EXHIBIT 4.1
SYSCO INTERNATIONAL, CO.,
as Issuer
SYSCO CORPORATION,
as Guarantor
AND
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Trustee
INDENTURE
DATED AS OF MAY 23, 2002
SYSCO INTERNATIONAL, CO.
SYSCO CORPORATION
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939
AND INDENTURE, DATED AS OF MAY 23, 2002
--------------------
Section of
Trust Indenture Section(s) of
Act of 0000 Xxxxxxxxx
Xxxx. 310 (a)(1)....................................................................... 6.9
(a)(2)....................................................................... 6.9
(a)(3)....................................................................... Not Applicable
(a)(4)....................................................................... Not Applicable
(a)(5)....................................................................... 6.9
(b).......................................................................... 6.9, 6.10
Sect. 311 (a).......................................................................... 6.6
(b).......................................................................... 6.6
(c).......................................................................... Not Applicable
Sect. 312 (a).......................................................................... 4.1
(b).......................................................................... 4.1
(c).......................................................................... 4.1
Sect. 313 (a).......................................................................... 4.3
(b).......................................................................... 4.3
(c).......................................................................... 4.3
(d).......................................................................... 4.3
Sect. 314 (a).......................................................................... 3.5, 4.2
(b).......................................................................... Not Applicable
(c)(1)....................................................................... 11.5
(c)(2)....................................................................... 11.5
(c)(3)....................................................................... Not Applicable
(d).......................................................................... Not Applicable
(e).......................................................................... 1.1 ("Officer
Certificate"); 11.5
Sect. 315 (a).......................................................................... 6.1(b)
(b).......................................................................... 5.11
(c).......................................................................... 6.1
(d).......................................................................... 6.1
(d)(1)....................................................................... 6.1
(d)(2)....................................................................... 6.1
(d)(3)....................................................................... 6.1
(e).......................................................................... 6.10
Sect. 316 (a)(1)(A).................................................................... 5.9
(a)(1)(B).................................................................... 5.10
(a)(2)....................................................................... Not Applicable
(a)(last sentence)........................................................... 7.4
(b).......................................................................... 5.7
Sect. 317 (a)(1)....................................................................... 5.4
(a)(2)....................................................................... 5.2
(b).......................................................................... 3.4
Sect. 318 (a).......................................................................... 11.7
------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
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TABLE OF CONTENTS
PAGE
----
ARTICLE I DEFINITIONS........................................................................1
1.1 Certain Terms Defined..............................................................1
ARTICLE II SECURITIES.........................................................................9
2.1 Forms Generally....................................................................9
2.2 Form of Trustee's Certificate of Authentication...................................11
2.3 Amount Unlimited; Issuable in Series..............................................11
2.4 Authentication and Delivery of Securities.........................................14
2.5 Execution of Securities...........................................................16
2.6 Certificate of Authentication.....................................................17
2.7 Denomination and Date of Securities; Payments of Interest.........................17
2.8 Registration, Transfer and Exchange...............................................18
2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities.........................21
2.10 Cancellation of Securities; Destruction Thereof...................................22
2.11 Temporary Securities..............................................................22
2.12 CUSIP Numbers.....................................................................23
2.13 Certain Restrictive Legends.......................................................23
2.14 Transfer Restrictions and Other Transfer Provisions...............................25
ARTICLE III CERTAIN COVENANTS OF THE ISSUER AND THE GUARANTOR................................31
3.1 Payment of Principal and Interest.................................................31
3.2 Offices for Payments, etc.........................................................31
3.3 Appointment to Fill a Vacancy in Office of Trustee................................32
3.4 Paying Agents.....................................................................32
3.5 Written Statement to Trustee......................................................33
3.6 Luxembourg Publications...........................................................33
3.7 Certain Covenants Applicable to the Securities; Limitations on Liens..............33
3.8 Limitations on Sale and Lease-Back Transactions...................................35
3.9 Corporate Existence...............................................................35
3.10 Waiver of Stay, Extension or Usury Laws...........................................35
ARTICLE IV SECURITYHOLDERS LISTS AND REPORTS BY THE ISSUER, GUARANTOR AND
THE TRUSTEE.......................................................................36
4.1 Issuer to Furnish Trustee Information as to Names and Addresses of
Securityholders...................................................................36
4.2 Reports by the Issuer and the Guarantor...........................................36
4.3 Reports by the Trustee............................................................36
ARTICLE V REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT...................37
5.1 Event of Default Defined; Acceleration of Maturity; Waiver of Default.............37
5.2 Collection of Indebtedness by Trustee; Trustee May Prove Debt....................39
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5.3 Application of Proceeds...........................................................41
5.4 Suits for Enforcement.............................................................42
5.5 Restoration of Rights on Abandonment of Proceedings...............................42
5.6 Limitations on Suits by Securityholders...........................................42
5.7 Unconditional Right of Securityholder to Institute Certain Suits..................43
5.8 Powers and Remedies Cumulative; Delay or Omission Not Waiver of Default...........43
5.9 Control by Holders of Securities..................................................43
5.10 Waiver of Past Defaults...........................................................44
5.11 Trustee to Give Notice of Default, But May Withhold in Certain Circumstances......44
5.12 Right of Court to Require Filing of Undertaking to Pay Costs.....................45
ARTICLE VI CONCERNING THE TRUSTEE............................................................45
6.1 Duties and Responsibilities of the Trustee; Prior to Default......................45
6.2 Certain Rights of the Trustee.....................................................46
6.3 Trustee Not Responsible for Recitals, Disposition of Securities or Application
of Proceeds Thereof...............................................................48
6.4 Trustee and Agents May Hold Securities or Coupons, Collections, etc...............48
6.5 Moneys Held by Trustee............................................................48
6.6 Compensation and Indemnification of Trustee and Its Prior Claim...................48
6.7 Right of Trustee to Rely on Officers' Certificate, etc............................49
6.8 Indentures Not Creating Potential Conflicting Interests for the Trustee...........49
6.9 Persons Eligible for Appointment as Trustee.......................................49
6.10 Resignation and Removal; Appointment of Successor Trustee.........................49
6.11 Acceptance of Appointment by Successor Trustee....................................51
6.12 Merger, Conversion, Consolidation or Succession to Business of Trustee............52
6.13 Appointment of Authenticating Agent...............................................53
ARTICLE VII CONCERNING THE SECURITYHOLDERS...................................................54
7.1 Evidence of Action Taken by Securityholders.......................................54
7.2 Proof of Execution of Instruments and of Holding of Securities....................54
7.3 Holders to be Treated as Owners...................................................55
7.4 Securities Owned by Issuer Deemed Not Outstanding.................................56
7.5 Right of Revocation of Action Taken...............................................56
7.6 Record Date for Consents and Waivers..............................................56
ARTICLE VIII SUPPLEMENTAL INDENTURES.........................................................57
8.1 Supplemental Indentures Without Consent of Securityholders........................57
8.2 Supplemental Indentures With Consent of Securityholders...........................58
8.3 Effect of Supplemental Indenture..................................................60
8.4 Documents to Be Given to Trustee..................................................60
8.5 Notation on Securities in Respect of Supplemental Indentures......................60
ARTICLE IX CONSOLIDATION, MERGER, SALE OR CONVEYANCE.........................................60
9.1 Limitations on Mergers and Consolidations of the Guarantor........................60
9.2 Successor Person Substituted......................................................61
9.3 Assignment by and Substitution of the Issuer......................................61
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ARTICLE X SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS........................61
10.1 Satisfaction and Discharge of Indenture...........................................61
10.2 Application by Trustee of Funds Deposited for Payment of Securities...............66
10.3 Repayment of Moneys Held by Paying Agent..........................................66
10.4 Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years.........66
10.5 Indemnity for U.S. Government Obligations.........................................66
ARTICLE XI MISCELLANEOUS PROVISIONS..........................................................67
11.1 Incorporators, Stockholders, Officers, Directors and Employees of Issuer and
Guarantor Exempt from Individual Liability........................................67
11.2 Provisions of Indenture for the Sole Benefit of Parties and Holders of
Securities and Coupons............................................................67
11.3 Successors and Assigns of Issuer and Guarantor Bound by Indenture...............67
11.4 Notices and Demands on Issuer, Guarantor, Trustee and Holders of Securities
and Coupons.......................................................................67
11.5 Officers' Certificates and Opinions of Counsel; Statements to Be Contained
Therein...........................................................................68
11.6 Payments Due on Saturdays, Sundays and Holidays...................................69
11.7 Conflict of Any Provision of Indenture with Trust Indenture Act...................69
11.8 New York Law to Govern; Jurisdiction; Service of Process..........................69
11.9 Counterparts......................................................................70
11.10 Effect of Headings................................................................70
11.11 Securities in a Foreign Currency or in ECU........................................70
11.12 Judgment Currency.................................................................71
ARTICLE XII REDEMPTION OF SECURITIES AND SINKING FUNDS.......................................71
12.1 Applicability of Article..........................................................71
12.2 Notice of Redemption; Partial Redemptions.........................................71
12.3 Payment of Securities Called for Redemption.......................................73
12.4 Exclusion of Certain Securities from Eligibility for Selection for Redemption.....74
12.5 Mandatory and Optional Sinking Funds..............................................74
ARTICLE XIII GUARANTEES......................................................................76
13.1 Guarantees........................................................................76
13.2 Proceedings Against the Guarantor.................................................78
13.3 Guarantees for Benefit of Holders.................................................78
13.4 Severability......................................................................79
EXHIBITS
Exhibit A - Form of Global Security
Exhibit B - Form of Certificate of Beneficial Ownership
Exhibit C - Form of Regulation S Certificate
Exhibit D - Form of Institutional Accredited Investor Certificate
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THIS INDENTURE, dated as of May 23, 2002 between SYSCO INTERNATIONAL, CO.,
an unlimited liability company organized under the laws of the Province of Nova
Scotia, Canada (the "Issuer"), SYSCO CORPORATION, a Delaware corporation (the
"Guarantor"), and WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking
association, as trustee (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Issuer has duly authorized the issue from time to time of its
notes or other evidences of indebtedness to be issued in one or more series (the
"Securities") up to such principal amount or amounts as may from time to time be
authorized in accordance with the terms of this Indenture;
WHEREAS, the Issuer has duly authorized the execution and delivery of this
Indenture to provide, among other things, for the authentication, delivery and
administration of the Securities;
WHEREAS, the Guarantor has duly authorized the execution and delivery of
this Indenture to provide for the Guarantees; and
WHEREAS, all things necessary to make this Indenture a valid indenture and
agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities by the
holders thereof, the Issuer, the Guarantor and the Trustee mutually covenant and
agree for the equal and proportionate benefit of the respective holders from
time to time of the Securities and of the coupons, if any, appertaining thereto
as follows:
ARTICLE I
DEFINITIONS
1.1 Certain Terms Defined. The following terms (except as otherwise
expressly provided or unless the context otherwise clearly requires) for all
purposes of this Indenture and of any indenture supplemental hereto shall have
the respective meanings specified in this Section. All other terms used in this
Indenture that are defined in the Trust Indenture Act or are defined therein by
reference to the Securities Act (except as herein otherwise expressly provided
or unless the context otherwise requires) shall have the meanings assigned to
such terms in the Trust Indenture Act and in the Securities Act as in force at
the date of this Indenture. For the purpose of any computation hereunder, all
accounting terms used herein and not expressly defined shall have the meanings
assigned to such terms in accordance with generally accepted accounting
principles, and the term "generally accepted accounting principles" means such
accounting principles as are generally accepted in the United States at the time
of such computation. 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. Whenever the context so
requires, the singular number includes the plural and vice versa, and a
reference to one gender includes the other gender and the neuter.
"Agent Members" has the meaning given such term in Section 2.8.
"Attributable Debt" with regard to a Sale and Lease-Back Transaction with
respect to any property means, at the time of determination, the lesser of: (a)
the fair market value of such property (as determined in good faith by the Board
of Directors of the Guarantor); or (b) the present value of the total net amount
of rent required to be paid under such lease during the remaining term thereof
(including any period for which such lease has been extended), discounted at the
rate of interest set forth or implicit in the terms of such lease (or, if not
practicable to determine such rate, the Composite Rate) compounded
semi-annually. In the case of any lease which is terminable by the lessee upon
the payment of a penalty, such net amount shall be the lesser of the net amount
determined assuming termination upon the first date such lease may be terminated
(in which case the net amount shall also include the amount of the penalty, but
no rent shall be considered as required to be paid under such lease subsequent
to the first date upon which it may be so terminated) or the net amount
determined assuming no such termination.
"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 purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise.
"Authenticating Agent" shall have the meaning set forth in Section 6.13.
"Authorized Newspaper" means a newspaper (which, in the case of The City of
New York, will, if practicable, be The Wall Street Journal (Eastern Edition), in
the case of the United Kingdom, will, if practicable, be The Financial Times
(London Edition) and, in the case of Luxembourg, will, if practicable, be The
Luxemburger Wort) published in an official language of the country of
publication customarily published at least once a day for at least five days in
each calendar week and of general circulation in The City of New York, the
United Kingdom or in Luxembourg, as applicable. If it shall be impractical in
the opinion of the Trustee to make any publication of any notice required hereby
in an Authorized Newspaper, any publication or other notice in lieu thereof
which is made or given with the approval of the Trustee shall constitute a
sufficient publication of such notice.
"Board of Directors," when used with reference to the Issuer or the
Guarantor, means the Board of Directors of the Issuer or the Guarantor, as the
case may be, or any committee thereof duly authorized, with respect to any
particular matter, to act by or on behalf of the Board of Directors of the
Issuer or the Guarantor, as the case may be.
"Board Resolution," when used with reference to the Issuer or the
Guarantor, means a copy of a resolution certified by the Secretary or an
Assistant Secretary of the Issuer or the Guarantor, as the case may be, to have
2
been duly adopted by the Board of Directors of the Issuer or the Guarantor, as
the case may be, and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means, with respect to any Security, a day that in the city
of the principal Corporate Trust Office of the Trustee and in the city (or in
any of the cities, if more than one) in which amounts are payable, as specified
in the form of such Security, is neither a Saturday, Sunday or a legal holiday
nor a day on which banking institutions are authorized or required by law or
regulation to close.
"Clearstream" means Clearstream Banking, societe anonyme, and its
successors.
"Commission" means the U.S. Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or if at any time
after the execution and delivery of this Indenture such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties on such date.
"Composite Rate" means, at any time, the rate of interest, per annum,
compounded semiannually, equal to the sum of the rates of interest borne by each
of the Securities Outstanding hereunder (as specified on the face of each of the
Securities, provided, that, in the case of the Securities with variable rates of
interest, the interest rate to be used in calculating the Composite Rate shall
be the interest rate applicable to such Securities at the beginning of the year
in which the Composite Rate is being determined and, provided, further, that, in
the case of Securities which do not bear interest, the interest rate to be used
in calculating the Composite Rate shall be a rate equal to the yield to maturity
on such Securities, calculated at the time of issuance of such Securities)
multiplied, in the case of each of the Securities, by the percentage of the
aggregate principal amount of all of the Securities then Outstanding represented
by such Security. For the purposes of this calculation, the aggregate principal
amounts of Outstanding Securities that are denominated in a foreign currency,
shall be calculated in the manner set forth in Section 11.11.
"Consolidated Net Tangible Assets" means, as of any particular time, the
aggregate amount of assets (less applicable reserves and other properly
deductible items) after deducting therefrom: (a) all current liabilities, except
for current maturities of long-term debt and of obligations under capital
leases; and (b) all goodwill, trade names, trademarks, patents, unamortized debt
discount and expense and other intangible assets, to the extent included in said
aggregate amount of assets, all as set forth on the most recent consolidated
balance sheet of the Guarantor and its consolidated subsidiaries and computed in
accordance with generally accepted accounting principles.
"Corporate Trust Office" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered which office is, at the date as of which this Indenture
is dated, located in Houston, Texas. Where the terms of this Indenture refer to
performance in New York, New York, the address of such office are as follows:
3
Wachovia Bank
00 Xxxx 00xx Xxxxxx,
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
"Coupon" means any interest coupon appertaining to a Security.
"Depositary" means, with respect to the Securities of any series issuable
or issued in the form of one or more Registered Global Securities, the Person
designated as Depositary by the Issuer pursuant to Section 2.3 until a successor
Depositary shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Depositary" shall mean or include each Person who is
then a Depositary hereunder, and if at any time there is more than one such
Person, "Depositary" as used with respect to the Securities of any such series
shall mean the Depositary with respect to the Registered Global Securities of
that series.
"Dollar" or "$" means the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
"ECU" means the European Currency Unit as defined and revised from time to
time by the Council of European Communities.
"Euroclear" means Euroclear Bank S.A./N.V., and its successors or assigns,
as operator of the Euroclear System.
"Event of Default" means any event or condition specified as such in
Section 5.1.
"Exchange Act" means the U.S. Securities Exchange Act of 1934, as amended.
"Exchange Note" shall have the meaning set forth in Section 2.1.
"Foreign Currency" means a currency issued by the government of a country
other than the United States of America.
"Guarantees" shall mean the guarantees of the Issuer's obligations under
the Securities by the Guarantor as provided in Article XIII.
"Guarantor" means the Person named as the "Guarantor" 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
"Guarantor" shall mean such successor Person.
"Holder," "Holder of Securities," "Securityholder" or other similar terms
mean (a) in the case of any Registered Security, the person in whose name such
Security is registered in the security register kept by the Issuer for that
purpose in accordance with the terms hereof, and (b) in the case of any
Unregistered Security, the bearer of such Security, or any Coupon appertaining
thereto, as the case may be.
"Indebtedness" shall have the meaning set forth in Section 5.1.
4
"Indenture" means this instrument as originally executed and delivered or,
if amended or supplemented as herein provided, as so amended or supplemented or
both, and shall include the forms and terms of particular series of Securities
established as contemplated hereunder.
"Initial Notes" means the first series of Securities issued as of the date
of this Indenture.
"Initial Purchasers" means the initial purchasers named in the Purchase
Agreement dated May 20, 2002 relating to the sale of the Initial Notes.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as that term is defined in Rule 501(a)(1), (2), (3) or (7)
of Regulation D under the Securities Act.
"interest," whenever used with reference to the Securities or any Security
or portion thereof, shall be deemed to include interest payable after maturity
and any additional amount payable in connection with those Securities or that
Security or portion thereof, as the case may be, as established with respect to
those Securities pursuant to the provisions of Section 2.3.
"Issuer" means Sysco International, Co., an unlimited liability company
organized under the laws of the Province of Nova Scotia, Canada and, subject to
Article IX, its successors and assigns.
"Issuer Order" means a written statement, request or order of the Issuer
signed in its name by two officers of the Issuer, and, in the case of an Issuer
Order pursuant to Section 2.4, 8.1 or 8.2, signed in the name of the Guarantor
by one officer of the Guarantor, and delivered to the Trustee.
"Judgment Currency" shall have the meaning set forth in Section 11.12.
"Non-U.S. Person" means a Person who is not a U.S. person, as defined in
Regulation S.
"Officer" means, with respect to any Person, the Chairman or Vice Chairman
of the Board of Directors, the President, any Vice President or the Treasurer of
such Person.
"Officers' Certificate" means a certificate signed by two officers of the
Issuer, and, in the case of an Officers' Certificate referred to in Section 2.1,
2.3, 2.4 or 8.4, signed by one Officer of the Guarantor, and delivered to the
Trustee. Each such certificate shall comply with Section 314 of the Trust
Indenture Act and include the statements provided for in Section 11.5.
"Offshore Global Security" means a Temporary Offshore Global Security or a
Permanent Offshore Global Security.
5
"Opinion of Counsel" means an opinion in writing signed by the General
Counsel of the Issuer or the Guarantor or by such other legal counsel who may be
an employee of or counsel to the Issuer and who shall be satisfactory to the
Trustee. Each such opinion shall comply with section 314 of the Trust Indenture
Act and include the statements provided for in Section 11.5.
"Original Issue Date" of any Security (or portion thereof) means the
earlier of (a) the date of such Security or (b) the date of any Security (or
portion thereof) for which such Security was issued (directly or indirectly) on
registration of transfer, exchange or substitution.
"Original Issue Discount Security" means any Security that provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the maturity thereat pursuant to Section 5.1.
"Outstanding" when used with reference to Securities, shall, subject to the
provisions of Section 7.4, mean, as of any particular time, all Securities
authenticated and delivered by the Trustee under this Indenture, except
(a) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or redemption of
which moneys or U.S. Government Obligations in the necessary amount (as
provided for in Section 10.1) shall have been deposited in trust with the
Trustee or with any paying agent (other than the Issuer) or shall have been
set aside, segregated and held in trust by the Issuer for the Holders of
such Securities (if the Issuer shall act as its own paying agent), provided
that if such Securities, or portions thereof, are to be redeemed prior to
the maturity thereof, notice of such redemption shall have been given as
herein provided, or provision satisfactory to the Trustee shall have been
made for giving such notice; and
(c) Securities which shall have been paid or in substitution for which
other Securities shall have been authenticated and delivered pursuant to
the terms of Section 2.9 (except with respect to any such Security as to
which proof satisfactory to the Trustee is presented that such Security is
held by a person in whose hands such Security is a legal, valid and binding
obligation of the Issuer).
In determining whether the Holders of the requisite principal amount of
Outstanding Securities of any or all series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding for such purposes shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon a declaration
of acceleration of the maturity thereof pursuant to Section 5.1.
"Periodic Offering" means an offering of Securities of a series from time
to time, the specific terms of which Securities, including, without limitation,
the rate or rates of interest, if any, thereon, the stated maturity or
maturities thereof and the redemption provisions, if any, with respect thereto,
are to be determined by the Issuer or its agents upon the issuance of such
Securities.
6
"Permanent Offshore Global Security" shall have the meaning set forth in
Section 2.1.
"Person" means any individual, corporation, limited liability company,
unlimited liability company, partnership, joint venture, association, joint
stock company, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"principal" whenever used with reference to the Securities or any Security
or any portion thereof, shall be deemed to include "and premium, if any," unless
otherwise indicated by the context.
"Principal Property" means the land, improvements, buildings and fixtures
(including any leasehold interest therein) constituting the principal corporate
office, any manufacturing plant, any manufacturing, distribution or research
facility or self-serve center (in each case, whether now owned or hereafter
acquired) which is owned or leased by the Guarantor or any Subsidiary and is
located within the United States of America or Canada unless the Board of
Directors of the Guarantor has determined in good faith that such office, plant,
facility or center is not of material importance to the total business conducted
by the Guarantor and its Subsidiaries taken as a whole. With respect to any Sale
and Lease-Back Transaction or series of related Sale and Lease-Back
Transactions, the determination of whether any property is a Principal Property
shall be determined by reference to all properties affected by such transaction
or series of transactions.
"Private Placement Legend" shall have the meaning set forth in Section
2.13.
"QIB" or "Qualified Institutional Buyer" means a "qualified institutional
buyer," as that term is defined in Rule 144A under the Securities Act.
"record date" shall have the meaning set forth in Section 2.7.
"Registered Global Security" means a Security, including any Offshore
Global Security, evidencing all or a part of a series of Registered Securities,
issued to the Depositary for such series in accordance with Section 2.4, and
bearing the legend prescribed in Section 2.4.
"Registered Security" means any Security registered on the Security
register of the Issuer.
"Registration Rights Agreement" means the Registration Rights Agreement
dated as of May 23, 2002 among the Issuer, the Guarantor and the Initial
Purchasers party thereto, as such agreement may be amended from time to time.
"Regulation S" means Regulation S under the Securities Act.
"Resale Restriction Termination Date" means, with respect to any Security,
the date that is two years (or such other period as may hereafter be provided
under Rule 144(k) under the Securities Act or any successor provision thereto as
permitting the resale by non-affiliates of Restricted Securities without
restriction) after the later of the original issue date in respect of such
7
Security or the last date on which the Issuer or any Affiliate of the Issuer was
the owner of such Security.
"Required Currency" shall have the meaning set forth in Section 11.12.
"Responsible Officer" when used with respect to the Trustee means the
chairman of the board of directors, any vice chairman of the board of directors,
the chairman of the trust committee, the chairman of the executive committee,
any vice chairman of the executive committee, the president, any vice president,
(whether or not designated by numbers or words added before or after the title
"vice president"), the cashier, the secretary, the treasurer, any trust officer,
any assistant trust officer, any assistant vice president, any assistant
cashier, any assistant secretary, any assistant treasurer, or any other officer
or assistant officer of the Trustee customarily performing functions similar to
those performed by the persons who at the time shall be such officers,
respectively, or to whom any corporate trust matter is referred because of his
knowledge of and familiarity with the particular subject.
"Restricted Period" means the 40-day distribution compliance period as
defined in Regulation S which, in the case of the Initial Notes, ends July 2,
2002.
"Restricted Security" has the meaning assigned to such term in Rule
144(a)(3) under the Securities Act; provided, however, that the Trustee shall be
entitled to receive, at its request, and conclusively rely on an Opinion of
Counsel with respect to whether any Security constitutes a Restricted Security.
"Rule 144A Security" means Securities purchased from the Issuer by a dealer
for resale to investors pursuant to Rule 144A of the Securities Act.
"Sale and Lease-Back Transaction" means any arrangement with any Person
providing for the leasing by the Guarantor or any Subsidiary of any Principal
Property which property has been or is to be sold or transferred by the
Guarantor or such Subsidiary to such Person.
"Securities Act" means the U.S. Securities Act of 1933, as amended.
"Security" or "Securities" has the meaning stated in the first recital of
this Indenture, or, as the case may be, Securities that have been authenticated
and delivered under this Indenture.
"Subsidiary" means any corporation of which outstanding voting stock having
the power to elect a majority of the board of directors of such corporation is
at the time owned, directly or indirectly, by the Guarantor, or by one or more
other Subsidiaries, or by the Guarantor and one or more other Subsidiaries. For
the purposes of this definition, "voting stock" means stock which ordinarily has
voting power for the election of directors, whether at all times or only so long
as no senior class of stock has such voting power by reason of any contingency.
"Temporary Offshore Global Security" shall have the meaning set forth in
Section 2.1.
8
"Trust Indenture Act" (except as otherwise provided in Sections 8.1 and
8.2) means the U.S. Trust Indenture Act of 1939, as amended.
"Trustee" means the Person identified as "Trustee" in the first paragraph
hereof and, subject to the provisions of Article VI, shall also include any
agent of such trustee and any successor trustee. "Trustee" shall also 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 the Securities of such series.
"Unregistered Security" means any Security other than a Registered
Security.
"U.S. Government Obligations" shall have the meaning set forth in Section
10.1(a).
"Yield to Maturity" means the yield to maturity (i) on a series of
Securities or (ii) if the Securities of a series are issuable from time to time,
on a Security of such series, calculated at the time of issuance of such series
in the case of clause (i) or at the time of issuance of such Security of such
series in the case of clause (ii), or, if applicable, at the most recent
redetermination of interest on such series or on such Security, and calculated
in accordance with the constant interest method or such other accepted financial
practice as is specified in the terms of such Security.
ARTICLE II
SECURITIES
2.1 Forms Generally. The Securities of each series and the Coupons, if any,
to be attached thereto shall be substantially in such form (not inconsistent
with this Indenture) as shall be established by or pursuant to one or more Board
Resolutions of the Issuer (and to the extent established pursuant to rather than
set forth in a Board Resolution of the Issuer, in an Officers' Certificate
detailing such establishment) or in one or more indentures supplemental hereto,
in each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture and may have
imprinted or otherwise reproduced thereon such legend or legends or
endorsements, not inconsistent with the provisions of this Indenture, as may be
required to comply with any law or with any rules or regulations pursuant
thereto, or with any rules of any securities exchange or to conform to general
usage, all as may be determined by the officers executing such Securities and
Coupons, if any, as evidenced by their execution of such Securities and Coupons.
The definitive Securities and Coupons, if any, shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Securities and
Coupons, if any, as evidenced by their execution of such Securities and Coupons,
if any.
Rule 144A Securities shall (i) be issued initially in the form of one or
more Registered Global Securities in substantially the form set forth in Exhibit
A, (ii) contain the legends set forth in Section 2.13 and (iii) be registered in
the name of the nominee of the Depositary, deposited with the Trustee, as
custodian for the Depositary or its nominee, duly executed by the Issuer and the
Guarantor and authenticated by the Trustee as provided in this Article.
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Securities offered and sold in offshore transactions in reliance on
Regulation S under the Securities Act shall (i) be issued initially in the form
of one or more temporary Registered Global Securities in substantially the form
set forth in Exhibit A, (ii) contain each of the legends set forth in Section
2.13 and (iii) be registered in the name of the nominee of the Depositary,
deposited with the Trustee, as custodian for the Depositary or its nominee, duly
executed by the Issuer and the Guarantor and authenticated by the Trustee as
hereinafter provided (a "Temporary Offshore Global Security"). At any time
following termination of the Restricted Period, upon receipt by the Trustee and
the Issuer of a certificate substantially in the form set forth in Exhibit B
hereto, one or more permanent Registered Global Securities substantially in the
form of Exhibit A hereto and containing the legend set forth in Section 2.13(c)
(a "Permanent Offshore Global Security"), duly executed by the Issuer and the
Guarantor and authenticated by the Trustee as hereinafter provided shall be
deposited with the Trustee, as custodian for the Depositary, and the registrar
shall reflect on its books and records the date and a decrease in the principal
amount of the Temporary Offshore Global Security in an amount equal to the
principal amount of the beneficial interest in the Temporary Offshore Global
Security transferred. Prior to the termination of the Restricted Period and
receipt of the certificate referred to above, beneficial interests in a
Temporary Offshore Global Security may be held only through Euroclear or
Clearstream. The aggregate principal amount of any Offshore Global Security may
from time to time be increased or decreased by adjustments made on the records
of the Trustee, as custodian for the nominee of the Depositary for the Offshore
Global Security.
No Permanent Offshore Global Securities may be issued until expiration of
the applicable Restricted Period and receipt by the Issuer and the Trustee from
the (x) proposed transferor of a certificate substantially in the form set forth
in Exhibit C or (y) holder of a beneficial interest being exchanged, of
certification that such holder is a non-U.S. person (within the meaning of
Regulation S under the Securities Act) or a U.S. person who acquired such
interest in a transaction exempt from the registration requirements of the
Securities Act.
Securities offered and sold in reliance on any exemption under the
Securities Act other than Regulation S and Rule 144A thereunder shall be issued
in the form of permanent certificated Securities substantially in the form set
forth in Exhibit A and shall contain the private placement legend as set forth
in Section 2.13.
Any debt securities of the Issuer issued pursuant to this Indenture in
exchange for, and in an aggregate principal amount at stated maturity equal to,
the Initial Notes, in compliance with the terms of the Registration Rights
Agreement and containing terms substantially identical to the Initial Notes
(except that (i) such Securities shall not contain terms with respect to
transfer restrictions and shall be registered under the Securities Act and (ii)
certain provisions relating to liquidated damages thereon shall be eliminated)
(each, an "Exchange Note") shall be issued substantially in the form set forth
in Exhibit A and in the form of one or more Registered Global Securities.
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2.2 Form of Trustee's Certificate of Authentication. The Trustee's
certificate of authentication on all Securities shall be in substantially the
following form:
"This is one of the Securities referred to in the within-mentioned
Indenture.
WACHOVIA BANK, NATIONAL ASSOCIATION, as Trustee
Dated: By:
--------------------- ---------------------------------------------
Authorized Signatory"
If at any time there shall be an Authenticating Agent appointed with
respect to any series of Securities, then the Authenticating Agent's certificate
of authentication to be borne by the Securities of each such series shall be
substantially as follows:
"This is one of the Securities referred to in the within-mentioned
Indenture.
WACHOVIA BANK, NATIONAL ASSOCIATION, as Trustee
By:
----------------------------------------------
Authorized Officer"
2.3 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 and each such series
shall rank equally and pari passu with all other unsecured and unsubordinated
debt of the Issuer. There shall be established by or pursuant to one or more
Board Resolutions of the Issuer (and to the extent established pursuant to
rather than set forth in a Board Resolution of the Issuer, in an Officers'
Certificate detailing such establishment) or in one or more indentures
supplemental hereto, prior to the initial issuance of Securities of any series,
(1) the designation of the Securities of the series, which shall
distinguish the Securities of the series from the Securities of all other
series;
(2) any limit upon the aggregate principal amount of the Securities of
the series that 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 2.8, 2.9, 2.11, 8.5 or 12.3);
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(3) if other than Dollars, the coin or currency or units thereof in
which the Securities of that series are denominated (including, but not
limited to, any Foreign Currency or ECU);
(4) the date or dates on which the principal of the Securities of the
series is payable;
(5) the rate or rates at which the Securities of the series shall bear
interest, if any, the date or dates from which such interest shall accrue,
on which such interest shall be payable and (in the case of Registered
Securities) on which a record shall be taken for the determination of
Holders to whom interest is payable and/or the method by which such rate or
rates or date or dates shall be determined;
(6) the method by which amounts payable in respect of principal,
premium, if any, or interest, if any, on such Securities may be calculated,
and any currencies, commodities or indices, or value, rate or price,
relevant to such calculation;
(7) the place or places where the principal of and any interest on
Securities of the series shall be payable (if other than as provided in
Section 3.2);
(8) the right, if any, of the Issuer to redeem or cause to be redeemed
Securities of the series, in whole or in part, at its option and the period
or periods within which, the price or prices (and/or method by which such
price or prices shall be determined) at which, and any terms and conditions
upon which, and the manner in which (if different from the provision of
Article XII hereof) Securities of the series may be so redeemed, pursuant
to any sinking fund or otherwise;
(9) the obligation, if any, of the Issuer to redeem, purchase or repay
Securities of the series, in whole or in part, pursuant to any mandatory
redemption, sinking fund or analogous provisions or at the option of a
Holder thereof and the price or prices (and/or the method by which such
price or prices shall be determined) at which, the period or periods within
which, and any terms and conditions upon which, and the manner in which (if
different from the provisions of Article XII hereof) Securities of the
series shall be redeemed, purchased or repaid pursuant to such obligation;
(10) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be
issuable;
(11) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof;
(12) if other than the coin or currency or units thereof in which the
Securities of that series are denominated, the coin or currency or units
thereof in which payment of the principal of or interest on the Securities
of such series shall be payable;
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(13) if the principal of or interest on the Securities of such series
are to be payable, at the election of the Issuer or a Holder thereof, in a
coin or currency or units thereof other than that in which the Securities
are denominated, the period or periods within which, and the terms and
conditions upon which, such election may be made;
(14) if the amount of payments of principal of and/or interest on the
Securities of the series may be determined with reference to the value or
price of any one or more commodities, currencies or indices, the manner in
which such amounts will be determined;
(15) whether the Securities of the series will be issuable as
Registered Securities (and if so, whether such Securities will be issuable
as Registered Global Securities) or Unregistered Securities (with or
without Coupons), or any combination of the foregoing, any restrictions
applicable to the offer, sale or delivery of Unregistered Securities or the
payment of interest thereon and, if other than as provided in Section 2.8,
the terms upon which Unregistered Securities of any series may be exchanged
for Registered Securities of such series and vice versa;
(16) whether and under what circumstances the Issuer will pay
additional amounts on the Securities of the series in respect of any tax,
assessment or governmental charge withheld or deducted and, if so, whether
the Issuer will have the option to redeem such Securities rather than pay
such additional amounts;
(17) if the Securities of such series are to be issuable in definitive
form (whether upon original issue or upon exchange of a temporary Security
of such series) only upon receipt of certain certificates or other
documents or satisfaction of other conditions, the form and terms of such
certificates, documents or conditions;
(18) any trustees, depositaries, authenticating or paying agents,
transfer agents or registrars or any other agents with respect to the
Securities of such series;
(19) any other events of default or covenants not set forth herein
with respect to the Securities of such series;
(20) the terms and conditions upon which and the manner in which
Securities of the series may be defeased or discharged if different from
the provisions set forth under the defeasance provision herein;
(21) offices at which presentations and demands may be made and
notices may be served, if other than the Corporate Trust Office of the
Trustee;
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(22) if the Securities of the series are to be offered and sold in
reliance on Rule 144A under the Securities Act and entitled to the benefit
of Section 4.2(b); and
(23) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and Coupons, if any, appertaining thereto,
shall be substantially identical, except in the case of Registered Securities as
to denomination and except as may otherwise be provided by or pursuant to the
Board Resolution or Officers' Certificate referred to above or as set forth in
any such indenture supplemental hereto. All Securities of any one series need
not be issued at the same time and may be issued from time to time, consistent
with the terms of this Indenture, if so provided by or pursuant to such Board
Resolution, such Officers' Certificate or in any such indenture supplemental
hereto.
2.4 Authentication and Delivery of Securities. The Issuer may deliver
Securities of any series having attached thereto appropriate Coupons, if any,
executed by the Issuer and the Guarantor, to the Trustee for authentication
together with the applicable documents referred to below in this Section, and
the Trustee shall thereupon authenticate and deliver such Securities to or upon
the order of the Issuer (contained in the Issuer Order referred to below in this
Section) or pursuant to such procedures acceptable to the Trustee as may be
specified from time to time by an Issuer Order. The maturity date, original
issue date, interest rate and any other terms of the Securities of such series
and Coupons, if any, appertaining thereto shall be determined by or pursuant to
such Issuer Order and procedures. If provided for in such procedures, such
Issuer Order may authorize authentication and delivery pursuant to oral or
electronic instructions from the Issuer or its duly authorized agent, which
instructions shall be promptly confirmed in writing. In authenticating such
Securities and accepting the additional responsibilities under this Indenture in
relation to such Securities, the Trustee shall be entitled to receive (in the
case of subparagraphs (b), (c) and (d) below only at or before the time of the
first request of the Issuer to the Trustee to authenticate Securities of such
series) and (subject to Section 6.1) shall be fully protected in relying upon,
unless and until such documents have been superseded or revoked:
(a) an Issuer Order requesting such authentication and setting forth
delivery instructions if the Securities and Coupons, if any, are not to be
delivered to the Issuer, provided that, with respect to Securities of a
series subject to a Periodic Offering, (i) such Issuer Order may be
delivered by the Issuer to the Trustee prior to the delivery to the Trustee
of such Securities for authentication and delivery, (ii) the Trustee shall
authenticate and deliver Securities of such series for original issue from
time to time, in an aggregate principal amount not exceeding the aggregate
principal amount established for such series, pursuant to an Issuer Order
or pursuant to procedures acceptable to the Trustee as may be specified
from time to time by an Issuer Order, (iii) the maturity date or dates,
original issue date or dates, interest rate or rates and any other terms of
Securities of such series shall be determined by an Issuer Order or
pursuant to such procedures and (iv) if provided for in such procedures,
such Issuer Order may authorize authentication and delivery pursuant to
oral or electronic instructions from the Issuer or its duly authorized
agent or agents, which oral instructions shall be promptly confirmed in
writing;
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(b) any Board Resolution, Officers' Certificate and/or executed
supplemental indenture referred to in Sections 2.1 and 2.3 by or pursuant
to which the forms and terms of the Securities and Coupons, if any, were
established;
(c) an Officers' Certificate setting forth the form or forms and terms
of the Securities and Coupons, if any, stating that the form or forms and
terms of the Securities and Coupons, if any, have been established pursuant
to Sections 2.1 and 2.3 and comply with this Indenture, and covering such
other matters as the Trustee may reasonably request; and
(d) at the option of the Issuer, either an Opinion of Counsel, or a
letter addressed to the Trustee permitting it to rely on an Opinion of
Counsel, substantially to the effect that:
(1) the forms and terms of the Securities and Coupons, if any,
have been duly authorized and established in conformity with the
provisions of this Indenture;
(2) when the Securities and Coupons, if any, have been executed
by the Issuer and the Guarantor and authenticated by the Trustee in
accordance with the provisions of this Indenture and delivered to and
paid for by the purchasers thereof, they will be entitled to the
benefits of this Indenture, will have been duly issued under this
Indenture and will be valid and binding obligations of the Issuer, and
the related Guarantees will be valid and binding obligations of the
Guarantor, enforceable against the Issuer and the Guarantor,
respectively, in accordance with their respective terms; and
(3) the execution and delivery by the Issuer of, and the
performance by the Issuer of its obligations under, the Securities and
Coupons, if any, will not contravene any provision of the certificate
of incorporation or bylaws of the Issuer or any agreement or other
instrument binding upon the Issuer or, to the best of such counsel's
knowledge, but without any independent investigation, any judgment,
order or decree of any governmental body, agency or court having
jurisdiction over the Issuer, and no consent, approval or
authorization of any governmental body or agency is required for the
performance by the Issuer of its obligations under the Securities and
Coupons, if any, except such as are specified and have been obtained
and such as may be required by the securities or blue sky laws of the
various states in connection with the offer and sale of the Securities
and Coupons, if any.
In rendering such opinions, such counsel may qualify any opinions as to
enforceability by stating that such enforceability may be limited by bankruptcy,
insolvency, reorganization, liquidation, moratorium and other similar laws
affecting the rights and remedies of creditors and is subject to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law). Such counsel may rely, as to all matters
except those governed by the Federal law of the United States, upon opinions of
15
other counsel (copies of which shall be delivered to the Trustee), who shall be
counsel reasonably satisfactory to the Trustee, in which case the opinion shall
state that such counsel believes he and the Trustee are entitled so to rely.
Such counsel may also state that, insofar as such opinion involves factual
matters, he has relied, to the extent he deems proper, upon certificates of
officers of the Issuer and its subsidiaries and certificates of public
officials.
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 by the Issuer or if the
Trustee in good faith by its board of directors or board of trustees, executive
committee, or a trust committee of directors or trustees or Responsible Officers
shall determine that such action would expose the Trustee to personal liability
to existing Holders or would affect the Trustee's own rights, duties or
immunities under the Securities, this Indenture or otherwise.
If the Issuer shall establish pursuant to Section 2.3 that the Securities
of a series are to be issued in the form of one or more Registered Global
Securities, then the Issuer and the Guarantor shall execute and the Trustee
shall, in accordance with this Section and the Issuer Order with respect to such
series, authenticate and deliver one or more Registered Global Securities that
(i) shall represent and shall be denominated in an amount equal to the aggregate
principal amount of all or a portion of the Securities of such series issued and
not yet canceled or exchanged, (ii) shall be registered in the name of the
Depositary for such Registered Global Security or Securities or the nominee of
such Depositary, (iii) shall be delivered by the Trustee to such Depositary or
pursuant to such Depositary's instructions and (iv) shall bear a legend
substantially to the following effect:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE
NAME OF A DEPOSITARY 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 LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
Each Depositary designated pursuant to Section 2.3 must, at the time of its
designation and at all times while it serves as Depositary, be a clearing agency
registered under the Exchange Act and any other applicable law or regulation.
2.5 Execution of Securities. The Securities and, if applicable, each Coupon
appertaining thereto shall be signed on behalf of the Issuer by an officer of
the Issuer and on behalf of the Guarantor, by an officer of the Guarantor, under
their respective corporate seals (except in the case of Coupons) which may, but
need not, be attested. Such signatures may be the manual or facsimile signatures
of the present or any future such officers. The seal may be in the form of a
facsimile thereof and may be impressed, affixed, imprinted or otherwise
reproduced on the Securities. Typographical and other minor errors or defects in
16
any such reproduction of the seal or any such signature shall not affect the
validity or enforceability of any Security that has been duly authenticated and
delivered by the Trustee.
In case any officer of the Issuer or of the Guarantor, as the case may be,
who shall have signed any of the Securities or Coupons, if any, shall cease to
be such officer before the Security or Coupon so signed (or the Security to
which the Coupon so signed appertains) shall be authenticated and delivered by
the Trustee or disposed of by the Issuer, such Security or Coupon nevertheless
may be authenticated and delivered or disposed of as though the person who
signed such Security or Coupon had not ceased to be such officer of the Issuer
or of the Guarantor, as the case may be; and any Security or Coupon may be
signed on behalf of the Issuer or of the Guarantor, as the case may be, by such
persons as, at the actual date of the execution of such Security or Coupon,
shall be the proper officers of the Issuer or of the Guarantor, as the case may
be, although at the date of the execution and delivery of this Indenture any
such person was not such an officer.
2.6 Certificate of Authentication. Except as provided in Section 6.13
hereof, only such Securities as shall bear thereon a certificate of
authentication substantially in the form hereinbefore recited, executed by the
Trustee by the manual signature of one of its authorized officers, shall be
entitled to the benefits of this Indenture and the related Guarantees or be
valid or obligatory for any purpose. No Coupon shall be entitled to the benefits
of this Indenture and the related Guarantees or shall be valid and obligatory
for any purpose until the certificate of authentication on the Security to which
such Coupon appertains shall have been duly executed by the Trustee. The
execution of such certificate by the Trustee upon any Security executed by the
Issuer and by the Guarantor shall be conclusive evidence that the Security so
authenticated has been duly authenticated and delivered hereunder and that the
Holder is entitled to the benefits of this Indenture and the related Guarantees.
2.7 Denomination and Date of Securities; Payments of Interest. The
Securities of each series shall be issuable as Registered Securities or
Unregistered Securities in denominations as shall be specified pursuant to
Section 2.3 or, if not so established, in denominations of $1,000 and any
integral multiple thereof. The Securities of each series shall be numbered,
lettered or otherwise distinguished in such manner or in accordance with such
plan as the officers of the Issuer executing the same may determine with the
approval of the Trustee, as evidenced by the execution and authentication
thereof.
Each Registered Security shall be dated the date of its authentication.
Each Unregistered Security shall be dated as specified pursuant to Section 2.3.
The Securities of each series shall bear interest, if any, from the date, and
such interest shall be payable on the dates, established as contemplated by
Section 2.3.
The Person in whose name any Registered Security of any series is
registered at the close of business on any record date applicable to such series
with respect to any interest payment date for such series shall be entitled to
receive the interest, if any, payable on such interest payment date
notwithstanding any transfer or exchange of such Registered Security subsequent
to the record date and prior to such interest payment date, except in the case
of any such transfer or exchange if and to the extent the Issuer shall default
in the payment of the interest due on such interest payment date for such
series, in which case such defaulted interest shall be paid by the Issuer or the
Guarantor to the Persons in whose names Outstanding Registered Securities for
such series are registered at the close of business on a subsequent record date
(which shall be not less than five Business Days prior to the date of payment of
17
such defaulted interest) established by notice given by mail by or on behalf of
the Issuer or the Guarantor to the Holders of Registered Securities not less
than 15 days preceding such subsequent record date. The term "record date" as
used with respect to any interest payment date (except a date for payment of
defaulted interest) for the Securities of any series shall mean the date
specified as such in the terms of the Registered Securities of such series, or,
if no such date is so specified, if such interest payment date is the first day
of a calendar month, the fifteenth day of the next preceding calendar month or,
if such interest payment date is the fifteenth day of a calendar month, the
first day of such calendar month, whether or not such record date is a Business
Day.
2.8 Registration, Transfer and Exchange. (a) General Procedures. The Issuer
will keep at each office or agency to be maintained for the purpose as provided
in Section 3.2 for each series of Securities a register or registers in which,
subject to such reasonable regulations as it may prescribe, it will provide for
the registration of Registered Securities of such series and the registration of
transfer of Registered Securities of such series. Such register shall be in
written form in the English language or in any other form capable of being
converted into such form within a reasonable time. At all reasonable times such
register or registers shall be open for inspection by the Trustee.
Upon due presentation for registration of transfer of any Registered
Security of any series at any such office or agency to be maintained for the
purpose as provided in Section 3.2, the Issuer and the Guarantor shall execute
and the Trustee shall authenticate and deliver in the name of the transferee or
transferees a new Registered Security or Registered Securities of the same
series, of like tenor, in authorized denominations for a like aggregate
principal amount.
Unregistered Securities (except for any temporary global Unregistered
Securities) and Coupons (except for Coupons attached to any temporary global
Unregistered Securities) shall be transferable by delivery.
At the option of the Holder thereof, any Security may be exchanged as
provided below for a Security of the same series, in authorized denominations,
of like tenor and in an equal aggregate principal amount upon surrender of such
Security at an office or agency to be maintained for such purpose in accordance
with Section 3.2 or as specified pursuant to Section 2.3, and the Issuer and the
Guarantor shall execute, and the Trustee shall authenticate and deliver in
exchange therefor, the Security or Securities which the Holder making the
exchange shall be entitled to receive bearing a number or other distinguishing
symbol not contemporaneously outstanding. Subject to the foregoing, (i) a
Registered Security of any series (other than a Registered Global Security,
except as set forth below) may be exchanged for a Registered Security or
Securities of the same series; (ii) if the Securities of any Series are issued
in both registered and unregistered form, except as otherwise specified pursuant
to Section 2.3, an Unregistered Security may be exchanged for a Registered
Security or Securities of the same series, but a Registered Security may not be
exchanged for an Unregistered Security or Securities; and (iii) if Unregistered
18
Securities of any series are issued in more than one authorized denomination,
except as otherwise specified pursuant to Section 2.3, any such Unregistered
Security may be exchanged for an Unregistered Security or Securities of the same
series; provided that in connection with the surrender of any Unregistered
Securities that have Coupons attached, all unmatured Coupons and all matured
Coupons in default must be surrendered with the Securities being exchanged.
All Registered Securities presented for registration of transfer, exchange,
redemption, repurchase or payment shall (if so required by the Issuer or the
Trustee) be duly endorsed by, or be accompanied by a written instrument or
instruments of transfer in form satisfactory to the Issuer and the Trustee duly
executed by, the Holder or his attorney duly authorized in writing.
The Issuer may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any exchange or
registration of transfer of Securities. No service charge shall be made for any
such transaction.
The Issuer shall not be required to exchange or register a transfer of (a)
any Securities of any series for a period of 15 days next preceding the first
mailing of notice of redemption of Securities of such series to be redeemed or
(b) any Securities selected, called or being called for redemption, in whole or
in part, except, in the case of any Security to be redeemed in part, the portion
thereof not so to be redeemed.
(b) Book-entry Provisions for Global Securities. Notwithstanding
any other provision of this Section 2.8, unless and until it is
exchanged in whole or in part for Securities in definitive registered
form, a Registered Global Security representing all or a portion of
the Securities of a series may not be transferred except as a whole by
the Depositary for such series to a nominee of such Depositary or by a
nominee of such Depositary to such Depositary or another nominee of
such Depositary or by such Depositary or any such nominee to a
successor Depositary for such series or a nominee of such successor
Depositary.
Neither the Issuer, the Guarantor, the Trustee, nor any of their agents
shall have any responsibility or liability for any aspect of the records
relating to, or payments made on account of beneficial ownership interests of, a
Registered Global Security, or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests. Members of, or
participants in, the Depositary ("Agent Members") shall have no rights under
this Indenture with respect to any Registered Global Security, and the
Depositary may be treated by the Issuer, the Guarantor, the Trustee and any
agent of the Issuer, the Guarantor or the Trustee as the absolute owner of such
Registered Global Security for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Issuer, the Guarantor, the Trustee
or any agent of the Issuer, the Guarantor or the Trustee from giving effect to
any written certification, proxy or other authorization furnished by the
Depositary or impair, as between the Depositary and its Agent Members, the
operation of customary practices governing the exercise of the rights of a
beneficial owner of any Security. The Holder of a Registered Global Security may
grant proxies and otherwise authorize any person, including Agent Members and
persons that may hold interests through Agent Members, to take any action which
19
a Holder is entitled to take under this Indenture or the Securities. Interests
of beneficial owners in a Registered Global Security may be transferred in
accordance with the applicable rules and procedures of the Depositary and the
provisions of this Section.
If at any time the Depositary for any Registered Securities of a series
represented by one or more Registered Global Securities notifies the Issuer that
it is unwilling or unable to continue as Depositary for such Registered
Securities or if at any time the Depositary for such Registered Securities shall
no longer be eligible under Section 2.4, the Issuer shall appoint a successor
Depositary eligible under Section 2.4 with respect to such Registered
Securities. If a successor Depositary eligible under Section 2.4 for such
Registered Securities is not appointed by the Issuer within 90 days after the
Issuer receives such notice or becomes aware of such ineligibility, the Issuer's
election pursuant to Section 2.3 that such Registered Securities be represented
by one or more Registered Global Securities shall no longer be effective and the
Issuer and the Guarantor will execute, and the Trustee, upon receipt of an
Officers' Certificate for the authentication and delivery of definitive
Securities of such series, will authenticate and deliver, Securities of such
series in definitive registered form without Coupons, in any authorized
denominations, of like tenor, in an aggregate principal amount equal to the
principal amount of the Registered Global Security or Securities representing
such Registered Securities in exchange for such Registered Global Security or
Securities.
The Issuer may at any time and in its sole discretion determine that the
Registered Securities of any series issued in the form of one or more Registered
Global Securities shall no longer be represented by a Registered Global Security
or Securities. In such event the Issuer and the Guarantor will execute, and the
Trustee, upon receipt of an Officers' Certificate for the authentication and
delivery of definitive Securities of such series, will authenticate and deliver,
Securities of such series in definitive registered form without Coupons, in any
authorized denominations, of like tenor, in an aggregate principal amount equal
to the principal amount of the Registered Global Security or Securities
representing such Registered Securities, in exchange for such Registered Global
Security or Securities.
If specified by the Issuer pursuant to Section 2.3 with respect to
Securities represented by a Registered Global Security, the Depositary for such
Registered Global Security may surrender such Registered Global Security in
exchange in whole or in part for Securities of the same series in definitive
registered form on such terms as are acceptable to the Issuer and such
Depositary. Thereupon, the Issuer and the Guarantor shall execute, and the
Trustee shall authenticate and deliver, without service charge,
(i) to the Person specified by such Depositary a new Registered
Security or Securities of the same series, of any authorized
denominations as requested by such Person, of like tenor, in an
aggregate principal amount equal to and in exchange for such Person's
beneficial interest in the Registered Global Security; and
(ii) to such Depositary a new Registered Global Security in a
denomination equal to the difference, if any, between the principal
amount of the surrendered Registered Global Security and the aggregate
principal amount of Registered Securities authenticated and delivered
pursuant to clause (i) above.
20
Upon the exchange of a Registered Global Security for Securities in
definitive registered form without coupons, of like tenor, in authorized
denominations, such Registered Global Security shall be canceled by the Trustee
or an agent of the Issuer or the Trustee. Securities in definitive registered
form without coupons issued in exchange for a Registered Global Security
pursuant to this Section 2.8 shall be registered in such names and in such
authorized denominations as the Depositary for such Registered Global Security,
pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee or an agent of the Issuer or the Trustee. The Trustee
or such agent shall deliver such Securities to or as directed by the Persons in
whose names such Securities are so registered.
All Securities issued upon any transfer or exchange of Securities shall be
valid obligations of the Issuer and, in the case of the Guarantees, of the
Guarantor, evidencing the same debt, and entitled to the same benefits under
this Indenture and the Guarantees, as the Securities surrendered upon such
transfer or exchange.
Notwithstanding anything herein or in the terms of any series of Securities
to the contrary, none of the Issuer, the Trustee or any agent of the Issuer or
the Trustee (any of which, other than the Issuer, shall rely on an Officers'
Certificate and an Opinion of Counsel) shall be required to exchange any
Unregistered Security for any Outstanding Registered Security if such exchange
would result in adverse tax consequences to the Issuer (such as, for example,
the inability of the Issuer to deduct from its income, as computed for tax
purposes, the interest payable on the Unregistered Securities) under then
applicable tax laws.
2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities. In case any
temporary or definitive Security or any Coupon appertaining to any Security
shall become mutilated, defaced or be destroyed, lost or stolen, in the
discretion of the Issuer and the Guarantor, the Issuer and the Guarantor may
execute, and upon the written request of any officer of the Issuer, the Trustee
shall authenticate and deliver a new Security of the same series, of like tenor,
bearing a number or other distinguishing symbol not contemporaneously
outstanding, in exchange and substitution for the mutilated or defaced Security,
or in lieu of and in substitution for the Security so destroyed, lost or stolen
with Coupons corresponding to the Coupons appertaining to the Securities so
mutilated, defaced, destroyed, lost or stolen, or in exchange or substitution
for the Security to which such mutilated, defaced, destroyed, lost or stolen
Coupon appertained, with Coupons appertaining thereto corresponding to the
Coupons so mutilated, defaced, destroyed, lost or stolen. In every case the
applicant for a substitute Security or Coupon shall furnish to the Issuer and
the Guarantor and to the Trustee and any agent of the Issuer and the Guarantor
or the Trustee such security or indemnity as may be required by them to
indemnify and defend and to save each of them harmless and, in every case of
destruction, loss or theft, evidence to their satisfaction of the destruction,
loss or theft of such Security or Coupon and of the ownership thereof and in the
case of mutilation or defacement shall surrender the Security and related
Coupons to the Trustee or such agent.
Upon the issuance of any substitute Security or Coupon, the Issuer 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) or its agent connected therewith. In case
21
any Security or Coupon which has matured or is about to mature or has been
called for redemption in full shall become mutilated or defaced or be destroyed,
lost or stolen, the Issuer may instead of issuing a substitute Security, pay or
authorize the payment of the same or the relevant Coupon (without surrender
thereof except in the case of a mutilated or defaced Security or Coupon), if the
applicant for such payment shall furnish to the Issuer and the Guarantor and to
the Trustee and any agent of the Issuer and the Guarantor or the Trustee such
security or indemnity as any of them may require to save each of them harmless,
and, in every case of destruction, loss or theft, the applicant shall also
furnish to the Issuer and the Guarantor and the Trustee and any agent of the
Issuer and the Guarantor or the Trustee evidence to their satisfaction of the
destruction, loss or theft of such Security or Coupon and of the ownership
thereof.
Every substitute Security or Coupon of any series issued pursuant to the
provisions of this Section by virtue of the fact that any such Security or
Coupon is destroyed, lost or stolen shall constitute an additional contractual
obligation of the Issuer, whether or not the destroyed, lost or stolen Security
or Coupon shall be at any time enforceable by anyone and shall be entitled to
all the benefits of (but shall be subject to all the limitations of rights set
forth in) this Indenture equally and proportionately with any and all other
Securities or Coupons of such series duly authenticated and delivered hereunder.
All Securities and Coupons shall be held and owned upon the express condition
that, to the extent permitted by law, the foregoing provisions are exclusive
with respect to the replacement or payment of mutilated, defaced or destroyed,
lost or stolen Securities and Coupons and shall preclude any and all other
rights or remedies notwithstanding any law or statute existing or hereafter
enacted to the contrary with respect to the replacement or payment of negotiable
instruments or other securities without their surrender.
2.10 Cancellation of Securities; Destruction Thereof. All Securities and
Coupons surrendered for payment, repurchase, redemption, registration of
transfer or exchange, or for credit against any payment in respect of a sinking
or analogous fund, if surrendered to the Issuer or any agent of the Issuer or
the Trustee or any agent of the Trustee, shall be delivered to the Trustee or
its agent for cancellation or, if surrendered to the Trustee, shall be cancelled
by it; and no Securities or Coupons shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Indenture. The Trustee or
its agent shall destroy cancelled Securities and Coupons held by it and deliver
a certificate of destruction to the Issuer upon written request. If the Issuer
or its agent shall acquire any of the Securities or Coupons, such acquisition
shall not operate as a redemption or satisfaction of the indebtedness
represented by such Securities or Coupons unless and until the same are
delivered to the Trustee or its agent for cancellation.
2.11 Temporary Securities. Pending the preparation of definitive Securities
for any series, the Issuer and the Guarantor may execute and the Trustee shall
authenticate and deliver temporary Securities for such series (printed,
lithographed, typewritten or otherwise reproduced, in each case in form
satisfactory to the Trustee). Temporary Securities of any series shall be
issuable as Registered Securities without coupons, or as Unregistered Securities
with or without coupons attached thereto, of any authorized denomination, and
substantially in the form of the definitive Securities of such series but with
such omissions, insertions and variations as may be appropriate for temporary
Securities, all as may be determined by the Issuer with the concurrence of the
Trustee as evidenced by the execution and authentication thereof. Temporary
Securities may contain such references to any provisions of this Indenture as
may be appropriate. Every temporary Security shall be executed by the Issuer and
the Guarantor and be authenticated by the Trustee upon the same conditions and
in substantially the same manner, and with like effect, as the definitive
22
Securities. Without unreasonable delay, the Issuer and the Guarantor shall
execute and shall furnish definitive Securities of such series and thereupon
temporary Securities of such series may be surrendered in exchange therefor
without charge, in the case of Registered Securities, at each office or agency
to be maintained by the Issuer for that purpose pursuant to Section 3.2 and, in
the case of Unregistered Securities, at any office or agency maintained by the
Issuer for such purpose as specified pursuant to Section 2.3, and the Trustee
shall authenticate and deliver in exchange for such temporary Securities of such
series an equal aggregate principal amount of definitive Securities of the same
series having authorized denominations and, in the case of Unregistered
Securities, having attached thereto any appropriate Coupons. Until so exchanged,
the temporary Securities of any series shall be entitled to the same benefits
under this Indenture as definitive Securities of such series, unless otherwise
established pursuant to Section 2.3. The provisions of this Section are subject
to any restrictions or limitations that may be established with respect to the
Securities of any series pursuant to Section 2.3 (including any provision that
Unregistered Securities of such series initially be issued in the form of a
single global Unregistered Security to be delivered to a depositary or an agency
located outside the United States and the procedures pursuant to which
definitive or global Unregistered Securities of such series would be issued in
exchange for such temporary global Unregistered Security).
2.12 CUSIP Numbers. The Issuer in issuing the Securities may use "CUSIP"
numbers (if then generally in use), and, if so, the Trustee shall use "CUSIP"
numbers in notices of redemption as a convenience to Holders; provided that any
such notice may state that no representation is made as to the correctness of
such numbers either as printed on the Securities or as contained in any notice
of a redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such notice of redemption shall not
be affected by any defect in or omission of such numbers.
2.13 Certain Restrictive Legends.
(a) Private Placement Legend. Except as set forth in Section 2.14(i),
unless and until an Initial Note is (i) sold pursuant to an effective
registration statement, whether pursuant to the Registration Rights
Agreement or otherwise or (ii) exchanged for an Exchange Note in an
exchange offer pursuant to an effective exchange offer registration
statement pursuant to the Registration Rights Agreement, (A) any Registered
Global Security representing such Initial Note or any definitive
certificated Security representing such Initial Note shall bear the
following legend set forth below (the "Private Placement Legend") on the
face thereof and (B) any Offshore Global Security representing such Initial
Note shall bear the Private Placement Legend on the face thereof until the
termination of the Restricted Period and receipt by the Issuer and the
Trustee of a certificate substantially in the form provided in Exhibit B
with respect to the entire principal amount of such Temporary Offshore
Global Security:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE
23
OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT
TO, SUCH REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS
OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS
PURCHASED SECURITIES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH
SECURITY, PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION DATE")
THAT IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF OR
THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS
THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY:
(A) TO THE ISSUER OR THE GUARANTOR,
(B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT,
(C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A,
(D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE
UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT,
(E) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE
MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES
ACT THAT IS AN INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING THE
SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN
INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM
PRINCIPAL AMOUNT OF THE SECURITIES OF $250,000, FOR INVESTMENT
PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION
WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR
24
(F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE
ISSUER'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR
TRANSFER PURSUANT TO CLAUSE (D), (E) OR (F) TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE
REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE.
(b) Effect of Private Placement Legend. By its acceptance of any
Security bearing the Private Placement Legend, each Holder of such Security
acknowledges the restrictions on transfer of such Security set forth in
this Indenture and in the Private Placement Legend and agrees that it will
transfer such Security only as provided in this Indenture.
(c) Regulation S Legend. Each Temporary Offshore Global Security shall
bear the following legend on the face thereof:
THIS NOTE IS A TEMPORARY GLOBAL SECURITY. PRIOR TO THE EXPIRATION
OF THE RESTRICTED PERIOD APPLICABLE HERETO, BENEFICIAL INTERESTS
HEREIN MAY NOT BE HELD BY ANY PERSON OTHER THAN (1) A NON-U.S.
PERSON OR (2) A U.S. PERSON WHO PURCHASED SUCH INTEREST IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE U.S. SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), PURSUANT TO RULE 144A
THEREUNDER. BENEFICIAL INTERESTS HEREIN ARE NOT EXCHANGEABLE FOR
PHYSICAL NOTES OTHER THAN A PERMANENT GLOBAL NOTE IN ACCORDANCE
WITH THE TERMS OF THE INDENTURE. TERMS IN THIS LEGEND ARE USED AS
USED IN REGULATION S UNDER THE SECURITIES ACT.
2.14 Transfer Restrictions and Other Transfer Provisions. The provisions of
this Section 2.14 shall apply to all transfers involving any physical notes and
any beneficial interest in any Registered Global Security. A Security that is a
Restricted Security may not be transferred other than as provided in this
Section 2.14. A beneficial interest in a Registered Global Security that is a
Restricted Security may not be exchanged for a beneficial interest in another
Registered Global Security other than through a transfer in compliance with this
Section 2.14. Unless and until an Initial Note is sold pursuant to an effective
registration statement, whether pursuant to the Registration Rights Agreement or
otherwise, or is exchanged for an Exchange Note in the exchange offer
contemplated by the Registration Rights Agreement pursuant to an effective
registration statement, or the Resale Restriction Termination Date has occurred
with respect to such Initial Note and such Initial Note is not then held by an
Affiliate of the Issuer, the following provisions shall apply with respect to
such Initial Note:
25
(a) Transfers to Non-QIB Institutional Accredited Investors. With
respect to the registration of any proposed transfer of a Security that is
a Restricted Security to any Institutional Accredited Investor that is not
a QIB,
(i) the registrar shall register such transfer
(A) if it complies with all other applicable requirements of this
Indenture;
(B) the proposed transferee has delivered to the registrar a
certificate substantially in the form of Exhibit D, and such transfer
is in respect of an aggregate principal amount of Securities of not
less than $250,000; and
(C) if the proposed transferor is an Agent Member or is acting
through an Agent Member holding a beneficial interest in a Registered
Global Security, upon receipt by the registrar of written instructions
given in accordance with the Depositary's and the registrar's
procedures; and
(ii) the registrar shall (A) reflect on its books and records (and
make a notation on the relevant Registered Global Security of) the date and
a decrease in the principal amount of the relevant Registered Global
Security in an amount equal to the principal amount of the beneficial
interest in the relevant Registered Global Security to be transferred or
(B) cancel the physical note so transferred and deliver to the transferee
one or more physical notes of like tenor and aggregate principal amount.
Each of the Issuer, the Guarantor and the Trustee may require additional
opinions, certifications or other evidence as may be reasonably required to
confirm that any such proposed transfer is being made in compliance with the
Securities Act and applicable state securities laws.
(b) Transfers to QIBs. With respect to the registration of any
proposed transfer of a Security that is a Restricted Security to a QIB,
(i) the registrar shall register such transfer
(A) if it complies with all other applicable requirements of this
Indenture;
(B) the proposed transferor has checked the box provided for on
the form of such Security stating, or has otherwise certified to the
Issuer and the registrar in writing, that the sale has been made in
compliance with the provisions of Rule 144A to a transferee who has
signed the certification provided for on the form of such Security
stating, or has otherwise certified to the Issuer and the registrar in
writing, that it is purchasing such Security for its own account or an
account with respect to which it exercises sole investment discretion
and that it and any such account is a QIB within the meaning of Rule
144A, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information
regarding the Issuer as it has requested pursuant to Rule 144A or has
determined not to request such information and that it is aware that
the transferor is relying upon its foregoing representations in order
to claim the exemption from registration provided by Rule 144A; and
26
(C) if the proposed transferor or transferee is an Agent Member
or is acting through an Agent Member, upon receipt by the registrar of
written instructions given in accordance with the Depositary's and the
registrar's procedures; and
(ii) the registrar shall (A) cancel the physical note so transferred
or (B) reflect on its books and records (and make a notation on the
relevant Registered Global Security of) the date and a decrease in the
principal amount of the transferor Registered Global Security, as the case
may be, and the registrar shall (x) reflect on its books and records (and
make a notation on the relevant Registered Global Security of) the date and
an increase in the principal amount of the transferee Registered Global
Security or (y) deliver to the transferee one or more physical notes of
like tenor and aggregate principal amount.
Each of the Issuer, the Guarantor and the Trustee may require additional
opinions, certifications or other evidence as may be reasonably required to
confirm that any such proposed transfer is being made in compliance with the
Securities Act and applicable state securities laws.
(c) Transfers of Interests in the Temporary Offshore Global
Securities. With respect to the registration of any proposed transfer of
interests in any Temporary Offshore Global Security,
(i) the registrar shall register the transfer of any interest in such
Security only
(A) if the proposed transferee is a Non-U.S. Person and the
proposed transferor has delivered to the registrar a certificate
substantially in the form of Exhibit C hereto and proposes to take
delivery in the form of an interest in the Temporary Offshore Global
Security; or
(B) if the proposed transferee is a QIB and the proposed
transferor has checked the box provided for on the form of the
Security stating, or has otherwise certified to the Issuer and the
registrar in writing, that the sale has been made in compliance with
provisions of Rule 144A to a transferee who has signed the
certification provided for on the form of the Security stating, or has
otherwise advised the Issuer and the registrar in writing, that it is
purchasing the Security for its own account or an account with respect
to which it exercises sole investment discretion and that it and any
such account is a QIB within the meaning of Rule 144A, and is aware
that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the
Issuer as it has requested pursuant to Rule 144A or has determined not
to request such information and that it is aware that the transferor
is relying upon its foregoing representations in order to claim the
exemption from registration provided by Rule 144A; and
27
(C) upon receipt by the registrar of written instructions given
in accordance with the Depositary's and the registrar's procedures;
and
(ii) the registrar shall reflect on its books and records (and make a
notation on the relevant Registered Global Security of) the date and an
increase in the principal amount of the transferee Registered Global
Security, in an amount equal to the principal amount of the Temporary
Offshore Global Security to be transferred, and the registrar shall reflect
on its books and records (and make a notation on the relevant Registered
Global Security of) the date and a decrease in the principal amount of the
transferor Temporary Offshore Global Security.
Each of the Issuer, the Guarantor and the Trustee may require additional
opinions, certifications or other evidence as may be reasonably required to
confirm that any such proposed transfer is being made in compliance with the
Securities Act and applicable state securities laws.
(d) Transfers to Non-U.S. Persons. With respect to the registration of
any proposed transfer of a Security that is a Restricted Security to a
Non-U.S. Person (except for any transfer of a Temporary Offshore Global
Security referred to above)
(i) the registrar shall register such transfer:
(A) if it complies with all other applicable requirements of this
Indenture;
(B) if the proposed transfer is to be made prior to the end of
the Restricted Period, upon receipt of a certificate substantially in
the form of Exhibit C hereto from the proposed transferor;
(C) if the proposed transfer is to be made after the end of the
Restricted Period and the Security to be transferred is a U.S.
certificated note or an interest in a U.S. Registered Global Security,
only upon receipt of a certificate substantially in the form of
Exhibit C from the proposed transferor; and
(D) if the proposed transferor or transferee is an Agent Member
or is acting through an Agent Member, upon receipt by the registrar of
written instructions in accordance with the Depositary's and the
registrar's procedures; and
(ii) the registrar shall (A) reflect on its books and records (and
make a notation on the relevant Registered Global Security of) the date and
a decrease in the principal amount of the transferor Registered Global
Security in an amount equal to the principal amount to be transferred or
(B) cancel the physical notes so transferred, as the case may be, and the
registrar shall (x) reflect on its books and records (and make a notation
on the relevant Registered Global Security of) the date and an increase in
the principal amount of the transferee Offshore Global Security or (y)
deliver to the transferee one or more physical notes of like tenor and
aggregate principal amount.
28
Each of the Issuer, the Guarantor and the Trustee may require additional
opinions, certifications or other evidence as may be reasonably required to
confirm that any such proposed transfer is being made in compliance with the
Securities Act and applicable state securities laws.
(e) Transfers pursuant to Rule 144. With respect to the registration
of any proposed transfer of a Security that is a Restricted Security
pursuant to the exemption from registration under the Securities Act
provided by Rule 144 thereunder,
(i) the registrar shall register such transfer
(A) if it complies with all other requirements of this Indenture;
(B) if such transfer is being made by a proposed transferor who
has checked the box provided for on the form of such Security stating,
or has otherwise certified to the Issuer and the registrar in writing,
that the sale has been made in compliance with the provisions of Rule
144; and
(C) if the proposed transferor or transferee is an Agent Member
or is acting through an Agent Member, upon receipt by the registrar of
written instructions given in accordance with the Depositary's and the
registrar's procedures; and
(ii) the registrar shall (a) reflect on its books and records (and
make a notation on the relevant Registered Global Security of) the date and
a decrease in the principal amount of such transferor Registered Global
Security in an amount equal to the principal amount to be transferred or
(b) cancel the physical note so transferred and the registrar shall (x)
reflect on its books and records (and make a notation on the relevant
Registered Global Security of) the date and an increase in the principal
amount of the transferee Registered Global Security or (y) deliver to the
transferee physical notes in like tenor and aggregate principal amount.
Each of the Issuer, the Guarantor and the Trustee may require additional
opinions, certifications or other evidence as may be reasonably required to
confirm that any such proposed transfer is being made in compliance with the
Securities Act and applicable state securities laws.
(f) Transfers to the Issuer or the Guarantor. With respect to the
registration of any proposed transfer of a Security to the Issuer or the
Guarantor,
(i) the registrar shall register such transfer
(A) if it complies with all other requirements of this Indenture;
(B) if such transfer is being made by a proposed transferor who
has checked the box provided for on the form of such Security stating,
or has otherwise certified to the Issuer and the registrar in writing,
that the sale has been made to the Issuer; and
29
(C) if the proposed transferor is an Agent Member or is acting
through an Agent Member, upon receipt by the registrar of written
instructions given in accordance with the Depositary's and the
registrar's procedures; and
(ii) the registrar shall (A) reflect on its books and records (and
make a notation on the relevant Registered Global Security of) the date and
a decrease in the principal amount of such transferor Registered Global
Security in an amount equal to the principal amount to be transferred or
(B) cancel the physical note so transferred, as the case may be, and the
registrar shall deliver physical notes to the Issuer in like tenor and
aggregate principal amount.
(g) Interests in the Offshore Global Security Prior to the Termination
of the Restricted Period. Notwithstanding anything to the contrary
contained in this Indenture, until the termination of the Restricted Period
occurs and appropriate certification substantially in the form of Exhibit B
is made as provided in Section 2.1, beneficial interests in the Offshore
Global Security may be held only in or through accounts maintained at the
Depositary by Euroclear or Clearstream, and no person shall be entitled to
effect any transfer or exchange that would result in any such interest
being held otherwise than in or through such an account, and no physical
notes may be issued in exchange therefor.
(h) Other Transfers. The registrar shall effect and register, upon
receipt of a written request from the Issuer to do so, a transfer not
otherwise permitted by this Section 2.14(h), such registration to be done
in accordance with the otherwise applicable provisions of this Section
2.14(h), upon the furnishing by the proposed transferor or transferee of a
written opinion of counsel (which opinion and counsel must be reasonably
satisfactory to the Issuer and the Trustee) to the effect that, and such
other certifications or evidence as the Issuer may require to confirm that,
the proposed transfer is being made pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the Securities
Act and otherwise in compliance with applicable state securities laws.
(i) Legends on Transferred Securities. Upon the transfer, exchange or
replacement of Securities not bearing the Private Placement Legend, the
registrar shall deliver Securities that do not bear the Private Placement
Legend. Upon the transfer, exchange or replacement of Securities bearing
the Private Placement Legend, the registrar shall deliver only Securities
that bear the Private Placement Legend, unless (i) the requested transfer
is after the relevant Resale Restriction Termination Date with respect to
such Securities, (ii) upon written request of the Issuer after there is
delivered to the registrar an opinion of counsel (which opinion and counsel
must be reasonably satisfactory to the Issuer and the Trustee) to the
effect that neither such legend nor the related restrictions on transfer
are required in order to maintain compliance with the provisions of the
Securities Act, (iii) with respect to an Offshore Global Security, with the
agreement of the Issuer on or after the termination of the Restricted
Period with respect to such Security, (iv) such Securities are sold or
exchanged pursuant to an effective registration statement under the
Securities Act or (v) such Securities are sold pursuant to Rule 144 and the
requirements of this Indenture.
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ARTICLE III
CERTAIN COVENANTS OF THE ISSUER AND THE GUARANTOR
3.1 Payment of Principal and Interest. The Issuer covenants and agrees for
the benefit of each series of Securities that it will duly and punctually pay or
cause to be paid the principal of, and interest on, each of the Securities of
such series (together with any additional amounts payable pursuant to the terms
of such Securities) at the place or places, at the respective times and in the
manner provided in such Securities and in the Coupons appertaining thereto and
in this Indenture. The interest on Unregistered Securities with Coupons attached
shall be payable only upon presentation and surrender of the Coupons evidencing
the right to such installment of interest as they severally mature. If any
temporary Unregistered Security provides that interest thereon may be paid while
such Security is in temporary form, the interest on any such temporary
Unregistered Security shall be paid, as to the installments of interest
evidenced by Coupons attached thereto, if any, only upon presentation and
surrender thereof, and, as to the other installments of interest, if any, only
upon presentation of such Securities for notation thereon of the payment of such
interest, in each case subject to any restrictions that may be established
pursuant to Section 2.3. The interest on Registered Securities (together with
any additional amounts payable pursuant to the terms of such Securities) shall
be payable only to or upon the written order of the Holders entitled thereto
and, at the option of the Issuer, may be paid by wire transfer or by mailing
checks for such interest payable to or upon the written order of such Holders at
their last addresses as they appear on the registry books of the Issuer. For the
purposes of the Interest Act (Canada), if in this Indenture or in any Security a
rate of interest is or is to be calculated on the basis of a period which is
less than a full calendar year, the yearly rate of interest to which such rate
is equivalent shall be such rate multiplied by the actual number of days in the
calendar year for which such calculation is made and divided by the number of
days in such period. The rates of interest set forth in this Indenture or in any
Security will be calculated using the nominal rate method of calculation and
will not be calculated using the effective rate method of calculation or on any
other basis that gives effect to the principle of deemed re-investment of
interest. In calculating interest or fees payable under this Indenture or on or
with respect to a Security for any period, unless otherwise provided, the first
day of such period shall be included and the last day of such period shall be
excluded.
3.2 Offices for Payments, etc. The Issuer will maintain in the Borough of
Manhattan, The City of New York, an agency where the Registered Securities of
each series may be presented for payment, an agency where the Securities of each
series may be presented for exchange as is provided in this Indenture and, if
applicable, pursuant to Section 2.3 an agency where the Registered Securities of
each series may be presented for registration of transfer as in this Indenture
provided.
The Issuer will maintain one or more agencies in a city or cities located
outside the United States (including any city in which such an agency is
required to be maintained under the rules of any stock exchange on which the
Securities of such series are listed) where the Unregistered Securities, if any,
of each series and Coupons, if any, appertaining thereto may be presented for
payment. No payment on any Unregistered Security or Coupon will be made upon
presentation of such Unregistered Security or Coupon at an agency of the Issuer
within the United States nor will any payment be made by transfer to an account
in, or by mail to an address in, the United States unless pursuant to applicable
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United States laws and regulations then in effect such payment can be made
without adverse tax consequences to the Issuer. Notwithstanding the foregoing,
payments in Dollars of Unregistered Securities of any series and Coupons
appertaining thereto which are payable in Dollars may be made at an agency of
the Issuer maintained in the Borough of Manhattan, The City of New York if such
payment in Dollars at each agency maintained by the Issuer outside the United
States for payment on such Unregistered Securities is illegal or effectively
precluded by exchange controls or other similar restrictions.
Each of the Issuer and the Guarantor will maintain in the Borough of
Manhattan, The City of New York, an agency where notices and demands to or upon
the Issuer or the Guarantor in respect of the Securities of any series, the
Coupons appertaining thereto or this Indenture may be served.
The Issuer will give to the Trustee written notice of the location of each
such agency and of any change of location thereof. In case the Issuer or the
Guarantor shall fail to maintain any agency required by this Section to be
located in the Borough of Manhattan, The City of New York, or shall fail to give
such notice of the location or of any change in the location of any of the above
agencies, presentations and demands may be made and notices may be served at the
Corporate Trust Office of the Trustee.
The Issuer may from time to time designate one or more additional agencies
where the Securities of a series and Coupons appertaining thereto may be
presented for payment, where the Securities of that series may be presented for
exchange as provided in this Indenture and where the Registered Securities of
that series may be presented for registration of transfer as in this Indenture
provided, and the Issuer may from time to time rescind any such designation, as
the Issuer may deem desirable or expedient; provided, however, that no such
designation or rescission shall in any manner relieve the Issuer of its
obligation to maintain the agencies provided for in the immediately preceding
paragraphs. The Issuer will give to the Trustee prompt written notice of any
such designation or rescission thereof.
3.3 Appointment to Fill a Vacancy in Office of Trustee. The Issuer,
whenever necessary to avoid or fill a vacancy in the office of Trustee, will
appoint, in the manner provided in Section 6.10, a Trustee, so that there shall
at all times be a Trustee with respect to each series of Securities hereunder.
3.4 Paying Agents. Whenever the Issuer shall appoint a paying agent other
than the Trustee with respect to the Securities of any series, it will cause
such paying agent to execute and deliver to the Trustee an instrument in which
such agent shall agree with the Trustee, subject to the provisions of this
Section that such paying agent,
(a) will hold all sums received by it as such agent for the payment of
the principal of or interest on the Securities of such series (whether such
sums have been paid to it by the Issuer or by any other obligor on the
Securities of such series) in trust for the benefit of the Holders of the
Securities of such series, or Coupons appertaining thereto, or of the
Trustee, until such sums shall be paid to such holders or otherwise
disposed of as herein provided;
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(b) will give the Trustee notice of any failure by the Issuer (or by
any other obligor on the Securities of such series) to make any payment of
the principal of or interest on the Securities of such Series when the same
shall be due and payable, and
(c) at any time during the continuance of any such failure, upon the
written request of the Trustee, it will forthwith pay to the Trustee all
sums so held in trust by such paying agent.
The Issuer will, on or prior to each due date of the principal of or
interest on the Securities of such series, deposit with the paying agent a sum
sufficient to pay such principal or interest so becoming due, and (unless such
paying agent is the Trustee) the Issuer will promptly notify the Trustee of its
action or any failure to take such action.
If the Issuer, the Guarantor, any Subsidiary or any Affiliate of the Issuer
or the Guarantor, shall act as paying agent with respect to the Securities of
any series, it will, on or before each due date of the principal of or interest
on the Securities of such series, set aside, segregate and hold in trust for the
benefit of the Holders of the Securities of such series or the Coupons
appertaining thereto a sum sufficient to pay such principal or interest so
becoming due. The Issuer will promptly notify the Trustee of its action or any
failure to take such action.
Anything in this Section to the contrary notwithstanding, the Issuer may at
any time, for the purpose of obtaining a satisfaction and discharge with respect
to one or more or all series of Securities hereunder, or for any other reason,
pay or cause to be paid, or by Issuer Order direct any paying agent to pay to
the Trustee all sums held in trust for any such series by the Issuer or any
paying agent hereunder, as required by this Section, such sums to be held by the
Trustee upon the trusts herein contained.
Anything in this Section to the contrary notwithstanding, the agreement to
hold sums in trust as provided in this Section is subject to the provisions of
Sections 10.3 and 10.4.
3.5 Written Statement to Trustee. Each of the Issuer and the Guarantor will
deliver to the Trustee annually, commencing May 23, 2003, a certificate, from
its principal executive officer, principal financial officer or principal
accounting officer, stating whether or not to the best knowledge of the signer
thereof the Issuer or the Guarantor, as the case may be, is in compliance
(without regard to periods of grace or notice requirements) with all conditions
and covenants under this Indenture, and if the Issuer or the Guarantor, as the
case may be, shall not be in compliance, specifying such non-compliance and the
nature and status thereof of which such signer may have knowledge.
3.6 Luxembourg Publications. In the event of the publication of any notice
pursuant to Section 5.11, 6.10(a), 6.11, 8.2, 10.4, 12.2 or 12.5, the party
making such publication in the Borough of Manhattan, The City of New York and
London shall also, to the extent that notice is required to be given to Holders
of Securities of any series by applicable Luxembourg law or stock exchange
regulation, as evidenced by an Officers' Certificate delivered to such party,
make a similar publication in Luxembourg.
3.7 Certain Covenants Applicable to the Securities; Limitations on Liens.
For the benefit of Holders of the Securities, the Guarantor covenants in this
Indenture that it will not, and will not permit any Subsidiary to, issue, incur,
33
create, assume or guarantee any debt for borrowed money (including all
obligations evidenced by bonds, debentures, notes or similar instruments)
secured by a mortgage, security interest, pledge, lien, charge or other
encumbrance ("mortgage") upon any Principal Property or upon any shares of stock
or indebtedness of any Subsidiary that owns or leases a Principal Property
(whether such Principal Property, shares or indebtedness are now existing or
owed or hereafter created or acquired) without in any such case effectively
providing concurrently with the issuance, incurrence, creation, assumption or
guaranty of any such secured debt, or the grant of such mortgage, that the
Securities (together with, if the Guarantor shall so determine, any other
indebtedness of or guarantee by the Guarantor or such Subsidiary ranking equally
with the Securities) shall be secured equally and ratably with (or, at the
option of the Guarantor, prior to) such secured debt. The foregoing restriction,
however, will not apply to each of the following: (a) mortgages on property,
shares of stock or indebtedness or other assets of any corporation existing at
the time such corporation becomes a Subsidiary, provided that such mortgages or
liens are not incurred in anticipation of such corporation's becoming a
Subsidiary; (b) mortgages on property, shares of stock or indebtedness or other
assets existing at the time of acquisition thereof by the Guarantor or a
Subsidiary or to secure the payment of all or any part of the purchase price
thereof, or mortgages on property, shares of stock or indebtedness or other
assets to secure any debt incurred prior to, at the time of, or within 180 days
after, the latest of the acquisition thereof or, in the case of property, the
completion of construction, the completion of improvements or the commencement
of substantial commercial operation of such property for the purpose of
financing all or any part of the purchase price thereof, such construction or
the making of such improvements; (c) mortgages to secure indebtedness owing to
the Guarantor or to a Subsidiary; (d) mortgages existing at the date of the
initial issuance of any Securities then outstanding; (e) mortgages on property
of a Person existing at the time such Person is merged into or consolidated with
the Guarantor or a Subsidiary or at the time of a sale, lease or other
disposition of the properties of a Person as an entirety or substantially as an
entirety to the Guarantor or a Subsidiary provided that such mortgage was not
incurred in anticipation of such merger or consolidation or sale, lease or other
disposition; (f) mortgages in favor of the United States of America or any
state, territory or possession thereof (or the District of Columbia), or any
department, agency, instrumentality or political subdivision of the United
States of America or any state, territory or possession thereof (or the District
of Columbia), to secure partial, progress, advance or other payments pursuant to
any contract or statute or to secure any indebtedness incurred for the purpose
of financing all or any part of the purchase price or the cost of constructing
or improving the property subject to such mortgages; or (g) extensions, renewals
or replacements of any mortgage referred to in the foregoing clauses (a), (b),
(d), (e) or (f); provided, however, that the principal amount of indebtedness
secured thereby shall not exceed the principal amount of indebtedness so secured
at the time of such extension, renewal or replacement. Any mortgages permitted
by any of the foregoing clauses (a) through (g) shall not extend to or cover any
Principal Property of the Guarantor or such Subsidiary or shares of stock or
indebtedness of such Subsidiary, as the case may be, other than the property,
including improvements thereto, stock or indebtedness specified in such clauses.
Notwithstanding the restrictions outlined in the preceding paragraph, the
Guarantor or any Subsidiary will be permitted to issue, incur, create, assume or
guarantee debt secured by a mortgage which would otherwise be subject to such
restrictions, without equally and ratably securing the Securities, provided that
after giving effect thereto, the aggregate amount of all debt so secured by
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mortgages (not including mortgages permitted under clauses (a) through (g)
above) does not exceed 20% of the Consolidated Net Tangible Assets of the
Guarantor.
3.8 Limitations on Sale and Lease-Back Transactions. For the benefit of the
Holders of the Securities, the Guarantor covenants that it will not, nor will it
permit any Subsidiary to, enter into any Sale and Lease-Back Transaction with
respect to any Principal Property, other than any such transaction involving a
lease for a term of not more than three years or any such transaction between
the Guarantor and a Subsidiary or between Subsidiaries, unless: (a) the
Guarantor or such Subsidiary would be entitled to incur indebtedness secured by
a mortgage on the Principal Property involved in such transaction at least equal
in amount to the Attributable Debt with respect to such Sale and Lease-Back
Transaction, without equally and ratably securing the Securities, pursuant to
the limitation on liens described above; or (b) the proceeds of such transaction
are at least equal to the fair market value of the affected Principal Property
(as determined in good faith by the Board of Directors of the Guarantor, as
evidenced by a Board Resolution of the Guarantor) and the Guarantor applies an
amount equal to the greater of the net proceeds of such sale or the Attributable
Debt with respect to such Sale and Lease-Back Transaction within 180 days of
such sale to either (or a combination of) (i) the retirement (other than any
mandatory retirement, mandatory prepayment or sinking fund payment or by payment
at maturity) of debt for borrowed money of the Guarantor or a Subsidiary (other
than debt that is subordinated to the Securities or debt to the Guarantor or a
subsidiary) that matures more than 12 months after its creation of such debt or
(ii) the purchase, construction or development of other comparable property.
3.9 Corporate Existence. Subject to Article IX, the Guarantor shall do or
cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence and the corporate existence of each of its
Subsidiaries (including the Issuer) and all rights (charter and statutory) and
franchises of the Guarantor and its Subsidiaries, provided that the Guarantor
shall not be required to preserve the corporate existence of any Subsidiary
other than the Issuer or any such right or franchise if the Guarantor shall
determine that the preservation thereof is no longer desirable in the conduct of
the business of the Guarantor and its Subsidiaries taken as a whole and that the
loss thereof would not have a material adverse effect on the business,
prospects, assets or financial condition of the Guarantor and its Subsidiaries
taken as a whole and would not have a material adverse effect on the payment and
performance of the obligations of the Issuer or the Guarantor under the
Securities or the Guarantees, respectively, and this Indenture.
3.10 Waiver of Stay, Extension or Usury Laws. Each of the Issuer and the
Guarantor covenants (to the extent that it may lawfully do so) that it will not
at any time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law or any usury law or other law
that would prohibit or forgive it from paying all or any portion of the
principal of or interest on the Securities as contemplated herein, wherever
enacted, now or at any time hereafter in force, or which may affect the
covenants or the performance of this Indenture; and (to the extent that it may
lawfully do so) each of the Issuer and the Guarantor 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.
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ARTICLE IV
SECURITYHOLDERS LISTS AND REPORTS
BY THE ISSUER, GUARANTOR AND THE TRUSTEE
4.1 Issuer to Furnish Trustee Information as to Names and Addresses of
Securityholders. If and so long as the Trustee shall not be the Security
registrar for the Securities of any series, the Issuer and any other obligor on
the Securities will furnish or cause to be furnished to the Trustee a list in
such form as the Trustee may reasonably require of the names and addresses of
the Holders of the Registered Securities of such series pursuant to Section 312
of the Trust Indenture Act (a) semi-annually not more than 15 days after each
record date for the payment of interest on such Registered Securities, as
hereinabove specified, as of such record date and on dates to be determined
pursuant to Section 2.3 for non-interest bearing Registered Securities in each
year, and (b) at such other times as the Trustee may request in writing, within
30 days after receipt by the Issuer of any such request as of a date not more
than 15 days prior to the time such information is furnished.
4.2 Reports by the Issuer and the Guarantor. (a) Each of the Issuer and the
Guarantor covenants to file with the Trustee, within 15 days after it is
required to file the same with the Commission, copies of the annual reports and
of the information, documents and other reports that it may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act
or pursuant to Section 314 of the Trust Indenture Act.
(b) If the Issuer or the Guarantor is not subject to the requirements
of Section 13 or Section 15(d) of the Exchange Act, the Issuer and the
Guarantor shall furnish to all Holders of Rule 144A Securities and
prospective purchasers of Rule 144A Securities designated by the Holders of
Rule 144A Securities, promptly upon their request, the information required
to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
4.3 Reports by the Trustee. Any Trustee's report required under Section
313(a) of the Trust Indenture Act shall be transmitted on or before December 15
in each year beginning December 15, 2002, as provided in Section 313(c) of the
Trust Indenture Act, so long as any Securities are Outstanding hereunder, and
shall be dated as of a date convenient to the Trustee no more than 60 days prior
thereto. A copy of each report at the time of its mailing to Holders of a series
of Securities shall be filed by the Issuer or the Guarantor with the Commission
and each securities exchange, if any, on which the Securities of such series are
listed. The Issuer shall notify the Trustee if and when any series of Securities
is listed on any stock exchange.
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ARTICLE V
REMEDIES OF THE TRUSTEE AND
SECURITYHOLDERS ON EVENT OF DEFAULT
5.1 Event of Default Defined; Acceleration of Maturity; Waiver of Default.
"Event of Default" with respect to Securities of any series wherever used
herein, means each one of the following events which shall have occurred and be
continuing (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):
(a) default in the payment of any installment of interest upon any of
the Securities of such series as and when the same shall become due and
payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of all or any part of the principal on any
of the Securities of such series as and when the same shall become due and
payable either at maturity, upon any redemption, by declaration or
otherwise; or
(c) failure on the part of the Issuer or the Guarantor duly to observe
or perform any other of their respective covenants or agreements in respect
of the Securities of such series (other than a covenant or agreement in
respect of the Securities of such series a default in the performance or
breach of which is elsewhere in this Section specifically dealt with) or in
this Indenture contained for a period of 90 days after the date on which
written notice specifying such failure, stating that such notice is a
"Notice of Default" hereunder and demanding that the Issuer or the
Guarantor remedy the same, shall have been given by registered or certified
mail, return receipt requested, to the Issuer and the Guarantor by the
Trustee, or to the Issuer and the Guarantor and the Trustee by the Holders
of at least 25% in aggregate principal amount of the Outstanding Securities
of all series affected thereby; or
(d) a court having jurisdiction in the premises shall enter a decree
or an order for relief in respect of the Issuer or the Guarantor in an
involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of the Issuer or the Guarantor or for any substantial part of its
property or ordering the winding up or liquidation of its affairs, and such
decree or order shall remain unstayed and in effect for a period of 60
consecutive days; or
(e) the Issuer or the Guarantor shall commence a voluntary case under
any applicable federal, state or foreign bankruptcy, insolvency or other
similar law now or hereafter in effect, or consent to the entry of an order
for relief in an involuntary case under any such law or consent to the
appointment or taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of the Issuer or the
Guarantor or for any substantial part of its property, or make any general
assignment for the benefit of creditors;
37
(f) the Guarantor repudiates its obligations under the Guarantees, or
the Guarantees become unenforceable or invalid or are no longer in full
force and effect, except as expressly contemplated herein; or
(g) any other Event of Default provided in the supplemental indenture
under which such series of Securities is issued or in the form of Security
for such series.
If an Event of Default described in clauses (a), (b), (c) (f) or (g) (if
the Event of Default under clause (c) or (g), as the case may be, is with
respect to less than all series of Securities then Outstanding) occurs and is
continuing, then, and in each and every such case, except for any series of
Securities the principal of which shall have already become due and payable,
either the Trustee or the Holders of not less than 25% in aggregate principal
amount of the Securities of each such affected series then Outstanding hereunder
(voting as a single class) by notice in writing to the Issuer and the Guarantor
(and to the Trustee if given by Securityholders), may declare the entire
principal (or, if the Securities of any such affected series are Original Issue
Discount Securities, such portion of the principal amount as may be specified in
the terms of such series) of all Securities of all such affected series, and the
interest accrued thereon, if any, to be due and payable immediately, and upon
any such declaration, the same shall become immediately due and payable. If an
Event of Default described in clause (c) or (g) (if the Event of Default under
clause (c) or (g), as the case may be, is with respect to all series of
Securities then Outstanding), occurs and is continuing, then and in each and
every such case, unless the principal of all the Securities shall have already
become due and payable, either the Trustee or the Holders of not less than 25%
in aggregate principal amount of all the Securities then outstanding hereunder
(treated as one class), by notice in writing to the Issuer and the Guarantor
(and to the Trustee if given by Securityholders), may declare the entire
principal (or, if any securities are Original Issue Discount Securities, such
portion of the principal as may be specified in the terms thereof) of all the
Securities then Outstanding, and interest accrued thereon, if any, to be due and
payable immediately, and upon any such declaration the same shall become
immediately due and payable. If an Event of Default specified in Section 5.1(d)
or (e) occurs, the principal of and accrued interest on the Securities shall
become and be immediately due and payable without any declaration or other act
on the part of the Trustee or any Securityholder.
The foregoing provisions, however, are subject to the condition that if, at
any time after the principal (or, if the Securities of such series are Original
Issue Discount Securities, such portion of the principal as may be specified in
the terms thereof) of the Securities of any series (or of all the Securities, as
the case may be) shall have been so declared due and payable, and before any
judgment or decree for the payment of the moneys due shall have been obtained or
entered as hereinafter provided, the Issuer or the Guarantor shall pay or shall
deposit with the Trustee a sum sufficient to pay all matured installments of
interest upon all the Securities of such series (or of all the Securities, as
the case may be) and the principal of any and all Securities of each such series
(or of all the Securities, as the case may be) which shall have become due
otherwise than by acceleration (with interest upon such principal and on overdue
installments of interest, at the same rate as the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) specified in the
Securities of each such series (or at the respective rates of interest or Yields
to Maturity of all the Securities, as the case may be) to the date of such
payment or deposit) and such amount as shall be sufficient to cover reasonable
compensation to the Trustee and each predecessor Trustee, its agents, attorneys
and counsel, and all other expenses and liabilities incurred, and all advances
made, by the Trustee and each predecessor Trustee except as a result of
negligence or bad faith, and if any and all Events of Default under the
Indenture, other than the non-payment of the principal of Securities which shall
38
have become due by acceleration, shall have been cured, waived or otherwise
remedied as provided herein, then and in every such case the Holders of a
majority in aggregate principal amount of all the Securities of each such
series, or of all the Securities, in each case voting as a single class, then
Outstanding, by written notice to the Issuer and the Guarantor and to the
Trustee, may waive all defaults with respect to each such series (or with
respect to all the Securities, as the case may be) and rescind and annul such
declaration and its consequences, but no such waiver or rescission and annulment
shall extend to or shall affect any subsequent default or shall impair any right
consequent thereon.
For all purposes under this Indenture, if a portion of the principal of any
Original Issue Discount Securities shall have been accelerated and declared due
and payable pursuant to the provisions hereof, then, from and after such
declaration, unless such declaration has been rescinded and annulled, the
principal amount of such Original Issue Discount Securities shall be deemed, for
all purposes hereunder, to be such portion of the principal thereof as shall be
due and payable as a result of such acceleration, and payment of such portion of
the principal thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all other amounts
owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities.
5.2 Collection of Indebtedness by Trustee; Trustee May Prove Debt. The
Issuer and Guarantor covenant that (a) in case default shall be made in the
payment of any installment of interest on any of the Securities of any series
when such interest shall have become due and payable, and such default shall
have continued for a period of 30 days or (b) in case default shall be made in
the payment of all or any part of the principal of any of the Securities of any
series when the same shall have become due and payable, whether upon maturity of
the Securities of such series or upon any redemption or by declaration or
otherwise, then upon demand of the Trustee, the Issuer or the Guarantor will pay
to the Trustee for the benefit of the Holders of the Securities of such series
the whole amount that then shall have become due and payable on all Securities
of such series, and such Coupons, for principal or interest, as the case may be
(with interest to the date of such payment upon the overdue principal and on
overdue installments of interest at the same rate as the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities) specified
in the Securities of such series); and in addition thereto, such further amount
as shall be sufficient to cover the costs and expenses of collection, including
reasonable compensation to the Trustee and each predecessor Trustee, their
respective agents, attorneys and counsel, and any expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor Trustee
except as a result of its negligence or bad faith.
Until such demand is made by the Trustee, the Issuer or the Guarantor may
pay the principal of and interest on the Securities of any series to the
Holders, whether or not the principal of and interest on the Securities of such
series be overdue.
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In case the Issuer or the Guarantor shall fail forthwith to pay such
amounts upon such demand, the Trustee, in its own name and as trustee of an
express trust, shall be entitled and empowered to institute any action or
proceedings at law or in equity for the collection of the sums so due and
unpaid, and may prosecute any such action or proceedings to judgment or final
decree, and may enforce any such judgment or final decree against the Issuer,
the Guarantor or other obligor upon the Securities and collect in the manner
provided by law out of the property of the Issuer, the Guarantor or other
obligor upon the Securities, wherever situated the moneys adjudged or decreed to
be payable.
In case there shall be pending proceedings relative to the Issuer, the
Guarantor or any other obligor upon the Securities under Title 11 of the United
States Code or any other applicable Federal or state bankruptcy, insolvency,
reorganization or other similar law, or in case a receiver, liquidator,
assignee, custodian, or trustee, sequestrator or similar official shall have
been appointed for or taken possession of the Issuer or the Guarantor, or its or
their property, or such other obligor or its property, or in case of any other
comparable judicial proceedings relative to the Issuer, the Guarantor or other
obligor upon the Securities, or to the creditors or property of the Issuer, the
Guarantor or such other obligor, the Trustee, irrespective of whether the
principal of the Securities shall then be due and payable as therein expressed
or by declaration or otherwise and irrespective of whether the Trustee shall
have made any demand pursuant to the provisions of this Section, shall be
entitled and empowered, by intervention in such proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount of
principal and interest (or, if the Securities of any series are Original
Issue Discount Securities, such portion of the principal amount as may be
specified in the terms of such series) owing and unpaid in respect of the
Securities of any series, and to file such other papers or documents as may
be necessary or advisable in order to have the claims of the Trustee
(including any claim for reasonable compensation to the Trustee and each
predecessor Trustee, and their respective agents, attorneys and counsel,
and for reimbursement of all expenses and liabilities incurred, and all
advances made, by the Trustee and each predecessor Trustee, except as a
result of gross negligence or bad faith) and of the Securityholders allowed
in any judicial proceedings relative to the Issuer, the Guarantor or other
obligor upon the Securities, or to the creditors or property of the Issuer,
the Guarantor or such other obligor,
(b) unless prohibited by applicable law and regulations, to vote on
behalf of the Holders of the Securities of any series in any election of a
trustee or a standby trustee in arrangement, reorganization, liquidation or
other bankruptcy or insolvency proceedings or person performing similar
functions in comparable proceedings, and
(c) to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute all amounts received with
respect to the claims of the Securityholders and of the Trustee on their
behalf; and any trustee, receiver, or liquidator, custodian or other
similar official is hereby authorized by each of the Securityholders to
make payments to the Trustee, and, in the event that the Trustee shall
consent to the making of payments directly to the Securityholders, to pay
to the Trustee such amounts as shall be sufficient to cover reasonable
compensation to the Trustee, each predecessor Trustee and their respective
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agents, attorneys and counsel, and all other expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor
Trustee except as a result of gross negligence or bad faith.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or vote for or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities of any series or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar person.
All rights of action and of asserting claims under this Indenture, or under
any of the Securities of any series or Coupons appertaining to such Securities,
may be enforced by the Trustee without the possession of any of the Securities
of such series or Coupons appertaining to such Securities or the production
thereof in any trial or other proceedings relative thereto, and any such action
or proceedings instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment, subject to the
payment of the expenses, disbursements and compensation of the Trustee, each
predecessor Trustee and their respective agents and attorneys, shall be for the
ratable benefit of the Holders of the Securities or Coupons appertaining to such
Securities in respect of which such action was taken.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party) the Trustee shall be held to represent all the Holders
of the Securities and Coupons appertaining to such Securities in respect to
which such action was taken, and it shall not be necessary to make any Holders
of such Securities or Coupons appertaining to such Securities parties to any
such proceedings.
5.3 Application of Proceeds. Any moneys collected by the Trustee pursuant
to this Article in respect of any series shall be applied in the following order
at the date or dates fixed by the Trustee and, in case of the distribution of
such moneys on account of principal or interest, upon presentation of the
several Securities and Coupons appertaining to such Securities in respect of
which monies have been collected and stamping (or otherwise noting) thereon the
payment, or issuing Securities of such series in reduced principal amounts in
exchange for the presented Securities of like series if only partially paid, or
upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses applicable to such series
in respect of which monies have been collected, including reasonable
compensation to the Trustee and each predecessor Trustee and their
respective agents and attorneys and of all expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor
Trustee and their respective agents and attorneys except as a result of
gross negligence or bad faith;
SECOND: In case the principal of the Securities of such series in
respect of which moneys have been collected shall not have become and be
then due and payable, to the payment of interest on the Securities of such
series in default in the order of the maturity of the installments of such
interest (with interest, to the extent that such interest has been
collected by the Trustee, upon the overdue installments of interest at the
same rate as the rate of interest or Yield to Maturity (in the case of
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Original Issue Discount Securities) specified in such Securities, such
payments to be made ratably to the Persons entitled thereto, without
discrimination or preference);
THIRD: In case the principal of the Securities of such series in
respect of which moneys have been collected shall have become and shall be
then due and payable, to the payment of the whole amount then owing and
unpaid upon all the Securities of such series for principal and interest,
with interest upon the overdue principal, and (to the extent that such
interest has been collected by the Trustee) upon overdue installments of
interest at the same rate as the rate of interest or Yield to Maturity (in
the case of Original Issue Discount Securities) specified in the Securities
of such series; and in case such moneys shall be insufficient to pay in
full the whole amount so due and unpaid upon the Securities of such series,
then to the payment of such principal and interest, without preference or
priority of principal over interest, or of interest over principal, or of
any installment of interest over any other installment of interest, or of
any Security of such series over any other Security of such series, ratably
to the aggregate of such principal and accrued and unpaid interest; and
FOURTH: To the payment of the remainder, if any, to the Issuer or any
other Person lawfully entitled thereto.
5.4 Suits for Enforcement. In case an Event of Default has occurred, has
not been waived and is continuing, the Trustee may in its discretion proceed to
protect and enforce the rights vested in it by this Indenture by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any of such rights, either at law or in equity or in
bankruptcy or otherwise, whether for the specific enforcement of any covenant or
agreement contained in this Indenture or in aid of the exercise of any power
granted in this Indenture or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.
5.5 Restoration of Rights on Abandonment of Proceedings. In case the
Trustee or any Securityholder shall have proceeded to enforce any right under
this Indenture and such proceedings shall have been discontinued or abandoned
for any reason, or shall have been finally determined adversely to the Trustee
or such Securityholder, then and in every such case subject to any determination
in such proceedings, the Issuer, the Guarantor and the Trustee or such
Securityholder shall be restored respectively to their former positions and
rights hereunder, and all rights, remedies and powers of the Issuer, the
Guarantor, the Trustee and the Securityholders shall continue as though no such
proceedings had been taken.
5.6 Limitations on Suits by Securityholders. No Holder of any Security of
any series or of any Coupon appertaining thereto shall have any right by virtue
or by availing of any provision of this Indenture to institute any action or
proceeding at law or in equity or in bankruptcy or otherwise upon or under or
with respect to this Indenture, or for the appointment of a receiver,
liquidator, assignee, custodian, trustee, sequestrator or other similar official
or for any other remedy hereunder, unless (i) such Holder previously shall have
given to the Trustee written notice of default and of the continuance thereof,
as hereinbefore provided; (ii) the Holders of not less than 25% in aggregate
principal amount of the Securities of such series then Outstanding (treated as a
single class) shall have made written request upon the Trustee to institute such
action or proceedings in its own name as trustee hereunder and shall have
offered to the Trustee such reasonable indemnity as it may require against the
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costs, expenses and liabilities to be incurred therein or thereby; (iii) the
Trustee for 60 days after its receipt of such notice, request and offer of
indemnity shall have failed to institute any such action or proceeding; and (iv)
no direction inconsistent with such written request shall have been given to the
Trustee pursuant to Section 5.9; it being understood and intended, and being
expressly covenanted by the taker and Holder of every Security or Coupon with
every other taker and Holder and the Trustee, that no one or more Holders of
Securities of any series or Coupons appertaining to such Securities shall have
any right in any manner whatever by virtue or by availing of any provision of
this Indenture to affect, disturb or prejudice the rights of any other such
Holder of Securities or Coupons appertaining to such Securities, or to obtain or
seek to obtain priority over or preference to any other such Holder or to
enforce any right under this Indenture, except in the manner herein provided and
for the equal, ratable and common benefit of all Holders of Securities of any
applicable series and Coupons appertaining to such Securities. For the
protection and enforcement of the provisions of this Section, each and every
Securityholder and the Trustee shall be entitled to such relief as can be given
either at law or in equity.
5.7 Unconditional Right of Securityholder to Institute Certain Suits.
Notwithstanding any other provision in this Indenture and any provision of any
Security, the right of any Holder of any Security or Coupon to receive payment
of the principal of and interest on such Security or coupon on or after the
respective due dates expressed in such Security or Coupon, or to institute suit
for the enforcement of any such payment on or after such respective dates, shall
not be impaired or affected without the consent of such Holder.
5.8 Powers and Remedies Cumulative; Delay or Omission Not Waiver of
Default. Except as provided in Section 5.6, no right or remedy herein conferred
upon or reserved to the trustee or to the Holders of Securities or Coupons is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
No delay or omission of the Trustee or of any Holder of Securities or
Coupons to exercise any right or power accruing upon any Event of Default
occurring and continuing as aforesaid shall impair any such right or power or
shall be construed to be a waiver of any such Event of Default or an
acquiescence therein; and, subject to Section 5.6, every power and remedy given
by this Indenture or by law to the Trustee or to the Holders of Securities or
Coupons may be exercised from time to time, and as often as shall be deemed
expedient, by the Trustee or by the Holders of Securities or Coupons.
5.9 Control by Holders of Securities. The Holders of a majority in
aggregate principal amount of the Securities of each series affected (with all
such series voting as a single class) at the time Outstanding 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 by this Indenture;
provided that such direction shall not be otherwise than in accordance with law
and the provisions of this Indenture and provided further that (subject to the
provisions of Section 6.1) the Trustee shall have the right to decline to follow
43
any such direction if the Trustee, being advised by counsel, shall determine
that the action or proceeding so directed may not lawfully be taken or if the
Trustee in good faith by its board of directors, the executive committee, or a
trust committee of directors or Responsible Officers of the Trustee shall
determine that the action or proceedings so directed would involve the Trustee
in personal liability or if the Trustee in good faith shall so determine that
the actions or forbearances specified in or pursuant to such direction would be
unduly prejudicial to the interests of Holders of the Securities of all series
so affected not joining in the giving of said direction, it being understood
that (subject to Section 6.1) the Trustee shall have no duty to ascertain
whether or not such actions or forbearances are unduly prejudicial to such
Holders.
Nothing in this Indenture shall impair the right of the Trustee in its
discretion to take any action deemed proper by the Trustee and which is not
inconsistent with such direction or directions by Securityholders.
5.10 Waiver of Past Defaults. Prior to the acceleration of the maturity of
any Securities as provided in Section 5.1, the Holders of a majority in
aggregate principal amount of the Securities of all series at the time
Outstanding with respect to which a default or an Event of Default shall have
occurred and be continuing (voting as a single class) may on behalf of the
Holders of all such Securities waive any past default or Event of Default
described in Section 5.1 and its consequences, except a default (a) in the
payment of principal or interest on any Security of such series or (b) in
respect of a covenant or provision hereof which cannot be modified or amended
without the consent of the Holder of each Security affected. In the case of any
such waiver, the Issuer, the Guarantor, the Trustee and the Holders of all such
Securities shall be restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any subsequent or other default
or impair any right consequent thereon.
Upon any such waiver, such default shall cease to exist and be deemed to
have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured, and not to have occurred for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
5.11 Trustee to Give Notice of Default, But May Withhold in Certain
Circumstances. The Trustee shall, within 90 days after the occurrence of a
default with respect to the Securities of any series, give notice of all
defaults with respect to that series known to the Trustee (i) if any
Unregistered Securities of that series are then Outstanding, to the Holders
thereof, by publication at least once in an Authorized Newspaper in the Borough
of Manhattan, The City of New York and at least once in an Authorized Newspaper
in London (and, if required by Section 3.6, at least once in an Authorized
Newspaper in Luxembourg) and (ii) to all Holders of Registered Securities of
such series as the names and addresses of such Holders appear upon the registry
books of the Issuer, and to other Holders of Securities of such series as have
filed their names and addresses with the Trustee within two years preceding the
giving of such notice, unless in each case such defaults shall have been cured
before the mailing or publication of such notice (the term "defaults" for the
purpose of this Section being hereby defined to mean any event or condition
which is, or with notice or lapse of time or both would become, an Event of
Default); provided that, except in the case of default in the payment of the
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principal of or interest on any of the Securities of such series, or in the
payment of any sinking fund installment on such series, the Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee, or a trust committee of directors or trustees and/or
Responsible Officers of the Trustee in good faith determines that the
withholding of such notice is in the best interests of the Securityholders of
such Series.
5.12 Right of Court to Require Filing of Undertaking to Pay Costs. All
parties to this Indenture agree, and each Holder of any Security or Coupon by
his acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken, suffered
or omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys fees, against
any party litigant in such suit, having due regard to the merits and good faith
of the claims or defenses made by such party litigant; but the provisions of
this Section shall not apply to any suit instituted by the Trustee, to any suit
instituted by any Securityholder or group of Securityholders of any series
holding in the aggregate more than 10% in aggregate principal amount of the
Securities of such series, or, in the case of any suit relating to or arising
under clause (c) or (f) of Section 5.1 (if the suit relates to Securities of
more than one but less than all series), 10% in aggregate principal amount of
Securities then Outstanding and affected thereby, or, in the case of any suit
relating to or arising under clause (c) or (f) (if the suit under clause (c) or
(f) relates to all the Securities then outstanding) of Section 5.1, 10% in
aggregate principal amount of all Securities then Outstanding, or to any suit
instituted by any Securityholder for the enforcement of the payment of the
principal of or interest on, any Security on or after the due date expressed in
such Security or any date fixed for redemption.
ARTICLE VI
CONCERNING THE TRUSTEE
6.1 Duties and Responsibilities of the Trustee; Prior to Default. With
respect to the Holders of any series of Securities issued hereunder, the
Trustee, prior to the occurrence of an Event of Default with respect to the
Securities of such series and after the curing or waiving of all Events of
Default which may have occurred with respect to such series, undertakes to
perform such duties and only such duties as are specifically set forth in this
Indenture. In case an Event of Default with respect to the Securities of a
series has occurred (which has not been cured or waived) the Trustee shall
exercise with respect to such series of Securities such of the rights and powers
vested in it by this Indenture, and use the same degree of care and skill in
their exercise as a prudent man would exercise or use under the circumstances in
the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act or
its own willful misconduct, except that:
45
(a) prior to the occurrence of an Event of Default with respect to the
Securities of any series and after the curing or waiving of all such Events
of Default with respect to such series which may have occurred:
(i) the duties and obligations of the Trustee with respect to the
Securities of any series shall be determined solely by the express
provisions of this Indenture, and the Trustee shall not be liable
except for the performance of such duties and obligations as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any
statements, certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the case of
any such statements, certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine whether
or not they conform to the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it shall be proved that the Trustee was grossly negligent in
ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction
of the Holders pursuant to Section 5.9 relating to the time, method and
place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred upon the Trustee, under this
Indenture.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if there shall be reasonable grounds for believing that
the repayment of such funds or adequate indemnity against such liability is not
reasonably assured to it.
The provisions of this Section 6.1 are in furtherance of and subject to
Section 315 of the Trust Indenture Act.
6.2 Certain Rights of the Trustee. In furtherance of and subject to the
Trust Indenture Act, and subject to Section 6.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate or any
other certificate, statement, instrument, opinion, report, notice, request,
consent, order, bond, debenture, note, coupon, security or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
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(b) any request, direction, order or demand of the Issuer mentioned
herein shall be sufficiently evidenced by an Officers' Certificate or
Issuer Order (unless other evidence in respect thereof be herein
specifically prescribed); any resolution of the Board of Directors of the
Issuer may be evidenced to the Trustee by a copy thereof certified by the
Secretary or an Assistant Secretary of the Issuer; and any resolution of
the Board of Directors of the Guarantor may be evidenced to the Trustee by
a copy thereof certified by the Secretary or an Assistant Secretary of the
Guarantor;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and any written advice or any
opinion of counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted to be taken by it
hereunder in good faith and in reliance thereon in accordance with such
advice or opinion of counsel;
(e) the Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred therein or thereby;
(f) the Trustee shall not be liable for any action taken or omitted by
it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Indenture;
(g) prior to the occurrence of an Event of Default hereunder and after
the curing or waiving of all Events of Default, 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, consent, order, approval, appraisal, bond, debenture, note,
coupon, security, or other paper or document unless requested in writing so
to do by the Holders of not less than a majority in aggregate principal
amount of the Securities of all series affected then Outstanding; provided
that, if the payment within a reasonable time to the Trustee of the costs,
expenses or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured to
the Trustee by the security afforded to it by the terms of this Indenture,
the Trustee may require reasonable indemnity against such expenses or
liabilities as a condition of proceeding; the reasonable expenses of every
such investigation shall be paid by the Issuer or, if paid by the Trustee
or any predecessor Trustee, shall be repaid by the Issuer upon demand; and
(h) 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 not regularly in its employ and the Trustee shall not be
responsible for any misconduct or negligence on the part of any such agent
or attorney appointed with due care by it hereunder.
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6.3 Trustee Not Responsible for Recitals, Disposition of Securities or
Application of Proceeds Thereof. The recitals contained herein and in the
Securities, except the Trustee's certificates of authentication, shall be taken
as the statements of the Issuer and the Guarantor, as applicable, and the
Trustee assumes no responsibility for the correctness of the same. The Trustee
makes no representation as to the validity or sufficiency of this Indenture or
of the Securities or Coupons. The Trustee shall not be accountable for the use
or application by the Issuer of any of the Securities or of the proceeds
thereof.
6.4 Trustee and Agents May Hold Securities or Coupons, Collections, etc.
The Trustee or any agent of the Issuer or the Trustee, in its individual or any
other capacity, may become the owner or pledgee of Securities or Coupons with
the same rights it would have if it were not the Trustee or such agent and may
otherwise deal with the Issuer and receive, collect, hold and retain collections
from the Issuer with the same rights it would have if it were not the Trustee or
such agent.
6.5 Moneys Held by Trustee. Subject to the provisions of Section 10.4
hereof, all moneys received by the Trustee shall, until used or applied as
herein provided, be held in trust for the purposes for which they were received,
but need not be segregated from other funds except to the extent required by
mandatory provisions of law. Such moneys shall be invested in accordance with
the Issuer's written instructions. Neither the Trustee nor any agent of the
Issuer or the Trustee shall be under any liability for interest on any moneys
received by it hereunder.
6.6 Compensation and Indemnification of Trustee and Its Prior Claim. The
Issuer covenants and agrees to pay to the Trustee from time to time, and the
Trustee shall be entitled to, such compensation as shall be agreed to in writing
between the Issuer and the Trustee (which shall not be limited by any provision
of law in regard to the compensation of a trustee of an express trust) and the
Issuer covenants and agrees to pay or reimburse the Trustee and each predecessor
Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by or on behalf of it in accordance with any of the provisions
of this Indenture (including the reasonable compensation and the expenses and
disbursements of its counsel and of all agents and other persons not regularly
in its employ) except any such expense, disbursement or advance as may arise
from its negligence or bad faith. The Issuer also covenants to indemnify the
Trustee and each predecessor Trustee for, and to hold it harmless against, any
and all loss, liability or expense, including taxes (other than taxes based upon
or measured by the income of the Trustee) incurred without negligence or bad
faith on its part, arising out of or in connection with the acceptance or
administration of this Indenture or the trusts hereunder and its duties
hereunder, including the costs and expenses of defending itself against or
investigating any claim of liability in the premises. The obligations of the
Issuer under this Section to compensate and indemnify the Trustee and each
predecessor Trustee and to pay or reimburse the Trustee and each predecessor
Trustee for expenses, disbursements and advances shall constitute additional
indebtedness hereunder and shall survive the satisfaction and discharge of this
Indenture. Such additional indebtedness shall be a senior claim to that of the
Securities upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the benefit of the Holders of particular
Securities or Coupons, and the Securities are hereby subordinated to such senior
claim.
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When the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 5.1(d) or Section 5.1(e), the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal, state, provincial or foreign
bankruptcy, insolvency or other similar law.
The Trustee is subject to and shall comply with the provisions of Section
311 of the Trust Indenture Act.
6.7 Right of Trustee to Rely on Officers' Certificate, etc. Subject to
Sections 6.1 and 6.2, whenever in the administration of the trusts of this
Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the
part of the Trustee, be deemed to be conclusively proved and established by an
Officers' Certificate delivered to the Trustee, and such certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof.
6.8 Indentures Not Creating Potential Conflicting Interests for the
Trustee. As of the date hereof, the Issuer has no outstanding debt securities
issued pursuant to an indenture of which the Trustee is the trustee.
6.9 Persons Eligible for Appointment as Trustee. The Trustee for each
series of Securities hereunder shall at all times be a corporation organized and
doing business under the laws of the United States of America or of any State or
the District of Columbia having a combined capital and surplus of at least
$50,000,000, and which is authorized under such laws to exercise corporate trust
powers and is subject to supervision or examination by Federal, State or
District of Columbia authority. Such corporation shall have its principal place
of business or an agency in the Borough of Manhattan, The City of New York if
there is such a corporation in such location willing to act upon reasonable and
customary terms and conditions. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. In case at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, the Trustee shall
resign immediately in the manner and with the effect specified in Section 6.10.
The provisions of this Section 6.9 are in furtherance of and subject to
Section 310(a) of the Trust Indenture Act.
6.10 Resignation and Removal; Appointment of Successor Trustee.
(a) The Trustee, or any trustee or trustees hereafter appointed, may
at any time resign with respect to one or more or all series of Securities
by giving written notice of resignation to the Issuer and the Guarantor and
(i) if any Unregistered Securities of a series affected are then
Outstanding, by giving notice of such resignation to the Holders thereof,
by publication at least once in an Authorized Newspaper in the Borough of
Manhattan, The City of New York, and at least once in an Authorized
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Newspaper in London (and, if required by Section 3.6, at least once in an
Authorized Newspaper in Luxembourg), (ii) if any Unregistered Securities of
a series affected are then Outstanding, by mailing notice of such
resignation to the Holders thereof who have filed their names and addresses
with the Trustee within two years preceding the giving of such notice at
such addresses as were so furnished to the Trustee and (iii) by mailing
notice of such resignation to the Holders of then Outstanding Registered
Securities of each series affected at their addresses as they shall appear
on the registry books. Upon receiving such notice of resignation, the
Issuer and the Guarantor shall promptly appoint a successor trustee or
trustees with respect to the applicable series by written instrument in
duplicate, executed by authority of the Board of Directors of the Issuer
and the Board of Directors of the Guarantor, one copy of which instrument
shall be delivered to the resigning Trustee and one copy to the successor
trustee or trustees (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 successor trustee
with respect to the Securities of a particular series); provided that, if
the Issuer and the Guarantor appoint different successor trustees, the
Guarantor's appointment shall prevail. If no successor trustee shall have
been so appointed with respect to any series and have accepted appointment
within 30 days after the mailing of such notice of resignation, the
resigning trustee may petition any court of competent jurisdiction for the
appointment of a successor trustee, or any Securityholder who has been a
bona fide Holder of a Security or Securities of the applicable series for
at least six months may, subject to the provisions of Section 5.12, on
behalf of himself and all others similarly situated, petition any such
court for the appointment of a successor trustee. Such court may thereupon,
after such notice, if any, as it may deem proper and prescribe, appoint a
successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of
Section 310(b) of the Trust Indenture Act with respect to any series
of Securities after written request therefor by the Issuer or by any
Securityholder who has been a bona fide Holder of a Security or
Securities of such series for at least six months; or
(ii) the Trustee shall cease to be eligible in accordance with
the provisions of Section 6.9 and Section 310(a) of the Trust
Indenture Act and shall fail to resign after written request therefor
by the Issuer, the Guarantor or by any Securityholder; or
(iii) the Trustee shall become incapable of acting with respect
to any series of Securities, or shall be adjudged a bankrupt or
insolvent, or a receiver or liquidator 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;
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then, in any such case, (A) the Issuer and the Guarantor may remove the Trustee
with respect to the applicable series of Securities and appoint a successor
trustee for such series by written instrument, in duplicate, executed by order
of the Board of Directors of the Issuer and the Board of Directors of the
Guarantor, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor trustee, (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
successor trustee with respect to the Securities of a particular series);
provided that, if the Issuer and the Guarantor appoint different successor
trustees, the Guarantor's appointment shall prevail or (B) subject to the
provisions of Section 315(e) of the Trust Indenture Act, any Securityholder who
has been a bona fide Holder of a Security or Securities 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 and
the appointment of a successor trustee with respect to such series. Such court
may thereupon, after such notice, if any, as it may deem proper and prescribe,
remove the Trustee and appoint a successor trustee.
(c) The Holders of a majority in aggregate principal amount of the
Securities of each series at the time outstanding may at any time remove
the Trustee with respect to Securities of such series and appoint a
successor trustee with respect to the Securities of such series by
delivering to the Trustee so removed, to the successor trustee so appointed
and to the Issuer and the Guarantor the evidence provided for in Section
7.1 of the action in that regard taken by the Securityholders.
(d) Any resignation or removal of the Trustee with respect to any
series and any appointment of a successor trustee with respect to such
series pursuant to any of the provisions of this Section 6.10 shall become
effective upon acceptance of appointment by the successor trustee as
provided in Section 6.11.
(e) The Issuer shall give notice of each removal of the Trustee (i) if
any Unregistered Securities of a series affected are then Outstanding, to
the Holders thereof, by publication of such notice at least once in an
Authorized Newspaper in The City of New York and at least once in an
Authorized Newspaper in London (and, if required by Section 3.6, at least
once in an Authorized Newspaper in Luxembourg), (ii) if any Unregistered
Securities of a series affected are then Outstanding, to the Holders
thereof who have filed their names and addresses with the Trustee within
two years preceding the giving of such notice, by mailing such notice to
such Holders at such addresses as were so furnished to the Trustee (and the
Trustee shall make such information available to the Issuer for such
purpose) and (iii) to the Holders of Registered Securities of each series
affected, by mailing such notice to such Holders at their addresses as they
shall appear on the registry books.
6.11 Acceptance of Appointment by Successor Trustee. Any successor trustee
appointed as provided in Section 6.10 shall execute and deliver to the Issuer,
the Guarantor and its predecessor trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee with respect to all or any applicable series shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become vested with all rights, powers, duties and obligations
of its predecessor hereunder with respect to such series, with like effect as if
originally named as trustee for such series hereunder; but, nevertheless, on the
written request of the Issuer, the Guarantor or of the successor trustee, upon
51
payment of its charges then unpaid, the trustee ceasing to act shall, subject to
Section 10.4, pay over to the successor trustee all moneys at the time held by
it hereunder and shall execute and deliver an instrument transferring to such
successor trustee all such rights, powers, duties and obligations. Upon request
of any such successor trustee, the Issuer and the Guarantor shall execute any
and all instruments in writing for more fully and certainly vesting in and
confirming to such successor trustee all such rights and powers. Any trustee
ceasing to act shall, nevertheless, retain a prior claim upon all property or
funds held or collected by such trustee to secure any amounts then due it
pursuant to the provisions of Section 6.6.
If a successor trustee is appointed with respect to the Securities of one
or more (but not all) series, the Issuer, the Guarantor, the predecessor Trustee
and each successor trustee with respect to the Securities of such series shall
execute and deliver an indenture supplemental hereto which shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the predecessor Trustee with respect to the
Securities of any series as to which the predecessor Trustee is not retiring
shall continue to be vested in the predecessor Trustee, and 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 under separate
indentures.
No successor trustee with respect to any series of Securities shall accept
appointment as provided in this Section 6.11 unless at the time of such
acceptance such successor trustee shall be qualified under Section 310(b) of the
Trust Indenture Act and eligible under the provisions of Section 6.9.
Upon acceptance of appointment by any successor trustee as provided in this
Section 6.11, the Issuer shall give notice thereof (a) if any Unregistered
Securities of a series affected are then Outstanding, to the Holders thereof, by
publication of such notice at least once in an Authorized Newspaper in the
Borough of Manhattan, The City of New York and at least once in an Authorized
Newspaper in London (and, if required by Section 3.6, at least once in an
Authorized Newspaper in Luxembourg), (b) if any Unregistered Securities of a
series affected are then Outstanding, to the Holders thereof who have filed
their names and addresses with the Trustee within two years preceding the giving
of such notice, by mailing such notice to such Holders at such addresses as were
so furnished to the Trustee (and the Trustee shall make such information
available to the Issuer for such purpose) and (c) to the Holders of Registered
Securities of each series affected, by mailing such notice to such Holders at
their addresses as they shall appear on the registry books. If the acceptance of
appointment is substantially contemporaneous with the resignation, then the
notice called for by the preceding sentence may be combined with the notice
called for by Section 6.10. If the Issuer fails to give such notice within ten
days after acceptance of appointment by the successor trustee, the successor
trustee shall cause such notice to be given at the expense of the Issuer.
6.12 Merger, Conversion, Consolidation or Succession to Business of
Trustee. Any corporation into which the Trustee may be 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
52
succeeding to the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided that such corporation shall be
qualified under Section 310(b) of the Trust Indenture Act and eligible under the
provisions of Section 6.9, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities of any series shall have
been authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any predecessor Trustee and deliver
such Securities so authenticated; and, in case at that time any of the
Securities of any series shall not have been authenticated, any successor to the
Trustee may authenticate such Securities either in the name of any predecessor
hereunder or in the name of the successor Trustee; and in all such cases such
certificate shall have the full force which it is anywhere in the Securities of
such series or in this Indenture provided that the certificate of the Trustee
shall have; provided, that the right to adopt the certificate of authentication
of any predecessor Trustee or to authenticate Securities of any series in the
name of any predecessor Trustee shall apply only to its successor or successors
by merger, conversion or consolidation.
6.13 Appointment of Authenticating Agent. As long as any Securities of a
series remain Outstanding, the Trustee may, by an instrument in writing, appoint
with the approval of the Issuer an authenticating agent (the "Authenticating
Agent") which shall be authorized to act on behalf of the Trustee to
authenticate Securities, including Securities issued upon exchange, registration
of transfer, partial redemption or pursuant to Section 2.9. Securities of each
such series authenticated by such Authenticating Agent shall be entitled to the
benefits of this Indenture and the related Guarantees and shall be valid and
obligatory for all purposes as if authenticated by the Trustee. Whenever
reference is made in this Indenture to the authentication and delivery of
Securities of any series by the Trustee or to 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 for such series and
a Certificate of Authentication executed on behalf of the Trustee by such
Authenticating Agent. Such Authenticating Agent shall at all times be a
corporation organized and doing business under the laws of the United States of
America or of any State or the District of Columbia, authorized under such laws
to exercise corporate trust powers, having a combined capital and surplus of at
least $50,000,000 (determined as provided in Section 6.9 with respect to the
Trustee) and subject to supervision or examination by Federal, State or District
of Columbia authority.
Any corporation into which any 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 any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency business
of any Authenticating Agent, shall continue to be the Authenticating Agent with
respect to all series of Securities for which it served as Authenticating Agent
without the execution or filing of any paper or any further act on the part of
the Trustee or such Authenticating Agent.
Any Authenticating Agent may at any time, and if it shall cease to be
eligible shall, resign by giving written notice of resignation to the Trustee,
the Issuer and the Guarantor. The Trustee may at any time terminate the agency
of an Authenticating Agent by giving written notice thereof to such
53
Authenticating Agent, the Issuer and the Guarantor. Upon receiving such a notice
of resignation or upon such a termination, or in case at any time any
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 6.13 with respect to one or more series of
Securities, the Trustee shall upon receipt of an Issuer Order appoint a
successor Authenticating Agent and the Issuer shall provide notice of such
appointment to all Holders of Securities of such series in the manner and to the
extent provided in Section 11.4. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all rights,
powers, duties and responsibilities of its predecessor hereunder, with like
effect as if originally named as Authenticating Agent. The Issuer agrees to pay
to the Authenticating Agent for such series from time to time reasonable
compensation. The Authenticating Agent for the Securities of any series shall
have no responsibility or liability for any action taken by it as such at the
direction of the Trustee.
Sections 6.2, 6.3, 6.4, 6.6, 6.9 and 7.3 shall be applicable to any
Authenticating Agent.
ARTICLE VII
CONCERNING THE SECURITYHOLDERS
7.1 Evidence of Action Taken by Securityholders. Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by a specified percentage in principal
amount of the Securityholders of any or all series may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such specified percentage of Securityholders 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. Proof of execution of any instrument or of a writing appointing
any such agent shall be sufficient for any purpose of this Indenture and
(subject to Sections 6.1 and 6.2) conclusive in favor of the Trustee, the Issuer
and the Guarantor, if made in the manner provided in this Article.
7.2 Proof of Execution of Instruments and of Holding of Securities. Subject
to Sections 6.1 and 6.2, the execution of any instrument by a Securityholder or
his agent or proxy may be proved in the following manner:
(a) The fact and date of the execution by any Holder of any instrument
may be proved by the certificate of any notary public or other officer of
any jurisdiction authorized to take acknowledgments of deeds or administer
oaths that the person executing such instruments acknowledged to him the
execution thereof, or by an affidavit of a witness to such execution sworn
to before any such notary or other such officer. Where such execution is by
or on behalf of any legal entity other than an individual, such certificate
or affidavit shall also constitute sufficient proof of the authority of the
person executing the same. The fact of the holding by any Holder of an
Unregistered Security of any series, and the identifying number of such
Security and the date of his holding the same, may be proved by the
production of such Security or by a certificate executed by any trust
company, bank, banker or recognized securities dealer wherever situated
satisfactory to the Trustee, if such certificate shall be deemed by the
Trustee to be satisfactory. Each such certificate shall be dated and shall
state that on the date thereof a Security of such series bearing a
specified identifying number was deposited with or exhibited to such trust
company, bank, banker or recognized securities dealer by the person named
in such certificate. Any such certificate may be issued in respect of one
54
or more Unregistered Securities of one or more series specified therein.
The holding by the person named in any such certificate of any Unregistered
Securities of any series specified therein shall be presumed to continue
for a period of one year from the date of such certificate unless at the
time of any determination of such holding (1) another certificate bearing a
later date issued in respect of the same Securities shall be produced, or
(2) the Security of such series specified in such certificate shall be
produced by some other person, or (3) the Security of such series specified
in such certificate shall have ceased to be Outstanding. Subject to
Sections 6.1 and 6.2, the fact and date of the execution of any such
instrument and the amount and numbers of Securities of any series held by
the person so executing such instrument and the amount and numbers of any
Security or Securities for such series may also be proven in accordance
with such reasonable rules and regulations as may be prescribed by the
Trustee for such series or in any other manner which the Trustee for such
series may deem sufficient.
(b) In the case of Registered Securities, the ownership of such
Securities shall be proved by the Security register or by a certificate of
the Security registrar.
The Issuer may set a record date for purposes of determining the identity
of Holders of Registered Securities of any series entitled to vote or consent to
any action referred to in Section 7.1, which record date may be set at any time
or from time to time by notice to the Trustee, for any date or dates (in the
case of any adjournment or reconsideration) not more than 60 days nor less than
five days prior to the proposed date of such vote or consent, and thereafter,
notwithstanding any other provisions hereof, with respect to Registered
Securities of any series, only Holders of Registered Securities of such series
of record on such record date shall be entitled to so vote or give such consent
or revoke such vote or consent.
7.3 Holders to be Treated as Owners. The Issuer, the Guarantor, the Trustee
and any agent of the Issuer, the Guarantor or the Trustee may deem and treat the
person in whose name any Security shall be registered upon the Security register
for such series as the absolute owner of such Security (whether or not such
Security shall be overdue and notwithstanding any notation of ownership or other
writing thereon) for the purpose of receiving payment of or on account of the
principal of and, subject to the provisions of this Indenture, interest on such
Security and for all other purposes; and neither the Issuer nor the Trustee nor
any agent of the Issuer or the Trustee shall be affected by any notice to the
contrary. The Issuer, the Trustee and any agent of the Issuer or the Trustee may
treat the Holder of any Unregistered Security and the Holder of any Coupon as
the absolute owner of such Unregistered Security or Coupon (whether or not such
Unregistered Security or Coupon shall be overdue) for the purpose of receiving
payment thereof or on account thereof and for all other purposes and neither the
Issuer, the Trustee, nor any agent of the Issuer or the Trustee shall be
affected by any notice to the contrary. All such payments so made to any such
person, or upon his order, shall be valid, and, to the extent of the sum or sums
so paid, effectual to satisfy and discharge the liability for moneys payable
upon any such Unregistered Security or Coupon.
55
7.4 Securities Owned by Issuer Deemed Not Outstanding. In determining
whether the Holders of the requisite aggregate principal amount of Outstanding
Securities of any or all series have concurred in any direction, consent or
waiver under this Indenture, Securities which are owned by the Issuer, the
Guarantor or any other obligor on the Securities with respect to which such
determination is being made or by any Person directly or indirectly controlling
or controlled by or under direct or indirect common control with the Issuer, the
Guarantor or any other obligor on the Securities with respect to which such
determination is being made shall be disregarded and deemed not to be
Outstanding for the purpose of any such determination, except that for the
purpose of determining whether the Trustee shall be protected in relying on any
such direction, consent or waiver only Securities which the Trustee knows are 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 Issuer, the Guarantor or any other
obligor upon the Securities or any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Issuer, the
Guarantor or any other obligor on the Securities. In case of a dispute as to
such right, the advice of counsel shall be full protection in respect of any
decision made by the Trustee in accordance with such advice. Upon request of the
Trustee, the Issuer shall furnish to the Trustee promptly an Officers'
Certificate listing and identifying all Securities, if any, known by the Issuer
to be owned or held by or for the account of any of the above described Persons;
and, subject to Sections 6.1 and 6.2, the Trustee shall be entitled to accept
such Officers' Certificate as conclusive evidence of the facts therein set forth
and of the fact that all Securities not listed therein are Outstanding for the
purpose of any such determination.
7.5 Right of Revocation of Action Taken. At any time prior to (but not
after) the evidencing to the Trustee, as provided in Section 7.1, of the taking
of any action by the Holders of the percentage in aggregate principal amount of
the Securities of any or all series, as the case may be, specified in this
Indenture in connection with such action, any Holder of a Security the serial
number of which is shown by the evidence to be included among the serial numbers
of the Securities the Holders of which have consented to such action may, by
filing written notice at the Corporate Trust Office and upon proof of holding as
provided in this Article, revoke such action so far as concerns such Security.
Except as aforesaid, any such action taken by the Holder of any Security shall
be conclusive and binding upon such Holder and upon all future Holders and
owners of such Security and of any Securities issued in exchange or substitution
therefor or on registration of transfer thereof, irrespective of whether or not
any notation in regard thereto is made upon any such Security. Any action taken
by the Holders of the percentage in aggregate principal amount of the Securities
of any or all series, as the case may be, specified in this Indenture in
connection with such action shall be conclusively binding upon the Issuer, the
Guarantor, the Trustee and the Holders of all the Securities affected by such
action.
7.6 Record Date for Consents and Waivers. The Issuer may, but shall not be
obligated to, direct the Trustee to establish a record date for the purpose of
determining the Persons entitled to (i) waive any past default with respect to
the Securities of such series in accordance with Section 5.10, (ii) consent to
any supplemental indenture in accordance with Section 8.2 or (iii) waive
compliance with any term, condition or provision of any covenant hereunder (if
the Indenture should expressly provide for such waiver). If a record date is
fixed, the Holders on such record date, or their duly designated proxies, shall
be entitled to waive any such past default, consent to any such supplemental
indenture or waive compliance with any such term, condition or provision,
whether or not such Holder remains a Holder after such record date; provided,
however, that unless such waiver or consent is obtained from the Holders, or
56
duly designated proxies, of the requisite principal amount of Outstanding
Securities of such series prior to the date which is the 90th day after such
record date, any such waiver or consent previously given shall automatically and
without further action by any Holder be canceled and of no further effect.
ARTICLE VIII
SUPPLEMENTAL INDENTURES
8.1 Supplemental Indentures Without Consent of Securityholders. The Issuer
and the Guarantor, each when authorized by a resolution of its Board of
Directors (which resolution may provide general terms or parameters for such
action and may provide that the specific terms of such action may be determined
in accordance with or pursuant to an Issuer Order), and the Trustee may from
time to time and at any time enter into an indenture or indentures supplemental
hereto for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge any property or
assets to the Trustee as security for one or more series of the Securities
or the related Guarantees;
(b) to evidence the succession of another entity to the Issuer or the
Guarantor, or successive successions, and the assumption by the successor
of the covenants, agreements and obligations of the Issuer or the Guarantor
pursuant to Article IX;
(c) to add to the covenants of the Issuer or the Guarantor such
further covenants, restrictions, conditions or provisions as the Issuer or
the Guarantor, as the case may be, and the Trustee shall consider to be for
the protection of the Holders of Securities or Coupons, and to make the
occurrence, or the occurrence and continuance, of a default in any such
additional covenants, restrictions, conditions or provisions an Event of
Default permitting the enforcement of all or any of the several remedies
provided in this Indenture as herein set forth; provided, that in respect
of any such additional covenant, restriction, condition or provision such
supplemental indenture may provide for a particular period of grace after
default (which period may be shorter or longer than that allowed in the
case of other defaults) or may provide for an immediate enforcement upon
such an Event of Default or may limit the remedies available to the Trustee
upon such an Event of Default or may limit the right of the Holders of a
majority in aggregate principal amount of the Securities of such series to
waive such an Event of Default;
(d) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any
supplemental indenture, or to make any other provisions as the Issuer may
deem necessary or desirable, provided that no such action shall adversely
affect the interests of the Holders of the Securities or Coupons;
57
(e) to establish the forms or terms of Securities of any series or of
the Coupons appertaining to such Securities as permitted by Sections 2.1
and 2.3; and
(f) 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.
The Trustee is hereby authorized to join with the Issuer and the Guarantor
in the execution of any such supplemental indenture, to make any further
appropriate agreements and stipulations which may be therein contained and to
accept the conveyance, transfer, assignment, mortgage or pledge of any property
thereunder, but the Trustee 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.
Any supplemental indenture authorized by the provisions of this Section may
be executed without the consent of the Holders of any of the Securities at the
time outstanding, notwithstanding any of the provisions of Section 8.2.
8.2 Supplemental Indentures With Consent of Securityholders. With the
consent (evidenced as provided in Article VII) of the Holders of not less than a
majority in aggregate principal amount of the Securities at the time Outstanding
of all series affected by such supplemental indenture (voting as a single
class), the Issuer and the Guarantor, each when authorized by a resolution of
its Board of Directors (which resolution may provide general terms or parameters
for such action and may provide that the specific terms of such action may be
determined in accordance with or pursuant to an Issuer Order), and the Trustee
may, from time to time and at any time, 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 any
supplemental indenture or of modifying in any manner the rights of the Holders
of the Securities of each such series or of the Coupons appertaining to such
Securities; provided, that, without the consent of each Holder affected, no such
supplemental indenture shall:
(a) reduce the amount of Securities whose Holders must consent to an
amendment, supplement or waiver;
(b) reduce the rate of or change the time for payment of interest,
including default interest, on any Security;
(c) reduce the principal of or premium, if any, on or any mandatory
sinking fund payment with respect to, or change the stated maturity of, any
Security or reduce the amount of the principal that would be due and
payable upon a declaration of acceleration of the maturity thereof;
(d) reduce the premium, if any, payable upon the redemption of any
Security or change the time at which any Security may or shall be redeemed;
58
(e) change the coin or currency or currencies (including composite
currencies) in which any Security or any premium or interest with respect
thereto are payable;
(f) impair the right to institute suit for the enforcement of any
payment of principal of or premium, if any, or interest on any Security;
(g) make any change in the percentage of principal amount of
Securities necessary to waive compliance with certain provisions of this
Indenture pursuant to Section 5.6 or 5.7 or make any change in this
sentence of Section 8.2;
(h) waive a continuing default or Event of Default in the payment of
principal of or premium, if any, or interest on the Securities; or
(i) modify or affect the obligations of the Guarantor under Article
XIII in any manner adverse to the Holders.
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 Holders of Securities of such series, or of Coupons appertaining to
such Securities, with respect to such covenant provision, shall be deemed not to
affect the rights under this Indenture of the Holders of Securities of any other
series or of the Coupons appertaining to such Securities.
Upon the request of the Issuer, accompanied by a copy of a resolution of
the Board of Directors of the Issuer (which resolution may provide general terms
or parameters for such action and may provide that the specific terms of such
action may be determined in accordance with or pursuant to an Issuer Order)
certified by the Secretary or an Assistant Secretary of the Issuer authorizing
the execution of any such supplemental indenture, and upon the filing with the
Trustee of evidence of the consent of the Holders of the Securities as aforesaid
and other documents, if any, required by Section 7.1, the Trustee shall join
with the Issuer and the Guarantor in the execution of such supplemental
indenture unless such supplemental indenture affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise, in which case the
Trustee may in its discretion, but shall not be obligated to, enter into such
supplemental indenture.
It shall not be necessary for the consent of the Securityholders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such consent shall approve the substance thereof.
Promptly after the execution by the Issuer, the Guarantor and the Trustee
of any supplemental indenture pursuant to the provisions of this Section, the
Trustee shall give notice thereof (i) to the Holders of then Outstanding
Registered Securities of each series affected thereby, by mailing a notice
thereof by first-class mail to such Holders at their addresses as they shall
appear on the Security register, (ii) if any Unregistered Securities of a series
affected thereby are then Outstanding, to the Holders thereof who have filed
their names and addresses with the Trustee within two years preceding the giving
of such notice, by mailing a notice thereof by first-class mail to such Holders
at such addresses as were so furnished to the Trustee and (iii) if any
Unregistered Securities of a series affected thereby are then Outstanding, to
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all Holders thereof, by publication of a notice thereof at least once in an
Authorized Newspaper in the Borough of Manhattan, The City of New York and at
least once in an Authorized Newspaper in London (and, if required by Section
3.6, at least once in an Authorized Newspaper in Luxembourg), and in each case
such notice shall set forth in general terms the substance of such supplemental
Indenture. Failure of the Issuer to give such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such
supplemental indenture.
8.3 Effect of Supplemental Indenture. Upon the execution of any
supplemental indenture pursuant to the provisions hereof, this Indenture shall
be and be deemed to be modified and amended in accordance therewith and the
respective rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Issuer, the Guarantor and the Holders
of Securities of each series affected thereby shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such modifications
and amendments, and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of this
Indenture for any and all purposes.
8.4 Documents to Be Given to Trustee. The Trustee, subject to the
provisions of Sections 6.1 and 6.2, may receive an Officers' Certificate and an
Opinion of Counsel as conclusive evidence that any supplemental indenture
executed pursuant to this Article VIII complies with the applicable provisions
of this Indenture.
8.5 Notation on Securities in Respect of Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of any
supplemental indenture pursuant to the provisions of this Article may bear a
notation in form approved by the Trustee for such series as to any matter
provided for by such supplemental indenture or as to any action taken by
Securityholders. If the Issuer or the Trustee shall so determine, new Securities
of any series so modified as to conform, in the opinion of the Trustee and the
Board of Directors of the Issuer, to any modification of this Indenture
contained in any such supplemental indenture may be prepared by the Issuer,
authenticated by the Trustee and delivered in exchange for the Securities of
such series then Outstanding.
ARTICLE IX
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
9.1 Limitations on Mergers and Consolidations of the Guarantor. The
Guarantor shall not, in any transaction or series of transactions, consolidate
with or merge into any Person, or sell, lease, convey, transfer or otherwise
dispose of all or substantially all of its assets to any Person, unless:
(a) either (i) the Guarantor shall be the continuing corporation or
(ii) the Person (if other than the Guarantor) formed by such consolidation
or into which the Guarantor is merged, or to which such sale, lease,
conveyance, transfer or other disposition shall be made (collectively, the
"Successor"), is organized and validly existing under the laws of the
United States, any State thereof or the District of Columbia, and expressly
assumes by supplemental indenture the performance of the Guarantees and the
Guarantor's covenants and obligations under this Indenture and the
Securities;
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(b) immediately after giving effect to such transaction or series of
transactions, no default or Event of Default shall have occurred and be
continuing or would result therefrom; and
(c) the Guarantor delivers to the Trustee an Officers' Certificate and
an Opinion of Counsel prepared in accordance with Section 11.5, each
stating that the transaction and such supplemental indenture comply with
this Indenture.
9.2 Successor Person Substituted. Upon any consolidation or merger of the
Guarantor or any sale, lease, conveyance, transfer or other disposition of all
or substantially all of the assets of the Guarantor in accordance with Section
9.1, the Successor formed by such consolidation or into or with which the
Guarantor is merged or to which such sale, lease, conveyance, transfer or other
disposition is made shall succeed to, and be substituted for, and may exercise
every right and power of the Guarantor under this Indenture, the Guarantees and
the Securities with the same effect as if such Successor had been named as the
Guarantor herein and the predecessor Guarantor, in the case of a sale,
conveyance, transfer or other disposition, shall be released from all
obligations under this Indenture and the Securities.
9.3 Assignment by and Substitution of the Issuer. The rights and
obligations of the Issuer under this Indenture and the Securities may be
assigned or transferred (a) to another Person with which the Issuer is
amalgamated, consolidated or merged or which acquires by conveyance or transfer
any of the properties or assets of the Issuer; (b) to the Guarantor or (c) to
another Subsidiary. Provided that the requirements of this Section 9.3 for such
assignment or transfer shall have been met, upon any such assignment or
transfer, all of the obligations of the Issuer under this Indenture and the
Securities shall cease and the Issuer shall be released from all obligations
under this Indenture and the Securities. In the case of any assignment other
than to the Guarantor, the covenants of the Guarantor set forth in this
Indenture shall remain in full force and effect or the Guarantor shall execute a
new guarantee agreement containing provisions substantially the same as such
covenants. Any successor to the Issuer shall expressly assume by supplemental
indenture the due and punctual payment of the principal of (and premium, if any)
and interest on all the Securities and the performance of the Issuer's covenants
and obligations under this Indenture and the Securities. In addition, in the
event the Issuer assigns all of its rights and obligations in respect of this
Indenture and the Securities to the Guarantor, the provisions of Article XIII
shall no longer apply to the Securities, but the other covenants of the
Guarantor set forth in this Indenture and any other covenants of the Guarantor
provided with respect to any series of Securities shall remain in full force and
effect.
ARTICLE X
SATISFACTION AND DISCHARGE OF
INDENTURE; UNCLAIMED MONEYS
10.1 Satisfaction and Discharge of Indenture.
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(a) If at any time (i) the Issuer or the Guarantor shall have paid or
caused to be paid the principal of and interest on all the Securities of
any series Outstanding hereunder and all Coupons appertaining thereto
(other than Securities of such series and Coupons appertaining thereto
which have been destroyed, lost or stolen and which have been replaced or
paid as provided in Section 2.9) as and when the same shall have become due
and payable, or (ii) the Issuer or the Guarantor shall have delivered to
the Trustee for cancellation all Securities of any series theretofore
authenticated and all Coupons appertaining thereto (other than any
Securities of such series and Coupons appertaining thereto which shall have
been destroyed, lost or stolen and which shall have been replaced or paid
as provided in Section 2.9) or (iii) in the case of any series of
Securities where the exact amount (including the currency of payment) of
principal of and interest due on such Securities can be determined at the
time of making the deposit referred to in clause (B) below, (A) all the
Securities of such series and all Coupons appertaining thereto not
theretofore delivered to the Trustee for cancellation shall have become due
and payable, or are by their terms to become due and payable within one
year or are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption, and (B)
the Issuer or the Guarantor shall have irrevocably deposited or caused to
be irrevocably deposited with the Trustee 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 the Securities of
such series and Coupons appertaining thereto, (x) cash in an amount, or (y)
in the case of any series of Securities the payments on which may only be
made in Dollars, direct obligations of the United States of America, backed
by its full faith and credit ("U.S. Government Obligations"), maturing as
to principal ----------------------------- and interest at such times and
in such amounts as will insure the availability of cash in an amount, or
(C) a combination thereof, 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 the principal and
interest on all Securities of such series and Coupons appertaining thereto
on each date that such principal or interest is due and payable (whether at
maturity or upon redemption (through operation of a mandatory sinking fund
or otherwise) other than any redemption at the option of the Holder); and
if, in any such case, the Issuer or the Guarantor shall also pay or cause
to be paid all other sums payable hereunder by the Issuer, then all of the
Securities of such series and any Coupons appertaining thereto shall be
deemed paid and discharged and the provisions of this Indenture with
respect to such Securities and Coupons shall cease to be of further effect
(except as to (1) rights of registration of transfer, exchange of
Securities of such series and of Coupons appertaining thereto and the
Issuer's right of optional redemption, if any, (2) substitution of
mutilated, defaced, destroyed, lost or stolen Securities or Coupons, (3)
rights of Holders of Securities and Coupons appertaining thereto to receive
payments of principal thereof and interest thereon, upon the stated due
dates therefor (whether at maturity or upon redemption (through operation
of a mandatory sinking fund or otherwise) other than any redemption at the
option of the Holder) (but not upon acceleration), (4) the rights,
obligations, duties and immunities of the Trustee hereunder, (5) the rights
of the Holders of Securities of such series and Coupons appertaining
thereto as beneficiaries hereof with respect to the property so deposited
with the Trustee payable to all or any of them, and (6) the obligations of
the Issuer under Section 3.2) and the Trustee, on demand of the Issuer or
the Guarantor accompanied by an Officers' Certificate and an Opinion of
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Counsel which complies with Section 11.5 and at the cost and expense of the
Issuer or the Guarantor, shall execute proper instruments acknowledging the
same. The Issuer and the Guarantor agree to reimburse the Trustee for any
costs or expenses thereafter reasonably and properly incurred and to
compensate the Trustee for any services thereafter reasonably and properly
rendered by the Trustee in connection with this Indenture or the Securities
of such series.
(b) In addition to discharge of the Indenture pursuant to the next
preceding paragraph, in the case of any series of Securities where the
exact amounts (including the currency of payment) of principal of and
interest due on such Securities can be determined at the time of making the
deposit referred to in clause (A) below, on the 91st day after the date of
such deposit all the Securities of such a series and any Coupons
appertaining thereto shall be deemed paid and discharged and the provisions
of this Indenture with respect to the Securities and Coupons shall cease to
be of further effect (except as to (i) rights of registration of transfer
and exchange of Securities of such series and of Coupons appertaining
thereto and the Issuer's right of optional redemption, if any, (ii)
substitution of mutilated, defaced, destroyed, lost or stolen Securities or
Coupons, (iii) rights of Holders of Securities and Coupons appertaining
thereto to receive payments of principal thereof and interest thereon, upon
the stated due dates therefor (whether at maturity or upon redemption
(through operation of a mandatory sinking fund or otherwise) other than any
redemption at the option of the Holder) (but not upon acceleration), (iv)
the rights, obligations, duties and immunities of the Trustee hereunder,
(v) the rights of the Holders of Securities of such series and Coupons
appertaining thereto as beneficiaries hereof with respect to the property
so deposited with the Trustee payable to all or any of them and (vi) the
obligations of the Issuer under Section 3.2) and the Trustee, at the
expense of the Issuer or the Guarantor, shall at the Issuer's or the
Guarantor's request, execute proper instruments acknowledging the same, if:
(A) the Issuer or the Guarantor has irrevocably deposited or
caused to be irrevocably deposited with the Trustee 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 the Securities of such series and Coupons appertaining
thereto, (1) cash in an amount, or (2) in the case of any series of
Securities the payments on which may only be made in Dollars, U.S.
Government Obligations, maturing as to principal and interest at such
times and in such amounts as will insure the availability of cash in
an amount or (3) a combination thereof, 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 the principal and interest on all Securities of such series and
Coupons appertaining thereto on each date that such principal or
interest is due and payable (whether at maturity or upon mandatory
redemption (through operation of a mandatory sinking fund or
otherwise) other than any redemption at the option of the Holder);
(B) no Event of Default or event which with notice or lapse of
time or both would become an Event of Default with respect to the
Securities shall have occurred and be continuing on the date of such
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deposit or, insofar as subsections 5.1(d) and (e) are concerned, at
any time during the period ending on the 91st day after the date of
such deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period);
(C) such deposit and discharge will not result in a breach or
violation of, or constitute a default under, any other agreement or
instrument to which the Issuer or the Guarantor is a party or by which
it is bound;
(D) such deposit and discharge shall not cause the Trustee to
have a conflicting interest as defined in Section 310(b) of the Trust
Indenture Act;
(E) such deposit and discharge shall not cause any Securities
then listed on any registered national securities exchange to be
delisted;
(F) the Issuer or the Guarantor shall have delivered to the
Trustee an Opinion of Counsel based on the fact that (x) the Issuer or
the Guarantor has received from, or there has been published by, the
U.S. Internal Revenue Service a ruling or (y) since the date hereof,
there has been a change in the applicable U.S. Federal income tax law,
in either case to the effect that, and such opinion shall confirm
that, the Holders of the Securities of such series and Coupons
appertaining thereto will not recognize income, gain or loss for U.S.
Federal income tax purposes as a result of such deposit, defeasance
and discharge and will be subject to U.S. Federal income tax on the
same amount, in the same manner and at the same times as would have
been the case if such deposit and discharge had not occurred; and
(G) the Issuer or the Guarantor shall have delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent relating to the deposit and
discharge contemplated by this provision have been complied with.
(c) The Issuer and the Guarantor shall be released from their
obligations under Sections 3.7, 3.8 and 9.1 and any other covenants
specified pursuant to Section 2.3 with respect to the Securities of any
series and any Coupons appertaining thereto on and after the date the
conditions set forth below are satisfied (hereinafter, "covenant
defeasance"). For this purpose, such covenant defeasance means that, with
respect to the Outstanding Securities of the applicable series, the Issuer
and the Guarantor may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in such Section or
any such covenant, whether directly or indirectly by reason of any
reference elsewhere herein to such Section or any such covenant or by
reason of any reference in such Section or any such covenant to any other
provision herein or in any other document and such omission to comply shall
not constitute an Event of Default under Section 5.1, but the remainder of
this Indenture and such Securities and Coupons shall be unaffected thereby.
The following shall be the conditions to application of this subsection (c)
of this Section 10.1:
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(i) The Issuer or the Guarantor has irrevocably deposited or
caused to be irrevocably deposited with the Trustee 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 the Securities of such series and Coupons appertaining
thereto, (A) cash in an amount, or (B) in the case of any series of
Securities the payments on which may only be made in Dollars, U.S.
Government Obligations maturing as to principal and interest at such
times and in such amounts as will insure the availability of cash in
an amount or (C) a combination thereof, 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 the principal and interest on all Securities of such series and
Coupons appertaining thereto on each date that such principal or
interest is due and payable (whether at maturity or upon redemption
(through operation of a mandatory sinking fund or otherwise) other
than any redemption at the option of the Holder).
(ii) No Event of Default or event which with notice or lapse of
time or both would become an Event of Default with respect to the
Securities shall have occurred and be continuing on the date of such
deposit or, insofar as subsections 5.1(d) and (e) are concerned, at
any time during the period ending on the 91st day after the date of
such deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period).
(iii) Such covenant defeasance will not result in a breach or
violation of, or constitute a default under, any agreement or
instrument to which the Issuer is a party or by which it is bound.
(iv) Such covenant defeasance shall not cause the Trustee to have
a conflicting interest as defined in Section 310(b) of the Trust
Indenture Act.
(v) Such covenant defeasance shall not cause any Securities then
listed on any registered national securities exchange to be delisted.
(vi) The Issuer or the Guarantor shall have delivered to the
Trustee an Opinion of Counsel to the effect that the Holders of the
Securities of such series and Coupons appertaining thereto will not
recognize income, gain or loss for Federal income tax purposes as a
result of such covenant defeasance and will be subject to Federal
income tax on the same amounts, in the same manner and at the same
times as would have been the case if such covenant defeasance had not
occurred.
(vii) The Issuer or the Guarantor shall have delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent relating to the covenant
defeasance contemplated by this provision have been complied with.
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10.2 Application by Trustee of Funds Deposited for Payment of Securities.
Subject to Section 10.4, all moneys and Securities deposited with the Trustee
(or other trustee) pursuant to Section 10.1 shall be held in trust and applied
by it to the payment, either directly or through any paying agent (including the
Issuer acting as its own paying agent), to the Holders of the particular
Securities of such series and of Coupons appertaining thereto for the payment or
redemption of which such moneys or Securities have been deposited with the
Trustee, of all sums due and to become due thereon for principal and interest;
but such moneys or Securities need not be segregated from other funds except to
the extent required by law.
10.3 Repayment of Moneys Held by Paying Agent. In connection with the
satisfaction and discharge of this Indenture with respect to Securities of any
series, all moneys then held by any paying agent under the provisions of this
Indenture with respect to such series of Securities shall, upon demand of the
Issuer or the Guarantor, be repaid to it or paid to the Trustee and thereupon
such paying agent shall be released from all further liability with respect to
such moneys.
10.4 Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two
Years. Any moneys deposited with or paid to the Trustee or any paying agent for
the payment of the principal of or interest on any Security of any series or
Coupons attached thereto and not applied but remaining unclaimed for two years
after the date upon which such principal or interest shall have become due and
payable, shall, upon the written request of the Issuer and unless otherwise
required by mandatory provisions of applicable escheat or abandoned or unclaimed
property law, be repaid to the Issuer by the Trustee for such series or such
paying agent, and the Holder of the Securities of such series and of any Coupons
appertaining thereto shall, unless otherwise required by mandatory provisions of
applicable escheat or abandoned or unclaimed property laws, thereafter look only
to the Issuer for any payment which such Holder may be entitled to collect, and
all liability of the Trustee or any paying agent with respect to such moneys
shall thereupon cease; provided, however, that the Trustee or such paying agent,
before being required to make any such repayment with respect to moneys
deposited with it for any payment (a) in respect of Registered Securities of any
series, shall, at the expense of the Issuer, mail by first-class mail to Holders
of such Securities at their addresses as they shall appear on the Security
register, and (b) in respect of Unregistered Securities of any series, shall at
the expense of the Issuer cause to be published once, in an Authorized Newspaper
in the Borough of Manhattan, The City of New York and once in an Authorized
Newspaper in London (and if required by Section 3.6, once in an Authorized
Newspaper in Luxembourg), notice, that such moneys remain and that, after a date
specified therein, which shall not be less than 30 days from the date of such
mailing or publication, any unclaimed balance of such money then remaining will
be repaid to the Issuer.
10.5 Indemnity for U.S. Government Obligations. The Issuer 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
10.1 or the principal or interest received in respect of such obligations.
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ARTICLE XI
MISCELLANEOUS PROVISIONS
11.1 Incorporators, Stockholders, Officers, Directors and Employees of
Issuer and Guarantor Exempt from Individual Liability. No recourse under or upon
any obligation, covenant or agreement contained in this Indenture, or in any
Security, or because of any indebtedness evidenced thereby, shall be had against
any incorporator, as such or against any past, present or future stockholder,
officer, director or employee, as such, of the Issuer or the Guarantor, as
applicable or of any successor, either directly or through the Issuer or the
Guarantor or any such successor, under any rule of law, statute or
constitutional provision or by the enforcement of any assessment or by any legal
or equitable proceeding or otherwise, all such liability being expressly waived
and released by the acceptance of the Securities and the Coupons appertaining
thereto by the Holders thereof and as part of the consideration for the issue of
the Securities and the Coupons appertaining thereto.
11.2 Provisions of Indenture for the Sole Benefit of Parties and Holders of
Securities and Coupons. Nothing in this Indenture, in the Securities or in the
Coupons appertaining thereto, expressed or implied, shall give or be construed
to give to any Person, other than the parties hereto and their respective
successors and the Holders of the Securities or Coupons, if any, any legal or
equitable right, remedy or claim under this Indenture or under any covenant or
provision herein contained, all such covenants and provisions being for the sole
benefit of the parties hereto and their respective successors and of the Holders
of the Securities or Coupons, if any.
11.3 Successors and Assigns of Issuer and Guarantor Bound by Indenture. All
the covenants, stipulations, promises and agreements in this Indenture contained
by or in behalf of the Issuer or the Guarantor shall bind its successors and
assigns, whether so expressed or not.
11.4 Notices and Demands on Issuer, Guarantor, Trustee and Holders of
Securities and Coupons. Any notice or demand which by any provision of this
Indenture is required or permitted to be given or served by the Trustee or by
the Holders of Securities or Coupons to or on the Issuer or the Guarantor may be
given or served by being deposited postage prepaid, first-class mail (except as
otherwise specifically provided herein) addressed (until another address of the
Issuer or the Guarantor is filed by the Issuer or the Guarantor with the
Trustee) to SYSCO Corporation, 0000 Xxxxxxx Xxxxxxx, Xxxxxxx, Xxxxx 00000-0000,
Attention: Chief Financial Officer. Any notice, direction, request or demand by
the Issuer or any Holder of Securities or Coupons to or upon the Trustee shall
be deemed to have been sufficiently given or served by being deposited postage
prepaid, first-class mail (except as otherwise specifically provided herein)
addressed (until another address of the Trustee is filed by the Trustee with the
Issuer) to Wachovia Bank, National Association, 0000 Xxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxx 00000, Attention: Corporate Trust Administration Department.
Where this Indenture provides for notice to Holders of Registered
Securities, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder entitled thereto, at his last address as it appears in the Security
register. Where this Indenture provides for notice to Holders of Unregistered
Securities who have filed their names and addresses within two years preceding
the giving of such notice, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first-class
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postage prepaid, to each Holder entitled thereto, at his last address as it
appears in such filing. Notice to other Unregistered Securities shall be by
publication as provided in Section 6.10(a)(i). In any case where notice to such
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 or irregularities in regular mail
service, it shall be impracticable to mail notice to the Issuer when such notice
is required to be given pursuant to any provision of this Indenture, then any
manner of giving such notice as shall be reasonably satisfactory to the Trustee
shall be deemed to be a sufficient giving of such notice.
11.5 Officers' Certificates and Opinions of Counsel; Statements to Be
Contained Therein. Upon any application or demand by the Issuer, the Guarantor
or both of them to the Trustee to take any action under any of the provisions of
this Indenture, the Issuer, the Guarantor or both of them, as the case may be,
shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent have been complied with,
except that in the case of any such application or demand as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or demand, no additional
certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture and delivered to
the Trustee with respect to compliance with a condition or covenant provided for
in this Indenture shall include (a) a statement that the person making such
certificate or opinion has read such covenant or condition, (b) 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, (c) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with and (d) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the Issuer or the
Guarantor may be based, insofar as it relates to legal matters, upon a
certificate or opinion of or representations by counsel, unless such officer
knows that the certificate or opinion or representations with respect to the
matters upon which his certificate, statement or opinion may be based as
aforesaid are erroneous, or in the exercise of reasonable care should know that
the same are erroneous. Any certificate, statement or opinion of counsel may be
based, insofar as it relates to factual matters where the information is in the
possession of the Issuer or the Guarantor, upon the certificate, statement or
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opinion of or representations by an officer or officers of the Issuer or the
Guarantor, unless such counsel knows that the certificate, statement or opinion
or representations with respect to the matters upon which his certificate,
statement or opinion may be based as aforesaid are erroneous, or in the exercise
of reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of an officer of the Issuer or the
Guarantor or of counsel may be based, insofar as it relates to accounting
matters, upon a certificate or opinion of or representations by an accountant or
firm of accountants in the employ of the Issuer or the Guarantor, unless such
officer or counsel, as the case may be, knows that the certificate or opinion or
representations with respect to the accounting matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous, or in
the exercise of reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public accountants
filed with and directed to the Trustee shall contain a statement that such firm
is independent.
11.6 Payments Due on Saturdays, Sundays and Holidays. If the date of
maturity of interest on or principal of the Securities of any series or any
Coupons appertaining thereto or the date fixed for redemption or repayment of
any such Security or Coupon shall not be a Business Day, then payment of
interest or principal need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on the date of
maturity or the date fixed for redemption, and no interest shall accrue for the
period after such date.
11.7 Conflict of Any Provision of Indenture with Trust Indenture Act. If
and to the extent that any provision of this Indenture limits, qualifies or
conflicts with another provision included in this Indenture by operation of
Sections 310 to 317, inclusive, of the Trust Indenture Act (an "incorporated
provision"), such incorporated provision shall control.
11.8 New York Law to Govern; Jurisdiction; Service of Process. This
Indenture, the Guarantees and each Security and Coupon shall be deemed to be a
contract under the laws of the State of New York, and for all purposes shall be
construed in accordance with the laws of such State without giving effect to
applicable principles of conflicts of laws to the extent the laws of another
jurisdiction would be required thereby. Each of the Issuer and the Guarantor
hereby submits to the non-exclusive jurisdiction of the federal and state courts
in the Borough of Manhattan in The City of New York in any suit or proceeding
arising out of or relating to this Agreement or the transactions contemplated
hereby. The Issuer has appointed CT Corporation System, 000 Xxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 as its authorized agent (the "Authorized Agent") upon whom
process may be served in any suit, action or proceeding arising out of or
relating to this Indenture, the Guarantees and each Security and Coupon or the
transactions contemplated thereby that may be instituted in any federal or state
court in the Borough of Manhattan in The City of New York by the Trustee or any
Holder, and agrees that service of process upon such agent, and written notice
of said service to the Issuer by the person serving the same to the address of
the Authorized Agent shall be deemed in every respect effective service of
process upon the Issuer in any such suit or proceeding. The Issuer further
agrees to take any and all action as may be necessary to maintain such
designation and appointment of such agent in full force and effect for a period
of ten years from the date of this Indenture. If for any reason CT Corporation
System shall cease to be available to act as such Authorized Agent for the
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Issuer, the Issuer agrees to designate a new agent in the State of New York on
the terms and for the purpose of this Section 11.8 reasonably satisfactory to
the Trustee. Each of the Issuer and the Guarantor irrevocably and
unconditionally waives, to the fullest extent permitted by law, any objection
that it may have to laying of venue in respect of any action, suit or proceeding
arising out of or in connection with this Indenture, the Guarantees and each
Security and Coupon or the transactions contemplated hereby to which it is a
party brought in any federal or state court located in the State of New York and
hereby agrees not to plead or claim in any such court that any such action, suit
or proceeding has been brought in an inconvenient forum. Each of the Issuer and
the Guarantor also waives, to the fullest extent permitted by law, all right to
trial by jury in any claim or counterclaim (whether based upon contract, tort or
otherwise) in any way arising out of or relating to this Indenture, the
Guarantees and each Security and Coupon.
11.9 Counterparts. This Indenture may be executed in any number of
counterparts, each of which shall be an original; but such counterparts shall
together constitute one and the same instrument.
11.10 Effect of Headings. The Article and Section headings herein and the
Table of Contents are for convenience only and shall not affect the construction
hereof.
11.11 Securities in a Foreign Currency or in ECU. Unless otherwise
specified in an Officers' Certificate delivered pursuant to Section 2.3 of this
Indenture with respect to a particular series of Securities, whenever for
purposes of this Indenture any action may be taken by the Holders of a specified
percentage in aggregate principal amount of Securities of all series or all
series affected by a particular action at the time Outstanding and, at such
time, there are Outstanding Securities of any series which are denominated in a
coin or currency other than Dollars (including ECUs), then the principal amount
of Securities of such series which shall be deemed to be Outstanding for the
purpose of taking such action shall be that amount of Dollars that could be
obtained for such amount at the Market Exchange Rate. For purposes of this
Section 11.11, Market Exchange Rate shall mean the noon Dollar buying rate in
New York City for cable transfers of that currency published by the Federal
Reserve Bank of New York; provided, however, in the case of ECUs, Market
Exchange Rate shall mean the rate of exchange determined by the Commission of
the European Communities (or any successor thereto) as published in the Official
Journal of the European Communities (such publication or any successor
publication, the "Journal"). If such Market Exchange Rate is not available for
any reason with respect to such currency, the Trustee shall use, in its sole
discretion and without liability on its part, such quotation of the Federal
Reserve Bank of New York or, in the case of ECUs, the rate of exchange as
published in the Journal, as of the most recent available date, or quotations
or, in the case of ECUs, rates of exchange from one or more major banks in The
City of New York or in the country of issue of the currency in question, which
for purposes of the ECU shall be Brussels, Belgium, or such other quotations or,
in the case of ECU, rates of exchange as the Trustee shall deem appropriate. The
provisions of this paragraph shall apply in determining the equivalent principal
amount in respect of Securities of a series denominated in a currency other than
Dollars in connection with any action taken by Holders of Securities pursuant to
the terms of this Indenture.
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All decisions and determinations of the Trustee regarding the Market
Exchange Rate or any alternative determination provided for in the preceding
paragraph shall be in its sole discretion and shall, in the absence of manifest
error, be conclusive to the extent permitted by law for all purposes and
irrevocably binding upon the Issuer and all Holders.
11.12 Judgment Currency. Each of the Issuer and the Guarantor agrees, to
the fullest extent that it may effectively do so under applicable law, that (a)
if for the purpose of obtaining judgment in any court it is necessary to convert
the sum due in respect of the principal of or interest on the Securities of any
series (the "Required Currency") into a currency in which a judgment will be
rendered (the "Judgment Currency"), the rate of exchange used shall be the rate
at which in accordance with normal banking procedures the Trustee could purchase
in The City of New York the Required Currency with the Judgment Currency on the
day on which final unappealable judgment is entered, unless such day is not a
New York Banking Day, then, to the extent permitted by applicable law, the rate
of exchange used shall be the rate at which in accordance with normal banking
procedures the Trustee could purchase in The City of New York the Required
Currency with the Judgment Currency on the New York Banking Day preceding the
day on which final unappealable judgment is entered and (b) its obligations
under this Indenture to make payments in the Required Currency (i) shall not be
discharged or satisfied by any tender, or any recovery pursuant to any judgment
(whether or not entered in accordance with clause (a) of this sentence), in any
currency other than the Required Currency, except to the extent that such tender
or recovery shall result in the actual receipt, by the payee, of the full amount
of the Required Currency expressed to be payable in respect of such payments,
(ii) shall be enforceable as an alternative or additional cause of action for
the purpose of recovering in the Required Currency the amount, if any, by which
such actual receipt shall fall short of the full amount of the Required Currency
so expressed to be payable and (iii) shall not be affected by judgment being
obtained for any other sum due under this Indenture. For purposes of the
foregoing, "New York Banking Day" means any day except a Saturday, Sunday or a
legal holiday in The City of New York or a day on which banking institutions in
The City of New York are authorized or required by law or executive order to
close.
ARTICLE XII
REDEMPTION OF SECURITIES AND SINKING FUNDS
12.1 Applicability of Article. The provisions of this Article shall be
applicable to the Securities of any series which are redeemable before their
maturity (pursuant to operation of any sinking fund or otherwise) except as
otherwise specified, as contemplated by Section 2.3, for Securities of such
series.
12.2 Notice of Redemption; Partial Redemptions. Notice of redemption to the
Holders of Registered Securities of any series to be redeemed as a whole or in
part other than at the option of the Holder shall be given by mailing notice of
such redemption by first-class mail, postage prepaid, at least 30 days and not
more than 60 days prior to the date fixed for redemption to such Holders at
their last addresses as they shall appear upon the registry books. Notice of
redemption to the Holders of Unregistered Securities to be redeemed as a whole
or in part, who have filed their names and addresses with the Trustee within two
years preceding the giving of such notice, shall be given by mailing notice of
such redemption, by first-class mail, postage prepaid, at least 30 days and not
more than 60 prior to the date fixed for redemption, to such Holders at such
addresses as were so furnished to the Trustee (and, in the case of any such
notice given by the Issuer, the Trustee shall make such information available to
the Issuer for such purpose). Notice of redemption to all other Holders of
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Unregistered Securities shall be published in an Authorized Newspaper in the
Borough of Manhattan, The City of New York and in an Authorized Newspaper in
London (and, if required by Section 3.6, in an Authorized Newspaper in
Luxembourg), in each case, once in each of three successive calendar weeks, the
first publication to be not less than 30 nor more than 60 days prior to the date
fixed for redemption. Any notice which is mailed in the manner herein provided
shall be conclusively presumed to have been duly given, whether or not the
Holder receives the notice. Failure to give notice, or any defect in the notice
to the Holder of any Security of a series designated for redemption as a whole
or in part shall not affect the validity of the proceedings for the redemption
of any other Security of such series.
The notice of redemption to each such Holder shall specify the principal
amount of each Security of such series held by such Holder to be redeemed, the
date fixed for redemption, the redemption price, the place or places of payment,
that payment will be made upon presentation and surrender of such Securities
and, in the case of Securities with Coupons attached thereto, of all Coupons
appertaining thereto maturing after the date fixed for redemption, that such
redemption is pursuant to the mandatory or optional sinking fund, or both, if
such be the case, that interest accrued to the date fixed for redemption will be
paid as specified in such notice and that on and after said date interest
thereon or on the portions thereof to be redeemed will cease to accrue. In case
any Security of a series is to be redeemed in part only the notice of redemption
shall state the portion of the principal amount thereof to be redeemed and shall
state that on and after the date fixed for redemption, upon surrender of such
Security, a new Security or Securities of the same series, of like tenor and in
an aggregate principal amount equal to the unredeemed portion thereof will be
issued.
The notice of redemption of Securities of any series to be redeemed at the
option of the Issuer shall be given by the Issuer or, at the Issuer's request,
by the Trustee in the name and at the expense of the Issuer.
On or before the redemption date specified in the notice of redemption
given as provided in this section, the Issuer or the Guarantor, as the case may
be, will deposit with the Trustee or with one or more paying agents (or, if the
Issuer is acting as its own paying agent, set aside, segregate and hold in trust
as provided in Section 3.4) an amount of money sufficient to redeem on the
redemption date all the Securities of such series so called for redemption at
the appropriate redemption price, together with accrued interest to the date
fixed for redemption. If less than all Outstanding Securities of any series are
to be redeemed, the Issuer will deliver to the Trustee at least 70 days prior to
the date fixed for redemption an Officers' Certificate stating the aggregate
principal amount of Securities of such series to be redeemed. In case of a
redemption at the election of the Issuer prior to the expiration of any
restriction on such redemption, the Issuer shall deliver to the Trustee, prior
to the giving of any notice of redemption to Holders pursuant to this Section,
an Officers' Certificate stating that such restriction has been complied with.
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If less than all the Securities of a series are to be redeemed, the Trustee
shall select, in such manner as it shall deem appropriate and fair, Securities
of such series to be redeemed in whole or in part. Securities may be redeemed in
part in multiples of the minimum authorized denomination for Securities of such
series. The Trustee shall promptly notify the Issuer in writing of the
Securities of such series selected for redemption and, in the case of any
Securities of such series selected for partial redemption, the principal amount
thereof to be redeemed. For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities of
any series shall relate, in the case of any Security redeemed or to be redeemed
only in part, to the portion of the principal amount of such Security which has
been or is to be redeemed.
12.3 Payment of Securities Called for Redemption. If notice of redemption
has been given as above provided, the Securities or portions of Securities
specified in such notice shall become due and payable on the date and at the
place stated in such notice at the applicable redemption price, together with
interest accrued to the date fixed for redemption, and on and after said date
(unless the Issuer shall default in the payment of such Securities at the
redemption price, together with interest accrued to said date) interest on the
Securities or portions of Securities so called for redemption shall cease to
accrue, and the unmatured Coupons, if any, appertaining thereto shall be void,
and, except as provided in Sections 6.5 and 10.4, such Securities shall cease
from and after the close of business on the date fixed for redemption to be
entitled to any benefit or security under this Indenture, and the Holders
thereof shall have no right in respect of such Securities except the right to
receive the redemption price thereof and unpaid interest to the date fixed for
redemption. On presentation and surrender of such Securities at a place of
payment specified in said notice, together with all Coupons, if any,
appertaining thereto maturing after the date fixed for redemption, said
Securities or the specified portions thereof shall be paid and redeemed by the
Issuer or the Guarantor, as the case may be, at the applicable redemption price,
together with interest accrued thereon to the date fixed for redemption;
provided that payment of interest becoming due on or prior to the date fixed for
redemption shall be payable in the case of Securities with Coupons attached
thereto, to the Holders of the Coupons for such interest upon surrender thereof,
and in the case of Registered Securities, to the Holders of such Registered
Securities registered as such on the relevant record date subject to the terms
and provisions of Sections 2.3 and 2.7 hereof.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal shall, until paid or duly provided for,
bear interest from the date fixed for redemption at the rate of interest or
Yield to Maturity (in the case of an Original Issue Discount Security) borne by
such Security.
If any Security with Coupons attached thereto is surrendered for redemption
and is not accompanied by all appurtenant Coupons maturing after the date fixed
for redemption, the surrender of such missing Coupon or Coupons may be waived by
the Issuer and the Trustee, if there be furnished to each of them such security
or indemnity as they may require to save each of them harmless.
Upon presentation of any Security redeemed in part only, the Issuer shall
execute and the Trustee shall authenticate and deliver to or on the order of the
Holder thereof, at the expense of the Issuer, a new Security or Securities of
the same series, in authorized denominations, of like tenor and in an aggregate
principal amount equal to the unredeemed portion of the Security so presented.
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12.4 Exclusion of Certain Securities from Eligibility for Selection for
Redemption. Securities shall be excluded from eligibility for selection for
redemption if they are identified by registration and certificate number in an
Officers' Certificate delivered to the Trustee at least 40 days prior to the
last date on which notice of redemption may be given as being owned of record
and beneficially by, and not pledged or hypothecated by either (a) the Issuer or
(b) an entity specifically identified in such written statement as directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Issuer.
12.5 Mandatory and Optional Sinking Funds. The minimum amount of any
sinking fund payment provided for by the terms of the Securities of any series
is herein referred to as a "mandatory sinking fund payment," and any payment in
excess of such minimum amount provided for by the terms of the Securities of any
series is herein referred to as an "optional sinking fund payment." The date on
which a sinking fund payment is to be made is herein referred to as the "sinking
fund payment date."
In lieu of making all or any part of any mandatory sinking fund payment
with respect to any series of Securities in cash, the Issuer or the Guarantor,
as the case may be, may at its option (a) deliver to the Trustee Securities of
such series theretofore purchased or otherwise acquired (except upon redemption
pursuant to the mandatory sinking fund) by the Issuer or the Guarantor, as the
case may be, or receive credit for Securities of such series (not previously so
credited) theretofore purchased or otherwise acquired (except as aforesaid) by
the Issuer or the Guarantor and delivered to the Trustee for cancellation
pursuant to Section 2.10, (b) receive credit for optional sinking fund payments
(not previously so credited) made pursuant to this Section, and (c) receive
credit for Securities of such series (not previously so credited) redeemed by
the Issuer or the Guarantor through any optional redemption provision contained
in the terms of such series.
On or before the 60th day next preceding each sinking fund payment date for
any series, the Issuer will deliver to the Trustee an Officers' Certificate
(which need not contain the statements required by Section 11.5) (a) specifying
the portion of the mandatory sinking fund payment to be satisfied by payment of
cash and the portion to be satisfied by credit of Securities of such series and
the basis for such credit, (b) stating that none of the Securities of such
series to be so credited have previously been so credited, (c) stating that no
defaults in the payment of interest or Events of Default with respect to such
series have occurred (which have not been waived or cured) and are continuing
and (d) stating whether or not the Issuer or the Guarantor intends to exercise
its right to make an optional sinking fund payment with respect to such series
and, if so, specifying the amount of such optional sinking fund payment which
the Issuer or the Guarantor intends to pay on or before the next succeeding
sinking fund payment date. Any Securities of such series to be credited and
required to be delivered to the Trustee in order for the Issuer or the Guarantor
to be entitled to credit therefor as aforesaid which have not theretofore been
delivered to the Trustee shall be delivered for cancellation pursuant to Section
2.10 to the Trustee with such Officers' Certificate (or reasonably promptly
thereafter if acceptable to the Trustee). Such Officers' Certificate shall be
irrevocable and upon its receipt by the Trustee the Issuer or the Guarantor
shall become unconditionally obligated to make all the cash payments or payments
therein referred to, if any, on or before the next succeeding sinking fund
payment date. Failure of the Issuer or the Guarantor, on or before any such 60th
day, to deliver such Officers' Certificate and Securities (subject to the
parenthetical clause in the second preceding sentence) specified in this
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paragraph, if any, shall not constitute a default but shall constitute, on and
as of such date, the irrevocable election of the Issuer or the Guarantor (i)
that the mandatory sinking fund payment for such series due on the next
succeeding sinking fund payment date shall be paid entirely in cash without the
option to deliver or credit Securities of such series in respect thereof and
(ii) that the Issuer or the Guarantor will make no optional sinking fund payment
with respect to such series as provided in this Section.
If the sinking fund payment or payments (mandatory or optional or both) to
be made in cash on the next succeeding sinking fund payment date plus any unused
balance of any preceding sinking fund payments made in cash shall exceed $50,000
(or the equivalent thereof in any Foreign Currency or ECU) or a lesser sum in
Dollars (or the equivalent thereof in any Foreign Currency or ECU) if the Issuer
shall so request with respect to the Securities of any particular series, such
cash shall be applied on the next succeeding sinking fund payment date to the
redemption of Securities of such series at the sinking fund redelegation price
together with accrued interest to the date fixed for redemption. If such amount
shall be $50,000 (or the equivalent thereof in any Foreign currency or ECU) or
less and the Issuer makes no such request then it shall be carried over until a
sum in excess of $50,000 (or the equivalent thereof in any Foreign Currency or
ECU) is available. The Trustee shall select, in the manner provided in Section
12.2 and subject to the limitations in Section 12.4, for redemption on such
sinking fund payment date a sufficient principal amount of Securities of such
series to absorb said cash, as nearly as may be, and shall (if requested in
writing by the Issuer) inform the Issuer of the serial numbers of the Securities
of such series (or portions thereof) so selected. The Trustee, in the name and
at the expense of the Issuer (or the Issuer, if it shall so request the Trustee
in writing) shall cause notice of redemption of the Securities of such series to
be given in substantially the manner provided in Section 12.2 (and with the
effect provided in Section 12.3) for the redemption of Securities of such series
in part. The amount of any sinking fund payments not so applied or allocated to
the redemption of Securities of such series shall be added to the next cash
sinking fund payment for such series and, together with such payment, shall be
applied in accordance with the provisions of this Section. Any and all sinking
fund moneys held on the stated maturity date of the Securities of any particular
series (or earlier, if such maturity is accelerated), which are not held for the
payment or redemption of particular Securities of such series shall be applied,
together with other moneys, if necessary, sufficient for the purpose, to the
payment of the principal of, and interest on, the Securities of such series at
maturity.
On or before each sinking fund payment date, the Issuer or the Guarantor
shall pay to the Trustee in cash or shall otherwise provide for the payment of
all interest accrued to the date fixed for redemption on Securities to be
redeemed on the next following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of a
series with sinking fund moneys or give any notice of redemption of Securities
for such series by operation of the sinking fund during the continuance of a
default in payment of interest on such Securities or of any Event of Default
except that, where the giving of notice of redemption of any Securities shall
theretofore have been made, the Trustee shall redeem or cause to be redeemed
such Securities, provided that it shall have received from the Issuer or the
Guarantor a sum sufficient for such redemption. Except as aforesaid, any moneys
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in the sinking fund for such series at the time when any such default or Event
of Default shall occur, and any moneys thereafter paid into the sinking fund,
shall, during the continuance of such default or Event of Default, be deemed to
have been collected under Article V and held for the payment of all such
Securities. In case such Event of Default shall have been waived as provided in
Section 5.10 or the default cured on or before the 60th day preceding the
sinking fund payment date in any year, such moneys shall thereafter be applied
on the next succeeding sinking fund payment date in accordance with this Section
to the redemption of such Securities.
ARTICLE XIII
GUARANTEES
13.1 Guarantees. The Guarantor hereby unconditionally guarantees on a
senior basis to the Holders from time to time (a) the full and prompt payment of
the principal of any Security when and as the same shall become due, whether at
the stated maturity thereof, by acceleration, redemption or otherwise, or in the
event of default in any sinking fund payment, and (b) the full and prompt
payment of any interest on any Security when and as the same shall become due,
subject to any applicable grace period; provided that, notwithstanding anything
to the contrary herein, the aggregate amount of the obligations guaranteed under
the Indenture by the Guarantor shall be limited in amount to the maximum amount
that would render the Guarantor's obligations subject to avoidance under the
applicable fraudulent conveyance provisions of the United States Bankruptcy Code
or any comparable provision of any applicable state law. Each payment by the
Guarantor with respect to any Security shall be paid in the currency or
currencies specified for payments on such Security as contemplated by Section
2.3 and pursuant to this Indenture. Each and every default in the payment of the
principal of and interest on any Security shall give rise to a separate cause of
action hereunder, and separate suits may be brought hereunder as each cause of
action arises. The Guarantee hereunder constitutes a guarantee of payment and
not of collection.
The obligations of the Guarantor hereunder with respect to a series of
Securities shall be absolute and unconditional, irrespective of the validity,
regularity or enforceability of the Securities or this Indenture, the absence of
any action to enforce the same, any waiver or consent by any Holder of the
Securities with respect to any provisions hereof or thereof, the recovery of any
judgment against the Issuer, any action to enforce the same, whether or not a
Guarantee is affixed to any particular Security, or any other circumstance which
might otherwise constitute a legal or equitable discharge or defense of a
Guarantor, and, subject to Section 9.3 and Article X, shall remain in full force
and effect until the entire principal of and interest on the Securities of such
series shall have been paid or provided for in accordance with the provisions of
such series and of this Indenture, and such payment shall not be affected,
modified or impaired upon the happening from time to time of any event,
including without limitation any of the following, whether or not with notice
to, or the consent of, the Guarantor:
(a) the waiver, surrender, compromise, settlement, release or
termination of any or all of the obligations, covenants or agreements of
the Issuer under this Indenture or the Securities of such series;
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(b) the failure to give notice to the Guarantor of the occurrence of a
default or an Event of Default hereunder;
(c) the waiver, compromise or release of the payment, performance or
observance by the Issuer or the Guarantor of any or all of the obligations,
covenants or agreements of either of them contained in this Indenture;
(d) the extension of the time for payment of principal of and interest
on any Security of such series or for any other payment under this
Indenture or of the time for performance of any other obligations,
covenants or agreements under or arising out of this Indenture;
(e) the modification or amendment (whether material or otherwise) of
any obligation, covenant or agreement set forth in this Indenture or the
Securities of such series;
(f) the taking or the omission of any of the actions referred to in
this Indenture and any of the actions under the Securities of such series;
(g) any failure, omission, delay or lack on the part of the Trustee to
enforce, assert or exercise any right, power or remedy conferred on the
Trustee in this Indenture, or any other act or acts on the part of the
Trustee or any of the Holders from time to time of the Securities of such
series;
(h) the voluntary or involuntary liquidation, dissolution, sale or
other disposition of all or substantially all the assets, marshalling of
assets and liabilities, receivership, insolvency, bankruptcy, assignment
for the benefit of creditors, reorganization, arrangement, composition with
creditors or readjustment of, or other similar proceedings affecting the
Guarantor or the Issuer, or any of the assets of any of them, or any
allegation or contest respecting the validity of the Guarantee in any such
proceeding;
(i) to the extent permitted by law, the release or discharge by
operation of law of the Guarantor from the performance or observance of any
obligation, covenant or agreement contained in this Indenture;
(j) to the extent permitted by law, the release or discharge by
operation of law of the Issuer from the performance or observance of any
obligation, covenant or agreement contained in this Indenture;
(k) the default or failure of the Guarantor or the Trustee fully to
perform any of its obligations set forth in this Indenture or the
Securities of such series; or
(l) the invalidity of this Indenture or the Securities of such series
or any part of any thereof.
The Guarantor hereby waives the benefit of diligence, presentment, demand
of payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Issuer, any right to require a proceeding first against the
Issuer, protest, notice and all demands whatsoever and covenants that its
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Guarantee shall not be discharged except by complete performance of the
obligations contained in the Securities, this Indenture and this Guarantee. No
set-off, counterclaim, reduction or diminution of any obligation, or any defense
of any kind or nature which the Guarantor has or may have against the Trustee
shall be available hereunder to the Guarantor against the Trustee to reduce the
payments of the Guarantor under this Section 13.1.
The Guarantor assumes responsibility for being and remaining informed of
the financial condition of the Issuer and of all other circumstances bearing
upon the risk of nonpayment of amounts owing under the Securities which diligent
inquiry would reveal and agrees that the Holders of the Securities shall have no
duty to advise the Guarantor of information known to any of them regarding such
condition or any such circumstances.
13.2 Proceedings Against the Guarantor. In the event of a default in the
payment of principal of or any premium on any Security when and as the same
shall become due, whether at the stated maturity thereof, by acceleration, call
for redemption or otherwise, or in the event of a default in any sinking fund
payment, or in the event of a default in the payment of any interest on any
Security when and as the same shall become due, each of the Trustee and the
Holder of such Security shall have the right to proceed first and directly
against the Guarantor under this Indenture without first proceeding against the
Issuer or exhausting any other remedies which the Trustee or such Holder may
have and without resorting to any other security held by it.
The Trustee shall have the right, power and authority to do all things it
deems necessary or advisable to enforce the provisions of this Indenture
relating to the Guarantee and to protect the interests of the Holders of the
Securities and, in the event of a default in payment of the principal of or any
premium on any Security when and as the same shall become due, whether at the
Stated Maturity thereof, by acceleration, call for redemption or otherwise, or
in the event of a default in any sinking fund payment, or in the event of a
default in the payment of any interest on any Security when and as the same
shall become due, the Trustee may institute or appear in such appropriate
judicial proceedings as the Trustee shall deem most effectual to protect and
enforce any of its rights and the rights of the Holders, whether for the
specific enforcement of any covenant or agreement in this Indenture relating to
the Guarantee or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy. Without limiting the generality of the
foregoing, in the event of a default in payment of the principal of, premium (if
any) and interest on any Security when due, the Trustee may institute a judicial
proceeding for the collection of the sums so due and unpaid, and may prosecute
such proceeding to judgment or final decree, and may enforce the same against
the Guarantor and collect the monies adjudged or decreed to be payable in the
manner provided by applicable law out of the property of the Guarantor, wherever
situated.
13.3 Guarantees for Benefit of Holders. The Guarantees contained in this
Indenture are provided by the Guarantor for the benefit of the Holders from time
to time. Such provisions shall not be deemed to create any right in, or to be in
whole or in part for the benefit of any Person other than, the Trustee, the
Guarantor, the Holders from time to time and their permitted successors and
assigns.
78
13.4 Severability. Any provision of this Article XIII that is prohibited or
unenforceable in any jurisdiction shall not invalidate the remaining provisions
of this Article XIII or this Indenture and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction unless its removal would
substantially defeat the basic intent, spirit and purpose of this Indenture and
this Article XIII.
79
IN WITNESS WHEREOF the parties hereto have caused this Indenture to be duly
executed as of May 23, 2002.
SYSCO INTERNATIONAL, CO., as Issuer
By: /s/ Xxxxx Xxx Xxxxxxx
-------------------------------------------
Name: Xxxxx Xxx Xxxxxxx
-------------------------------------------
Title: Treasurer
-------------------------------------------
SYSCO CORPORATION, as Guarantor
By: /s/ Xxxxx Xxx Xxxxxxx
-------------------------------------------
Name: Xxxxx Xxx Xxxxxxx
-------------------------------------------
Title: Vice President & Treasurer
-------------------------------------------
WACHOVIA BANK, NATIONAL ASSOCIATION, TRUSTEE
By: /s/ R. Xxxxxxx Xxxxxx
-------------------------------------------
Name: R. Xxxxxxx Xxxxxx
-------------------------------------------
Title: Vice President
-------------------------------------------
80
EXHIBIT A
[Form of Global Security]
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY 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 LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR OTHER
JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY
BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF
AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") THAT IS TWO YEARS AFTER THE LATER OF THE ORIGINAL
ISSUE DATE HEREOF OR THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE
ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY),
ONLY:
(A) TO THE ISSUER OR THE GUARANTOR,
(B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT,
(C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A,
(D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES
WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT,
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(E) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF
RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS AN
INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING THE SECURITY FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN
EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF $250,000, FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN
CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR
(F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUER'S AND THE
TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO
CLAUSE (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS
LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE.
[THIS NOTE IS A TEMPORARY GLOBAL SECURITY. PRIOR TO THE EXPIRATION OF THE
RESTRICTED PERIOD APPLICABLE HERETO, BENEFICIAL INTERESTS HEREIN MAY NOT BE HELD
BY ANY PERSON OTHER THAN (1) A NON-U.S. PERSON OR (2) A U.S. PERSON WHO
PURCHASED SUCH INTEREST IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") PURSUANT TO RULE 144A
THEREUNDER. BENEFICIAL INTERESTS HEREIN ARE NOT EXCHANGEABLE FOR PHYSICAL NOTES
OTHER THAN A PERMANENT GLOBAL NOTE IN ACCORDANCE WITH THE TERMS OF THE
INDENTURE. TERMS IN THIS LEGEND ARE USED AS USED IN REGULATION S UNDER THE
SECURITIES ACT.] [THIS LEGEND FOR REG S SECURITY ONLY.]
A-2
SYSCO INTERNATIONAL, CO.
____% Notes due ______________
No. ____________ CUSIP: ____________
PRINCIPAL AMOUNT: $____________ AUTHENTICATION DATE: ______________
ORIGINAL ISSUE DATE: _______________ STATED MATURITY: ______________
INTEREST RATE: ____% per annum SUBJECT TO DEFEASANCE PURSUANT TO
ARTICLE X OF THE INDENTURE REFERRED
TO HEREIN
ISSUE PRICE (%): _______%
SYSCO International Co., an unlimited liability company organized and
existing under the laws of the Province of Nova Scotia, Canada (herein called
the "Issuer", which term includes any successor Person under the Indenture
referred to herein), for value received, hereby promises to pay to CEDE & Co.,
or registered assigns, the principal sum of _____________________ ($_________)
on _____________ (the "Stated Maturity") and to pay interest thereon at the rate
of ____% per annum, computed on the basis of a 360-day year comprising twelve
30-day months, from ____________ (the "Original Issue Date") or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, on ____________ and _____________ in each year and at the Stated Maturity
or upon redemption, commencing with _____________, until the principal hereof is
paid or made available for payment. If an Interest Payment Date would otherwise
fall on a day that is not a Business Day, such Interest Payment Date shall be
postponed to the next succeeding Business Day and no interest shall accrue or be
payable on such next succeeding Business Day for the period from and after such
original Interest Payment Date to such next succeeding Business Day. Except as
provided in the immediately preceding sentence, interest payments shall be in
the amount of interest accrued to, but excluding, the Interest Payment Date.
The interest payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in the Indenture referred to herein, be
paid to the Person in whose name this Security is registered at the close of
business on the Regular Record Date for such interest, which shall be
_____________ or _____________ (whether or not a Business Day), as the case may
be, next preceding such Interest Payment Date.
Payments of principal on this Security and interest payable on this
Security at the Stated Maturity or upon redemption of this Security shall be
made in immediately available funds in such currency of the United States of
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America as at the time of payment shall be legal tender for the payment of
public and private debts, at the request of the Holder upon presentation and
surrender of this Security, at the office or agency of the paying agent in New
York, New York or any other duly appointed paying agent, provided that this
Security is presented to the paying agent in time for the paying agent to make
payments in immediately available funds in accordance with its normal
procedures. So long as any Securities are represented by a Registered Global
Security, interest (other than interest payable at maturity or upon redemption)
shall be paid in immediately available funds by wire transfer to the Depositary
for such Securities, on the written order of the Depositary. Initially, the
Trustee will act as paying agent and registrar. The Issuer may change any paying
agent or registrar upon written notice thereto to the Trustee. Any Subsidiary or
Affiliate may act as paying agent, registrar or co-registrar.
Payment of interest (other than interest payable in accordance with the
provisions of the immediately preceding paragraph) will, subject to certain
exceptions provided in the Indenture referred to herein, be made by check mailed
to the address of the Person entitled thereto as such address shall appear in
the security register as of the applicable Regular Record Date or, at the option
of the Issuer, by wire transfer to an account maintained by such Person with a
bank located in the United States.
[The Holder of this Security is entitled to the benefits of the
Registration Rights Agreement, dated ___________, 2002, among the Issuer, SYSCO
Corporation, (the "Guarantor") and the Initial Purchasers named therein (the
"Registration Rights Agreement"). In the event that (i) the Issuer and the
Guarantor have not filed the Exchange Offer Registration Statement or Shelf
Registration Statement with the SEC on or before the date on which such
Registration Statement is required to be so filed pursuant to Section 2(a) or
2(b), respectively, of the Registration Rights Agreement or (ii) such Exchange
Offer Registration Statement or Shelf Registration Statement has not been
declared effective by the SEC under the Securities Act on or before the date on
which such Registration Statement is required to be declared effective under the
Securities Act pursuant to Section 2(a) or 2(b), respectively, of the
Registration Rights Agreement or (iii) the Exchange Offer has not been
consummated within 210 days after the Closing Date (as such term is defined in
the Registration Rights Agreement) or (iv) the Exchange Offer Registration
Statement or Shelf Registration Statement required by Section 2(a) or 2(b),
respectively, of the Registration Rights Agreement is filed and declared
effective by the SEC under the Securities Act but shall thereafter either be
withdrawn by the Issuer or the Guarantor or shall become subject to an effective
stop order issued pursuant to Section 8(d) of the Securities Act suspending the
effectiveness of such Registration Statement (except as specifically permitted
in the Registration Rights Agreement) without being succeeded immediately by a
post-effective amendment to such Registration Statement or an additional
Registration Statement filed and declared effective by the SEC under the
Securities Act (each such event referred to in clauses (i) through (iv) is
referred to herein as a "Registration Default" and each period during which a
Registration Default has occurred and is continuing until the Securities become
freely tradable under the Securities Act is referred to herein as, a
"Registration Default Period"), then the interest rate on this Security will be
increased by 0.25% per annum during the first 90 days of the Registration
Default Period, and by 0.50% per annum thereafter for the remaining portion of
the Registration Default Period ("Additional Interest"). The interest rate on
A-4
this Security will revert to the interest rate prior to any increase pursuant to
Section 3(a) of the Registration Rights Agreement at such time as all
Registration Defaults are cured.]1
Interest on this Security will accrue from the most recent date to which
interest has been paid on this Security [or the Security surrendered in exchange
herefor]2 or, if no interest has been paid, from ___________, _____; provided
that, if there is no existing default in the payment of interest and if this
Security is authenticated between a Regular Record Date referred to on the face
hereof and the next succeeding Interest Payment Date, interest shall accrue from
such Interest Payment Date. Interest will be computed on the basis of a 360-day
year of twelve 30-day months.
The Issuer shall pay interest on overdue principal and premium, if any, and
interest on overdue installments of interest and Additional Interest, if any, to
the extent lawful, at a rate per annum equal to ___% per annum in excess of the
rate of interest applicable to the Securities.
The Guarantor hereby fully and unconditionally guarantees on a senior basis
to the Holders from time to time (a) the full and punctual payment of the
principal of any Security when and as the same shall become due, whether at
stated maturity thereof, by acceleration, redemption or otherwise, or in the
event of default or any sinking fund payment, and (b) the full and punctual
payment of any interest on any Security when and as the same shall become due,
subject to any applicable grace period, provided that, notwithstanding anything
to the contrary herein, the aggregate amount of the obligations guaranteed under
the Indenture by any Guarantor shall be limited in amount to the maximum amount
that would not render such Guarantor's obligations subject to avoidance under
the applicable fraudulent conveyance provisions of the United States Bankruptcy
Code or any comparable provision of any applicable state law.
The Securities are redeemable in whole or in part at any time and from time
to time prior to the Stated Maturity, at the option of the Issuer, at a
redemption price equal to the greater of the following amounts, plus, in either
case, accrued and unpaid interest on the principal amount being redeemed to the
date of redemption: (1) 100% of the principal amount of the Securities being
redeemed; or (2) the sum of the present values of the remaining scheduled
payments of principal of and interest on the Securities to be redeemed
(exclusive of interest accrued to the date of redemption), discounted to the
date of redemption on a semi-annual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Treasury Rate (as defined in the following
paragraph) plus ___ basis points.
As used in this paragraph and in the immediately preceding paragraph only,
the terms set forth below shall have the following respective meanings:
"Business Day" means any calendar day that is not a Saturday, Sunday
or legal holiday in New York, New York or Houston, Texas and on which
commercial banks are open for business in Xxx Xxxx, Xxx Xxxx xxx Xxxxxxx,
Xxxxx.
________________
(1) Include only for Initial Note.
(2) Include only for Exchange Note.
A-5
"Comparable Treasury Issue" means the United States Treasury security
selected by the Quotation Agent as having a maturity comparable to the
remaining term of the Securities that would be utilized, at the time of
selection and in accordance with customary financial practice, in pricing
new issues of corporate debt securities of comparable maturity to the
remaining term of such Securities.
"Comparable Treasury Price" means, with respect to any redemption
date, the average of two Reference Treasury Dealer Quotations for that
redemption date.
"Quotation Agent" means X.X. Xxxxxx Securities Inc. or its successor.
"Reference Treasury Dealer" means each of (1) X.X. Xxxxxx Securities
Inc. or its successor and (2) one other firm that is a primary U.S.
Government securities dealer in New York City (a "Primary Treasury
Dealer"), which we specify from time to time; provided; however, that, if
either of them ceases to be a Primary Treasury Dealer the Issuer will
substitute therefor another Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as
determined by the Trustee, of the bid and asked price for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal
amount) quoted in writing to the Trustee by such Reference Treasury Dealer
at 5:00 p.m., New York City time, on the third Business Day preceding that
redemption date.
"Treasury Rate" means, with respect to any redemption date, the rate
per year equal to: (1) the yield, under the heading which represents the
average for the immediately preceding week, appearing in the most recently
published statistical release designated "H.15 (519)" or any successor
publication which is published weekly by the Board of Governors of the
Federal Reserve System and which establishes yields on actively traded
United States Treasury securities adjusted to constant maturity under the
caption "Treasury Constant Maturities," for the maturity corresponding to
the Comparable Treasury Issue; provided that, if no maturity is within
three months before or after the maturity date of the Securities, yields
for the two published maturities most closely corresponding to the
Comparable Treasury Issue shall be determined, and the Treasury Rate shall
be interpolated or extrapolated from such yields on a straight-line basis,
rounding to the nearest month; or (2) if such release or any successor
release is not published during the week preceding the calculation date or
does not contain such yields, the rate per year equal to the semiannual
A-6
equivalent yield to maturity of the Comparable Treasury Issue, calculated
using a price for the Comparable Treasury Issue, expressed as a percentage
of its principal amount, equal to the Comparable Treasury Price for such
redemption date. The Treasury Rate will be calculated on the third Business
Day preceding the redemption date.
Notice of any redemption will be mailed at least 30 days but not more than
60 days before the date of redemption to each holder of Securities to be
redeemed. If fewer than all of the Securities are to be redeemed, the Trustee
will select, in such manner as the Trustee shall deem fair and appropriate, the
particular Securities to be redeemed in whole or in part.
Unless the Issuer defaults in payment of the redemption price, on or after
the date of redemption, interest will cease to accrue on the Securities or
portions thereof called for redemption.
In the event of redemption of this Security in part only, a new Security or
Securities of like tenor and in an aggregate principal amount equal to the
unredeemed portion hereof will be issued in the name of the Holder hereof upon
the cancellation hereof.
The Securities are not subject to any sinking fund.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS SECURITY SET
FORTH IN FULL ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL
PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH IN FULL AT THIS PLACE.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof, directly or through an Authenticating
Agent, by manual signature of an authorized signatory, this Security shall not
be entitled to any benefit under the Indenture referred to herein or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, each of the Issuer and the Guarantor has caused this
instrument to be duly executed under its corporate seal.
SYSCO INTERNATIONAL, CO., as Issuer
[Seal]
By
-------------------------------------------
Name:
Title:
A-7
SYSCO CORPORATION, as Guarantor
[Seal]
By
-------------------------------------------
Name:
Title:
A-8
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned Indenture.
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Trustee
Dated: By
-------------------- -------------------------------------------
Authorized Signatory
A-9
[REVERSE OF SECURITY]
SYSCO INTERNATIONAL, CO.
____% Notes due ___________
This Security is one of a duly authorized issue of securities of the Issuer
(the "Securities"), issued and to be issued in one or more series under an
Indenture dated as of _______________ and executed and delivered by the Issuer
and SYSCO Corporation, as Guarantor, to Wachovia Bank, National Association, as
trustee (herein called the "Trustee," which term includes any successor trustee
under the Indenture), as executed and delivered by the Issuer and the Guarantor
to the Trustee (the "Indenture"), to which Indenture reference is hereby made
for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Issuer, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. The acceptance of this Security shall be deemed to
constitute the consent and agreement of the Holder hereof to all of the terms
and conditions of the Indenture. This Security is a Security of the series
designated on the face hereof, limited in aggregate principal amount to
$__________.
If an Event of Default with respect to the Securities shall occur and be
continuing, the principal of the Securities may be declared due and payable in
the manner and with the effect provided in the Indenture.
The Indenture contains provisions permitting the Issuer and the Trustee to
modify the Indenture or any supplemental indenture without the consent of the
Holders for one or more of the following purposes (as more particularly set
forth in the Indenture): (1) to convey, transfer, assign, mortgage or pledge any
property or assets to the Trustee as security for the Securities of one or more
series; (2) to evidence the succession of another entity to the Issuer or the
Guarantor; (3) to add to the covenants of the Issuer or the Guarantor or add
Events of Default for the benefit of Holders; (4) to cure any ambiguity, to
correct or supplement any provision of the Indenture which may be defective or
inconsistent with any other provision of the Indenture, or to make any other
provisions with respect to matters or questions arising under the Indenture as
shall not adversely affect the interests of the Holders in any material respect;
(5) to establish the form or terms of Securities of any series as permitted by
Sections 2.1 and 2.3 of the Indenture; and (6) to evidence the appointment of a
successor Trustee.
The Indenture also permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Issuer and the Guarantor, as applicable, and the rights of the Holders of the
Securities of each series to be affected under the Indenture at any time by the
Issuer and the Trustee with the consent of the Holders of not less than a
majority in principal amount of the Securities then outstanding of each series
to be affected (voting as a single class). The Indenture also contains
provisions permitting the Holders of a majority in aggregate principal amount of
the Securities of all series at the time outstanding with respect to which a
default or Event of Default shall have occurred and be continuing (voting as a
single class), on behalf of the Holders of all such Securities, to waive certain
past defaults and Events of Default 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
A-10
any Security issued upon the registration of transfer hereof or in exchange for
or in lieu hereof, whether or not notation of such consent or waiver is made
upon this Security.
As set forth in, and subject to the provisions of, the Indenture, no Holder
of any Security will have any right to institute any proceeding, judicial or
otherwise, with respect to the Indenture or for any remedy thereunder, unless
(1) such Holder shall have previously given to the Trustee written notice of a
continuing Event of Default with respect to the Securities, (2) the Holders of
not less than 25% in aggregate principal amount of the outstanding securities
shall have made written request, and offered reasonable indemnity, to the
Trustee to institute such proceeding as trustee, (3) the Trustee shall not have
received from the Holders of a majority in aggregate principal amount of the
outstanding securities a direction inconsistent with such request and (4) the
Trustee shall have failed to institute such proceeding within 60 days; provided,
however, that such limitations do not apply to a suit instituted by the Holder
hereof for the enforcement of payment of the principal of or any interest on
this Security on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Issuer or the
Guarantor, as applicable, which is absolute and unconditional, to pay the
principal of and interest on this Security, as described on the face hereof, at
the times, place and rate, and in the coin or currency, herein prescribed.
The Securities are issuable only in fully registered form and are
represented either by one or more global certificates registered in the name of
a depositary or in the name of its nominee or by a certificate or certificates
registered in the name of the beneficial owner(s) of such Securities or its or
their nominee(s). The Securities are issuable in denominations of $1,000 and
integral multiples of $1,000 in excess thereof. As provided in the Indenture and
subject to certain limitations therein set forth, the Securities are
exchangeable for a like aggregate principal amount of Securities and of like
tenor of any authorized denomination, as requested by the Holder surrendering
the same.
As provided in the Indenture and subject to certain limitations set forth
in the Indenture or this Security, the transfer of this Security is registrable
in the security register, upon surrender of this Security for registration of
transfer or exchange at the office or agency of the Security registrar or any
successor or co-registrar in New York, New York, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Issuer and the Trustee duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities of like tenor,
of authorized denominations and for the same aggregate principal amount will be
issued to the designated transferee or transferees.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Issuer may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
Subject to the terms of the Indenture, prior to due presentment of this
Security for registration of transfer, the Issuer, the Guarantor, the Trustee
and any agent of the Issuer, the Guarantor or the Trustee may treat the Person
in whose name this Security is registered as the owner hereof for all purposes,
whether or not this Security is overdue, and none of the Issuer, the Guarantor,
the Trustee or any such agent shall be affected by notice to the contrary.
A-11
The Indenture contains provisions for defeasance at any time of the entire
indebtedness of this Security or of 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.
In the case of any conflict between the provisions of this Security and the
Indenture, the provisions of the Indenture shall control.
THIS SECURITY, INDENTURE AND THE GUARANTEES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING
EFFECT TO APPLICABLE PRINCIPLES OF CONFLICT OF LAWS TO THE EXTENT THAT THE LAWS
OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
All capitalized terms used but not defined in this Security which are
defined in the Indenture shall have the meanings assigned to them in the
Indenture.
As provided in the Indenture, no recourse under or upon any obligation,
covenant or agreement contained in the Indenture, the Guarantees or in this
Security, or because of any indebtedness evidenced hereby, shall be had against
any incorporator, as such, or against any past, present or future stockholder,
officer, director or employee, as such, of the Issuer or the Guarantor, as
applicable, or of any successor, either directly or through the Issuer or the
Guarantor, as applicable, or any successor, under any rule of law, statute or
constitutional provision or by the enforcement of any assessment or by any legal
or equitable proceeding or otherwise, all such liability being, by acceptance
hereof.
A-12
FORM OF ASSIGNMENT
ABBREVIATIONS
Customary abbreviations may be used in the name of a Holder or an assignee,
such as TEN COM (=tenants in common), TEN ENT (=tenants by the entireties), JT
TEN (=joint tenants with rights of survivorship and not as tenants in common),
CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors Act).
Additional abbreviations may also be used though not in the above list.
--------------------------
FOR VALUE RECEIVED, the undersigned hereby sell(s),
assign(s) and transfer(s) unto
--------------------------
Please insert Social Security or
other identifying number of assignee
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING POSTAL ZIP CODE, OF
ASSIGNEE
________________________________
________________________________
________________________________
________________________________
the within Security and all rights thereunder, hereby irrevocably constituting
and appointing __________________________________, attorney to transfer said
Security on the books of the Issuer, with full power of substitution in the
premises.
Dated:
Notice: The signature(s) to this
assignment must correspond with the
name(s) as written on the face of
the within instrument in every
particular, without alteration or
enlargement, or any change
whatsoever.
A-13
[THE FOLLOWING PROVISION TO BE INCLUDED
ON ALL CERTIFICATES BEARING A PRIVATE PLACEMENT LEGEND]
In connection with any transfer of this Security occurring prior to
____________, _____, the undersigned confirms that without utilizing any general
solicitation or general advertising that:
Check One
(a) this Security is being transferred in compliance with the exemption
from registration under the Securities Act of 1933, as amended (the "Securities
Act"), provided by Rule 144A thereunder and the certificate attached hereto has
been completed. [ ]
(a) this Security is being transferred in compliance with Regulation S
under the Securities Act and a certificate in the form specified by the
Indenture is being furnished herewith. [ ]
(b) this Security is being transferred in compliance with the
exemption from registration under the Securities Act provided by Rule 144
thereunder. [ ]
(c) this Security is being transferred to the Issuer or the Guarantor.
[ ]
or
(d) this Security is being transferred other than in accordance with
(a), (b) or (d) above, and documents are being furnished which comply with
the conditions of transfer set forth in this Security and the Indenture.
[ ]
If none of the foregoing boxes is checked, the Trustee or other registrar
shall not be obligated to register this Security in the name of any Person other
than the Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in the Indenture shall have been satisfied.
Date:____________________
___________________________________
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of
the within-mentioned instrument in
every particular, without
alteration or any change
whatsoever.
Signature Guarantee: _______________________________
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the registrar, which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
A-14
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Security
for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Issuer as the
undersigned has requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated:____________________
______________________________________
To be executed by an executive officer
A-15
SCHEDULE OF INCREASES OR DECREASES IN THE PRINCIPAL AMOUNT
OF THIS SECURITY
The original principal amount of this Security is
____________________________ ($__________). The following increases or decreases
in the principal amount of this Security have been made:
Amount of Amount of Principal amount Signature of
decrease in increase in of this authorized
Date of principal amount principal amount Security following signatory of
increase or of this of this such decrease Trustee or
decrease Security Security (or increase) Depositary
-------------------------------------------------------------------------------------------------------------
A-16
EXHIBIT B
[Form of Certificate to be Delivered in Connection with Exchanges of
Regulation S Securities for Rule 144A Securities]
SYSCO International, Co.,
c/o Wachovia Bank, National Association, Trustee
[Address of Trustee]
Re: SYSCO International, Co.
___% Notes due ______ (the "Notes")
Issued under the Indenture (the "Indenture") dated as
of ___________________, 2002
This is to certify that, based solely on certifications we have received in
writing, by tested telex or by electronic transmission from member organizations
("Member Organizations") appearing in our records as persons being entitled to a
portion of the principal amount of Notes represented by the Temporary Offshore
Global Security issued under the above-referenced Indenture and being submitted
herewith for exchange, that as of the date hereof, $____ principal amount of
Notes represented by the Temporary Offshore Global Security being submitted
herewith for exchange is beneficially owned by persons who are either (i)
non-U.S. persons (within the meaning of Regulation S under the U.S. Securities
Act of 1933, as amended (the "Securities Act"), or (ii) U.S. persons who
purchased the Notes in a transaction that did not require registration under the
Securities Act. We further certify that (i) we are not submitting herewith for
exchange any portion of such Temporary Offshore Global Security excepted in such
Member Organization certifications and (ii) as of the date hereof we have not
received any notification from any Member Organization to the effect that the
statements made by such Member Organization with respect to any portion of such
Temporary Offshore Global Security submitted herewith for exchange are no longer
true and cannot be relied upon as of the date hereof. Accordingly, you are
hereby requested to (i) exchange $______ of such beneficial interest held by
non-U.S. persons in the Temporary Offshore Global Security for an equivalent
beneficial interest in a Permanent Offshore Global Security and (ii) transfer
$________ of such beneficial interest held by U.S. persons in the Temporary
Offshore Global Security into an equivalent beneficial interest in the U.S.
Global Security.
B-1
You are entitled to rely upon this Certificate and are irrevocably
authorized to produce this Certificate or a copy hereof to any interested party
in any administrative or legal proceeding or official inquiry with respect to
the matters covered hereby.
Yours faithfully,
[EUROCLEAR BANK S.A./N.V., as operator
of the Euroclear System]
OR
[CLEARSTREAM BANK, societe anonyme]
By
-----------------------------------------
Name:
Title:
Date:________________
B-2
EXHIBIT C
[Form of Certificate to be Delivered
in Connection with Transfers
Pursuant to Regulation S]
____________,____
SYSCO International, Co.
c/o Wachovia Bank, National Association, Trustee
[Address of Trustee]
Re: SYSCO International, Co.
______% Notes due ____________ (the "Notes")
Dear Sirs:
In connection with our proposed sale of U.S.$________ aggregate principal
amount of the Notes, we confirm that such sale has been effected pursuant to and
in accordance with Regulation S under the U.S. Securities Act of 1933, as
amended (the "Securities Act"), and, accordingly, we represent that:
o the offer of the Notes was not made to a person in the United States;
o at the time the buy order was originated, the transferee was outside
the United States or we and any person acting on our behalf reasonably
believed that the transferee was outside the United States;
o no directed selling efforts have been made by us in the United States
in contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S under the Securities Act, as applicable; and
o the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
C-1
You are entitled to rely upon this letter and are irrevocably authorized to
produce this letter or a copy hereof to any interested party in any
administrative or legal proceedings or official inquiry with respect to the
matters covered hereby. Terms used in this certificate have the meanings set
forth in Regulation S under the Securities Act.
Very truly yours,
[Name of Transferor]
By:
-----------------------------------------
Authorized Signatory
C-2
EXHIBIT D
[FORM OF TRANSFEREE LETTER OF REPRESENTATION]
SYSCO International, Co.
c/o Wachovia Bank, National Association
[address]
New York, NY [zip code]
Dear Sirs:
This certificate is delivered to request a transfer of $ ______________
principal amount of the _____% Senior Notes Due ___________ (the "Notes") of
SYSCO International, Co. (the "Company").
Upon transfer, the Notes would be registered in the name of the new beneficial
owner as follows:
Name:
Address:
Taxpayer ID Number:
The undersigned represents and warrants to you that:
(1) We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act of 1933, as
amended (the "Securities Act")) purchasing for our own account or for the
account of such an institutional "accredited investor" at least $250,000
principal amount of the Notes, and we are acquiring the Notes not with a view
to, or for offer or sale in connection with, any distribution in violation of
the Securities Act. We have such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risk of our
investment in the Notes and we invest in or purchase securities similar to the
Notes in the normal course of our business. We and any accounts for which we are
acting are each able to bear the economic risk of our or its investment.
(2) We understand and acknowledge that the Notes have not been registered
under the Securities Act or any other applicable securities law and, unless so
registered, may not be sold except as permitted in the following sentence. We
agree on our own behalf and on behalf of any investor account for which we are
purchasing Notes to offer, sell or otherwise transfer such Notes prior to the
date which is two years after the later of the date or original issue and the
last date on which the Company or any affiliate of the Company was the owner of
such Notes (or any predecessor thereto) (the "Resale Restriction Termination
Date") only (a) to the Company or the Guarantor, (b) pursuant to a registration
statement which has been declared effective under the Securities Act, (c) in a
transaction complying with the requirements of Rule 144A under the Securities
Act ("rule 144A"), to a person we reasonably believe is a qualified
institutional buyer under Rule 144A (a "QIB"), that purchases for its own
account or for the account of a QIB and to whom notice is given that the
D-1
transfer is being made in reliance on Rule 144A, (d) pursuant to offers and
sales that occur outside the United States within the meaning of Regulation S
under the Securities Act, (e) to an institutional "accredited investor" (within
the meaning Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities
Act) that is purchasing for its own account or for the account of such an
institutional "accredited investor" in each case in a minimum principal amount
of Notes of $250,000 or (f) pursuant to any other available exemption from the
registration requirements of the Securities Act, subject in each of the
foregoing cases to any requirement of law that the disposition of our property
or the property of such investor account or accounts be at all times within our
or their control and in compliance with any applicable state securities laws.
The foregoing restrictions on resale will not apply subsequent to the Resale
Restriction Termination Date. If any resale or other transfer of the Notes is
proposed to be made pursuant to clause (e) above prior to the Resale Restriction
Termination Date, the transferor shall deliver a letter from the transferee
substantially in the form of this letter to the Company and the Trustee, which
shall provide, among other things, that the transferee is an institutional
"accredited investor" (within the meaning of Rule 501(a)(1), (2), (3) or (7) of
Regulation D under the Securities Act) that is acquiring such notes for
investment purposes and not for distribution in violation of the Securities Act.
We acknowledge that the Company and the Trustee reserve the right prior to any
offer, sale or other transfer of the Notes prior to the Resale Restriction
Termination Date pursuant to clause (d), (e) or (f) above to require the
delivery of an opinion of counsel, certifications and/or other information
satisfactory to the Company and the Trustee.
(3) You are entitled to rely upon this letter and you are irrevocably
authorized to produce this letter or a copy of this letter to any interested
party in any administrative or legal proceeding or official inquiry with respect
to the matters covered in this letter.
(4) This letter shall be governed by and construed in accordance with the
laws of the State of New York, without giving effect to applicable principles of
conflicts of laws to the extent the laws of another jurisdiction would be
required thereby.
Transferee:
By:
---------------------------------------------
D-2
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