EXHIBIT (4)
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PFIZER INC.
TO
THE CHASE MANHATTAN BANK
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Indenture
Dated as of , 2000
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PFIZER INC.
Cross-Reference Table between the Trust Indenture Act of 1939 and the Indenture
Trust
Indenture
Act Indenture
Section Section
--------- ---------
(S)310 (a)(1)................................................. (S)609
(a)(2)................................................. (S)609
(a)(3)................................................. Not Applicable
(a)(4)................................................. Not Applicable
(a)(5)................................................. (S)609
(b).................................................... (S)608; (S)610
(S)311 (a).................................................... (S)613
(b).................................................... (S)613
(S)312 (a).................................................... (S)701; (S)702
(b).................................................... (S)702
(c).................................................... (S)702
(S)313 (a).................................................... (S)703
(b).................................................... (S)703
(c).................................................... (S)703
(d).................................................... (S)703
(S)314 (a).................................................... (S)704
(a)(4)................................................. (S)101; (S)1005
(b).................................................... Not Applicable
(c)(1)................................................. (S)102
(c)(2)................................................. (S)102
(c)(3)................................................. Not Applicable
(d).................................................... Not Applicable
(e).................................................... (S)102
(S)315 (a).................................................... (S)601
(b).................................................... (S)602
(c).................................................... (S)601
(d).................................................... (S)601
(e).................................................... (S)514
(S)316 (a).................................................... (S)101
(a)(1)(A).............................................. (S)502
(a)(1)(B).............................................. (S)513
(a)(2)................................................. Not Applicable
(b).................................................... (S)508
(c).................................................... (S)104
(S)317 (a)(1)................................................. (S)503
(a)(2)................................................. (S)504
(b).................................................... (S)1003
(S)318 (a).................................................... (S)107
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
part of the Indenture.
TABLE OF CONTENTS
Page
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ARTICLE I. DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION............................................. 1
Section 101. Definitions............................................. 1
Section 102. Compliance Certificates and Opinions.................... 6
Section 103. Form of Documents Delivered to Trustee.................. 6
Section 104. Acts of Holders; Record Dates........................... 7
Section 105. Notices, Etc., to Trustee and Company................... 9
Section 106. Notice to Holders; Waiver............................... 9
Section 107. Conflict with Trust Indenture Act....................... 9
Section 108. Effect of Headings and Table of Contents................ 9
Section 109. Successors and Assigns.................................. 9
Section 110. Separability Clause..................................... 10
Section 111. Benefits of Indenture................................... 10
Section 112. Governing Law........................................... 10
Section 113. Legal Holidays.......................................... 10
ARTICLE II. SECURITY FORMS.......................................... 10
Section 201. Forms Generally......................................... 10
Section 202. Form of Face of Security................................ 10
Section 203. Form of Reverse of Security............................. 12
Section 204. Additional Provisions Required for Global Securities.... 15
Section 205. Form of Trustee's Certificate of Authentication......... 15
ARTICLE III. THE SECURITIES.......................................... 16
Section 301. Amount Unlimited; Issuable in Series.................... 16
Section 302. Denominations........................................... 18
Section 303. Execution, Authentication, Delivery and Dating.......... 18
Section 304. Temporary Securities, Exchange of Temporary Global
Securities for Definitive Bearer Securities Representing
Registered Securities................................... 19
Section 305. Registration, Registration of Transfer and Exchange..... 23
Section 306. Mutilated, Destroyed, Lost and Stolen Securities........ 26
Section 307. Payment of Interest; Interest Rights Preserved.......... 26
Section 308. Persons Deemed Owners................................... 28
Section 309. Cancellation............................................ 28
Section 310. Computation of Interest................................. 29
Section 311. CUSIP Numbers........................................... 29
Section 312. Currency of Payments in Respect of Securities........... 29
Section 313. Judgments............................................... 32
Section 314. Exchange Upon Default................................... 32
ARTICLE IV. SATISFACTION AND DISCHARGE.............................. 32
Section 401. Satisfaction and Discharge of Indenture................. 32
Section 402. Application of Trust Money.............................. 34
ARTICLE V. REMEDIES................................................ 34
Section 501. Events of Default....................................... 34
Section 502. Acceleration of Maturity; Rescission and Annulment...... 35
Section 503. Collection of Indebtedness and Suits for Enforcement by
Trustee................................................. 36
Section 504. Trustee May File Proofs of Claim........................ 36
Section 505. Trustee May Enforce Claims Without Possession of
Securities.............................................. 37
Section 506. Application of Money Collected.......................... 37
Section 507. Limitation on Suits..................................... 37
Section 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.................................... 38
Section 509. Restoration of Rights and Remedies...................... 38
i
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Section 510. Rights and Remedies Cumulative........................ 38
Section 511. Delay or Omission Not Waiver.......................... 38
Section 512. Control by Holders.................................... 38
Section 513. Waiver of Past Defaults............................... 39
Section 514. Undertaking for Costs................................. 39
Section 515. Waiver of Stay or Extension Laws...................... 39
ARTICLE VI. THE TRUSTEE........................................... 39
Section 601. Certain Duties and Responsibilities................... 39
Section 602. Notice of Defaults.................................... 40
Section 603. Certain Rights of Trustee............................. 40
Section 604. Not Responsible for Recitals or Issuance of
Securities............................................ 41
Section 605. May Hold Securities................................... 42
Section 606. Money Held In Trust................................... 42
Section 607. Compensation and Reimbursement........................ 42
Section 608. Conflicting Interests................................. 42
Section 609. Corporate Trustee Required; Eligibility............... 43
Section 610. Resignation and Removal; Appointment of Successor..... 43
Section 611. Acceptance of Appointment by Successor................ 44
Section 612. Merger, Conversion, Consolidation or Succession to
Business.............................................. 45
Section 613. Preferential Collection of Claims Against Company..... 45
Section 614. Appointment of Authenticating Agent................... 45
ARTICLE VII. HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY..... 46
Section 701. Company to Furnish Trustee Names and Addresses of
Holders............................................... 46
Section 702. Preservation of Information; Communications to
Holders............................................... 47
Section 703. Reports by Trustee.................................... 47
Section 704. Reports by Company.................................... 47
ARTICLE VIII. CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER......... 47
Section 801. Company May Consolidate, Etc., on Certain Terms....... 47
Section 802. Successor Substituted................................. 48
ARTICLE IX. SUPPLEMENTAL INDENTURES............................... 48
Section 901. Supplemental Indentures Without Consent of Holders.... 48
Section 902. Supplemental Indentures with Consent of Holders....... 49
Section 903. Execution of Supplemental Indentures.................. 50
Section 904. Effect of Supplemental Indentures..................... 50
Section 905. Conformity with Trust Indenture Act................... 50
Section 906. Reference in Securities to Supplemental Indentures.... 50
ARTICLE X. COVENANTS............................................. 50
Section 1001. Payment of Principal, Premium and Interest............ 50
Section 1002. Maintenance of Office or Agency....................... 51
Section 1003. Money for Securities Payments to Be Held in Trust..... 52
Section 1004. Statement by Officers as to Default................... 52
Section 1005. Waiver of Certain Covenants........................... 53
ARTICLE XI. REDEMPTION OF SECURITIES.............................. 53
Section 1101. Applicability of Article.............................. 53
Section 1102. Election to Redeem; Notice to Trustee................. 53
Section 1103. Selection by Trustee of Securities to be Redeemed..... 53
Section 1104. Notice of Redemption.................................. 54
Section 1105. Securities Payable on Redemption Date................. 55
Section 1106. Securities Redeemed in Part........................... 55
ARTICLE XII. SINKING FUNDS......................................... 56
Section 1201. Applicability of Article.............................. 56
ii
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Section 1202. Satisfaction of Sinking Fund Payments with
Securities............................................ 56
Section 1203. Redemption of Securities for Sinking Fund............. 56
ARTICLE XIII. DEFEASANCE AND COVENANT DEFEASANCE.................... 57
Section 1301. Applicability of Article.............................. 57
Section 1302. Defeasance and Discharge.............................. 57
Section 1303. Covenant Defeasance................................... 57
Section 1304. Conditions to Defeasance or Covenant Defeasance....... 57
Section 1305. Deposited Money and Government Obligations to be Held
in Trust.............................................. 58
ARTICLE XIV IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND
DIRECTORS............................................. 59
Section 1401. Indenture and Securities Solely Corporate
Obligations........................................... 59
ARTICLE XV HOLDERS' MEETINGS..................................... 59
Section 1501. Purposes of Meetings.................................. 59
Section 1502. Call of Meetings by Trustee........................... 59
Section 1503. Call of Meetings By Company Or Holders................ 60
Section 1504. Qualifications For Voting............................. 60
Section 1505. Regulations........................................... 60
Section 1506. Voting................................................ 60
Section 1507. No Delay of Rights By Meeting......................... 61
iii
INDENTURE, dated as of [ ], 2000, between PFIZER INC., a corporation duly
organized and existing under the laws of the State of Delaware (herein called
the "Company"), having its principal office at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx,
XX 00000 and The Chase Manhattan Bank, as Trustee (herein called the
"Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this Indenture
to provide for the issuance from time to time of its unsecured debentures,
notes or other evidences of indebtedness (herein called the "Securities"), to
be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually agreed, for the equal and proportionate
benefit of all Holders of the Securities or of series thereof, as follows:
ARTICLE I.
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them
in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to
them therein;
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting
principles, and except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as
are generally accepted in the United States of America, as set forth in the
opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such
statements by such other entity as have been approved by a significant
segment of the accounting profession with are in effect as of the date of
determination;
(4) unless the context otherwise requires, any reference to an "Article"
or a "Section" refers to an Article or a Section, as the case may be, of
this Indenture, and
(5) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning specified in
Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership or voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
1
"Assistant Secretary", when used with respect to the Company or the Trustee,
means any assistant secretary.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 614 to act on behalf of the Trustee to authenticate Securities of
one or more series.
"Bearer Security" means any Security, in the form established pursuant to
Section 2.01, which is payable to bearer.
"Board of Directors" means either the board of directors of the Company or
any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment, means a day
other than (i) a Saturday or a Sunday, (ii) a day on which banking institutions
in that Place of Payment are authorized or obligated by law or executive order
to remain closed or (iii) a day which the Corporate Trust Office of the Trustee
is closed for business.
"Clearstream Luxembourg" means Clearstream Banking Luxembourg S.A.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities 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 Depositary" has the meaning specified in Section 304.
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
"Company Request" or "Company Order" means a written request or order signed
in the name of the Company by its Chairman of the Board, its Vice Chairman, its
President, its Chief Executive Officer, an Executive Vice President, a Senior
Vice President or a Vice President, and by its Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary, and delivered to the
Trustee.
"Conversion Date" has the meaning specified in Section 312.
"Corporate Trust Office" means the office of the Trustee at which at any
particular time its corporate trust business shall be principally administered,
which office as of the date hereof is located at 000 Xxxx 00xx Xxxxxx, Xxx
Xxxx, XX 00000 Attention: Capital Markets Fiduciary Services.
"Corporation" means a corporation, association, company, joint-stock company
or business trust.
"Coupon" means any interest coupon appertaining to any Security.
"Coupon Security" means any Bearer Security authenticated and delivered with
one or more Coupons appertaining thereto.
"Covenant Defeasance" has the meaning specified in Section 1303.
"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 1302.
"Depositary" means, with respect to the Securities of any series issuable or
issued in whole or in part in the form of one or more Global Securities, a
clearing agency registered under the Exchange Act that is designated to act as
Depository for such Securities as contemplated by Section 301.
2
"Dollar" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States that, at the time of payment, is legal tender for
the payment of public and private debts.
"Dollar Equivalent" has the meaning specified in Section 312.
"Euro-clear Operator" means Xxxxxx Guaranty Trust Company of New York,
Brussels office, or its successor, as operator of the Euro-clear System.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities and Exchange Act of 1934 and any statute
successor thereto, in each case as amended from time to time.
"Exchange Date" has the meaning specified in Section 304.
"Expiration Date" has the meaning specified in Section 104.
"Global Security" means a Security that evidences all or part of the
Securities of any series which is issued to a Depository or a nominee thereof
for such series in accordance with Section 301 (17).
"Government Obligation" has the meaning specified in Section 1304.
"Holder" means, with respect to a Security, the Registered Holder, and with
respect to a Bearer Security or a Coupon, the bearer thereof.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, including,
for all purposes of this instrument and any such supplemental indenture, the
provisions of the Trust Indenture Act that are deemed to be a part of and
govern this instrument and any such supplemental indenture, respectively. The
term "Indenture" shall also include the terms of particular series of
Securities established as contemplated by Section 301.
"Interest", when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date", when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Investment Company Act" means the Investment Company Act of 1940 and any
statute successor thereto, in each case as amended from time to time.
"Maturity", when used with respect to any Security, means the date on which
the principal of such Security or an installment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Notice of Default" means a written notice of the kind specified in Section
501 (4).
"Officers' Certificate" means a certificate signed by the Chairman of the
Board,, the Vice Chairman, the President, the Chief Executive Officer, or an
Executive Vice President, a Senior Vice President or a Vice President, and by
the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary
of the Company, and delivered to the Trustee. One of the officers signing an
Officers' Certificate given pursuant to Section 1004 shall be the principal
executive, financial or accounting officer of the Company.
"Opinion of Counsel" means a written opinion of counsel, who may be in-house
counsel for the Company or other counsel acceptable to the Trustee.
"Original Issue Discount Security" means any Security which provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502.
3
"Outstanding", when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(1) securities theretofore cancelled by the Trustee or delivered to the
Trustee for cancellation;
(2) securities for whose payment or redemption money in the necessary
amount of money or money's worth has been heretofore deposited with the
Trustee or any Paying Agent (other than the Company) in trust or set aside
and segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities; provided that, if such
Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made;
(3) securities as to which Defeasance has been effected pursuant to
Section 1302; and
(4) securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given, made or taken any
request, demand, authorization, direction, notice, consent, or waiver or other
action hereunder, as of any date (A) the principal amount of an Original Issue
Discount Security which shall be deemed to be Outstanding shall be the amount
of the principal thereof that would be due and payable as of such date upon
acceleration of the Maturity thereof pursuant to Section 502, (B) if, as of
such date, the principal amount payable at the Stated Maturity of a Security is
not determinable, the principal amount of such Security which shall be deemed
to be Outstanding shall be the amount as specified or determined as
contemplated by Section 301, (C) the principal amount of a Security denominated
in one or more foreign currencies or currency units which shall be deemed to be
Outstanding shall be the U.S. dollar equivalent, determined in the manner
provided as contemplated by Section 301, of the principal amount of such
Security (or in the case of a Security described in Clause (A) or (B) above, of
the amount determined as provided in such Clause), and (D) Securities owned by
the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent, waiver or other action, only Securities which a Responsible Officer of
the Trustee has received an Officer's Certificate from the Company certifying
that such Securities are so owned and shall be so disregarded. Securities so
owned which have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee the pledgee's right
so to act with respect to such Securities and that the pledgee is not the
Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or any premium or interest on any Securities on behalf of the
Company.
"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 or formula for determining the rate or rates of
interest theron, if any, the Stated Maturity or Maturities thereof and the
redemption provisions, if any, with respect thereto, are to be determined by
the Company upon the issuance of such Securities.
"Person" means any individual, corporation, partnership, limited liability
company or corporation, joint venture, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any series,
means the place or places where the principal of and any premium and interest
on the Securities of that series are payable as specified as contemplated by
Section 301.
4
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Redemption Date", when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Registered Security" means any Security in the form established pursuant
Section 201 which is registered as to principal and interest in the Security
Register.
"Regular Record Date" for the interest payable on any Interest Payment Date
on the Securities of any series means the date specified for that purpose as
contemplated by Section 301.
"Responsible Officer" when used with respect to the Trustee, means any vice
president, the secretary, any assistant secretary, the treasurer, any assistant
treasurer, the cashier, any assistant cashier, any senior trust officer, any
trust officer or assistant trust officer, the controller or any assistant
controller or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers and also
means, with respect to a particular corporate trust matter, and other officer
to whom such matter is referred because of his knowledge of and familiarity
with the particular subject.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture.
"Securities Act" means the Securities Act of 1933 and any statute successor
thereto, in each case as amended from time to time.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest means a date
fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any installment
of principal thereof or interest thereon, means the date specified in such
Security as the date on which the principal of such Security or such
installment of principal or interest is due and payable, in the case of such
principal, as such date may be advanced or extended as provided pursuant to the
terms of such Security and this Indenture.
"Subsidiary" means, as to any Person, an entity of which more than 50% of
the outstanding capital stock having ordinary voting power (other than capital
stock having such power only by reason of contingency) is at the time owned,
directly or indirectly through one or more intermediaries, or both, by such
Person.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this instrument was executed; PROVIDED, HOWEVER, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall
mean or include each Person who is then a Trustee hereunder, and if at any time
there is more than one such Person, "Trustee" as used with respect to the
Securities of any series shall mean the Trustee with respect to Securities of
that series.
5
"U.S. Depositary" means a clearing agency registered under the Securities
Exchange Act of 1934, as amended, or any successor thereto, which shall in
either case be designated by the Company pursuant to Section 3.01 until a
successor U.S. Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "U.S. Depositary" shall mean or
include each Person who is then a U.S. Depositary hereunder, and if at any time
there is more than one such Person, then "U.S. Depositary" as used with respect
to the Debt Securities of any series shall mean the U.S. Depositary with
respect to the Debt Securities of that series.
"Valuation Date" has the meaning specified in Section 312.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president whether or not designated by a number or a word or
words added before or after the title "vice president".
Section 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take any
action or to refrain from taking any action under any provision of this
Indenture, the Company shall furnish to the Trustee such certificates and
opinions as may be required under the Trust Indenture Act. Each such
certificate or opinion shall be given in the form of an Officer's Certificate,
if to be given by an officer of the Company, or an Opinion of Counsel, if to be
given by counsel, and shall comply with the requirements of the Trust Indenture
Act and any other requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or opinion
has read such covenant or condition and the definitions herein relating
thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of any officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
6
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Whenever, subsequent to the receipt by the Trustee of any Board Resolution,
Officers' Certificate, Opinion of Counsel or other document or instrument, a
clerical, typographical or other inadvertent or unintentional error or omission
shall be discovered therein, a new document or instrument may be substituted
therefor in corrected form with the same force and effect as if originally
filed in the corrected form and, irrespective of the date or dates of the
actual execution and/or delivery thereof, such substitute document or
instrument shall be deemed to have been executed and or delivered as of the
date or dates required with respect to the document or instrument for which it
is substituted. Anything in this Indenture to the contrary notwithstanding, if
any such corrective document or instrument indicates that action has been taken
by or at the request of the Company which could not have been taken had the
original document or instrument not contained such error or omission, the
action so taken shall not be invalidated or otherwise rendered ineffective but
shall be and remain in full force and effect, except to the extent that such
action was a result of willful misconduct or bad faith. Without limiting the
generality of the foregoing, any Securities issued under the authority of such
defective document or instrument shall nevertheless be the valid obligations of
the Company entitled to the benefits of this Indenture equally and ratably with
all other Outstanding Securities, except as aforesaid.
Section 104. Acts of Holders; Record Dates.
Any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Indenture to be given, made or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it hereby expressly is required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such instrument or
writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgements of deeds, certifying that the individual signing such
instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
The Company may set any day as a record date for the purpose of determining
the Holders of Outstanding Securities of any series entitled to give, make or
take any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Indenture to be given, made or taken
by Holders of Securities of such series; provided that the Company may not set
a record date for, and the provisions of this paragraph shall not apply with
respect to, the giving or making of any notice, declaration, request or
direction
7
referred to in the next paragraph. If any record date is set pursuant to this
paragraph, the Holders of Outstanding Securities of the relevant series on such
record date or their DTC certified proxy or official DTC position listing, and
no other Holders, shall be entitled to take a vote on the relevant action,
whether or not such Holders remain Holders after such record date; provided
that no such action shall be effective hereunder unless taken on or prior to
the applicable Expiration Date by Holders of the requisite principal amount of
Outstanding Securities of such series on such record date. Nothing in this
paragraph shall be construed to prevent the Company from setting a new record
date for any action for which a record date has previously been set pursuant to
this paragraph (whereupon the new record date, Holders of the requisite
principal amount of Outstanding Securities of such series shall be entitled to
take or vote on the relevant action, whether or not such Holders remain
Holders), and nothing in this paragraph shall be construed to render
ineffective any action taken by Holders of the requisite principal amount of
Outstanding Securities of the relevant series on the date such action is taken.
Promptly after any record date is set pursuant to this paragraph, the Company,
at its own expense, shall cause notice of such record date, the proposed action
by Holders and the applicable Expiration Date to be given to the Trustee in
writing and to each Holder of Securities of the relevant series in the manner
set forth in Section 106.
The Trustee may set any day as a record date for the purpose of determining
the Holders of Outstanding Securities of any series entitled to join in the
giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Xxxxxxx 000, (xxx) any request to institute
proceedings referred to in Section 507(2) or (iv) any direction referred to in
Section 512, in each case with respect to Securities of such series. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of such series on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request, direction or vote the
same, whether or not such Holders remain Holders after such record date;
provided that no such action shall be effective hereunder unless taken on or
prior to the applicable Expiration Date by Holders of the requisite principal
amount of Outstanding Securities of such series on such record date or their
DTC certified proxy or official DTC position listing. Nothing in this paragraph
shall be construed to prevent the Trustee from setting a new record date for
any action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and
with no action by any Person be cancelled and of no effect), and nothing in
this paragraph shall be construed to render ineffective any action taken by the
Holders of the requisite principal amount of Outstanding Securities of the
relevant series on the date such action is taken. Promptly after any record
date is set pursuant to this paragraph, the Trustee, at the Company's expense,
shall cause notice of such record date, the proposed action by Holders and the
applicable Expiration Date to be sent to the Company in writing and to each
Holder of Securities of the relevant series in the manner set forth in Section
106.
With respect to any record date set pursuant to this Section, the party
hereto which sets such record date may designate any day as the "Expiration
Date" and from time to time may change the Expiration Date to any earlier or
later day; provided that no such change shall be effective unless notice of the
proposed new Expiration Date is given to the other party hereto in writing, and
to each Holder of Securities of the relevant series in the manner set forth in
Section 106, on or prior to the existing Expiration Date. If an Expiration Date
is not designated with respect to any record date pursuant to this Section, the
party hereto which set such record date shall be deemed to have initially
designated the 180th day after such record date as the Expiration Date with
respect thereto, subject to its right to change the Expiration Date as provided
in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be
later than the 180th day after the applicable record date.
Without limiting the foregoing, a Holder entitled to take any action
hereunder with regard to any particular Security may do so with regard to all
or any part of the principal amount of such Security or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.
For the purposes of this Section 104, the term "Holder" means registered
holder or a DTC participant listed on a certified official DTC proxy.
8
Section 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of Holders or other document provided or permitted by this Indenture
to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing by
mail, first-class postage prepaid, by guaranteed overnight courier or by
facsimile transmission (receipt confirmed by a Responsible Officer),
followed by overnight courier, to or with the Trustee at its Corporate
Trust Office, Attention: Corporate Trust Department,
(2) the Company by the Trustee or by any Holder shall be sufficient for
every purpose hereunder, unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, by guaranteed overnight
courier or by facsimile transmission (receipt confirmed by a Responsible
Officer), followed by overnight courier, to the Company addressed to it at
the address of its principal office specified in the first paragraph of
this instrument, Attention: Corporate Secretary, or at any other address
previously furnished in writing to the Trustee by the Company, or
(3) any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in the official language
of the country of publication.
Section 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, by guaranteed overnight
courier or by facsimile transmission (receipt confirmed by facsimile
transmission receipt), followed by overnight courier, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders
is given by mail, neither the failure to mail such notice, nor any defect in
any notice so mailed, to any particular Holder shall affect the sufficiency of
such notice with respect to other Holders. Where this Indenture provides for
notice in any manner, such notice may be waived in writing by the Person
entitled to receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice by mail, then
such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
Section 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision of
the Trust Indenture Act which is required under such Act to be a part of and
govern this Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
that may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
Section 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind its
successors and assigns, whether so expressed or not.
9
Section 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
Section 112. Governing Law.
This Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York.
Section 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the
Securities (other than a provision of any Security which specifically states
that such provision shall apply in lieu of this Section)) payment of interest
or principal (and premium, if any) need not be made at such Place of Payment on
such date, but may be made on the next succeeding Business Day at such Place of
Payment with the same force and effect as if made on the Interest Payment Date
or Redemption Date, or at the Stated Maturity, provided that no interest shall
accrue for the period from and after such Interest Payment Date, Redemption
Date or Stated Maturity, as the case may be if such payment is made or duly
provided for on such Business Day.
ARTICLE II.
SECURITY FORMS.
Section 201. Forms Generally.
The Securities of each series shall be in substantially the form set forth
in this Article, or in such other form as shall be established by or pursuant
to a Board Resolution or in one or more indentures supplemental hereto, in each
case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or Depository therefor or as may, consistently herewith be
determined by the officers executing such Securities, as evidenced by their
execution thereof. If the form of Securities of any series (or any Global
Security) is established by action taken pursuant to a Board Resolution, a copy
of an appropriate record of such action shall be certified by the Secretary or
an Assistant Secretary of the Company and delivered to the Trustee at or prior
to the delivery of the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
To the extent any provision of any form set forth in this Article conflicts
with the express provisions of this Indenture, the provisions of this Indenture
shall govern and be controlling.
Section 202. Form of Face of Security.
[Insert any legend required by the Internal Revenue Code and the regulations
thereunder.]
10
PFIZER INC.
No. ............................................................ $
CUSIP No.
Pfizer Inc., a corporation duly organized and existing under the laws of
Delaware (herein called the "Company", which term includes any successor Person
under the Indenture hereinafter referred to), for value received, hereby
promises to pay to , or registered assigns, the principal sum of
Dollars [or other currency or currency units] on [if the
Security is to bear interest prior to Maturity, and interest payments are not
extendable, insert--, and to pay interest thereon from or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for, [insert- semi-annually, quarterly, monthly or other description
of the relevant payment period] on [ ] and in each year,
commencing , at the rate of % per annum until the principal hereof
is paid or made available for payment [if applicable, insert-,provided that any
principal and premium, and any such installment of interest, which is overdue
shall bear interest at the rate of % per annum (to the extent that the
payment of such interest shall be legally enforceable), from the dates such
amounts are due until they are paid or made available for payment, and such
interest shall be payable on demand]. The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as provided in
such Indenture, be paid to the Person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest, which shall be the [ ] (whether or
not a Business Day), as the case may be, next preceding such Interest Payment
Date. Any such interest not so punctually paid or duly provided for will
forthwith cease to be payable to the Holder on such Regular Record Date and may
either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities of this series
not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be listed, and
upon such notice as may be required by such exchange, all as more fully
provided in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert--The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal of this Security shall bear
interest at the rate of per annum (to the extent that the payment of such
interest shall be legally enforceable), from the dates of such amounts are due
until they are paid or made available for payment. Interest on any overdue
principal or premium shall be payable on demand. Any such interest on any
overdue principal or premium which is not so paid on demand shall bear interest
at the rate of % per annum (to the extent that the payment of such interest
shall be legally enforceable), on the date of such demand until the amount so
demanded is paid or made available for payment. Interest on any overdue
principal shall be payable on demand.]
Payment of the principal of (and premium, if any) and [if applicable,
insert--any such] interest on this Security will be made at the office or
agency of the Company maintained for that purpose in , in such coin or
currency of [the United States of America] [insert other currency, if
applicable] as at the time of payment is legal tender for payment of public and
private debts [if applicable, insert--; PROVIDED, HOWEVER, that at the option
of the Company payment of interest may be made by check mailed to the address
of the Person entitled thereto as such address shall appear in the Security
Register or by wire transfer at such place and to such account at a banking
institution in the United States as may be designated in writing to the Trustee
at least sixteen (16) days prior to the date for payment by the Person entitled
thereto].
[if this Security is a Global Security, insert--All payments of principal,
premium, if any, and interest in respect of this Security will be made by the
Company in immediately available funds.]
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
11
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature of one of its
authorized signatories, this Security shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Pfizer Inc.
Dated:
Attest: ___________________________________ By: _______________________________________
Name: Name:
Title: Title:
The Chase Manhattan Bank, as
Trustee
By: _______________________________________
Name:
Title:
Section 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the Company
(herein called the "Securities), issued and to be issued in one or more series
under an Indenture, dated as of [ ],2000 (herein called the "Indenture", which
then shall have the meaning assigned to it in such instrument) between the
Company and [ ], as Trustee (herein called the "Trustee", which
term includes any successor trustee under the Indenture), and reference is
hereby made to the Indenture for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is
one of the series designated on the face hereof [if applicable, insert--limited
in aggregate principal amount to $ ].
[If applicable, insert--The Securities of this series are subject to
redemption upon not less than 30 days notice by mail, [if applicable, insert--
(1) on in any year commencing with the year and ending with the
year through operation of the sinking fund for this series at a Redemption
Price equal to 100% of the principal amount, and (2) at any time [if
applicable, insert--on or after , 2000], as a whole or in part, at the
election of the Company, at the following Redemption Prices (expressed as
percentages of the principal amount): If redeemed [if applicable, insert--on or
before , % and if redeemed] during the 12-month period beginning
of the years indicated.
Redemption Redemption
Year Price Year Price
---- ---------- ---- ----------
and thereafter at a Redemption Price equal to % of the principal amount,
together in the case of any such redemption [if applicable, insert--(whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such
12
Redemption Date will be payable to the Holders of such Securities, or one or
more Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert--The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, (1) on in any year
commencing with the year and ending with the year through operation
of the sinking fund for this series at the Redemption Prices for redemption
through operation of the sinking fund (expressed as percentages of the
principal amount) set forth in the table below, and (2) at any time [if
applicable, insert-on or after ], as a whole or in part, at the election
of the Company, at the Redemption Prices for redemption otherwise than through
operation of the sinking (expressed as percentages of the principal amount) set
forth in the table below: If redeemed during the 12- month period beginning
of the years indicated;
Redemption
Price For
Redemption
Through
Operation
Of
The Redemption Price For Redemption
Sinking Otherwise Than Through Operation Of
Year Fund Year The Sinking Fund
---- ---------- ---- -----------------------------------
and thereafter at a Redemption Price equal to % of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of this Security, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable insert--Notwithstanding the foregoing, the Company may not,
prior to , redeem any Securities of this series as contemplated by
[If applicable insert--Clause (2) of] the preceding paragraph as a part of, or
in anticipation of, any refunding operation by the application, directly or
indirectly, of moneys borrowed having an interest cost to the Company
(calculated in accordance with generally accepted financial practice) of less
than % per annum.]
[If applicable insert--The sinking fund for this series provides for the
redemption on in each year beginning with the year and ending with
the year of [If applicable insert-not less than $ ("mandatory
sinking fund") and not more than] $ aggregate principal amount of
Securities of this series. Securities of this series acquired or redeemed by
the Company otherwise than through [If applicable insert--mandatory] sinking
fund payments may be credited against subsequent [If applicable insert--
mandatory] sinking fund payments otherwise required to be made--[If applicable
insert--in the inverse order in which they become due].]
[If the Security is subject to redemption of any fund, insert--In the event
of redemption of this Security in part only, a new Security or Securities of
this series and of like tenor for the unredeemed portion hereof will be issued
in the name of the Holder hereof upon the cancellation hereof.]
[If the Security is not subject to redemption, insert--This Security is not
redeemable prior to Stated Maturity.]
[If applicable, insert--The Indenture contains provisions for defeasance at
any time of [the entire indebtedness of this Security] [or] [certain
restrictive covenants and Events of Default with respect to this Security] [,
in each case] upon compliance with certain conditions set forth in the
Indenture.]
13
[If the Security is not an Original Issue Discount Security, insert--If an
Event of Default with respect to Securities of this series shall occur and be
continuing, the principal of the Securities of this series may be declared due
and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert--If an Event
of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to [- insert formula for determining the
amount]. Upon payment (i) of the amount of principal so declared due and
payable and (ii) of interest on any overdue principal premium and interest (in
each case to the extent that the payment of such interest shall be legally
enforceable), all of the Company's obligations in respect of the payment of the
principal of and interest, if any, on the Securities of this series shall
terminate.]
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series affected
under the Indenture at any time by the Company and the Trustee with the consent
of the Holders of majority in principal amount of all series at the time
Outstanding affected thereby (voting as one class). The Indenture contains
provisions permitting the Holders of not less than a majority in principal
amount of the Securities of each series at the time Outstanding, with respect
to which a default under the Indenture shall have occurred and be continuing
(voting as one class), on behalf of the Holders of the Securities of all such
series, to waive with certain exceptions, such past default with respect to all
such series and its consequences. The Indenture also permits the Holders of not
less than a majority in principal amount of the Securities of each series at
the time Outstanding, on behalf of the Holders of all Securities of such
series, to waive compliance by the Company with certain provisions of the
Indenture. Any such consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future Holders of this
Security and of any Security issued upon the registration of transfer hereof or
in exchange therefor or in lieu hereof, whether or not notation of such consent
or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder of
this Security shall not have the right to institute any proceeding with respect
to the Indenture or for the appointment of a receiver or trustee or for any
other remedy thereunder unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than a majority in principal
amount of the Securities of this series at the time Outstanding shall have made
written request to the Trustee to institute proceedings in respect of such
Event of Default as Trustee and offered the Trustee reasonable indemnity, and
the Trustee shall not have received from the Holders of a majority in principal
amount of Securities of this series at the time Outstanding a direction
inconsistent with such request, and shall have failed to institute any such
proceeding, for 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall not apply to any suit instituted by the Holder
of this Security for the enforcement of any payment of principal hereof or any
premium or interest hereon on or after the respective due dates expressed
herein.
No reference herein to the Indenture and no provision of this Security or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registerable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company in any place where the principal of and any premium and
interest on this Security are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities of this series
and of like tenor, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
14
The Securities of this series are issuable only in registered form without
coupons in denominations of $ and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate
principal amount of Securities of this series and of like tenor of a different
authorized denomination, as requested in writing by the Holder surrendering
the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
No recourse for the payment of the principal of or any premium or interest
on any Security, or for any claim based thereon or otherwise in respect
thereof, and no recourse under or upon any obligation, covenant or agreement
of the Company in the Indenture or in any supplemental indenture, or in this
Security, or because of the creation of any indebtedness represented hereby,
shall be had against any incorporator, stockholder, officer or director, as
such, past, present or future, of the Company or any successor corporation,
either directly or through the Company or any successor corporation, whether
by virtue of any constitution, statute or rule of law, or by the enforcement
of any assessment or penalty or otherwise; it being expressly understood that
all such liability was expressly waived and released as a condition of, and as
consideration for, the execution of the Indenture and is a condition of, and
is consideration for, the execution of this Security.
Section 204. Additional Provisions Required for Global Securities.
Unless otherwise specified as contemplated by Section 301 for the
Securities evidenced thereby, every Global Security authenticated and
delivered hereunder shall bear a legend in substantially the following form:
"THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN
WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS
SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY
PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE."
Section 205. Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be in substantially the
following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
The Chase Manhattan Bank
As Trustee
By:
------------------------------------
Authorized Officer
Dated:
15
ARTICLE III.
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to Section 303,
set forth, or determined in the manner provided, in an Officers' Certificate,
or established in one or more indentures supplemental hereto, prior to the
issuance of Securities of any series:
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from all other Securities of any other
series);
(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 304, 305, 306, 906 or 1106 and except for any
Securities which, pursuant to Section 303, are deemed never to have been
authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the series shall be
payable, if other than the Person in whose name that Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest;
(4) the date or dates on which the principal of the Securities of the
series is payable; and the right, if any, to shorten or extend the date on
which the principal of any Securities of the series is payable and the
conditions to any such change;
(5) the rate or rates (which may be fixed or variable) at which the
Securities of the series shall bear interest, if any, or the method by
which such rate or rates shall be determined; the date or dates from which
such interest shall accrue, the Interest Payment Dates on which any such
interest shall be payable; the manner (if any) of determination of such
Interest Payment Dates; and the Regular Record Date, if any, for any such
interest payable on any Interest Payment Date;
(6) the right, if any, to extend the interest payment periods and the
terms of such extension or extensions.
(7) the place or places where the principal of and any premium and
interest on Securities of the series shall be payable; and whether, if
acceptable to the Trustee, any principal of such Securities shall be
payable without presentation or surrender thereof;
(8) the period or periods within which, or the date or dates on
which,the price or prices at which and the term and conditions upon which
Securities of the series may be redeemed, in whole or in part, at the
option of the Company; and if other than by a Board Resolution, the manner
in which any election by the Company to redeem the Securities shall be
evidenced;
(9) the obligation, if any, of the Company to redeem or purchase any
Securities of the series pursuant to any sinking fund, purchase fund or
analogous provisions or at the option of the Holder thereof and the period
or periods within which, the price or prices at which and the terms and
conditions upon which any Securities of the series shall be redeemed or
purchased, in whole or in part, pursuant to such obligation;
(10) if other than denominations of $100,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be
issuable;
(11) if other than the currency of the United States of America, the
currency, currencies or currency units in which of the principal of and any
premium on interest on any Securities of the series shall be
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payable and the manner of determining the equivalent in the currency of the
United States of America for any purpose, including for purposes of the
definition of "Outstanding" in Section 101;
(12) if the amount of principal of or any premium or interest on any
series of the Securities may be determined with reference to an index or
formula, the manner in which such amounts shall be determined;
(13) if the principal of or any premium or interest on any Securities of
the series is to be payable, at the election of the Company or a Holder
thereof, in one or more currencies or currency units other than that or
those in which the Securities are stated to be payable, the currency,
currencies or currency units in which the principal of or any premium or
interest on such Securities of as to which such election is made shall be
payable, the periods within which and the terms and condition upon which
such election is to be made and the amount so payable (or the manner in
which such amount shall be determined);
(14) if other than the entire principal amount thereof, the portion of
the principal amount of any Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 502;
(15) if either or both of Section 1302 or 1303 do not apply to the
Securities of any series;
(16) if the principal amount payable at the Stated Maturity of any
Securities of the series will not be determinable as of any one or more
dates prior to the Stated Maturity, the amount which shall be deemed to be
the principal amount of such Securities as of any such date for any purpose
thereunder or hereunder, including the principal amount thereof which shall
be due and payable upon any Maturity other than the Stated Maturity or
which shall be deemed to be Outstanding as of any date prior to the Stated
Maturity (or, in any such case, the manner in which such amount deemed to
be the principal amount shall be determined); if either or both, of Section
1302 or 1303 do not apply to the Securities of any series;
(17) if applicable, that any Securities of the series shall be issuable
in whole or in part in the form of one or more Global Securities and, in
such case, the respective Depositary or Depositaries for such Global
Securities, the form of any legend or legends which shall be borne by any
such Global Security in addition to or in lieu of those set forth in Clause
(2) of the last paragraph of Section 305 in which any such Global Security
may be exchanged in whole or in part for Securities registered, in the name
or names of Persons other than the Depositary for such Global Security or a
nominee thereof;
(18) any addition, modification or deletion of any Events of Default or
covenants provided with respect to any Securities of the series and any
change in the right of the Trustee or the requisite Holders of such
Securities to declare the principal amount thereof due and payable pursuant
to Section 502;
(19) any addition to or change in the covenants set forth in Article Ten
which applies to Securities of the series;
(20) the extent to which, or the manner in which, any interest payable
on any Global Security on an Interest Payment Date will be paid, if other
than in the manner provided in Section 307; and the manner in which any
principal of, or premium, if any, on, any Global Security will be paid, if
other than as set forth elsewhere herein and whether any Global Security
will require any notation to evidence payment of principal or interest; and
(21) any other terms of the series.
All Securities of any one series shall be substantially identical except as
to denomination and except as may otherwise be provided in or pursuant to the
Board Resolution referred to above and (subject to Section 303) set forth, or
determined in the manner provided in the Officers' Certificate referred to
above or in any such indenture supplemental hereto.
With respect to Securities of a series offered in a Periodic Offering, the
Board Resolution (or action taken pursuant thereto), Officers' Certificate or
supplemental indenture referred to above may provide general terms or
parameters for Securities of such series and provide either that the specific
terms of particular Securities of
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such series shall be specified in a Company Order or that such terms shall be
determined by the Company in accordance with other procedures specified in a
Company Order as contemplated by the third paragraph of Section 303.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
Notwithstanding Section 301(2) herein and unless otherwise expressly
provided with respect to a series of Securities, the aggregate principal amount
of a series of Securities may be increased and additional Securities of such
series may be issued up to the maximum aggregate principal amount authorized
with respect to such series as increased.
Section 302. Denominations.
The Securities of each series, shall be issuable only in fully registered
form without coupons in such denominations as shall be specified as
contemplated by Section 301. In the absence of any such provisions with respect
to the Securities of any series, the Securities of such series shall be
issuable in denominations of $100,000 and any integral multiple thereof.
Section 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the company by its Chairman of
the Board, its Vice Chairman, its President, its Chief Executive Officer, an
Executive Vice President, a Senior Vice President, or one of its Vice
President, under its corporate seal reproduced thereon attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for
the authentication and delivery of such Securities and the Trustee in
accordance with the Company Order shall authenticate and deliver such
Securities; PROVIDED, HOWEVER, that in the case of Securities offered in a
Periodic Offering, the Trustee shall authenticate and deliver such Securities
from time to time in accordance with such other procedures (including, without
limitation, the receipt by the Trustee of oral or electronic instructions from
the Company or its duly authorized agents, promptly confirmed in writing)
acceptable to the Trustee as may be specified by or pursuant to a Company Order
delivered to the Trustee prior to the time of the first authentication of
Securities of such series. If the form or terms of the Securities of the series
have been established by or pursuant to one or more Board Resolutions as
permitted by Sections 201 and 301, in authenticating such Securities, and
accepting the additional responsibilities under this Indenture in relation to
such Securities (but shall not be required to do so), the Trustee shall be
entitled to receive, and (subject to Section 601) shall be fully protected in
relying upon, an Opinion of Counsel stating:
(a) if the form of such Securities has been established by or pursuant
to Board Resolution as permitted by Section 201, that such form has been
established in conformity with the provisions of this Indenture;
(b) if the terms of such Securities have been, or in the case of
Securities of a series offered in a Periodic Offering, will be, established
by or pursuant to Board Resolution as permitted by Section 301, that such
terms have been, or in the case of Securities of a series offered in a
Periodic Offering, will be,
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established in conformity with the provisions of this Indenture, subject,
in the case of Securities of a series offered in a Periodic Offering, to
any conditions specified in such Opinion of Counsel; and
(c) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in manner which
is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the time
of authentication of each Security of such series if such documents are
delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued.
With respect to Securities of a series offered in a Periodic Offering, the
Trustee may rely, as to the authorization by the Company of any such
Securities, the form and terms thereof and the legality, validity, binding
effect and enforceability thereof, upon the Opinion of Counsel and the other
documents delivered pursuant to Sections 201 and 301 and this Section, as
applicable, in connection with the first authentication of Securities of such
series.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature of an authorized signatory, and
such certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder. Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 309 for all purposes of this Indenture such Security shall
be deemed never to have been authenticated and delivered hereunder and shall
never be entitled to the benefits of this Indenture.
Section 304. Temporary Securities, Exchange of Temporary Global Securities for
Definitive Bearer Securities Representing Registered Securities.
Pending the preparation of definitive Securities of any series, the Company
may execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as evidenced by their
execution of such Securities.
Every such temporary Security shall be executed by the Company and shall be
authenticated and made available for delivery by the Trustee upon the same
conditions and in substantially the same manner, and with the same effect, as
the definitive Securities in lieu of which they are issued. In the case of any
series issuable as Bearer Securities, such temporary Securities may be in
global form, representing such of the Outstanding Securities of such series as
shall be specified therein.
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Except in the case of temporary Securities in global form (which shall be
exchanged in accordance with the provisions of the following paragraphs), if
temporary Securities of any series are issued, the Company will cause
definitive Securities of such series to be prepared without unreasonable delay.
After the preparation of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for definitive Securities of
such series, of a like Stated Maturity and with like terms and provisions, upon
surrender of the temporary Securities of such series at the office or agency of
the Company in a Place of Payment for such series, without charge to the
Holder, except as provided in Section 305 in connection with a transfer. Upon
surrender for cancellation of any one or more temporary Securities of any
series (accompanied by any unmatured Coupons), the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Securities of the same series of authorized
denominations and of a like Stated Maturity and like terms and provisions;
PROVIDED, HOWEVER, that no definitive Bearer Security shall be delivered in
exchange for a temporary Security; and PROVIDED, FURTHER, that a definitive
Bearer Security (including a permanent Bearer Security in global form) shall be
delivered in exchange for a temporary Bearer Security only in compliance with
the conditions set forth in Section 303. Until so exchanged, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of such series.
Unless otherwise specified pursuant to Section 301, all Bearer Securities of
a series shall be initially issued in the form of a single temporary Bearer
Security in global form (a "temporary Global Security"). The Company shall
execute, and upon Company Order the Trustee shall authenticate, any temporary
Global Security and any permanent Bearer Security in global form (as described
below, a "permanent Global Security") upon the same conditions and in
substantially the same manner, and with the same effect, as definitive Bearer
Securities, and the temporary or permanent Global Security, as the case may be,
shall, unless otherwise specified therein, be delivered by the Trustee to the
London office of a depositary or common depositary (the "Common Depositary"),
for the benefit of the Euro-clear Operator or Clearstream Luxembourg, as the
case may be, for credit to the account of the Company (in the case of sales of
Bearer Securities by the Company directly to investors) or the managing
underwriter (in the case of sales of Bearer Securities by the Company to
underwriters) or such other accounts as the Company or the managing
underwriter, respectively, may direct.
On or after the date specified in or determined pursuant to the terms of any
temporary Global Security which (subject to any applicable laws and
regulations) shall be at least 40 days after the issue date of a temporary
Global Security (the "Exchange Date"), the Securities represented by such
temporary Global Security may be exchanged for definitive Securities (subject
to the second succeeding paragraph) or Securities to be represented thereafter
by one or more permanent Global Securities in definitive form without interest
coupons. On or after the Exchange Date such temporary Global Security shall be
surrendered by the Common Depositary to the Trustee, as the Company's agent for
such purpose, at its principal office in London (or at such other place
specified outside the United States pursuant to Section 301) and following such
surrender, the Trustee shall (1) endorse the temporary Global Security or
adjust its records to reflect the reduction of its principal amount by an equal
aggregate principal amount of such Security, (2) endorse the applicable
permanent Global Security, if any, to reflect the initial amount, or an
increase in the amount of Securities represented thereby, (3) manually
authenticate such definitive Securities (including any permanent Global
Security), (4) make available for delivery such definitive Securities to the
Holder thereof or, if such definitive Security is a permanent Global Security,
make available for delivery such permanent Global Security to the Common
Depositary to be held outside the United States for the accounts of the Euro-
clear Operator or Clearstream Luxembourg, as the case may be, for credit to the
respective accounts at Euro-clear Operator or Clearstream Luxembourg, as the
case may be, designated by or on behalf of the beneficial owners of such
Securities (or to such other accounts as they may direct) and (5) make
available for redelivery such temporary Global Security to the Common
Depositary, unless such temporary Global Security shall have been canceled in
accordance with Section 309 hereof; PROVIDED, HOWEVER, that, unless otherwise
specified in such temporary Global Security, upon such presentation by the
Common Depositary, such temporary Global Security shall be accompanied by a
certificate dated the Exchange Date or a subsequent date and signed by the
Euro-
20
clear Operator, as to the portion of such temporary Global Security held for
its account then to be exchanged for definitive Securities (including any
permanent Global Security), and a certificate dated the Exchange Date or a
subsequent date and signed by Clearstream Luxembourg, as to the portion of such
temporary Global Security held for its account then to be exchanged for
definitive Securities (including any permanent Global Security), each
substantially in the form set forth in Exhibit B to this Indenture. Each
certificate substantially in the form of Exhibit B hereto of the Euro-clear
Operator or Clearstream Luxembourg, as the case may be, shall be based on
certificates of the account holders listed in the records of the Euro-clear
Operator or Clearstream Luxembourg, as the case may be, as being entitled to
all or any portion of the applicable temporary Global Security. An account
holder of the Euro-clear Operator or Clearstream Luxembourg, as the case may
be, desiring to effect the exchange of an interest in a temporary Global
Security for an interest in definitive Securities (including any permanent
Global Security) shall instruct the Euro-clear Operator or Clearstream
Luxembourg, as the case may be, to request such exchange on its behalf and
shall deliver to the Euro-clear Operator or Clearstream Luxembourg, as the case
may be, a certificate substantially in the form of Exhibit A hereto and dated
no earlier than 10 days prior to the Exchange Date. Until so exchanged,
temporary Global Securities shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities (including any permanent
Global Security) of the same series authenticated and delivered hereunder,
except as to payment of interest, if any.
The delivery to the Trustee by the Euro-clear Operator or Clearstream
Luxembourg of any certificate substantially in the form of Exhibit B hereto may
be relied upon by the Company and the Trustee as conclusive evidence that a
corresponding certificate or certificates has or have been delivered to the
Euro-clear Operator or Clearstream Luxembourg, as the case may be, pursuant to
the terms of this Indenture.
On or prior to the Exchange Date, the Company shall deliver to the Trustee
definitive Securities in an aggregate principal amount equal to the principal
amount of such temporary Global Security, executed by the Company. At any time,
on or after the Exchange Date, upon 30 days' notice to the Trustee by the Euro-
clear Operator or Clearstream Luxembourg, as the case may be, acting at the
request of or on behalf of the beneficial owner, a Security represented by a
temporary Global Security or a permanent Global Security, as the case may be,
may be exchanged, in whole or from time to time in part, for definitive
Securities without charge and the Trustee shall authenticate and make available
for delivery, in exchange for each portion of such temporary Global Security or
such permanent Global Security, an equal aggregate principal amount of
definitive Securities of the same series of authorized denominations and of a
like Stated Maturity and with like terms and conditions, as the portion of such
temporary Global Security or such permanent Global Security to be exchanged,
which, unless the Securities of the series are not issuable both as Bearer
Securities and as Securities, as contemplated by Section 301, shall be in the
form of Bearer Securities or Securities, or any combination thereof, as shall
be specified by the beneficial owner thereof; PROVIDED, HOWEVER, that
definitive Bearer Securities shall be delivered in exchange for a portion of
the temporary Global Security or the permanent Global Security only in
compliance with the requirements of the second preceding paragraph. On or prior
to the forty-fifth day following receipt by the Trustee of such notice with
respect to a Security, or, if such day is not a Business Day, the next
succeeding Business Day, the temporary Global Security or the permanent Global
Security, as the case may be, shall be surrendered by the Common Depositary to
the Trustee, as the Company's agent for such purpose, to be exchanged, in whole
or from time to time in part, for definitive Securities without charge
following such surrender, upon the request of the Euro-clear Operator or
Clearstream Luxembourg, as the case may be, and the Trustee shall (1) endorse
the applicable temporary Global Security or the permanent Global Security or
adjust its records to reflect the reduction of its principal amount by the
aggregate principal amount of such Security, (2) cause the terms of such
Security and Coupons, if any, to be entered on a definitive Security, (3)
manually authenticate such definitive Security, and (4) if a Bearer Security is
to be delivered, deliver such definitive Security outside the United States to
the Euro-clear Operator or Clearstream Luxembourg, as the case may be, for or
on behalf of the beneficial owner thereof, in exchange for a portion of such
temporary Global Security or the permanent Global Security.
Unless otherwise specified in such temporary Global Security or the
permanent Global Security, any such exchange shall be made free of charge to
the beneficial owners of such temporary Global Security or the
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permanent Global Security, except that a Person receiving definitive Securities
must bear the cost of insurance, postage, transportation and the like in the
event that such Person does not take delivery of such definitive Securities in
person at the offices of the Euro-clear Operator or Clearstream Luxembourg.
Definitive Securities in bearer form to be delivered in exchange for any
portion of a temporary Global Security or the permanent Global Security shall
be delivered only outside the United States. Notwithstanding the foregoing, in
the event of redemption or acceleration of all or any part of a temporary
Global Security prior to the Exchange Date, a permanent Global Security or
definitive Bearer Securities, as the case may be, will not be issuable in
respect of such temporary Global Security or such portion thereof, and payment
thereon will instead be made as provided in such temporary Global Security.
Until exchanged in full as hereinabove provided, any temporary Global
Security or the permanent Global Security shall in all respects be entitled to
the same benefits under this Indenture as definitive Securities of the same
series and tenor authenticated and delivered hereunder, except that, unless
otherwise specified as contemplated by Section 301, interest payable on such
temporary Global Security on an Interest Payment Date for Securities of such
series occurring prior to the applicable Exchange Date shall be payable to the
Euro-clear Operator or Clearstream Luxembourg on such Interest Payment Date
upon delivery by the Euro-clear Operator or Clearstream Luxembourg to the
Trustee of a certificate or certificates substantially in the form set forth in
Exhibit B to this Indenture, for credit without further interest on or after
such Interest Payment Date to the respective accounts of the Persons who are
the beneficial owners of such temporary Global Security on such Interest
Payment Date and who have each delivered to the Euro-clear Operator or
Clearstream Luxembourg, as the case may be, a certificate substantially in the
form set forth in Exhibit A to this Indenture.
Any definitive Bearer Security authenticated and make available for delivery
by the Trustee in exchange for a portion of a temporary Global Security or the
permanent Global Security shall not bear a coupon for any interest which shall
theretofore have been duly paid by the Trustee to the Euro-clear Operator or
Clearstream Luxembourg, or by the Company to the Trustee in accordance with the
provisions of this Section 304.
With respect to Exhibits A and B to this Indenture, the Company may, in its
discretion and if required or desirable under applicable law or as set forth in
any Board Resolution or supplemental indenture with respect to any series of
Securities, substitute one or more other forms of such exhibits for such
exhibits, eliminate the requirement that any or all certificates be provided,
or change the time that any certificate may be required, provided that such
substitute form or forms or notice of elimination or change of such
certification requirement have theretofore been delivered to the Trustee with a
Company Request and such form or forms, elimination or change is reasonably
acceptable to the Trustee.
If the Company shall establish pursuant to Section 301 that the Securities
of a series are to be issued in whole or in part in the form of one or more
Global Securities, then the Company shall execute and the Trustee shall, in
accordance with Section 303 and the Company Order with respect to such series,
authenticate and make available for delivery one or more Global Securities in
temporary or permanent form that (i) shall represent and shall be denominated
in an amount equal to the aggregate principal amount of the Outstanding
Securities of such series to be represented by one or more Global Securities,
(ii) shall be registered in the name of the U.S. Depositary for such Global
Security or Notes or the nominee of such depositary, and (iii) shall bear a
legend substantially as set forth in Section 204.
Notwithstanding any other provision of this Section or Section 305, unless
and until it is exchanged in whole or in part for Securities in definitive
form, a Global Security representing all or a portion of the Securities of a
series may not be transferred except as a whole by the U.S. 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 U.S. Depositary for such series or a nominee of
such successor depositary.
If at any time the U.S. Depositary for the Securities of a series notifies
the Company that it is unwilling or unable to continue as U.S. Depositary for
the Securities of such series or if at any time the U.S. Depositary for
22
Securities of a series shall no longer be a clearing agency registered and in
good standing under the Securities Exchange Act of 1934, as amended, or other
applicable statute or regulation, the Company shall appoint a successor U.S.
Depositary with respect to the Securities of such series. If a successor U.S.
Depositary for the Securities of such series is not appointed by the Company
within 90 days after the Company receives such notice or becomes aware of such
condition, the Company will execute, and the Trustee, upon receipt of a Company
Order for the authentication and delivery of definitive Securities of such
series, will authenticate and make available for delivery, Securities of such
series in definitive form in an aggregate principal amount equal to the
principal amount of the Global Security or Notes representing such series in
exchange for such Global Security or Notes.
The Company may at any time and in its sole discretion determine that the
Securities of any series issued in the form of one or more Global Securities
shall no longer be represented by such Global Security or Notes. In such event,
the Company will execute, and the Trustee, upon receipt of a Company Order for
the authentication and delivery of definitive Securities of such series, will
authenticate and make available for delivery, Securities of such series in
definitive form and in an aggregate principal amount equal to the principal
amount of the Global Security or Notes representing such series in exchange for
such Global Security or Notes.
If the Securities of any series shall have been issued in the form of one or
more Global Securities and if an Event of Default with respect to the
Securities of such series shall have occurred and be continuing, the Company
will promptly execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of definitive Securities of such series, will
authenticate and make available for delivery, Securities of such series in
definitive form and in an aggregate principal amount equal to the principal
amount of the Global Security or Notes representing such series in exchange for
such Global Security or Notes.
If specified by the Company pursuant to Section 301 with respect to
Securities of a series, the U.S. Depositary for such series of Securities may
surrender a Global Security for such series of Securities in exchange in whole
or in part for Securities of such series in definitive form on such terms as
are acceptable to the Company and such depositary. Thereupon, the Company shall
execute and the Trustee shall authenticate and make available for delivery,
without charge:
(i) to each Person specified by the U.S. Depositary a new Security or
Securities of the same series, of any authorized denomination as requested
by such Person in an aggregate principal amount equal to and in exchange
for such Person's beneficial interest in the Global Security; and
(ii) to the U.S. Depositary a new Global Security in a denomination
equal to the difference, if any, between the principal amount of the
surrendered Global Security and the aggregate principal amount of
Securities delivered to Holders thereof.
Upon the exchange of a Global Security for Securities in definitive form,
such Global Security shall be canceled by the Trustee. Securities issued in
exchange for a Global Security pursuant to this subsection (c) shall be
registered in such names and in such authorized denominations as the U.S.
Depositary for such Global Security, pursuant to instructions from its direct
or indirect participants or otherwise, shall instruct the Trustee. The Trustee
shall make available for delivery such Securities to the Persons in whose names
such Securities are so registered.
Section 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trustee Office of the
Trustee a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and the transfers of Securities. The Trustee is
hereby appointed "Security Registrar" for the purpose of registering Securities
and transfers of Securities as herein provided; PROVIDED, HOWEVER, that the
Company may appoint co-Security Registrars or the terms of any series of
Securities may provide otherwise.
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Upon surrender for registration of transfer of any Security of any series at
the office or agency of the Company in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver or make
available for delivery, in the name of the designated transferee or
transferees, one or more new Securities of the same series, of any authorized
denominations and of like tenor and aggregate principal amount.
Except as otherwise provided in Section 304 and this Section 305, at the
option of the Holder, Securities of any series may be exchanged for other
Securities of the same series, of any authorized denominations and of like
tenor and aggregate principal amount, upon surrender of the Securities to be
exchanged at such office or agency. Whenever any Securities are so surrendered
for exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder, making the exchange is entitled to
receive.
If and to the extent specified pursuant to Section 301, the provisions of
this Section 305 shall be applicable to Securities of any series which are
Bearer Securities. At the option of the Holder thereof, to the extent permitted
by law, any Bearer Security of any series which by its terms is registrable as
to principal and interest may be exchanged for a Security of such series of
like aggregate principal amount and of a like Stated Maturity and with like
terms and conditions upon surrender of such Bearer Security at the Corporate
Trust Office or at any other office or agency of the Company designated
pursuant to Section 301 for the purpose of making any such exchanges. Any
Coupon Security surrendered for exchange shall be surrendered with all
unmatured Coupons and any matured Coupons in default attached thereto. If the
Holder of a Bearer Security is unable to produce any such unmatured Coupon or
Coupons or matured Coupon or Coupons in default, such exchange may be effected
if the Bearer Securities are accompanied by payment in funds acceptable to the
Company in an amount equal to the face amount of such missing Coupon or
Coupons, or the surrender of such missing Coupon or Coupons may be waived by
the Company and the Trustee if there is furnished to them such security or
indemnity as they may require to save each of them and any Paying Agent
harmless. If thereafter the Holder of such Bearer Security shall surrender to
any Paying Agent any such missing Coupon in respect of which such a payment
shall have been made, such Holder shall be entitled to receive the amount of
such payment; PROVIDED, HOWEVER, that except as otherwise provided in Section
1002, interest represented by Coupons shall be payable only upon presentation
and surrender of those Coupons at an office or agency located outside the
United States. Notwithstanding the foregoing, in case a Bearer Security of any
series is surrendered at any such office or agency in exchange for a Security
of the same series and of a like Stated Maturity and with like terms and
conditions after the close of business at such office or agency on (i) any
Regular Record Date and before the opening of business at such office or agency
on the relevant Interest Payment Date, or (ii) any Special Record Date and
before the opening of business at such office or agency on the related proposed
date for payment of Defaulted Interest, such Bearer Security shall be
surrendered without the Coupon relating to such Interest Payment Date or
proposed date for payment, as the case may be (or, if such Coupon is so
surrendered with such Bearer Security, such Coupon shall be returned to the
Person so surrendering the Bearer Security), and interest or Defaulted
Interest, as the case may be, will not be payable on such Interest Payment Date
or proposed date for payment, as the case may be, in respect of the Security
issued in exchange for such Bearer Security, but will be payable only to the
Holder of such Coupon when due in accordance with the provisions of this
Indenture. The Company shall execute, and the Trustee shall authenticate and
make available for delivery, the Security or Securities which the Holder making
the exchange is entitled to receive.
Notwithstanding the foregoing, the exchange of Bearer Securities for
Securities will be subject to the provisions of United States Federal income
tax laws and regulations applicable to Securities in effect at the time of such
exchange.
Except as otherwise specified pursuant to Section 301, in no event may
Securities, including Securities received in exchange for Bearer Securities, be
exchanged for Bearer Securities.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
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Every Security presented or surrendered for registration of transfer or for
exchange shall (if so required by the Company or the Trustee) be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to
the Company and the Security Registrar duly executed, by the Holder thereof or
his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or exchange
of Securities, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than exchanges
pursuant to Section 304, 906, or 1106 not involving any transfer.
If the Securities of any series (or of any series and specified tenor) are
to be redeemed, the Company shall not be required (i) to issue, register the
transfer of or exchange any Securities of that series (or of that series and
specified tenor, as the case may be) during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of redemption of
any such Securities selected for redemption and ending at the close of business
on the day of such mailing, or (ii) to register the transfer of or exchange any
Security so selected for redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part.
The provisions of Clauses (1), (2), (3) and (4) below shall apply only to
Global Securities:
(1) Each Global Security authenticated under this Indenture shall be
registered in the name of the Depositary designated for such Global
Security or a nominee thereof and delivered to such Depositary or a nominee
thereof or custodian therefor, and each such Global Security shall
constitute a single Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, no Global
Security may be exchanged in whole or in part for Securities registered,
and no transfer of a Global Security in whole or in part may be registered,
in the name of any Person other than the Depositary for such Global
Security or a nominee thereof unless (A) such Depositary has notified the
Company that it is unwilling or unable to continue as Depositary for such
Global Security and a successor Depositary has not been appointed by the
Corporation within 90 days of receipt by the Company of such notification,
(B) if at any time the Depositary ceases to be a clearing agency registered
under the Exchange Act at a time when the Depositary is required to be so
registered to act as such Depositary and no successor Depositary shall have
been appointed by the Company within 90 days after it became aware of such
cessation, or (C) there shall exist such circumstances, if any, in addition
to or in lieu of the foregoing as have been specified for this purpose as
contemplated by Section 301. Notwithstanding the foregoing, the Company may
at any time in its sole discretion determine that Securities issued in the
form of a Global Security shall no longer be represented in whole or in
part by such Global Security, and the Trustee, upon receipt of a Company
Order therefor, shall authenticate and deliver definitive Securities in
exchange in whole or in part for such Global Security.
(3) Subject to Clause (2) above, any exchange or transfer of a Global
Security for other Securities may be made in whole or in part, and all
Securities issued in exchange for or upon transfer of a Global Security or
any portion thereof shall be registered in such names as the Depositary for
such Global Security shall direct.
(4) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any
portion thereof, whether pursuant to this Section, Section 304, 306, 906,
or 1106 or otherwise, shall be authenticated and delivered in the form of,
and shall be, a Global Security, unless such Security is registered in the
name of a Person other than the Depositary for such Global Security or a
nominee thereof.
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Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee at its Corporate
Trust Office (in the case of Registered Securities) or at its principal London
office (in the case of Bearer Securities), or (ii) the Company and the Trustee
receive evidence to their satisfaction of the destruction, loss or theft of any
Security, and there is delivered to the Company and the Trustee such security
or indemnity as may be required by them to save each of them and any Paying
Agent harmless, and neither the Company nor the Trustee receives notice that
such Security has been acquired by a bona fide purchaser, then the Company
shall execute and upon Company Request the Trustee shall authenticate and make
available for delivery, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Security, the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor a new Security of the same
series and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become or
is about to become due and payable, the Company in its discretion may, instead
of issuing a new Security, pay such Security; PROVIDED, HOWEVER, that principal
of (and premium, if any) and any interest on Bearer Securities shall, except as
otherwise provided in Section 1002, be payable only at an office or agency
located outside the United States.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
Section 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301 with respect to
any series of Securities, interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be
paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest notwithstanding the cancellation of such Registered Security
upon any transfer or exchange subsequent to the Regular Record Date. Unless
otherwise specified as contemplated by Section 301 with respect to the
Securities of any series, payment of interest on Registered Securities shall be
made at the place or places specified pursuant to Section 301 or, at the option
of the Company, by check mailed to the address of the Person entitled thereto
as such address shall appear in the Security Register or, if provided pursuant
to Section 301, by wire transfer to an account designated by the Registered
Holder.
Interest on any Bearer Security which is payable and is punctually paid or
duly provided for on any Interest Payment Date shall be paid to the Holder of
the bearer Security upon presentation of such Bearer Security and notation
thereon on such Interest Payment Date at the principal London office of the
trustee or at such other Place of Payment outside the Untied States specified
pursuant to Section 301.
Unless otherwise specified pursuant to Section 301, at the direction of the
Holder of any Bearer Security payable in Dollars, payment on such Bearer
Security will be made by check drawn on a bank in the City of New York or, if
agreeable to the Trustee, by wire transfer to a Dollar account maintained by
such Holder outside the United States. If such payment at the offices of all
Paying Agents outside the United States become illegal or is effectively
precluded because of the imposition of exchange controls or similar
restrictions on the
26
full payment or receipt of such amounts in Dollars, the Com pay will appoint an
office or agent in the United States at which such payment may be made. Unless
otherwise specified pursuant to Section 301, at the direction of the holder of
any Bearer Security payable in a Foreign Currency, payment on such Bearer
Security will be made by a check drawn on a bank outside the Untied States or
by wire transfer to an appropriate account maintained by such Holder outside
the United States. Except as provided in this paragraph, no payment on any
Bearer Security will be made by mail to an address in the United States or by
wire transfer to an account in the United States.
Except as otherwise provided as contemplated by by Section 301 with respect
to any series of Securities, any interest on any Security of any series which
is payable, but is not punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall, if such Security is a
Registered Security, forthwith cease to be payable to the Holder on the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Registered Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company shall
notify the Trustee in writing of the amount of Defaulted Interest proposed
to be paid on each Security of such series and the date of the proposed
payment, and at the same time the Company shall deposit with the Trustee an
amount of money in the Currency or Currency unit in which the Securities of
such series are payable (except as otherwise specified pursuant to Sections
301 or 312) equal to the aggregate amount proposed to be paid in respect of
such Defaulted Interested or shall make arrangements satisfactory to the
Trustee for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this Clause provided. Thereupon
the Trustee shall fix a Special Record date for the payment of such
Defaulted Interest which shall be not more than 15 days and not less than
10 days prior to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date and,
in the name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor to be given to each Holder of Securities of such series in the
manner set forth in Section 106, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and shall
no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange if any, on
which such Registered Securities may be listed, and upon such notice as may
be required by such exchange, if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this Clause, such manner of
payment shall be deemed practicable by the Trustee.
Any Defaulted Interest payable in respect of Bearer Securities of any series
shall be payable pursuant to such procedures as may be satisfactory to the
Trustee in such manner that there is no discrimination between the Holders of
Registered Securities (if any) and Bearer Securities of such series, and notice
of the payment date therefor shall be given by the trustee, in the name and at
the expense of the Company, in the manner provided in Section 105 not more than
25 days, and not less than 20 days, prior to the date of the proposed payment.
Subject to the foregoing provisions of this Section, each Security delivered
under this Indenture upon registration of transfer of or in exchange for or in
lieu of any other Security shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Security.
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Section 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name any Registered Security is registered as the owner of such
Registered Security for the purpose of receiving payment of the principal of
(and premium, if any) and (subject to Section 307) interest, if any, on such
Registered Security and for all other purposes whatsoever, whether or not such
Registered Security be overdue, and neither the Company, the Trustee nor any
agent of the Company or the Trustee shall be affected by notice to the
contrary. The Company, the Trustee, and any agent of the Company or the Trustee
may treat the Holder of any Bearer Security or of any Coupon as the absolute
owner of such Bearer Security or Coupon for the purposes of receiving payment
thereof or on account thereof and for all other purposes whatsoever, whether or
not such Bearer Security or Coupon be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by notice
to the contrary. All payments made to any Holder, or upon his order, shall be
valid, and, to the extent of the sum or sums paid, effectual to satisfy and
discharge the liability for moneys payable upon such Security or Coupon.
The ownership of Bearer Securities shall be proved by production of such
Bearer Securities or by a certificate executed by any bank or trust company,
which certificate shall be dated and shall state that, on the date thereof, a
Bearer Security bearing a specified identifying number or other xxxx was
deposited with, or exhibited to, the person executing such certificate by the
Person named in such certificate, or by any other proof of possession
reasonably satisfactory to the Trustee. The holding by the Person named in any
such certificate of any Bearer Security specified therein shall be presumed to
continue for a period of one year unless at the time of determination of such
holding (1) another certificate bearing a later date issued in respect of the
same Bearer Security shall be produced, (2) such Bearer Security shall be
produced by some other Person, (3) such Bearer Security shall have been
registered on the Security Register, if, pursuant to Section 301, such Bearer
Security can be so registered, or (4) such Bearer Security shall have been
canceled or paid.
Section 309. Cancellation.
Unless otherwise specified pursuant to Section 301 for Securities of any
series, all Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it. All Bearer Securities so delivered shall
be held by the Trustee and, upon instruction by the Company Order, shall be
canceled or held for reissuance. Bearer Securities held for reissuance may be
reissued only in exchange for Bearer Securities of the same series and of like
Stated Maturity and with like terms and conditions pursuant to Section 305 or
in replacement of mutilated, lost, stolen, or destroyed Bearer Securities of
the same series and of like Stated Maturity and with like terms and conditions.
All Bearer Securities held by the Trustee pending such cancellation or
reissuance shall be deemed to be delivered for cancellation for all purposes of
this Indenture and the Securities. The Company may at any time deliver to the
Trustee for cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and may
deliver to the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder which the
Company has not issued and sold, and all Securities so delivered shall be
promptly cancelled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities cancelled as provided in this Section,
except as expressly permitted by this Indenture. All cancelled Securities held
by the Trustee shall be disposed of as directed by a Company Order; PROVIDED,
HOWEVER, that the Trustee shall not be required to destroy such cancelled
Securities. The acquisition of any Securities by the Company shall not operate
as a redemption or satisfaction of the indebtedness represented thereby unless
and until such Securities are surrendered to the trustee for cancellation. In
the case of any temporary Global Security which shall be destroyed if the
entire aggregate principal amount to the Securities represented thereby has
been exchanged, the certificate of destruction shall state that all
certificates required pursuant to Section 304 to be given by the Euro-clear
Operator or CEDEL, have been duly presented to the Trustee by the Euro-clear
Operator or CEDEL, as the case may be. Permanent Global Securities shall not be
destroyed until exchanged in full for definitive Securities or until payment
thereof is made in full.
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Section 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for Securities
of any series, interest on the Securities of each series shall be computed on
the basis of a 360-day year of twelve 30-day months.
Section 311. CUSIP Numbers.
The Corporation in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of redemption
and that reliance may be placed only on the other identification numbers
printed on the Securities, and any such redemption shall not be affected by any
defect in or omission of such numbers. The Company will promptly notify the
Trustee of any change in the CUSIP numbers.
Section 312. Currency of Payments in Respect of Securities.
(a) Except as otherwise specified pursuant to Section 301 for Bearer
Securities of any series, payment of the principal of (and premium, if any) and
interest on Bearer Securities of such series denominated in any Currency will
be made in such Currency.
(b) With respect to Registered Securities of any series not permitting the
election provided for in paragraph (c) below or the Holders of which have not
made the election provided for in paragraph (c) below, except as provided in
paragraph (e) below, payment of the principal of (and premium, if any) and any
interest on any Registered Security of such series will be made in the Currency
in which such Registered Security is payable.
(c) It may be provided pursuant to Section 301 with respect to the
Registered Securities of any series that Holders shall have the option, subject
to paragraphs (e) and (f) below, to receive payments of principal of (and
premium, if any) and any interest on such Registered Securities in any of the
Currencies which may be designated for such election by delivering to the
Trustee a written election, to be in form and substance satisfactory to the
Trustee, not later than the close of business on the Election Date immediately
preceding the applicable payment date. If a Holder so elects to receive such
payments in any such Currency, such election will remain in effect for such
Holder or any transferee of such Holder until changed by such Holder or such
transferee by written notice to the Trustee (but any such change must be made
not later than the close of business on the Election Date immediately preceding
the next payment date to be effective for the payment to be made on such
payment date, and no such change or election may be made with respect to
payments to be made on any Registered Security of such series with respect to
which an Event of Default has occurred or notice of redemption has been given
by the Company pursuant to Article Eleven). Any Holder of any such Registered
Security who shall not have delivered any such election to the Trustee by the
close of business on the applicable Election Date will be paid the amount due
on the applicable payment date in the relevant Currency as provided in
paragraph (b) of this Section 312.
(d) If the election referred to in paragraph (c) above has been provided for
pursuant to Section 301, then not later than the fourth Business Day after the
Election Date for each payment date, the Trustee will deliver to the Company a
written notice specifying, in the Currency in which each series of the
Registered Securities is payable, the respective aggregate amounts of principal
of (and premium, if any) and any interest on the Registered Securities to be
paid on such payment date, specifying the amounts so payable in respect of the
Registered Securities as to which the Holders of Registered Securities
denominated in any Currency shall have elected to be paid in another Currency
as provided in paragraph (c) above. If the election referred to in paragraph
(c) above has been provided for pursuant to Section 301 and if at least one
Holder has made such election, then, on the second Business Day preceding each
payment date, the Company will deliver to the Trustee an Exchange Rate
Officer's Certificate in respect of the Currency payments to be made on such
29
payment date. The Currency amount receivable by Holders of Registered
Securities who have elected payment in a Currency as provided in paragraph (c)
above shall be determined by the Company on the basis of the applicable Market
Exchange Rate in effect on the third Business Day (the "Valuation Date")
immediately preceding each payment date.
(e) If a Conversion Event occurs with respect to a Foreign Currency, the
Euro or any other Currency unit in which any of the Securities are denominated
or payable, other than pursuant to an election provided for pursuant to
paragraph (c) above, then with respect to each date for the payment of
principal of (and premium, if any) and any interest on the applicable
Securities denominated or payable in such Foreign Currency, the Euro or such
other Currency unit occurring after the last date on which such Foreign
Currency, the Euro or such other Currency unit was used (the "Conversion
Date"), the Dollar shall be the Currency of payment for use on each such
payment date. The Dollar amount to be paid by the Company to the Trustee and by
the Trustee or any Paying Agent to the Holders of such Securities with respect
to such payment date shall be the Dollar Equivalent of the Foreign Currency or,
in the case of a Currency unit, the Dollar Equivalent of the Currency Unit, in
each case as determined by the Currency Determination Agent, if any, or, if
there shall not be a Currency Determination Agent, then by the Trustee, in the
manner provided in paragraph (g) or (h) below.
(f) If the Holder of a Registered Security denominated in any Currency shall
have elected to be paid in another Currency as provided in paragraph (c) above,
and a Conversion Event occurs with respect to such elected Currency, such
Holder shall receive payment in the Currency in which payment would have been
made in the absence of such election. If a Conversion Event occurs with respect
to the Currency in which payment would have been made in the absence of such
election, such Holder shall receive payment in Dollars as provided in paragraph
(e) of this Section 312.
(g) The "Dollar Equivalent of the Foreign Currency" shall be determined by
the Currency Determination Agent, if any, or, if there shall not be a Currency
Determination Agent, then by the Trustee, and shall be obtained for each
subsequent payment date by converting the specified Foreign Currency into
Dollars at the Market Exchange Rate on the Conversion Date.
(h) The "Dollar Equivalent of the Currency Unit" shall be determined by the
Currency Determination Agent, if any, or, if there shall not be a Currency
Determination Agent, then by the Trustee, and subject to the provisions of
paragraph (j) below, shall be the sum of each amount obtained by converting the
Specified Amount of each Component Currency into Dollars at the Market Exchange
Rate for such Component Currency on the Valuation Date with respect to each
payment.
(i) For purposes of this Section 312 the following terms shall have the
following meanings:
A "Component Currency" shall mean any Currency which, on the Conversion
Date, was a component Currency of the relevant Currency unit, including,
but not limited to, the Euro.
A "Conversion Event" means the cessation of (i) a Foreign Currency to be
used both by the government of the country which issued such Currency and
for the settlement of transactions by public institutions of or within the
international banking community, (ii) the Euro to be used both within the
European Monetary System and for the settlement of transaction by public
institutions of or within the European Communities or (iii) any Currency
unit other than the Euro to be used for the purposes for which is was
established.
"Currency Determination Agent" means the New York Clearing House bank,
if any, from time to time selected by the Trustee for purposes of Section
312; provided that such agent shall accept such appointment in writing and
the terms of such appointment shall be acceptable to the Company and shall,
in the opinion of the Company and the Trustee at the time of such
appointment, require such agent to make the determinations required by this
Indenture by a method consistent with the method provided in this Indenture
for the making of such decision or determination.
30
"Exchange Rate Officer's Certificate" means a telex or a certificate
setting forth (i) the applicable Market Exchange Rate and (ii) the Dollar,
Foreign Currency or Currency unit amounts of principal, premium, if any,
and any interest respectively (on an aggregate basis and on the basis of a
Security having the lowest denomination principal amount determined in
accordance with Section 302 in the relevant Currency or Currency unit),
payable on the basis of such Market Exchange Rate sent (in the case of a
telex) or signed (in the case of a certificate) by the Treasurer or any
Assistant Treasurer of the Company.
"Foreign Currency" means a currency issued by the government of any
country other than the United States or a composite currency or currency
unit the value of which is determined by reference to the values of the
currencies of any group of countries.
A "Specified Amount" of a Component Currency shall mean the number of
units of such Component Currency or fractions thereof which were
represented in the relevant Currency unit, including, but not limited to,
the Euro, on the Conversion Date. If after the Conversion Date the official
unit of any Component Currency is altered by way of combination or
subdivision, the Specified Amount of such Component Currency shall be
divided or multiplied in the same proportion. If after the Conversion Date
two or more Component Currencies are consolidated into a single Currency,
the respective Specified Amounts of such Component Currencies shall be
replaced by an amount in such single Currency equal to the sum of the
respective Specified Amounts of such consolidated Component Currencies
expressed in such single Currency, and such amount shall thereafter be a
Specified Amount and such single Currency shall thereafter be a Component
Currency. If after the Conversion Date any Component Currency shall be
divided into two or more Currencies, the Specified Amount of such Component
Currency shall be replaced by amounts of such two or more Currencies with
appropriate Dollar equivalents at the Market Exchange Rate on the date of
such replacement equal to the Dollar equivalent of the Specified Amount of
such former Component Currency at the Market Exchange Rate on such date,
and such amounts shall thereafter be Specified Amounts and such Currencies
shall thereafter be Component Currencies. If after the Conversion Date of
the relevant Currency unit, including, but not limited to, the Euro, a
Conversion Event (other than any event referred to above in this definition
of "Specified Amount") occurs with respect to any Component Currency of
such Currency unit, the Specified Amount of such Component Currency shall,
for purposes of calculating the Dollar Equivalent of the Currency Unit, be
converted into Dollars at the Market Exchange Rate in effect on the
Conversion Date of such Component Currency.
"Election Date" shall mean the record date with respect to any payment
date, and with respect to the Maturity shall mean the record date (if
within 16 or fewer days prior to the Maturity) immediately preceding the
Maturity, and with respect to any series of Securities whose record date
immediately preceding the Maturity is more than 16 days prior to the
Maturity or any series of Securities for which no record dates are provided
with respect to interest payments, shall mean the date which is 16 days
prior to the Maturity.
(j) All decisions and determinations of the Trustee or the Currency
Determination Agent, if any, regarding the Dollar Equivalent of the Foreign
Currency, the Dollar Equivalent of the Currency Unit and the Market Exchange
Rate shall be in its sole discretion and shall, in the absence of manifest
error, be conclusive for all purposes and irrevocably binding upon the Company
and all Holders of the Securities denominated or payable in the relevant
Currency. In the event of a Conversion Event with respect to a Foreign
Currency, the Company, after learning thereof, will immediately give written
notice thereof to the Trustee (and the Trustee will promptly thereafter give
notice in the manner provided in Section 105 to the Holders) specifying the
Conversion Date. In the event of a Conversion Event with respect to the Euro or
any other Currency unit in which Securities are denominated or payable, the
Company, after learning thereof, will immediately give notice thereof to the
Trustee (and the Trustee will promptly thereafter give written notice in the
manner provided in Section 105 to the Holders) specifying the Conversion Date
and the Specified Amount of each Component Currency on the Conversion Date. In
the event of any subsequent change in any Component Currency as set forth in
the definition of Specified Amount above, the Company, after learning thereof,
will similarly give written notice to the Trustee. The Trustee shall be fully
justified and protected in relying and acting upon information received
31
by it from the Company and the Currency Determination Agent, if any, and shall
not otherwise have any duty or obligation to determine such information
independently.
(k) For purposes of any provision of the Indenture where the Holders of
Outstanding Securities may perform an Act which requires that a specified
percentage of the Outstanding Securities of all series perform such Act and for
purposes of any decision or determination by the Trustee of amounts due and
unpaid for the principal (and premium, if any) and interest on the Securities
of all series in respect of which moneys are to be disbursed ratably, the
principal of (and premium, if any) and interest on the Outstanding Securities
denominated in a Foreign Currency will be the amount in Dollars based upon the
Market Exchange Rate for Securities of such series, as of the date for
determining whether the Holders entitled to perform such Act have performed it,
or as of the date of such decision or determination by the Trustee, as the case
may be.
Section 313. Judgments.
If for the purpose of obtaining a judgment in any court with respect to any
obligation of the Company hereunder or under any Security, it shall become
necessary to convert into any other Currency any amount in the Currency due
hereunder or under such Security, then such conversion shall be made at the
Market Exchange Rate as in effect on the date the Company shall make payment to
any Person in satisfaction of such judgment. If pursuant to any such judgment,
conversion shall be made on a date other than the date payment is made and
there shall occur a change between such Market Exchange Rate and the Market
Exchange Rate as in effect on the date of payment, the Company agrees to pay
such additional amounts (if any) as may be necessary to ensure that the amount
paid is equal to the amount in such other Currency which, when converted at the
Market Exchange Rate as in effect on the date of payment or distribution, is
the amount then due hereunder or under such Security. Any amount due from the
Company under this Section 313 shall be due as a separate debt and is not to be
affected by or merged into any judgment being obtained for any other sums due
hereunder or in respect of any Security. In no event, however, shall the
Company be required to pay more in the Currency or Currency unit due hereunder
or under such Security at the Market Exchange Rate as in effect when payment is
made than the amount of Currency stated to be due hereunder or under such
Security so that in any event the Company's obligations hereunder or under such
Security will be effectively maintained as obligations in such Currency, and
the Company shall be entitled to withhold (or be reimbursed for, as the case
may be) any excess of the amount actually realized upon any such conversion
over the amount due and payable on the date of payment or distribution.
Section 314. Exchange Upon Default.
If default is made in the payments referred to in Section 1001, then the
Company hereby undertakes that, upon presentation and surrender of a permanent
Global Security to the Trustee (or to any other Person or at any other address
as the Company may designate in writing), on any Business Day on or after the
maturity date thereof, the Company will issue and the Trustee will authenticate
and make available for delivery to the bearer of such permanent Global Security
duly executed and authenticated definitive Securities with the same issue date
and maturity date as set out in such permanent Global Security.
ARTICLE IV.
SATISFACTION AND DISCHARGE.
Section 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect with
respect to any series of Securities specified in such Company Request (except
as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for and rights to receive payments of
principal (and premium,
32
if any) and interest on such Securities), and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other than
(i) Securities which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 306 and (ii) Securities for
whose payment money has theretofore been deposited in trust or segregated
and held in trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one
year; or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company,
and the Company, either complies with any other condition or terms
specified pursuant to Section 301, or if not so specified in the case of
(i), (ii) or (iii) above, has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust for the purpose (I) an
amount in the Currency in which such Securities are denominated (except as
otherwise provided pursuant to Section 301 or 312) sufficient to pay and
discharge the entire indebtedness on such Securities for principal (and
premium, if any) and interest to the date of such deposit (in the case of
Securities which have become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be, (II) Government Obligations (as
defined in Section 1304) which through the scheduled payment of principal
and interest in respect thereof in accordance with their terms will
provide, not later than the due date of any payment, an amount equal to the
amount set forth in subsection I immediately above, or (III) a combination
thereof, sufficient, in the case of (II) or (III), in the opinion of
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee to pay and discharge,
the entire indebtedness on such Securities not therefore delivered to the
Trustee for cancellation, for principal and any premium and interest to the
date of such deposit (in the case of Securities which have become due and
payable) or to the Stated Maturity or Redemption Date, as the case may be;
PROVIDED, HOWEVER, in the event a petition for relief under the Federal
bankruptcy laws, as now or hereafter constituted, or any other applicable
Federal or state bankruptcy, insolvency or other similar law, is filed with
respect to the Company within 91 days after the deposit and the Trustee is
required to return the deposited money to the Company, the obligations of
the Company under this Indenture with respect to such Securities shall not
be deemed terminated or discharged;
(2) the Company has paid or cause to be paid all other sums payable
hereunder by the Company;
(3) the Company has delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel, each stating that all conditions precedent herein provided
for relating to the satisfaction and discharge of this Indenture with respect
to such series have been complied with; and
(4) the Company has delivered to the Trustee an Opinion of Counsel or a
ruling by the Internal Revenue Service to the effect that Holders of the
Securities of the series will not recognize income, gain or loss for general
income tax purposes as a result of such deposit and discharge.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Company to any Authenticating Agent under Section 614 and the obligations
of the Company under Section 1001 and, if money shall have been deposited with
the Trustee pursuant to subclause (b) of Clause (1) of this Section, the
obligations of the Trustee under Section 402 and the
33
last paragraph of Section 1003 shall survive. If, after the deposit referred to
in Section 401 has been made, (x) the Holder of a Security is entitled to, and
does, elect pursuant to Section 312(c), to receive payment in a Currency other
than that in which the deposit pursuant to Section 401 was made, or (y) if a
Conversion Event occurs with respect to the Currency in which the deposit was
made or elected to be received by the Holder pursuant to Section 312 (c), then
the indebtedness represented by such Security shall be fully discharged to the
extent that the deposit made with respect to such Security shall be converted
into the Currency in which such payment is made.
Section 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium
and interest for whose payment such money has been deposited with the Trustee.
ARTICLE V.
REMEDIES.
Section 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or
governmental body) unless it is inapplicable to a particular series or is
specifically deleted or modified in the Board Resolution (or action taken
pursuant thereto), Officers' Certificate or supplemental indenture under which
such series of Securities is issued or has been deleted or modified in an
indenture supplement hereto:
(1) default in the payment of any interest upon any Security of that
series when it becomes due and payable, and continuance of such default for
a period of 60 days; PROVIDED, HOWEVER, that if the Company is permitted by
the terms of the Securities of such series to defer the payment in
question, the date on which such payment is due and payable shall be the
date on which the Company is required to make payment following such
deferral, if such deferral has been elected pursuant to the terms of the
Securities; or
(2) default in the payment of the principal of or, any premium, any
Security of that series at its Maturity; or
(3) default in the making of any sinking fund payment, when and as due
by the terms of a Security of that series, and continuance of such default
for a period of 60 days or;
(4) default in the performance, or breach, of any covenant of the
Company in this Indenture (other than a covenant a default in whose
performance or whose breach is elsewhere in this Section specifically dealt
with or which has expressly been included in this Indenture solely for the
benefit of series of Securities other than that series), and continuance of
such default or breach for a period of 90 days after there has been given,
by registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 33% in principal amount
of the Outstanding Securities of that series a written notice specifying
such default or breach and requiring it to be remedied and stating that
such notice is a "Notice of Default" hereunder, unless the Trustee, or the
Trustee and the Holders of a principal amount of Securities of such series
not less than the principal amount of Securities the Holders of which gave
such notice, as the case may be, shall agree in writing to an extension of
such period prior to its expiration; PROVIDED, HOWEVER, that the Trustee,
or the Trustee and the Holders of such
34
principal amount of Securities of such series, as the case may be, shall be
deemed to have agreed to an extension of such period if corrective action
is initiated by the Company, within such period and is being diligently
pursued;
(5) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary case
or proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company under any applicable federal or state law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of any substantial
part of its property, or ordering the winding up or liquidation of its
affairs, and the continuance of any such decree or ordering for relief or
any such other decree or order unstayed and in effect for a period of 90
consecutive days;
(6) the commencement by the Company of a voluntary case or proceeding
under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent by it to the entry
of a decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable federal or state bankruptcy,
insolvency, reorganization or other similar law or to the commencement of
any bankruptcy or insolvency case or proceeding against it, or the filing
by it of a petition or answer or consent seeking reorganization or relief
under any applicable federal or state law, or the consent by it to the
filing of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or of any substantial part of its property,
or the making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally as
they become due, or authorization of any such action by the Board of
Directors; or
(7) any other Event of Default provided with respect to Securities of
that series pursuant to Section 301.
Section 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, then and in every such case the Trustee
or the Holders of not less than 33% in principal amount of the Outstanding
Securities of that series may declare the principal amount of all of the
Securities of that series (or, if any of the Securities of that series are
Original Issue Discount Securities, such portion of the principal amount of
such Securities as may be specified in the terms thereof) to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such principal amount plus accrued
and unpaid interest (or specified amount shall) become immediately due and
payable. Upon payment of such amount in the Currency in which such Securities
are denominated (except as otherwise provided pursuant to Section 301 or 312),
all obligations of the Company in respect of the payment of principal of the
Securities of such series shall terminate.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in
this Article provided, the Event of Default giving rise to such declaration of
acceleration shall, without further act, be deemed to have been waived, and
such declaration and its consequences shall, without further act, be deemed to
have been rescinded and annulled, if
(1) the Company has paid or deposited with the Trustee a sum sufficient to
pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of that
series which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate or rates prescribed therefor
in such Securities;
35
(C) to the extent that payment of such interest is lawful, interest upon
overdue interest at the rate or rates prescribed therefor in such
Securities; and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; PROVIDED, HOWEVER, that all sums payable
under this clause (D) shall be paid in Dollars;
and
(2) all Events of Default with respect to Securities of that series, other
than the non-payment of the principal of Securities of that series which have
become due solely by such declaration of acceleration, have been cured or
waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any Security when
such interest becomes due and payable and such default continues for a
period of 60 days,
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Maturity thereof, or
(3) default is made in the making or satisfaction of any sinking fund
payment or analogous obligation when the same becomes due pursuant to the
terms of the Securities of any series and such default continues for a
period of 60 days,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and any premium and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal and any premium and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
If the Company fails to pay such amount forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Securities, and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities wherever
situated.
Section 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or any other
obligor upon the Securities), its property or its creditors, the Trustee shall
be entitled and empowered, by intervention in such proceeding or otherwise, to
take any and all actions authorized under the Trust Indenture Act in order to
have claims of the Holders and the Trustee allowed in any such proceeding. In
particular, the Trustee shall be authorized to collect and receive any moneys
or other property payable or deliverable on any such claims and to distribute
the same;
36
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel,
and any other amounts due the Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding; PROVIDED, HOWEVER,
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditor's or
other similar committee.
Section 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
Section 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be applied
in the following order, at the date or dates fixed by the Trustee and, in case
of the distribution of such money on account of principal or any premium or
interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 607
and any and all amounts due hereunder;
SECOND: To the payment of the amounts then due and unpaid for the
principal of and any premium and interest on the Securities in respect of
which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts due
and payable on such Securities for principal and any premium and interest,
respectively; and
THIRD: To the payment of the balance, if any, to the Company or any
other Person or Persons legally entitled thereto.
Section 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless
(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Securities of that series
as part of the majority set forth in Section 507(2) below;
(2) the Holders of not less than a majority in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
37
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders or of the Holders of Outstanding Securities of any other series,,
or to obtain or to seek to obtain priority or preference over any other of such
Holders or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all such Holders. For
the protection and enforcement of the provisions of this Section 507, each and
every Holder of Securities of any series and the Trustee for such series shall
be entitled to such relief as can be given at law or in equity.
Section 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of and any premium and (subject to Section 307) any
interest on such Security on the respective Stated Maturities expressed in such
Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
Section 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last paragraph of
Section 306, 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 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities to
exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
Section 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding Securities
of any series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series; provided that
(1) such direction shall not be in conflict with any rule of law or with
this Indenture,
38
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction, and
(3) subject to the provisions of Section 601, the Trustee shall have the
right to decline to follow any such direction if the Trustee in good faith
shall, by a Responsible Officer or Officers of the Trustee, determine that
the proceeding so directed would involve the Trustee in personal liability
or would be unjustly prejudicial to the Holders of Securities of such
series not joining in any such direction and for which the Trustee has not
received satisfactory indemnity.
Section 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of all series with respect to which any default under
the Indenture shall have occurred and be continuing (voting as a single class),
by notice to the Trustee, may, on behalf of the Holders of all the Securities
of such series, waive any past default under the Indenture and its
consequences, except a default
(1) in payment of the principal of or any premium or interest on any
Security of such series, or in the payment of any sinking fund installment
or analogous obligation with respect to the Securities of such series, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist and be deemed not to
have occurred, and any Event of Default arising therefrom shall be deemed to
have been cured and not to have occurred, for every purpose of this Indenture;
but no such waiver shall extend to any subsequent or other default or impair
any right consequent thereon.
Section 514. 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, suffered or omitted by
it as Trustee, a court may require any party litigant in such suit, other than
the Trustee, to file an undertaking to pay the costs of such suit, and may
assess costs against any such party litigant, in the manner and to the extent
provided in the Trust Indenture Act; provided that neither this Section nor the
Trust Indenture Act shall be deemed to authorize any court to require such an
undertaking or to make such an assessment in any suit instituted by the Company
or by the Trustee.
Section 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it
may lawfully do so) hereby expressly waives all benefit or advantage of any
such law and covenants that it will not hinder, delay, or impede the execution
of any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
ARTICLE VI.
THE TRUSTEE.
Section 601. Certain Duties and Responsibilities.
With respect to the Holders of any series of Securities issued hereunder,
the Trustee, prior to the occurrence of an Event of Default with the respect to
the Securities of that series and after the curing or waiving of all Events of
Default which may have occurred with respect to that series, undertakes to
perform
39
such duties and only such duties as are specifically set forth in this
Indenture. In case an Event of Default with respect to Securities of any series
has occurred (which has not been cured or waived) the Trustee shall exercise
such of the rights and powers vested in it by this Indenture, and use the same
degree of care and skill in their exercise, as a prudent man would exercise or
use under the circumstances in the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act
or its own willful misconduct, except that
(1) prior to the occurrence of an Event of Default with respect to
Securities of any series and after the curing or waiving of all Events of
Default which may occurred:
(A) the duties and obligations of the Trustee with respect to Securities
of any series shall be determined solely by the express provisions of this
Indenture, and the Trustee shall not be liable except for the performance
of such duties and obligations as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(B) in the absence of bad faith on the part of the Trustee, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture; but, in the case of any such certificates or opinions which
by any provisions hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this Indenture.
(2) the Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer or Officers of the Trustee, unless it shall be
proved that the Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of the
Holders pursuant to Section 512 relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this Indenture.
None of the provisions contained in this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur personal financial liability
in the performance of any of its duties or in the exercise of any of its rights
or powers, if there shall be reasonable grounds for believing that the
repayment of such funds or adequate indemnity against such liability is not
reasonably assured to it or it does not receive an indemnity satisfactory to it
against such risk, liability, loss, fee or expense which might be incurred by
it in compliance with such request or directions.
Section 602. Notice of Defaults.
If a default occurs hereunder with respect to Securities of any series, the
Trustee shall give the Holders of Securities of such series notice of such
default as and to the extent provided by the Trust Indenture Act; PROVIDED,
HOWEVER, that in the case of any default of the character specified in Section
501(4) with respect to Securities of such series, no such notice to Holders
shall be given until at least 30 days after the occurrence thereof. For the
purpose of this Section, the term "default" means any event which is, or after
notice or lapse of time or both would become, an Event of Default with respect
to Securities of such series.
Section 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(1) the Trustee may rely and shall be protected in acting or refraining
from acting upon any Officer's Certificate, Opinion of Counsel, resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence or
indebtedness or other paper document believed by it to be genuine and to
have been signed or presented by the proper party or parties;
40
(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(3) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate or an Opinion of
Counsel;
(4) the Trustee may consult with counsel and the advice of such counsel
or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee security or indemnity reasonably satisfactory
to it against the costs, expenses and liabilities which might be incurred
by it in compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled, at reasonable times previously notified to the Company
to examine the relevant books, records and premises of the Company,
personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder; and
(8) the Trustee shall not be deemed to have knowledge of any Default or
Event of Default except (i) any Event of Default occurring pursuant to
Sections 501(1), 501(2) or 501(3) or (ii) any Default or Event of Default
of which a Responsible Officer of the Trustee has received written
notification or obtained actual knowledge.
(9) The Trustee may rely on any 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.
(10) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate and an Opinion of Counsel. 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.
(11) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it reasonably believes to be authorized or within
its rights or powers.
(12) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders pursuant to the provisions of this
Indenture, unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which may
be incurred therein or thereby.
Section 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the
Company, and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this
41
Indenture or of the Securities of any series. Neither the Trustee nor any
Authenticating Agent shall be accountable for the use or application by the
Company of Securities or the proceeds thereof.
Section 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to
Sections 608 and 613, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
Section 606. Money Held In Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
Section 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time such compensation as shall
be agreed to in writing between the Company and the Trustee for all
services rendered by it hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a trustee of an
express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence, willful
misconduct or bad faith; and
(3) To indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence, willful misconduct
or bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder including the
costs and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder.
To secure the Issuers' payment obligations in this Section 607, the Trustee
shall have a senior claim and lien prior to the Securities against all money or
property held or collected by the Trustee, in its capacity as Trustee.
When the Trustee incurs expenses or renders services after an Event of
Default specified in clause (5), (6) or (7) of Section 501 occurs, the expenses
(including the reasonable fees and expenses of its agents and counsel) and the
compensation for the services shall be preferred over the status of the Holders
in a proceeding under any bankruptcy law and are intended to constitute
expenses of administration under any bankruptcy law. The Company's obligations
under this Section 607 and any claim arising hereunder shall survive the
resignation or removal of any Trustee, the discharge of the Company's
obligations hereunder and any rejection or termination under any bankruptcy
law.
Section 608. Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and in this Indenture. To the extent
provided by such Act, the Trustee shall not be deemed to have a conflicting
interest by virtue of being a trustee under this Indenture with respect to
Securities of more than one series.
42
Section 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder with respect to the
Securities of each series, which may be a Trustee hereunder for Securities of
one or more other series. Each Trustee shall be a person that is eligible
pursuant to the Trust Indenture Act to act as such and has a combined capital
and surplus of at least $50,000,000. If any such person publishes reports of
condition at least annually, pursuant to law, or to the requirements of its
supervising or examining authority, then for the purposes of this Section and
to the extent permitted by the Trust Indenture Act, the combined capital and
surplus of such person shall be deemed to be its combined capital and surplus
as set forth in its most recent report of condition so published. If at any
time the Trustee with respect to the Securities of any series shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article. Neither the Company nor any person directly or indirectly controlling,
controlled by, or under common control with the Company shall serve as Trustee
upon any Securities.
Section 610. Resignation and Removal; Appointment of Successor.
No resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 611.
The Trustee may resign at any time with respect to the Securities of one or
more series by giving written notice thereof to the Company. If the instrument
of acceptance by a successor Trustee required by Section 611 shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
The Trustee may be removed at any time with respect to the Securities of any
series by Act of the Holders of at least a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company. If an instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee within 30 days after the removal of the Trustee,
the removed Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
If at any time:
(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and shall
fail to resign after written request therefor by the Company or by any such
Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of the Trustee or of its property shall
be appointed or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (A) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (B) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees for the
Securities of such series.
If the Trustee shall resign, be removed or become incapable of acting, or if
a vacancy shall occur in the office of Trustee for any cause, with respect to
the Securities of one or more series, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee or Trustees with respect to the Securities
of that or those series (it being understood that any such successor Trustee
may be appointed with respect to the Securities of one or more or all of such
series and that at any time there shall be only one Trustee with respect to the
43
Securities of any particular series) and shall comply with the applicable
requirements of Section 611. If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor Trustee
with respect to the Securities of any series shall be appointed by Act of the
Holders of at least a majority in principal amount of the Outstanding
Securities of such series delivered to the Company and the retiring Trustee,
the successor Trustee so appointed shall, forthwith upon its acceptance of such
appointment in accordance with the applicable requirements of Section 611,
become the successor Trustee with respect to the Securities of such series and
to that extent supercede the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any series shall have been
so appointed by the Company or the Holders and accepted appointment in the
manner required by Section 611, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
The Company shall give notice of each resignation and each removal of the
Trustee with respect to the Securities of any series and each appointment of a
successor Trustee with respect to the Securities of any series to all Holders
of Securities of such series in the manner provided in Section 106. Each notice
shall include the name of the successor Trustee with respect to the Securities
of such series and the address of its Corporate Trust Office.
Section 611. Acceptance of Appointment by Successor.
In the case of the appointment hereunder of a successor Trustee with respect
to all Securities, each such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers, and trusts of the retiring Trustee
and shall duly assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder, subject to its
claim, if any, provided for in Section 607.
In case of the appointment hereunder of a successor Trustee with respect to
the Securities of one or more (but not all) series, the Company, the retiring
Trustee and each successor Trustee with respect to the Securities of one or
more series shall execute and deliver an indenture supplemental hereto wherein
each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of
that or those series to which the appointment of such successor Trustee
relates, (2) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon the execution and delivery of
such supplemental indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company or any successor
Trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee
hereunder with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates.
44
Upon request of any such successor Trustee, the Company shall execute any
and all instruments for more fully and certainly vesting in and confirming to
such successor Trustee all such rights, powers and trusts referred to in the
first or second preceding paragraph, as the case may be.
No successor Trustee shall accept its appointment unless at the time of such
acceptance such successor Trustee shall be qualified and eligible under this
Article.
Section 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate business of
the Trustee, shall be successor of the Trustee hereunder, provided that such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. As soon as practicable thereafter, the successor
Trustee shall mail a notice of its succession to the Company and to the Holders
of the Securities. In case any Securities shall have been authenticated, but
not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities. In case
any Securities shall not have been authenticated by such predecessor Trustee,
any such successor Trustee may authenticate and deliver such Securities, in
either its own name or that of its predecessor Trustee, with the full force and
effect which this Indenture provides for the certificate of authentication of
the Trustee.
Section 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company (or any
other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims
against the Company (or any such other obligor).
Section 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents acceptable to the
Company with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series issued upon exchange, registration of transfer or partial redemption
thereof or pursuant to Section 306, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee hereunder. Wherever
reference is made in this Indenture to the authentication and delivery of
Securities by the Trustee or the Trustee's certificate of authentication, such
reference shall be deemed to include authentication and delivery on behalf of
the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and shall at all times
be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $50,000,000 and subject to supervision or examination
by federal or state authority. If such Authenticating Agent publishes reports
of condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Authenticating Agent shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to
be eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust
45
business of an Authenticating Agent, shall continue to be an Authenticating
Agent, provided such corporation shall be otherwise eligible under this
Section, without the execution or filing of any paper or any further act on
the part of the Trustee or the Authenticating Agent. As soon as practicable
thereafter, the successor Authenticating Agent shall mail a notice of its
succession to the Trustee and the Company.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice or resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give notice of such
appointment in the manner provided in Section 106 to all Holders of Securities
of the series with respect to which such Authenticating Agent will serve. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section, and the Company
agrees to indemnify each Authenticating Agent on the same terms and conditions
as set forth in Section 607.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternate
certificate of authentication in the following form:
This is one of the Securities of the series designated there referred to in
the within-mentioned Indenture.
The Chase Manhattan Bank
As Trustee
By: __________________________________
As Authenticating Agent
By: __________________________________
Authorized Officer
Dated:
ARTICLE VII.
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY.
Section 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) 15 days after each Regular Record Date, a list, in such form as the
Trustee may reasonably require, of the names and addresses of the Holders
of the registered Securities of each series as of such Regular Record Date,
and
(b) at such other times as the Trustee may request in writing, within 30
days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished; excluding from any such list names and
addresses received by the Trustee in its capacity as Security Registrar.
46
The Company shall also be required to furnish to the Trustee at all such
times set forth above all information in the possession or control of the
Company or any of its Paying Agents, other than the Trustee, as to the names
and addresses of the Holders of Bearer Securities of all series; PROVIDED,
HOWEVER, that the Company shall have no obligation to investigate any matter
relating to any Holders of Bearer Securities of any series.
Section 702. Preservation of Information; Communications to Holders.
The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
The rights of the Holders to communicate with other Holders with respect to
their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided by the
Trust Indenture Act.
Every Holder of Securities, by receiving and holding the same, agrees with
the Company and the Trustee that neither the Company nor the Trustee nor any
agent of either of them shall be held accountable by reason of any disclosure
of information as to names and addresses of Holders made pursuant to the Trust
Indenture Act.
Section 703. Reports by Trustee.
The Trustee shall transmit to Holders such reports concerning the Trustee
and its actions under this Indenture as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant thereto. If
required by Section 313(a) of the Trust Indenture Act, the Trustee shall,
within 60 days after each June 1 following the date of this Indenture, deliver
to Holders a brief report, dated as of such June 1, which complies with the
provisions of such Section 313(a).
A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when any Securities are listed on any stock exchange.
Sections 704. Reports by Company.
Unless otherwise specified with respect to a particular series of Securities
pursuant to Section 301, the Company shall file with the Trustee and the
Commission, and transmit to Holders, such information, documents and other
reports, and such summaries thereof, as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant to such Act;
provided that any such information, documents or reports required to be filed
with the Commission pursuant to Section 13 or 15(d) of the Exchange Act shall
be filed with the Trustee within 15 days after the same is so required to be
filed with the Commission.
ARTICLE VIII.
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
Section 801. Company May Consolidate, Etc., on Certain Terms.
Nothing contained in this Indenture or in any of the Securities shall
prevent any consolidation or merger of the Company with or into any other
Person or Persons (whether or not affiliated with the Company), or successive
consolidations or mergers in which the Company or its successor or successors
shall be a party or parties, or shall prevent any conveyance or transfer of the
properties and assets of the Company as an entirety or substantially as an
entirety to any other Person (whether or not affiliated with the Company)
lawfully entitled
47
to acquire the same; PROVIDED, HOWEVER, and the Company hereby covenants and
agrees, that upon any such consolidation, merger, conveyance or transfer, (i)
the due and punctual payment of the principal of and premium, if any, and
interest on all of the Securities, according to their tenor, and the due and
punctual performance and observance of all of the covenants and conditions of
this Indenture to be performed by the Company, shall be expressly assumed, by
indenture supplemental hereto, in form reasonably satisfactory to the Trustee,
executed and delivered to the Trustee by the Person (if other than the Company)
formed by such consolidation, or into which the Company shall have been merged,
or by the Person which shall have acquired such properties and assets, and (ii)
the Company shall deliver to the Trustee an Officers' Certificate and an
Opinion of Counsel, each stating that such consolidation, merger, conveyance or
transfer and such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction have been
complied with and that it constitutes the legal, valid and binding obligation
of the successor, subject to the customary exceptions.
Section 802. Successor Substituted.
Upon any consolidation of the Company with, or merger of the Company into,
any other Person or any conveyance or transfer of the properties and assets of
the Company as an entirety or substantially as an entirety in accordance with
Section 801, the successor Person formed by such consolidation or into which
the Company, is merged or to which such conveyance or, transfer is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein, and thereafter the predecessor
Person shall be relieved of all obligations and covenants under this Indenture
and the Securities.
ARTICLE IX.
SUPPLEMENTAL INDENTURES.
Section 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a Board
Resolution, and the Trustee, at any time and from time to time, may enter into
one or more indentures supplemental hereto, in form reasonable satisfactory to
the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and the
assumption by any such successor of the covenants of the Company herein and
in the Securities; or
(2) to add the covenants of the Company for the benefit of the Holders
of all or any series of Securities (and if such covenants are to be for the
benefit of less than all series of Securities, stating that such covenants
are expressly being included solely for the benefit of such series) or to
surrender any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default (and if such Events of
Default are to be applicable to less than all series of Securities, stating
that such additional Events of Default are expressly being included solely
for the benefit of such series); or
(4) to add to or change any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal,
and with or without interest coupons, to or facilitate the issuance of
Securities in uncertificated form to permit Bearer Securities to be issued
in exchange for Registered Securities, to permit Bearer Securities to be
issued in exchange for Bearer Securities of other authorized denominations
or to permit the issuance of Securities of any series in uncertificated
form, provided that any such action shall not adversely affect the
interests of the Holders of Securities of any series in any material
respect; or
(5) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided that any
such addition, change or elimination (A) shall neither (i) apply to
48
any Security of any series created prior to the execution of such
supplemental indenture and entitled to the benefit of such provision nor
(ii) modify the rights of the Holder of any such Security with respect to
such provision or (B) shall become effective only when there is no such
Security Outstanding; or
(6) to secure the Securities or to provide that any of the Company's
obligations under any series of the Securities or this Indenture shall be
guaranteed and the terms and conditions for the release or substitution of
such security or guarantee; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment hereunder
by a successor Trustee with respect to the Securities of one or more series
and to add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of Section
611; or
(9) to cure any ambiguity, to correct or supplement any provision herein
which may be defective or inconsistent with any other provision herein, or
to make any other provisions with respect to matters or questions arising
under this Indenture; provided, that such action pursuant to this Clause
(9) shall not adversely affect the interests of the Holders of Securities
of any series in any material respect.
Section 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities of all series affected by such
supplemental indenture (voting as one class), by Act of said Holders delivered
to the Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of any
supplemental indenture or modifying in any manner the rights of the Holders of
Securities under this Indenture; PROVIDED, HOWEVER, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding
Security affected thereby,
(1) change the Stated Maturity of the principal of, or any installment
of principal of or interest on, any Security, or reduce the principal
amount thereof or the rate of interest thereon or any premium payable upon
the redemption thereof, or reduce the amount of the principal of an
Original Issue Discount Security or any other Security that would be due
and payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502, or change the coin, currency or currency unit in
which any Security 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 adversely affect the right to convert any
Security into shares of Common Stock or other securities or property of the
Company as may be provided pursuant to Section 301, or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences provided for in this
Indenture, or
(3) modify any of the provisions of this Section, Section 513 or Section
1005, except to increase any such percentage or to provide that certain
other provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected thereby;
PROVIDED, HOWEVER, that this clause shall not be deemed to require the
consent of any Holder with respect to changes in the references to "the
Trustee" and concomitant changes in this Section and Section 1005 or the
deletion of this proviso, in accordance with the requirements of Section
611 and 901(8).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such
covenants or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
49
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 601) shall be fully protected in relying upon,
an Opinion of Counsel stating that the execution of such supplemental indenture
is authorized or permitted by this Indenture and that such supplemental
indenture constitutes the legal, valid and binding obligation of the Company,
subject to customary exceptions. The Trustee may, but shall not be obligated
to, enter into any such supplemental indenture which affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise in a material
way.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every
Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall conform
to the requirements of the Trust Indenture Act.
Section 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any
matter provided for in such supplemental indenture. If the Company shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE X.
COVENANTS.
Section 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any
premium and interest on the Securities of that series in accordance with the
terms of the Securities and this Indenture. Unless otherwise specified as
contemplated by Section 301 with respect to any series of Securities or except
as otherwise provided in Section 306, any interest due on Bearer Securities on
or before Maturity shall be payable only upon presentation and surrender of the
several Coupons for such interest installments as are evidenced thereby as they
severally mature. If so provided in the terms of any series of Securities
established as provided in Section 301, the interest, if any, due in respect of
any temporary Global Security or permanent Global Security, together with any
additional amounts payable in respect thereof, as provided in the terms and
conditions of such Security, shall be payable only upon presentation of such
Security to the Trustee for notation thereon of the payment of such interest.
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Section 1002. Maintenance of Office or Agency.
If Securities of a series are issuable only as Registered Securities, the
Company will maintain in each Place of Payment for such series an office or
agency where Securities of that series may be presented or surrendered for
payment, where Securities of that series may be surrendered for registration of
transfer or exchange, where Securities of that series that are convertible may
be surrendered for conversion, if applicable, and where notices and demands to
or upon the Company in respect of the Securities of that series and this
Indenture may be served. If Securities of a series are issuable as Bearer
Securities, the Company will maintain
(A) in the Borough of Manhattan, the City and State of New York, an
office or agency where any Registered Securities of that series may be
presented or surrendered for payment, where any Registered Securities of
that series may be surrendered for registration of transfer, where
Securities of that series may be surrendered for exchange or redemption,
where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served and where Bearer
Securities of that series and related Coupons may be presented or
surrendered for payment in the circumstances described in the following
paragraph (and not otherwise),
(B) subject to any laws or regulations applicable thereto, in a Place of
Payment for that series which is located outside the United States, an
office or agency where Securities of that series and related Coupons, if
any, may be presented and surrendered for payment (including payment of any
additional amounts payable on Securities of that series, if so provided
pursuant to Section 301); PROVIDED, HOWEVER, that if the Securities of that
series are listed on The Stock Exchange of the United Kingdom and the
Republic of Ireland, the Luxembourg Stock Exchange or any other stock
exchange located outside the United States and such stock exchange shall so
require, the Company will maintain a Paying Agent for the Securities of
that series in London, Luxembourg or any other required city located
outside the United States, as the case may be, so long as the Securities of
that series are listed on such exchange, and
(C) subject to any laws or regulations applicable thereto, in a Place of
Payment for that series located outside the United States an office or
agency where any Registered Securities of that series may be surrendered
for registration of transfer, where Securities of that series may be
surrendered for exchange or redemption and where notices and demands to or
upon the Company in respect of the Securities of that series and this
Indenture may be served. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee (in the case of
Registered Securities) and at the principal London office of the Trustee
(in the case of Bearer Securities), and the Company hereby appoints the
Trustee as its agent to receive all presentations, surrenders, notices and
demands.
No payment of principal, premium or interest on Bearer Securities shall be
made at any office or agency of the Company in the United States or by check
mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States; PROVIDED, HOWEVER, that,
if the Securities of a series are denominated and payable in Dollars, payment
of principal of and any premium and interest on Securities (including any
additional amounts payable on Securities of such series, if so provided
pursuant to Section 301) shall be made at the office of the Company's Paying
Agent in the Borough of Manhattan, the City and State of New York, if (but only
if) payment in Dollars of the full amount of such principal, premium, interest
or additional amounts, as the case may be, at all offices or agencies outside
the United States maintained for the purpose by the Company in accordance with
this Indenture is illegal or effectively precluded by exchange controls or
other similar restrictions.
The Company may also from time to time designate different or additional
offices or agencies to be maintained for such purposes (in or outside of such
Place of Payment), and may from time to time rescind any such designations;
PROVIDED, HOWEVER, that no such designation or rescission shall in any manner
relieve the Company of its obligations described in the preceding paragraph.
The Company will give prompt written
51
notice to the Trustee of any such additional designation or rescission of
designation and any change in the location of any such different or additional
office or agency.
Section 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect to
any series of Securities, it will, on or before each due date of the principal
of and any premium or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal and any premium or interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as
herein provided and will promptly notify the Trustee of its action or failure
so to act.
Whenever the Company shall have one or more Paying Agents for any series of
Securities and Coupons, it will, prior to each due date of the principal of and
any premium or interest on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay such amount, such sum to be held as provided by
the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities other
than the Trustee to execute and deliver to the Trustee an instrument in which
such Paying Agent shall agree with the Trustee, subject to the provisions of
this Section, that such Paying Agent will (1) comply with the provisions of the
Trust Indenture Act applicable to it as a Paying Agent and (2) during the
continuance of any default by the Company (or any other obligor upon the
Securities of that series) in the making of any payment in respect of the
Securities of that series, and upon the written request of the Trustee,
forthwith pay to the Trustee all sums held in trust by such Paying Agent for
payment in respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same terms as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of and any premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal, premium or interest has become due and payable shall be
paid to the Company, or (if then held by the Company) shall be discharged from
such trust; and the Holder of such Security or Coupon shall thereafter, as an
unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; PROVIDED, HOWEVER, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language,
customarily published on each Business Day and of general circulation in
Borough of Manhattan, the City of New York, New York notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such publication, any unclaimed balance of
such money then remaining will be repaid to the Company.
Section 1004. Statement by Officers as to Default.
Unless otherwise specifically provided for with respect to any series of
Securities under Section 301, the Company will deliver to the Trustee, on or
before June 1 of each calendar year or on or before such other day in each
calendar year as the Company and the Trustee may from time to time agree upon,
an Officers' Certificate, stating whether or not to the best knowledge of the
signers thereof the Company is in default in the performance and observance of
any of the terms, provisions, and conditions of this Indenture (without regard
to any period of grace or requirement of notice provided hereunder) and, if the
Company shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.
52
Section 1005. Waiver of Certain Covenants.
Except as otherwise specified as contemplated by Section 301 for Securities
of such series, the Company may, with respect to the Securities of any series,
omit in any particular instance to comply with any term, provision or condition
set forth in any covenant provided pursuant to Section 301 (18), 901 (2) or 901
(7) for the benefit of the Holders of such series or in Section 1004 or 1005 if
before the time for such compliance the Holders of not less than a majority in
principal amount of the Outstanding Securities of such series shall, by Act of
such Holders, either waive such compliance in such instance or generally waive
compliance with such term, provision or condition, but no such waiver shall
extend to or affect such term, provision or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such
term, provision or condition shall remain in full force and effect.
ARTICLE XI.
REDEMPTION OF SECURITIES.
Section 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified as contemplated by Section 301 for such Securities) in accordance
with this Article.
Section 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by a
Board Resolution or in another manner specified as contemplated by Section 301
for such Securities. In case of any redemption at the election of the Company,
the Company shall, at least 60 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be reasonably satisfactory to the
Trustee), notify the Trustee of such Redemption Date, of the principal amount
of Securities of such series to be redeemed and, if applicable, of the tenor of
the Securities to be redeemed. In the case of any redemption of Securities (a)
prior to the expiration of any restriction on such redemption provided in the
terms of such Securities or elsewhere in this Indenture, or (b) pursuant to an
election of the Company which is subject to a condition specified in the terms
of such Securities or elsewhere in this Indenture, the Company shall furnish
the Trustee with an Officers' Certificate evidencing compliance with such
restriction or condition.
Section 1103. Selection by Trustee of Securities to be Redeemed.
Except in the case of a redemption in whole of the Bearer Securities or the
Registered Securities of such series, if less than all the Securities of any
series are to be redeemed, the particular securities to be redeemed shall be
selected not more than 60 days prior to the Redemption Date by the Trustee,
from the Outstanding Securities of such series not previously called for
redemption, by such method as the Trustee shall deem fair and appropriate and
which may provide for the selection for redemption of a portion of the
principal amount of any Security shall be an authorized denomination (which
shall not be less than the minimum authorized denomination) for such Security
in the Currency in which the Securities of such series are denominated. The
portions of the principal amount of Securities so selected for partial
redemption shall be equal to the minimum authorized denominations for
Securities of such series in the Currency in which the Securities of such
series are denominated or any integral multiple thereof, except as otherwise
set forth in the applicable form of Securities. In any case when more than one
Registered Security of such series is registered in the same name, the Trustee,
in its discretion, may treat the aggregate principal amount so registered as if
it were represented by one Registered Security of such series.
53
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption as aforesaid and, in the case of any Securities
selected for partial redemption as aforesaid, the principal amount thereof to
be redeemed.
The provisions of the two preceding paragraphs shall not apply with respect
to any redemption affecting only a single Security, whether such Security is to
be redeemed in whole or in part. In the case of any such redemption in part,
the unredeemed portion of the principal amount of the Security shall be in an
authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
Section 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Securities to be redeemed, at his address appearing in the
Security Register.
All notices of redemption shall state:
(1) the Redemption Date.
(2) the Redemption Price or, if not than ascertainable, the manner of
calculation thereof
(3) if less than all of the Outstanding Securities of any series and of
a specified tenor consisting of more than a single Security are to be
redeemed, the identification (and, in the case of partial redemption of any
such Securities, the principal amounts) of the particular Securities to be
redeemed and, if less than all the Outstanding Securities of any series and
of a specified tenor consisting of a single Security are to be redeemed,
the principal amount of the particular Security to be redeemed;
(4) that on the Redemption Date of the Redemption Price, together with
accrued interest, if any, to the Redemption Date, will become due and
payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date;
(5) the place or places where each such Security is to be surrendered
for payment of the Redemption Price and accrued interest, if any, unless it
shall have been specified as contemplated by Section 301 with respect to
such Securities that such surrender shall not be required;
(6) that the redemption is for a sinking fund, if such is the case;
(7) such other matters as the Company shall deem desirable or
appropriate; and
(8) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such
Bearer Securities may be exchanged for Registered Securities not subject to
redemption on this Redemption Date pursuant to Section 305(b) or otherwise,
the last date on which such exchanges may be made.
Unless otherwise specified with respect to any Securities in accordance with
Section 301, with respect to any redemption of Securities at the election of
the Company, unless, upon the giving of notice of such redemption, Defeasance
shall have been effected with respect to such Securities pursuant to Section
1302, such notice may state that such redemption shall be conditional upon the
receipt by the Trustee or the Paying Agent(s) for such Securities, on or prior
to the date fixed for such redemption, of money sufficient to pay the principal
of and any premium and interest on such Securities , in the Currency or
Currencies in which such Securities are denominated (except as provided
pursuant to Section 301) sufficient to pay the Redemption Price for such
Securities or any portions thereof which are to be redeemed on that date, and
that if such money shall not have been so received such notice shall be of no
force or effect and the Company shall not be required to
54
redeem such Securities. In the event that such notice of redemption contains
such a condition and such money is not so received, the redemption shall not be
made and within a reasonable time thereafter notice shall be given, in the
manner in which the notice of redemption was given, that such money was not so
received and such redemption was not required to be made, and the Trustee or
Paying Agent(s) for the Securities otherwise to have been redeemed shall
promptly return to the Holders thereof any of such Securities which had been
surrendered for payment upon such redemption.
Notice of redemption of Securities to be redeemed at the election of the
Company, and any notice of non-satisfaction of redemption as aforesaid, shall
be given by the Company or, at the Company's request, by the Trustee in the
name and at the expense of the Corporation. Subject to the preceding paragraph,
any such notice of redemption shall be irrevocable.
Section 1105. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, and the conditions, if
any, set forth in such notice having been satisfied, the Securities or portions
thereof so to be redeemed shall, on the Redemption Date, become due and payable
at the Redemption Price in the Currency in which the Securities of such series
are payable (except as otherwise specified pursuant to Sections 301 or 310)
therein specified, and from and after such date (unless, in the case of an
unconditional notice of redemption, the Company shall default in the payment of
the Redemption Price and accrued interest, if any) such Securities or portions
thereof, if interest-bearing, shall cease to bear interest. Upon surrender of
any such Security for redemption in accordance with said notice, such Security
or portion thereof shall be paid by the Company at the Redemption Price,
together with accrued interest, if any, to the Redemption Date; PROVIDED,
HOWEVER;
(a) that installments on interest on Bearer Securities whose Stated
Maturity is on or prior to the Redemption Date shall be payable only at an
office or agency located outside the United States (except as otherwise
provided in Section 1002) and, unless otherwise specified as contemplated
in Section 301, only upon presentation and surrender of Coupons for such
interest;
(b) that, unless otherwise specified as contemplated by Section 301,
installments of interest on Registered Securities which have a Stated
Maturity on or prior to the Redemption Date for such Securities shall be
payable according to the terms of such Securities and the provision s of
Section 307;
(c) that no such surrender shall be a condition to such payment if so
specified as contemplated by Section 301 with respect to such Security, and
(d) that, unless otherwise specified as contemplated by Section 301,
installments of interest whose Stated Maturity is on or prior to the
Redemption Date will be payable to the Holders of such Securities, or one
or more Predecessor Securities, registered as such at the close of business
on the relevant Record Dates according to their terms and the provisions of
Section 307.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal and any premium shall, until paid, bear
interest from the Redemption Date at the rate prescribed therefor in the
Security.
On or before 10:00 a.m. New York Time on the Redemption Date, the Company
shall deposit with the Paying Agent funds sufficient to pay the Redemption
Price plus accrued interest, if any, of all Securities to be redeemed on that
date.
Section 1106. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at a
Place of Payment therefor (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the
55
Holder of such Security without service charge, a new Security or Securities of
the same series and of like tenor, of any authorized denomination as requested
by such Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
ARTICLE XII.
SINKING FUNDS.
Section 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of a series except as otherwise specified as
contemplated by Section 301 for such Securities.
The minimum amount of any sinking fund payment provided for by the terms of
Securities is herein referred to as a "mandatory sinking fund payment", and any
payment in excess of such minimum amount provided for by the terms of such
Securities of is herein referred to as an "optional sinking fund payment". If
provided for by the terms of any Securities, the cash amount of any sinking
fund payment may be subject to reduction as provided in Section 1202. Each
sinking fund payment shall be applied to the redemption of Securities as
provided for by the terms of such Securities.
Section 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other than
any previously called for redemption) and (2) may apply as a credit Securities
of a series which have been redeemed either at the election of the Company
pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments and to the extent provided for by the
terms of such Securities; provided that the Securities to be so credited have
not been previously so credited. The Securities to be so credited shall be
received and credited for such purpose by the Trustee at the Redemption Price,
as specified in such Securities so to be redeemed, for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.
Section 1203. Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date for any
Securities, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for such
Securities pursuant to the terms of such Securities, the portion thereof, if
any, which is to be satisfied by payment of cash and the portion thereof, if
any, which is to be satisfied by delivering and crediting Securities pursuant
to Section 1202 and stating the basis for such credit and that such Securities
have not been previously so credited and will also deliver to the Trustee any
Securities to be so delivered. Not less than 30 days prior to each such sinking
fund payment date, the Trustee shall select the Securities to be redeemed upon
such sinking fund payment date in the manner specified in Section 1103 and
cause notice of the redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section 1104. Such notice
having been duly given, the redemption of such Securities shall be made upon
the terms and in the manner stated in Sections 1105 and 1106. On or before
10:00 a.m. New York Time on the sinking fund payment date, the Company shall
deposit with the Paying Agent funds sufficient to pay the amounts due plus
accrued interest, if any.
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ARTICLE XIII.
DEFEASANCE AND COVENANT DEFEASANCE.
Section 1301. Applicability of Article.
Unless, pursuant to Section 301, provision is made for either or both of (a)
defeasance of any Securities or any series of Securities under Section 1302 and
(b) covenant defeasance of any Securities or any series under Section 1303
shall not apply to such Securities of a series, then the provisions of either
or both of Section 1302 and Section 1303, as the case may be, together with
Sections 1304 and 1305, shall be applicable to the Outstanding Securities of
such series upon compliance with the conditions set forth in this Article.
Section 1302. Defeasance and Discharge.
The Company may cause itself to be discharged from its obligations with
respect to any Securities or any series of Securities on and after the date the
conditions set forth in Section 1304 are satisfied (hereinafter called
"Defeasance"). For this purpose, such Defeasance means that the Company shall
be deemed to have paid and discharged the entire indebtedness represented by
such Securities and to have satisfied all its other obligations under such
Securities and this Indenture insofar as such Securities are concerned (and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), subject to the following which shall survive until
otherwise terminated or discharged hereunder: (1) the rights of Holders of such
Securities to receive, solely from the trust fund described in Section 1304 and
as more fully set forth in such Section, payments in respect of the principal
of and any premium and interest on such Securities when payments are due, (2)
the Company's obligations with respect to such Securities under Sections 304,
305, 306, 1002 and 1003, and with respect to the Trustee under Section 607, (3)
the rights, powers, trusts, duties, and immunities of the Trustee hereunder and
(4) this Article. Subject to compliance with this Article, Defeasance with
respect to any Securities or any series of Securities by the Company is
permitted under this Section 1302 notwithstanding the prior exercise of its
option under Section 1303 with respect to such Securities. Following a
Defeasance, payment of such Securities may not be accelerated because of an
Event of Default.
Section 1303. Covenant Defeasance.
The Company may cause itself to be released from any covenant provided
pursuant to Section 301(18), 901 (2), 901 (6) or 901 (7) with respect to any
Securities or any series of Securities for the benefit of the Holders of such
Securities and the occurrence of any event specified in Sections 501(4) (with
respect to any such covenants provide pursuant to Section 301 (18), 901 (2),
901 (6), 901 (7)), 501 (7) shall be deemed not to be or result in an Event of
Default with respect to such Securities as provided in this Section, in each
case on and after the date the conditions set forth in Section 1304 are
satisfied (hereinafter called "Covenant Defeasance.")) For this purpose, such
Covenant Defeasance means that, with respect to the such Securities, the
Company may omit to comply with and shall have no liability in respect of any
term, condition or limitation set forth in any such specified Section (to the
extent so specified in the case of Section 501 (4)) whether directly or
indirectly by reason of any reference elsewhere herein to any such Section or
by reason of any reference in any such Section to any other provision herein or
in any other document, but the remainder of this Indenture and such Securities
shall be unaffected thereby.
Section 1304. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions precedent to application of either
Section 1302 or Section 1303 to any Securities or any series of Securities, as
the case may be.
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Securities, (A)
money in an amount, or (B) Government Obligations which through the
scheduled payment of principal and interest in respect thereof
57
in accordance with their terms without reinvestment thereof will provide,
not later than the due date of any payment, money in an amount, or (C) a
combination thereof, sufficient, in the case of (B) or (C), in the opinion
of a nationally recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee to pay and discharge,
the principal of and any premium, and interest on such Securities on the
respective Stated Maturities or on any Redemption Date established pursuant
to Clause (3) below, in accordance with the terms of this Indenture and
such Securities. As used herein, "Government Obligation" means (x) any
security which is (i) a direct obligation of the United States of America
or the government which issued the foreign currency in which such
Securities are payable, for the payment of which its full faith and credit
is pledged or (ii) obligations of a Person controlled or supervised by and
acting as an agency or instrumentality of the United States of America or
such government which issued the foreign currency in which such Securities
are payable, the payment of which is unconditionally guaranteed as a full
faith and credit obligation by the United States of America or such other
government, which, in either case (i) or (ii), is not callable or
redeemable at the option of the issuer thereof, and (y) any depository
receipt issued by a bank (as defined in Section 3(a)(2) of the Securities
Act) as custodian with respect to any Government Obligation which is
specified in clause (x) above and held by such bank for the account of the
holder of such depository receipt, or with respect to any specific payment
of principal or interest on any Government Obligation which is so specified
and held, provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of
such depository receipt from any amount received by the custodian in
respect of the Government Obligation or the specific payment of principal
of or interest on the Government Obligation evidenced by such depository
receipt.
(2) No event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to the Securities of such series
shall have occurred and be continuing on the date of such deposit or with
regard to any such event specified in Sections 501(5) and (6), at any time
during the period ending on or prior to the 90th day after the date of such
deposit or, (it being understood that this condition shall not be deemed
satisfied until after such 90th day).
(3) If the Securities are to be redeemed prior to Stated Maturity (other
than from mandatory sinking fund payments or analogous payments), notice of
such redemption shall have been duly given pursuant to this Indenture or
provision therefor reasonably satisfactory to the Trustee shall have been
made.
(4) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent Defeasance or Covenant Defeasance have been complied with.
Section 1305. Deposited Money and Government Obligations to be Held in Trust.
Subject to the provisions of the last paragraph of Section 1003, all money
and Government Obligations (including the proceeds thereof) deposited with the
Trustee pursuant to Section 1304 in respect of any Securities shall be held in
trust and applied by the Trustee, in accordance with the provisions of such
Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Holders of such Securities, of all sums due and
to become due thereon in respect of principal and any premium, and interest,
but such money so held need not be segregated from other funds except to the
extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the Government Obligations
deposited pursuant to Section 1304 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is
for the account of the Holders of Outstanding Securities.
Anything in this Article to the contrary notwithstanding, the Trustee shall
deliver or pay to the Company from time to time upon Company Request any money
or Government Obligations held by it as provided in Section 1304 with respect
to any Securities which, in the opinion of a nationally recognized firm of
58
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect Defeasance or Covenant Defeasance, as the
case may be, with respect to such Securities.
ARTICLE XIV.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS.
Section 1401. Indenture and Securities Solely Corporate Obligations.
No recourse for the payment of the principal of or any premium or interest
on any Security, or for any claim based thereon or otherwise in respect
thereof, and no recourse under or upon any obligation, covenant or agreement of
the Company in this Indenture or in any supplemental indenture, or in any
Security, or because of the creation of any indebtedness represented thereby,
shall be had against any incorporator, stockholder, officer or director, as
such, past, present or future, of the Company or any successor corporation,
either directly or through the Company or any successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of
any assessment or penalty or otherwise; it being expressly understood that all
such liability is hereby expressly waived and released as a condition of, and
as a consideration for, the execution of this Indenture and the issue of the
Securities.
This instrument may be executed in any number of counterparts, each of which
so executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
ARTICLE XV.
HOLDERS' MEETINGS.
Section 1501. Purposes of Meetings.
A meeting of Holders of any or all series may be called at any time and from
time to time pursuant to the provisions of this Article Fifteen for any of the
following purposes:
(1) to give any notice to the Company or to the Trustee for such series,
or to give any directions to the Trustee for such series, or to consent to
the waiving of any default hereunder and its consequences, or to take any
other action authorized to be taken by Holders pursuant to any of the
provisions of Article Five;
(2) to remove the Trustee for such series and appoint a successor
Trustee pursuant to the provisions of Article Six;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 902; or
(4) to take any other action authorized to be taken by or on behalf of
the Holders of any specified aggregate principal amount of the Outstanding
Securities of any one or more or all series, as the case may be, under any
other provision of this Indenture or under applicable law.
Section 1502. Call of Meetings by Trustee.
The Trustee for any series may at any time call a meeting of Holders of such
series to take any action specified in Section 1501, to be held at such time or
times and at such place or places as the Trustee for such series shall
determine. Notice of every meeting of the Holders of any series, setting forth
the time and the place of such meeting and in general terms the action proposed
to be taken at such meeting, shall be given to Holders of such series in the
manner and to the extent provided in Section 105. Unless otherwise specified in
this Indenture, such notice shall be given not less than 10 days nor more than
90 days prior to the date fixed for the meeting.
59
Section 1503. Call of Meetings By Company Or Holders.
In case at any time the Company, pursuant to a Board Resolution, or the
Holders of at least a majority of the Outstanding Securities shall have
requested the Trustee to call a meeting of Holders of any or all such series by
written request setting forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have given the notice of such
meeting within 10 days after the receipt of such request, then the Company or
such Holders may determine the time or times and the place or places for such
meetings and may call such meetings to take any action authorized in Section
1501, by giving notice thereof as provided in Section 1502.
Section 1504. Qualifications For Voting.
To be entitled to vote at any meeting of Holders a Person shall be (a) a
Holder of a Security of the series with respect to which such meeting is being
held or (b) a Person appointed by an instrument in writing as agent or proxy by
such Holder. The only Persons who shall be entitled to be present or to speak
at any meeting of Holders shall be the Persons entitled to vote at such meeting
and their counsel, any representatives of the Trustee for the series with
respect to which such meeting is being held and its counsel and any
representatives of the Company and its counsel.
Section 1505. Regulations.
Notwithstanding any other provisions of this Indenture, the Trustee for any
series may make such reasonable regulations as it may deem advisable for any
meeting of Holders of such series, in regard to proof of the holding of
Securities of such series and of the appointment of proxies, and in regard to
the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate.
The Trustee shall, by an instrument in writing, appoint a temporary chairman
of the meeting, unless the meeting shall have been called by the Company or by
Holders of such series as provided in Section 9.03, in which case the Company
or the Holders calling the meeting, as the case may be, shall in like manner
appoint a temporary chairman. A permanent chairman and a permanent secretary of
the meeting shall be elected by at least a majority vote of the meeting.
Subject to the provisos in the definition of "Outstanding," at any meeting
each Holder of a Security of the series with respect to which such meeting is
being held or proxy therefor shall be entitled to one vote for each $1,000
principal amount (or such other amount as shall be specified as contemplated by
Section 301) of Securities of such series held or represented by such Holder
PROVIDED, HOWEVER, that no vote shall be cast or counted at any meeting in
respect of any Security challenged as not Outstanding and ruled by the chairman
of the meeting to be not Outstanding. The chairman of the meeting shall have no
right to vote other than by virtue of Outstanding Securities of such series
held by him or her or instruments in writing duly designating him or her as the
person to vote on behalf of Holders of Securities of such series. Any meeting
of Holders with respect to which a meeting was duly called pursuant to the
provisions of Section 1502 or 1503 may be adjourned from time to time by at
least a majority of such Holders present and the meeting may be held as so
adjourned without further notice.
Section 1506. Voting.
The vote upon any resolution submitted to any meeting of Holders with
respect to which such meeting is being held shall be by written ballots on
which shall be subscribed the signatures of such Holders or of their
representatives by proxy and the serial number or numbers of the Securities
held or represented by them. The permanent chairman of the meeting shall
appoint two inspectors of votes who shall count all votes cast at the meeting
for or against any resolution and who shall make and file with the secretary of
the meeting their verified written reports in duplicate of all votes cast at
the meeting. A record in duplicate of the proceedings of
60
each meeting of Holders shall be taken and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having knowledge of the
facts setting forth a copy of the notice of the meeting and showing that said
notice was transmitted as provided in Section 1502. The record shall show the
serial numbers of the Securities voting in favor of or against any resolution.
The record shall be signed and verified by the affidavits of the permanent
chairman and secretary of the meeting and one of the duplicates shall be
delivered to the Company and the other to the Trustee to be preserved by the
Trustee. Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
Section 1507. No Delay of Rights By Meeting.
Nothing contained in this Article Fifteen shall be deemed or construed to
authorize or permit, by reason of any call of a meeting of Holders or any
rights expressly or impliedly conferred hereunder to make such call, any
hindrance or delay in the exercise of any right or rights conferred upon or
reserved to the Trustee or to any Holder under any of the provisions of this
Indenture or of the Securities of any series.
IN WITNESS WHEREOF, the parties hereto have cause this Indenture to be duly
executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
Pfizer Inc.
Attest: _______________________ By: _________________________________
The Chase Manhattan Bank
Attest: _______________________ By: _________________________________
61
EXHIBIT A
[forms of certification]
[FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE BEARER SECURITY
OR INTEREST PRIOR TO AN EXCHANGE DATE]
CERTIFICATE
----------------
[Insert title or sufficient description
of Securities to be delivered]
This is to certify that as of the date hereof and except as set forth below
principal amount of the above captioned Securities held by you for our account
(i) is owned by person(s) that are not United States person(s) (as defined
below), (ii) is owned by United States person(s) that are (a) foreign branches
of United States financial institutions (as defined in Section 1.165-
12(c)(1)(v) of the United States Treasury regulations) ("financial
institutions") purchasing for their own account or for resale, or (b) United
States person(s) who acquired the Securities through foreign branches of United
States financial institutions and who hold the Securities through such United
States financial institutions on the date hereof (and in either case (a) or
(b), each such United States financial institution hereby agrees, on its own
behalf or through its agent, that you may advise the Company or the Company's
agent that it will comply with the requirements of Section 165(j)(3)(A), (B) or
(C) of the United States Internal Revenue Code of 1986, as amended, and the
Treasury regulations thereunder), or (iii) is owned by United States or foreign
financial institution(s) for the purpose of resale during the restricted period
(as defined in Section 1.163-5(c)(2)(i)(D)(7) of the United States Treasury
regulations), and in addition if the owner of the Securities is a United States
or foreign financial institution described in clause (iii) above (whether or
not also described in clause (i) or (ii)) this is to further certify that such
financial institution has not acquired the Securities for the purpose of resale
directly or indirectly to a United States person or to a person within the
United States or its possessions.
We undertake to advise you promptly by tested telex on or prior to the date
on which you intend to submit your certification relating to the beneficial
interest in the temporary global Security held by you for our account in
accordance with your operating procedures if any applicable statement herein is
not correct on such date, and in the absence of any such notification it may be
assumed that this certification applies as of such date.
This certificate excepts and does not relate to principal amount of
Securities held by you for our account as to which we are not able to provide a
certificate in this form. We understand that exchange of such portion of the
temporary Global Security for definitive Bearer Securities or interests in a
permanent Global Security cannot be made until we are able to provide a
certificate in this form.
We understand that this certificate is required in connection with certain
tax laws and regulations of the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
"United States person" means any citizen or resident of the United States,
any corporation, partnership or other entity created or organized in or under
the laws of the United States and any estate or trust the income of which is
subject to United States federal income taxation regardless of its source.
"United States" means the United States of America (including the States and
the District of Columbia), its territories and possessions and other areas
subject to its jurisdiction.
Dated: , 20
[To be dated no earlier than the
10th day before the Exchange Date]
By: _________________________________
As, or as agent for, the
beneficial owner(s) of the
portion of the temporary global
Note to which this certificate
relates.
EXHIBIT B
[FORM OF CERTIFICATE TO BE GIVEN BY EURO-CLEAR AND
CLEARSTREAM LUXEMBOURG, S.A. IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL NOTE]
CERTIFICATE
----------------
[Insert title or sufficient description
of Securities to be delivered]
The undersigned certifies that, based solely on certifications we have
received in writing, by tested telex or by electronic transmission from member
organizations appearing in our records as persons being entitled to a portion
of the principal amount set forth below (our "Member Organizations")
substantially to the effect set forth in the Indenture as of the date hereof,
principal amount of the above-captioned Securities (i) is owned by
person(s) that are not United States person(s) (as defined below), (ii) is
owned by United States person(s) that are (a) foreign branches of United States
financial institutions (as defined in Section 1.165-12(c)(1)(v) of the United
States Treasury regulations) ("financial institutions") purchasing for their
own account or for resale, or (b) United States person(s) who acquired the
Securities through foreign branches of United States financial institutions and
who hold the Securities through such United States financial institutions on
the date hereof (and in either case (a) or (b), each such United States
financial institution has agreed, on its own behalf or through its agent, that
we may advise the Company or the Company's agent that it will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code
of 1986, as amended, and the Treasury regulations thereunder), or (iii) is
owned by United States or foreign financial institution(s) for the purpose of
resale during the restricted period (as defined in Section 1.163-
5(c)(2)(i)(D)(7) of the United States Treasury regulations), and in addition
United States or foreign financial institutions described in clause (iii) above
(whether or not also described in clause (i) or (ii)) have certified that they
have not acquired the Securities for the purpose of resale directly or
indirectly to a United States person or to a person within the United States or
its possessions.
We further certify (i) that we are not making available for exchange or
collection of any interest any portion of the temporary Global Security
excepted in such certifications and (ii) that as of the date hereof we have not
received any notification from any of our Member Organizations to the effect
that the statements made by such Member Organizations with respect to any
portion of the part submitted herewith for exchange or collection of any
interest are no longer true and cannot be relied upon as of the date hereof.
We understand that this certificate is required in connection with certain
tax laws and regulations of the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
"United States person" means any citizen or resident of the United States,
any corporation, partnership or other entity created or organized in or under
the laws of the United States and any estate or trust the income of which is
subject to United States federal income taxation regardless of its source.
"United States" means the United States of America (including the States and
the District of Columbia), its territories and possessions and other areas
subject to its jurisdiction.
Dated: , 20
[To be dated no earlier than the
Exchange Date]
By: _________________________________
[XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK,
BRUSSELS OFFICE, as
Operator of the Euro-Clear
System] [Clearstream Luxembourg,
S.A.]
