principal of the Securities of this series may be declared due
and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert ___ If an
Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to insert ___ formula for determining the
amount. Upon payment of (i) the amount of principal so declared due and payable
and (ii) interest on any overdue principal, premium and interest (in each case
to the extent that the payment of such interest shall be legally enforceable),
all of the Company's obligations in respect to the payment or delivery of the
Maturity Consideration of and premium and interest, if any, on the Securities of
this series shall terminate.]
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series issued
under the Indenture at any time by the Company and the Trustee with the consent
of the Holders of a majority in aggregate principal amount of the Securities at
the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in aggregate
principal amount of the Securities of each series at the time Outstanding, on
behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Security shall be conclusive and binding upon such Holder and
upon all future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder
of this Security shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made a
written request to the Trustee to institute proceedings in respect of such Event
of Default as Trustee and offered the Trustee reasonable indemnity, and the
Trustee shall not have received from the Holders of a majority in principal
amount of Securities of this series at the time Outstanding a direction
inconsistent with such request, and shall have failed to institute any such
proceeding for 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall not apply to any suit instituted by the Holder of
this Security for the enforcement of any payment or delivery of the Maturity
Consideration hereof or any premium or interest hereon on or after the
respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall affect or impair the obligation of the Company, which is
absolute and unconditional, to pay the Maturity Consideration and interest on
this Security at the times, place and rate, and in the manner, herein
prescribed.
As provided in the Indenture and subject to certain limitations set forth
therein and in this Security, the transfer of this Security is registrable in
the Security Register upon surrender of this Security for registration of
transfer at the office or agency of the Company in any place where the Maturity
Consideration and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
23
The securities of this series are issuable only in registered form without
coupons in denominations of $[ ] and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations set forth therein,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor in different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture contains provisions whereby (i) the Company may be discharged
from its obligations with respect to the Securities (subject to certain
exceptions) or (ii) the Company may be released from its obligation under
specified covenants and agreements in the Indenture, in each case if the Company
irrevocably deposits with the Trustee money or U.S. Government Obligations
sufficient to pay and discharge the entire indebtedness on all Securities of
this series, and satisfies certain other conditions, all as more fully provided
in the Indenture.
This Note shall be governed by and construed in accordance with the laws of
the State of New York without giving effect to principles of conflicts of laws
of such state.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
SECTION 2.04. Form of Legend for Global Securities. Unless otherwise
------------------------------------
specified as contemplated by Section 3.01 for the Securities evidenced thereby,
every Global Security authenticated and delivered hereunder shall bear a legend
in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY (AS
DEFINED IN THE INDENTURE) OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE
EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF
THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY
PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE
CIRCUMSTANCES DESCRIBED IN THE INDENTURE. EVERY SECURITY AUTHENTICATED AND
DELIVERED UPON REGISTRATION OF, TRANSFER OF, OR IN EXCHANGE FOR, OR IN LIEU
OF, THIS SECURITY WILL BE A GLOBAL SECURITY SUBJECT TO THE FOREGOING,
EXCEPT IN SUCH LIMITED CIRCUMSTANCES.
SECTION 2.05. Form of Trustee's Certificate of Authentication. The
-----------------------------------------------
Trustee's certificate of authentication shall be in substantially the following
form:
This is one of the Securities of the series designated herein referred to
in the Indenture.
CITIBANK, N.A.,
As Trustee
24
By
--------------------------------------
Authorized Signatory
ARTICLE III
25
THE SECURITIES
--------------
SECTION 3.01. Amount Unlimited; Issuable in Series. The aggregate
------------------------------------
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution or one or more indentures
supplemental hereto,
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from Securities of any other series);
(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 3.04, 3.05, 3.06, 9.06 or 11.07 and except for
any Securities which, pursuant to Section 3.03, are deemed never to have
been authenticated and delivered hereunder);
(3) the Person to whom any interest on a security of the series shall
be payable, if other than the Person in whose name that Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest;
(4) the date or dates on which the principal of or any Maturity
Consideration on any Securities of the series is payable;
(5) the rate or rates at which any Securities of the series shall bear
interest, if any, or any method by which such rate or rates shall be
determined, the date or dates from which any such interest shall accrue,
the Interest Payment Dates on which any such interest shall be payable and
the Regular Record Date for any such interest payable on any Interest
Payment Date;
(6) the place or places where the principal of, premium, if any, or
Maturity Consideration and interest on any Securities of the series shall
be payable;
(7) the period or periods within which, the price or prices at which
and the terms and conditions upon which any Securities of the series may be
redeemed, in whole or in part, at the option of the Company and, if other
than by a Board Resolution, the manner in which any election by the Company
to redeem the Securities shall be evidenced;
(8) the obligation, if any, of the Company to redeem or purchase any
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of the Holder thereof, and the period or
periods within which, the price or prices at which and the terms and
conditions upon which any Securities of the series shall be redeemed or
purchased, in whole or in part, pursuant to such obligation and any
provisions for the remarketing of any Securities;
(9) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which any Securities of the series shall be
issuable;
(10) if the amount of principal of or any premium or interest on any
Securities of the series may be determined with reference to an index,
formula or other method, the manner in which such amounts shall be
determined;
26
(11) if other than the currency of the United States of America, the
currency, currencies or composite currencies in which the principal of or
any premium or interest on any Securities of the series shall be payable
and the manner of determining the equivalent thereof in the currency of the
United States of America for any purpose, including for purposes of the
definition of "Outstanding" in Section 1.01;
(12) if the principal of or any premium or interest on any Securities
of the series is to be payable, at the election of the Company or the
Holder thereof, in one or more currencies or composite currencies other
than that or those in which such Securities are stated to be payable, the
currency, currencies or composite currencies in which the principal of or
any premium or interest on such Securities as to which such election is
made shall be payable, the periods within which and the terms and
conditions upon which such election is to be made and the amount so payable
(or the manner in which such amount shall be determined);
(13) if other than the entire principal amount thereof, the portion of
the principal amount of any Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 5.02;
(14) if the principal amount payable at the Stated Maturity of any
Securities of the series will not be determinable as of any one or more
dates prior to the Stated Maturity, the amount which shall be deemed to be
the principal amount of such Securities as of any such date for any purpose
thereunder or hereunder, including the principal amount thereof which shall
be due and payable upon any Maturity other than the Stated Maturity or
which shall be deemed to be Outstanding as of any date prior to the Stated
Maturity (or, in any such case, the manner in which such amount deemed to
be the principal amount shall be determined);
(15) if applicable, that the Securities of the series, in whole or any
specified part shall be defeasible pursuant to Section 13.02 and that
certain covenants of the Company shall be defeasible pursuant to Section
13.03 and, if other than by a Board Resolution, the manner in which any
election by the Company to defease such Securities or covenants shall be
evidenced;
(16) if applicable, that any Securities of the series shall be
issuable in whole or in part in the form of one or more Global Securities
and, in such case, the respective Depositories for such Global Securities,
the form of any legend or legends which shall be borne by any such Global
Security in addition to or in lieu of that set forth in Section 2.04 and
any circumstances in addition to or in lieu of those set forth in Clause
(2) of the last paragraph of Section 3.05 in which any such Global Security
may be exchanged in whole or in part for Securities registered, and any
transfer of such Global Security in whole or in part may be registered, in
the name or names of Persons other than the Depositary for such Global
Security or a nominee thereof;
(17) whether, and the terms and conditions relating to when, the
Company may satisfy certain of its obligations with respect to such
Securities with regard to payment upon Maturity, or any redemption or
required repurchase or in connection with any exchange provisions by
delivering to the Holders thereof Maturity Consideration.
(18) any addition to or change in the Events of Default which applies
to any Securities of the series and any change in the right of the Trustee
or the requisite Holders of such Securities to declare the principal amount
thereof due and payable pursuant to Section 5.02;
(19) any addition to or change in the covenants set forth in Article X
which applies to Securities of the series;
27
(20) the terms and conditions pursuant to which the Securities may be
converted into or exchanged for other debt securities of the Company;
(21) terms with respect to book-entry procedures; and
(22) any other terms of the series, which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
Section 9.01(5);
All Securities of any one series shall be substantially identical except as
to currency of payments due thereunder, denomination and the rate of interest
thereon, 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 in or pursuant to the Board Resolution and set forth in a
Certificate or in any indenture supplemental hereto. The terms of the
Securities of any series may provide, without limitation, that the Securities
shall be authenticated and delivered by the Trustee upon original issuance from
time to time upon written order of persons designated in the Certificate or
supplemental indenture and that such persons are authorized to determine,
consistent with such Certificate or any applicable supplemental indenture, such
terms and conditions of the Securities of such series. All Securities of any
one series need not be issued at the same time and, unless otherwise so
provided, 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 series are established by action taken pursuant
to a Board Resolution or indenture supplemental hereto, a copy of an appropriate
record of such action shall be certified by the Secretary or an Assistant
Secretary of the Company and delivered to the Trustee at or prior to the
delivery of the Company Order contemplated by Section 3.03 for the
authentication and delivery of such Securities.
SECTION 3.02. Denominations. The Securities of each series shall be
-------------
issuable only in registered form without coupons and only in such denominations
as shall be specified as contemplated by Section 3.01. In the absence of any
such specified denomination with respect to the Securities of any series, the
Securities of such series shall be issuable in denominations of $1,000 and any
integral multiple thereof.
SECTION 3.03. Execution, Authentication, Delivery and Dating. The
----------------------------------------------
Securities shall be executed on behalf of the Company by its Chairman of the
Board, its Vice Chairman of the Board, its President or one of its Vice
Presidents, under its corporate seal reproduced thereon attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities and the corporate seal attached thereto may be manual
or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at the time of execution the proper officers of the Company shall bind the
Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities. In
authenticating such Securities, and accepting the additional responsibilities
under this Indenture in
28
relation to such Securities, the Trustee shall be entitled to receive, and
(subject to Section 6.01) shall be fully protected in relying upon, an Opinion
of Counsel stating,
(1) that the form of such Securities has been established by a
supplemental indenture or by or pursuant to a resolution of the Board of
Directors in accordance with Sections 2.01 and 2.02 and in conformity with
the provisions of this Indenture;
(2) that the terms of such Securities have been established in
accordance with Section 2.01 and in conformity with the other provisions of
this Indenture;
(3) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
(4) that all laws and requirements in respect of the execution and
delivery by the Company of such Securities have been complied with.
Notwithstanding the provisions of Section 3.01 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the record of action, the Company
Order and Opinion of Counsel otherwise required thereby at or prior to the
authentication of each Security of such series, if such documents (with
appropriate modifications) are delivered at or prior to the authentication upon
original issuance of the first Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 3.09, for all
purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
The Trustee shall have the right to decline to authenticate and deliver any
Securities under this Section if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken or if the Trustee in good
faith shall determine that such action would expose the Trustee to personal
liability to existing Holders.
SECTION 3.04. Temporary Securities. Pending the preparation of definitive
--------------------
Securities of any series, the Company may execute, and upon Company Order the
Trustee shall authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive Securities
in lieu of which they are issued and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such
Securities may determine, as evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without unreasonable delay.
After the preparation of definitive Securities of such
29
series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series upon surrender of the temporary Securities
of such series at the office or agency of the Company in a Place of Payment for
that series, without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Securities of any series, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor one or more
definitive Securities of the same series, of any authorized denominations and of
like tenor and aggregate principal amount. 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 and tenor.
SECTION 3.05. Registration, Transfer and Exchange. The Company shall
-----------------------------------
cause to be kept at the Corporate Trust Office of the Trustee a register (the
register maintained in such office and in any other office or agency of the
Company in a Place of Payment being herein sometimes collectively referred to as
the "Security Register") in which, subject to such reasonable regulations as it
may prescribe, the Company shall provide for the registration of Securities and
of transfers of Securities. The Trustee is hereby appointed "Security Registrar"
for the purpose of registering Securities and transfers of Securities as herein
provided.
Upon surrender for registration of transfer of any Security of a series at
the office or agency of the Company in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series, of any authorized denominations and of like tenor and aggregate
principal amount.
At the option of the Holder, Securities of any series may be exchanged for
other Securities of the same series, of any authorized denominations and of like
tenor and aggregate principal amount, upon surrender of the Securities to be
exchanged at such office or agency.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder is entitled to receive.
All Securities issued upon any registration of transfer, or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt and entitled to the same benefits under this Indenture as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer, or
for exchange, shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied, by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 3.04, 9.06 or 11.07 not involving any transfer.
If the Securities of any series (or of any series and specified tenor) are
to be redeemed in part, the Company shall not be required (A) to issue, register
the transfer of or exchange any Securities of that series (or of that series and
specified tenor as the case may be) during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of any
such Securities selected for redemption under Section 11.03 and ending at the
close of business on the day of such mailing, or (B) to register the transfer of
or exchange any Security so selected for redemption in whole or in part, except
the unredeemed portion of any Security being redeemed in part.
30
The provisions of Clauses (1), (2), (3) and (4) below shall apply only to
Global Securities:
(1) Each Global Security authenticated under this Indenture shall be
registered in the name of the Depositary designated for such Global
Security or a nominee thereof and delivered to such Depositary or a nominee
thereof or custodian therefor, and each such Global Security shall
constitute a single Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, no Global
Security may be exchanged in whole or in part for Securities registered,
and no transfer of a Global Security in whole or in part may be registered,
in the name of any Person other than the Depositary for such Global
Security or a nominee thereof unless (A) such Depositary (i) has notified
the Company that it is unwilling or unable to continue as Depositary for
such Global Security or (ii) has ceased to be a clearing agency registered
under the Exchange Act, (B) there shall have occurred and be continuing an
Event of Default with respect to such Global Security or (C) there shall
exist such circumstances, if any, in addition to or in lieu of the
foregoing as have been specified for this purpose as contemplated by
Section 3.01.
(3) Subject to Clause (2) above, any exchange of a Global Security for
other Securities may be made in whole or in part, and all Securities issued
in exchange for a Global Security or any portion thereof shall be
registered in such names as the Depositary for such Global Security shall
direct.
(4) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any
portion thereof, whether pursuant to this Section, Section 3.04, 3.06, 9.06
or 11.07 or otherwise, shall be authenticated and delivered in the form of,
and shall be, a Global Security, unless such Security is registered in the
name of a Person other than the Depositary for such Global Security or a
nominee thereof.
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities. If any
------------------------------------------------
mutilated Security is surrendered to the Trustee, the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a new Security
of the same series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new Security
of the same series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all
31
the benefits of this Indenture equally and proportionately with any and all
other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.07. Payment of Interest; Interest Rights Preserved. Except as
----------------------------------------------
otherwise provided as contemplated by Section 3.01 with respect to any series of
Securities, interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Security of such series and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest
which shall be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after the receipt by
the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date and, in the name
and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to
be given to each Holder of Securities of such series in the manner set
forth in Section 1.06, not less than 10 days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so mailed, such Defaulted Interest
shall be paid to the Persons in whose names the Securities of such series
(or their respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant
to this Clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 3.08. Persons Deemed Owners. Prior to due presentment of a
---------------------
Security for registration of transfer, the Company, the Trustee and any agent of
the Company or the Trustee may treat the Person in
32
whose name such Security is registered as the owner of such Security for the
purpose of receiving payment of the Maturity Consideration in respect of, and
(subject to Section 3.07) any interest on such Security and for all other
purposes whatsoever, whether or not such Security is overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
SECTION 3.09. Cancellation. All Securities surrendered for payment,
------------
redemption, registration of transfer or exchange or for credit against any
sinking fund payment shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee and shall be promptly canceled by it. The Company
may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and may deliver to the Trustee (or to any
other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold,
and all Securities so delivered shall be promptly canceled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for any Securities
canceled as provided in this Section except as expressly permitted by this
Indenture. All canceled Securities held by the Trustee shall be disposed of in
accordance with the Trustee's customary practices unless otherwise directed by a
Company Order.
SECTION 3.10. Computation of Interest. Except as otherwise provided in or
-----------------------
pursuant to this Indenture or in any Security, interest on the Securities of
each series shall be computed on the basis of a 360-day year of twelve 30-day
months.
SECTION 3.11. CUSIP Numbers. The Company in issuing the Securities may
-------------
use "CUSIP" numbers (if then in general use), and, if so, the Trustee shall use
"CUSIP" numbers in notices of redemption as a convenience to Holders; provided
--------
that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained
in any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee of any change in the "CUSIP" numbers.
ARTICLE IV
SATISFACTION AND DISCHARGE
--------------------------
SECTION 4.01. Satisfaction and Discharge of Indenture. This Indenture
---------------------------------------
shall cease to be of further effect (except as to any surviving rights of
registration of transfer or exchange of Securities herein expressly provided
for) upon the Trustee's receipt of a Company Request to that effect, and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
(1) either:
(A) all Securities theretofore authenticated and delivered (other
than (i) Securities which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 3.06 and (ii)
Securities for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in
Section 10.03) have been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee
for cancellation
(i) have become due and payable, or
33
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice
of redemption by the Trustee in the name, and at the expense, of
the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the Trustee as
trust funds in trust, money in an amount sufficient to pay and
discharge the entire indebtedness on such Securities not theretofore
delivered to the Trustee for cancellation, including the Maturity
Consideration, and interest thereon, 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 delivered or caused to be paid or
delivered all other amounts or consideration payable or deliverable
hereunder by the Company; and
(3) the Company has delivered to the Trustee a Certificate and an
Opinion of Counsel, which opinion may be given in all circumstances by an
employee of or counsel for the Company, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of
this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.07, the obligations of
the Trustee to any Authenticating Agent under Section 6.14 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of
this Section, the obligations of the Trustee under Section 4.02 and the last
paragraph of Section 10.03 shall survive.
SECTION 4.02. Application of Trust Money. Subject to the provisions of the
--------------------------
last paragraph of Section 10.03, all money and other consideration deposited
with the Trustee pursuant to Section 4.01 shall be held in trust (without
liability for the payment of interest thereon or the investment thereof) and
applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment or delivery of the Maturity Consideration and
interest, 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, for whose payment or delivery such money or other
consideration has been deposited with the Trustee.
ARTICLE V
REMEDIES
--------
SECTION 5.01. Event 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 or Board Resolution
establishing the terms of such series pursuant to this Indenture:
(1) default in the payment of any interest upon any Security of that
series when it becomes due and payable, and continuance of such default for
a period of 30 days; or
(2) default in the delivery or payment of the Maturity Consideration
in respect of any Security of that series at its Maturity; or
34
(3) default in the deposit of any sinking fund payment, when and as
due by the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or warranty
of the Company in this Indenture (other than a covenant or warranty a
default in whose performance or whose breach is elsewhere in this Section
specifically dealt with or which has expressly been included in this
Indenture solely for the benefit of a series of Securities other than that
series), and continuance of such default or breach for a period of 60 days
after there has been given, by registered or certified mail, to the Company
by the Trustee or to the Company and the Trustee by the Holders of at least
25% in principal amount of the Outstanding Securities of that series a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default" hereunder;
or
(5) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary case
or proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company under any applicable Federal or State law, or (C)
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of any substantial
part of its property, or ordering the winding up or liquidation of its
affairs, and the continuance of any such decree or order for relief or any
such other decree or order unstayed and in effect for a period of 60
consecutive days; or
(6) the commencement by the Company of a voluntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent by it to the entry
of a decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or to the commencement of
any bankruptcy or insolvency case or proceeding against it, or the filing
by it of a petition or answer or consent seeking reorganization or relief
under any applicable Federal or State law, or the consent by it to the
filing of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or of any substantial part of its property,
or the making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally as
they become due, or the taking of corporate action by the Company in
furtherance of any such action; or
(7) any other Event of Default provided with respect to Securities of
that series.
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment. If an
--------------------------------------------------
Event of Default (other than an Event of Default specified in Section 5.01(5) or
5.01(6)) with respect to Securities of any series at the time Outstanding occurs
and is continuing, then in every such case the Trustee or the Holders of not
less than 25% in principal amount or, if such Securities are not payable at
Maturity for a fixed principal amount, 25% of the aggregate issue price of the
Outstanding Securities of that series may declare the principal amount of all
Securities of that series, or such other amount or property, as may be provided
for in the Securities of that series, (or, if any Securities of that series are
Original Issue Discount Securities, such portion of the principal amount of such
Securities as may be specified by the terms thereof) to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee, if given
by Holders), and upon any such declaration such principal amount or property (or
specified amount) shall become immediately due and payable. If an Event of
Default specified in Section 5.01(5) or 5.01(6) with respect to Securities of
any series at the time Outstanding occurs, the principal amount of all the
Securities of that
35
series, or such other amount or property, as may be provided for in the
Securities of that series, (or, if any Securities of that series are Original
Issue Discount Securities, such portion of the principal amount of such
Securities as may be specified by the terms thereof) shall automatically, and
without any declaration or other action on the part of the Trustee or any
Holder, become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the Maturity Consideration due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in principal
amount or, if such Securities are not payable at Maturity for a fixed principal
amount, the aggregate issue price of the Outstanding Securities of that series,
by written notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee:
(A) the Maturity Consideration relating to any Securities of that
series which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate or rates borne by or
provided for in such Securities,
(B) all overdue interest on all Securities of that series,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and all
amounts owing the Trustee under Section 6.07; and
(2) all Events of Default with respect to Securities of that series,
other than the non-payment of the Maturity Consideration with respect to
such series due solely by reason of such declaration of acceleration, have
been cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 5.03. Collection of Indebtedness and Suits for Enforcement by
-------------------------------------------------------
Trustee. The Company covenants that if:
-------
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for a
period of 30 days, or
(2) default is made in the payment of Maturity Consideration relating
to any Security when due,
the Company shall, upon demand of the Trustee, deliver or pay to it, for the
benefit of the Holders of such Securities, the whole amount and/or other
consideration then due and payable or deliverable on such Securities for
Maturity Consideration and interest thereon, and, to the extent that payment of
such interest shall be legally enforceable, interest on any overdue Maturity
Consideration and on any overdue interest, at the rate or rates prescribed
therefor in such Securities, and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including all
amounts owing the Trustee under Section 6.07.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and
36
enforce any such rights, whether for the specific enforcement of any covenant or
agreement in this Indenture or in aid of the exercise of any power granted
herein, or to enforce any other proper remedy.
SECTION 5.04. Trustee May File Proofs of Claim. In case of any judicial
--------------------------------
proceeding relative to the Company, its property or its creditors, the Trustee
shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
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 to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it under
Section 6.07.
No provision of this Indenture shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding; 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' or
other similar committee.
SECTION 5.05. Trustee May Enforce Claims Without Possession of Securities.
-----------------------------------------------------------
All rights of action and claims under this Indenture or the Securities may be
prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of all amounts owing the Trustee under Section 6.07, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 5.06. Application of Money Collected. Any money or other
------------------------------
consideration 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 or other consideration on account of the
Maturity Consideration or interest, upon presentation of the Securities and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 6.07; and
SECOND: To the payment of the amounts then due and unpaid for
Maturity Consideration and interest on the Securities in respect of
which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for Maturity Consideration
and interest, respectively.
SECTION 5.07. Limitation on Suits. No Holder of any Security of any series
-------------------
shall have any right to institute any proceeding, judicial or otherwise, with
respect to this Indenture, or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount or, if such
Securities are not payable at Maturity for a fixed principal amount, the
aggregate issue price of the Outstanding
37
Securities of that series shall have made written request to a Responsible
Officer to institute proceedings in respect of such Event of Default in its
own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee indemnity
satisfactory to the Trustee 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 or, if such Securities are not payable at Maturity for a
fixed principal amount, the aggregate issue price of the Outstanding
Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing itself of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other of such Holders, or to obtain or to seek to obtain priority or preference
over any other of such Holders or to enforce any right under this Indenture,
except in the manner herein provided and for the equal and ratable benefit of
all of such Holders.
SECTION 5.08. Unconditional Right of Holder To Receive Principal, Premium
-----------------------------------------------------------
and Interest. Notwithstanding any other provision in this Indenture, the Holder
------------
of any Security shall have the right, which is absolute and unconditional, to
receive delivery or payment of the Maturity Consideration relating to, and
(subject to Section 3.07) interest on such Security on the respective Stated
Maturities expressed in such Security (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any such delivery
or payment, and such rights shall not be impaired without the consent of such
Holder.
SECTION 5.09. Restoration of Rights and Remedies. If the Trustee or any
----------------------------------
Holder has instituted any proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or abandoned for any reason,
or has been determined adversely to the Trustee or to such Holder, then and in
every such case, subject to any determination in such proceeding, the Company,
the Trustee and the Holders shall be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
SECTION 5.10. Rights and Remedies Cumulative. Except as otherwise
------------------------------
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities in the last paragraph of Section 3.06, no right or
remedy herein conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 5.11. Delay or Omission Not Waiver. No delay or omission of the
----------------------------
Trustee or of any Holder of any Securities to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
38
SECTION 5.12. Control by Holders. The Holders of a majority in principal
------------------
amount of the Outstanding Securities of any series shall have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on the
Trustee, with respect to the Securities of such series; provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture or with the Securities of such 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 shall not involve the Trustee in personal liability
or be unjustly prejudicial to Holders not joining therein (it being
understood that the Trustee shall have no responsibility to determine such
prejudice).
SECTION 5.13. Waiver of Past Defaults. The Holders of not less than a
-----------------------
majority in principal amount of the Outstanding Securities of any series may on
behalf of the Holders of all the Securities of such series waive any past
default hereunder with respect to such series and its consequences, except a
default:
(1) in the delivery or payment of the Maturity Consideration or any
interest on any Security of such series; or
(2) in respect of a covenant or provision hereof which under Article
IX cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
SECTION 5.14. Waiver of Usury, Stay or Extension Laws. The Company
---------------------------------------
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any usury, stay or extension law wherever enacted, now
or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
SECTION 5.15. Undertaking for Costs. All parties to this Indenture agree,
---------------------
and each Holder of any Securities 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
39
the Trustee for any action taken or omitted by it as Trustee, the filing by any
party litigant in such suit of any undertaking to pay the costs of such suit,
and that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit having due
regard to the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section 5.15 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 to any suit instituted by any Holder
for the enforcement of the payment of the Maturity Consideration or interest, if
any, with respect to any Securities on or after the respective Stated Maturity
expressed in such Securities (or, in the case of redemption, on or after the
Redemption Date, and in the case of repayment, on or after the date for
repayment) or for the enforcement of the right, if any, to convert or exchange
any Securities into other securities in accordance with its terms.
ARTICLE VI
THE TRUSTEE
-----------
SECTION 6.01. Certain Duties and Responsibilities. The duties and
-----------------------------------
responsibilities of the Trustee shall be as provided by this Indenture and the
Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers. Whether or not therein
expressly so provided, every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
SECTION 6.02. Notice of Defaults. If a default occurs hereunder with
------------------
respect to Securities of any series, upon receipt of written notice thereof by a
Responsible Officer, the Trustee shall give the Holders of Securities of such
series notice of such default as and to the extent provided by Section 315(b) of
the Trust Indenture Act; provided, however, that in the case of any default of
the character specified in Section 5.01(4) with respect to Securities of such
series, no such notice to Holders shall be given until at least 60 days after
the occurrence thereof. For the purpose of this Section, the term "default"
means any event which is, or after notice or lapse of time or both would become,
an Event of Default with respect to Securities of such series.
SECTION 6.03. Certain Rights of Trustee. Subject to the provisions of
-------------------------
Section 6.01:
(1) the Trustee may rely conclusively and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document 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 Certificate, Company Request or Company Order,
and any resolution of the Board of Directors shall 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 be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon a Certificate;
40
(4) the Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee security or indemnity satisfactory to the
Trustee 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, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney at the sole cost of the Company
and shall incur no liability or additional liability of any kind by reason
of such inquiry or investigation;
(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 liable for any action taken, suffered, or
omitted to be taken by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it
by this Indenture;
(9) the Trustee shall not be deemed to have notice of any default or
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact
such a default is received by the Trustee at the Corporate Trust Office of
the Trustee, and such notice references the Securities and this Indenture;
and
(10) the rights, privileges, protections, immunities and benefits
given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in
each of its capacities hereunder, and to each agent, custodian and other
Person employed to act hereunder.
SECTION 6.04. Not Responsible for Recitals or Issuance of Securities. The
------------------------------------------------------
recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and 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 except that the Trustee
represents that it is duly authorized to execute and deliver this Indenture,
authenticate the Securities and perform its obligations hereunder and that the
statements made by it in a Statement of Eligibility on Form T-1 supplied to the
Company are true and accurate, subject to the qualifications set forth therein.
Neither the Trustee nor any Authenticating Agent shall be accountable for the
use or application by the Company of Securities or the proceeds thereof.
SECTION 6.05. May Hold Securities. The Trustee, any Authenticating Agent,
-------------------
any Paying Agent, any Security Registrar or any other agent of the Company or
the Trustee, in its individual or any other capacity, may become the owner or
pledgee of Securities and, subject to Sections 6.08 and 6.13, may
41
otherwise deal with the Company with the same rights it would have if it were
not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such
other agent.
SECTION 6.06. Money Held in Trust. Money held by the Trustee in trust
-------------------
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability for interest on or investment of
any money received by it hereunder except as otherwise agreed with the Company,
and any interest on or investment of any money received by it shall be for the
exclusive benefit of the Company.
SECTION 6.07. Compensation and Reimbursement. The Company agrees:
------------------------------
(1) to pay to the Trustee from time to time the compensation for all
services rendered by it hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a trustee of an
express trust) as set forth in the Schedule of Fees agreed upon by the
Company and the Trustee;
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all 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 to the extent that any
such expense, disbursement or advance may be attributable to its
negligence, bad faith or willful misconduct; and
(3) to indemnify the Trustee (which for purposes of this Section 6.07
shall include its directors, officers, employees and agents) for, and to
defend and hold it harmless against, any and all loss, damage, claims,
liability including taxes (other than taxes based upon, measured by or
determined by the income of the Trustee) or expense arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder or the performance of its duties hereunder, including the costs
and expenses of defending itself against any claim, whether asserted by the
Company or any Holder or any other Person, or liability in connection with
the exercise or performance of any of its powers or duties hereunder,
except to the extent any such loss, damage, claims, liability or expense
may be attributable to its negligence, bad faith or willful misconduct.
To secure the Company's payment of obligations in this Section 6.07, the
Trustee shall have a lien prior to the Securities on all money or property held
or collected by the Trustee other than money or property held in trust to pay
principal of and interest and any premium on particular Securities.
The Company's payment obligations pursuant to this Section 6.07 shall
survive the discharge of this Indenture and the resignation, removal or
replacement of the Trustee.
"Trustee" for purposes of this Section 6.07 includes the Trustee, every
predecessor Trustee, any Paying Agent, Authenticating Agent, Registrar or other
agent of the Company or the Trustee appointed hereunder, but the negligence or
bad faith of any such person shall not affect the rights of any other such
person under this Section 6.07.
SECTION 6.08. Conflicting Interests. If the Trustee has or shall acquire a
---------------------
conflicting interest within the meaning of the Trust Indenture Act, the Trustee
shall either eliminate such interest or resign, to the extent and in the manner
provided by, and subject to the provisions of, the Trust Indenture Act and this
Indenture. To the extent permitted by such Act, the Trustee shall not be deemed
to have a conflicting interest by virtue of being a trustee under this Indenture
with respect to Securities of more than one series, a trustee under the
Indenture for the Company's U.S. $200,000,000 5 1/2% Notes due 1999.
42
SECTION 6.09. Corporate Trustee Required; Eligibility. There shall at all
---------------------------------------
times be one (and only one) Trustee hereunder with respect to the Securities of
each series, which may be the Trustee hereunder for Securities of one or more
other series. Each Trustee shall be a Person that is eligible pursuant to the
Trust Indenture Act to act as such and has a combined capital and surplus of at
least $50,000,000. If any such Person publishes reports of condition at least
annually, pursuant to law or to the requirements of its supervising or examining
authority, then for the purposes of this Section and to the extent permitted by
the Trust Indenture Act, the combined capital and surplus of such Person shall
be deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee with respect to
the Securities shall cease to be eligible in accordance with the provisions of
this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 6.10. Resignation and Removal; Appointment of Successor. No
-------------------------------------------------
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 6.11.
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 6.11 shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
The Trustee may be removed at any time with respect to the Securities of
any series, with or without cause, by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series, delivered to the
Trustee and to the Company.
If at any time:
(1) the Trustee shall fail to comply with Section 6.08 after written
request therefor by the Company or by 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
(2) the Trustee shall cease to be eligible under Section 6.09 and
shall fail to resign after written request therefor by the Company or any
such Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (A) the Company, by a Board Resolution, may remove the
Trustee with respect to all Securities or the Securities of such series, or (B)
subject to Section 5.15, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee with respect to all Securities of such series and the
appointment of a successor Trustee or Trustees.
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 reason, with respect
to the Securities of one or more series, the Company, by a Board Resolution,
shall promptly appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all of
such series and that at any time there shall be only one Trustee with respect to
the Securities of any particular series) and shall comply with the applicable
requirements of
43
Section 6.11. 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 6.11, become the successor Trustee
with respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with respect
to the Securities of any series shall have been so appointed by the Company or
the Holders and accepted appointment in the manner required by Section 6.11, any
Holder who has been a bona fide Holder of a Security of such series for at least
six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
If any instrument of acceptance by a successor Trustee shall not have been
delivered to the Trustee within 30 days after the giving of such notice of
removal, the Trustee being removed may petition, at the expense of the Company,
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
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 to all Holders of
Securities of such series in the manner provided in Section 1.06. Each notice
shall include the name of the successor Trustee with respect to the Securities
of such series and the address of its Corporate Trust Office.
SECTION 6.11. Acceptance of Appointment by Successor. In case of the
--------------------------------------
appointment hereunder of a successor Trustee with respect to all Securities,
every such successor Trustee so appointed shall execute, acknowledge and deliver
to the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on the request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder.
In case of the appointment hereunder of a successor Trustee with respect to
the Securities of one or more (but not all) series, the Company, the retiring
Trustee and each successor Trustee with respect to the Securities of one or more
series shall execute and deliver an indenture supplemental hereto wherein each
successor Trustee shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates, (2) if the retiring Trustee
is not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any act, deed or conveyance,
shall become vested with all the rights, powers, trusts and duties of the
retiring Trustee with respect to the
44
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
Upon request of any such successor Trustee, the Company shall execute any
and all instruments for more fully and certainly vesting in and confirming to
such successor Trustee all such rights, powers and trusts referred to in the
first or second preceding paragraph, as the case may be.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 6.12. Merger, Conversion, Consolidation or Succession to Business.
-----------------------------------------------------------
Any corporation into which the Trustee may be merged or converted or with which
it may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder; provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
SECTION 6.13. Preferential Collection of Claims Against Company. If and
-------------------------------------------------
when the Trustee shall be or become a creditor of the Company (or any other
obligor upon the Securities), the Trustee shall be subject to the provisions of
the Trust Indenture Act regarding the collection of claims against the Company
(or any such other obligor).
SECTION 6.14. Appointment of Authenticating Agent. The Trustee may appoint
-----------------------------------
an Authenticating Agent or Agents with respect to one or more series of
Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon original issue and upon
exchange, registration of transfer or partial redemption thereof or pursuant to
Section 3.06, and Securities so authenticated shall be entitled to the benefits
of this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or state authorities. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent; provided
45
such corporation shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give notice of such
appointment in the manner provided in Section 1.06 to all Holders of Securities
of the series with respect to which such Authenticating Agent will serve. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series designated herein referred to
in the Indenture.
[NAME OF TRUSTEE],
As Trustee
By
--------------------------------------
As Authenticating Agent
By
--------------------------------------
Authorized Signatory
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY'
--------------------------------------------------
SECTION 7.01. Company To Furnish Trustee Names and Addresses of Holders.
---------------------------------------------------------
The Company will furnish or cause to be furnished to the Trustee:
(1) semiannually, not later than March 31 and September 30 in each
year, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders of Securities of each series as of the
preceding March 16 or September 15, as the case may be, 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; excluding from any such list names and
addresses received by the Trustee in its capacity as Security Registrar.
46
SECTION 7.02. Preservation of Information; Communications to Holders. The
------------------------------------------------------
Trustee shall preserve, in as current a form as is reasonably practicable, the
names and addresses of Holders contained in the most recent list furnished to
the Trustee as provided in Section 7.01 and the names and addresses of Holders
received by the Trustee in its capacity as Security Registrar. The Trustee may
destroy any list furnished to it as provided in Section 7.01 upon receipt of a
new list so furnished.
The rights of Holders to communicate with other Holders with respect to
their rights under this Indenture or under the Securities, and the corresponding
rights and privileges of the Trustee, shall be as provided by the Trust
Indenture Act.
Every Holder of Securities, by receiving and holding the same, agrees with
the Company and the Trustee that neither the Company nor the Trustee nor any
agent of either of them shall be held accountable by reason of any disclosure of
information as to names and addresses of Holders made pursuant to the Trust
Indenture Act.
SECTION 7.03. Reports by Trustee. The Trustee shall transmit to Holders
------------------
such reports, if any, concerning the Trustee and its actions under this
Indenture as may be required pursuant to the Trust Indenture Act at the times
and in the manner provided pursuant thereto.
A copy of each such report shall at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when any Securities are listed on any stock exchange and
of any delisting thereof.
SECTION 7.04. Reports by Company. The Company shall file with the Trustee
------------------
and the Commission, and transmit to Holders, such information, documents and
other reports, and such summaries thereof, as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant to the
Trust Indenture Act; provided that any such information, documents or reports
required to be filed with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act shall be filed with the Trustee within 15 days after the same is so
required to be filed with the Commission. Delivery of such reports, information
and documents to the Trustee is for informational purposes only and the
Trustee's receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained
therein, including the Company's compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on Officers'
Certificates).
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
----------------------------------------------------
SECTION 8.01. Company May Consolidate, Etc. Only on Certain Terms. The
---------------------------------------------------
Company shall not consolidate with or merge with or into any other Person or
convey, transfer or lease all or substantially all of its properties and assets
substantially as an entirety to any Person, unless:
(1) either (a) the Company shall be the continuing corporation or (b)
the Person (if other than the Company) formed by such consolidation or into
which the Company is merged or the Person which acquires by conveyance,
transfer, or lease, the properties and assets of the Company substantially
as an entirety shall be a corporation, partnership or trust, organized and
validly existing under the laws of the United States of America, any State
thereof or the District of Columbia and shall expressly assume, by an
indenture supplemental hereto, in form satisfactory to the Trustee, the due
and punctual delivery or payment of the Maturity Consideration and interest
on all the Securities and the performance of every covenant of this
Indenture on the part of the Company to be performed or observed;
47
(2) immediately after giving effect to such transaction (and treating
any Indebtedness which becomes an obligation of the Company or any
Subsidiary in connection with or as a result of such transaction as having
been incurred at the time of such transaction), no Event of Default, and no
event which, after notice or lapse of time or both, would become an Event
of Default, shall have occurred and be continuing; and
(3) the Company or such Person has delivered to the Trustee a
Certificate and an Opinion of Counsel, as to which opinion counsel may rely
on the Certificate as to factual matters, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a supplemental
indenture is required in connection with such transaction, such
supplemental indenture comply with this Article and that all conditions
precedent herein provided for or relating to such transaction have been
satisfied.
SECTION 8.02. Successor Substituted. Upon any consolidation or merger, or
---------------------
any conveyance, transfer or lease of the properties and assets of the Company
substantially as an entirety in accordance with Section 8.01, the successor
Person formed by such consolidation or into which the Company is merged or the
successor Person 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 the Securities and this Indenture with the same effect as if
such successor had been named as the Company herein; and thereafter, except in
the case of a lease, the Company shall be discharged from all obligations and
covenants under this Indenture and the Securities.
48
ARTICLE IX
SUPPLEMENTAL INDENTURES
-----------------------
SECTION 9.01. Supplemental Indentures without Consent of Holders. Without
--------------------------------------------------
the consent of any Holders, the Company, when authorized by a Board Resolution,
and the Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, 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 herein
and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Events of Default for the benefit of the
Holders of all or any series of Securities (and if such additional Events
of Default are to be for the benefit of less than all series of Securities,
stating that such additional Events of Default are expressly being included
solely for the benefit of such series); or
(4) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance of
Securities in uncertificated form; or
(5) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities; provided that any
such addition, change or elimination (A) shall neither (i) apply to any
Security of any series created prior to the execution of such supplemental
indenture and entitled to the benefit of such provision nor (ii) modify the
rights of the Holder of any such Security with respect to such provision or
(B) shall become effective only when there is no such Security Outstanding;
or
(6) to secure the Securities pursuant to the requirements of Section
10.06 or otherwise; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 2.01 and 3.01; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 6.11; or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture; provided that such action pursuant
to this Clause (9) shall not adversely affect the interests of the Holders
of Securities of any series in any material respect; or
(10) to add to or change or eliminate any provision of this Indenture
as shall be necessary or desirable in accordance with any amendments to the
Trust Indenture Act, provided such action shall not adversely affect the
interest of Holders of Securities of any series in any material respect.
49
(11) 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 9.02. Supplemental Indentures with Consent of Holders. With the
-----------------------------------------------
consent of the Holders of not less than a majority in principal amount or, if
such Securities are not payable at Maturity for a fixed principal amount, the
aggregate issue price of the Outstanding Securities of each series affected by
such supplemental indenture, by Act of said Holders delivered to the Company and
the Trustee, the Company, when authorized by a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) change the Stated Maturity of the Maturity Consideration, or any
installment of Maturity Consideration or interest on, any Security, or
reduce the principal amount thereof or reduce the amount or change the type
of Maturity Consideration or reduce the rate of interest thereon or any
premium payable upon the redemption thereof, or reduce the amount of
Maturity Consideration of an Original Issue Discount Security or any other
Security which would be due and deliverable or payable upon a declaration
of acceleration of the Maturity thereof pursuant to Section 5.02, or change
any Place of Payment where, or the coin or currency in which, any Maturity
Consideration or interest on any Security are deliverable or payable, or
impair the right to institute suit for the enforcement of any such delivery
or payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date), or
(2) reduce the percentage in principal amount or aggregate issue
price, as the case may be, of the Outstanding Securities of any series, the
consent of whose Holders is required for any such supplemental indenture,
or the consent of whose Holders is required for any waiver (of compliance
with certain provisions of this Indenture or certain defaults hereunder and
their consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section 5.13 or
Section 10.08, except to increase any percentages set forth therein or to
provide that certain other provisions of this Indenture cannot be modified
or waived without the consent of the Holder of each Outstanding Security
affected thereby; provided, however, that this clause shall not be deemed
-------- -------
to require the consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in this Section and
Section 10.08 in accordance with the requirements of Sections 6.11 and
9.01(8).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 9.03. Execution of Supplemental Indentures. In executing, or
------------------------------------
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and (subject to Section
6.01) shall be fully protected in relying upon, an Opinion of Counsel stating
that the execution of such supplemental
50
indenture is authorized or permitted by this Indenture. The Trustee may, but
shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
SECTION 9.04. Effect of Supplemental Indentures. Upon the execution of
---------------------------------
any supplemental indenture under this Article, this Indenture shall be modified
in accordance therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.
SECTION 9.05. Conforming with Trust Indenture Act. Every supplemental
-----------------------------------
indenture executed pursuant to this Article shall conform to the requirements of
the Trust Indenture Act.
SECTION 9.06. Reference in Securities to Supplemental Indentures.
--------------------------------------------------
Securities of any series authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
ARTICLE X
COVENANTS
---------
SECTION 10.01. Delivery or Payment of Maturity Consideration and Interest.
----------------------------------------------------------
The Company covenants and agrees for the benefit of the Holders of each series
of Securities that it will duly and punctually deliver or pay the Maturity
Consideration and interest on the Securities of that series in accordance with
the terms of the Securities and this Indenture.
SECTION 10.02. Maintenance of Office or Agency. The Company will maintain
-------------------------------
in each Place of Payment for any series of Securities an office or agency where
Securities of that series may be presented or surrendered for payment, where
Securities of that series may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served. The Company will
give prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office of the Trustee, and the
Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
--------- --------
any manner relieve the Company of its obligation to maintain an office or agency
in each Place of Payment for Securities of any series for such purposes. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.
SECTION 10.03. Money or Other Consideration for Securities Payments To Be
----------------------------------------------------------
Held in Trust. If the Company shall at any time act as its own Paying Agent
-------------
with respect to any series of Securities, it will, on or before each due date of
the Maturity Consideration or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto
consideration in an amount sufficient to deliver or pay the Maturity
Consideration or a sum sufficient to pay the interest so becoming
51
due until such consideration shall be delivered or paid to such Persons or
otherwise disposed of as herein provided and will promptly notify the Trustee of
its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of
Securities, it will, prior to each due date of the Maturity Consideration or
interest on any Securities of that series, deposit with a Paying Agent
consideration in an amount sufficient to deliver or pay the Maturity
Consideration or a sum sufficient to pay the interest so becoming due, such
consideration to be held as provided by the Trust Indenture Act, 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, that such Paying Agent will (1) comply with the provisions of
the Trust Indenture Act applicable to it as a Paying Agent and (2) give the
Trustee notice of any default by the Company (or any other obligor upon the
Securities of that series) in the making of any delivery or payment of Maturity
Consideration or interest on the Securities of that series, and 3 during the
continuance of any such default, upon the written request of the Trustee,
forthwith deliver or pay to the Trustee all consideration so held in trust by
such Paying Agent for payment in respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, deliver or pay, or by
Company Order direct any Paying Agent to deliver or pay, to the Trustee all
consideration held in trust by the Company or such Paying Agent, such
consideration to be held by the Trustee upon the same trusts as those upon which
such consideration was held by the Company or such Paying Agent; and, upon such
delivery or payment by any Paying Agent to the Trustee, such Paying Agent shall
be released from all further liability with respect to such consideration.
Any consideration deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the Maturity Consideration or
interest on or delivery or payment upon discharge of any Security of any series
and remaining unclaimed for two years after such consideration has become due
and deliverable or payable shall be paid to the Company upon a Company Request,
or (if then held by the Company) shall be discharged from such trust; and the
Holder of such Security shall thereafter, as an unsecured general creditor, look
only to the Company for delivery or payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust consideration, and all
liability of the Company as trustee thereof, shall thereupon cease.
SECTION 10.04. Statement by Officers as to Default.
-----------------------------------
(1) The Company shall deliver to the Trustee, within 120 days after
the end of each fiscal year of the Company ending after the date hereof, a
Certificate stating whether or not, after a review under each signer's
supervision of the activities of the Company during such year and of the
Company's performance under this Indenture, to the best knowledge, based on
such review, of the signers thereof, the Company has fulfilled all its
obligations under this Indenture throughout such year, and, if there has
been a default in the fulfillment of any such obligation, specifying each
default and the nature and status thereof.
(2) When any 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
the Trustee or any Holder or the trustee for or the holder of any other
evidence of Indebtedness of the Company or any Subsidiary gives any notice
or takes any other action with respect to a claimed default, the Company
shall deliver to the Trustee by registered or certified mail or facsimile
transmission a Certificate specifying such event, notice or other action
within five Business Days of its occurrence.
52
SECTION 10.05. Existence. Subject to Article VIII, the Company shall do
---------
or cause to be done all things necessary to preserve and keep in full force and
effect its existence, rights (charter and statutory) and franchises; provided,
however, that the Company shall not be required to preserve any such right or
franchise if the Board of Directors shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Company and
that the loss thereof is not disadvantageous in any material respect to the
Holders.
SECTION 10.06. Limitation on Secured Debt. The Company shall not create,
--------------------------
assume, incur or guarantee, and shall not permit any Restricted Subsidiary to
create, assume, incur or guarantee, any Secured Indebtedness without making
provision whereby all the Securities shall be secured equally and ratably with
(or prior to) such Secured Indebtedness (together with, if the Company shall so
determine, any other Indebtedness of the Company or such Restricted Subsidiary
then existing or thereafter created which is not subordinate to the Securities)
so long as such Secured Indebtedness shall be outstanding unless such Secured
Indebtedness, when added to (a) the aggregate amount of all Secured Indebtedness
then outstanding (not including in this computation Secured Indebtedness if the
Securities are secured equally and ratably with (or prior to) such Secured
Indebtedness and further not including in this computation any Secured
Indebtedness which is concurrently being retired) and (b) the aggregate amount
of all Attributable Debt then outstanding pursuant to Sale and Leaseback
Transactions entered into by the Company after _________, 1999, or entered into
by a Restricted Subsidiary after _________, 1999 or, if later, the date on which
it became a Restricted Subsidiary (not including in this computation any
Attributable Debt which is concurrently being retired), would not exceed 10% of
Consolidated Net Tangible Assets.
SECTION 10.07. Limitation on Sale and Leaseback Transactions. The Company
---------------------------------------------
shall not, and shall not permit any Restricted Subsidiary to, enter into any
Sale and Leaseback Transaction unless (a) the sum of (i) the Attributable Debt
to be outstanding pursuant to such Sale and Leaseback Transaction, (ii) all
Attributable Debt then outstanding pursuant to all other Sale and Leaseback
Transactions entered into by the Company after _________, 1999, or entered into
by a Restricted Subsidiary after _________, 1999 or, if later, the date on which
it became a Restricted Subsidiary, and (iii) the aggregate of all Secured
Indebtedness then outstanding (not including in this computation Secured
Indebtedness if the Securities are secured equally and ratably with (or prior
to) such Secured Indebtedness) would not exceed 10% of Consolidated Net Tangible
Assets or (b) an amount equal to the greater of (i) the net proceeds to the
Company or the Restricted Subsidiary of the sale of the Principal Property sold
and leased back pursuant to such Sale and Leaseback Transaction and (ii) the
amount of Attributable Debt to be outstanding pursuant to such Sale and
Leaseback Transaction, is applied to the retirement of Funded Debt of the
Company or any Restricted Subsidiaries (other than Funded Debt which is
subordinate to the Securities or which is owing to the Company or any Restricted
Subsidiaries) within 180 days after the consummation of such Sale and Leaseback
Transaction.
SECTION 10.08. Calculation of Original Issue Discount. The Company shall
--------------------------------------
file with the Trustee promptly at the end of each calendar year (i) a written
notice specifying the amount of original issue discount (including daily rates
and accrual periods) accrued on Outstanding Securities as of the end of such
year and (ii) such other specific information relating to such original issue
discount as may then be relevant under the Internal Revenue Code of 1986, as
amended from time to time.
SECTION 10.09. Waiver of Certain Covenants. Except as otherwise specified
---------------------------
as contemplated by Section 3.01 for Securities of such series, the Company may,
with respect to the Securities of any series, omit in any particular instance to
comply with any term, provision or condition set forth in any covenant provided
pursuant to Section 3.01(18), 9.01(2) or 9.01(7) for the benefit of the Holders
of such series or Sections 10.06 and 10.07, if before the time for such
compliance the Holders of at least a majority in principal amount of the
Outstanding Securities of such series shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with such
term, provision or condition, but no such waiver shall extend to or affect such
term, provision or condition except to the extent so expressly
53
waived, and, until such waiver shall become effective, the obligations of the
Company and the duties of the Trustee in respect of any such term, provision or
condition shall remain in full force and effect.
ARTICLE XI
REDEMPTION OF SECURITIES
------------------------
SECTION 11.01. Applicability of Article. Securities of any series which
------------------------
are redeemable before their Stated Maturity shall be redeemable in accordance
with their terms and (except as otherwise specified as contemplated by Section
3.01 for such Securities) in accordance with this Article.
SECTION 11.02. Election to Redeem; Notice to Trustee. The election of the
-------------------------------------
Company to redeem any Securities shall be evidenced by a Board Resolution or in
another manner specified as contemplated by Section 3.01 for such Securities. In
case of any redemption at the election of the Company of the Securities of any
series (including any such redemption affecting only a single Security), 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, of the principal amount of Securities of
such series to be redeemed and, if applicable, of the tenor of the Securities to
be redeemed. In the case of any redemption of Securities prior to the expiration
of any restriction on such redemption provided in the terms of such Securities
or elsewhere in this Indenture, the Company shall furnish the Trustee with an
Certificate evidencing compliance with such restriction.
SECTION 11.03. Selection by Trustee of Securities To Be Redeemed. If less
-------------------------------------------------
than all 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 a
portion of the principal amount of any Security of such series; provided that
the unredeemed portion of the principal amount of any Security shall be in an
authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security. If less than all the Securities of such series
and of a specified tenor are to be redeemed (unless such redemption affects only
a single Security), 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 and specified tenor not previously called
for redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption as aforesaid and, in the case of any Securities selected
for partial redemption as aforesaid, the principal amount thereof to be
redeemed.
The provisions of the two preceding paragraphs shall not apply with respect
to any redemption affecting a single Security, whether such Security is to be
redeemed in whole or in part. In the case of any such redemption in part, the
unredeemed portion of the principal amount of the Security shall be in an
authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
54
SECTION 11.04. Notice of Redemption. Notice of redemption shall be given
--------------------
by first-class mail, postage prepaid, mailed not less than 30 nor more than 60
days prior to the Redemption Date, to each Holder of Securities to be redeemed,
at his address appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price and any accrued interest;
(3) if less than all the Outstanding Securities of any series
consisting of more than a single Security are to be redeemed, the
identification (and, in the case of partial redemption of any such
Securities the principal amounts) of the particular Securities to be
redeemed and, if a single Security is to be partially redeemed, the
principal amount of such Security to be redeemed;
(4) that on the Redemption Date the Redemption Price and any accrued
interest will become due and payable upon each such Security to be redeemed
and, if applicable, that interest thereon will cease to accrue on and after
said date (unless the Company shall default in the payment of the
Redemption Price and accrued interest);
(5) the place or places where each such Security is to be surrendered
for payment of the Redemption Price and any accrued interest;
(6) that the redemption is for a sinking fund, if such is the case;
and
(7) the CUSIP number.
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 and shall be irrevocable.
SECTION 11.05. Deposit of Redemption Price. Prior to any Redemption Date,
---------------------------
the Company shall deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 10.03) an amount of money sufficient to pay the Redemption
Price of, and (except if the Redemption Date shall be an Interest Payment Date)
accrued interest on, all the Securities which are to be redeemed on that date.
SECTION 11.06. Securities Payable on Redemption Date. Notice of
-------------------------------------
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified, and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest. Upon surrender of any such Security for
redemption in accordance with said notice, such Security shall be paid by the
Company at the Redemption Price, together with accrued interest to the
Redemption Date provided, however, that, unless otherwise specified as
contemplated by Section 3.01, installments of interest whose Stated Maturity is
on or prior to the Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 3.07.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal and any premium shall, until paid, bear
interest from the Redemption Date at the rate prescribed therefor in the
Security.
55
SECTION 11.07. Securities Redeemed in Part. Any Security which is to be
---------------------------
redeemed only in part shall be surrendered at a Place of Payment therefor (with,
if the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or his attorney duly authorized in writing), and
the Company shall execute, and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge, a new Security or Securities of
the same series and of like tenor, of any authorized denomination as requested
by such Holder, in an aggregate principal amount equal to and in exchange for
the unredeemed portion of the principal of the Security so surrendered.
ARTICLE XII
SINKING FUNDS
-------------
SECTION 12.01. Applicability of Article. The provisions of this Article
------------------------
shall be applicable to any sinking fund for the retirement of Securities of any
series except as otherwise specified in Section 3.01 for such Securities.
The minimum amount of any sinking fund payment provided for by the terms of
any Securities is herein referred to as a "mandatory sinking fund payment", and
any payment in excess of such minimum amount provided for by the terms of such
Securities is herein referred to as an "optional sinking fund payment". If
provided for by the terms of any Securities, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section 12.02. Each sinking
fund payment shall be applied to the redemption of Securities as provided for by
the terms of such Securities and this Indenture.
SECTION 12.02. Satisfaction of Sinking Fund Payments with Securities. The
-----------------------------------------------------
Company (1) may deliver Outstanding Securities of a series (other than any
previously called for redemption) and (2) may apply as a credit Securities of a
series which have been redeemed either at the election of the Company pursuant
to the terms of such Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Securities, in each case in
satisfaction of all or any part of any sinking fund payment with respect to any
Securities of such series required to be made pursuant to the terms of such
Securities as and to the extent provided for by the terms of such Securities;
provided that the Securities to be so credited have not been previously so
credited. The Securities to be so credited shall be received and credited for
such purpose by the Trustee at the Redemption Price specified in the Securities
for redemption through operation of the sinking fund and the amount of such
sinking fund payment shall be reduced accordingly.
SECTION 12.03. Redemption of Securities for Sinking Fund. Not less than
-----------------------------------------
60 days prior to each sinking fund payment date for any Securities, the Company
will deliver to the Trustee a Certificate specifying the amount of the next
ensuing sinking fund payment for such Securities pursuant to the terms of such
Securities, the portion thereof, if any, which is to be satisfied by payment of
cash and the portion thereof, if any, which is to be satisfied by delivering and
crediting Securities pursuant to Section 12.02 and will also deliver to the
Trustee any Securities to be so delivered. Not less than 30 days prior to each
such sinking fund payment date, the Trustee shall select the Securities to be
redeemed upon such sinking fund payment date in the manner specified in Section
11.03 and cause notice of the redemption thereof to be given in the name of and
at the expense of the Company in the manner provided in Section 11.04. Such
notice having been duly given, the redemption of such Securities shall be made
upon the terms and in the manner stated in Sections 11.06 and 11.07.
56
ARTICLE XIII
DEFEASANCE AND COVENANT DEFEASANCE
----------------------------------
SECTION 13.01. Company's Option To Effect Defeasance or Covenant
-------------------------------------------------
Defeasance. The Company may elect, at its option at any time, to have Section
----------
13.02 or Section 13.03 applied to any Securities or any series of Securities, as
the case may be, designated pursuant to Section 3.01 as being defeasible
pursuant to such Section 13.02 or 13.03, in accordance with any applicable
requirements provided pursuant to Section 3.01 and upon compliance with the
conditions set forth below in this Article. Any such election shall be evidenced
by a Board Resolution or in another manner specified as contemplated by Section
3.01 for such Securities.
SECTION 13.02. Defeasance and Discharge. Upon the Company's exercise of
------------------------
its option (if any) to have this Section applied to any Securities or any series
of Securities, as the case may be, the Company shall be deemed to have been
discharged from its obligations with respect to such Securities as provided in
this Section on and after the date the conditions set forth in Section 13.04 are
satisfied (hereinafter called "Defeasance"). For this purpose, such Defeasance
means that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by such Securities and to have satisfied all its other
obligations under such Securities and this Indenture insofar as such Securities
are concerned (and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging the same), subject to the following which shall
survive until otherwise terminated or discharged hereunder: (1) the rights of
Holders of such Securities to receive, solely from the trust fund described in
Section 13.04 and as more fully set forth in such Section, payments in respect
of the Maturity Consideration and interest on such Securities when payments are
due, (2) the Company's obligations with respect to such Securities under
Sections 3.04, 3.05, 3.06, 10.02 and 10.03, (3) the rights, powers, trusts,
duties and immunities of the Trustee hereunder and (4) this Article. Subject to
compliance with this Article, the Company may exercise its option (if any) to
have this Section applied to any Securities notwithstanding the prior exercise
of its option (if any) to have Section 13.03 applied to such Securities.
SECTION 13.03. Covenant Defeasance. Upon the Company's exercise of its
-------------------
option (if any) to have this Section applied to any Securities or any series of
Securities, as the case may be, (1) the Company shall be released from its
obligations under Section 8.01, Sections 10.05 through 10.07, inclusive, and any
covenants provided pursuant to Section 3.01(18), 9.01(2) or 9.01(7) for the
benefit of the Holders of such Securities and (2) the occurrence of any event
specified in Sections 5.01(4) (with respect to any of Section 8.01(3), Sections
10.06 and 10.07, and any such covenants provided pursuant to Section 3.01(18),
9.01(2) or 9.01(7)), 5.01(5) and 5.01(7) shall be deemed not to be or result in
an Event of Default, in each case with respect to such Securities as provided in
this Section on and after the date the conditions set forth in Section 13.04 are
satisfied (hereinafter called "Covenant Defeasance"). For this purpose, such
Covenant Defeasance means that, with respect to such Securities, 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 specified Section (to the extent
so specified in the case of Section 5.01(4)), whether directly or indirectly by
reason of any reference elsewhere herein to any such Section or by reason of any
reference in any such Section to any other provision herein or in any other
document, but the remainder of this Indenture and such Securities shall be
unaffected thereby.
SECTION 13.04. Conditions To Defeasance or Covenant Defeasance. The
-----------------------------------------------
following shall be the conditions to the application of Section 13.02 or Section
13.03 to any Securities or any series of Securities, as the case may be:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee which satisfies the
requirements contemplated by Section 6.09 and agrees to comply with the
provisions of this Article 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, (A) money in an amount, or (B) U.S. Government Obligations
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
57
any payment, money in an amount, or (C) a combination thereof, in each case
sufficient, 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 any such other qualifying trustee) to pay and discharge, the
Maturity Consideration and interest on such Securities on the respective
Stated Maturities, in accordance with the terms of this Indenture and such
Securities. As used herein, "U.S. Government Obligation" means any security
which is (i) a direct obligation of the United States of America for the
payment of which the full faith and credit of the United States of America
is pledged or (ii) an obligation of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States of America,
the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which in either case (i)
or (ii), is not callable or redeemable at the option of the issuer thereof,
and shall also include a depositary receipt issued by a bank (as defined in
Section 3(a)(2) of the Securities Act) as custodian with respect to any
U.S. Government Obligation or a specific payment of principal of or
interest on any such U.S. Government Obligation held by such custodian for
the account of the holder of a depositary 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 depositary receipt from any
amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of principal or interest with respect to
the U.S. Government Obligation evidenced by such depositary receipt.
(2) In the event of an election to have Section 13.02 apply to any
Securities or any series of Securities, as the case may be, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that (A)
the Company has received from, or there has been published by, the Internal
Revenue Service a ruling or (B) since the date of this instrument, there
has been a change in applicable Federal income tax law, in either case (A)
or (B) to the effect that, and based thereon such opinion shall confirm
that, the Holders of such Securities will not recognize gain or loss for
Federal income tax purposes as a result of the deposit, Defeasance and
discharge to be effected with respect to such Securities and will be
subject to Federal income tax on the same amount, in the same manner and at
the same times as would be the case if such deposit, Defeasance and
discharge were not to occur.
(3) In the event of an election to have Section 13.03 apply to any
Securities or any series of Securities, as the case may be, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of such Securities will not recognize gain or loss for
Federal income tax purposes as a result of the deposit and Covenant
Defeasance to be effected with respect to such Securities and will be
subject to Federal income tax on the same amount, in the same manner and at
the same times as would be the case if such deposit and Covenant Defeasance
were not to occur.
(4) The Company shall have delivered to the Trustee an officer's
Certificate to the effect that neither such Securities nor any other
Securities of the same series, if then listed on any securities exchange,
will be delisted as a result of such deposit.
(5) No event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to such Securities or any other
Securities shall have occurred and be continuing at the time of such
deposit or, with regard to any such event specified in Section 5.01(5) and
(6), at any time on or prior to the 90th day after the date of such deposit
(it being understood that this condition shall not be deemed satisfied
until after such 90th day).
(6) Such Defeasance or Covenant Defeasance shall not cause the Trustee
to have a conflicting interest within the meaning of the Trust Indenture
Act.
58
(7) Such Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under, any other agreement
or instrument to which the Company is a party or by which it is bound.
(8) Such Defeasance or Covenant Defeasance shall not result in the
trust arising from such deposit constituting an investment company within
the meaning of the Investment Company Act unless such trust shall be
registered under the Investment Company Act of 1940, as amended or exempt
from registration thereunder.
(9) The Company shall have delivered to the Trustee a Certificate and
an Opinion of Counsel, which opinion may be given in all circumstances by
an employee of or counsel for the Company, each stating that all conditions
precedent with respect to such Defeasance or Covenant Defeasance have been
complied with.
SECTION 13.05. Deposited Money and U.S. Government Obligations To Be Held
----------------------------------------------------------
in Trust; Miscellaneous Provisions. Subject to the provisions of the last
----------------------------------
paragraph of Section 10.03, all money and U.S. Government Obligations (including
the proceeds thereof) deposited with the Trustee pursuant to Section 13.04 in
respect of any Securities shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and this Indenture, to the
payment, either directly or through any such Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Holders of
such Securities, of all sums due and to become due thereon in respect of
Maturity Consideration and interest, but money so held in trust need not be
segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 13.04 or the principal and 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 Outstanding Securities.
Anything in this Article to the contrary notwithstanding, the Trustee shall
deliver or pay to the Company from time to time upon Company Request any money
or U.S. Government Obligations held by it as provided in Section 13.04 with
respect to any Securities 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 the Defeasance or Covenant Defeasance, as
the case may be, with respect to such Securities.
SECTION 13.06. 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 otherwise prohibiting such application, then
the obligations under this Indenture and such Securities from which the Company
has been discharged or released pursuant to Section 13.02 or 13.03 shall be
revived and reinstated as though no deposit had 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 Section
13.05 with respect to such Securities in accordance with this Article; provided,
--------
however, that if the Company makes any payment of Maturity Consideration or
-------
interest on any such Security following such 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 XIV
REPAYMENT AT THE OPTION OF HOLDERS
----------------------------------
SECTION 14.01. 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 3.09, 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 canceled. Notwithstanding anything to
the contrary contained in this Section 14.01, 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 XV
SECURITIES IN FOREIGN CURRENCIES
--------------------------------
SECTION 15.01. 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 U.S. dollars shall
be treated for any such action or distribution as that amount of U.S. dollars
that could be obtained for such amount on such reasonable basis of exchange and
as of the record date with respect to 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.
ARTICLE XVI
MEETINGS OF HOLDERS OF SECURITIES
---------------------------------
SECTION 16.01 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 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 16.02 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 16.01, to be
held at such time and at such place in the Borough of Manhattan, The City
of New York. 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 1.06, 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 16.01, 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 such meeting with 21 days after receipt of
such request
60
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 for such meeting
and may call such meeting for such purposes by giving notice thereof as
provided in clause (1) of this Section.
SECTION 16.03 Persons Entitled to Vote at Meetings. To be entitled to
------------------------------------
vote at any meeting of Holders of Securities of any series, a Person shall be
(1) a Holder of one or more Outstanding Securities of such series, or (2) a
Person appointed by an instrument in writing as proxy for a Holder or Holders of
one or more Outstanding Securities of such series by such Holder or Holders.
The only Persons who shall be entitled to be present or to speak at any meeting
of Holders of Securities of any series shall be the Persons entitled to vote at
such meeting and their counsel, any representatives of the Trustee and its
counsel and any representatives of the Company and its counsel.
SECTION 16.04 Quorum; Action. The Persons entitled to vote a majority in
--------------
principal amount of the Outstanding Securities of a series shall constitute a
quorum for any meeting of Holders of Securities of such series. 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
reconvened meeting, such reconvened 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 reconvened meeting. Notice of the reconvening
of any adjourned meeting shall be given as provided in Section 16.02(1), except
that such notice need be given only once not less than five days prior to the
date on which the meeting is 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 9.02, 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 9.02, 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 shall be
binding on all the Holders of Securities of such series, whether or not such
Holders were present or represented at the meeting.
SECTION 16.05. 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 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 1.04 and the appointment of any proxy
shall be proved in the manner
61
specified in Section 1.04. 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 1.04 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
16.02(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 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 16.02 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 16.06. Counting Votes and Recording Action of Meetings. The vote
-----------------------------------------------
upon any resolution submitted to any meeting of Holders of Securities of any
series shall be by written ballots on which shall be subscribed the signatures
of the Holders of Securities of such series or of their representatives by proxy
and the principal amounts and serial numbers of the Outstanding Securities of
such series held or represented by them. The permanent chairman of the meeting
shall appoint two inspectors of votes who shall count all votes cast at the
meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in triplicate of all
votes cast at the meeting. A record, at least in 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 meeting and showing that said notice was given as
provided in Section 16.02 and, if applicable, Section 16.04. 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 XVII
MISCELLANEOUS PROVISIONS
------------------------
SECTION 17.01. Maturity Consideration. If the Securities of any
----------------------
series provide for the payment or delivery of any Maturity Consideration other
than money, the Company will pay or deliver, as the case may be, to the Holder
of any such Security, the Maturity Consideration as provided therein. Whenever
in this Indenture there is mentioned the payment of money in respect of the
principal of (or premium, if any) any Security of any series, such mention shall
be deemed to include the payment or delivery of consideration other than money
to the extent that such payment or delivery is permitted or required by the
terms of the Securities of any series. Express mention of the payment or
delivery of Maturity
62
Consideration in any provision herein shall not be construed as excluding
Maturity Consideration other than money where such express mention is not made.
If any of the Securities of any series are not payable at Maturity for
a fixed principal amount, all references herein to the principal amount of such
Securities shall be deemed to include mention of the aggregate issue price of
such Securities, as the context requires. Express reference to the issue price
or aggregate issue price of any Securities of any series in any provision herein
shall not be construed as excluding such references where such express reference
is not made.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
* * * * *
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
63
STATE OF )
) ss.:
)
COUNTY OF )
On the ___ day of ____________ before me personally came _________________
to me known, who, being by me duly sworn, did depose and say that he is of
United Parcel Service of America, Inc. one of the corporations described in and
which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
____________________________________
STATE OF )
) ss.:
)
COUNTY OF )
On the __ day of _____________ before me personally came _________________
to me known, who, being by me duly sworn, did depose and say that he is of
Citibank, N.A., one of the corporations described in and which executed the
foregoing instrument; that he knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation; and that he signed his
name thereto by like authority.
____________________________________
64
