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TYSON FOODS, INC.
as Issuer
and
THE CHASE MANHATTAN BANK, N.A.
as Trustee
___________________________________
Indenture
Dated as of June 1, 1995
___________________________________
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TABLE OF CONTENTS(*)
Page
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RECITALS OF THE COMPANY
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions.................................................1
SECTION 1.2 Other Definitions...........................................8
SECTION 1.3 Incorporation by Reference of Trust Indenture Act...........8
SECTION 1.4 Rules of Construction.......................................9
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(*)Note: The Table of Contents shall not for any
purposes be deemed to be a part of the Indenture.
ARTICLE 2
THE SECURITIES
SECTION 2.1 Form and Dating.............................................9
SECTION 2.2 Execution and Authentication...............................10
SECTION 2.3 Amount Unlimited; Issuable in Series.......................12
SECTION 2.4 Denomination and Date of Securities; Payments of
Interest......................................................... 15
SECTION 2.5 Registrar and Paying Agent; Agents Generally...............16
SECTION 2.6 Paying Agent to Hold Money in Trust........................17
SECTION 2.7 Transfer and Exchange......................................18
SECTION 2.8 Replacement Securities.....................................21
SECTION 2.9 Outstanding Securities.....................................22
SECTION 2.10 Temporary Securities......................................23
SECTION 2.11 Cancellation..............................................23
SECTION 2.12 CUSIP Numbers.............................................23
SECTION 2.13 Defaulted Interest........................................24
ARTICLE 3
REDEMPTION
SECTION 3.1 Applicability of Article...................................24
SECTION 3.2 Notice of Redemption; Partial Redemptions..................24
SECTION 3.3 Payment of Securities Called for Redemption................26
SECTION 3.4 Exclusion of Certain Securities from Eligibility for
Selection for Redemption......................................... 28
SECTION 3.5 Mandatory and Optional Sinking Funds.......................28
ARTICLE 4
COVENANTS
SECTION 4.1 Payment of Securities......................................31
SECTION 4.2 Maintenance of Office or Agency............................32
SECTION 4.3 Negative Pledge............................................33
SECTION 4.4 Certain Sale and Lease-back Transactions...................34
SECTION 4.5 Notice of Defaults.........................................36
SECTION 4.6 Compliance Certificates; Reports...........................36
SECTION 4.7 Waiver of Stay, Extension or Usury Laws....................37
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.1 When Company May Merge, Etc................................37
SECTION 5.2 Successor Substituted......................................38
ARTICLE 6
DEFAULT AND REMEDIES
SECTION 6.1 Events of Default..........................................38
SECTION 6.2 Acceleration...............................................39
SECTION 6.3 Other Remedies.............................................41
SECTION 6.4 Waiver of Past Defaults....................................42
SECTION 6.5 Control by Majority........................................42
SECTION 6.6 Limitation on Suits........................................42
SECTION 6.7 Rights of Holders to Receive Payment.......................43
SECTION 6.8 Collection Suit by Trustee.................................43
SECTION 6.9 Trustee May File Proofs of Claim...........................44
SECTION 6.10 Application of Proceeds...................................44
SECTION 6.11 Restoration of Rights and Remedies........................45
SECTION 6.12 Undertaking for Costs.....................................45
SECTION 6.13 Rights and Remedies Cumulative............................46
SECTION 6.14 Delay or Omission Not Waiver..............................46
ARTICLE 7
TRUSTEE
SECTION 7.1 General....................................................46
SECTION 7.2 Certain Rights of Trustee..................................47
SECTION 7.3 Individual Rights of Trustee...............................48
SECTION 7.4 Trustee's Disclaimer.......................................48
SECTION 7.5 Notice of Default..........................................48
SECTION 7.6 Reports by Trustee to Holders..............................49
SECTION 7.7 Compensation and Indemnity.................................49
SECTION 7.8 Replacement of Trustee.....................................50
SECTION 7.9 Successor Trustee by Merger, Etc...........................51
SECTION 7.10 Eligibility...............................................51
SECTION 7.11 Money Held in Trust.......................................52
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.1 Defeasance Within One Year of Payment......................52
SECTION 8.2 Defeasance at Any Time.....................................53
SECTION 8.3 Covenant Defeasance........................................55
SECTION 8.4 Application of Trust Money.................................57
SECTION 8.5 Repayment to Company.......................................58
SECTION 8.6 Reinstatement..............................................58
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.1 Without Consent of Holders.................................59
SECTION 9.2 With Consent of Holders....................................59
SECTION 9.3 Revocation and Effect of Consent...........................61
SECTION 9.4 Notation on or Exchange of Securities......................62
SECTION 9.5 Trustee to Sign Amendments, Etc............................62
SECTION 9.6 Conformity with Trust Indenture Act........................62
ARTICLE 10
MISCELLANEOUS
SECTION 10.1 Trust Indenture Act of 1939................................63
SECTION 10.2 Notices....................................................63
SECTION 10.3 Certificate and Opinion as to Conditions Precedent.........64
SECTION 10.4 Statements Required in Certificate or Opinion..............64
SECTION 10.5 Evidence of Ownership......................................65
SECTION 10.6 Rules by Trustee, Paying Agent or Registrar................66
SECTION 10.7 Payment Date Other Than a Business Day.....................66
SECTION 10.8 Governing Law..............................................66
SECTION 10.9 No Adverse Interpretation of Other Agreements..............66
SECTION 10.10 Successors................................................66
SECTION 10.11 Duplicate Originals.......................................66
SECTION 10.12 Separability..............................................66
SECTION 10.13 Table of Contents, Headings, Etc..........................67
SIGNATURES
INDENTURE, dated as of June 1, 1995, between TYSON FOODS, INC.,
a Delaware corporation, as the Company, and The Chase Manhattan Bank, N.A.,
a national banking association, as Trustee.
RECITALS OF THE COMPANY
WHEREAS, the Company has duly authorized the issue from time to
time of its debentures, 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 and to provide, among other things, for the authentication,
delivery and administration thereof, the Company has duly authorized the
execution and delivery of this Indenture; 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 Company and the Trustee mutually
covenant and agree for the equal and proportionate benefit of the
respective holders from time to time of the Securities or of series thereof
and of the coupons, if any, appertaining thereto as follows:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions.
"Agent" means any Registrar, Paying Agent or Authenticating
Agent.
"Attributable Debt" means, as to any particular lease under
which any Person is at the time liable, other than a Capital Lease, and at
any date as of which the amount thereof is to be determined, the total net
amount of rent required to be paid by such Person under such lease during
the initial term thereof as determined in accordance with GAAP, discounted
from the last date of such initial term to the date of determination at a
rate per annum equal to the discount rate which would be applicable to a
Capital Lease with like term in accordance with GAAP. The net amount of
rent required to be paid under any such lease for any such period shall be
the aggregate amount of rent payable by the lessee with respect to such
period after excluding amounts required to be paid on account of insurance,
taxes, assessments, utility, operating and labor costs and similar charges.
In the case of any lease which is terminable by the lessee upon the payment
of a penalty, such net amount shall also include the amount of such
penalty, but no rent shall be considered as required to be paid under such
lease subsequent to the first date upon which it may be so terminated.
"Attributable Debt" means, as to a Capital Lease under which any Person is
at the time liable and at any date as of which the amount thereof is to be
determined, the capitalized amount thereof that would appear on the face of
a balance sheet of such Person in accordance with GAAP.
"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 English and
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 Resolution" means one or more resolutions of the board
of directors of the Company or any authorized committee thereof, certified
by the Secretary or an assistant secretary to have been duly adopted and to
be in full force and effect on the date of certification, and delivered to
the Trustee.
"Business Day" means any day, other than a Saturday or Sunday,
that is neither a legal holiday nor a day on which banking institutions are
authorized or required by law or regulation to close in The City of New
York and with respect to any Security the interest of which is based on
LIBOR, in the City of London.
"Capital Lease" means, as applied to any Person, any lease of
any property which, in conformity with GAAP, is required to be capitalized
on the balance sheet of such Person.
"Capital Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of such Person's capital stock, including,
without limitation, all Common Stock and Preferred Stock.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act or, if at any
time after the execution of this instrument such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Common Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of such Person's common stock, whether now
outstanding or issued after the date of this Indenture, including, without
limitation, all series and classes of such common stock.
"Company" means the party named as such in the first paragraph
of this Indenture until a successor replaces it pursuant to Article 5 of
this Indenture and thereafter means the successor.
"Consolidated Net Tangible Assets" means the excess over the
current liabilities of the Company of all of its assets as determined by
the Company and as would be set forth in a consolidated balance sheet of
the Company and its Subsidiaries, on a consolidated basis, in accordance
with GAAP as of a date within 90 days of the date of such determination,
after deducting goodwill, trademarks, patents, other like intangibles and
the minority interest of others.
"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 of this
Indenture, located at 0 Xxxxx XxxxxXxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000,
Attention: Corporate Trust.
"Default" means any Event of Default as defined in Section 6.1
and any event that is, or after notice or passage of time or both would be,
an Event of Default.
"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 Company pursuant to
Section 2.2 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.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exempted Debt" means the sum, without duplication, of the
following items outstanding as of the date Exempted Debt is being
determined:
(i) indebtedness of the Company and its Restricted Subsidiaries incurred
after the date of this Indenture and secured by liens created, assumed
or otherwise incurred or permitted to exist pursuant to Section 4.3(b) and
(ii) Attributable Debt of the Company and its Restricted Subsidiaries in
respect of all sale and lease-back transactions with regard to any
Principal Property entered into pursuant to Section 4.4(b).
"Funded Debt" means all indebtedness for money borrowed,
including purchase money indebtedness, having a maturity of more than one
year from the date of its creation or having a maturity of less than one
year but by its terms being renewable or extendible, at the option of the
obligor in respect thereof, beyond one year from its creation.
"GAAP" means generally accepted accounting principles in the
United States of America as in effect as of the date of this Indenture.
"Holder" or "Securityholder" means the registered holder of any
Security.
"Indenture" means this Indenture as originally executed or as
it may be amended or supplemented from time to time by one or more
indentures supplemental to this Indenture entered into pursuant to the
applicable provisions of this Indenture and shall include the forms and
terms of the Securities of each series established as contemplated pursuant
to Sections 2.1 and 2.3.
"Interest" includes interest payable on Original Issue Discount
Securities after the maturity thereof.
"Officer" means, with respect to the Company, the chairman of
the board of directors, the president or chief executive officer, any vice
president, the chief financial officer, the treasurer or any assistant
treasurer, or the secretary or any assistant secretary.
"Officers' Certificate" means a certificate signed in the name
of the Company (i) by the chairman of the board of directors, the president
or chief executive officer or a vice president and (ii) by the chief
financial officer, the treasurer or any assistant treasurer, the secretary
or any assistant secretary, complying with Section 10.4 (except Officers'
Certificates provided for in Section 4.7) and delivered to the Trustee.
"Opinion of Counsel" means a written opinion signed by legal
counsel, who may be an employee of or counsel to the Company, satisfactory
to the Trustee and complying with Section 10.4.
"original issue date" of any Security (or portion thereof)
means the earlier of (a) the date of authentication 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 thereof pursuant
to Section 6.1.
"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 Company or its
agents upon the issuance of such Securities.
"Person" means an individual, a corporation, a partnership, a
limited liability company, an association, a trust or any other entity or
organization, including a government or political subdivision or an agency
or instrumentality thereof.
"Preferred Stock" means, with respect to any Person, any and
all shares, interests, participations or other equivalents (however
designated, whether voting or non-voting) of such Person's preferred or
preference stock, whether now outstanding or issued after the date of the
Indenture, including, without limitation, all series and classes of such
preferred or preference stock.
"Principal" of a Security means the principal amount of, and,
unless the context indicates otherwise, includes any premium payable on,
the Security.
"Principal Property" means (i) land, land improvements,
buildings and associated factory equipment owned or leased pursuant to a
Capital Lease and used by the Company or a Restricted Subsidiary primarily
for processing, producing, packaging or storing its products, raw
materials, inventories or other materials and supplies and located within
the United States of America and having an acquisition cost plus
capitalized improvements in excess of 1% of Consolidated Net Tangible
Assets as of the date of such determination, (ii) any property listed on
Schedule 1.1 hereto and (iii) any asset held by Tyson Holding Company,
Inc., but shall not include any such property or asset described in clauses
(i), (ii) or (iii) that is financed through the issuance of tax exempt
governmental obligations, or any such property or asset that has been
determined by Board Resolution of the Company not to be of material
importance to the respective businesses conducted by the Company or such
Restricted Subsidiary, effective as of the date such resolution is adopted.
"Registered Global Security", means a Security evidencing all
or a part of a series of Registered Securities, issued to the Depositary
for such series in accordance with Section 2.2, and bearing the
legend prescribed in Section 2.2.
"Registered Security" means any Security registered on the
Security Register.
"Responsible Officer" means any officer of the Trustee
specifically authorized to administer the Trustee's duties under this
Indenture.
"Restricted Subsidiary" means any Subsidiary organized and
existing under the laws of the United States of America and the principal
business of which is carried on within the United States of America which
owns or is a lessee pursuant to a Capital Lease of any Principal Property
or owns shares of Capital Stock or indebtedness of another Restricted
Subsidiary other than:
(i) each Subsidiary the major part of whose business consists
of finance, banking, credit, leasing, insurance, financial services
or other similar operations, or any combination thereof; and
(ii) each Subsidiary formed or acquired after the date hereof
for the purpose of acquiring the business or assets of another Person
and which does not acquire all or any substantial part of the
business or assets of the Company or any Restricted Subsidiary;
provided, however, that the Board of Directors of the Company may by Board
Resolution declare any such Subsidiary to be a Restricted Subsidiary,
effective as of the date such resolution is adopted.
"Securities" means any of the securities, as defined in the
first paragraph of the recitals hereof, that are authenticated and
delivered under this Indenture and, unless the context indicates otherwise,
shall include any coupon appertaining thereto.
"Securities Act" means the Securities Act of 1933, as amended.
"Subsidiary" means, with respect to any Person, any
corporation, association or other business entity of which more than 50% of
the outstanding Voting Stock is owned, directly or indirectly, by such
Person and one or more other Subsidiaries of such Person.
"Trustee" means the party named as such in the first paragraph
of this Indenture until a successor replaces it in accordance with the
provisions of Article 7 of this Indenture and thereafter means such
successor.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended (15 U.S. Code Section Section 77aaa-77bbbb), as in effect on the
date of this Indenture, except as provided in Section 9.6 or as used in
Sections 8.2 and 8.3.
"United States Bankruptcy Code" means the Bankruptcy Reform Act
of 1978, as amended and as codified in Title 11 of the United States Code,
as amended from time to time hereafter, or any successor federal
bankruptcy law.
"Unregistered Security" means any Security other than a
Registered Security.
"U.S. Government Obligations" means securities that are (i)
direct obligations of the United States of America for the payment of which
its full faith and credit is pledged or (ii) obligations of an agency or
instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the
United States of America, and shall also include a depository receipt
issued by a bank or trust company as custodian with respect to any such
U.S. Government Obligation or a specific payment of interest on or
principal of any such U.S. Government Obligation held by such custodian for
the account of the holder of a depository receipt; provided that (except as
required by law) such custodian is not authorized to make any deduction
from the amount payable to the holder of such depository receipt from any
amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of interest on or principal of the U.S.
Government Obligation evidenced by such depository receipt.
"Voting Stock" means with respect to any Person, Capital Stock
of any class or kind ordinarily having the power to vote for the election
of directors, managers or other voting members of the governing body of
such Person.
"Yield to Maturity" means as the context may require 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.
SECTION 1.2 Other Definitions.
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Authenticating Agent 2.2
Event of Default 6.1
Paying Agent 2.5
Register 2.5
Registrar 2.5
Security Register 2.5
SECTION 1.3 Incorporation by Reference of Trust Indenture
Act. Whenever this Indenture refers to a provision of the Trust Indenture
Act, the provision is incorporated by reference in and made a part of this
Indenture. The following terms used in this Indenture that are defined by
the Trust Indenture Act have the following meanings:
"indenture securities" means the Securities;
"indenture security holder" means a Holder or a Securityholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee; and
"obligor" on the indenture securities means the Company or any
other obligor on the Securities.
All other terms used in this Indenture that are defined by the
Trust Indenture Act, defined by reference in the Trust Indenture Act to
another statute or defined by a rule of the Commission and not otherwise
defined herein have the meanings assigned to them therein.
SECTION 1.4 Rules of Construction. Unless the context
otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(iii) "or" is not exclusive;
(iv) words in the singular include the plural, and words in
the plural include the singular;
(v) "herein," "hereof" and other words of similar import
refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision; and
(vi) all references to Sections or Articles refer to Sections
or Articles of this Indenture unless otherwise indicated.
ARTICLE 2
THE SECURITIES
SECTION 2.1 Form and Dating. The Securities of each
series shall be substantially in such form or forms (not inconsistent with
this Indenture) as shall be established by or pursuant to one or more Board
Resolutions 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 of any securities
exchange or usage, all as may be determined by the officers executing such
Securities as evidenced by their execution of the Securities. Unless
otherwise so established, Unregistered Securities shall have coupons
attached.
SECTION 2.2 Execution and Authentication. Two Officers
shall execute the Securities (other than coupons) for the Company by
facsimile or manual signature in the name and on behalf of the Company.
If an Officer whose signature is on a Security no longer holds that office
at the time the Security is authenticated, the Security shall nevertheless
be valid.
The Trustee may appoint an authenticating agent (the
"Authenticating Agent") to authenticate Securities (other than coupons).
The Authenticating Agent may authenticate Securities whenever the Trustee
may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such Authenticating Agent.
A Security (other than coupons) shall not be valid until the
Trustee or Authenticating Agent manually signs the certificate of
authentication on the Security. The signature shall be conclusive evidence
that the Security has been authenticated under this Indenture.
At any time and from time to time after the execution and
delivery of this Indenture, the Issuer may deliver Securities of any series
having attached thereto appropriate coupons, if any, executed by the
Company 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 Company. In first authenticating any Securities of a series, the
Trustee shall be entitled to receive and (subject to Article 7) shall be
fully protected in relying upon, unless and until such documents have been
superseded or revoked:
(1) any Board Resolution 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 of the series were established;
(2) an Officers' Certificate setting forth the form or forms
and terms of the Securities, stating that the form or forms and terms
of the Securities of such series have been, or will be, when
established in accordance with such procedures as shall be referred
to therein, established in compliance with this Indenture, and
covering such other matters as the Trustee may reasonably request;
and
(3) an Opinion of Counsel substantially to the effect that the
forms and term of the Securities of such series have been, or will
be, when established in accordance with such procedures as shall be
referred to therein, established in compliance with this Indenture
and
that the Securities have been duly authorized and, if executed and
authenticated in accordance with the provisions of the Indenture and
delivered to and duly paid for by the purchasers thereof on the date
of such opinion, would be entitled to the benefits of the Indenture
and would be valid and binding obligations of the Company,
enforceable against the Company in accordance with their respective
terms, subject to bankruptcy, insolvency, reorganization, receivership,
moratorium and other similar laws affecting creditors' rights
generally, general principles of equity, and such other matters as
shall be specified therein.
If the Company shall establish pursuant to Section 2.3 that the
Securities of a series or a portion thereof are to be issued in the form of
one or more Registered Global Securities, then the Company shall execute
and the Trustee shall 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 of the Securities of
such series issued in such form and not yet canceled, (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: "Unless and until it is exchanged in whole or in part for
Securities in definitive registered form, this Security may not be
transferred except as a whole by the Depositary to the nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary."
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
statute or regulation.
SECTION 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 senior and
unsubordinated debt of the Company. There shall be established in or
pursuant to Board Resolutions or 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 and any limitation on the ability of the Company
to increase such aggregate principal amount after the initial
issuance of the Securities of that Series (except for Securities
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, or upon redemption of, other Securities
of the series pursuant hereto;
(3) the date or dates on which the principal of the Securities
of the series is payable (which date or dates may be fixed or
extendible);
(4) the rate or rates (which may be fixed or variable) per
annum 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 and the basis on
which interest shall be calculated if other than a 360-day year
consisting of 12 30-day months;
(5) 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 4.2), any Registered Securities of the series
may be surrendered for exchange, notices, demands to or upon the
Company in respect of the Securities of the series and this Indenture
may be served and where notice to Holders may be published;
(6) the right, if any, of the Company to redeem Securities of
the series, in whole or in part, at its option and the period or
periods within which, the price or prices at which and any terms and
conditions upon which Securities of the series may be so redeemed,
pursuant to any sinking fund or otherwise;
(7) the obligation, if any, of the Company to redeem, purchase
or repay Securities of the series pursuant to any mandatory
redemption, sinking fund or analogous provisions or at the option of
a Holder thereof and the price or prices at which and the period or
periods within which and any of the terms and conditions upon which
Securities of the series shall be redeemed, purchased or repaid, in
whole or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral
multiple thereof in case of Registered Securities, or $1,000 and
$5,000 in the case of Unregistered Securities, the denominations in
which Securities of the series shall be issuable;
(9) 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;
(10) if other than the currency of the United States of America
or if other than the currency in which the Securities of the series
are denominated, the currency or currencies, including composite
currencies, in which payment of the principal of (and premium, if
any) and interest on the Securities of the series shall be payable,
and the manner in which any such currencies shall be valued against
other currencies in which any other Securities shall be payable;
(11) whether the Securities of the series or any portion
thereof 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 otherwise provided herein, the terms
upon which Unregistered Securities of any series may be exchanged for
Registered Securities of such series and vice versa;
(12) whether and under what circumstances the Company will pay
additional amounts on the Securities of the series held by a person
who is not a U.S. person in respect of any tax, assessment or
governmental charge withheld or deducted and, if so, whether the
Company will have the option to redeem such Securities rather than
pay such additional amounts;
(13) if the Securities of the 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;
(14) any trustees, depositaries, authenticating or paying
agents, transfer agents or registrars or any other agents with
respect to the Securities of the series;
(15) provisions, if any, for the defeasance of the Securities of
the series (including provisions permitting defeasance of less than
all Securities of the series), which provisions may be in addition
to, in substitution for, or in modification of (or any combination of
the foregoing) the provisions of Article 8;
(16) if the Securities of the series are issuable in whole or in
part as one or more Registered Global Securities, the identity of the
Depositary for such Registered Global Security or Securities;
(17) any other events of default or covenants with respect to
the Securities of the series; and
(18) any other terms of the Securities 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 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 or in any such indenture supplemental
hereto and any forms and terms of Securities to be issued from time to time
may be completed and established from time to time prior to the issuance
thereof by procedures described in such Board Resolution or supplemental
indenture.
A series of Securities may include one or more tranches (each a
"tranche") of Securities, including Securities issued in a Periodic
Offering. The Securities of different tranches may have one or more
different terms, including authentication dates and public offering prices,
but all the Securities within each such tranche shall have identical terms,
including authentication date and public offering price. Notwithstanding
any other provision of this Indenture, with respect to Sections 2.2 (other
than the fourth paragraph thereof) through 2.4, 3.1 through 3.5, 6.1
through 6.14, 8.1 through 8.5 and 9.2, if any series of Securities includes
more than one tranche, all provisions of such sections applicable to any
series of Securities shall be deemed equally applicable to each tranche of
any series of Securities in the same manner as though originally designated
a series unless otherwise provided with respect to such series or tranche
pursuant to this Section 2.3. In particular, and without limiting the scope
of the next preceding sentence, any of the provisions of such sections
which provide for or permit action to be taken with respect to a series of
Securities shall also be deemed to provide for and permit such action to be
taken instead only with respect to Securities of one or more tranches
within that series (and such provisions shall be deemed satisfied thereby),
even if no comparable action is taken with respect to Securities in the
remaining tranches of that series.
SECTION 2.4 Denomination and Date of Securities; Payments
of Interest. The Securities of each series shall be issuable as Registered
Securities or Unregistered Securities in denominations established as
contemplated by Section 2.3 or, if not so established with respect to
Registered Securities of any series, in denominations of $1,000 and any
integral multiple thereof. If the denominations of Unregistered Securities
of any series are not so established, such Securities shall be issuable in
denominations of $1,000 and $5,000. 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 Company executing the same
may determine, as evidenced by the execution thereof.
Each Registered Security shall be dated the date of its
authentication. Each Unregistered Security shall be dated as provided
pursuant to Section 2.3. The Securities of each series shall bear
interest, if any, from the date, and such interest and 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 a
particular 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 if and to the extent the Company shall default in the payment
of the interest due on such interest payment date for such series, in
which case the provisions of Section 2.13 shall apply. 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 established as contemplated by Section 2.3, or, if no such date
is so established, 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.
SECTION 2.5 Registrar and Paying Agent; Agents Generally.
The Company shall maintain an office or agency where Securities may be
presented for registration of transfer or for exchange (the "Registrar")
and an office or agency where Securities may be presented for payment
(the "Paying Agent"), which shall be in The City of New York. The Company
shall cause the Registrar to keep a register of the Registered Securities
and of their transfer and exchange (the "Security Register"). The Company
may have one or more co-Registrars and one or more additional Paying
Agents.
The Company shall enter into an appropriate agency agreement
with any Agent not a party to this Indenture. The agreement shall
implement the provisions of this Indenture that relate to such Agent. The
Company shall give prompt written notice to the Trustee of the name and
address of any Agent and any change in the name or address of an Agent. If
the Company fails to maintain a Registrar or Paying Agent, the Trustee
shall act as such. The Company may remove any Agent upon written notice to
such Agent and the Trustee; provided that no such removal shall become
effective until (i) the acceptance of an appointment by a successor Agent
to such Agent as evidenced by an appropriate agency agreement entered into
by the Company and such successor Agent and delivered to the Trustee or
(ii) notification to the Trustee that the Trustee shall serve as such Agent
until the appointment of a successor Agent in accordance with clause (i) of
this proviso. The Company or any Affiliate of the Company may act as
Paying Agent, Registrar or co-Registrar; provided that neither the Company
nor an Affiliate of the Company shall act as Paying Agent in connection
with the defeasance of the Securities or the discharge of this Indenture
under Article 8.
The Company initially appoints the Trustee as Registrar, Paying
Agent and Authenticating Agent. If, at any time, the Trustee is not the
Registrar, the Registrar shall make available to the Trustee on or before
each Interest Payment Date and at such other times as the Trustee may
reasonably request the names and addresses of the Holders as they appear in
the Security Register.
SECTION 2.6 Paying Agent to Hold Money in Trust. Not
later than each due date of any principal or interest on any Securities,
the Company shall deposit with the Paying Agent money in immediately
available funds sufficient to pay such principal or interest. The Company
shall require each Paying Agent other than the Trustee to agree in writing
that such Paying Agent shall hold in trust for the benefit of the Holders
of such Securities or the Trustee all money held by the Paying Agent for
the payment of principal of and interest on such Securities and shall
promptly notify the Trustee of any default by the Company in making any
such payment. The Company at any time may require a Paying Agent to pay all
money held by it to the Trustee and account for any funds disbursed, and
the Trustee may at any time during the continuance of any payment default,
upon written request to a Paying Agent, require such Paying Agent to pay
all money held by it to the Trustee and to account for any funds disbursed.
Upon doing so, the Paying Agent shall have no further liability for the
money so paid over to the Trustee. If the Company or any Affiliate of the
Company acts as Paying Agent, it will, on or before each due date of any
principal of or interest on any Securities, segregate and hold in a
separate trust fund for the benefit of the Holders thereof a sum of money
sufficient to pay such principal or interest so becoming due until such sum
of money shall be paid to such Holders or otherwise disposed of as provided
in this Indenture, and will promptly notify the Trustee of its action or
failure to act as required by this Section.
SECTION 2.7 Transfer and Exchange. 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, Registered Securities of
any series (other than a Registered Global Security, except as set forth
below) may be exchanged for a Registered Security or Registered Securities
of such series and tenor having authorized denominations and an
equal aggregate principal amount, upon surrender of such Registered
Securities to be exchanged at the agency of the Company that shall be
maintained for such purpose in accordance with Section 2.5 and upon
payment, if the Company shall so require, of the charges hereinafter
provided. If the Securities of any series are issued in both registered and
unregistered form, except as otherwise established pursuant to Section 2.3,
at the option of the Holder thereof, Unregistered Securities of any series
may be exchanged for Registered Securities of such series and tenor having
authorized denominations and an equal aggregate principal amount, upon
surrender of such Unregistered Securities to be exchanged at the agency of
the Company that shall be maintained for such purpose in accordance with
Section 2.5, with, in the case of Unregistered Securities that have coupons
attached, all unmatured coupons and all matured coupons in default thereto
appertaining, and upon payment, if the Company shall so require, of the
charges hereinafter provided. At the option of the Holder thereof, if
Unregistered Securities of any series, maturity date, interest rate and
original issue date are issued in more than one authorized denomination,
except as otherwise established pursuant to Section 2.3, such Unregistered
Securities may be exchanged for Unregistered Securities of such series and
tenor having authorized denominations and an equal aggregate principal
amount, upon surrender of such Unregistered Securities to be exchanged at
the agency of the Company that shall be maintained for such purpose in
accordance with Section 2.5, with, in the case of Unregistered Securities
that have coupons attached, all unmatured coupons and all matured coupons
in default thereto appertaining, and upon payment, if the Company shall so
require, of the charges hereinafter provided. Unless otherwise specified
pursuant to Section 2.3, Registered Securities of any series may not be
exchanged for Unregistered Securities of such series. Whenever any
Securities are so surrendered for exchange, the Company shall execute, and
the Trustee shall authenticate and deliver, the Securities which the Holder
making the exchange is entitled to receive.
All Registered Securities presented for registration of
transfer, exchange, redemption or payment shall (if so required by the
Company or the Trustee) be duly endorsed by, or be accompanied by a
written instrument or instruments of transfer in form satisfactory to
the Company, the Registrar and the Trustee duly executed by, the holder
or his attorney duly authorized in writing.
The Company may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with
any exchange or registration of transfer of Securities. No service charge
shall be made for any such transaction.
Notwithstanding any other provision of this Section 2.7, 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.
If at any time the Depositary for any Registered Global
Securities of any series notifies the Company that it is unwilling or
unable to continue as Depositary for such Registered Global Securities or
if at any time the Depositary for such Registered Global Securities shall
no longer be eligible under Section 2.2, the Company shall appoint a
successor Depositary eligible under Section 2.2 with respect to such
Registered Global Securities. If a successor Depositary eligible under
Section 2.2 for such Registered Global Securities is not appointed by the
Company within 90 days after the Company receives such notice or becomes
aware of such ineligibility, the Company will execute, and the Trustee,
upon receipt of the Company's order for the authentication and delivery of
definitive Registered Securities of such series, will authenticate and
deliver, Registered Securities of such series and tenor, in any authorized
denominations, in an aggregate principal amount equal to the principal
amount of such Registered Global Securities, in exchange for such
Registered Global Securities.
The Company may at any time and in its sole discretion
determine that any Registered Global Securities of any series shall no
longer be maintained in global form. In such event the Company will
execute, and the Trustee, upon receipt of the Company's order for the
authentication and delivery of definitive Securities of such series, will
authenticate and deliver, Securities of such series and tenor in definitive
registered form without coupons, in any authorized denominations, in an
aggregate principal amount equal to the principal amount of such Registered
Global Securities, in exchange for such Registered Global Securities.
Any time the Registered Securities of any series are not in the
form of Registered Global Securities pursuant to the preceding two
paragraphs, the Company agrees to supply the Trustee with a reasonable
supply of certificated Registered Securities without the legend required by
Section 2.2 and the Trustee agrees to hold such Registered Securities in
safekeeping until authenticated and delivered pursuant to the terms of this
Indenture.
If established by the Company pursuant to Section 2.3 with
respect to any Registered Global Security, the Depositary for such
Registered Global Security may surrender such Registered Global Security in
exchange in whole or in part for Registered Securities of the same series
and tenor in definitive registered form on such terms as are acceptable to
the Company and such Depositary. Thereupon, the Company shall execute, and
the Trustee shall authenticate and deliver, without service charge,
(i) to the Person specified by such Depositary new Registered
Securities of the same series and tenor, of any authorized
denominations as requested by such Person, 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.
Registered securities issued in exchange for a Registered
Global Security pursuant to this Section 2.7 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 Company 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 Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such transfer or exchange.
Notwithstanding anything herein or in the forms or terms of any
Securities to the contrary, none of the Company, the Trustee or any agent
of the Company or the Trustee shall be required to exchange any
Unregistered Security for a Registered Security if such exchange would
result in adverse Federal income tax consequences to the Company (such as,
for example, the inability of the Company to deduct from its income, as
computed for Federal income tax purposes, the interest payable on the
Unregistered Securities) under then applicable United States Federal income
tax laws. The Trustee and any such agent shall be entitled to rely on an
Officers' Certificate or an Opinion of Counsel in determining such result.
The Registrar shall not be required (i) to issue, register the
transfer of or exchange Securities of any series for a period of 15 days
before a selection of such Securities to be redeemed or (ii) to register
the transfer of or exchange any Security selected for redemption in whole
or in part.
SECTION 2.8 Replacement Securities. If a mutilated
Security of any series is surrendered to the Trustee or if a Holder
provides evidence satisfactory to the Trustee that its Security of any
series has been lost, destroyed or wrongfully taken, the Company shall
issue and the Trustee shall authenticate a replacement Security of such
series and tenor and principal amount and bearing a number not
contemporaneously outstanding. If required by the Trustee or the Company,
an indemnity bond must be furnished that is sufficient in the judgment of
both the Trustee and the Company to protect the Company, the Trustee and
any Agent from any loss that any of them may suffer if a Security is
replaced. The Company may charge such Holder for its expenses and the
expenses of the Trustee in replacing a Security. In case any such
mutilated, lost, destroyed or wrongfully taken Security has become
or is about to become due and payable, the Company in its discretion may
pay such Security instead of issuing a new Security in replacement thereof.
Every replacement Security is an additional obligation of the
Company and shall be entitled to the benefits of this Indenture.
To the extent permitted by law, the foregoing provisions of
this Section are exclusive with respect to the replacement or payment of
mutilated, destroyed, lost or wrongfully taken Securities.
SECTION 2.9 Outstanding Securities. Securities outstanding at any
time are all Securities that have been authenticated by the Trustee except
for those canceled by it, those delivered to it for cancellation and those
described in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.8, it ceases to
be outstanding unless and until the Trustee and the Company receive proof
satisfactory to them that the replaced Security is held by a bona fide
purchaser.
If the Paying Agent (other than the Company or an Affiliate of
the Company) holds on the maturity date or any redemption date or date for
repurchase of the Securities money sufficient to pay Securities payable or
to be redeemed or repurchased on that date, then on and after that date
such Securities cease to be outstanding and interest on them shall cease to
accrue; provided, however, that with respect to Securities to be
repurchased, interest on them shall cease to accrue only when such
Securities have been physically rendered to the Trustee by the Company.
A Security does not cease to be outstanding because the Company
or one of its Affiliates holds such Security, provided, however, that, in
determining whether the Holders of the requisite principal amount of the
outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Securities owned by the
Company or any Affiliate of the Company shall be disregarded and deemed not
to be outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which the Trustee
knows to be so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as outstanding if the
pledgee establishes to the satisfaction of the Trustee the pledgee's right
so to act with respect to such Securities and that the pledgee is not the
Company or any Affiliate of the Company.
SECTION 2.10 Temporary Securities. Until definitive Securities of
any series are ready for delivery, the Company may prepare and the Trustee
shall authenticate temporary Securities of such series. Temporary
Securities of any series shall be substantially in the form of definitive
Securities of such series but may have insertions, substitutions, omissions
and other variations determined to be appropriate by the Officers executing
the temporary Securities, as evidenced by their execution of such temporary
Securities. If temporary Securities of any series are issued, the Company
will cause definitive Securities of such series to be prepared without
unreasonable delay. After the preparation of definitive Securities of any
series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series and tenor upon surrender of such
temporary Securities at the office or agency of the Company designated
for such purpose pursuant to Section 4.2, without charge to the Holder.
Upon surrender for cancellation of any one or more temporary Securities of
any series the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive
Securities of such series and tenor and authorized denominations. 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.
SECTION 2.11 Cancellation. The Company at any time may
deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired
in any manner whatsoever, and may deliver to the Trustee for cancellation
any Securities previously authenticated hereunder which the Company has not
issued and sold. The Registrar and the Paying Agent shall forward to the
Trustee any Securities surrendered to them for transfer, exchange or
payment. The Trustee shall cancel all Securities surrendered for transfer,
exchange, payment or cancellation and shall dispose of them in accordance
with its normal procedures or the written instructions of the Company. The
Company may not issue new Securities to replace Securities it has paid in
full or delivered to the Trustee for cancellation.
SECTION 2.12 CUSIP Numbers. The Company in issuing the
Securities may use "CUSIP" and "CINS" numbers (if then generally in use),
and the Trustee shall use CUSIP numbers or CINS numbers, as the case may
be, in notices of redemption or exchange as a convenience to Holders;
provided that any such notice shall 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 redemption or exchange.
SECTION 2.13 Defaulted Interest. If the Company
defaults in a payment of interest on the Securities, it shall pay, or
shall deposit with the Paying Agent money in immediately available
funds sufficient to pay, the defaulted interest, plus (to the extent
lawful) any interest payable on the defaulted interest, to the Persons who
are Holders on a subsequent special record date, which shall mean the 15th
day next preceding the date fixed by the Company for the payment of
defaulted interest, whether or not such day is a Business Day. At least 15
days before such special record date, the Company shall mail to each Holder
and to the Trustee a notice that states the special record date, the
payment date and the amount of defaulted interest to be paid.
ARTICLE 3
REDEMPTION
SECTION 3.1 Applicability of Article. The provisions of
this Article shall be applicable to the Securities of any series which are
redeemable before their maturity or to any sinking fund for the retirement
of Securities of a series except as otherwise specified as contemplated by
Section 2.3 for Securities of such series.
SECTION 3.2 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 at the option of the Company 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 of Registered Securities of such series at
their last addresses as they shall appear upon the registry books. Notice
of redemption to the Holders of Unregistered Securities of any series to be
redeemed as a whole or in part, who have filed their names and addresses
with the Trustee pursuant to Section 313(c)(2) of the Trust Indenture Act,
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
Company, the Trustee shall make such information available to the Company
for such purpose). Notice of redemption to all other Holders of
Unregistered Securities of any series to be redeemed as a whole or in part
shall be published in an Authorized Newspaper in The City of New York and
in an Authorized Newspaper in London, 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 by mail, 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 such series and tenor in
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 Company shall be given by the Company or, at
the Company's request, by the Trustee in the name and at the expense of the
Company.
On or before the redemption date specified in the notice of
redemption given as provided in this Section, the Company will deposit with
the Trustee or with one or more paying agents (or, if the Company is acting
as its own paying agent, set aside, segregate and hold in trust as provided
in Section 2.6) 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 all of the outstanding Securities of a series are
to be redeemed, the Company will deliver to the Trustee at least 20 days
prior to the last date on which notice of redemption may be given to
Holders pursuant to the first paragraph of this Section 3.2 an Officers'
Certificate stating that all such Securities are to be redeemed. If less
than all the outstanding Securities of a series are to be redeemed, the
Company will deliver to the Trustee at least 20 days prior to the last date
on which notice of redemption may be given to Holders pursuant to the first
paragraph of this Section 3.2 (or such shorter period as shall be
acceptable to the Trustee) an Officers' Certificate stating the aggregate
principal amount of such Securities to be redeemed. In case of a redemption
at the election of the Company prior to the expiration of any restriction
on such redemption, the Company 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 redemption is not prohibited by
such restriction.
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 equal to the minimum
authorized denomination for Securities of such series or any multiple
thereof. The Trustee shall promptly notify the Company 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 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.
SECTION 3.3 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 such date (unless the Company shall
default in the payment of such Securities at the redemption price, together
with interest accrued to such 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 7.11 and 8.4, such Securities shall cease from and
after 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 Company 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 2.4 and 2.13 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 Company 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 of any series redeemed in
part only, the Company shall execute and the Trustee shall authenticate and
deliver to or on the order of the Holder thereof, at the expense of the
Company, a new Security or Securities of such series and tenor (with any
unmatured coupons attached), of authorized denominations, in principal
amount equal to the unredeemed portion of the Security so presented.
SECTION 3.4 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 a written statement signed by an
authorized officer of the Company and 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 Company 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 Company.
SECTION 3.5 Mandatory and Optional Sinking Funds. The
minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by
the terms of 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 Company may
at its option (a) deliver to the Trustee Securities of such series
theretofore purchased or otherwise acquired (except through a mandatory
sinking fund payment) by the Company or receive credit for Securities of
such series (not previously so credited) theretofore purchased or otherwise
acquired (except as aforesaid) by the Company and delivered to the Trustee
for cancellation pursuant to Section 2.11, (b) receive credit for optional
sinking fund payments (not previously so credited) made pursuant to this
Section, or (c) receive credit for Securities of such series (not
previously so credited) redeemed by the Company through any optional
sinking fund payment. Securities so delivered or credited shall be received
or credited by the Trustee at the sinking fund redemption price specified
in such Securities.
On or before the sixtieth day next preceding each sinking fund
payment date for any series, the Company will deliver to the Trustee an
Officers' Certificate (which need not contain the statements required by
Section 10.4) (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 specified Securities of such series and the basis
for such credit, (b) stating that none of the specified Securities of such
series has theretofore 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 Company 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
Company 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 Company 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 2.11 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 Company 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 Company, on or before any such sixtieth day, to
deliver such Officer's Certificate and Securities specified in this
paragraph, if any, shall not constitute a default but shall constitute, on
and as of such date, the irrevocable election of the Company (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 Company 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 a lesser sum if the Company shall so request
with respect to the Securities of any 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 redemption price thereof
together with accrued interest thereon to the date fixed for redemption. If
such amount shall be $50,000 or less and the Company makes no such request
then it shall be carried over until a sum in excess of $50,000 is
available. The Trustee shall select, in the manner provided in Section 3.2,
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 Company) inform the Company
of the serial numbers of the Securities of such series (or portions
thereof) so selected. Securities shall be excluded from eligibility for
redemption under this Section if they are identified by registration and
certificate number in an Officers' Certificate delivered to the Trustee at
least 60 days prior to the sinking fund payment date as being owned of
record and beneficially by, and not pledged or hypothecated by either (a)
the Company or (b) an entity specifically identified in such Officers'
Certificate as directly or indirectly controlling or controlled by or under
direct or indirect common control with the Company. The Trustee, in the
name and at the expense of the Company (or the Company, 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 3.2 (and with the effect provided in Section 3.3) for the
redemption of Securities of such series in part at the option of the
Company.
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.
Before each sinking fund payment date, the Company 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 mail any notice of
redemption of Securities of 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 mailing 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 Company a sum sufficient for such
redemption. Except as aforesaid, any moneys 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 6 and held for the payment of all such Securities.
In case such Event of Default shall have been waived as provided in Section
6.4 or the default cured on or before the sixtieth 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 4
COVENANTS
SECTION 4.1 Payment of Securities. The Company shall pay
the principal of and interest on the Securities on the dates and in the
manner provided in the Securities and this Indenture. The interest on
Securities with coupons attached (together with any additional amounts
payable pursuant to the terms of such Securities) shall be payable only
upon presentation and surrender of the several coupons for such interest
installments as are evidenced thereby as they severally mature. The
interest on any temporary Unregistered Securities (together with any
additional amounts payable pursuant to the terms of such Securities) 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. 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 instructions of the Holders thereof and at the option
of the Company may be paid by wire transfer or mailing checks for such
interest payable to or upon the written order of such Holders at their last
addresses as they appear on the Security Register of the Company.
Notwithstanding any provisions of this Indenture and the Securities
of any series to the contrary, if the Company and a Holder of at least
$1,000,000 aggregate principal amount of Registered Securities so agree,
payments of interest on, and any portion of the principal of, such Holder's
Registered Securities (other than interest payable at maturity or on
any redemption or repayment date or the final payment of principal on
a Security) shall be made by the Paying Agent, upon receipt from the
Company of immediately available funds by 11:00 A.M., New York City time
(or such other time as may be agreed to between the Company and the Paying
Agent), directly to the Holder of such Security (by Federal funds wire
transfer or otherwise within the United States) if the Holder has delivered
written instructions to the Trustee 15 days prior to such payment date
requesting that such payment will be so made and designating the bank
account in the United States to which such payments shall be so made and in
the case of payments of principal surrenders the same to the Trustee in
exchange for a Security or Securities aggregating the same principal amount
as the unredeemed principal amount of the Securities surrendered. The
Trustee shall be entitled to rely on the last instruction delivered by the
Holder pursuant to this Section 4.1 unless a new instruction is delivered
15 days prior to a payment date. The Company will indemnify and hold each
of the Trustee and any Paying Agent harmless against any loss, liability or
expense (including attorneys' fees) resulting from any act or omission to
act on the part of the Company or any such Holder in connection with any
such agreement or from making any payment in accordance with any such
agreement.
The Company shall pay interest on overdue principal, and
interest on overdue installments of interest, to the extent lawful, at the
rate per annum specified in the Securities.
SECTION 4.2 Maintenance of Office or Agency. The Company
will maintain in The City of New York, an office or agency where Securities
may be surrendered for registration of transfer or exchange or for
presentation for payment and where notices and demands to or upon the
Company in respect of the Securities and this Indenture may be served. The
Company hereby initially designates the Corporate Trust Office of the
Trustee, located in The City of New York, as such office or agency of the
Company. The Company will give prompt written notice to the Trustee of
the location, and any change in the location, of such office or agency. If
at any time the Company shall fail to maintain any such required office or
agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served
at the address of the Trustee set forth in Section 10.2.
The Company 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 any 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 Company 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
United States laws and regulations then in effect, such payment can be made
without adverse tax consequences to the Company. Notwithstanding the
foregoing, if full payment in United States Dollars ("Dollars") at each
agency maintained by the Company outside the United States for payment on
such Unregistered Securities or coupons appertaining thereto is illegal or
effectively precluded by exchange controls or other similar restrictions,
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 Company maintained in The City of New York.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of any series may be
presented or surrendered for any or all such purposes and may from time
to time rescind such designations; provided that no such designation or
rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in The City of New York for such purposes. The
Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such
other office or agency.
SECTION 4.3 Negative Pledge. (a) The Company will not,
and will not permit any Restricted Subsidiary to, create, incur or suffer
to exist any mortgage or pledge, as security for any indebtedness, on or of
any shares of stock, indebtedness or other obligations of a Subsidiary or
any Principal Property of the Company or a Restricted Subsidiary, whether
such shares of stock, indebtedness or other obligations of a Subsidiary or
Principal Property of the Company or a Restricted Subsidiary is owned at
the date of this Indenture or hereafter acquired, unless the Company
secures or causes such Restricted Subsidiary to secure the outstanding
Securities equally and ratably with all indebtedness secured by such
mortgage or pledge, so long as such indebtedness shall be so secured;
provided, however, that this covenant shall not apply in the case of: (i)
the creation of any mortgage, pledge or other lien on any shares of stock,
indebtedness or other obligations of a Subsidiary or any Principal Property
hereafter acquired (including acquisitions by way of merger or
consolidation) by the Company or a Restricted Subsidiary contemporaneously
with such acquisition, or within 180 days thereafter, to secure or provide
for the payment or financing of any part of the purchase price thereof, or
the assumption of any mortgage, pledge or other lien upon any shares of
stock, indebtedness or other obligations of a Subsidiary or any Principal
Property hereafter acquired existing at the time of such acquisition, or
the acquisition of any shares of stock, indebtedness or other obligations
of a Subsidiary or any Principal Property subject to any mortgage, pledge
or other lien without the assumption thereof, provided that every such
mortgage, pledge or lien referred to in this clause (i) shall attach only
to the shares of stock, indebtedness or other obligations of a Subsidiary
or any Principal Property so acquired and fixed improvements thereon; (ii)
any mortgage, pledge or other lien on any shares of stock, indebtedness or
other obligations of a Subsidiary or any Principal Property existing at the
date of this Indenture; (iii) any mortgage, pledge or other lien on any
shares of stock, indebtedness or other obligations of a Subsidiary or any
Principal Property in favor of the Company or any Restricted Subsidiary;
(iv) any mortgage, pledge or other lien on Principal Property being
constructed or improved securing loans to finance such construction
or improvements; (v) any mortgage, pledge or other lien on shares of stock,
indebtedness or other obligations of a Subsidiary or any Principal Property
incurred in connection with the issuance of tax-exempt governmental
obligations; and (vi) any renewal of or substitution for any mortgage,
pledge or other lien permitted by any of the preceding clauses (i) through
(v), provided, in the case of a mortgage, pledge or other lien permitted
under clause (i), (ii) or (iv), the indebtedness secured is not increased
nor the lien extended to any additional shares of stock, indebtedness or
other obligations of a Subsidiary or any additional Principal Property.
(b) Notwithstanding the provisions of paragraph (a) of this
Section, the Company or any Restricted Subsidiary may create or assume
liens in addition to those permitted by paragraph (a) of this Section, and
renew, extend or replace such liens, provided that at the time of such
creation, assumption, renewal, extension or replacement, and after giving
effect thereto, Exempted Debt does not exceed 10% of Consolidated Net
Tangible Assets.
SECTION 4.4 Certain Sale and Lease-back Transactions.
(a) The Company will not, and will not permit any Restricted Subsidiary
to, sell or transfer, directly or indirectly, except to the Company or a
Restricted Subsidiary, any Principal Property as an entirety, or any
substantial portion thereof, with the intention of taking back a lease of
such property, except a lease for a period of three years or less at the
end of which it is intended that the use of such property by the lessee
will be discontinued; provided that, notwithstanding the foregoing, the
Company or any Restricted Subsidiary may sell any such Principal Property
and lease it back for a longer period (i) if the Company or such Restricted
Subsidiary would be entitled, pursuant to the provisions of Section 4.3(a),
to create a mortgage on the property to be leased securing Funded Debt in
an amount equal to the Attributable Debt with respect to such sale and
lease-back transaction without equally and ratably securing the outstanding
Securities or (ii) if (A) the Company promptly informs the Trustee of such
transaction, (B) the net proceeds of such transaction are at least equal to
the fair value (as determined by Board Resolution of the Company) of such
property and (C) the Company causes an amount equal to the net proceeds of
the sale to be applied to the retirement, within 180 days after receipt of
such proceeds, of Funded Debt incurred or assumed by the Company or a
Restricted Subsidiary (including the Securities); provided further that, in
lieu of applying all of or any part of such net proceeds to such
retirement, the Company may, within 75 days after such sale, deliver or
cause to be delivered to the applicable trustee for cancellation either
debentures or notes evidencing Funded Debt of the Company (which may
include the Outstanding Securities) or of a Restricted Subsidiary
previously authenticated and delivered by the applicable trustee, and
not theretofore tendered for sinking fund purposes or called for a sinking
fund or otherwise applied as a credit against an obligation to redeem or
retire such notes or debentures, and an Officers' Certificate (which shall
be delivered to the Trustee and each paying agent and which need not
contain the statements prescribed by the second paragraph of Section 10.4)
stating that the Company elects to deliver or cause to be delivered such
debentures or notes in lieu of retiring Funded Debt as hereinabove
provided. If the Company shall so deliver debentures or notes to the
applicable trustee and the Company shall duly deliver such Officers'
Certificate, the amount of cash which the Company shall be required to
apply to the retirement of Funded Debt under this Section 4.4(a) shall be
reduced by an amount equal to the aggregate of the then applicable optional
redemption prices (not including any optional sinking fund redemption
prices) of such debentures or notes or, if there are no such redemption
prices, the principal amount of such debentures or notes; provided,
that in the case of debentures or notes which provide for an amount less
than the principal amount thereof to be due and payable upon a declaration
of the maturity thereof, such amount of cash shall be reduced by the amount
of principal of such debentures or notes that would be due and payable as
of the date of such application upon a declaration of acceleration of the
maturity thereof pursuant to the terms of the indenture pursuant to which
such debentures or notes were issued.
(b) Notwithstanding the provisions of paragraph (a) of this
Section 4.4, the Company or any Restricted Subsidiary may enter into sale
and lease-back transactions in addition to those permitted by paragraph (a)
of this Section 4.4 and without any obligation to retire any outstanding
Securities or other Funded Debt, provided that at the time of entering into
such sale and lease-back transactions and after giving effect thereto,
Exempted Debt does not exceed 10% of Consolidated Net Tangible Assets.
SECTION 4.5 Notice of Defaults. In the event that the
Company becomes aware of any Default, the Company, promptly after it
becomes aware thereof, will give written notice thereof to the Trustee.
SECTION 4.6 Compliance Certificates; Reports. (a) The
Company shall deliver to the Trustee, within 45 days after the end of each
fiscal quarter (90 days after the end of the last fiscal quarter of each
year), an Officers' Certificate stating whether or not the signers know of
any Default that occurred during such fiscal quarter. In the case of the
Officers' Certificate delivered within 90 days of the end of the Company's
fiscal year, such certificate shall contain a certification from the
principal executive officer, principal financial officer or principal
accounting officer that a review has been conducted of the activities of
the Company and its Subsidiaries and the Company's and its Subsidiaries'
performance under this Indenture and that the Company has complied with all
conditions and covenants under this Indenture. For purposes of this Section
4.6, such compliance shall be determined without regard to any period of
grace or requirement of notice provided under this Indenture. If a Default
shall have occurred and be continuing, the certificate shall describe such
Default and its status. The first certificate to be delivered pursuant to
this Section 4.6(a) shall be for the first fiscal quarter beginning after
the execution of this Indenture.
(b) The Company shall deliver to the Trustee, within 90 days
after the end of the Company's fiscal year, a certificate signed by the
Company's independent certified public accountants stating (i) that their
audit examination has included a review of the terms of this Indenture and
the Securities as they relate to accounting matters, (ii) that they have
read the most recent Officers' Certificate delivered to the Trustee
pursuant to paragraph (a) of this Section 4.6 and (iii) whether, in
connection with their audit examination, anything came to their attention
that caused them to believe that the Company was not in compliance with any
of the terms, covenants, provisions or conditions of Article 4 and Section
5.1 of this Indenture as they pertain to accounting matters and, if any
Default has come to their attention, specifying the nature and period of
existence thereof; provided that such independent certified public
accountants shall not be liable in respect of such statement by reason of
any failure to obtain knowledge of any such Default that would not be
disclosed in the course of an audit examination conducted in accordance
with generally accepted auditing standards in effect at the date of such
examination.
(c) Within 90 days of the end of each of the Company's fiscal
years, the Company shall deliver to the Trustee a list of all Significant
Subsidiaries. The Trustee shall have no duty with respect to any such list
except to keep it on file and available for inspection by the Holders.
(d) The Company shall deliver to the Trustee all reports
filed with the Commission reasonably promptly following the filing thereof.
SECTION 4.7 Waiver of Stay, Extension or Usury Laws. The
Company covenants (to the extent that it may lawfully do so) that it will
not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law or any usury
law or other law that would prohibit or forgive the Company 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 that may affect the covenants or the performance of this
Indenture; and (to the extent that it may lawfully do so) the Company
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.
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.1 When Company May Merge, Etc. The Company
shall not consolidate with, merge with or into, or sell, convey, transfer,
lease or otherwise dispose of all or substantially all of its property and
assets (as an entirety or substantially an entirety in one transaction or a
series of related transactions) to, any Person (other than a consolidation
with or merger with or into a Subsidiary) or permit any Person to merge
with or into the Company unless:
(i) either (x) the Company shall be the continuing Person or
(y) the Person (if other than the Company) formed by such
consolidation or into which the Company is merged or that acquired or
leased such property and assets of the Company shall be a corporation
organized and validly existing under the laws of the United States of
America or any jurisdiction thereof and shall expressly assume, by a
supplemental indenture, executed and delivered to the Trustee, all of
the obligations of the Company on all of the Securities and under
this Indenture and the Company shall have delivered to the Trustee an
Opinion of Counsel stating that such consolidation, merger or
transfer and such supplemental indenture complies with this provision
and that all conditions precedent provided for herein relating to
such transaction have been complied with; and
(ii) immediately after giving effect to such transaction, no
Default shall have occurred and be continuing.
SECTION 5.2 Successor Substituted. Upon any
consolidation or merger, or any sale, conveyance, transfer, lease or other
disposition of all or substantially all of the property and assets of the
Company in accordance with Section 5.1 of this Indenture, the successor
Person formed by such consolidation or into which the Company is merged or
to which such sale, conveyance, transfer, lease or other disposition is
made shall succeed to, and be substituted for, and may exercise every right
and power of, the Company under this Indenture with the same effect as if
such successor Person had been named as the Company herein.
ARTICLE 6
DEFAULT AND REMEDIES
SECTION 6.1 Events of Default. An "Event of Default"
shall occur with respect to the Securities of any series if:
(a) the Company defaults in the payment of the principal of
any Security of such series when the same becomes due and payable at
maturity, upon acceleration, redemption, mandatory repurchase or
otherwise;
(b) the Company defaults in the payment of interest on any
Security of such series when the same becomes due and payable, and
such default continues for a period of 30 days;
(c) the Company defaults in the performance of or breaches any
other covenant or agreement of the Company in this Indenture with
respect to any Security of such series or in the Securities of such
series and such default or breach continues for a period of 30
consecutive days after written notice to the Company by the Trustee
or to the Company and the Trustee by the Holders of 25% or more in
aggregate principal amount of the Securities of such series;
(d) an involuntary case or other proceeding shall be commenced
against the Company with respect to it or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in
effect seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any substantial part of
its property, and such involuntary case or other proceeding shall
remain undismissed and unstayed for a period of 60 days; or an order
for relief shall be entered against the Company under the federal
bankruptcy laws as now or hereafter in effect;
(e) the Company (A) commences a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or consents to the entry of an order for relief
in an involuntary case under any such law, (B) consents to the
appointment of or taking possession by a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official of the
Company or for all or substantially all of the property and assets of
the Company or (C) effects any general assignment for the benefit of
creditors; or
(f) any other Event of Default established with respect to the
Securities of such series pursuant to Section 2.3 occurs.
SECTION 6.2 Acceleration. If an Event of Default
described in clauses (a) or (b) of Section 6.1 with respect to the
Securities of any series or in clauses (c) or (f) of Section 6.1 with
respect to the Securities of one or more but not all series 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
series then outstanding hereunder (each such series voting as a separate
class) by notice in writing to the Company (and to the Trustee if given by
Securityholders), may declare the entire principal (or, if the Securities
of any such series are Original Issue Discount Securities, such portion of
the principal amount as may be specified in the terms of such series
established pursuant to Section 2.3) of all Securities of such 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 (f) of Section
6.1 with respect to the Securities of all series 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 (treated as one
class), by notice in writing to the Company (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 established pursuant to
Section 2.3) 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 described in clause (d) or (e) of Section 6.1 occurs and is
continuing, then the principal amount (or, if any Securities are original
Issue Discount Securities, such portion of the principal as may be
specified in the terms thereof established pursuant to Section 2.3) of all
the Securities then outstanding and interest accrued thereon, if any, shall
be and become immediately due and payable, without any notice or other
action by any Holder or the Trustee, to the full extent permitted by
applicable law.
The foregoing provisions, however, are subject to the condition
that if, at any time after the principal (or, if the Securities are
Original Issue Discount Securities, such portion of the principal as may be
specified in the terms thereof established pursuant to Section 2.3) 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 Company shall pay or shall deposit
with the Trustee a sum sufficient to pay all matured installments of
interest upon all the Securities of each 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, to the extent that payment of such interest is
enforceable under applicable law, 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 to the date of such payment or deposit) and such amount as
shall be sufficient to cover all amounts owing the Trustee under Section
7.7, and if any and all Events of Default under the Indenture, other than
the non-payment of the principal of Securities which shall 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 as the case may be (in each case voting as a single
class), then outstanding, by written notice to the Company 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.
SECTION 6.3 Other Remedies. If an Event of Default with
respect to the Securities of any series occurs and is continuing, the
Trustee may pursue, in its own name or as trustee of an express
trust, any available remedy by proceeding at law or in equity to collect
the payment of principal of and interest on the Securities of such series
or to enforce the performance of any provision of the Securities of such
series or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Securities or does not produce any of them in the
proceeding.
SECTION 6.4 Waiver of Past Defaults. Subject to Sections
6.2, 6.7 and 9.2, the Holders of at least a majority in principal amount of
the outstanding Securities of the series affected (all such series voting
as a single class), by notice to the Trustee, may waive an existing Default
or Event of Default with respect to the Securities of such series and its
consequences, except a Default in the payment of principal of or interest
on any Security as specified in clause (a) or (b) of Section 6.1 or in
respect of a covenant or provision of this Indenture which cannot be
modified or amended without the consent of the Holder of each outstanding
Security affected. Upon any such waiver, such Default shall cease to exist,
and any Event of Default with respect to the Securities of such series
arising therefrom shall be deemed to have been cured, for every purpose of
this Indenture; but no such waiver shall extend to any subsequent or other
Default or Event of Default or impair any right consequent thereto.
SECTION 6.5 Control by Majority. The Holders of at least
a majority in aggregate principal amount of the outstanding Securities of
each series affected (each such series voting as a separate class) may
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 the Trustee may refuse to follow any direction
that conflicts with law or this Indenture, that may involve the Trustee in
personal liability, or that the Trustee determines in good faith may be
unduly prejudicial to the rights of Holders not joining in the giving of
such direction; and provided further, that the Trustee may take any other
action it deems proper that is not inconsistent with any directions
received from Holders of Securities pursuant to this Section 6.5.
SECTION 6.6 Limitation on Suits. No Holder of any
Security of any series may institute any proceeding, judicial or otherwise,
with respect to this Indenture or the Securities of such series, or for the
appointment of a receiver or trustee, or for any other remedy hereunder,
unless:
(i) such Holder has previously given to the Trustee written
notice of a continuing Event of Default with respect to the
Securities of such series;
(ii) the Holders of at least 25% in aggregate principal amount
of outstanding Securities of such series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(iii) such Holder or Holders have offered to the Trustee
indemnity reasonably satisfactory to the Trustee against any costs,
liabilities and expenses to be incurred in compliance with such
request;
(iv) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(v) during such 60-day period, the Holders of a majority in
aggregate principal amount of the outstanding Securities of such
series have not given the Trustee a direction that is inconsistent
with such written request.
A Holder may not use this Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over such other
Holder.
SECTION 6.7 Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Security to receive payment of principal of or interest, if
any, on such Holder's Security on or after the respective due dates
expressed on such Security, or to bring 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.
SECTION 6.8 Collection Suit by Trustee. If an Event of
Default with respect to the Securities of any series in payment of
principal or interest specified in clause (a) or (b) of Section 6.1 occurs
and is continuing, the Trustee may recover judgment in its own name and as
trustee of an express trust against the Company for the whole amount (or
such portion thereof as specified in the terms established pursuant to
Section 2.3 of Original Issue Discount Securities) of principal of, and
accrued interest remaining unpaid on, together with interest on overdue
principal of, and, to the extent that payment of such interest is lawful,
interest on overdue installments of interest on, the Securities of such
series, in each case at the rate or Yield to Maturity (in the case of
Original Issue Discount Securities) specified in such Securities, and such
further amount as shall be sufficient to cover all amounts owing the
Trustee under Section 7.7.
SECTION 6.9 Trustee May File Proofs of Claim. The
Trustee may file such proofs of claim and other papers or documents as may
be necessary or advisable in order to have the claims of the
Trustee (including any claim for amounts due the Trustee under Section 7.7)
and the Holders allowed in any judicial proceedings relative to the Company
(or any other obligor on the Securities), its creditors or its property and
shall be entitled and empowered to collect and receive any monies,
securities or other property payable or deliverable upon conversion or
exchange of the Securities or upon any such claims and to distribute the
same, and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding is
hereby authorized by each Holder to make such payments to the Trustee and,
in the event that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due to it under
Section 7.7.
SECTION 6.10 Application of Proceeds. Any moneys
collected by the Trustee pursuant to this Article in respect of the
Securities 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 and tenor in
reduced principal amounts in exchange for the presented Securities of such
series and tenor if only partially paid, or upon surrender thereof if fully
paid:
FIRST: To the payment of all amounts due the Trustee under
Section 7.7;
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 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 or Yield to Maturity, without
preference or priority of principal over interest or Yield to
Maturity, or of interest or Yield to Maturity 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 or Yield to Maturity; and
FOURTH: To the payment of the remainder, if any, to the
Company or any other person lawfully entitled thereto.
SECTION 6.11 Restoration of Rights and Remedies. If the
Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee
or to such Holder, then, and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders
shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Company, Trustee
and the Holders shall continue as though no such proceeding had been
instituted.
SECTION 6.12 Undertaking for Costs. In any suit
for the enforcement of any right or remedy under this Indenture or in any
suit against the Trustee for any action taken or omitted by it as Trustee,
in either case in respect to the Securities of any series, a court may
require any party litigant in such suit (other than the Trustee) to file an
undertaking to pay the costs of the suit, and the court may assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant (other than the Trustee) in the suit having due regard to the
merits and good faith of the claims or defenses made by the party litigant.
This Section 6.12 does not apply to a suit by a Holder pursuant to Section
6.7 or a suit by Holders of more than 10% in principal amount of the
outstanding Securities of such series.
SECTION 6.13 Rights and Remedies Cumulative. Except as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or wrongfully taken Securities in Section 2.8, no right or
remedy herein conferred upon or reserved to the Trustee or to the Holders
is intended to be exclusive of any other right or remedy, and every right
and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not
prevent the concurrent assertion or employment of any other appropriate
right or remedy.
SECTION 6.14 Delay or Omission Not Waiver. No delay or
omission of the Trustee or of any Holder to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article 6 or by law to the
Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
ARTICLE 7
TRUSTEE
SECTION 7.1 General. The duties and responsibilities of
the Trustee shall be as provided by the Trust Indenture Act and as set
forth herein. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or powers, unless
it receives indemnity satisfactory to it against any loss, liability or
expense. Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of
this Article 7.
SECTION 7.2 Certain Rights of Trustee. Subject to Trust
Indenture Act Sections 315(a) through (d):
(i) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been
signed or presented by the proper person. The Trustee need not
investigate any fact or matter stated in the document, but the
Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit;
(ii) before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel, which
shall conform to Section 10.4. The Trustee shall not be liable for
any action it takes or omits to take in good faith in reliance on
such certificate or opinion;
(iii) the Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any
agent appointed with due care;
(iv) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders, unless such Holders shall have
offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities that might be incurred by it in
compliance with such request or direction;
(v) the Trustee shall not be liable for any action it takes
or omits to take in good faith that it believes to be authorized or
within its rights or powers or for any action it takes or omits to
take in accordance with the direction of the Holders of a majority in
principal amount of the outstanding Securities of any series relating
to the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture; and
(vi) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon.
SECTION 7.3 Individual Rights of Trustee. The Trustee,
in its individual or any other capacity, may become the owner or pledgee of
Securities and may otherwise deal with the Company or its Affiliates with
the same rights it would have if it were not the Trustee. Any Agent may do
the same with like rights. However, the Trustee is subject to Trust
Indenture Act Sections 310(b) and 311. For purposes of Trust Indenture Act
Section 311(b)(4) and (6), the following terms shall mean:
(a) "cash transaction" means any transaction in which full
payment for goods or securities sold is made within seven days after
delivery of the goods or securities in currency or in checks or other
orders drawn upon banks or bankers and payable upon demand; and
(b) "self-liquidating paper" means any draft, xxxx of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase,
processing, manufacturing, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security is
received by the Trustee simultaneously with the creation of the creditor
relationship with the Company arising from the making, drawing, negotiating
or incurring of the draft, xxxx of exchange, acceptance or obligation.
SECTION 7.4 Trustee's Disclaimer. Neither the Trustee
nor any of its agents (i) makes any representation as to the validity or
adequacy of this Indenture or the Securities, (ii) shall be accountable for
the Company's use or application of the proceeds from the Securities or
(iii) shall be responsible for any statement in the Securities other than
its certificate of authentication.
SECTION 7.5 Notice of Default. If any Default with
respect to the Securities of any series occurs and is continuing and if
such Default is known to any Responsible Officer of the Trustee, the
Trustee shall give to each Holder of Securities of such series notice of
such Default within 90 days after it occurs (i) if any Unregistered
Securities of such series are then outstanding, to the Holders thereof, by
publication at least once in an Authorized Newspaper in The City of New
York and at least once in an Authorized Newspaper in London and (ii) to all
Holders of Securities of such series in the manner and to the extent
provided in Section 313(c) of the Trust Indenture Act, unless such Default
shall have been cured or waived before the mailing or publication of such
notice; provided, however, that, except in the case of a Default in the
payment of the principal of or interest on any Security, 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 and/or
Responsible Officers of the Trustee in good faith determine that the
withholding of such notice is in the interests of the Holders.
SECTION 7.6 Reports by Trustee to Holders. Within 60
days after each May 15, beginning with May 15, 1995, the Trustee shall mail
to each Holder as provided in Trust Indenture Act Section 313(c) a
brief report dated as of such May 15, if required by Trust Indenture Act
Section 313(a).
SECTION 7.7 Compensation and Indemnity. The Company
shall pay to the Trustee such compensation as shall be agreed upon in
writing for its services. The compensation of the Trustee shall not be
limited by any law on compensation of a Trustee of an express trust. The
Company shall reimburse the Trustee upon request for all reasonable out-of-
pocket expenses, disbursements and advances incurred or made by the
Trustee. Such expenses and disbursements shall include the reasonable
compensation, expenses and disbursements of the Trustee's agents and
counsel.
The Company shall indemnify the Trustee for, and hold it
harmless against, any loss or liability or expense incurred by it without
negligence or bad faith on its part arising out of or in connection with
the acceptance or administration of this Indenture and its duties under
this Indenture and the Securities, including the costs and expenses of
defending itself against any claim or liability and of complying with any
process served upon it or any of its officers in connection with the
exercise or performance of any of its powers or duties under this Indenture
and the Securities.
To secure the Company's payment obligations in this Section
7.7, the Trustee shall have a lien prior to the Securities on all money or
property held or collected by the Trustee, in its capacity as Trustee,
except money or property held in trust to pay principal of and
interest on particular Securities that is so held prior to the date the
Trustee first incurs expenses or makes disbursements or advances in
connection with collecting any amounts due with respect to such Securities.
SECTION 7.8 Replacement of Trustee. A resignation or
removal of the Trustee as Trustee with respect to the Securities of any
series and appointment of a successor Trustee as Trustee with respect to
the Securities of any series shall become effective only upon the successor
Trustee's acceptance of appointment as provided in this Section 7.8.
The Trustee may resign as Trustee with respect to the
Securities of any series at any time by so notifying the Company in
writing. The Holders of a majority in principal amount of the outstanding
Securities of any series may remove the Trustee as Trustee with respect to
the Securities of such series by so notifying the Trustee in writing and
may appoint a successor Trustee with respect thereto with the consent of
the Company. The Company may remove the Trustee as Trustee with respect to
the Securities of any series if: (i) the Trustee is no longer eligible
under Section 7.10 of this Indenture; (ii) the Trustee is adjudged a
bankrupt or an insolvent; (iii) a receiver or other public officer takes
charge of the Trustee or its property; or (iv) the Trustee becomes
incapable of acting.
If the Trustee resigns or is removed as Trustee with respect to
the Securities of any series, or if a vacancy exists in the office of
Trustee with respect to the Securities of any series for any reason, the
Company shall promptly appoint a successor Trustee with respect thereto.
Within one year after the successor Trustee takes office, the Holders of a
majority in principal amount of the outstanding Securities of such series
may appoint a successor Trustee in respect of such Securities to replace
the successor Trustee appointed by the Company. If the successor Trustee
with respect to the Securities of any series does not deliver its written
acceptance required by the next succeeding paragraph of this Section 7.8
within 30 days after the retiring Trustee resigns or is removed, the
retiring Trustee, the Company or the Holders of a majority in principal
amount of the outstanding securities of such series may petition any court
of competent jurisdiction for the appointment of a successor Trustee with
respect thereto.
A successor Trustee with respect to the Securities of any
series shall deliver a written acceptance of its appointment to the
retiring Trustee and to the Company. Immediately after the delivery of such
written acceptance, subject to the lien provided for in Section 7.7,
(i) the retiring Trustee shall transfer all property held by it as Trustee
in respect of the Securities of such series to the successor Trustee, (ii)
the resignation or removal of the retiring Trustee in respect of the
Securities of such series shall become effective and (iii) the successor
Trustee shall have all the rights, powers and duties of the Trustee in
respect of the Securities of such series under this Indenture. A successor
Trustee shall mail notice of its succession to each Holder of Securities of
such series.
Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts
referred to in the preceding paragraph.
The Company shall give notice of any resignation and any
removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee in respect of the Securities of
such series to all Holders of Securities of such series. Each notice shall
include the name of the successor Trustee and the address of its Corporate
Trust Office.
Notwithstanding replacement of the Trustee with respect to the
Securities of any series pursuant to this Section 7.8, the Company's
obligations under Section 7.7 shall continue for the benefit of the
retiring Trustee.
SECTION 7.9 Successor Trustee by Merger, Etc. If the
Trustee consolidates with, merges or converts into, or transfers all or
substantially all of its corporate trust business to, another corporation
or national banking association, the resulting, surviving or transferee
corporation or national banking association without any further act shall
be the successor Trustee with the same effect as if the successor Trustee
had been named as the Trustee herein.
SECTION 7.10 Eligibility. This Indenture shall always
have a Trustee who satisfies the requirements of Trust Indenture Act
Section 310(a). The Trustee shall have a combined capital and surplus of at
least $25,000,000 as set forth in its most recent published annual report
of condition.
SECTION 7.11 Money Held in Trust. The Trustee shall not
be liable for interest on any money received by it except as the Trustee
may agree with the Company. Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law and except
for money held in trust under Article 8 of this Indenture.
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.1 Defeasance Within One Year of Payment.
Except as otherwise provided in this Section 8.1, the Company may terminate
its obligations under the Securities of any series and this Indenture with
respect to Securities of such series if:
(i) all Securities of such series previously authenticated
and delivered (other than destroyed, lost or stolen Securities of
such series that have been replaced or Securities of such series that
are paid pursuant to Section 4.1 or Securities of such series for
whose payment money or securities have theretofore been held in trust
and thereafter repaid to the Company, as provided in Section 8.5)
have been delivered to the Trustee for cancellation and the Company
has paid all sums payable by it hereunder; or
(ii) (A) the Securities of such series mature within one year
or all of them are to be called for redemption within one year under
arrangements satisfactory to the Trustee for giving the notice of
redemption, (B) the Company irrevocably deposits in trust with the
Trustee, as trust funds solely for the benefit of the Holders of such
Securities for that purpose, money or U.S. Government Obligations or 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), without
consideration of any reinvestment, to pay principal of and interest
on the Securities of such series to maturity or redemption, as the
case may be, and to pay all other sums payable by it hereunder, (C)
no Default with respect to the Securities of such series has occurred
and is continuing on the date of such deposit, (D) such deposit does
not result in a breach or violation of, or constitute a default
under, this Indenture or any other agreement or instrument to which
the Company is a party or by which it is bound and (E) the Company
delivers to the Trustee an Officers' Certificate and an Opinion of
Counsel, in each case stating that all conditions precedent provided
for herein relating to the satisfaction and discharge of this
Indenture with respect to the Securities of such series and of the
Securities of such series have been complied with.
With respect to the foregoing clause (i), only the Company's
obligations under Section 7.7 in respect of the Securities of such series
shall survive. With respect to the foregoing clause (ii), only the
Company's obligations in Sections 2.2, 2.3, 2.4, 2.5, 2.6, 2.7, 2.11, 4.2,
7.7, 7.8, 8.5 and 8.6 in respect of the Securities of such series shall
survive until the Securities of such series are no longer outstanding.
Thereafter, only the Company's obligations in Sections 7.7, 8.5 and 8.6 in
respect of the Securities of such series shall survive. After any such
irrevocable deposit, the Trustee upon request shall acknowledge in writing
the discharge of the Company's obligations under the Securities of such
series and this Indenture with respect to the Securities of such series
except for those surviving obligations specified above.
SECTION 8.2 Defeasance at Any Time. Except as otherwise
provided in this Section 8.2, after the period specified in clause
(D)(2)(z) of this Section 8.2, the Company will be deemed to have paid and
will be discharged from any and all obligations in respect of the
Securities of any series, the provisions of this Indenture will no longer
be in effect with respect to the Securities of such series, and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same; provided that the following conditions shall have
been satisfied:
(A) the Company has irrevocably deposited in trust with the
Trustee as trust funds solely for the benefit of the Holders of the
Securities of such series for payment of the principal of and
interest on the Securities of such series, money or U.S. Government
Obligations or 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) without consideration of any reinvestment and after payment
of all federal, state and local taxes or other charges and
assessments in respect thereof payable by the Trustee, to pay and
discharge the principal of and accrued interest on the outstanding
Securities of such series to maturity or earlier redemption (irrevocably
provided for under arrangement satisfactory to the Trustee), as the case
may be;
(B) such deposit will not result in a breach or violation of,
or constitute a default under, this Indenture or any other agreement
or instrument to which the Company is a party or by which it is
bound;
(C) no Default with respect to the Securities of such series
shall have occurred and be continuing on the date of such deposit or
at any time during the period specified in clause (D)(2)(z) below;
(D) the Company shall have delivered to the Trustee (1)
either (x) a ruling directed to the Trustee received from the
Internal Revenue Service to the effect that the Holders of the
Securities of such series will not recognize income, gain or loss for
federal income tax purposes as a result of the Company's exercise of
its option under this Section 8.2 and will be subject to federal
income tax on the same amount and in the same manner and at the same
times as would have been the case if such option had not been
exercised or (y) an Opinion of Counsel to the same effect as the
ruling described in clause (x) above and based upon a change in law
and (2) an Opinion of Counsel to the effect that (x) the creation of
the defeasance trust does not violate the Investment Company Act of
1940, as amended, (y) the Holders of the Securities of such series
have a valid first priority security interest in the trust funds
subject to Section 7.7, and (z) after the passage of 123 days
following the deposit (except after one year following the deposit,
with respect to any trust funds for the account of any Holder of the
Securities of such series who may be deemed to be an "insider" as to
an obligor on the Securities of such series for purposes of the
United States Bankruptcy Code), the trust funds will not be subject
to the effect of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code or
Section 15 of the New York Debtor and Creditor Law in a case
commenced by or against the Company under either such statute, and
either (I) the trust funds will no longer remain the property of the
Company (and therefore will not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally) or (II) if a court were to
rule under any such law in any case or proceeding that the trust
funds remained the property of the Company, to the extent not paid to
such Holders, the Trustee will hold, for the benefit of such Holders,
a valid and perfected first priority security interest in such trust
funds that is not avoidable in bankruptcy or otherwise (except for
the effect of Section 552(b) of the United States Bankruptcy Code on
interest on the trust funds accruing after the commencement of a case
under such statute) and the Holders of the Securities of such series
will be entitled to receive adequate protection of their interests in
such trust funds if such trust funds are used in such case or
proceeding;
(E) if the Securities of such series are then listed on a
national securities exchange, the Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that the defeasance
contemplated by this Section 8.2 of the Securities of such series
will not cause the Securities of such series to be delisted; and
(F) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all
conditions precedent provided for herein relating to the defeasance
contemplated by this Section 8.2 of the Securities of such series
have been complied with.
Notwithstanding the foregoing, prior to the end of the 123-day
(or one year) period referred to in clause (D)(2)(z) of this Section 8.2,
none of the Company's obligations under this Indenture with respect to the
Securities of such series shall be discharged. Subsequent to the end of
such 123-day (or one year) period, the Company's obligations in Sections
2.2, 2.3, 2.4, 2.5, 2.6, 2.7, 2.11, 4.2, 7.7, 7.8, 8.5 and 8.6 with respect
to the Securities of such series shall survive until such Securities are no
longer outstanding. Thereafter, only the Company's obligations in Sections
7.7, 8.5 and 8.6 with respect to the Securities of such series shall
survive. If and when a ruling from the Internal Revenue Service or an
Opinion of Counsel referred to in clause (D)(1) of this Section 8.2 is able
to be provided specifically without regard to, and not in reliance upon,
the continuance of the Company's obligations under Section 4.1, then the
Company's obligations under such Section 4.1 with respect to the Securities
of such series shall cease upon delivery to the Trustee of such ruling or
Opinion of Counsel and compliance with the other conditions precedent
provided for herein relating to the defeasance contemplated by this Section
8.2.
SECTION 8.3 Covenant Defeasance. The Company may omit to
comply with any term, provision or condition set forth in Sections 4.3 and
4.4 and such omission shall be deemed not to be an Event of Default
under clause (c) of Section 6.1, with respect to the outstanding Securities
of any series if:
(i) the Company has irrevocably deposited in trust with the
Trustee as trust funds solely for the benefit of the Holders of the
Securities of such series for payment of the principal of and
interest, if any, on the Securities of such series money or U.S.
Government Obligations or a combination thereof in an amount
sufficient (in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee) without consideration of any
reinvestment and after payment of all federal, state and local taxes
or other charges and assessments in respect thereof payable by the
Trustee, to pay and discharge the principal of and interest on the
outstanding Securities of such series to maturity or earlier
redemption (irrevocably provided for under arrangements satisfactory
to the Trustee), as the case may be;
(ii) such deposit will not result in a breach or violation
of, or constitute a default under, this Indenture or any other
agreement or instrument to which the Company is a party or by which
it is bound;
(iii) no Default with respect to the Securities of such series
shall have occurred and be continuing on the date of such deposit;
(iv) the Company has delivered to the Trustee an Opinion of
Counsel to the effect that (A) the creation of the defeasance trust
does not violate the Investment Company Act of 1940, as amended, (B)
the Holders of the Securities of such series have a valid first
priority security interest in the trust funds, (C) such Holders will
not recognize income, gain or loss for federal income tax purposes as
a result of such deposit and covenant defeasance and will be subject
to federal income tax on the same amount and in the same manner and
at the same times as would have been the case if such deposit and
defeasance had not occurred and (D) after the passage of 123 days
following the deposit (except after one year following the deposit,
with respect to any trust funds for the account of any Holder of the
Securities of such series, who may be deemed to be an "insider" as to
an obligor on the Securities of such series for purposes of the
United States Bankruptcy Code), the trust funds will not be subject to
the effect of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code or
Section 15 of the New York Debtor and Creditor Law in a case commenced
by or against the Company under either such statute, and either (1) the
trust funds will no longer remain the property of the Company (and
therefore will not be subject to the effect of any applicable
bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally) or (2) if a court were to rule under any
such law in any case or proceeding that the trust funds remained
property of the Company, to the extent not paid to such Holders, the
Trustee will hold, for the benefit of such Holders, a valid and
perfected first priority security interest in such trust funds that
is not avoidable in bankruptcy or otherwise (except for the effect of
Section 552(b) of the United States Bankruptcy Code on interest on the
trust funds accruing after the commencement of a case under such
statute), and the Holders of the Securities of such series will be
entitled to receive adequate protection of their interests in such
trust funds if such trust funds are used in such case or proceeding;
(v) if the Securities of such series are then listed on a
national securities exchange, the Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that the covenant
defeasance contemplated by this Section 8.3 of the Securities of such
series will not cause the Securities of such series to be delisted;
and
(vi) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all
conditions precedent provided for herein relating to the covenant
defeasance contemplated by this Section 8.3 of the Securities of such
series have been complied with.
SECTION 8.4 Application of Trust Money. Subject to
Section 8.5, the Trustee or Paying Agent shall hold in trust money or U.S.
Government Obligations deposited with it pursuant to Section 8.1, 8.2 or
8.3, as the case may be, in respect of the Securities of any series and
shall apply the deposited money and the proceeds from deposited U.S.
Government Obligations in accordance with the Securities of such series and
this Indenture to the payment of principal of and interest on the
Securities of such series; but such money need not be segregated from other
funds except to the extent required by law.
SECTION 8.5 Repayment to Company. Subject to Sections
7.7, 8.1, 8.2 and 8.3, the Trustee and the Paying Agent shall promptly pay
to the Company upon request set forth in an Officers' Certificate any
excess money held by them at any time and thereupon shall be relieved from
all liability with respect to such money. The Trustee and the Paying Agent
shall pay to the Company upon request any money held by them for the
payment of principal or interest that remains unclaimed for two years;
provided that the Trustee or such Paying Agent before being required to
make any payment may cause to be published at the expense of the Company
once in a newspaper of general circulation in the City of New York or mail
to each Holder entitled to such money at such Holder's address (as set
forth in the Security Register) notice that such money remains unclaimed
and that after a date specified therein (which shall be at least 30 days
from the date of such publication or mailing) any unclaimed balance of such
money then remaining will be repaid to the Company. After payment to the
Company, Holders entitled to such money must look to the Company for
payment as general creditors unless an applicable law designates another
Person, and all liability of the Trustee and such Paying Agent with respect
to such money shall cease.
SECTION 8.6 Reinstatement. If the Trustee or Paying
Agent is unable to apply any money or U.S. Government Obligations in
accordance with Section 8.1, 8.2 or 8.3, as the case may be, in respect of
the Securities of any series by reason of any legal proceeding or by reason
of any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Company's
obligations under this Indenture with respect to the Securities of such
series and the Securities of such series shall be revived and reinstated as
though no deposit had occurred pursuant to Section 8.1, 8.2 or 8.3, as the
case may be, until such time as the Trustee or Paying Agent is permitted to
apply all such money or U.S. Government Obligations in accordance with
Section 8.1, 8.2 or 8.3, as the case may be in respect of the Securities of
such series; provided that, if the Company has made any payment of
principal of or interest on any Securities of such series because of the
reinstatement of its obligations, the Company shall be subrogated to the
rights of the Holders of such Securities to receive such payment from the
money or U.S. Government Obligations held by the Trustee or Paying Agent.
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.1 Without Consent of Holders. The Company and
the Trustee may amend or supplement this Indenture or the Securities of any
series without notice to or the consent of any Holder:
(1) to cure any ambiguity, defect or inconsistency in this
Indenture; provided that such amendments or supplements shall not
adversely affect the interests of the Holders in any material
respect;
(2) to comply with Article 5;
(3) to comply with any requirements of the Commission in
connection with the qualification of this Indenture under the Trust
Indenture Act;
(4) to evidence and provide for the acceptance of appointment
hereunder with respect to the Securities of any or all series by a
successor Trustee;
(5) to establish the form or forms or terms of Securities of
any series or of the coupons appertaining to such Securities as
permitted by Section 2.3;
(6) to provide for uncertificated Securities and to make all
appropriate changes for such purpose; or
(7) to make any change that does not materially and adversely
affect the rights of any Holder.
SECTION 9.2 With Consent of Holders. Subject to Sections
6.4 and 6.7, without prior notice to any Holders, the Company and the
Trustee may amend this Indenture and the Securities of any series with the
written consent of the Holders of a majority in principal amount of the
outstanding Securities of all series affected by such supplemental
indenture (all such series voting as one class), and the Holders of a
majority in principal amount of the outstanding Securities of all series
affected thereby (all such series voting as one class) by written notice to
the Trustee may waive future compliance by the Company with any provision
of this Indenture or the Securities of such series.
Notwithstanding the provisions of this Section 9.2, without the
consent of each Holder of the Securities of each series affected thereby,
an amendment or waiver, including a waiver pursuant to Section 6.4, may
not:
(i) extend the stated maturity of the principal of, or any
sinking fund obligation or any installment of interest on, such
Holder's Security, or reduce the principal amount thereof or the rate
of interest thereon (including any amount in respect of original
issue discount), or any premium payable with respect thereto, or
adversely affect the rights of such Holder under any mandatory
repurchase provision or any right of repurchase at the option of such
Holder, or reduce the amount of the principal of an Original Issue
Discount Security that would be due and payable upon an acceleration
of the maturity thereof pursuant to Section 6.2 or the amount thereof
provable in bankruptcy, or change any place of payment where, or the
currency in which, any Security of such series or any premium or the
interest thereon is payable, or impair the right to institute suit
for the enforcement of any such payment on or after the stated
maturity thereof (or, in the case of redemption, on or after the
redemption date or, in the case of mandatory repurchase, the date
therefor);
(ii) reduce the percentage in principal amount of outstanding
Securities of such series the consent of whose Holders is required
for any such supplemental indenture, for any waiver of compliance
with certain provisions of this Indenture or certain Defaults and
their consequences provided for in this Indenture;
(iii) waive a Default in the payment of principal of or
interest on, any Security of such series;
(iv) cause any Security of such series to be subordinated in
right of payment to any obligation of the Company;
(v) modify any of the provisions of this Section 9.2, except
to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each outstanding Security of any series
affected thereby.
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 with respect to such covenant or 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.
It shall not be necessary for the consent of any Holder under
this Section 9.2 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves
the substance thereof.
After an amendment, supplement or waiver under this Section 9.2
becomes effective, the Company shall give to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. The Company
will mail supplemental indentures to Holders upon request. Any failure of
the Company to mail such notice, or any defect therein, shall not, however,
in any way impair or affect the validity of any such supplemental indenture
or waiver.
SECTION 9.3 Revocation and Effect of Consent. Until an
amendment or waiver becomes effective, a consent to it by a Holder is a
continuing consent by the Holder and every subsequent Holder of a Security
or portion of a Security that evidences the same debt as the Security of
the consenting Holder, even if notation of the consent is not made on any
Security. However, any such Holder or subsequent Holder may revoke the
consent as to its Security or portion of its Security. Such revocation
shall be effective only if the Trustee receives the notice of revocation
before the date the amendment, supplement or waiver becomes effective. An
amendment, supplement or waiver shall become effective with respect to the
Securities of any series affected thereby on receipt by the Trustee of
written consents from the Holders of the requisite percentage in principal
amount of the outstanding Securities of such series.
The Company may, but shall not be obligated to, fix a record
date (which may be not less than 10 nor more than 60 days prior to the
solicitation of consents) for the purpose of determining the Holders of the
Securities of any series affected entitled to consent to any amendment,
supplement or waiver. If a record date is fixed, then, notwithstanding the
immediately preceding paragraph, those Persons who were such Holders at
such record date (or their duly designated proxies) and only those Persons
shall be entitled to consent to such amendment, supplement or waiver or to
revoke any consent previously given, whether or not such Persons continue
to be such Holders after such record date. No such consent shall be valid
or effective for more than 90 days after such record date.
After an amendment, supplement or waiver becomes effective with
respect to the Securities of any series affected thereby, it shall bind
every Holder of such Securities unless it is of the type described in any
of classes (i) through (v) of Section 9.2. In case of an amendment or
waiver of the type described in clauses (i) through (v) of Section 9.2, the
amendment or waiver shall bind each such Holder who has consented to it and
every subsequent Holder of a Security that evidences the same indebtedness
as the Security of the consenting Holder.
SECTION 9.4 Notation on or Exchange of Securities. If an
amendment, supplement or waiver changes the terms of a Security of any
series, the Trustee may require the Holder thereof to deliver it to the
Trustee. The Trustee may place an appropriate notation on the Security
about the changed terms and return it to the Holder and the Trustee may
place an appropriate notation on any Security of such series thereafter
authenticated. Alternatively, if the Company or the Trustee so determines,
the Company in exchange for the Security shall issue and the Trustee shall
authenticate a new Security of the same series and tenor that reflects the
changed terms.
SECTION 9.5 Trustee to Sign Amendments, Etc. The Trustee
shall be entitled to receive, and shall be fully protected in relying upon,
an Opinion of Counsel stating that the execution of any amendment,
supplement or waiver authorized pursuant to this Article 9 is authorized or
permitted by this Indenture. Subject to the preceding sentence, the Trustee
shall sign such amendment, supplement or waiver if the same does not
adversely affect the rights of the Trustee. The Trustee may, but shall not
be obligated to, execute any such amendment, supplement or waiver that
affects the Trustee's own rights, duties or immunities under this Indenture
or otherwise.
SECTION 9.6 Conformity with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article 9 shall conform to
the requirements of the Trust Indenture Act as then in effect.
ARTICLE 10
MISCELLANEOUS
SECTION 10.1 Trust Indenture Act of 1939. This Indenture
shall incorporate and be governed by the provisions of the Trust Indenture
Act that are required to be part of and to govern indentures qualified
under the Trust Indenture Act.
SECTION 10.2 Notices. Any notice or communication shall
be sufficiently given if written and (a) if delivered in person when
received or (b) if mailed by first class mail when so mailed, or (c) if
sent by facsimile transmission, when transmission is confirmed, in each
case addressed as follows:
if to the Company:
Tyson Foods, Inc.
0000 Xxxx Xxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Telecopy: (000) 000-0000
Attention: Treasurer
if to the Trustee:
The Chase Manhattan Bank, N.A.
0 Xxxxx XxxxxXxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Corporate Trust
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication shall be sufficiently given to
Holders of any Unregistered Securities, by publication at least once in an
Authorized Newspaper in The City of New York, and at least once in an
Authorized Newspaper in London, and by mailing to the Holders thereof who
have filed their names and addresses with the Trustee pursuant to
Section 313(c)(2) of the Trust Indenture Act at such addresses as were so
furnished to the Trustee and to Holders of Registered Securities by mailing
to such Holders at their addresses as they shall appear on the Securities
Register. Notice mailed shall be sufficiently given if so mailed within the
time prescribed. Copies of any such communication or notice to a Holder shall
also be mailed to the Trustee and each Agent at the same time.
Failure to mail a notice or communication to a Holder or any
defect in it shall not affect its sufficiency with respect to other
Holders. Except as otherwise provided in this Indenture, if a
notice or communication is mailed in the manner provided in this Section
10.2, it is duly given, whether or not the addressee receives it.
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 it shall be impracticable to give notice as herein
contemplated, then such notification as shall be made with the approval of
the Trustee shall constitute a sufficient notification for every purpose
hereunder.
SECTION 10.3 Certificate and Opinion as to Conditions
Precedent. Upon any request or application by the Company to the Trustee
to take any action under this Indenture, the Company shall furnish to the
Trustee:
(i) an Officers' Certificate stating that, in the opinion of
the signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with;
and
(ii) an Opinion of Counsel stating that, in the opinion of
such Counsel, all such conditions precedent have been complied with.
SECTION 10.4 Statements Required in Certificate or
Opinion. Each certificate or opinion with respect to compliance by or on
behalf of the Company with a condition or covenant provided for in this
Indenture shall include:
(i) a statement that each person signing such certificate or
opinion has read such covenant or condition and the definitions
herein relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statement or opinion
contained in such certificate or opinion is based;
(iii) a statement that, in the opinion of each 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
(iv) a statement as to whether or not, in the opinion of each
such person, such condition or covenant has been complied with;
provided, however, that, with respect to matters of fact, an Opinion
of Counsel may rely on an Officers' Certificate or certificates of
public officials.
SECTION 10.5 Evidence of Ownership. The Company, the
Trustee and any agent of the Company 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 Company, the Trustee, nor any agent of the Company or the
Trustee shall be affected by any notice to the contrary. The fact of the
holding by any Holder of an Unregistered Security, 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 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 or more
Unregistered Securities specified therein. The holding by the person named
in any such certificate of any Unregistered Securities 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 specified in such
certificate shall be produced by some other Person, or (3) the Security
specified in such certificate shall have ceased to be outstanding. Subject
to Article 7, the fact and date of the execution of any such instrument and
the amount and numbers of Securities held by the Person so executing such
instrument may also be proven in accordance with such reasonable rules and
regulations as may be prescribed by the Trustee or in any other manner
which the Trustee may deem sufficient.
In the case of Registered Securities, the ownership of such
Securities shall be proved by the Security Register or by a certificate of
the Registrar.
SECTION 10.6 Rules by Trustee, Paying Agent or Registrar.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Paying Agent or Registrar may make reasonable rules for its
functions.
SECTION 10.7 Payment Date Other Than a Business Day. If
any date for payment of principal or interest on any Security shall not be
a Business Day at any place of payment, then payment of principal of or
interest on such Security, as the case may be, need not be made on such
date, but may be made on the next succeeding Business Day at any place of
payment with the same force and effect as if made on such date and no
interest shall accrue in respect of such payment for the period from and
after such date.
SECTION 10.8 Governing Law. The laws of the State of New
York shall govern this Indenture and the Securities.
SECTION 10.9 No Adverse Interpretation of Other
Agreements. This Indenture may not be used to interpret another indenture
or loan or debt agreement of the Company or any Subsidiary of the Company.
Any such indenture or agreement may not be used to interpret this
Indenture.
SECTION 10.10 Successors. All agreements of the Company in
this Indenture and the Securities shall bind its successors. All
agreements of the Trustee in this Indenture shall bind its successors.
SECTION 10.11 Duplicate Originals. The parties may sign
any number of copies of this Indenture. Each signed copy shall be an
original, but all of them together represent the same agreement.
SECTION 10.12 Separability. In case any provision in this
Indenture or in the Securities shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions shall
not in any way be affected or impaired thereby.
SECTION 10.13 Table of Contents, Headings, Etc. The Table
of Contents and headings of the Articles and Sections of this Indenture
have been inserted for convenience of reference only, are not to be
considered a part hereof and shall in no way modify or restrict any of the
terms and provisions hereof.
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, all as of the date first written above.
TYSON FOODS, INC.
as Issuer
By:
---------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK, N.A.
as Trustee
By:
---------------------------------
Name:
Title:
