ITT CORPORATION,
Issuer
AND
THE FIRST NATIONAL BANK OF CHICAGO,
-----------------------
Indenture
-----------------------
Dated as of November , 1996
-----------------------
Senior Debt Securities
ITT CORPORATION
CROSS-REFERENCE TABLE
TIA Indenture
Section Section
310 (a)(1)............................................ 7.9
(a)(2)............................................ 7.9
(a)(3)............................................ N.A.
(a)(4)............................................ N.A.
(a)(5)............................................ 7.9
(b)........................7.8 and 7.10(a), (b) and (d)
(c)................................................N.A.
311..............................7.13(a) and (c)(1) and (2)
(b).............................................7.13(b)
(c)................................................N.A.
312..........................................5.1 and 5.2(a)
(b)..............................................5.2(b)
(c)..............................................5.2(c)
313..................................................5.4(a)
(b)(1).............................................N.A.
(b)(2)...........................................5.4(a)
(c)..............................................5.4(c)
(d)..............................................5.4(d)
314.....................................................5.3
(a)(4)..............................................4.7
(b)................................................N.A.
(c)(1).............................................13.6
(c)(2).............................................13.6
(c)(3).............................................N.A.
(d)................................................N.A.
(e)................................................13.6
(f)................................................N.A.
315.....................................................7.1
(b)................................................6.11
(c).................................................7.1
(d).................................................7.1
(e)................................................6.12
316.....................................................8.4
(a)(1)(A)...........................................6.9
(a)(1)(B)..........................................6.10
(a)(2).............................................N.A.
(b).................................................6.7
(c).................................................8.1
317.....................................................6.2
(b).................................................4.4
318...................................................13.11
N.A. means Not Applicable.
Note: This Cross-Reference Table shall not, for any purpose, be
deemed to be part of the Indenture.
TABLE OF CONTENTS
Page
RECITALS OF THE ISSUER.............................. 1
ARTICLE ONE
DEFINITIONS
SECTION 1.1. Certain Terms Defined.................. 1
SECTION 1.2. Other Defined Terms.................... 11
ARTICLE TWO
SECURITY FORMS
SECTION 2.1. Forms Generally........................ 12
SECTION 2.2. Form of Trustee's Certificate of
Authentication....................... 12
SECTION 2.3. Form of Trustee's Certificate of
Authentication by an
Authenticating Agent................. 12
SECTION 2.4. Securities Issuable in the Form of a
Global Security...................... 13
ARTICLE THREE
THE SECURITIES
SECTION 3.1. Amount Unlimited; Issuable in Series... 14
SECTION 3.2. Form and Denominations................. 17
SECTION 3.3. Authentication, Dating and Delivery
of Securities........................ 18
SECTION 3.4. Execution of Securities and Coupons.... 20
SECTION 3.5. Certificate of Authentication.......... 20
SECTION 3.6. Registration; Registration of
Transfer and Exchange................ 20
SECTION 3.7. Mutilated, Defaced, Destroyed,
Lost and Stolen Securities or
Coupons.............................. 23
SECTION 3.8. Payment of Interest; Interest Rights
Preserved............................ 24
SECTION 3.9. Cancellation of Securities;
Destruction Thereof.................. 25
SECTION 3.10. Temporary Securities................... 26
SECTION 3.11. Computation of Interest............... 26
SECTION 3.12. Currency and Manner of Payments in
Respect of Securities............... 27
SECTION 3.13. Compliance with Certain Laws and
Regulations......................... 31
ARTICLE FOUR
COVENANTS OF THE ISSUER
SECTION 4.1. Payment of Securities.................. 32
SECTION 4.2. Offices or Agency...................... 32
SECTION 4.3. Appointment To Fill a Vacancy in
Office of Trustee.................... 33
SECTION 4.4. Paying Agents.......................... 34
SECTION 4.5. Limitation on Sale and Lease-Backs..... 35
SECTION 4.6. Limitations on Liens................... 35
SECTION 4.7. Certificates to Trustee................ 38
ARTICLE FIVE
SECURITYHOLDERS LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 5.1. Issuer To Furnish Trustee Information as to
Names and Addresses of
Securityholders...................... 39
SECTION 5.2. Preservation and Disclosure of
Securityholders Lists................ 40
SECTION 5.3. Reports by the Issuer.................. 41
SECTION 5.4. Reports by the Trustee................. 42
ARTICLE SIX
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 6.1. Event of Default Defined; Acceleration of
Maturity; Waiver of Default........... 44
SECTION 6.2. Collection of Indebtedness by Trustee;
Trustee May Prove Debt................ 48
SECTION 6.3. Application of Proceeds................. 50
SECTION 6.4. Suits for Enforcement................... 51
SECTION 6.5. Restoration of Rights on Abandonment
of Proceedings........................ 51
SECTION 6.6. Limitations on Suits by Securityholders 52
SECTION 6.7. Unconditional Right of Securityholders
To Institute Certain Suits............ 52
SECTION 6.8. Powers and Remedies Cumulative;
Delay or Omission Not Waiver of
Default............................... 53
SECTION 6.9. Control by the Holders of Securities.... 53
SECTION 6.10. Waiver of Past Defaults................. 54
SECTION 6.11. Trustee To Give Notice of Default,
But May Withhold in Certain
Circumstances......................... 55
SECTION 6.12. Right of Court To Require Filing of
Undertaking To Pay Costs.............. 55
SECTION 6.13. Judgment Currency....................... 56
ARTICLE SEVEN
CONCERNING THE TRUSTEE
SECTION 7.1. Duties and Responsibilities of the
Trustee; During Default;
Prior to Default...................... 56
SECTION 7.2. Certain Rights of the Trustee........... 58
SECTION 7.3. Trustee Not Responsible for Recitals,
Disposition of Securities or
Application of Proceeds Thereof....... 59
SECTION 7.4. Trustee and Agents May Hold Securities;
Collections, etc...................... 59
SECTION 7.5. Moneys Held by Trustee.................. 59
SECTION 7.6. Compensation and Indemnification of
Trustee and Its Prior Claim........... 60
SECTION 7.7. Right of Trustee To Rely on
Officers' Certificate, etc............ 60
SECTION 7.8. Qualification of Trustee;
Conflicting Interests................. 61
SECTION 7.9. Persons Eligible for Appointment as
Trustee............................... 61
SECTION 7.10. Resignation and Removal; Appointment
of Successor Trustee.................. 61
SECTION 7.11. Acceptance of Appointment by
Successor Trustee..................... 63
SECTION 7.12. Merger, Conversion, Consolidation or
Succession to Business of Trustee..... 64
SECTION 7.13. Preferential Collection of Claims
Against the Issuer.................... 65
SECTION 7.14. Authenticating Agent.................... 69
ARTICLE EIGHT
CONCERNING THE HOLDERS OF SECURITIES
SECTION 8.1. Action by Holders....................... 71
SECTION 8.2. Proof of Execution of Instruments by
Holders of Securities................. 71
SECTION 8.3. Holders To Be Treated as Owners......... 72
SECTION 8.4. Securities Owned by Issuer Deemed
Not Outstanding....................... 72
SECTION 8.5. Right of Revocation of Action Taken..... 73
ARTICLE NINE
HOLDERS' MEETINGS
SECTION 9.1. Purposes of Meetings..................... 73
SECTION 9.2. Call of Meetings by Trustee.............. 74
SECTION 9.3. Call of Meetings by Issuer or Holders.... 74
SECTION 9.4. Qualifications for Voting................ 74
SECTION 9.5. Regulations.............................. 75
SECTION 9.6. Voting................................... 76
SECTION 9.7. No Delay of Rights by Meeting............ 76
ARTICLE TEN
SUPPLEMENTAL INDENTURES
SECTION 10.1. Supplemental Indentures Without Consent
of Securityholders..................... 76
SECTION 10.2 Supplemental Indentures with Consent
of Securityholders..................... 78
SECTION 10.3. Notice of Supplemental Indenture......... 80
SECTION 10.4. Effect of Supplemental Indenture......... 80
SECTION 10.5. Documents To Be Given to Trustee......... 80
SECTION 10.6. Notation on Securities and Coupons in
Respect of Supplemental Indentures...... 81
SECTION 10.7. Issuance of Securities by Successor
Corporation............................. 81
ARTICLE ELEVEN
CONSOLIDATION, MERGER OR SALE
SECTION 11.1. Issuer May Consolidate, Merge or Sell
on Certain Terms........................ 82
SECTION 11.2. Opinion of Counsel To Be Given to
Trustee................................. 83
ARTICLE TWELVE
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 12.1. Satisfaction and Discharge of Securities
of Any Series............................ 83
SECTION 12.2. Satisfaction and Discharge of Indenture.... 85
SECTION 12.3. Application of Trust Money................. 86
SECTION 12.4. Repayment of Moneys Held by Paying Agent... 86
SECTION 12.5. Return of Moneys Held by Trustee and
Paying Agent Unclaimed for Two Years..... 86
ARTICLE THIRTEEN
MISCELLANEOUS PROVISIONS
SECTION 13.1. Incorporators, Stockholders, Officers and
Directors of Issuer Exempt from
Individual Liability..................... 87
SECTION 13.2. Provisions of Indenture for the Sole
Benefit of Parties and Securityholders... 87
SECTION 13.3. Successors and Assigns of Issuer Bound
by Indenture............................. 87
SECTION 13.4. Notices to Holders; Waiver................. 87
SECTION 13.5. Addresses for Notices...................... 88
SECTION 13.6. Officers' Certificates and Opinions of
Counsel; Statements To Be Contained
Therein.................................. 89
SECTION 13.7. Cross References........................... 90
SECTION 13.8. Legal Holidays............................. 90
SECTION 13.9. Moneys of Different Currencies To Be
Segregated............................... 90
SECTION 13.10.Payment To Be in Proper Currency........... 90
SECTION 13.11.Conflict of Any Provision of Indenture
with Trust Indenture Act................. 91
SECTION 13.12.New York Law To Govern..................... 91
SECTION 13.13.Counterparts............................... 91
SECTION 13.14.Effect of Headings......................... 91
SECTION 13.15.Separability Clause........................ 92
ARTICLE FOURTEEN
REDEMPTION OF SECURITIES
SECTION 14.1. Applicability of Article................... 92
SECTION 14.2. Notice of Redemption; Selection
of Securities............................ 92
SECTION 14.3. Payment of Securities Called for
Redemption............................... 94
SECTION 14.4. Exclusion of Certain Securities from
Eligibility for Selection for Redemption 95
SECTION 14.5 Redemption Pursuant to Gaming Laws ........ 95
ARTICLE FIFTEEN
SINKING FUNDS
SECTION 15.1. Applicability of Article................... 96
SECTION 15.2. Satisfaction of Mandatory Sinking Fund
Payments with Securities................. 97
SECTION 15.3. Redemption of Securities for Sinking Fund.. 97
ARTICLE SIXTEEN
CONVERSION OF CONVERTIBLE SECURITIES
SECTION 16.1 Applicability of Article................... 100
SECTION 16.2. Right of Holders to Convert Securities..... 100
SECTION 16.3. Issuance of Shares of Underlying Stock on
Conversion............................... 101
SECTION 16.4. No Payment or Adjustment for Interest or
Dividencs................................ 102
SECTION 16.5 Adjustment on Conversion Price............. 102
SECTION 16.6 No Fractional Shares to be Issued.......... 113
SECTION 16.7 Effect of Reclassification, Consolidation,
Merger or Sale........................... 114
SECTION 16.8. Notice to Holders of Securities of a Series
Prior to Taking Certain Types of Action.. 115
SECTION 16.9. Covenant to Reserve Shares for Issuance on
Conversion of Securities................. 116
SECTION 16.10.Compliance with Governmental Requirements.. 116
SECTION 16.11.Payment of Taxes upon Certificates for
Shares Issued upon Conversion............ 116
SECTION 16.12.Trustee's Duties with Respect to Conversion
Provisions............................... 117
INDENTURE, dated as of November , 1996, between ITT
Corporation, a Nevada corporation (the "Issuer"), and The First
National Bank of Chicago, a national banking association, as Trustee
(the "Trustee").
RECITALS OF THE ISSUER
The Issuer is authorized to borrow money for its corporate
purposes and to issue debentures, notes or other evidences of
indebtedness therefor; and for its corporate purposes, the Issuer
has determined to make and issue its debentures, notes or other
evidences of indebtedness to be issued in one or more series (the
"Securities"), as hereinafter provided, up to such principal amount
or amounts as may from time to time be authorized by or pursuant to
the authority granted in one or more resolutions of the Board of
Directors.
All things necessary to make this Indenture a valid
agreement of the Issuer, in accordance with its terms, have been
done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That, in consideration of the premises and of the mutual
covenants herein contained and of the purchase and acceptance of the
Securities by the holders thereof and of the sum of One Dollar to
the Issuer duly paid by the Trustee at or before the ensealing and
delivery of these presents, and for other valuable consideration,
the receipt whereof is hereby acknowledged, and in order to declare
the terms and conditions upon which the Securities are to be issued,
IT IS HEREBY COVENANTED, DECLARED AND AGREED, by and between the
parties hereto, that all the Securities are to be executed,
authenticated and delivered subject to the further covenants and
conditions hereinafter set forth; and the Issuer, for itself and its
successors, does hereby covenant and agree to and with the Trustee
and its successors in said trust, for the benefit of those who shall
hold the Securities, or any of them, as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1. Certain Terms Defined. The following terms
(except as otherwise expressly provided or unless the context
otherwise clearly requires) for all purposes of this Indenture and
of any indenture supplemental hereto shall have the respective
meanings specified in this Section. All other terms used in this
Indenture that are defined in the Trust Indenture Act or the
definitions of which in the Securities Act are referred to in the
Trust Indenture Act or by Commission rule under the Trust
Indenture Act (except as herein otherwise expressly provided or
unless the context otherwise clearly requires) shall have the
meanings assigned to such terms in said Trust Indenture Act, rule
thereunder or in said Securities Act as in force at the date of this
Indenture. All accounting terms used and not expressly defined
herein shall have the meanings assigned to such terms in accordance
with generally accepted accounting principles, and the term
"generally accepted accounting principles" means such accounting
principles as are generally accepted at the time of any computation.
The words "herein", "hereof", and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision. The terms defined
in this Article have the meanings assigned to them in this Article
and include the plural as well as the singular.
"Authenticating Agent" means, with respect to any series of
Securities, an authenticating agent appointed by the Trustee with
respect to that series of Securities pursuant to Section 7.14.
"Authorized Newspaper" means a newspaper in an official
language of the country of publication customarily published at
least once a day, and customarily published for at least five days
in each calendar week, and of general circulation in such city or
cities as may be provided elsewhere in this Indenture or specified
as contemplated by Section 3.1. Where successive publications are
required to be made in Authorized Newspapers, the successive
publications may be made in the same or in different newspapers in
the same city meeting the foregoing requirements and in each case on
a Business Day in such city.
"Board of Directors" means either the Board of Directors of the
Issuer or any committee of such Board duly authorized to act
hereunder.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Issuer 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" means, with respect to any Security, a day
which, in the city (or in any of the cities, if more than one) in
which amounts are payable, as specified in the form of such
Security, is neither a legal holiday nor a day on which banking
institutions, including the Trustee, are authorized or required by
law or regulation or executive order to close.
"Capital Stock" means any and all shares, interests, warrants,
options, participations or other equivalents (however designated) of
corporate stock.
"Capitalized Lease-Back Obligation" means with respect to a
Principal Property, at any date as of which the same is to be
determined, the total net rental obligations of the Issuer or a
Restricted Subsidiary under a lease of such Principal Property
entered into as part of an arrangement to which the provisions of
Section 4.5 are applicable (or would have been applicable had such
Restricted Subsidiary been a Restricted Subsidiary at the time it
entered into such lease), discounted to the date of computation at
the rate of 9% per annum. The amount of the net rental obligation
for any calendar year under any lease shall be the sum of the rental
and other payments required to be paid in such calendar year by the
lessee thereunder, not including, however, any amounts required to
be paid by such lessee (whether or not therein designated as rental
or additional rental) on account of maintenance and repairs,
insurance, taxes, assessments, water rates and similar charges.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or if
at any time after the execution and delivery of this Indenture such
Commission is not existing and performing the duties now assigned to
it under the Trust Indenture Act of 1939, then the body performing
such duties at such time.
"Component Currency": See Section 3.12(i).
"Consolidated Net Tangible Assets" means the total of all
assets appearing on a consolidated balance sheet of the Issuer and
its Restricted Subsidiaries, prepared in accordance with generally
accepted accounting principles (and as of a date not more than
90 days prior to the date as of which Consolidated Net Tangible
Assets are to be determined), less the sum of the following items as
shown on said consolidated balance sheet:
(i) the book amount of all segregated intangible assets,
including, without limitation, such items as goodwill,
trademarks, trademark rights, trade names, trade name rights,
copyrights, patents, patent rights and licenses, and
unamortized debt discount and expense less unamortized debt
premium;
(ii) all depreciation, valuation and other reserves;
(iii) current liabilities;
(iv) any minority interest in the stock and surplus of
Restricted Subsidiaries of the Issuer;
(v) the investment of the Issuer and its Restricted
Subsidiaries in any Subsidiary of the Issuer which is not a
Domestic Subsidiary;
(vi) deferred income and deferred liabilities; and
(vii) other items deductible under generally accepted
accounting principles.
"Conversion Price": See Section 17.2.
"Corporate Trust Office" means the principal office of the
Trustee at which at any particular time its corporate trust business
shall be administered, except that with respect to presentation of
Registered Securities for payment or for registration of transfer
and exchange, presentation of Unregistered Securities for
registration and the location of the Securities Register, such term
shall mean such office or the agency of the Trustee designated for
such purpose.
"Coupon" means any interest coupon appertaining to any
Security.
"Coupon Security" means any Security authenticated and
delivered with one or more Coupons appertaining thereto.
"Currency Conversion Date": See Section 3.12(e).
"Currency Conversion Rate": See Section 6.13.
"Depositary" means, with respect to any series of Securities
for which the Issuer shall determine that such Securities will be
issued as a Global Security, The Depository Trust Company, New York,
New York, another clearing agency or any successor registered under
the Exchange Act or other applicable statute or regulation, which,
in each case, shall be designated by the Issuer pursuant to either
Section 2.4 or 3.1.
"Dollar" means the coin or currency of the United States of
America as at the time of payment is legal tender for the payment of
public and private debts.
"Dollar Determination Agent" means the New York clearing house
bank, if any, from time to time selected by the Issuer for purposes
of Section 3.12.
"Dollar Equivalent of the Currency Unit": See Section 3.12(h).
"Dollar Equivalent of the Foreign Currency": See
Section 3.12(g).
"ECU" means the European Currency Unit as defined and revised
from time to time by the Council of the European Communities.
"European Communities" means the European Economic Community,
the European Coal and Steel Community, and the European Atomic
Energy Community.
"Event of Default" means any event or condition specified as
such in Section 6.1 which shall have continued for the period of
time, if any, therein designated.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Rate Officer's Certificate" means a certificate
setting forth (i) the applicable Official Currency Unit Exchange
Rate and (ii) the Dollar or Foreign Currency amounts of principal,
premium, if any, and interest, if any, respectively (on an aggregate
basis and on the basis of a Security having a principal amount of
1,000 in the relevant currency unit), payable on the basis of such
Official Currency Unit Exchange Rate, signed by the treasurer or any
assistant treasurer of the Issuer and delivered to the Trustee.
"Fair Value" when used with respect to property, means the fair
value as determined in good faith by the Board of Directors.
"Foreign Currency" means a currency issued by the government of
any country other than the United States.
"Fully Registered Security" means any Security registered as to
principal and interest, if any.
"Gaming Authority" means the Nevada Gaming Commission, the
Nevada Gaming Control Board, the New Jersey Casino Control
Commission, the New Jersey Division of Gaming Enforcement or any
similar commission or agency of any state or other legal
jurisdiction having jurisdiction over the gaming activities or any
proposed or future gaming activities of the Issuer or a Subsidiary
of the Issuer or any successor thereto.
"Gaming Laws" means all laws and regulations pursuant to which
any Gaming Authority possesses licensing or permit authority over
gaming activities conducted by the Issuer or any of its Subsidiaries
within its jurisdiction.
"Global Security" means, with respect to any series of
Securities, a Security executed by the Issuer and authenticated and
delivered by the Trustee to the Depositary or pursuant to the
Depositary's instruction, all in accordance with this Indenture and
pursuant to an Issuer Order, which (i) shall be registered in the
name of the Depositary or its nominee and (ii) shall represent, and
shall be denominated in an
amount equal to the aggregate principal amount of, all of the
Outstanding Securities of such series or any portion thereof, in
either case having the same terms, including, without limitation,
the same issue date, date or dates on which principal is due, and
interest rate or method of determining interest.
"Government Obligations" means, with respect to the Securities
of any series, securities which are (i) direct obligations of the
government which issued the currency in which the Securities of such
series are denominated or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the
government which issued the currency in which the Securities of such
series are denominated the payment of which is unconditionally
guaranteed by such government, and which, in either case, are full
faith and credit obligations of such government and are not callable
or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank (as defined in
Section 3(a)(2) of the Securities Act) as custodian with respect to
any such Government Obligation or a specific payment of interest on
or principal of any such Government Obligation held by such
custodian for the account of the holder of such depository receipt;
provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the
custodian in respect of the Government Obligation or the specific
payment of interest on or principal of the Government Obligation
evidenced by such depository receipt.
"Holder" means, with respect to a Registered Security, any
person in whose name a particular Registered Security is registered
in the Securities Register; with respect to an Unregistered
Security, the bearer of such Unregistered Security; and, with
respect to a Coupon, the bearer thereof.
"Indenture" means this instrument as originally executed and
delivered or, if amended or supplemented as herein provided, as so
amended or supplemented, and shall include the forms and terms of
particular series of Securities established as contemplated
hereunder, regardless of the currency or currency unit in which such
Securities are denominated.
"Interest" means, when used with respect to any non-interest
bearing Security, interest payable after Maturity.
"Interest Payment Date" means the Stated Maturity of an
installment of interest on the Securities of any series.
"Issuer" means ITT Corporation, a Nevada corporation, and,
subject to Article Eleven, its successors and assigns.
"Issuer Order" and "Issuer Request" mean a written order and a
written request, respectively, signed in the name of the Issuer by
the chairman or any vice chairman or the president or any vice
president and by the treasurer or any assistant treasurer or the
secretary or any assistant secretary of the Issuer and delivered to
the Trustee.
"Market Exchange Rate": See Section 3.12(i).
"Maturity" means, when used with respect to any Security, the
date on which the principal of such Security becomes due and payable
as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the
chairman or any vice chairman or the president or any vice president
and by the treasurer or any assistant treasurer or the secretary or
any assistant secretary of the Issuer and delivered to the Trustee.
Each such certificate shall include the statements provided for in
Section 13.6 if and to the extent required thereby.
"Official Currency Unit Exchange Rate" means, with respect to
any payment to be made hereunder, the exchange rate between the
relevant currency unit and the Dollar calculated by the agency or
entity specified pursuant to Section 3.1 for the Securities of the
relevant series (in the case of the ECU, calculated by the
Commission of the European Communities, and currently based on the
rates in effect at 2:30 p.m., Brussels time, on the exchange markets
of the Component Currencies of the ECU), on the second Business Day
(in the city in which such agency or entity, as applicable, has its
principal office) immediately preceding the applicable payment date.
"Opinion of Counsel" means an opinion in writing signed by
legal counsel who may be an employee of or counsel to the Issuer or
who may be other counsel satisfactory to the Trustee. Each such
opinion shall include the statements provided for in Section 13.6 if
and to the extent required thereby.
"Original Issue Date" of any Security (or portion thereof)
means the earlier of (a) the date of such Security or (b) the date
of any Security (or portion thereof) for which such Security was
issued (directly or indirectly) on registration of transfer,
exchange or substitution.
"Original Issue Discount Security" means (i) any Security that
provides for an amount less than the principal amount thereof to be
due and payable upon a declaration of acceleration of the maturity
thereof pursuant to Section 6.1 and (ii) any
other Security deemed an Original Issue Discount Security for United
States Federal income tax purposes.
"Outstanding" means (except as otherwise provided in
Section 7.8 and subject to the provisions of Section 8.4), when used
with reference to Securities, as of any particular time, all
Securities authenticated and delivered by the Trustee under this
Indenture, except
(a) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or
redemption of which moneys in the necessary amount shall have
been deposited in trust with the Trustee or with any Paying
Agent (other than the Issuer) or shall have been set aside,
segregated and held in trust by the Issuer for the Holders of
such Securities (if the Issuer shall act as its own Paying
Agent); provided that, if such Securities, or portions thereof,
are to be redeemed prior to the maturity thereof, notice of
such redemption shall have been given as herein provided, or
provision satisfactory to the Trustee shall have been made for
giving such notice;
(c) Securities in substitution for which other Securities
shall have been authenticated and delivered, or which shall
have been paid, pursuant to the terms of Section 3.7 (except
with respect to any such Security as to which proof
satisfactory to the Trustee is presented that such Security is
held by a person in whose hands such Security is a legal, valid
and binding obligation of the Issuer); and
(d) Securities which have been converted into Capital
Stock in accordance with Article Seventeen hereof, if the terms
of such Securities provide for convertibility pursuant to
Section 3.1.
In determining whether the Holders of the requisite principal
amount of Outstanding Securities of any or all series have given any
request, demand, authorization, direction, notice, consent or waiver
hereunder, the principal amount of an Original Issue Discount
Security that shall be deemed to be Outstanding for such purposes
shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon a declaration of
acceleration of the maturity thereof pursuant to Section 6.1.
"Overdue Rate" means, with respect to any series of Securities,
the rate designated as such in or pursuant to the resolution of the
Board of Directors or the
supplemental indenture, as the case may be, relating to such series
as contemplated by Section 3.1.
"Paying Agent" means any person authorized by the Issuer to pay
the principal of, or premium, if any, or interest, if any, on, any
Securities on behalf of the Issuer.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint stock
company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
"Place of Payment" means, when used with respect to the
Securities of any series, the place or places where the principal
of, premium, if any, and interest, if any, on the Securities of such
series are payable as specified pursuant to Section 3.1.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as
that evidenced by such particular Security; and, for the purposes of
this definition, any Security authenticated and delivered under
Section 3.7 in lieu of a lost, destroyed or stolen Security shall be
deemed to evidence the same debt as the lost, destroyed or stolen
Security.
"Principal Property" means any single property owned by the
Issuer or any Restricted Subsidiary having a gross book value in
excess of 2% of Consolidated Net Tangible Assets, except any such
property or portion thereof which the Board of Directors by
resolution declares is not of material importance to the total
business conducted by the Issuer and its Restricted Subsidiaries as
an entirety.
"Redemption Date" means, when used with respect to any Security
to be redeemed, that date fixed for such redemption by or pursuant
to this Indenture.
"Redemption Price" means, when used with respect to any
Security to be redeemed, the price, in Dollars or the Foreign
Currency or currency unit in which such Security is denominated or
which is otherwise provided for pursuant to this Indenture, at which
it is to be redeemed pursuant to this Indenture.
"Registered Holder" means, with respect to a Registered
Security, the Person in whose name such Security is registered in
the Securities Register.
"Registered Security" means any Security registered as to
principal.
"Required Currency": See Section 13.10.
"Responsible Officer" means, when used with respect to the
Trustee, any officer in the Corporate Trust Office of the Trustee
and any other officer of the Trustee to whom any corporate trust
matter is referred because of his knowledge of and familiarity with
the particular subject.
"Restricted Subsidiary" means any Subsidiary other than an
Unrestricted Subsidiary.
"Security" or "Securities" (except as otherwise provided in
Section 7.8) has the meaning stated in the recitals of this
Indenture and more particularly shall mean any Registered or
Unregistered Securities authenticated and delivered under this
Indenture.
"Securities Register" and "Securities Registrar": See
Section 3.6.
"Specified Amount": See Section 3.12(i).
"Stated Maturity" means, when used with respect to any Security
or any installment of interest thereon, the date specified in such
Security or the Coupon, if any, representing such installment of
interest, as the fixed date on which the principal of such Security
or such installment of interest is due and payable.
"Securities Act" means the Securities Act of 1933, as amended.
"Subsidiary" means any corporation more than 50% of the voting
stock of which at the time is owned or controlled, directly or
indirectly, by the Issuer or the accounts of which are in fact
consolidated with the accounts of the Issuer.
"Trustee" means the person identified as "Trustee" in the first
paragraph of this Indenture and, subject to the provisions of
Article Seven, shall also include any successor trustee. If there
shall be more than one Trustee at any one time, "Trustee" shall mean
each such Trustee and shall apply to each such Trustee only with
respect to those series of Securities with respect to which it is
serving as Trustee.
"Trust Indenture Act" (except as otherwise provided in
Sections 10.1 and 10.2) means the Trust Indenture Act of 1939, as
amended by the Trust Indenture Reform Act of 1990, and as in force
at the date as of which this Indenture was originally executed.
"Unregistered Security" means any Security that is not
registered as to principal.
"Unrestricted Subsidiary" means any Subsidiary which has been
designated by Board Resolution as an Unrestricted Subsidiary, other
than any such Subsidiary as to which such a designation has been
rescinded by Board Resolution and not thereafter, or after some
subsequent such rescission, restored by Board Resolution, or any
Subsidiary 50% or less of the voting stock of which is owned
directly by the Issuer and/or one or more Restricted Subsidiaries. A
Subsidiary may not be designated as (or otherwise permitted to
become) an Unrestricted Subsidiary unless, immediately after such
Subsidiary becomes an Unrestricted Subsidiary, such Subsidiary would
not own any capital stock of, or hold any indebtedness of, any
Restricted Subsidiary. A designation as an Unrestricted Subsidiary
may not be rescinded (or an Unrestricted Subsidiary otherwise
permitted to become a Restricted Subsidiary) unless such Subsidiary
(i) is not a party to any lease which it would have been prohibited
by Sec- tion 4.5 from entering into had it been a Restricted
Subsidiary at the time it entered into such lease, unless (x) such
Subsidiary had not been a Restricted Subsidiary prior to its
entering into such lease, or (y) the property subject to such lease
shall be owned by the Issuer and/or one or more of its Restricted
Subsidiaries, or (z) such Subsidiary would not be prohibited by
Section 4.5 from entering into such lease immediately after it
becomes a Restricted Subsidiary, and (ii) does not have outstanding
upon any of its property any mortgage, pledge or other lien which it
would be prohibited by Section 4.6 from creating, suffering to be
created, or assuming, immediately after it becomes a Restricted
Subsidiary. Upon any designation of a Subsidiary as an Unrestricted
Subsidiary, or any rescission of any such designation, the Issuer
shall, within 30 days of the date of the adoption of the Board
Resolution effecting such action, deliver to the Trustee a copy of
such Board Resolution together with an Officers' Certificate to the
effect that such action is in compliance with the foregoing
provisions of this paragraph.
"Valuation Date": See Section 3.12(e).
"Vice President" when used with respect to the Issuer means any
vice president, whether or not designated by a number or a word or
words added before or after the title of "vice president".
SECTION 1.2. Other Defined Terms. Certain other terms are
defined in Article Seven.
ARTICLE TWO
SECURITY FORMS
SECTION 2.1. Forms Generally. The Securities of each series,
and the Coupons if any, to be attached thereto, shall be in
substantially the form as shall be established pursuant to
Section 3.1 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 or designation and such legends or
endorsements placed thereon as the Issuer may deem appropriate and
as are not inconsistent with the provisions of this Indenture or as
may be required to comply with any law or with any rules or
regulations made pursuant thereto or with any rules or regulations
of any securities exchange on which any of the Securities may be
listed, or as may, consistently herewith, be determined by the
officers executing such Securities, and Coupons, if any, as
evidenced by their execution of the Securities, and Coupons, if any.
The definitive Securities, and Coupons, if any, of each series
shall be printed, lithographed or engraved on steel engraved borders
or may be produced in any other manner, all as determined by the
officers executing such Securities, and Coupons, if any, as
evidenced by their execution of such Securities, and Coupons, if
any, subject, with respect to the Securities of any series, to the
rules of any securities exchange on which the Securities of such
series are listed.
SECTION 2.2. Form of Trustee's Certificate of Authentication.
The Trustee's Certificate of Authentication on all Securities shall
be in substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
[NAME OF TRUSTEE]
as Trustee
By____________________________
Authorized Officer
SECTION 2.3. Form of Trustee's Certificate of Authentication
by an Authenticating Agent. If at any time there shall be an
Authenticating Agent appointed
with respect to any series of Securities, then the Trustee's
Certificate of Authentication by such Authenticating Agent on all
Securities of such series shall be in substantially the following
form:
[NAME OF TRUSTEE]
as Trustee
By [NAME OF AUTHENTICATING AGENT],
Authenticating Agent
By______________________________
Authorized Officer
SECTION 2.4. Securities Issuable in the Form of a Global
Security. (a) If the Issuer shall establish pursuant to
Section 3.1 that the Securities of a particular series are to be
issued in whole or in part in one or more Global Securities, then
the Issuer shall execute and the Trustee shall, in accordance
with Section 3.3 and the Issuer Order delivered to the Trustee
thereunder, authenticate and deliver a Global Security or
Securities which (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 such
Global Security or Securities, (ii) shall be registered in the
name of the Depositary for such Global Security or Securities or
its nominee, (iii) shall be delivered by the Trustee to the
Depositary or pursuant to the Depositary's instruction and
(iv) shall bear a legend substantially to the following effect:
"Except as otherwise provided in Section 2.4 of the Indenture,
this Security may be transferred, in whole but not in part, only
to a nominee of the Depositary, or by a nominee of the Depositary
to the Depositary, or to a successor Depositary or to a nominee
of such successor Depositary."
(b) Notwithstanding any other provision of this Section 2.4
or of Section 3.6, the Global Security of a series may be
transferred, in whole but not in part and in the manner provided
in Section 3.6, only to a nominee of the Depositary, for such
series or by a nominee of the Depositary to the Depositary or to
a successor Depositary for such series selected or approved by
the Issuer or to a nominee of such successor Depositary.
(c) If at any time the Depositary for a series of
Securities notifies the Issuer that it is unwilling or unable to
continue as Depositary for such series or if at any time the
Depositary for such series shall no longer be registered or in
good standing under the Exchange Act or other applicable statute
or regulation and a successor Depositary for such series is not
appointed by the Issuer within 90 days after the
Issuer receives such notice or becomes aware of such condition,
as the case may be, this Section 2.4 shall no longer be
applicable to the Securities of such series and the Issuer will
execute, and the Trustee will, in accordance with Section 3.3 and
an Issuer Order delivered to the Trustee, authenticate and
deliver Fully Registered Securities of such series, in authorized
denominations, and in an aggregate principal amount equal to the
principal amount of the Global Security of such series in
exchange for such Global Security. In addition, the Issuer may at
any time determine that the Securities of any series shall no
longer be represented by a Global Security and that the
provisions of this Section 2.4 shall no longer apply to the
Securities of such series. In such event the Issuer will execute
and the Trustee, upon receipt of an Officers' Certificate
evidencing such determination by the Issuer, will authenticate
and deliver Fully Registered Securities of such series, in
authorized denominations, and in an aggregate principal amount
equal to the principal amount of the Global Security of such
series in exchange for such Global Security. Upon the exchange of
the Global Security for Fully Registered Securities issued in
exchange for the Global Security pursuant to this Section 2.4(c),
(i) such Global Security shall be cancelled by the Trustee, and
(ii) Fully Registered Securities shall be registered in such
names and in such authorized denominations as the Depositary,
pursuant to instructions from its direct or indirect participants
or otherwise, shall instruct or inform the Trustee. The Trustee
shall deliver such Securities to the Persons in whose names such
Securities are so registered.
ARTICLE THREE
THE SECURITIES
SECTION 3.1. 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 the authority granted in a
Board Resolution or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any
series:
(1) the form of the Securities of any series and the
Coupons, if any, appertaining thereto:
(2) the title of the Securities of the series (which
shall distinguish the Securities of the series from all
other Securities);
(3) any limit upon the aggregate principal amount of
the Securities of the series that may be authenticated and
delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities of
the series pursuant to Section 2.4, 3.6, 3.7, 3.10 or 14.3);
(4) the date or dates on which such Securities may be
issued;
(5) the date or dates, which may be serial, on which
the principal of, and premium, if any, on, the Securities of
such series shall be payable;
(6) the rate or rates, or the method of determination
thereof, at which the Securities of such series shall bear
interest, if any, the date or dates from which such interest
shall accrue, the Interest Payment Dates on which such
interest shall be payable and, in the case of Registered
Securities, the record dates, if other than as set forth in
Section 3.8, for the determination of Holders to whom
interest is payable, and whether any special terms and
conditions relating to the payment of additional amounts in
respect of payments on the Securities of such series shall
in the event of certain changes in the United States Federal
income tax laws apply to Unregistered Securities of such
series or to Registered Securities of such series;
(7) the place or places where the principal of, and
premium, if any, and interest, if any, on Securities of the
series shall be payable (if other than as provided in
Section 4.2);
(8) the provisions, if any, establishing the price or
prices at which, the period or periods within which and the
terms and conditions (including, without limitation, the
type of consideration to be paid by the Issuer) upon which
Securities of the series may be redeemed, in whole or in
part, at the option of the Issuer, pursuant to any sinking
fund or otherwise, and whether any special terms and
conditions of redemption shall apply to Unregistered
Securities of such series or to Registered Securities of
such series;
(9) the obligation, if any, of the Issuer to redeem,
purchase or repay Securities of the series pursuant to any
sinking fund or analogous provisions or at the option of a
Holder thereof and the price or prices, in the currency or
currency unit in which the Securities of such series are
payable, at which and the period or periods within which and
the terms and conditions upon which Securities of the series
shall be redeemed, purchased or repaid, in whole or in part,
pursuant to such obligation;
(10) if other than denominations of 1,000 and any
integral multiple thereof, in Dollars or the Foreign
Currency or currency unit in which the Securities of such
series are denominated, the denominations in which
Securities of such series shall be issuable;
(11) if other than the principal amount thereof, the
portion of the principal amount of Securities of such series
which shall be payable upon declaration of acceleration of
the maturity thereof pursuant to Section 6.1 or provable in
bankruptcy pursuant to Section 6.2.
(12) whether payment of the principal of, premium, if
any, and interest, if any, on the Securities of such series
shall be with or without deduction for taxes, assessments or
governmental charges, and with or without reimbursement of
taxes, assessments or governmental charges paid by Holders;
(13) any Events of Default with respect to the
Securities of such series, if not set forth herein;
(14) if other than the rate of interest stated in the
title of the Securities of such series, the applicable
Overdue Rate;
(15) in case the Securities of such series do not bear
interest, the applicable dates for the purpose of clause (a)
of Section 5.1;
(16) whether the Securities of such series are to be
issued as Regis- tered Securities (with or without Coupons)
or Unregistered Securities or both, and, if Unregistered
Securities or Coupon Securities are issued, whether
Unregistered Securities or Coupon Securities of such series
may be exchanged for Registered Securities or Fully
Registered Securities of such series and whether Registered
Securities or Fully Registered Securities of such series may
be exchanged for Unregistered Securities of such series and
the circumstances under which and the place or places where
any such exchanges, if permitted, may be made;
(17) the currency or currencies, or currency unit or
currency units, whether in Dollars or a Foreign Currency or
currency unit, in which the principal of, and premium, if
any, and interest, if any, on the Securities of such series
or any other amounts payable with respect thereto,
including, without limitation, Coupons, are to be
denominated, payable, redeemable or repurchaseable, as the
case may be, and whether such principal, premium, if any,
and interest, if any, payable otherwise than in Dollars may,
at the option of the holders of any Security of such series,
also be payable in Dollars;
(18) if other than as set forth in Section 12.1,
provisions for the satisfaction and discharge of the
indebtedness represented by the Securities of such series;
(19) whether the Securities of such series are
issuable as a Global Security and, in such case, the
identity of the Depositary for such series;
(20) if the amount of payment of principal of, and
premium, if any, or interest, if any, on the Securities of
such series may be determined with reference to an index,
formula or other method based on a coin, currency, or
currency unit other than that in which the Securities are
stated to be payable or otherwise, the manner in which such
amounts shall be determined;
(21) whether the Securities of such series will be
convertible into any class or combination of classes of
Capital Stock, and the terms and conditions upon which such
conversion shall be effected (including, without limitation,
the Conversion Price, the conversion period, any provision
which gives the Issuer the right, at its option, to pay to a
Holder of the Securities a specified cash amount in lieu of
Capital Stock issuable upon such conversion, and any other
provisions in addition to or in lieu of those set forth in
this Indenture relative to such obligation);
(22) any trustees, authenticating or paying agents,
warrant agents, conversion agents, transfer agents or
registrars or any other agents with respect to the
Securities of such series, and, if the Securities of such
series are to be denominated and payable in any currency
other than Dollars, the initial Dollar Determination Agent;
and
(23) any other terms of such series (which terms shall
not be incon- sistent with the provisions of this
Indenture).
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 authority granted in such
resolution of the Board of Directors or in any such indenture
supplemental hereto.
SECTION 3.2. Form and Denominations. In the absence of any
specification pursuant to Section 3.1 with respect to the
Securities of any series, the Securities of such series shall be
issuable as Fully Registered Securities in denominations of
$1,000 and any integral multiple thereof, and shall be payable in
Dollars.
SECTION 3.3. Authentication, Dating and Delivery of
Securities. At any time and from time to time after the execution
and delivery of this Indenture, the Issuer may deliver Securities
of any series, with appropriate Coupons, if any, attached
thereto, executed by the Issuer to the Trustee for
authentication. Except as otherwise provided in this Article
Three, the Trustee shall thereupon authenticate and deliver, or
cause to be authenticated and delivered, said Securities to or
upon Issuer Order, without any further action by the Issuer. In
authenticating such Securities and accepting the additional
responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive, prior to
the initial authentication of such Securities, and (subject to
Section 7.1) shall be fully protected in relying upon:
(1) a Board Resolution relating thereto and, if
applicable, an appropriate record of any action taken
pursuant to such Board Resolution, in each case certified by
the secretary or an assistant secretary of the Issuer;
(2) an executed supplemental indenture, if any,
relating thereto;
(3) an Officers' Certificate which shall state that
all conditions precedent provided for in this Indenture
relating to the issuance of such Securities have been
complied with, that no Event of Default with respect to any
series of Securities has occurred and is continuing and that
the issuance of such Securities does not constitute and will
not result in (i) any Event of Default or any event or
condition, which, upon the giving of notice or the lapse of
time or both, would become an Event of Default or (ii) any
default under the provisions of any other instrument or
agreement by which the Issuer is bound; and
(4) an Opinion of Counsel, which shall state
(a) that the form and the terms of such
Securities and Coupons, if any, have been established
by or pursuant to the authority granted in a Board
Resolution delivered to the Trustee pursuant to
subparagraph (1) above or by a supplemental indenture
delivered to the Trustee pursuant to subparagraph (2)
above as provided by Section 3.1 and in accordance with
the provisions of this Indenture;
(b) that such Securities, when authenticated and
delivered by the Trustee and issued by the Issuer in
the manner and subject to any conditions specified in
such Opinion of Counsel, will constitute (together with
the Coupons, if any appertaining thereto) valid and
binding obligations of the Issuer enforceable in
accordance with their terms, subject to bankruptcy,
insolvency, reorganization and other laws
of general applicability relating to or affecting the
enforcement of creditors' rights and to general equity
principles;
(c) that the Issuer has the corporate power to
issue such Securities and Coupons, if any, and has duly
taken all necessary corporate action with respect to
such issuance;
(d) that the issuance of such Securities and
Coupons, if any, will not contravene the charter or
by-laws of the Issuer or result in any violation of any
of the terms or provisions of any law or regulation or
of any indenture, mortgage or other agreement known to
such counsel by which the Issuer or any of its
Subsidiaries is bound;
(e) that all laws and requirements in respect of
the execution and delivery by the Issuer of the
Securities and Coupons, if any, and the related
supplemental indenture, if any, have been complied with
and that authentication and delivery of such Securities
and Coupons, if any, and the execution and delivery of
the related supplemental indenture, if any, by the
Trustee will not violate the terms of the Indenture;
and
(f) such other matters as the Trustee may
reasonably request.
Notwithstanding the provisions of Section 3.1 and of this
Section 3.3, 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 or supplemental indenture
otherwise required pursuant to Section 3.1 or the Issuer Order,
Officers' Certificate and Opinion of Counsel required pursuant to
this Section 3.3 at or prior to the time of authentication of
each Security of such series if such documents are delivered at
or prior to the time of authentication upon original issuance of
the first Security of such series to be issued; provided,
however, that any subsequent request by the Issuer to the Trustee
to authenticate Securities of such series shall constitute a
representation and warranty by the Issuer that as of the date of
such request the statements made in the Officers' Certificate
delivered pursuant to Section 3.3(3) shall be true and correct on
the date thereof as if made on and as of the date thereof.
The Trustee shall have the right to decline to authenticate
and deliver any Securities together with any Coupons appertaining
thereto under this Section if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken by
the Issuer or if the Trustee in good faith by its board of
directors or board of trustees, executive committee, or a trust
committee of directors or trustees and/or responsible officers
shall determine that such action would expose the Trustee to
personal liability to existing Holders.
Each Registered Security shall be dated the date of its
authentication.
SECTION 3.4. Execution of Securities and Coupons. The
Securities and Coupons, if any, appertaining thereto, shall be
signed in the name of and on behalf of the Issuer by both (a) its
chairman or any vice chairman or its president or any Vice
President and (b) by its treasurer or any assistant treasurer or
its secretary or any assistant secretary, under its corporate
seal which may, but need not, be attested. Such signatures may be
the manual or facsimile signatures of such officers. The seal of
the Issuer may be in the form of a facsimile thereof and may be
impressed, affixed, imprinted or otherwise reproduced thereon.
Typographical and other minor errors or defects in any such
reproduction of the seal or any such signature shall not affect
the validity or enforceability of any Security or Coupon that has
been duly authenticated and delivered by the Trustee.
In case any officer of the Issuer who shall have signed any
of the Securities or Coupons, if any, shall cease to be such
officer before the Security or Coupons, if any, so signed shall
be authenticated (in the case of the Securities) and delivered by
or on behalf of the Trustee or disposed of by the Issuer, such
Securities and Coupons, if any, appertaining thereto nevertheless
may be authenticated (in the case of the Securities) and
delivered or disposed of as though the person who signed such
Securities or Coupons, if any, had not ceased to be such officer
of the Issuer; and any Security or Coupon, if any, may be signed
on behalf of the Issuer by such persons as, at the actual date of
the execution of such Security or Coupon, if any, shall be the
proper officers of the Issuer, although at the date of the
execution and delivery of this Indenture any such person was not
such an officer.
The Trustee shall not authenticate or deliver any Coupon
Security until any matured Coupons appertaining thereto have been
detached and canceled, except as otherwise provided or permitted
by this Indenture.
SECTION 3.5. Certificate of Authentication. No Security or
Coupon appertaining thereto shall be entitled to the benefits of
this Indenture or be valid or obligatory for any purpose, unless
there appears on such Security a certificate of authentication
substantially in the form hereinbefore recited, executed by or on
behalf of the Trustee by manual signature. Such certificate by or
on behalf of the Trustee upon any Security executed by the Issuer
shall be conclusive evidence that the Security so authenticated
has been duly authenticated and delivered hereunder and that the
Holder is entitled to the benefits of this Indenture.
SECTION 3.6. Registration; Registration of Transfer and
Exchange. Subject to the conditions set forth below, Securities
of any series may be exchanged for a like aggregate principal
amount of Securities of the same series of other authorized
denominations. Securities to be exchanged shall be surrendered
together, in the case of Coupons Securities, with all unmatured
Coupons and matured Coupons in default appertaining thereto, at
the offices or agencies to be maintained by the Issuer for such
purposes as provided in Section 4.2, and the Issuer shall execute
and register and the Trustee or any Authenticating Agent shall
authenticate and deliver in exchange therefor the Security or
Securities which the Holder making the exchange shall be entitled
to receive.
The Issuer shall keep or cause to be kept, at one of said
offices or agencies, a register for each series of Securities
issued hereunder which may include Registered Securities
(hereinafter collectively referred to as the "Securities
Register") in which, subject to such reasonable regulations as it
may prescribe, and subject also to the provisions of Section 2.4,
the Issuer shall provide for the registration of Registered
Securities of such series and shall register the transfer of
Registered Securities of such series as in this Article Three
provided. The Securities Register shall be in written form or in
any other form capable of being converted into written form
within a reasonable time. The Trustee and the Authenticating
Agent are hereby appointed "Securities Registrars" for the
purpose of registering Registered Securities and registering
transfers of Registered Securities as herein provided. Subject to
the provisions of Section 2.4, upon due presentment for
registration of transfer of any Security of any series at any
such office or agency, the Issuer shall execute and register and
the Trustee or any Authenticating Agent shall authenticate and
deliver in the name of the transferee or transferees a new
Registered Security or Securities of the same series for an equal
aggregate principal amount.
Subject to the provisions of Section 2.4, at the option of
the Holder thereof, Securities of any series, whether Registered
Securities or Unregistered Securities, which by their terms are
registrable as to principal only or as to principal and interest,
may, to the extent and under the circumstances specified pursuant
to Section 3.1, be exchanged for such Registered Securities with
Coupons or Fully Registered Securities of such series, as may be
issued by the terms thereof. Securities of any series, whether
Registered Securities or Unregistered Securities, which by their
terms provide for the issuance of Unregistered Securities, may
not, except to the extent and under the circumstances specified
pursuant to Section 3.1, be exchanged for Unregistered Securities
of such series. Unregistered Securities of any series issued in
exchange for Registered Securities of such series between the
record date for such Registered Securities and the next Interest
Payment Date will be issued without the Coupon relating to such
Interest Payment Date, and Unregistered Securities surrendered in
exchange for Registered Securities between such dates shall be
surren- dered without the Coupon relating to such Interest
Payment Date.
Upon presentation for registration of any Unregistered
Security of any series which by its terms is registrable as to
principal, at the office or agency of the Issuer to be maintained
as provided in Section 4.2, such Security shall be registered as
to principal in the name of the Holder thereof and such
registration shall be noted on such Security. Any Security so
registered shall be transferable on the Securities Register of
the Issuer upon presentation of such Security at such office or
agency for similar notation thereon, but, to the extent permitted
by law, such security may be discharged from registration by
being in a like manner transferred to bearer whereupon
transferability by delivery shall be restored. To the extent
permitted by law, Unregistered Securities shall continue to be
subject to successive registrations and discharges from
registration at the option of the Holders thereof.
Unregistered Securities and Coupons shall be transferred by
delivery. All Securities presented for registration of transfer
or for exchange, redemption or payment shall (if so required by
the Issuer or the Securities Registrar) be duly endorsed by, or
be accompanied by, a written instrument or instruments of
transfer in form satisfactory to the Issuer and the Securities
Registrar duly executed by the Holder thereof or his attorney
duly authorized in writing.
Each Security issued upon registration of transfer or
exchange of Securities pursuant to this Section 3.6 shall be the
valid obligation of the Issuer, evidencing the same indebtedness
and entitled to the same benefits under this Indenture as the
Security or Securities surrendered upon registration of such
transfer or exchange.
No service charge shall be made to a Holder for any
registration of transfer or exchange of Securities, but the
Issuer may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities,
other than exchanges pursuant to Section 3.10, 10.6 or 14.3 not
involving any transfer.
The Issuer shall not be required (a) to issue, exchange or
register the transfer of any Securities of any series during a
period beginning at the opening of business 15 days before the
day of the mailing of a notice of redemption of Securities of
such series and ending at the close of business on the day of
such mailing, or (b) to exchange or register the transfer of any
Securities selected, called or being called for redemption
except, in the case of any Security to be redeemed in part, the
portion thereof not to be so redeemed. None of the Issuer, the
Trustee, any Paying Agent or Securities Registrar will have any
responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership
interests of a Global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership
interest.
SECTION 3.7. Mutilated, Defaced, Destroyed, Lost and Stolen
Securities or Coupons. In case any temporary or definitive
Security, shall become mutilated, defaced or be destroyed, lost
or stolen, and in the absence of notice to the Issuer or the
Trustee that such Security or Coupon has been acquired by a bona
fide purchaser, the Issuer, in the case of a mutilated Security
or Coupon, shall, and, in the case of a lost, stolen or destroyed
Security or Coupon, may in its discretion, execute, and upon an
Issuer Request, the Trustee shall authenticate and deliver, a new
Security with like Coupons, if any, as those attached to the
mutilated, destroyed, lost or stolen Security (so that neither
gain nor loss in interest shall result), of the same series,
tenor and principal amount, and bearing a number, letter or other
distinguishing symbol not contemporaneously outstanding, or a new
Coupon, as appropriate, in exchange and substitution for the
mutilated Security or Coupon, or in lieu of and in substitution
for the Security or Coupon so destroyed, lost or stolen, or if
any such Security or Coupon shall have matured or shall be about
to mature, instead of issuing a substituted Security or Coupon,
the Issuer may pay or authorize the payment of the same without
surrender thereof (except in the case of a mutilated Security or
Coupon); provided, however, that interest represented by Coupons
shall be payable only upon presentation and surrender of those
Coupons at an office or agency located outside of the United
States, unless otherwise provided pursuant to Section 3.1. In
every case the applicant for a substituted Security or Coupon
shall furnish to the Issuer and to the Trustee such security or
indemnity as may be required by them to save each of them
harmless, and, in every case of destruction, loss or theft, the
applicant shall also furnish to the Issuer and to the Trustee
evidence to their satisfaction of the destruction, loss or theft
of such Security or Coupon and of the ownership thereof.
Upon the issuance of any substitute Security or Coupon under
this Section 3.7, the Issuer may require the payment of a sum
sufficient to cover any tax or other governmental charge that may
be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee or any Authenticating Agent)
connected therewith. In case any Security or Coupon which has
matured or is about to mature or has been called for redemption
in full shall become mutilated or defaced or be destroyed, lost
or stolen, the Issuer may, instead of issuing a substitute
Security or Coupon, pay or authorize the payment of the same
(without surrender thereof except in the case of a mutilated or
defaced Security or Coupon), if the applicant for such payment
shall furnish to the Issuer and to the Trustee and any agent of
the Issuer or the Trustee such security or indemnity as any of
them may require to save each of them harmless, and, in every
case of destruction, loss or theft, the applicant shall also
furnish to the Issuer and the Trustee and any agent of the Issuer
or the Trustee evidence to their satisfaction of the destruction,
loss or theft of such Security and of the ownership thereof.
Every substitute Security or Coupon of any series issued
pursuant to the provisions of this Section 3.7 by virtue of the
fact that any such Security is destroyed, lost or stolen shall
constitute an additional contractual obligation of the Issuer,
whether or not the destroyed, lost or stolen Security or Coupon
shall be at any time enforceable by anyone and shall be entitled
to all the benefits of (but shall be subject to all the
limitations of rights set forth in) this Indenture equally and
proportionately with any and all other Securities and Coupons of
such series duly authenticated and delivered hereunder. All
Securities and Coupons shall be held and owned upon the express
condition that, to the extent permitted by law, the foregoing
provisions of this Section 3.7 are exclusive with respect to the
replacement or payment of mutilated, defaced or destroyed, lost
or stolen Securities and Coupons and shall preclude any and all
other rights or remedies notwithstanding any law or statute
existing or hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other
securities without their surrender.
SECTION 3.8. Payment of Interest; Interest Rights Preserved.
The Holder of any Fully Registered Securities at the close of
business on any record date with respect to any Interest Payment
Date shall be entitled to receive the interest, if any, payable
on such Interest Payment Date notwithstanding the cancelation of
such Securities upon any transfer or exchange subsequent to the
record date and prior to such Interest Payment Date, and, if
provided for in the Board Resolution pursuant to Section 3.1, in
the case of a Security issued between a record date and the
initial Interest Payment Date relating to such record date,
interest for the period beginning on the date of issue and ending
on such initial Interest Payment Date shall be paid to the person
to whom such Security shall have been originally issued. In the
case of Coupon Securities, the Holder of any Coupon shall be
entitled to receive the interest, if any, payable on such
Interest Payment Date, upon surrender on such Interest Payment
Date of the Coupon appertaining thereto in respect of such
interest. Except as otherwise specified as contemplated by
Section 3.1, for Fully Registered Securities of a particular
series the term "record date" as used in this Section 3.8 with
respect to any Interest Payment Date shall mean the close of
business on the last day of the calendar month preceding such
Interest Payment Date if such Interest Payment Date is the
fifteenth day of a calendar month and shall mean the close of
business on the fifteenth day of the calendar month preceding
such Interest Payment Date if such Interest Payment Date is the
first day of a calendar month, whether or not such day shall be a
New York Business Day. At the option of the Issuer, payment of
interest on any Fully Registered Security may be made by check
mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register.
If and to the extent the Issuer shall default in the payment
of the interest due on such Interest Payment Date in respect of
any Fully Registered Securities such
defaulted interest shall be paid by the Issuer, at its election
in each case, as provided in clause (1) or (2) below:
(1) The Issuer may make payment of any defaulted
interest to the Holder of Fully Registered Securities at the
close of business on a subsequent record date established by
notice given by mail, first-class postage prepaid, by or on
behalf of the Issuer to such Holder at his address as it
appears on the Security Register not less than 15 days
preceding such subsequent record date, such record date to
be not less than 10 days preceding the date of payment of
such defaulted interest.
(2) The Issuer may make payment of any defaulted
interest on the Fully Registered Securities of any series in
any other lawful manner not inconsistent with the
requirements of any securities exchange on which the
Securities of such series may be listed, and upon such
notice as may be required by such exchange, if, after notice
given by the Issuer 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 a Coupon
Security 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 Fully
Registered Securities and Coupon 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 Issuer, in the
manner provided in Section 13.4.
Subject to the foregoing provisions of this Section 3.8,
each Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security
shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.
SECTION 3.9. Cancellation of Securities; Destruction
Thereof. All Securities surrendered for payment, redemption,
conversion, registration of transfer or exchange, or for credit
against any payment in respect of a sinking or analogous fund,
and all Coupons surrendered for payment or exchange, if
surrendered to the Issuer or any Paying Agent, conversion agent
or any Securities Registrar, shall be delivered to the Trustee
for cancellation or, if surrendered to the Trustee, shall be
cancelled by it, and no Securities or Coupons shall be issued in
lieu thereof except as expressly permitted by any of the
provisions of this Indenture. The Trustee shall destroy cancelled
Securities and Coupons held by it and deliver a certificate of
destruction to the Issuer. If the Issuer shall acquire any of the
Securities, such acquisition shall not
operate as a redemption or satisfaction of the indebtedness
represented by such Securities unless and until the same are
delivered to the Trustee for cancellation.
SECTION 3.10. Temporary Securities. Pending the preparation
of definitive Securities for any series, the Issuer may execute
and the Trustee shall authenticate and deliver temporary
Securities for such series (printed, lithographed, typewritten or
otherwise reproduced, in each case in form satisfactory to the
Trustee). Temporary Securities of any series shall be issuable in
any authorized denomination, and substantially in the form of the
definitive Securities of such series in lieu of which they are
issued but with such omissions, insertions and variations as may
be appropriate for temporary securities all as may be determined
by the Issuer with the concurrence of the Trustee. Temporary
Securities may contain such reference to any provisions of this
Indenture as may be appropriate. Every temporary Security shall
be executed by the Issuer and be authenticated by the Trustee
upon the same conditions and in substantially the same manner,
and with like effect, as the definitive Securities. Temporary
Securities may be issued as Registered Securities or Unregis-
tered Securities, with or without one or more Coupons attached.
Without unreasonable delay the Issuer shall execute and shall
furnish definitive Securities of such series and thereupon
temporary Securities of such series may be surrendered in
exchange therefor without charge to a Holder at the Corporate
Trust Office of the Trustee or, in the case of temporary
Securities issued in respect of Unregistered Securities of any
series, at the Corporate Trust Office of the Trustee located in a
city specified elsewhere in this Indenture or pursuant to Section
3.1, and the Trustee shall authenticate and deliver in exchange
for such temporary Securities an equal aggregate principal amount
of definitive Securities of the same series with appropriate
Coupons, if any, attached. Such exchange shall be made by the
Issuer at its own expense and without any charge therefor to a
Holder except that in case of any such exchange involving any
registration of transfer the Issuer may require payment of a sum
sufficient to cover any tax or other governmental charge that may
be imposed in relation thereto. 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 authenticated and delivered hereunder.
SECTION 3.11. Computation of Interest. Except as otherwise
specified as contemplated by Section 3.1 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 3.12. Currency and Manner of Payments in Respect of
Securities.
(a) With respect to Registered Securities of any series
denominated in Dollars or Foreign Currency and with respect to
Registered Securities of any series denominated in any currency
unit, including, without limitation, ECU, with respect to which
the Holders of Securities of such series have not made the
election provided for in paragraph (b) below, the following
payment provisions shall apply:
(1) Except as provided in subparagraph (a)(2) or in
paragraph (e) below, payment of the principal of and
premium, if any, on any Registered Security will be made at
the Place of Payment by delivery of a check in the currency
or currency unit in which the Security is payable on the
payment date against surrender of such Registered Security,
and any interest on any Fully Registered Security will be
paid at the Place of Payment by mailing a check in the
currency or currency unit in which such interest is payable
to the Person entitled thereto at the address of such Person
appearing on the Securities Register.
(2) Payment of the principal of, premium, if any, and
(with respect to Fully Registered Securities only) interest
on such Security may also, subject to applicable laws and
regulations, be made at such other place or places as may be
designated by the Issuer by any appropriate method.
(b) With respect to Registered Securities of any series
denominated in any Foreign Currency or currency unit, including,
without limitation, ECU, the following payment provisions shall
apply, except as otherwise provided in paragraphs (e) and (f)
below:
(1) It may be provided pursuant to Section 3.1 with
respect to the Securities of such series that Holders shall
have the option to receive payments of principal of,
premium, if any, and (with respect to Fully Registered
Securities only) interest, if any, on such Securities in any
of the currencies which may be designated for such election
in such Securities 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 record
date immediately preceding the applicable payment date. Such
election will remain in effect for such Holder until changed
by the Holder by written notice to the Trustee (but any such
change must be made not later than the close of business on
the record date immediately preceding the next payment date
to be effective for the payment to be made on such payment
date and no such change may be made with respect to payments
to be made on any Security of such series with respect to
which notice of redemption has been given by the Issuer
pursuant to
Article Fourteen). Any Holder of any such Security, who
shall not have delivered any such election to the Trustee
not later than the close of business on the applicable
record date will be paid the amount due on the applicable
payment date in the relevant currency unit as provided in
paragraph (a) of this Section 3.12. Payment of principal of
and premium, if any, shall be made on the payment date
against surrender of such Security. Payment of principal of,
premium, if any, and (with respect to Fully Registered
Securities only) interest, if any, shall be made at the
Place of Payment by mailing at such location a check, in the
applicable currency or currency unit, to the Person entitled
thereto at the address of such Person appearing on the
Securities Register.
(2) Payment of the principal of, premium, if any, and
(with respect to Fully Registered Securities only) interest,
if any, on such Security may also, subject to applicable
laws and regulations, be made at such other place or places
as may be designated by the Issuer by any appropriate
method.
(c) Payment of the principal of, and premium, if any, on any
Unregistered Security and of interest on any Coupon Security will
be made unless otherwise specified pursuant to Section 3.1 or
Section 10.1(f) by a Paying Agent at such place or places outside
the United States as may be designated by the Issuer pursuant to
any applicable laws or regulations by any appropriate method in
the currency or currency unit in which the Security is payable
(except as provided in paragraph (e) below) on the payment date
against surrender of the Unregistered Security, in the case of
payment of principal and premium, if any, or the relevant Coupon,
in the case of payment of interest, if any. Except as provided in
paragraph (e) below, payment with respect to Unregistered
Securities and Coupons will be made by check, subject to any
limitations on the methods of effecting such payment as shall be
specified in the terms of the Security established as provided in
Section 3.1 and Section 10.1(f) and as shall be required under
applicable laws and regulations.
(d) Not later than the fourth Business Day after the record
date for each payment date, the Trustee will deliver to the
Issuer a written notice specifying, in the currency or currency
unit in which each series of the Securities is payable, the
respective aggregate amounts of principal of, premium, if any,
and interest, if any, on the Securities to be made on such
payment date, specifying the amounts so payable in respect of
Fully Registered Securities, Registered Securities with Coupons
and Unregistered Securities and in respect of the Registered
Securities as to which the Holders of Securities denominated in
any currency unit shall have elected to be paid in another
currency as provided in paragraph (b) above. If the election
referred to in paragraph (b) above has been provided for pursuant
to Section 3.1 and if at least one Holder has made such election,
then, not later than the eighth Business Day following
each record date the Issuer will deliver to the Trustee and each
Paying Agent an Exchange Rate Officer's Certificate in respect of
the Dollar or Foreign Currency payments to be made on such
payment date. The Dollar or Foreign Currency amount receivable by
Holders of Registered Securities denominated in a currency unit
who have elected payment in such currency as provided in
paragraph (b) above shall be determined by the Issuer on the
basis of the applicable Official Currency Unit Exchange Rate set
forth in the applicable Exchange Rate Officer's Certificate.
(e) If a Foreign Currency in which any of the Securities are
denominated or payable ceases 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, or if the ECU ceases to be used
both within the European Monetary System and for the settlement
of transactions by public institutions of or within the European
Communities, or if any other currency unit in which a Security is
denominated or payable ceases to be used for the purposes for
which it was established, then, with respect to each date for the
payment of principal of, or premium, if any, and interest, if
any, on the applicable Securities denominated or payable in such
Foreign Currency, the ECU or such other currency unit occurring
after the last date on which such Foreign Currency, the ECU or
such other currency unit was so used (the "Currency 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
Issuer to the Paying Agent and by the 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 as
determined by the Dollar Determination Agent as of the record
date, if any, with respect to any Interest Payment Date or the
fifteenth day before the Maturity of an installment of principal
(the "Valuation Date"), in the manner provided in para- graph (g)
or (h) below.
(f) If the Holder of a Registered Security denominated in a
currency unit elects payment in a specified Foreign Currency as
provided for by paragraph (b) above and such Foreign Currency
ceases 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, such Holder shall receive payment in such currency
unit, and if ECU ceases to be used both within the European
Monetary System and for the settlement of transactions by public
institutions of or within the European Communities, or if any
other such currency unit ceases to be used for the purposes for
which it was established, such Holder shall receive payment in
Dollars.
(g) The "Dollar Equivalent of the Foreign Currency" shall
be determined by, and shall be set forth in a certificate
delivered to the Issuer, the Trustee and each
Paying Agent of, the Dollar Determination Agent as of each
Valuation Date and shall be obtained by converting the specified
Foreign Currency into Dollars at the Market Exchange Rate on the
Valuation Date.
(h) The "Dollar Equivalent of the Currency Unit" shall be
determined by, and shall be set forth in a certificate delivered
to the Issuer, the Trustee and each Paying Agent of, the Dollar
Determination Agent as of each Valuation Date and shall be the
sum obtained by adding together the results obtained by
converting the Specified Amount of each Component Currency into
Dollars at the Market Exchange Rate on the Valuation Date for
such Component Currency.
(i) For purposes of this Section 3.12, the following terms
shall have the following meanings:
A "Component Currency" shall mean any currency which, on the
Currency Conversion Date, was a component currency of the
relevant currency unit, including, but not limited to, the ECU.
A "Specified Amount" of a Component Currency shall mean the
number of units or fractions thereof which such Component
Currency represented in the relevant currency unit, including,
but not limited to, the ECU, on the Currency Conversion Date. If
after the Currency 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 Currency 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 Currency
Conversion Date any Component Currency shall be divided into two
or more currencies, the Specified Amount of such Component
Currency shall be replaced by specified amounts of such two or
more currencies, the sum of which, at the Market Exchange Rate of
such two or more currencies on the date of such replacement,
shall be equal to the Specified Amount of such former Component
Currency divided by the number of currencies into which such
Compo- nent Currency was divided, and such amounts shall
thereafter be Specified Amounts and such currencies shall
thereafter be Component Currencies.
"Market Exchange Rate" shall mean for any currency the noon
Dollar buying rate for that currency for cable transfers quoted
in New York City on the Valuation Date as certified for customs
purposes by the Federal Reserve Bank of New York. If
such rates are not available for any reason with respect to one
or more currencies for which an Exchange Rate is required, the
Dollar Determination Agent shall use, in its sole discretion and
without liability on its part, such quotation of the Federal
Reserve Bank of New York as of the most recent available date, or
quotations from one or more major banks in New York City or in
the country of issue of the currency in question, or such other
quotations as the Dollar Determination Agent shall deem
appropriate. Unless otherwise specified by the Dollar
Determination Agent, if there is more than one market for dealing
in any currency by reason of foreign exchange regulations or
otherwise, the market to be used in respect of such currency
shall be that upon which a nonresident issuer of securities
designated in such currency would purchase such currency in order
to make payments in respect of such securities.
All decisions and determinations of the Dollar Determination
Agent 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 Issuer, the Trustee, any Paying
Agent and all Holders of the Securities and Coupons denominated
or payable in the relevant currency or currency units. In the
event that a Foreign Currency ceases 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, the Issuer, after learning
thereof, will immediately give notice thereof to the Trustee (and
the Trustee will promptly thereafter give notice in the manner
provided in Section 13.4 to the Holders) specifying the Currency
Conversion Date. In the event the ECU ceases to be used both
within the European Monetary System and for the settlement of
transactions by public institutions of or within the European
Communities, or any other currency unit in which Securities or
Coupons are denominated or payable ceases to be used for the
purposes for which it was established, the Issuer, after learning
thereof, will immediately give notice thereof to the Trustee (and
the Trustee will promptly thereafter give notice in the manner
provided in Section 13.4 to the Holders) specifying the Currency
Conversion Date and the Specified Amount of each Component
Currency on the Currency Conversion Date. In the event of any
subsequent change in any Component Currency as set forth in the
definition of Specified Amount above, the Issuer, after learning
thereof, will similarly give notice to the Trustee. The Trustee
shall be fully justified and protected in relying and acting upon
information received by it from the Issuer and the Dollar
Determination Agent, if any, and shall not otherwise have any
duty or obligation to determine such information independently.
SECTION 3.13. Compliance with Certain Laws and Regulations.
If any Unregistered Securities or Coupon Securities are to be
issued in any series of Securities, the Issuer will use
reasonable efforts to provide for arrangements and
procedures designed pursuant to then applicable laws and
regulations, if any, to ensure that such Unregistered Securities
or Coupon Securities are sold or resold, exchanged, transferred
and paid only in compliance with such laws and regulations and
without adverse consequences to the Issuer.
ARTICLE FOUR
COVENANTS OF THE ISSUER
The Issuer covenants and agrees for the benefit of each
series of Securities that on and after the date of execution of
this Indenture and so long as any of the Securities of such
series remain outstanding:
SECTION 4.1. Payment of Securities. The Issuer will duly and
punctually pay or cause to be paid (in the Dollars or the Foreign
Currency or currency unit in which the Securities of such series
and Coupons, if any, appertaining thereto are payable, except as
otherwise specified as contemplated by Section 3.1 for the
Securities of such series and except as provided in
Sections 3.12(b), 3.12(e) and 3.12(f) of this Indenture) the
principal of, the premium, if any, and interest, if any, on the
Securities of such series at the place or places, at the
respective times and in the manner provided in such Securities,
in any Coupons appertaining thereto, and in this Indenture. Each
installment of interest on the Registered Securities of any
series may be paid by mailing checks for such interest payable to
or upon the written order of the Holders of Registered Securities
entitled thereto as they shall appear on the registry books of
the Issuer.
The interest on Coupon Securities shall be payable only upon
presentation and surrender of the several Coupons for such
interest installments as are evidenced thereby as they severally
mature. The interest, if any, on any temporary Unregistered
Security shall be paid, as to any installment of interest
evidenced by a Coupon attached thereto, if any, only upon
presentation and surrender of such Coupon, and, as to other
installments of interest, if any, only upon presentation of such
Security for notation thereon of the payment of such interest.
SECTION 4.2. Offices or Agency. So long as any of the
Securities remain Outstanding, the Issuer will maintain in the
Borough of Manhattan, The City of New York, New York, an office
or agency where Registered Securities of such series may be
presented or surrendered for payment, where Securities of such
series may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Issuer in
respect of the Securities of such series and this Indenture may
be served, and where Securities of each series that is
convertible may be presented for
conversion, which office or agency, unless otherwise set forth
in, or pursuant to, a Board Resolution or supplemental indenture
relating to the Securities of such series, shall initially be the
Corporate Trust Office of the Trustee, or, if the Corporate Trust
Office of the Trustee is not located in the Borough of Manhattan,
The City of New York, New York, such office or agency shall be
the principal corporate trust office of the Authenticating Agent
designated pursuant to Section 7.14 hereof. So long as any Coupon
Securities or Unregistered Securities of any series remain
Outstanding, the Issuer will (except as specified pursuant to
Section 3.1 or Sec- tion 10.1(f)) maintain one or more offices or
agencies outside the United States in such city or cities as may
be specified elsewhere in this Indenture or as contemplated by
Section 3.1, with respect to such series, where Coupons
appertaining to Securities of such series or Unregistered
Securities of such series may be surrendered or presented for
payment, or surrendered for exchange pursuant to Section 3.6 and
where notices and demands to or upon the Issuer in respect of
Coupons appertaining to Securities of such series or the
Unregistered Securities of such series or of this Indenture may
be served. The Issuer will give prompt written notice to the
Trustee of the location, and any change in the location, of any
such office or agency. If at any time the Issuer shall fail to
maintain such required office or agency or shall fail to furnish
the Trustee with the address thereof, presentations, surrenders,
notices and demands in respect of Registered Securities may be
made or served at the Corporate Trust Office of the Trustee and
the Corporate Trust Office of any Authenticating Agent appointed
hereunder, and presentations, surrenders, notices and demands in
respect of Coupons appertaining to Securities of any series and
Unregistered Securities may be made or served at the Corporate
Trust Office of the Trustee in the other city or cities referred
to above; and the Issuer hereby appoints the Trustee and any
Authenticating Agent appointed hereunder its agents to receive
all such presentations, surrenders, notices, and demands. The
Issuer agrees to appoint and continue to maintain the appointment
of a Dollar Determination Agent, if necessary, to perform the
functions set forth herein for the Dollar Determination Agent.
The Issuer may also from time to time designate one or more
other offices or agencies (in or outside The City of New York)
where the Securities of such series may be presented or
surrendered for any or all of such purposes, and may from time to
time rescind such designation; provided, however, that no such
designation or rescission shall in any manner relieve the Issuer
of its obligation to maintain for such purposes an office or
agency in the Borough of Manhattan, The City of New York, and,
except as otherwise specified pursuant to Section 3.1 or
Section 10.1(f), so long as any Unregistered Securities or Coupon
Securities remain Outstanding, one or more offices or agencies
outside the United States.
SECTION 4.3. Appointment To Fill a Vacancy in Office of
Trustee. The Issuer, whenever necessary to avoid or fill a
vacancy in the office of Trustee, will
appoint, in the manner provided in Section 7.10, a Trustee, so
that there shall at all times be a Trustee with respect to each
series of Securities hereunder.
SECTION 4.4. Paying Agents. Whenever the Issuer shall
appoint a Paying Agent other than the Trustee with respect to the
Securities of any series, it will cause such Paying Agent to
execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee, subject to the
provisions of this Section:
(a) that it will hold all sums received by it as such
Paying Agent for the payment of the principal of, and the
premium, if any, and interest, if any, on the Securities of
such series (whether such sums have been paid to it by the
Issuer or by any other obligor on the Securities of such
series) in trust for the benefit of the Holders of the
Securities of such series, and the Coupons, if any,
appertaining thereto or of the Trustee;
(b) that it will give the Trustee notice of any failure
by the Issuer (or by any other obligor on the Securities of
such series) to make any payment of the principal of, or the
premium, if any, or interest, if any, on the Securities of
such series when the same shall be due and payable; and
(c) that at any time during the continuance of any such
failure, upon the written request of the Trustee it will
forthwith pay to the Trustee all sums so held in trust by
such Paying Agent.
If the Issuer shall act as its own Paying Agent with respect
to the Securities of any series, it will, on or before each due
date of the principal of, premium, if any, or interest, if any,
on the Securities of such series and the Coupons, if any,
appertaining thereto, set aside, segregate and hold in trust for
the benefit of the Holders of the Securities of such series and
the Coupons, if any, appertaining thereto a sum (in the currency
or currency unit in which the Securities of such series are
denominated, except as otherwise specified as contemplated by
Section 3.1 for the Securities of such series and except as
provided in Sections 3.12(b), 3.12(e) and 3.12(f) of this
Indenture) sufficient to pay such principal, premium, if any, or
interest, if any, so becoming due. The Issuer will promptly
notify the Trustee of any failure to take such action.
Whenever the Issuer shall have one or more Paying Agents
with respect to the Securities of any series, it will, prior to
the due date of the principal of, premium, if any, or interest,
if any, on the Securities of such series and the Coupons, if any,
appertaining thereto, deposit with a designated Paying Agent a
sum (in the currency or currency unit described in the preceding
paragraph) sufficient to pay the principal, premium, if any, or
interest, if any, so becoming due, such sum to be held in trust
for the benefit of the Persons entitled to such principal,
premium, if any, or interest, if any, and (unless such Paying
Agent is the Trustee) the Issuer will promptly notify the Trustee
at its Corporate Trust Office of its failure so to act.
Anything in this Section to the contrary notwithstanding,
the Issuer may at any time, for the purpose of obtaining a
satisfaction and discharge with respect to one or more or all
series of Securities hereunder, or for any other reason, pay or
cause to be paid to the Trustee all sums held in trust for any
such series by the Issuer or any Paying Agent hereunder, as
required by this Section, such sums to be held by the Trustee
upon the trusts herein contained.
Anything in this Section to the contrary notwithstanding,
the agreement to hold sums in trust as provided in this Section
is subject to the provisions of Section 12.4 and 12.5.
SECTION 4.5. Limitation on Sale and Lease-Backs. The Issuer
will not, nor will it permit any Restricted Subsidiary to, enter
into any arrangement with any person providing for the leasing by
the Issuer or any Restricted Subsidiary of any Principal Property
(except for temporary leases for a term of not more than three
years and except for leases between the Issuer and a Restricted
Subsidiary or between Restricted Subsidiaries), which property
has been or is to be sold or transferred by the Issuer or such
Restricted Subsidiary to such person more than 120 days after the
acquisition thereof or the completion of construction and
commencement of full operation thereof, unless either (i) the
Issuer shall apply an amount equal to the greater of the Fair
Value of such property or the net proceeds of such sale, within
120 days of the effective date of any such arrangement, to the
retirement (other than any mandatory retirement or by way of
payment at maturity) of Securities or indebtedness ranking on a
parity with the Securities or to the acquisition, construction,
development or improvement of properties, facilities or equipment
used for operating purposes which are, or upon such acquisition,
construction, development or improvement will be, a Principal
Property or a part thereof; or (ii) at the time of entering into
such arrangement, such Principal Property could have been
subjected to a mortgage securing indebtedness of the Issuer or a
Restricted Subsidiary in a principal amount equal to the
Capitalized Lease-Back Obligation with respect to such Principal
Property under clause (l) of Section 4.6 without also securing
the Securities pursuant to such Section 4.6.
SECTION 4.6. Limitations on Liens. The Issuer will not, and
will not permit any Restricted Subsidiary to, create, suffer to
be created, or assume (directly or indirectly) any mortgage,
pledge or other lien upon any Principal Property, unless
effective provision is made by the Issuer to secure directly the
Securities of all series
by such mortgage, pledge or other lien, equally and ratably with
any and all other indebtedness thereby secured; provided,
however, that this Section shall not apply to any of the
following:
(a) any mortgage, pledge or other lien on any Principal
Property hereafter acquired, constructed or improved by the
Issuer or any Restricted Subsidiary which is created or
assumed to secure or provide for the payment of any part of
the purchase price of such property or the cost of such
construction or improvement, or any mortgage, pledge or
other lien on any Principal Property existing at the time of
acquisition thereof; provided, however, that in the case of
any such acquisition the mortgage, pledge or other lien
shall not extend to any Principal Property theretofore owned
by the Issuer or any Restricted Subsidiary;
(b) any mortgage, pledge or other lien existing upon
any property of a company which is merged with or into or is
consolidated into, or substantially all the assets or shares
of capital stock of which are acquired by, the Issuer or a
Restricted Subsidiary, at the time of such merger,
consolidation or acquisition; provided that such mortgage,
pledge or other lien does not extend to any other Principal
Property, other than improvements to the property subject to
such mortgage, pledge or other lien;
(c) any pledge or deposit to secure payment of
workmen's com- pensation or insurance premiums, or in
connection with tenders, bids, contracts (other than
contracts for the payment of money) or leases;
(d) any pledge of, or other lien upon, any assets as
security for the payment of any tax, assessment or other
similar charge by any governmental authority or public body,
or as security required by law or governmental regulation as
a condition to the transaction of any business or the
exercise of any privilege or right;
(e) any pledge or lien necessary to secure a stay of
any legal or equitable process in a proceeding to enforce a
liability or obligation contested in good faith by the
Issuer or a Restricted Subsidiary or required in connection
with the institution by the Issuer or a Restricted
Subsidiary of any legal or equitable proceeding to enforce a
right or to obtain a remedy claimed in good faith by the
Issuer or a Restricted Subsidiary, or required in connection
with any order or decree in any such proceeding or in
connection with any contest of any tax or other governmental
charge; or the making of any deposit with or the giving of
any form of security to any governmental agency or any body
created or approved by law or governmental regulation in
order to entitle the
Issuer or a Restricted Subsidiary to maintain self-insurance
or to participate in any fund in connection with workmen's
compensation, unemployment insurance, old age pensions or
other social security or to share in any provisions or other
benefits provided for companies participating in any such
arrangement or for liability on insurance of credits or
other risks;
(f) any mechanics', carriers', workmen's, repairmen's
or other like liens, if arising in the ordinary course of
business, in respect of obligations which are not overdue or
liability for which is being contested in good faith by
appropriate proceedings;
(g) any lien or encumbrance on property in favor of the
United States of America, or of any agency, department or
other instrumentality thereof, to secure partial, progress
or advance payments pursuant to the provisions of any
contract;
(h) any mortgage, pledge or other lien securing any
indebtedness incurred in any manner to finance or recover
the cost to the Issuer or any Restricted Subsidiary of any
physical property, real or personal, which prior to or
simultaneously with the creation of such indebtedness shall
have been leased by the Issuer or a Restricted Subsidiary to
the United States of America or a department or agency
thereof at an aggregate rental, payable during that portion
of the initial term of such lease (without giving effect to
any options of renewal or extension) which shall be
unexpired at the date of the creation of such indebtedness,
sufficient (taken together with any amounts required to be
paid by the lessee to the lessor upon any termination of
such lease) to pay in full at the stated maturity date or
dates thereof the principal of and the interest on such
indebtedness;
(i) any mortgage, pledge or other lien securing
indebtedness of a Restricted Subsidiary to the Issuer or a
Restricted Subsidiary, provided that in the case of any sale
or other disposition of such indebtedness by the Issuer or
such Restricted Subsidiary, such sale or other disposition
shall be deemed to constitute the creation of another
mortgage, pledge or other lien;
(j) any mortgage, pledge or other lien affecting
property of the Issuer or any Restricted Subsidiary securing
indebtedness of the United States of America or a State
thereof (or any instrumentality or agency of either thereof)
issued in connection with a pollution control or abatement
program required in the opinion of the Issuer to meet
environmental criteria with respect to manufacturing or
processing operations of the Issuer or any Restricted
Subsidiary and the proceeds of which indebtedness have
financed the cost of acquisition of such program;
(k) the renewal, extension, replacement or refunding of
any mortgage, pledge, lien, deposit, charge or other
encumbrance permitted by the foregoing provisions of this
Section upon the same property theretofore subject thereto,
or the renewal, extension, replacement or refunding of the
amount secured thereby, provided that in each case such
amount outstanding at that time shall not be increased;
(l) any mortgage, pledge or liens affecting property of
the Issuer or any Restricted Subsidiary existing on the date
of this Indenture; or
(m) any other mortgage, pledge or other lien, provided
that immediately after the creation or assumption of such
mortgage, pledge or other lien, the total of (i) the
aggregate principal amount of indebtedness of the Issuer and
Restricted Subsidiaries secured by all mortgages, pledges
and other liens created or assumed under the provisions of
this clause (m), plus (ii) the aggregate amount of
Capitalized Lease-Back Obligations of the Issuer and
Restricted Subsidiaries under the entire unexpired terms of
all leases entered into in connection with sale and
lease-back transactions which would have been precluded by
the provisions of Section 4.5 but for the satisfaction of
the condition set forth in clause (ii) thereof, shall not
exceed an amount equal to 15% of Consolidated Net Tangible
Assets.
Neither (a) the lease of any property by the Issuer or a
Restricted Subsidiary, and rental obligations with respect
thereto (whether or not arising out of sale and lease-back of
properties and whether or not in accordance with generally
accepted accounting principles such property is carried as an
asset and such rental obligations are carried as indebtedness on
the Issuer's or a Restricted Subsidiary's balance sheet) nor (b)
the sale or other transfer of (i) timber or other natural
resources in place for a period of time until, or in an amount
such that, the purchaser will realize therefrom a specified
amount of money (however determined) or a specified amount of
such resources, or (ii) any other interest in property of the
character commonly referred to as a "production payment", shall
in any event be deemed to be the creation of a mortgage, pledge
or other lien.
SECTION 4.7. Certificates to Trustee. The Issuer will, on or
before April 1 in each year, commencing with the first calendar
year following the issuance of Securities of any series under
this Indenture, file with the Trustee a certificate of the
principal executive officer, the principal financial officer or
the principal accounting officer of the Issuer, covering the
period from the date of issuance of such Securities
to the end of the calendar year in which such Securities were
issued, in the case of the first such certificate, and covering
the preceding calendar year in the case of each subsequent
certificate, and stating whether or not, to the knowledge of the
signer, the Issuer has complied with all conditions and covenants
on its part contained in this Indenture, and, if the signer has
obtained knowledge of any default by the Issuer in the
performance, observance or fulfillment of any such condition or
covenant, specifying each such default and the nature thereof.
For the purpose of this Section 4.7, compliance shall be
determined without regard to any grace period or requirement of
notice provided pursuant to the terms of this Indenture.
ARTICLE FIVE
SECURITYHOLDERS LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 5.1. Issuer To Furnish Trustee Information as to
Names and Addresses of Securityholders. The Issuer covenants and
agrees that it will furnish or cause to be furnished to the
Trustee for the Securities of each series 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:
(a) semiannually and not more than 15 days after each
record date for the payment of interest, if any, on such
Securities of such series, as of such record date, and on
dates to be determined pursuant to Section 3.1 for non-
interest bearing Securities of such series in each year, and
(b) at such other times as the Trustee may request in
writing, within 30 days after receipt by the Issuer of any
such request, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the
Holders of the Registered Securities of such series, as of
the respective record dates therefor (and on dates to be
determined pursuant to Section 3.1 if the Securities of such
series do not bear interest) as of a date not more than 15
days prior to the time such information is furnished and
need not include information received after such date;
provided that if and so long as the Trustee shall be the
Securities Registrar for such series, such list shall not be
required to be furnished.
The Issuer shall also be required to furnish such
information which is known to it concerning the Holders of
Coupons and Unregistered Securities; provided,
however, that the Issuer shall have no obligation to investigate
any matter relating to any Holder of an Unregistered Security or
any Holder of a Coupon.
SECTION 5.2. Preservation and Disclosure of Securityholders
Lists. (a) The Trustee shall preserve, in as current a form as is
reasonably practicable, all information as to the names and
addresses of the Holders of each series of Securities (1)
contained in the most recent list furnished to it as provided in
Section 5.1, (2) maintained by the Trustee in its capacity as
Paying Agent for such series (if so acting) and in its capacity
as Securities Registrar for such series, and (3) filed with it
within two preceding years pursuant to the provisions of
paragraph (2) of subsection (c) of Section 5.4.
The Trustee for any series of the Securities may (1) destroy
any list furnished to it as provided in Section 5.1 upon receipt
of a new list so furnished, (2) destroy any information received
by it as Paying Agent for such series (if so acting) hereunder
upon delivery to itself as Trustee of a list containing the names
and addresses of the Holders of Securities of such series
obtained from such information since the delivery of the next
previous list, if any, (3) destroy any list delivered to itself
as Trustee which was compiled from information received by it as
Paying Agent (if so acting) upon the receipt of a new list so
delivered, and (4) destroy any information filed with it by
Holders of Securities of such series for the purpose of receiving
reports pursuant to the provisions of paragraph (2) of subsection
(c) of Section 5.4, but not until two years after such
information has been filed with it.
(b) In case three or more Holders of Securities (hereinafter
referred to as "applicants") apply in writing to the Trustee and
furnish to the Trustee reasonable proof that each such applicant
has owned a Security of such series for a period of at least six
months preceding the date of such application, and such
application states that the applicants desire to communicate with
other Holders of Securities of a particular series (in which case
at least three of the applicants must all hold Securities of such
series) or with Holders of all Securities with respect to their
rights under this Indenture or under such Securities and such
application is accompanied by a copy of the form of proxy or
other communication which such applicants propose to transmit,
then the Trustee shall, within five business days after the
receipt of such application, at its election, either:
(i) afford to such applicants access to the information
preserved at the time by the Trustee in accordance with the
provisions of subsection (a) of this Section 5.2; or
(ii) inform such applicants as to the approximate
number of Holders of Securities of such series or all
Securities, as the case may be, whose names
and addresses appear in the information preserved at the
time by the Trustee in accordance with the provisions of
subsection (a) of this Section 5.2, and as to the
approximate cost of mailing to such Securityholders the form
of proxy or other communication, if any, specified in such
application.
If the Trustee shall elect not to afford to such applicants
access to such information, the Trustee shall, upon the written
request of such applicants, mail to each Holder of Securities of
such series or all Holders of Securities of all series for which
it is Trustee, as the case may be, whose name and address appear
in the information preserved at the time by the Trustee in
accordance with the provisions of subsection (a) of this
Section 5.2 a copy of the form of proxy or other communication
which is specified in such request, with reasonable promptness
after a tender to the Trustee of the material to be mailed and of
payment, or provision for the payment, of the reasonable expenses
of mailing, unless within five days after such tender, the
Trustee shall mail to such applicants and file with the
Commission together with a copy of the material to be mailed, a
written statement to the effect that, in the opinion of the
Trustee, such mailing would be contrary to the best interests of
the Holders of Securities of such series or all Holders of
Securities of all series for which it is Trustee, as the case may
be, or would be in violation of applicable law. Such written
statement shall specify the basis of such opinion. If the
Commission, after opportunity for a hearing upon the objections
specified in the written statement so filed, shall enter an order
refusing to sustain any of such objections or if, after the entry
of an order sustaining one or more of such objections, the
Commission shall find, after notice and opportunity for hearing,
that all the objections so sustained have been met, and shall
enter an order so declaring, the Trustee shall mail copies of
such material to all such Securityholders with reasonable
promptness after the entry of such order and the renewal of such
tender; otherwise the Trustee shall be relieved of any obligation
or duty to such applicants respecting their application.
(c) Each and every Holder of Securities, by receiving and
holding the same, agrees with the Issuer and the Trustee that
neither the Issuer nor the Trustee nor any Paying Agent shall be
held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders of
Securities in accordance with the provisions of subsection (b) of
this Section 5.2, regardless of the source from which such
information was derived, and that the Trustee shall not be held
accounta- ble by reason of mailing any material pursuant to a
request made under such subsection (b).
SECTION 5.3. Reports by the Issuer. The Issuer covenants:
(a) to file with the Trustee for each series of Securities,
within 15 days after the Issuer is required to file the same with
the Commission, copies of the annual
reports and of the information, documents, and other reports (or
copies of such portions of any of the foregoing as the Commission
may from time to time by rules and regulations prescribe) which
the Issuer may be required to file with the Commission pursuant
to Section 13 or Section 15(d) of the Exchange Act; or, if the
Issuer is not required to file information, documents, or reports
pursuant to either of such Sections, then to file with the
Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such
of the supplementary and periodic information, documents, and
reports which may be required pursuant to Section 13 of the
Exchange Act in respect of a security listed and registered on a
national exchange as may be prescribed from time to time in such
rules and regulations;
(b) to file with the Trustee for each series of Securities
and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such additional
information, documents, and reports with respect to compliance by
the Issuer with the conditions and covenants provided for in this
Indenture as may be required from time to time by such rules and
regulations; and
(c) to transmit by mail to the Holders of Securities in the
manner and to the extent provided in Section 5.4(c) and (d),
within 30 days after the filing thereof with the Trustee for each
series of Securities, such summaries of any information,
documents and reports required to be filed by the Issuer pursuant
to subsections (a) and (b) of this Section as may be required to
be transmitted to such Holders by rules and regulations
prescribed from time to time by the Commission.
SECTION 5.4. Reports by the Trustee. (a) On or before
July 15 in each year following the date hereof, so long as any
Securities are outstanding hereunder, the Trustee for each series
of Securities shall transmit by mail as provided below to the
Securityholders of such series, as hereinafter in this Section
provided, a brief report dated as of the preceding May 15 with
respect to any of the following events which may have occurred
during the twelve months preceding the date of such report (but
if no such event has occurred within such period, no report need
be transmitted):
(i) any change to its eligibility under Section 7.9 and
its qualifications under Section 7.8;
(ii) the creation of or any material change to a
relationship specified in Section 310(b)(1) through
Section 310(b)(10) of the Trust Indenture Act;
(iii) the character and amount of any advances (and if
the Trustee elects so to state, the circumstances
surrounding the making thereof) made by the Trustee (as
such) which remain unpaid on the date of such report and for
the
reimbursement of which it claims or may claim a lien or
charge, prior to that of the Securities of any series, on
any property or funds held or collected by it as Trustee,
except that the Trustee shall not be required (but may
elect) to report such advances if such advances so remaining
unpaid aggregate not more than 1/2 of 1% of the principal
amount of the Securities of any series Outstanding on the
date of such report;
(iv) any change to the amount, interest rate, and
maturity date of all other indebtedness owing by the Issuer
(or by any other obligor on the Securities of any series) to
the Trustee in its individual capacity on the date of such
report, with a brief description of any property held as
collateral security therefor, except any indebtedness based
upon a creditor relationship arising in any manner described
in Section 7.13(b)(2), (3), (4) or (6);
(v) any change to the property and funds, if any,
physically in the possession of the Trustee (as such) on the
date of such report;
(vi) any additional issuance of Securities of any
series for which it is Trustee which the Trustee has not
previously reported; and
(vii) any action taken by the Trustee in the
performance of its duties under this Indenture which it has
not previously reported and which in its opinion materially
affects the Securities of any series, except action in
respect of a default, notice of which has been or is to be
withheld by it in accordance with the provisions of Section
6.11.
(b) The Trustee for each series of Securities shall transmit
to the Securityholders of such series, as provided in
subsection (c) of this Section, a brief report with respect to
the character and amount of any advances (and if the Trustee
elects so to state, the circumstances surrounding the making
thereof) made by the Trustee, as such, since the date of the last
report transmitted pursuant to the provisions of subsection (a)
of this Section (or if no such report has yet been so
transmitted, since the date of this Indenture) for the
reimbursement of which it claims or may claim a lien or charge
prior to that of the Securities of any series on property or
funds held or collected by it as Trustee and which it has not
previously reported pursuant to this subsection (b), except that
the Trustee shall not be required (but may elect) to report such
advances if such advances remaining unpaid at any time aggregate
10% or less of the principal amount of Securities of such series
Outstanding at such time, such report to be transmitted within
90 days after such time.
(c) Reports pursuant to this Section 5.4 shall be
transmitted by mail:
(i) to all registered Holders of Registered Securities,
as the names and addresses of such Holders appear in the
applicable Securities Register;
(ii) to such Holders of Securities of any series as
have, within two years preceding such transmission, filed
their names and addresses with the Trustee for such series
for that purpose; and
(iii) except in the cases of reports pursuant to
subsection (b) of this Section 5.4, to each Holder of a
Security of any series whose name and address is preserved
at the time by the Trustee for such series, as provided in
subsection (a) of Section 5.2.
(d) A copy of each such report shall, at the time of such
transmission to Securityholders of any series, be furnished to
the Issuer and be filed by the Trustee for such series with each
stock exchange upon which the Securities of any series are listed
and also with the Commission. The Issuer agrees to notify the
Trustee for each series when and as the Securities of such series
become admitted to trading on any national securities exchange.
ARTICLE SIX
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 6.1. Event of Default Defined; Acceleration of
Maturity; Waiver of Default. "Event of Default", with respect to
the Securities of any series, wherever used herein, means each
one of the following events which shall have occurred and be
continuing (whatever the reason for such Event of Default and
whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative
or governmental body), unless such event is either inapplicable
to a particular series or is specifically deleted or modified in
the applicable Board Resolution or in the supplemental indenture
under which such series of Securities is issued, as the case may
be, as contemplated by Section 3.1:
(a) default in the payment of any installment of
interest upon any of the Securities of such series as and
when the same shall become due and payable and continuance
of such default for a period of 30 days; or
(b) default in the payment of all or any part of the
principal of or the premium, if any, on any of the
Securities of such series as and when the same shall become
due and payable, either at maturity, upon redemption, by
declaration or otherwise; or
(c) default in the deposit of any sinking fund payment
when and as due and payable by the terms of the Securities
of such series; or
(d) default in the performance or observance of any
other covenant or agreement of the Issuer in respect of the
Securities of such series (other than a covenant or
agreement in respect of the Securities of such series a
default in whose performance or observance is elsewhere in
this Section specifically dealt with) and continuance of
such default for a period of 60 days after there has been
given, by registered or certified mail, to the Issuer by the
Trustee, or to the Issuer and the Trustee by the Holders of
at least 25% in principal amount of the Outstanding
Securities of all series affected thereby, a written notice
specifying such default and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder;
or
(e) an event of default, as defined in any indenture or
instrument evidencing or under which the Issuer has at the
date of this Indenture or shall hereafter have outstanding
at least $10,000,000 aggregate principal amount of
indebtedness for borrowed money, shall happen and be
continuing and such indebtedness shall have been accelerated
so that the same shall be or become due and payable prior to
the date on which the same would otherwise have become due
and payable, and such acceleration shall not be rescinded or
annulled within 30 days after notice thereof shall have been
given to the Issuer by the Trustee (if such event be known
to it) or to the Issuer and the Trustee by the holders of at
least 25% in aggregate principal amount of the Securities at
the time outstanding; provided, however, that, if such event
of default under such indenture or instrument shall be
remedied or cured by the Issuer or waived by the holders of
such indebtedness, then the Event of Default hereunder by
reason thereof shall be deemed likewise to have been
thereupon remedied, cured or waived, without further action
upon the part of either the Trustee or any of the
Securityholders; or
(f) the entry of a decree or order for relief by a
court having jurisdiction in the premises in respect of the
Issuer in an involuntary case under the federal bankruptcy
laws, as now or hereafter constituted, or any other
applicable federal or state bankruptcy, insolvency or other
similar law, or appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of
the Issuer or for any substantial part of its property, or
ordering the winding up or liquidation of its affairs and
the continuance of any such decree or order unstayed and in
effect for a period of 60 consecutive days; or
(g) the commencement by the Issuer of a voluntary case
under the federal bankruptcy laws, as now constituted or
hereafter amended, or any other applicable Federal or state
bankruptcy, insolvency or other similar law, or the consent
by it to the appointment of or taking possession by a
receiver, liquidator, assignee, trustee, custodian,
sequestrator (or other similar official) of the Issuer or
for any substantial part of its property, or the making by
it of any assignment for the benefit of its creditors; or
(h) any other Event of Default established by or
pursuant to a Board Resolution or one or more indentures
supplemental hereto as applicable to the Securities of such
series.
If an Event of Default described in clause (a), (b), (c), (d) or
(h) above (if the Event of Default under clause (d) or (h) is
with respect to less than all series of Securities then
Outstanding) occurs and is continuing, then and in each and every
such case, unless the principal of all of the Securities of such
series shall have already become due and payable, either the
Trustee or the Holders of not less than 25% in aggregate
principal amount of the Securities of such series then
Outstanding hereunder (each such series voting as a separate
class), by notice in writing to the Issuer (and to the Trustee if
given by Securityholders), may declare the entire principal (or,
if the Securities of such series are Original Issue Discount
Securities, such portion of the principal as may be specified in
the terms of such series) of all Securities of such series and
the interest accrued thereon, if any, to be due and payable
immediately, and upon any such declaration the same shall become
immediately due and payable. If an Event of Default described in
clause (d), (e), (f), (g) or (h) above (if the Event of Default
under clause (d) or (h) is with respect to all series of
Securities then Outstanding) occurs and is continuing, then and
in each and every such case, unless the principal of all the
Securities shall have already become due and payable, either the
Trustee or the Holders of not less than 25% in aggregate
principal amount of all the Securities then Outstanding hereunder
(treated as one class), by notice in writing to the Issuer (and
to the Trustee if given by Securityholders), may declare the
entire principal (or, if any Securities are Original Issue
Discount Securities, such portion of the principal as may be
specified in the terms thereof) of all the Securities then
Outstanding and the interest accrued thereon, if any, to be due
and payable immediately, and upon any such declaration the same
shall become immediately due and payable.
The foregoing provisions, however, are subject to the
condition that, if, at any time after the principal (or, if the
Securities are Original Issue Discount Securities, such portion
of the principal as may be specified in the terms thereof) of the
Securities of any series (or of all the Securities, as the case
may be) shall have been so declared due and payable, and before
any judgment or decree for the payment of the moneys due shall
have been obtained or entered as hereinafter provided, the Issuer
shall pay or shall deposit with the Trustee a sum sufficient to
pay in the currency or currency unit in which the Securities of
such series are payable (except as otherwise specified as
contemplated by Section 3.1 for the Securities of such series and
except as provided in Sections 3.12(b), 3.12(e) and 3.12(f) of
this Indenture), all matured installments of interest, if any,
upon all the Securities of such series (or upon all the
Securities, as the case may be) and (in the currency or currency
unit described above) the principal of (and premium, if any, on)
any and all Securities of such series (or of all the Securities,
as the case may be) which shall have become due otherwise than by
acceleration (with interest upon such principal and premium, if
any, and, to the extent that payment of such interest is
enforceable under applicable law, on overdue installments of
interest, at the Overdue Rate applicable to such series to the
date of such payment or deposit) and in Dollars all amounts
payable to the Trustee pursuant to the provisions of Section 7.6
and such amount as shall be sufficient to cover reasonable
compensation to the Trustee, its agents, attorneys and counsel,
and all other expenses and liabilities incurred, and all advances
made, by the Trustee except as a result of negligence or bad
faith, and, if any and all Events of Default under the Indenture,
other than the non-payment of the principal of and accrued
interest on Securities of such series which shall have become due
by acceleration, shall have been cured, waived or otherwise
remedied as provided herein--then and in every such case the
Holders of a majority in aggregate principal amount of the
Securities of such series (each Series voting as a separate
class) or of all the Securities (voting as a single class), as
the case may be, then Outstanding, by written notice to the
Issuer and to the Trustee, may waive all defaults with respect to
that series (or with respect to all the Securities, as the case
may be) and rescind and annul such declaration and its
consequences, but no such waiver or rescission and annulment
shall extend to or shall affect any subsequent default or shall
impair any right consequent thereon.
In case the Trustee shall have proceeded to enforce any
right under this Indenture and such proceedings shall have been
discontinued or abandoned because of such rescission or annulment
or for any other reason or shall have been determined adversely
to the Trustee, then and in every such case the Issuer and the
Trustee shall be restored respectively to their several positions
and rights hereunder, and all rights, remedies and powers of the
Issuer and the Trustee shall continue as though no such
proceedings had been taken.
For all purposes under this Indenture, if a portion of the
principal of any Original Issue Discount Securities shall have
been accelerated and declared due and payable pursuant to the
provisions hereof, then, from and after such declaration, unless
such declaration has been rescinded and annulled, the principal
amount of such Original Issue Discount Securities shall be
deemed, for all purposes hereunder, to be such portion of the
principal thereof as shall be due and payable as a result of such
acceleration, and payment of such portion of the principal
thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all
other amounts owing thereunder, shall constitute payment in full
of such Original Issue Discount Securities.
SECTION 6.2. Collection of Indebtedness by Trustee; Trustee
May Prove Debt. The Issuer covenants that (a) in case default
shall be made in the payment of any installment of interest on
any of the Securities of any series when such interest shall have
become due and payable, and such default shall have continued for
a period of 30 days or (b) in case default shall be made in the
payment of all or any part of the principal of or premium, if
any, on any Securities of any series when the same shall have
become due and payable, whether upon Maturity of the Securities
of such series or upon any redemption or by declaration or
otherwise or (c) in case of default in the making or satisfaction
of any sinking fund payment or analogous obligation when the same
becomes due by the terms of the Securities of any series--then
upon demand of the Trustee for such series, the Issuer will pay
to the Trustee for the benefit of the Holder of any such Security
(or Holders of any such series of Securities in the case of
clause (c) above) and the Holders of any Coupons appertaining
thereto the whole amount that then shall have become due and
payable on any such Security (or Securities of any such series in
the case of clause (c) above) and matured Coupons, if any,
appertaining thereto for the principal, premium, if any, and
interest, if any, with interest upon the overdue principal and
premium, if any, and, so far as payment of the same is
enforceable under applicable law, on overdue installments of
interest, at the Overdue Rate applicable to any such Security (or
Securities of any such series in the case of clause (c)); and, in
addition thereto, such further amount as shall be sufficient to
cover the costs and expenses of collection and any further
amounts payable to the Trustee pursuant to the provisions of
Section 7.6.
In case the Issuer shall fail forthwith to pay such amounts
upon such demand, the Trustee, in its own name and as trustee of
an express trust, shall be entitled and empowered to institute
any action or proceedings at law or in equity for the collection
of the sums so due and unpaid and may prosecute any such action
or proceedings to judgment or final decree and may enforce any
such judgment or final decree against the Issuer or other obligor
upon such Securities (or Securities of any such series in the
case of clause (c)) and Coupons and collect in the manner
provided by law out of the property of the Issuer or other
obligor upon such Securities (or Securities of any such
series in the case of clause (c)) and Coupons, wherever situated,
the moneys adjudged or decreed to be payable.
The Trustee for any series of the Securities shall be
entitled and empowered, either in its own name as trustee of an
express trust, or as attorney-in-fact for the Holders of any of
the Securities of such series and for the Holders of any Coupons
appertaining thereto or in both such capacities, to file such
proof of debt, amendment of proof of debt, claim, petition or
other document as may be necessary or advisable in order to have
the claims of the Trustee and of the Holders of Securities of
such series and the Holders of any Coupons appertaining thereto
allowed in any equity receivership, insolvency, bankruptcy,
liquidation, readjustment, reorganization or other similar
proceedings, or any judicial proceedings, relative to the Issuer
or any other obligor on the Securities of such series and any
Coupons appertaining thereto or its creditors or its property.
The Trustee for each series of the Securities is hereby
irrevocably appointed (and the successive respective Holders of
the Securities of such series and the Holders of any Coupons
appertaining thereto, by taking and holding the same, shall be
conclusively deemed to have so appointed the Trustee) the true
and lawful attorney-in-fact of the respective Holders of the
Securities of such series and the Holders of any Coupons
appertaining thereto, with authority to make or file in the
respective names of the Holders of the Securities of such series
and the Holders of any Coupons appertaining thereto or on behalf
of all the Holders of Securities of all series and the Holders of
any Coupons appertaining thereto for which it is Trustee any
proof of debt, amendment of proof of debt, claim, petition or
other document in any such proceedings and to receive payment of
any sums becoming distributable on account thereof, and to
execute any other papers and documents and do and perform any and
all acts and things for and on behalf of such Holders of the
Securities of such series and the Holders of any Coupons
appertaining thereto, as may be necessary or advisable in the
opinion of the Trustee in order to have the respective claims of
the Holders of the Securities of such series and the Holders of
any Coupons appertaining thereto against the Issuer or any other
obligor on the Securities of such series and any Coupons
appertaining thereto and/or its property allowed in any such
proceedings, and to receive payment of or on account of such
claims in moneys or such other properties payable therefor and to
distribute the same; provided, however, that nothing herein
contained shall be deemed to authorize or empower the Trustee to
consent to or accept or adopt, on behalf of any Holder of
Securities of any series or any Holder of any Coupons
appertaining thereto, any plan of reorganization, arrangement or
readjustment of the Issuer or any other obligor on the Securities
of any series and any Coupons appertaining thereto or, by other
action of any character in any such proceeding, to waive or
change in any way any right of any Holder of any Security of any
series or any Holder of any Coupon appertaining thereto even
though it may otherwise be entitled so to do under any present or
future law, all such power or authorization being thereby
expressly denied.
All rights of action and of asserting claims under this
Indenture, or under any of the Securities of any series or
Coupons appertaining thereto, may be enforced by the Trustee for
such series without the possession of any of the Securities of
any series or Coupons appertaining thereto, or the production
thereof on any trial or other proceedings relative thereto, and
any such action or proceedings instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any
recovery of judgment, subject to the payment of the expenses,
disbursements and compensation of the Trustee for such series,
each predecessor Trustee and their respective agents and
attorneys, shall be for the ratable benefit of the holders of the
Securities or Coupons in respect of which such action was taken.
In any proceedings brought by the Trustee (and also any
proceedings involving the interpretation of any provision of this
Indenture to which the Trustee shall be party) the Trustee shall
be held to represent all the Holders of the Securities in respect
of which such action was taken, and it shall not be necessary to
make any Holders of such Securities parties to any such
proceedings.
SECTION 6.3. Application of Proceeds. Any moneys collected
by the Trustee pursuant to this Article in respect of any series
of the Securities, together with any other sums held by the
Trustee (as such) hereunder (other than sums held in trust for
the benefit of the Holders of particular Securities or Coupons),
shall be applied in the following order at the date or dates
fixed by the Trustee and, in case of the distribution of such
moneys on account of principal or interest, upon presentation
(except in respect of Subdivision First below) of the several
Securities and any Coupons appertaining thereto in respect of
which moneys have been collected and stamping (or otherwise
noting) thereon the payment, or issuing Securities of such series
in reduced principal amounts in exchange for the presented
Securities of like series if only partially paid, or upon
surrender thereof if fully paid:
FIRST: To the payment of costs and expenses applicable
to such series in respect of which moneys have been
collected, including reasonable compensation to the Trustee
and each predecessor Trustee and their respective agents and
attorneys, and of all expenses and liabilities incurred, and
all advances made, by the Trustee and each predecessor
Trustee, except as a result of negligence or bad faith, and
all other amounts due to the Trustee or any predecessor
Trustee pursuant to Section 7.6;
SECOND: In case the principal of the Securities of such
series in respect of which moneys have been collected shall
not have become and be then due and payable, to the payment
of interest on the Securities of such series in default in
the order of the maturity of the installments of such
interest, with interest (to the extent that such interest
has been collected by the
Trustee), so far as it may be enforceable under applicable
law, upon the overdue installments of interest at the
Overdue Rate applicable to such series, such payments to be
made ratably to the persons entitled thereto, without
discrimination or preference;
THIRD: In case the principal of the Securities of such
series in respect of which moneys have been collected shall
become and shall be then due and payable, to the payment of
the whole amount then owing and unpaid upon all the
Securities of such series for principal, premium, if any,
and interest, if any, with interest upon the overdue
principal, and (to the extent that such interest has been
collected by the Trustee), so far as payment of the same is
enforceable under applicable law, upon overdue installments
of interest, if any, at the Overdue Rate applicable to such
series; and, in case such moneys shall be insufficient to
pay in full the whole amount so due and unpaid upon the
Securities of such series, then to the payment of such
principal, premium, if any, and interest, if any, without
preference or priority, of principal and premium, if any,
over interest, or of interest, if any, over principal and
premium, if any, or of any installment of interest, if any,
over any other installment of interest, if any, or of any
Security of such series over any other Security of such
series, or of any Coupon appertaining thereto over any other
Coupon appertaining thereto, ratably to the aggregate of
such principal premium, if any, and accrued and unpaid
interest, if any; and
FOURTH: To the payment of the remainder, if any, to the
Issuer or any other person lawfully entitled thereto or as a
court of competent jurisdiction may direct.
SECTION 6.4. Suits for Enforcement. In case an Event of
Default with respect to Securities of any series has occurred,
has not been waived and is continuing, the Trustee for such
series may in its discretion proceed to protect and enforce the
rights vested in it by this Indenture by such appropriate
judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific
enforcement of any covenant or agreement contained in this
Indenture or in aid of the exercise of any power granted in this
Indenture or to enforce any other legal or equitable right vested
in the Trustee by this Indenture or by law.
SECTION 6.5. Restoration of Rights on Abandonment of
Proceedings. In case the Trustee shall have proceeded to enforce
any right under this Indenture and such proceedings shall have
been discontinued or abandoned for any reason, or shall have been
determined adversely to the Trustee, then and in every such case
the Issuer and the Trustee shall be restored respectively to
their former positions and rights
xxxxxxxxx, and all rights, remedies and powers of the Issuer, the
Trustee and the Securityholders shall continue as though no such
proceedings had been taken.
SECTION 6.6. Limitations on Suits by Securityholders. No
Holder of any Security of any series or Holder of any Coupon
appertaining thereto shall have any right by virtue or by
availing of any provision of this Indenture to institute any
action or proceeding at law or in equity or in bankruptcy or
otherwise upon or under or with respect to this Indenture, or for
the appointment of a trustee, receiver, liquidator, custodian or
other similar official or for any other remedy hereunder, unless
such Holder previously shall have given to the Trustee for such
series written notice of default with respect to such series and
of the continuance thereof, as hereinbefore provided, and unless
also the Holders of not less than 25% in aggregate principal
amount of the Securities of such series then Outstanding shall
have made written request upon the Trustee for such series to
institute such action or proceeding in its own name as Trustee
hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby and the Trustee for
60 days after its receipt of such notice, request and offer of
indemnity shall have failed to institute any such action or
proceeding and no direction inconsistent with such written
request shall have been given to the Trustee pursuant to
Section 6.9; it being understood and intended, and being
expressly covenanted by the taker and Holder of every Security
and by the taker and Holder of any Coupon appertaining thereto
with every other taker and Holder of any Security and of any
Coupon appertaining thereto and the Trustee for the Securities of
each series that no one or more Holders of Securities of any
series or of any Coupons appertaining thereto shall have any
right in any manner whatever by virtue or by availing of any
provision of this Indenture to affect, disturb or prejudice the
rights of any other Holder of Securities of such series or of any
Coupons appertaining thereto, or to obtain or seek to obtain
priority over or preference to any other such Holder or to
enforce any right under this Indenture, except in the manner
herein provided and for the equal, ratable and common benefit of
all Holders of Securities of such series or of any Coupons
appertaining thereto. For the protection and enforcement of the
provisions of this Section, each and every Holder of Securities
of any series or of any Coupons appertaining thereto and the
Trustee shall be entitled to such relief as can be given either
at law or in equity.
SECTION 6.7. Unconditional Right of Securityholders To
Institute Certain Suits. Nothing contained in this Indenture, in
the Securities of any series or in any Coupon appertaining
thereto shall affect or impair the obligation of the Issuer,
which is unconditional and absolute, to pay the principal of, and
premium, if any, and interest, if any, on the Securities of such
series at the respective places, at the respective times, at the
respective rates, in the respective amounts and in the coin,
currency, or currency unit therein and herein prescribed or to
provide for the
conversion of Securities pursuant to Article Seventeen hereof if
the terms of such Securities provide for such conversion pursuant
to Section 3.1 or affect the right of any Holder of a Security of
any series or a Coupon to receive payment of the principal of (or
premium, if any) or interest, if any, on any such Security or
Coupon on or after the Maturity of such Security or the related
Interest Payment Date, or affect the right, which is also
absolute and unconditional, of any Holder to require conversion
of his Securities pursuant to Article Seventeen hereof if the
terms of such Securities provide for convertibility pursuant to
Section 3.1, or affect or impair the right of action, which is
also absolute and unconditional, of any Holder of any Security or
Coupon, if any, to institute suit to enforce such payment at the
respective due dates expressed in such Security or Coupon, if
any, or upon redemption, by declaration, repayment or otherwise
as herein provided without reference to, or the consent of, the
Trustee or the Holder of any other Security or Coupon, if any,
unless such Holder consents thereto.
SECTION 6.8. Powers and Remedies Cumulative; Delay or
Omission Not Waiver of Default. Except as provided in
Section 6.6, no right or remedy herein conferred upon or reserved
to the Trustee for any series of the Securities or to the Holder
of any Security of such series or any Coupon appertaining thereto
is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
No delay or omission of the Trustee or of any Holder of any
Security of any series or any Coupon appertaining thereto to
exercise any right or power accruing upon any Event of Default
occurring and continuing as aforesaid shall impair any such right
or power or shall be construed to be a waiver of any such Event
of Default or an acquiescence therein; and, subject to
Section 6.6, every power and remedy given by this Indenture or by
law to the Trustee for any series of the Securities or to the
Holder of the Security of such series or any Coupon appertaining
thereto may be exercised from time to time, and as often as shall
be deemed expedient, by the Trustee or by the Holder of such
Security or any Coupon appertaining thereto.
SECTION 6.9. Control by the Holders of Securities. The
Holders of a majority in aggregate principal amount of the
Securities of each series affected (with each series voting as a
separate class) at the time Outstanding shall have the right to
direct the time, method, and place of conducting any proceeding
for any remedy available to the Trustee for such series, or
exercising any trust or power conferred on the Trustee with
respect to the Securities of such series by this Indenture;
provided
that such direction shall not be otherwise than in accordance
with law and the provisions of this Indenture and provided
further that (subject to the provisions of Section 7.1) the
Trustee shall have the right to decline to follow any such
direction if the Trustee, being advised by counsel, shall
determine that the action or proceeding so directed may not
lawfully be taken or if the Trustee in good faith by its board of
directors, the executive committee or a trust committee of
directors or responsible officers of the Trustee shall determine
that the action or proceedings so directed would involve the
Trustee in personal liability or if the Trustee in good faith
shall so determine that the actions or forbearances specified in
or pursuant to such direction would be unduly prejudicial to the
interests of Holders of the Securities of all series so affected
not joining in the giving of said direction, it being understood
that (subject to Section 7.1) the Trustee shall have no duty to
ascertain whether or not such actions or forbearances are unduly
prejudicial to such Holders.
Nothing in this indenture shall impair the right of the
Trustee in its discretion to take any action deemed proper by the
Trustee and which is not inconsistent with such direction or
directions by Securityholders.
SECTION 6.10. Waiver of Past Defaults. Prior to the
declaration of the acceleration of the maturity of the Securities
of any series as provided in Section 6.1, the Holders of a
majority in aggregate principal amount of the Securities of such
series at the time Outstanding may on behalf of the Holders of
all the Securities of such series waive any past default or Event
of Default described in clauses (d) and (h) of Section 6.1 which
relates to less than all series of Securities then Outstanding,
the Holders of a majority in aggregate principal amount of the
Securities then Outstanding affected thereby (each series voting
as a separate class) may waive any such default or Event of
Default or, in the case of an event specified in clause (d) or
(h) (if the Event of Default under clause (d) or (h) relates to
all series of Securities then Outstanding), (e), (f) or (g) of
Section 6.1, the Holders of a majority in aggregate principal
amount of all the Securities then Outstanding (voting as one
class) may waive any such default or Event of Default and its
consequences, except a default in respect of a covenant or
provision hereof which cannot be modified or amended without the
consent of the Holder of each Security affected. In the case of
any such waiver, the Issuer, the Trustee and the Holders of the
Securities of such series shall be restored to their former
positions and rights hereunder, respectively, such default shall
cease to exist and be deemed to have been cured and not to have
occurred, and any Event of Default arising therefrom shall be
deemed to have been cured and not to have occurred for every
purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any
right consequent thereon.
SECTION 6.11. Trustee To Give Notice of Default, But May
Withhold in Certain Circumstances. The Trustee shall transmit to
the Securityholders of any series, as the names and addresses of
such Holders appear on the registry books, and to such Holders of
Securities of any series and of Coupons as have, within two years
preceding such notice, filed their names and addresses with the
Trustee for that purpose, notice by mail of all defaults known to
the Trustee which have occurred with respect to such series, such
notice to be transmitted within 90 days after the occurrence
thereof, unless such defaults shall have been cured before the
giving of such notice (the term "default" or "defaults" for the
purposes of this Section being hereby defined to mean any event
or condition which is, or with notice or lapse of time or both
would become, an Event of Default); provided that, except in the
case of default in the payment of the principal of or interest on
any of the Securities of such series, the Trustee shall be
protected in withholding such notice if and so long as the board
of directors, the executive committee or a trust committee of
directors or trustees and/or responsible officers of the Trustee
in good faith determines that the withholding of such notice is
in the interests of the Securityholders of such series and of
Coupons, if any, appertaining thereto.
SECTION 6.12. Right of Court To Require Filing of
Undertaking To Pay Costs. All parties to this Indenture agree,
and each Holder of any Security and each Holder of any Coupon by
his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture or in any
suit against the Trustee for the Securities of any series for any
action taken, suffered or omitted by it as Trustee, the filing by
any party litigant in such suit of an undertaking to pay the
costs of such suit and that such court may in its discretion
assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section shall not
apply to any suit instituted by the Trustee for the Securities of
any series, to any suit instituted by any Securityholder or group
of Securityholders of any series holding in the aggregate more
than 10% in aggregate principal amount of the Securities of such
series Outstanding or, in the case of any suit relating to or
arising under clause (d) or (h) of Section 6.1 (if the suit
relates to Securities of more than one but less than all series),
10% in aggregate principal amount of Securities Outstanding
affected thereby or, in the case of any suit relating to or
arising under clause (d), (h) (if the suit under clause (d) or
(h) relates to all the Securities then Outstanding), (e), (f) or
(g) of Section 6.1, 10% in aggregate principal amount of all
Securities Outstanding or to any suit instituted by any Holder of
Securities or Coupons for the enforcement of the payment of the
principal of, premium, if any, or interest, if any, on any
Security or Coupon on or after the due date expressed in such
Security or Coupon.
SECTION 6.13. Judgment Currency. If, for the purpose of
obtaining a judgment in any court with respect to any obligation
of the Issuer hereunder or under any Security or Coupon, it shall
become necessary to convert into any other currency or currency
unit any amount in the currency or currency unit due hereunder or
under such Security or Coupon, then such conversion shall be made
at the Currency Conversion Rate as in effect on the date the
Issuer 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 Currency Conversion Rate and
the Currency Conversion Rate as in effect on the date of payment,
the Issuer agrees to pay such additional amounts (if any) as may
be necessary to ensure that the amount paid is the amount in such
other currency or currency unit which, when converted at the
Currency Conversion Rate as in effect on the date of payment or
distribution, is the amount then due hereunder or under such
Security or Coupon. Any amount due from the Issuer under this
Section 6.13 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 or Coupon.
In no event, however, shall the Issuer be required to pay more in
the currency or currency unit due hereunder or under such
Security or Coupon at the Currency Conversion Rate as in effect
when payment is made than the amount of currency or currency unit
stated to be due hereunder or under such Security or Coupon so
that in any event the Issuer's obligations hereunder or under
such Security or Coupon will be effectively maintained as
obligations in such currency or currency unit.
For purposes of this Section 6.13, "Currency Conversion
Rate" shall mean the spot rate at which in accordance with normal
banking procedures the currency or currency unit into which an
amount due hereunder or under any Security or Coupon is to be
converted could be purchased with the currency or currency unit
due hereunder or under any Security or Coupon from major banks
located in New York, London or any other principal market for
such purchased currency or currency unit.
ARTICLE SEVEN
CONCERNING THE TRUSTEE
SECTION 7.1. Duties and Responsibilities of the Trustee;
During Default; Prior to Default. With respect to the Holders of
any series of Securities issued hereunder, the Trustee, prior to
the occurrence of an Event of Default with respect to the
Securities of that series and after the curing or waiving of all
Events of Default which may have occurred with respect to such
series, undertakes to perform such duties and only such duties as
are specifically set forth in this Indenture. In case an
Event of Default with respect to the Securities of a series has
occurred (which has not been cured or waived) the Trustee as to
that series 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 wilful misconduct, except
that:
(a) prior to the occurrence of an Event of Default with
respect to the Securities of such series and after the
curing or waiving of all such Events of Default with respect
to such series which may have occurred:
(i) the duties and obligations of the Trustee with
respect to the Securities of any series shall be
determined solely by the express provisions of this
Indenture, and the Trustee shall not be liable except
for the performance of such duties and obligations as
are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into
this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of
the Trustee, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the
opinions expressed therein, upon any statements,
certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but,
in the case of any such statements, certificates or
opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this
Indenture;
(b) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer or
Responsible Officers of the Trustee, unless it shall be
proved that the Trustee was negligent in ascertaining the
pertinent facts;
(c) the Trustee shall not be liable for any
determination, action or judgment of any Dollar
Determination Agent or any other agent appointed by the
Issuer pursuant to this Indenture; and
(d) the Trustee for the Securities of any series 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 of Securities
of such series pursuant to Section 6.9 relating to the time,
method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture with
respect to the Securities of such series.
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 ground for believing that the repayment
of such funds or adequate indemnity against such liability is not
reasonably assured to it.
SECTION 7.2. Certain Rights of the Trustee. Subject to
Section 7.1:
(a) the Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution,
Officers' Certificate, certificate of a Dollar Determination
Agent or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, bond,
debenture, note, coupon, security or other paper or document
believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request, direction, order or demand of the
Issuer mentioned herein shall be sufficiently evidenced by
an Officers' Certificate (unless other evidence in respect
thereof be herein specifically prescribed); and any
resolution of the Board of Directors may be evidenced to the
Trustee by a copy thereof certified by the secretary or any
assistant secretary of the Issuer;
(c) the Trustee may consult with counsel and any advice
or Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken,
suffered or omitted to be taken by it hereunder in good
faith and in accordance with such advice or Opinion of
Counsel;
(d) the Trustee for Securities of any series shall be
under no obligation to exercise any of the trusts or powers
vested in it by this Indenture at the request, order or
direction of any of the Securityholders of such series
pursuant to the provisions of this Indenture, unless such
Securityholders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and
liabilities which might be incurred therein or thereby;
(e) the Trustee shall not be liable for any action
taken or omitted by it in good faith and believed by it to
be authorized or within the discretion, rights or powers
conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default
hereunder and after the curing or waiving of all Events of
Default, the Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval,
appraisal, bond, debenture, note, coupon, security or other
paper or document unless requested in writing so to do by
the Holders of not less than a majority in aggregate
principal amount of the Securities of all series affected
then Outstanding; provided that, if the payment within a
reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of
such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded
to it by the terms of this Indenture, the Trustee may
require reasonable indemnity against such expenses or
liabilities as a condition to proceeding; the reasonable
expenses of every such investigation shall be paid by the
Issuer or, if paid by the Trustee or any predecessor
Trustee, shall be repaid by the Issuer upon demand; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or
by or through agents or attorneys not regularly in its
employ and the Trustee shall not be responsible for any
misconduct or negligence on the part of any such agent or
attorney appointed with due care by it hereunder.
SECTION 7.3. Trustee Not Responsible for Recitals,
Disposition of Securities or Application of Proceeds
Thereof. The recitals contained herein and in the Securities,
except the certificates of authentication, shall be taken as the
statements of the Issuer, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes
no representation as to the validity or sufficiency of this
Indenture or of the Securities or Coupons. The Trustee shall not
be accountable for the use or application by the Issuer of any of
the Securities or of the proceeds thereof.
SECTION 7.4. Trustee and Agents May Hold Securities;
Collections, etc. The Trustee, any Paying Agent, any Securities
Registrar or any agent of the Issuer or the Trustee, in its
individual or any other capacity, may become the owner or pledgee
of Securities or Coupons with the same rights it would have if it
were not the Trustee or such agent and, subject to Sections 7.8
and 7.13, if operative, may otherwise deal with the Issuer and
receive, collect, hold and retain collections from the Issuer
with the same rights it would have if it were not the Trustee,
Paying Agent, Securities Registrar or such agent.
SECTION 7.5. Moneys Held by Trustee. Subject to the
provisions of Section 4.4 hereof, all moneys in any currency or
currency unit received by the Trustee shall, until used or
applied as herein provided, be held in trust for the
purposes for which they were received, but need not be segregated
from other funds except to the extent required by mandatory
provisions of law. The Trustee shall be under no liability for
interest on any money received by it hereunder except as
otherwise agreed with the Issuer.
SECTION 7.6. Compensation and Indemnification of Trustee and
Its Prior Claim. The Issuer covenants and agrees to pay to the
Trustee for the Securities of each series from time to time, and
the Trustee shall be entitled to, reasonable compensation in
Dollars (which compensation shall not be limited by any provision
of law in regard to the compensation of a trustee of an express
trust) and the Issuer covenants and agrees to pay or reimburse
the Trustee and each predecessor Trustee in Dollars for the
Securities of each series upon its request for all reasonable
expenses, disbursements and advances incurred or made by or on
behalf of it in accordance with any of the provisions of this
Indenture (including, without limitation, the reasonable
compensation and the expenses and disbursements of its counsel
and of all agents and other persons not regularly in its employ)
except any such expense, disbursement or advance as may arise
from its negligence or bad faith. The Issuer also covenants to
indemnify in Dollars the Trustee and each predecessor Trustee for
the Securities of each series for, and to hold it harmless
against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of this
Indenture or the trusts hereunder and the performance of its
duties hereunder, including, without limitation, the costs and
expenses of defending itself against or investigating any claim
of liability in the premises. The obligations of the Issuer under
this Section to compensate and indemnify the Trustee and each
predecessor Trustee and to pay or reimburse the Trustee and each
predecessor Trustee for expenses, disbursements and advances
shall constitute additional indebtedness hereunder and shall
survive the satisfaction and discharge of this Indenture. Such
additional indebtedness shall be a claim prior to that of the
Securities upon all property and funds held or collected by the
Trustee as such, except funds held in trust for the benefit of
the Holders of particular Securities, and the Securities are
hereby subordinated to such senior claim.
SECTION 7.7. Right of Trustee To Rely on Officers'
Certificate, etc. Subject to Sections 7.1 and 7.2, whenever in
the administration of the trusts of this Indenture the Trustee
shall deem it necessary or desirable that a matter be proved or
established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof
be herein specifically prescribed) may, in the absence of
negligence or bad faith on the part of the Trustee, be deemed to
be conclusively proved and established by an Officers'
Certificate delivered to the Trustee, and such certificate, in
the absence of negligence or bad faith on the part of the
Trustee, shall be full warrant to the Trustee for any action
taken, suffered or omitted by it under the provisions of this
Indenture upon the faith thereof.
SECTION 7.8. Qualification of Trustee; Conflicting
Interests. The Trustee for the Securities of any series issued
hereunder shall be subject to the provisions of Section 310(b) of
the Trust Indenture Act during the period of time provided for
therein. In determining whether the Trustee has a conflicting
interest as defined in Section 310(b) of the Trust Indenture Act
with respect to the Securities of any series, there shall be
excluded this Indenture with respect to Securities of any
particular series of Securities other than that series. Nothing
herein shall prevent the Trustee from filing with the Commission
the application referred to in the penultimate paragraph of
Section 310(b) of the Trust Indenture Act.
SECTION 7.9. Persons Eligible for Appointment as
Trustee. There shall at all times be a Trustee for each series
of Securities hereunder, which shall at all times be either
(i) a corporation organized and doing business under
the laws of the United States of America or of any State or
the District of Columbia which is authorized under such laws
to exercise corporate trust powers and is subject to
supervision or examination by Federal, State or District of
Columbia authority, or
(ii) a corporation or other Person organized and doing
business under the laws of a foreign government that is
permitted to act as Trustee pursuant to a rule, regulation
or order of the Commission, authorized under such laws to
exercise corporate trust powers and is subject to
supervision or examination by authority of such foreign
government or a political subdivision thereof substantially
equivalent to supervision or examination applicable to
United States institutional trustees,
in either case having a combined capital and surplus of at least
$10,000,000. If such corporation publishes reports of condition
at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then, for the
purposes of this Section 7.9, the combined capital and surplus of
such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published. In case at any time the Trustee for the Securities of
any series shall cease to be eligible in accordance with the
provisions of this Section 7.9, the Trustee shall resign
immediately in the manner and with the effect specified in
Section 7.10. Neither the Issuer nor any person directly or
indirectly controlling, controlled by or under common control
with the Issuer shall serve as trustee for the Securities of any
series issued hereunder.
SECTION 7.10. Resignation and Removal; Appointment of
Successor Trustee. (a) The Trustee, or any trustee or trustees
hereafter appointed, for the
Securities of any series may at any time resign with respect to
one or more or all series of Securities by giving written notice
of resignation to the Issuer and by mailing notice thereof by
first-class mail to Holders of the applicable series of
Securities at their last addresses as they shall appear on the
Security Register. Upon receiving such notice of resignation, the
Issuer shall promptly appoint a successor trustee or trustees
with respect to the applicable series by written instrument in
duplicate, exe- cuted by authority of the Board of Directors, one
copy of which instrument shall be delivered to the resigning
Trustee and one copy to the successor trustee or trustees. If no
successor trustee shall have been so appointed with respect to
any series and have accepted appointment within 30 days after the
mailing of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment
of a successor trustee, or any Securityholder who has been a bona
fide Holder of a Security or Securities of the applicable series
for at least six months may, subject to the provisions of
Section 6.12, on behalf of himself and all others similarly
situated, petition any such court for the appointment of a
successor trustee. Such court may thereupon, after such notice,
if any, as it may deem proper and prescribe, appoint a successor
trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee for the Securities of any series shall
fail to comply with the provisions of Section 7.8 with
respect to any series of Securities after written request
therefor by the Issuer or by any Securityholder who has been
a bona fide Holder of a Security or Securities of such
series for at least six months;
(ii) the Trustee for the Securities of any series shall
cease to be eligible in accordance with the provisions of
Section 7.9 and shall fail to resign after written request
therefor by the Issuer or by any Securityholder of such
series; or
(iii) the Trustee for the Securities of any series
shall become incapable of acting with respect to any series
of Securities, or shall be adjudged a bankrupt or insolvent,
or a receiver or liquidator of the Trustee or of its
property shall be appointed, or any public officer shall
take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation;
then, in any such case, the Issuer may remove the Trustee with
respect to the applicable series of Securities and appoint a
successor trustee for such series by written instrument, in
duplicate, executed by order of the Board of Directors, one copy
of which instrument shall be delivered to the Trustee so removed
and one copy
to the successor trustee, or, subject to the provisions of
Section 6.12, any Securityholder who has been a bona fide Holder
of a Security or Securities of such series for at least six
months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor trustee
with respect to such series. Such court may thereupon, after such
notice, if any, as it may deem proper and prescribe, remove the
Trustee and appoint a successor trustee for such series.
(c) The Holders of a majority in aggregate principal amount
of the Securities of each series at the time Outstanding may at
any time remove the Trustee with respect to the Securities of
such series and appoint a successor trustee with respect to the
Securities of such series by delivering to the Trustee so
removed, to the successor trustee so appointed and to the Issuer
the evidence provided for in Section 8.1 of the action in that
regard taken by the Securityholders.
(d) Any resignation or removal of the Trustee with respect
to any series of the Securities and any appointment of a
successor trustee with respect to such series pursuant to any of
the provisions of this Section 7.10 shall become effective upon
acceptance of appointment by the successor trustee as provided in
Section 7.11.
SECTION 7.11. Acceptance of Appointment by Successor
Trustee. Any successor trustee appointed as provided in
Section 7.10 shall execute, acknowledge and deliver to the Issuer
and to its predecessor trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal
of the predecessor trustee with respect to all or any applicable
series of the Securities shall become effective and such
successor trustee, without any further act, deed or conveyance,
shall become vested with all rights, powers, duties and
obligations with respect to such series of its predecessor
hereunder, with like effect as if originally named as trustee for
such series hereunder; but, nevertheless, on the written request
of the Issuer, or of the successor trustee, upon payment of its
charges then unpaid, the Trustee ceasing to act shall, subject to
Section 4.4, pay over to the successor trustee all moneys at the
time held by it hereunder and shall execute and deliver an
instrument transferring to such successor trustee all such
rights, powers, duties and obligations. Upon request of any such
successor trustee, the Issuer shall execute any and all
instruments in writing for more fully and certainly vesting in
and confirming to such successor trustee all such rights and
powers. Any Trustee ceasing to act shall, nevertheless, retain a
prior claim upon all property or funds held or collected by such
trustee to secure any amounts then due it pursuant to the
provisions of Section 7.6.
If a successor trustee is appointed with respect to the
Securities of one or more (but not all) series, the Issuer, the
predecessor Trustee and each successor trustee with
respect to the Securities of any applicable series shall execute
and deliver an indenture supplemental hereto which shall contain
such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the
predecessor Trustee with respect to the Securities of any series
as to which the predecessor Trustee is not retiring shall
continue to be vested in the predecessor Trustee and shall add to
or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, it being understood
that nothing herein or in such supplemental indenture shall
constitute such Trustees cotrustees of the same trust and that
each such Trustee shall be trustee of a trust or trusts under
separate indentures.
No successor trustee with respect to any series of
Securities shall accept appointment as provided in this
Section 7.11 unless at the time of such acceptance such successor
trustee shall be qualified under the provisions of Section 7.8
and eligible under the provisions of Section 7.9.
Upon acceptance of appointment by any successor trustee as
provided in this Section 7.11, the Issuer shall mail notice
thereof by first-class mail to the Holders of Securities of any
applicable series and to the Holders of Coupons, if any,
appertaining thereto for which such successor trustee is acting
as Trustee at their last addresses as they shall appear in the
Security Register. If the acceptance of appointment is
substantially contemporaneous with the resignation, then the
notice called for by the preceding sentence may be combined with
the notice called for by Section 7.10. If the Issuer fails to
mail such notice within 10 days after acceptance of appointment
by the successor trustee, the successor trustee shall cause such
notice to be mailed at the expense of the Issuer.
SECTION 7.12. Merger, Conversion, Consolidation or
Succession to Business of Trustee. Any corporation into which the
Trustee for the Securities of any series 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 the corporate trust business of the
Trustee, shall be the successor of the Trustee for such series
hereunder; provided that such corporation shall be qualified
under the provisions of Section 7.8 and eligible under the
provisions of Section 7.9, without the execution or filing of any
paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall
succeed to the trusts created by this Indenture any of the
Securities of one or more series shall have been authenticated
but not delivered, any such successor to the Trustee may adopt
the certificate of authentication of any predecessor Trustee and
deliver such Securities so
authenticated; and, in case at that time any of the Securities of
any series shall not have been authenticated, any successor to
the Trustee may authenticate such Securities either in the name
of any predecessor hereunder or in the name of the successor
trus- tee; and in all such cases such certificate shall have the
full force which it is anywhere in the Securities of such series
or in this Indenture provided that the certificate of the Trustee
shall have; provided, however, that the right to adopt the
certificate of authentication of any predecessor Trustee or to
authenticate Securities of any series in the name of any
predecessor Trustee shall apply only to its successor or
successors by merger, conversion or consolidation.
SECTION 7.13. Preferential Collection of Claims Against the
Issuer. (a) Subject to the provisions of this Section 7.13, if
the Trustee for the Securities of any series shall be or shall
become a creditor, directly or indirectly, secured or unsecured,
of the Issuer or any other obligor of the Securities of such
series within three months prior to a default, as defined in
subsection (c) of this Section 7.13, or subsequent to such a
default, then, unless and until such default shall be cured, the
Trustee shall set apart and hold in a special account for the
benefit of the Trustee individually, the Holders of the
Securities of such series, the Holders of the Coupons, if any,
appertaining thereto and the holders of other indenture
securities (as defined in this Section 7.13):
(1) an amount equal to any and all reductions in the
amount due and owing upon any claim as such creditor in
respect of principal or interest, effected after the
beginning of such three-month period and valid as against
the Issuer and its other creditors, except any such
reduction resulting from the receipt or disposition of any
property described in subsection (a)(2) of this Section 7.13
or from the exercise of any right of setoff which the
Trustee could have exercised if a petition in bankruptcy had
been filed by or against the Issuer upon the date of such
default; and
(2) all property received by the Trustee in respect of
any claim as such creditor, either as security therefor or
in satisfaction or composition thereof, or otherwise, after
the beginning of such three months' period, or an amount
equal to the proceeds of any such property, if disposed of,
subject, however, to the rights, if any, of the Issuer and
its other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of
the Trustee:
(A) to retain for its own account (i) payments
made on account of any such claim by any person (other
than the Issuer) who is liable thereon, (ii) the
proceeds of the bona fide sale of any such claim by the
Trustee to a third person and (iii) distributions made
in cash, securities or other property in respect of
claims filed against the Issuer in bankruptcy or
receivership or in proceedings for reorganization
pursuant to the Federal Bankruptcy Code or applicable
state law;
(B) to realize, for its own account, upon any
property held by it as security for any such claim, if
such property was so held prior to the beginning of
such three months' period;
(C) to realize, for its own account, but only to
the extent of the claim hereinafter mentioned, upon any
property held by it as security for any such claim, if
such claim was created after the beginning of such
three months' period and such property was received as
security therefor simultaneously with the creation
thereof, and if the Trustee shall sustain the burden of
proving that at the time such property was so received
the Trustee had no reasonable cause to believe that a
default as defined in subsection (c) of this Section
would occur within three months; or
(D) to receive payment on any claim referred to in
paragraph (B) or (C), against the release of any
property held as security for such claim as provided in
such paragraph (B) or (C), as the case may be, to the
extent of the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property
substituted after the beginning of such three months' period for
property held as security at the time of such substitution shall,
to the extent of the fair value of the property released, have
the same status as the property released, and, to the extent that
any claim referred to in any of such paragraphs is created in
renewal of or in substitution for or for the purpose of repaying
or refunding any preexisting claim of the Trustee as such
creditor, such claim shall have the same status as such
preexisting claim.
If the Trustee for the Securities of any series shall be
required to account, the funds and property held in such special
account and the proceeds thereof shall be apportioned among the
Trustee, the Holders of the Securities of such series, the
Holders of the Coupons, if any, appertaining thereto and the
holders of other indenture securities in such manner that the
Trustee, such Holders and the holders of other indenture
securities realize, as a result of payments from such special
account and payments of dividends on claims filed against the
Issuer in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal Bankruptcy Code or
applicable State law, the same percentage of their respective
claims, figured before crediting to the claim of the Trustee
anything on account of the receipt by it
from the Issuer of the funds and property in such special account
and before crediting to the respective claims of the Trustee,
Holders of the Securities of such series, the Holders of the
Coupons, if any, appertaining thereto and the holders of other
indenture securities dividends on claims filed against the Issuer
in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal Bankruptcy Code or
applicable State law, but after crediting thereon receipts on
account of the indebtedness represented by their respective
claims from all sources other than from such dividends and from
the funds and property so held in such special account. As used
in this paragraph, with respect to any claim, the term
"dividends" shall include any distribution with respect to such
claim, in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal Bankruptcy Code or
applicable State law, whether such distribution is made in cash,
securities or other property, but shall not include any such
distribution with respect to the secured portion, if any, of such
claim. The court in which such bankruptcy, receivership or
proceeding for reorganization is pending shall have jurisdiction
(i) to apportion among the Trustee, the Holders of such
Securities, the Holders of the Coupons, if any, appertaining
thereto and the holders of other indenture securities, in
accordance with the provisions of this paragraph, the funds and
property held in such special account and the proceeds thereof or
(ii) in lieu of such apportionment, in whole or in part, to give
to the provisions of this paragraph due consideration in
determining the fairness of the distributions to be made to the
Trustee, the Holders of such Securities, the Holders of the
Coupons, if any, appertaining thereto and the holders of other
indenture securities with respect to their respective claims, in
which event it shall not be necessary to liquidate or to appraise
the value of any securities or other property held in such
special account or as security for any such claim, to make a
specific allocation of such distributions, as between the secured
and unsecured portions of such claims, or otherwise to apply the
provisions of this paragraph as a mathematical formula.
Any Trustee who has resigned or been removed after the
beginning of such three-month period shall be subject to the
provisions of this subsection (a) as though such resignation or
removal had not occurred. If any Trustee has resigned or been
removed prior to the beginning of such three months' period, it
shall be subject to the provisions of this subsection (a) if and
only if the following conditions exist:
(i) the receipt of property or reduction of claim which
would have given rise to the obligation to account, if such
Trustee had continued as trustee, occurred after the
beginning of such three months' period; and
(ii) such receipt of property or reduction of claim
occurred within three months after such resignation or
removal.
(b) There shall be excluded from the operation of this
Section a creditor relationship arising from:
(1) the ownership or acquisition of securities issued
under any indenture or any security or securities having a
maturity of one year or more at the time of acquisition by
the Trustee;
(2) advances authorized by a receivership or bankruptcy
court of competent jurisdiction or by this Indenture for the
purpose of preserving any property which shall at any time
be subject to the lien of this Indenture or of discharging
tax liens or other prior liens or encumbrances thereon, if
notice of such advance and of the circumstances surrounding
the making thereof is given to the Holders of the applicable
series of Securities and the Holders of the Coupons, if any,
appertaining thereto, at the time and in the manner provided
in this Indenture;
(3) disbursements made in the ordinary course of
business in the capacity of trustee under an indenture,
transfer agent, registrar, custodian, paying agent, fiscal
agent or depositary or other similar capacity;
(4) an indebtedness created as a result of services
rendered or premises rented or an indebtedness created as a
result of goods or securities sold in a cash transaction as
defined in subsection (c)(3) below;
(5) the ownership of stock or of other securities of a
corporation organized under the provisions of Section 25(a)
of the Federal Reserve Act, as amended, which is directly or
indirectly a creditor of the Issuer; or
(6) the acquisition, ownership, acceptance or
negotiation of any drafts, bills of exchange, acceptances or
obligations which fall within the classification of
self-liquidating paper as defined in subsection (c)(4) of
this Section.
(c) As used in this Section:
(1) the term "default" shall mean any failure to make
payment in full of the principal of or interest upon any of
the Securities of the applicable series or upon the other
indenture securities when and as such principal or interest
becomes due and payable;
(2) the term "other indenture securities" shall mean
securities upon which the Issuer is an obligor (as defined
in the Trust Indenture Act)
outstanding under any other indenture (i) under which the
Trustee is also trustee, (ii) which contains provisions
substantially similar to the provisions of subsection (a) of
this Section and (iii) under which a default exists at the
time of the apportionment of the funds and property held in
said special account;
(3) the term "cash transaction" shall mean any
transaction in which full payment for goods or securities
sold is made within seven days after delivery of the goods
or securities in currency or in checks or other orders drawn
upon banks or bankers and payable upon demand;
(4) the term "self-liquidating paper" shall mean any
draft, bill of exchange, acceptance or obligation which is
made, drawn, negotiated or incurred by the Issuer for the
purpose of financing the purchase, processing, manufacture,
shipment, storage or sale of goods, wares or merchandise and
which is secured by documents evidencing title to,
possession of or a lien upon the goods, wares or merchandise
or the receivables or proceeds arising from the sale of the
goods, wares or merchandise previously constituting the
security; provided that the security is received by the
Trustee simultaneously with the creation of the creditor
relationship with the Issuer arising from the making,
drawing, negotiating or incurring of the draft, bill of
exchange, acceptance or obligation; and
(5) the term "Issuer" shall mean any obligor upon the
Securities.
SECTION 7.14. Authenticating Agent. So long as any
Securities of a series remain outstanding, if the Corporate Trust
Office of the Trustee is not located in the Borough of Manhattan,
The City of New York, New York, or otherwise upon an Issuer
Request, there shall be an authenticating agent (the
"Authenticating Agent") appointed, for such period as the Issuer
shall elect, by the Trustee for such series of Securities to act
as its agent on its behalf and subject to its direction in
connection with the authentication and delivery of each series of
Securities for which it is serving as Trustee. Securities of each
such series authenticated by such Authenticating Agent shall be
entitled to the benefits of this Indenture and shall be valid and
obligatory for all purposes as if authenticated by such Trustee.
Wherever reference is made in this Indenture to the
authentication and delivery of Securities of any series by the
Trustee for such series or to the Trustee's Certificate of
Authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee for such
series except by way of original issuance by an Authenticating
Agent for such series and a Certificate of Authentication
executed on behalf of such Trustee by such Authenticating Agent.
Such Authenticating Agent shall at all times be a corporation
organized and doing business under the laws of the United States
of America or of any State, authorized under such laws to
exercise corporate trust powers, having a
combined capital and surplus of at least $10,000,000 and subject
to supervision or examination by Federal or state authority. If
the Corporate Trust Office of the Trustee is not located in the
Borough of Manhattan, The City of New York, New York, the
Authenticating Agent shall have its principal office and place of
business in the Borough of Manhattan, The City of New York, New
York.
Any corporation into which any Authenticating Agent may be
merged or converted, or with which it may be consolidated, or any
corporation resulting from any merger, conversion or
consolidation to which any Authenticating Agent shall be a party,
or any corporation succeeding to the corporate agency business of
any Authenticating Agent, shall continue to be the Authenticating
Agent with respect to all series of Securities for which it
served as Authenticating Agent without the execution or filing of
any paper or any further act on the part of the Trustee for such
series or such Authenticating Agent. Any Authenticating Agent may
at any time, and, if it shall cease to be eligible, shall, resign
by giving written notice of resignation to the applicable Trustee
and to the Issuer. The Trustee for any series of Securities may
at any time terminate the agency of any Authenticating Agent for
such series by giving written notice of termination to such
Authenticating Agent and to the Issuer.
Upon receiving such a notice of resignation or upon such a
termination, or in case at any time any Authenticating Agent
shall cease to be eligible in accordance with the provisions of
this Section 7.14 with respect to one or more or all series of
Securities, the Trustee for such series shall upon Issuer Request
appoint a successor Authenticating Agent, and the Issuer shall
provide notice of such appointment to all Holders of Securities
of such series or any Coupons appertaining thereto in the manner
and to the extent provided in Section 13.4. Any successor
Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all rights, powers, duties and
responsibilities of its predecessor hereunder, with like effect
as if originally named as Authenticating Agent herein. The
Trustee for the Securities of such series agrees to pay to the
Authenticating Agent for such series from time to time reasonable
compensation for its services, and the Trustee shall be entitled
to be reimbursed for such payment subject to the provisions of
Section 7.6. The Authenticating Agent for the Securities of any
series shall have no responsibility or liability for any action
taken by it as such at the direction of the Trustee for such
series.
ARTICLE EIGHT
CONCERNING THE HOLDERS OF SECURITIES
SECTION 8.1. Action by Holders. Whenever in this Indenture
it is provided that the Holders of a specified percentage in
aggregate principal amount of the Securities of any series may
take any action (including the making of any demand or request,
the giving of any notice, consent or waiver or the taking of any
other action) the fact that at the time of taking any such action
the Holders of such specified percentage have joined therein may
be evidenced (a) by any instrument or any number of instruments
of similar tenor executed by Holders in person or by agent or
proxy appointed in writing, or (b) by the record of Holders
voting in favor thereof at any meeting of such Holders duly
called and held in accordance with the provisions of
Article Nine, or (c) by a combination of such instrument or
instruments and any such record of such a meeting of Holders. The
Issuer may set a record date for purposes of determining the
identity of Holders entitled to vote or consent to any action by
vote or consent authorized or permitted under this Indenture,
which record date shall be the later of 10 days prior to the
first solicitation of such consent or the date of the most recent
list of Holders furnished to the Trustee pursuant to Section 8.1
of this Indenture prior to such solicitation. If a record date is
fixed, those persons who were Holders of Securities at such
record date (or their duly designated proxies), and only those
persons, shall be entitled to take such action by vote or consent
or to revoke any vote or consent previously given, whether or not
such persons continue to be Holders after such record date. No
such vote or consent shall be valid or effective for more than
120 days after such record date.
SECTION 8.2. Proof of Execution of Instruments by Holders of
Securities. Subject to Sections 7.1, 7.2 and 9.5, the execution
of any instrument by a Holder of a Security or of any Coupon or
his agent or proxy may be proved in the following manner:
The fact and date of the execution by any such person
of any instrument may be proved by the certificate of any
notary public or other officer authorized to take
acknowledgments of deeds that the person executing such
instrument acknowledged to him the execution thereof or by
any affidavit of a witness to such execution sworn to before
any such notary or other such officer. Where such execution
is by an officer of a corporation or association or a member
of a partnership on behalf of such corporation, association
or partnership, as the case may be, or by any other person
acting in a representative capacity, such certificate or
affidavit shall also constitute sufficient proof of his
authority.
The ownership of Registered Securities of any series shall
be proved by the Securities Register for such series or by a
certificate of the Securities Registrar for such series; the
ownership of Unregistered Securities of any series and Coupons
shall be proved by proof of possession reasonably satisfactory to
the Trustee.
The record of any Holders' meeting shall be proved in the
manner provided in Section 9.6.
SECTION 8.3. Holders To Be Treated as Owners. The Issuer,
the Trustee and any agent of the Issuer or the Trustee may deem
and treat the Person in whose name any Registered Security shall
be registered upon the Security Register for such series as the
absolute owner of such Security (notwithstanding any notation of
ownership or other writing thereon) for the purpose of receiving
payment of principal of, premium, if any, and (subject to
Section 3.8), if such registered Security is a Fully Registered
Security, interest, if any, on such Registered Security and for
all other purposes whatsoever whether or not such Security be
overdue, and neither the Issuer, the Trustee nor any agent of the
Issuer or the Trustee shall be affected by notice to the
contrary. The Issuer, the Trustee and any agent of the Issuer or
the Trustee may treat the Holder of any Unregistered Security and
the Holder of any Coupon, whether or not the Security to which
such Coupon appertained be registered, as the absolute owner of
such Security or Coupon for the purposes of receiving payment
thereof or on account thereof and for all other purposes
whatsoever whether or not such Security or Coupon be overdue, and
neither the Issuer, the Trustee, any Paying Agent nor any
Security Registrar shall be affected by notice to the contrary.
All such payments so made to any Holder for the time being or
upon his order shall be valid and, to the extent of the sum or
sums so paid, effectual to satisfy and discharge the liability
for moneys payable upon such Security or Coupon.
SECTION 8.4. Securities Owned by Issuer Deemed Not
Outstanding. In determining whether the Holders of the requisite
aggregate principal amount of Securities of any or all series
have concurred in any direction, consent or waiver under this
Indenture, Securities which are owned by the Issuer or any other
obligor on the Securities with respect to which such
determination is being made or by any person directly or
indirectly controlling or controlled by or under direct or
indirect common control with the Issuer or any other obligor on
the Securities with respect to which such determination is being
made shall be disregarded and deemed not to be Outstanding for
the purpose of any such determination, except that for the
purpose of determining whether the Trustee shall be protected in
relying on any such direction, consent or waiver only Securities
which the Trustee knows are so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with
respect to such Securities and that the pledgee is not the
Issuer or any other obligor on the Securities or any person
directly or indirectly controlling or controlled by or under
direct or indirect common control with the Issuer or any other
obligor on the Securities. In case of a dispute as to such right,
the advice of counsel shall be full protection in respect of any
decision made by the Trustee in accordance with such advice. Upon
request of the Trustee, the Issuer shall furnish to the Trustee
promptly an Officers' Certificate listing and identifying all
Securities, if any, known by the Issuer to be owned or held by or
for the account of any of the above-described persons; and,
subject to Sections 7.1 and 7.2, the Trustee shall be entitled to
accept such Officers' Certificate as conclusive evidence of the
facts therein set forth and of the fact that all Securities not
listed therein are Outstanding for the purpose of any such
determination.
SECTION 8.5. Right of Revocation of Action Taken. At any
time prior to (but not after) the evidencing to the Trustee, as
provided in Section 8.1, of the taking of any action by the
Holders of the percentage in aggregate principal amount of the
Securities of any or all series, as the case may be, specified in
this Indenture in connection with such action, any Holder of a
Security the number, letter or other distinguishing symbol of
which is shown by the evidence to be included in the Securities
the Holders of which have consented to such action may, by filing
written notice at the Corporate Trust Office and upon proof of
holding as provided in this Article Eight, revoke such action so
far as concerns such Security. Except as aforesaid, any such
action taken by the Holder of any Security shall be conclusive
and binding upon such Holder and upon all future Holders and
owners of such Security and any Coupon appertaining thereto and
of any Securities and Coupons issued in exchange or substitution
therefor, irrespective of whether or not any notation in regard
thereto is made upon any such Security or Coupon or such other
Security or Coupon. Any action taken by the Holders of the
percentage in aggregate principal amount of the Securities of any
or all series, as the case may be, specified in this Indenture in
connection with such action shall be conclusively binding upon
the Issuer, the Trustee and the Holders of all the Securities
affected by such action.
ARTICLE NINE
HOLDERS' MEETINGS
SECTION 9.1. Purposes of Meetings. A meeting of Holders of
Securities of any or all series may be called at any time and
from time to time pursuant to the provisions of this Article Nine
for any of the following purposes:
(1) to give any notice to the Issuer or to the Trustee
for the Securities of such series, to give any directions to
the Trustee for such series, 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 Six;
(2) to remove the Trustee for such series and nominate
a successor trustee pursuant to the provisions of
Article Seven;
(3) to consent to the execution of an indenture or
indentures supplemental hereto pursuant to the provisions of
Section 10.2; 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 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 9.2. Call of Meetings by Trustee. The Trustee for
the Securities of an series may at any time call a meeting of
Holders of Securities of such series to take any action specified
in Section 9.1, to be held at such time and at such place in the
Borough of Manhattan, The City of New York, or such other Place
of Payment as the Trustee for such series shall determine. Notice
of every meeting of the Holders of Securities of any series,
setting forth the time and the place of such meeting and in
general terms the action proposed to be taken at such meeting,
shall be given to Holders of Securities of such series in the
manner and to the extent provided in Section 13.4. Such notice
shall be given not less than 20 nor more than 90 days prior to
the date fixed for the meeting.
SECTION 9.3. Call of Meetings by Issuer or Holders. In case
at any time the Issuer, pursuant to a Board Resolution, or the
Holders of at least 10% in aggregate principal amount of the
Outstanding Securities of any or all series, as the case may be,
shall have requested the Trustee for such series to call a
meeting of Holders of Securities of any or all series, as the
case may be, by written request setting forth in reasonable
detail the action proposed to be taken at the meeting and the
Trustee for such series shall not have given the notice of such
meeting within 20 days after receipt of such request, then the
Issuer or such Holders may determine the time and the place in
the Borough of Manhattan, The City of New York, or other Place of
Payment for such meeting and may call such meeting to take any
action authorized in Section 9.1, by giving notice thereof as
provided in Section 9.2.
SECTION 9.4. Qualifications for Voting. To be entitled to
vote at any meeting of Holders a person shall be (a) a Holder of
one or more Securities with respect to which such meeting is
being held or (b) a person appointed by an instrument in writing
as proxy by such Xxxxxx. 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 and any representatives of the Trustee for the Securities
of the series with respect to which such meeting is being held
and its counsel and any representatives of the Issuer and its
counsel.
SECTION 9.5. Regulations. Notwithstanding any other
provisions of this Indenture the Trustee for the Securities of
any series may make such reasonable regulations as it may deem
advisable for any meeting of Holders of the Securities of such
series, in regard to proof of the holding of Securities of such
series and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the
right to vote and such other matters concerning the conduct of
the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have
been called by the Issuer or by Holders of the Securities of such
series as provided in Section 9.3, in which case the Issuer 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 majority
vote of the meeting.
Subject to Section 8.4, at any meeting each Holder of
Securities with respect to which such meeting is being held or
proxy therefor shall be entitled to one vote for each 1,000 (in
the currency or currency unit in which such Securities are
denominated) principal amount (in the case of Original Issue
Discount Securities, such principal amount to be determined as
provided in the definition of "Outstanding") of Securities held
or represented by him; provided, however, that no vote shall be
cast or counted at any meeting in respect of any such 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 Securities of such
series held by, him or instruments in writing aforesaid duly
designating him as the person to vote on behalf of other Holders
of such series. At any meeting of Holders, the presence of
persons holding or representing Securities with respect to which
such meeting is being held in an aggregate principal amount
sufficient to take action on the business for the transaction of
which such meeting was called shall constitute a quorum, but, if
less than a quorum is present, the persons holding or
representing a majority in aggregate principal amount of such
Securities represented at the meeting may adjourn such meeting
with the same effect, for all intents and purposes, as though a
quorum had been present. Any meeting of Holders of Securities
with respect to which a meeting was duly called pursuant to the
provisions of Section 9.2 or Section 9.3 may be adjourned from
time to time by a majority of such Holders
present, whether or not constituting a quorum, and the meeting
may be held as so adjourned without further notice.
SECTION 9.6. Voting. The vote upon any resolution submitted
to any meeting of Holders of Securities 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 each meeting
of Holders shall be prepared by the secretary of the meeting and
there shall be attached to said record the original reports of
the inspectors of votes on any vote by ballot taken thereat and
affidavits by one or more persons having knowledge of the facts
setting forth a copy of the notice of the meeting and showing
that said notice was mailed as provided in Section 9.2. 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 the
secretary of the meeting and one of the duplicates shall be
delivered to the Issuer 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 9.7. No Delay of Rights by Meeting. Nothing in this
Article Nine contained 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 the
Holders under any of the provisions of this Indenture or of the
Securities of any series.
ARTICLE TEN
SUPPLEMENTAL INDENTURES
SECTION 10.1. Supplemental Indentures Without Consent of
Securityholders. The Issuer, when authorized by a Board
Resolution, and the Trustee for the Securities of any or all
series may from time to time and at any time enter into an
indenture or indentures supplemental hereto (which shall conform
to the provisions of the Trust
Indenture Act as in force at the date of the execution thereof)
for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to
the Trustee as security for the Securities of any or all
series any property or assets; provided, however, that such
conveyance, transfer, assignment, mortgage or pledge is
consistent with the provisions of Section 4.6 hereof;
(b) to evidence the succession of another corporation
to the Issuer, or successive successions, and the assumption
by the successor corporation of the covenants, agreements
and obligations of the Issuer under this Indenture and the
Securities;
(c) to add to the covenants of the Issuer such further
covenants, restrictions, conditions or provisions as the
Board of Directors and the Trustee shall consider to be for
the protection of the Holders of any series of Securities
and the Coupons, if any, appertaining thereto, or to
surrender any right or power conferred upon the Issuer, and
to make the occurrence, or the occurrence and continuance,
of a default in any such additional covenants, restrictions,
conditions or provisions an Event of Default permitting the
enforcement of all or any of the several remedies provided
in this Indenture as herein set forth; provided that in
respect of any such additional covenant, restriction,
condition or provision such supplemental indenture may
provide for a particular period of grace after default
(which period may be shorter or longer than that allowed in
the case of other defaults) or may provide for an immediate
enforcement upon such an Event of Default or may limit the
remedies available to the Trustee upon such an Event of
Default or may limit the right of the Holders of a majority
in aggregate principal amount of the Securities of such
series to waive such an Event of Default;
(d) to 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 Events of Default
are only applicable to specified series);
(e) to cure any ambiguity or to correct or supplement
any provision contained herein or in any supplemental
indenture which may be defective or inconsistent with any
other provision contained herein or in any supplemental
indenture; or to make such other provisions in regard to
matters or questions arising under this Indenture or under
any supplemental indenture as the Board of Directors may
deem necessary or desirable and which shall not materially
and adversely affect the interests of the Holders of any
Securities or the Coupons, if any, appertaining thereto;
(f) to establish the form or terms of Securities of
any series and the Coupons, if any, appertaining thereto as
permitted by Section 3.1;
(g) to permit payment in the United States of
principal, premium or interest on Unregistered Securities or
of interest on Coupon Securities;
(h) to provide for the issuance of uncertificated
Securities of one or more series in addition to or in place
of certificated Securities;
(i) to evidence and provide for the acceptance of
appointment hereunder by a successor trustee with respect to
the Securities of one or more series or 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 7.11; and
(j) to change or eliminate any of the provisions of
this Indenture; provided, however, that any such change or
elimination may only be effected when no Outstanding
Security of any series created prior to the execution of
such supplemental indenture is entitled to the benefit of
such provision.
The Trustee with respect to any series of Securities
affected by such supplemental indenture is hereby authorized to
join with the Issuer in the execution of any such supplemental
indenture, to make any further appropriate agreements and
stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any
property thereunder, but the Trustee shall not be obligated to
enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture
or otherwise.
Any supplemental indenture authorized by the provisions of
this Section may be executed without the consent of the Holders
of any of the Securities at the time Outstanding, notwithstanding
any of the provisions of Section 10.2.
SECTION 10.2. Supplemental Indentures with Consent of
Securityholders. With the consent (evidenced as provided in
Article Eight) of the Holders of not less than a majority in
aggregate principal amount of the Securities at the time
Outstanding of all series affected by such supplemental indenture
(voting as one class), the Issuer, when authorized by a Board
Resolution, and the Trustee for the Securities of each such
series may, from time to time and at any time, enter into an
indenture or indentures supplemental hereto (which shall conform
to the provisions of the Trust Indenture Act as in force at the
date of execution thereof) for the purpose of adding any
provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of any supplemental indenture or
of modifying in any manner the
rights of the Holders of the Securities of each such series;
provided that no such supplemental indenture shall (a) change the
Stated Maturity of any Security of such series, reduce the
principal amount thereof, reduce the rate or change the time of
payment of interest thereon, reduce any amount payable on
redemption thereof, reduce the amount of the principal of an
Original Issue Discount Security that would be due and payable
upon an acceleration of the maturity thereof pursuant to
Section 6.1 or the amount thereof provable in bankruptcy pursuant
to Section 6.2, adversely impair or affect the right of repayment
or repurchase, if any, at the option of the Holder, reduce the
amount of, or postpone the date fixed for, any payment under any
sinking fund or analogous provisions for any Security, or change
any Place of Payment or the coin or currency or currency unit in
which any Security or the interest thereon is payable or change
or eliminate the right of any Securityholder to institute suit
for the payment thereof, without the consent of the Holder of
each Security of such series so affected, or (b) reduce the
aforesaid percentage of Securities of such series, the consent of
the Holders of which is required for any such supplemental
indenture (or waiver of compliance with certain provisions of
this Indenture or certain defaults hereunder and their
consequences), without the consent of the Holder of each Security
so affected, or (c) alter or impair the right of any holder to
convert Securities of any series the terms of which provide for
conversion, at the rate and upon the terms provided in the
Indenture, or (d) subordinate the indebtedness evidenced by the
Securities to any indebtedness of the Company , or (e) modify any
of the provisions of this Section 10.2 or Section 6.10, 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.
Upon the request of the Issuer, accompanied by a Board
Resolution, authorizing the execution of any such supplemental
indenture and upon the filing with the Trustee with respect to
any series of Securities affected by such supplemental indenture,
of evidence of the consent of Securityholders as aforesaid and
other documents, if any, required by Section 8.1, the Trustee
shall join with the Issuer in the execution of such supplemental
indenture unless such supplemental indenture affects the
Trustee's own rights duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but
shall not be obligated to, enter into such supplemental
indenture.
It shall not be necessary for the consent of the
Securityholders under this Section to approve the particular form
of any proposed supplemental indenture, but it shall be
sufficient if such consent shall approve the substance thereof.
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 and the Coupons, if
any, appertaining thereto, or which modifies the rights of the
Holders of Securities of such series or any Coupons appertaining
thereto with respect to such covenant or other provision, shall
be deemed not to affect the rights under this Indenture of the
Holders of Securities of any other series or any Coupons
appertaining thereto.
For purposes of this Section 10.2, if the Securities of any
series are issuable upon the exercise of warrants, each holder of
an unexercised and unexpired warrant with respect to such series
shall be deemed to be a Holder of Outstanding Securities of such
series in the amount issuable upon the exercise of such warrant.
For such purposes, the ownership of any such warrant shall be
determined by the Issuer in a manner consistent with customary
commercial practices. The Trustee for such series shall be
entitled to rely on an Officers' Certificate as to the principal
amount of Securities of such series in respect of which consents
shall have been executed by holders of such warrants.
SECTION 10.3. Notice of Supplemental Indenture. Promptly
after the execution by the Issuer and the Trustee of any
supplemental indenture pursuant to the provisions of
Section 10.2, the Issuer shall mail a notice thereof by
first-class mail to the Holders of Securities of each series and
of Coupons, if any, appertaining thereto affected thereby at
their addresses as they shall appear on the registry books of the
Issuer, setting forth in general terms the substance of such
supplemental indenture. Any failure of the Issuer to mail such
notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture.
SECTION 10.4. Effect of Supplemental Indenture. Upon the
execution of any supplemental indenture pursuant to the
provisions of this Article Ten, this Indenture shall be and be
deemed to be modified and amended in accordance therewith, but
only with regard to the Securities of each series affected by
such supplemental indenture, and the respective rights,
limitations of rights, obligations, duties and immunities under
this Indenture of the Trustee for the Securities of such series,
the Issuer and the Holders of any Securities of such series or
any Coupons appertaining thereto affected thereby shall
thereafter be determined, exercised and enforced hereunder
subject in all respects to such modifications and amendments, and
all the terms and conditions of any such supplemental indenture
shall be and be deemed to be part of the terms and conditions of
this Indenture for any and all purposes with regard to the
Securities of such series and any Coupons appertaining thereto.
SECTION 10.5. Documents To Be Given to Trustee. The Trustee,
subject to the provisions of Sections 7.1 and 7.2, may receive an
Officers' Certificate and an Opinion of Counsel as conclusive
evidence that any supplemental indenture executed pursuant to
this Article Ten complies with the applicable provisions of this
Indenture.
SECTION 10.6. Notation on Securities and Coupons in Respect
of Supplemental Indentures. Securities of any series (including
any Coupons appertaining thereto) affected by any supplemental
indenture which are authenticated and delivered after the
execution of such supplemental indenture pursuant to the
provisions of this Article Ten may bear a notation in form
approved by the Trustee for such series as to any matter provided
for in such supplemental indenture. If the Issuer or the Trustee
shall so determine, new Securities of any series and any Coupons
appertaining thereto so modified as to conform, in the opinion of
the Trustee and the Issuer, to any modification of this Indenture
contained in any such supplemental indenture may be prepared by
the Issuer, authenticated by the Trustee and delivered in
exchange for the Securities of such series and any Coupons
appertaining thereto then Outstanding.
SECTION 10.7. Issuance of Securities by Successor
Corporation. In case the Issuer shall be consolidated with or
merged into any other corporation or corporations, or shall
convey or transfer all or substantially all its property as an
entirety, the successor corporation formed by such consolidation
or into which the Issuer shall have been merged or which shall
have received a conveyance or transfer as aforesaid, upon causing
to be executed and delivered the supplemental indenture referred
to in Section 10.1(b), shall succeed to and be substituted for
the Issuer with the same effect as if it had been named herein as
the party of the first part and in all the Securities and the
Coupons, if any, appertaining thereto as obligor, and thereupon
and thereafter such successor corporation may cause to be
executed, either in its own name or in the name of ITT
Corporation, and delivered to the appropriate Trustee for
authentication, any or all of the Securities and the Coupons, if
any, appertaining thereto issuable hereunder; and, upon the order
of such successor corporation in lieu of the Issuer, and subject
to all the terms, conditions and restrictions in this Indenture
prescribed, the Trustee for the Securities of the appropriate
series shall authenticate and deliver any Securities of such
series and the Coupons, if any, appertaining thereto which shall
have been previously executed and delivered by the Issuer to the
Trustee for authentication and any Securities and the Coupons, if
any, appertaining thereto which such successor corporation shall
thereafter, in accordance with the provisions of this Indenture,
cause to be executed and delivered to the Trustee for such
purpose. Such change in phraseology and form (but not in
substance) may be made in such Securities and the Coupons, if
any, appertaining thereto as may be appropriate in view of such
consolidation or merger or conveyance or transfer. All such
Securities and the Coupons, if any, appertaining thereto when
issued by such successor corporation shall in all respects have
the same legal rank as the Securities and the Coupons, if any,
appertaining thereto theretofore or thereafter authenticated and
delivered in accordance with the terms of this Indenture and
issued, as though all of such Securities and Coupons, if any,
appertaining thereto had been issued at the date of the execution
hereof.
ARTICLE ELEVEN
CONSOLIDATION, MERGER OR SALE
SECTION 11.1. Issuer May Consolidate, Merge or Sell on
Certain Terms. Nothing contained in this Indenture or in any of
the Securities shall be deemed to prevent the consolidation or
merger of the Issuer with or into any other corporation, or the
merger into the Issuer of any other corporation, or the sale by
the Issuer of its property and assets as, or substantially as, an
entirety, or otherwise; provided, however, (a) that in case of
any such consolidation or merger the corporation resulting from
such consolidation or any corporation other than the Issuer into
which such merger shall be made shall succeed to and be
substituted for the Issuer with the same effect as if it has been
named herein as a party hereto and shall become liable and be
bound for, and shall expressly assume, by a supplemental
indenture hereto, executed and delivered to the Trustee, the due
and punctual payment of the principal of, premium, if any, and
interest, if any, on all the Securities of each series and the
Coupons, if any, appertaining thereto and the performance and
observance of each and every covenant and condition of this
Indenture on the part of the Issuer to be performed or observed,
and (b) that, as a condition of any such sale of the property and
assets of the Issuer as, or substantially as, an entirety, the
corporation to which such property and assets shall be sold shall
(i) expressly assume, as a part of the purchase price thereof,
the due and punctual payment of the principal of, premium, if
any, and interest, if any, on all the Securities of each series
and the Coupons, if any, appertaining thereto and the performance
and observance of all the covenants and conditions of this
Indenture on the part of the Issuer to be performed or observed,
and (ii) simultaneously with the delivery to it of the
conveyances or instruments of transfer of such property and
assets, execute and deliver to the Trustee a supplemental
indenture thereto, in form satisfactory to the Trustee, whereby
such purchasing corporation shall so assume the due and punctual
payment of the principal of, premium, if any, and interest, if
any, on all the Securities of each series and the Coupons, if
any, appertaining thereto and the performance and observance of
each and every covenant and condition of this Indenture on the
part of the Issuer to be performed or observed, to the same
extent that the Issuer is bound and liable.
The Issuer will not consolidate with any other corporation
or accept a merger of any other corporation into the Issuer or
permit the Issuer to be merged into any other corporation, or
sell its properties and assets as, or substantially as, an
entirety, except upon the terms and conditions set forth in this
Section 11.1. Upon any consolidation or merger, or any sale of
the properties and assets of the Issuer as, or substantially as,
an entirety in accordance with the provisions of this
Section 11.1, the corporation formed by such consolidation or
into which the Issuer shall have been
merged or to which such sale shall have been made shall succeed
to and be substituted for the Issuer with the same effect as if
it had been named herein as a party hereto and thereafter from
time to time such successor corporation may exercise each and
every right and power of the Issuer under this Indenture, in the
name of the Issuer or in its own name; and any act or proceeding
by any provision of this Indenture required or permitted to be
done by the Board of Directors or any officer of the Issuer may
be done with like force and effect by the like board or officer
of any corporation that shall at the time be the successor of the
Issuer hereunder. In the event of the sale by the Issuer of its
properties and assets as, or substantially as, an entirety upon
the terms and conditions of this Section 11.1, the Issuer shall
be released from all its liabilities and obligations hereunder
and under the Securities.
SECTION 11.2. Opinion of Counsel To Be Given to Trustee. The
Trustee, subject to the provisions of Section 7.1, may receive an
Opinion of Counsel as conclusive evidence that any such
consolidation, merger or sale, and any such assumption, complies
with the provisions of this Article Eleven.
ARTICLE TWELVE
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 12.1. Satisfaction and Discharge of Securities of
Any Series. Except as otherwise provided for the Securities of
any series established pursuant to Section 3.1(18), the Issuer
shall be deemed to have satisfied and discharged the entire
indebtedness on all the Outstanding Securities of any particular
series and the Coupons, if any, appertaining thereto, and the
Trustee, at the expense of the Issuer and upon Issuer Request,
shall execute proper instruments acknowledging satisfaction and
discharge of such indebtedness, when
(1) either:
(A) all Outstanding Securities of such series
theretofore authen- ticated and delivered and the
Coupons, if any appertaining thereto (other than
(i) any Securities of such series or Coupons which have
been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 3.7 and
(ii) Outstanding Securities of such series or Coupons
for whose payment money has theretofore been deposited
in trust or segregated and held in trust by the Issuer
and thereafter repaid to the Issuer or discharged from
such trust, as provided in Sections 4.4, 12.4 and 12.5)
have been delivered to the Trustee for cancellation; or
(B) with respect to all Outstanding Securities of
such series and the Coupons, if any, appertaining
thereto, described in (A) above not theretofore
delivered to the Trustee for cancellation:
(i) the Issuer has deposited or caused to be
deposited with the Trustee as trust funds in trust
an amount in the currency or currency unit in
which the Securities of such series are
denominated (except as otherwise specified
pursuant to Section 3.1 for the Securities of such
series and except as provided in Sections 3.12(b),
3.12(e) and 3.12(f) hereof) sufficient to pay and
discharge the entire indebtedness on all such
Outstanding Securities of such series for
principal (and premium, if any) and interest to
the Stated Maturity or any Redemption Date as
contemplated by Section 12.3, as the case may be;
or
(ii) the Issuer has deposited or caused to be
deposited with the Trustee as obligations in trust
such amount of Government Obligations as will, in
a written opinion of independent public
accountants delivered to the Trustee, together
with the predetermined and certain income to
accrue thereon (without consideration of any
reinvestment thereof), be sufficient to pay and
discharge when due the entire indebtedness on all
such Outstanding Securities of such series and the
Coupons, if any, appertaining thereto, for unpaid
principal (and premium, if any,) and interest to
the Stated Maturity or any Redemption Date as
contemplated by Section 12.3, as the case may be.
(2) the Issuer has paid or caused to be paid all other
sums payable with respect to the Outstanding Securities of
such series and the Coupons, if any, appertaining thereto;
(3) the Issuer has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent herein provided for
relating to due satisfaction and discharge of the entire
indebtedness on all Outstanding Securities of any such
series and the Coupons, if any, appertaining thereto, have
been complied with; and
(4) if the Securities of such series and the Coupons,
if any, appertaining thereto, are not to become due and
payable at their Stated Maturity within one year of the date
of such deposit or are not to be called for redemption
within one year of the date of such deposit under
arrangements
satisfactory to the Trustee as of the date of such deposit,
then the Issuer shall have given, not later than the date of
such deposit, notice of such deposit to the Holders of the
Securities of such series and the Coupons, if any,
appertaining thereto.
Upon the satisfaction of the conditions set forth in this
Section 12.1 with respect to all the Outstanding Securities of
any series and the Coupons, if any, appertaining thereto, the
terms and conditions of such series, including the terms and
conditions with respect thereto set forth in this Indenture,
shall no longer be binding upon, or applicable to, the Issuer,
and the Holders of the Securities of such series shall look for
payment only to the funds or obligations deposited with the
Trustee pursuant to Section 12.1(1)(b); provided, however, that
the Issuer shall not be discharged from (a) any payment
obligations in respect of Securities of such series which are
deemed not to be Outstanding under clause (c) of the definition
thereof and the Coupons, if any, appertaining thereto, if such
obligations continue to be valid obligations of the Issuer under
applicable law, (b) any obligations under Sections 7.6 and 7.10,
(c) any obligations under Section 3.6 or 3.7 (except that
Securities of such series issued upon registration of transfer or
exchange or Securities or Coupons, if any, appertaining thereto
issued in lieu of mutilated, lost, destroyed or stolen Securities
or Coupons shall not be obligations of the Issuer) and
Section 5.1 and (d) any obligation to convert into shares of
Capital Stock the Securities of any series, the terms of which
provide for conversion; and provided further that in the event a
petition for relief under the Bankruptcy Reform Act of 1978 or a
successor statute is filed with respect to the Issuer within 91
days after the deposit, the entire indebtedness on all Securities
of such series and the Coupons, if any, appertaining thereto
shall not be discharged, and in such event the Trustee shall
return such deposited funds or obligations as it is then holding
to the Issuer upon Issuer Request. Notwithstanding the
satisfaction of the conditions set forth in this Section 12.1
with respect to all the Securities of any series not denominated
in Dollars, upon the happening of any events specified in
Section 3.12(e) the Issuer shall be obligated to make the
payments in Dollars required by Section 3.12(e) to the extent
that the Trustee is unable to convert any Foreign Currency or
currency unit in its possession pursuant to Section 12.1(1)(B)
into the Dollar Equivalent of the Foreign Currency or the Dollar
Equivalent of the Currency Unit, as the case may be. The Trustee
shall return to the Issuer any non-converted funds or securities
in its possession after such payments have been made.
SECTION 12.2. Satisfaction and Discharge of Indenture. Upon
compliance by the Issuer with the provisions of Section 12.1 as
to the satisfaction and discharge of each series of Securities
issued hereunder and the Coupons, if any, appertaining thereto,
and if the Issuer has paid or caused to be paid all other sums
payable under this Indenture, this Indenture shall cease to be of
any further effect (except as
otherwise provided herein). Upon Issuer Request and receipt of an
Opinion of Counsel and an Officers' Certificate (and at the
expense of the Issuer), the Trustee shall execute proper
instruments acknowledging satisfaction and discharge of this
Indenture.
Notwithstanding the satisfaction and discharge of this
Indenture, any obligations of the Issuer under Sections 3.6. 3.7,
5.1, 7.6 and 7.10, any obligations of the Issuer under
Section 3.12(d) to deliver an Exchange Rate Officer's Certificate
and the obligations of the Trustee under Section 12.3 shall
survive.
SECTION 12.3. Application of Trust Money. All money and
obligations deposited with the Trustee pursuant to Section l2.1
shall be held irrevocably in trust and shall be made under the
terms of an escrow trust agreement in form and substance
satisfactory to the Trustee. Such money and obligations shall be
applied by the Trustee, in accordance with the provisions of the
Securities, this Indenture and such escrow trust agreement, to
the payment, either directly or through any Paying Agent
(including the Issuer acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the
principal of (and premium, if any) and interest, if any, on the
Securities and the Coupons, if any, appertaining thereto for the
payment of which such money and obligations have been deposited
with the Trustee. If Securities of any series are to be redeemed
prior to their Stated Maturity, whether pursuant to an optional
redemption provision or in accordance with any mandatory sinking
fund requirement, the Issuer shall make such arrangements as are
satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Issuer.
SECTION 12.4. Repayment of Moneys Held by Paying Agent. In
connection with the satisfaction and discharge of this Indenture
with respect to Securities of any series and the Coupons, if any,
appertaining thereto, all moneys with respect to such series then
held by any Paying Agent for such series under the provisions of
this Indenture with respect to such series of Securities shall,
upon demand of the Issuer, be repaid to it or paid to the Trustee
and thereupon such Paying Agent shall be released from all
further liability with respect to such moneys.
SECTION 12.5. Return of Moneys Held by Trustee and Paying
Agent Unclaimed for Two Years. Any moneys deposited with or paid
to the Trustee for the Securities of any series and the Coupons,
if any, appertaining thereto, or any Paying Agent for the payment
of the principal of, premium, if any, or interest, if any, on
Securities of any series and the Coupons, if any, appertaining
thereto and which shall not be applied but shall remain unclaimed
by the Holders of Securities of such series and the Coupons, if
any, appertaining thereto for two years after the date upon which
such payment shall have become due and payable, shall be repaid
to the Issuer by the
Trustee on demand, and the holder of any of such Securities or
the Coupons, if any, appertaining thereto entitled to receive
such payment shall thereafter look only to the Issuer for the
payment thereof; provided, however, that the Trustee, before
making any such repayment, shall at the expense of the Issuer
cause to be published once a week for two successive weeks (in
each case on any day of the week) in an Authorized Newspaper, a
notice that said moneys have not been so applied and that after a
date named therein any unclaimed balance of said moneys then
remaining will be returned to the Issuer.
ARTICLE THIRTEEN
MISCELLANEOUS PROVISIONS
SECTION 13.1. Incorporators, Stockholders, Officers and
Directors of Issuer Exempt from Individual Liability. No
recourse under or upon any obligation, covenant or agreement
contained in this Indenture, or in any Security or Coupon, or
because of any indebtedness evidenced thereby, shall be had
against any incorporator, as such, or against any past, present
or future stockholder, officer or director, as such, of the
Issuer or of any successor, either directly, or through the
Issuer or any successor, under any rule of law, statute or
constitutional provision by the enforcement of any assessment or
by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance
of the Securities or Coupons by the Holders thereof and as part
of the consideration for the issue of such Securities and
Coupons, if any, appertaining thereto.
SECTION 13.2. Provisions of Indenture for the Sole Benefit
of Parties and Securityholders. Nothing in this Indenture or in
the Securities or the Coupons, expressed or implied, shall give
or be construed to give to any person, other than the parties
hereto and their successors, the Holders of the Securities and
the Holders of the Coupons, any legal or equitable right, remedy
or claim under this Indenture or under any covenant or provision
herein contained, all such covenants and provisions being for the
sole benefit of the parties hereto and their successors, of the
Holders of the Securities and the Holders of the Coupons.
SECTION 13.3. Successors and Assigns of Issuer Bound by
Indenture. All the covenants, stipulations, promises and
agreements in this Indenture contained by or on behalf of the
Issuer shall bind its successors and assigns, whether so
expressed or not.
SECTION 13.4. Notices to Holders; Waiver. Where this
Indenture provides for notice to Holders of any event, (1) if any
of the Securities affected by such event
are Fully Registered Securities, such notice shall be
sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed by first class mail, postage prepaid, to
such Holders as their names and addresses appear in the
Securities Register within the time prescribed and (2) if any of
the Securities affected by such event are Unregistered
Securities, or Coupon Securities, such notice shall be suffi-
ciently given (unless otherwise herein expressly provided) if in
writing and mailed by first class mail, postage prepaid, to such
Holders in the manner and to the extent provided in Section 5.4,
and if published in an Authorized Newspaper or Newspapers in such
city or cities as may be provided elsewhere in this Indenture or
specified as contemplated by Section 3.1 on a Business Day at
least twice, the first such publication to be not earlier than
the earliest date and not later than the latest date prescribed
for the giving of such notice. 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 on such waiver. 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, and any notice which
is mailed in the manner herein provided shall be conclusively
presumed to have been duly given. In the event of suspension of
regular mail service or for any other reason it shall be
impracticable to give such notice to Registered Holders by mail,
then such a notification as shall be made to Registered Holders
with the approval of the Trustee shall constitute a sufficient
notification for every purpose hereunder. In case by reason of
the suspension of publication of any Authorized Newspaper or by
reason of any other cause it shall be impracticable to publish
any notice to Holders of Unregistered Securities or of Coupons as
provided above then said notification to Holders of Unregistered
Securities or of Coupons as shall be given with the approval of
the Trustee shall constitute sufficient notice to such Holders
for every purpose hereunder.
SECTION 13.5. Addresses for Notices. Any notice or demand
which by any provision of this Indenture is required or permitted
to be given or served by the Trustee for the Securities of any
series or by the Holders of Securities of any series or of any
Coupons appertaining thereto on the Issuer may be given or served
by registered mail addressed (until another address is filed by
the Issuer with the Trustee) as follows: ITT Corporation,
Attention: Corporate Secretary, 0000 Xxxxxx xx xxx Xxxxxxxx,
Xxx Xxxx, Xxx Xxxx 00000-0000. Any notice, direction, request or
demand by any Holder of Securities of any series to or upon the
Trustee for such series or of any Coupons appertaining thereto
shall be deemed to have been sufficiently given or made, for all
purposes, if given or made at the Corporate Trust Office of such
Trustee, and, in respect of Unregistered Securities or Coupons,
at the
Corporate Trust Office of the Trustee referred to in Section 4.2.
Any notice or demand 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 13.6. Officers' Certificates and Opinions of
Counsel; Statements To Be Contained Therein. Upon any application
or demand by the Issuer to the Trustee to take any action under
any of the provisions of this Indenture, the Issuer shall furnish
to the Trustee an Officers' Certificate stating that all
conditions precedent (including any covenants compliance with
which constitutes a condition precedent) provided for in this
Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent (including any covenants
compliance with which constitutes a condition precedent) have
been complied with, except that in the case of any such
application or demand as to which the furnishing of such
documents is specifically required by any provision of this
Indenture relating to such particular application or demand, no
additional certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture
and delivered to the Trustee with respect to compliance with a
condition or covenant provided for in this Indenture (other than
annual certificates provided pursuant to Section 4.7) shall
include (a) a statement that the person making such certificate
or opinion has read such covenant or condition, (b) a brief
statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in
such certificate or opinion are based, (c) a statement that, in
the opinion of such person, he has made such examination or
investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition
has been complied with and (d) a statement as to whether or not,
in the opinion of such person, such condition or covenant has
been complied with.
Any certificate, statement or opinion of an officer of the
Issuer may be based, insofar as it relates to legal matters, upon
a certificate or opinion of or representations by counsel, unless
such officer knows that the certificate or opinion or
representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that
the same are erroneous. Any certificate, statement or opinion of
counsel may be based, insofar as it relates to factual matters,
information with respect to which is in the possession of the
Issuer, upon the certificate, statement or opinion of or
representations by an officer or officers of the Issuer, unless
such counsel knows that the certificate, statement or opinion or
representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that
the same are erroneous.
Any certificate, statement or opinion of an officer of the
Issuer or of counsel may be based, insofar as it relates to
accounting matters, upon a certificate or opinion of or
representations by an accountant or firm of accountants in the
employ of the Issuer, unless such officer or counsel, as the case
may be, knows that the certificate or opinion or representations
with respect to the accounting matters upon which his
certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that
the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with the Trustee shall contain a statement that
such firm is independent.
SECTION 13.7. Cross References. All references herein to
"Articles" and other subdivisions are to the corresponding
Articles or other subdivisions of this Indenture, and the words
"herein", "hereof", "hereby", "hereunder", "hereinbefore" and
"hereinafter" and other words of similar purport refer to this
Indenture generally and not to any particular Article, Section or
other subdivision hereof.
SECTION 13.8. Legal Holidays. In any case where the date of
maturity of principal, premium, if any, or interest, if any, on
the Securities or Coupons or the date fixed for redemption or
repayment of any Security shall not be a Business Day at any
Place of Payment with respect to Securities of that series then
(notwithstanding any other provisions of this Indenture or of the
Security or Coupons) payment of such principal, premium, if any,
or interest, if any, on the Securities and Coupons need not be
made on such date at such Place of Payment 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 date of maturity or the
date fixed for redemption or repayment, as the case may be, and
no interest shall accrue for the period from and after such date.
SECTION 13.9. Moneys of Different Currencies To Be
Segregated. The Trustee shall segregate all moneys, funds and
accounts held by the Trustee hereunder in one currency from any
money, funds or accounts in any other currencies, notwithstanding
any provision herein which would otherwise permit the Trustee to
commingle such amounts.
SECTION 13.10. Payment To Be in Proper Currency. Each
reference in any Security, or in the Board Resolution relating
thereto, to any currencies or currency units shall be of the
essence. Subject to Section 3.12, the Issuer agrees, to the
fullest extent that it may effectively do so under applicable
law, that its obligation to make
any payment of principal of, premium, if any, and interest on any
Security or any Coupon (i) shall not be discharged or satisfied
by any tender by the Issuer, or recovery by the Trustee, either
pursuant to any judgment (whether or not entered into in
accordance with Section 6.13) or otherwise, in any currencies or
currency units other than the currencies or currency units then
due and payable (the "Required Currency"), except to the extent
that such tender or recovery shall result in the actual receipt,
by the payee, of the full amount of the Required Currency
expressed to be payable in respect of such payments, (ii) shall
be enforceable as an alternative or additional cause of action
for the purpose of recovering in the Required Currency the
amount, if any, by which such actual receipt shall fall short of
the full amount of the Required Currency so expressed to be
payable and (iii) shall not be affected by judgment being
obtained for any other sum due under this Indenture. Except as
permitted under Section 3.12, if any such tender or recovery is
in a currency other than the Required Currency, the Trustee may
take such actions as it considers appropriate to exchange such
currency for the Required Currency. The costs and risks of any
such exchange, including without limitation the risks of delay
and exchange rate fluctuation, shall be borne by the Issuer, and
the Issuer shall remain fully liable for any shortfall or
delinquency in the full amount of Required Currency then due and
payable, and in no circumstances shall the Trustee be liable
therefor. The Issuer hereby waives any defense of payment based
upon any such tender or recovery which is not in the Required
Currency, or which, when exchanged for the Required Currency by
the Trustee, is less than the full amount of Required Currency
then due and payable.
SECTION 13.11. Conflict of Any Provision of Indenture with
Trust Indenture Act. If and to the extent that any provision of
this Indenture limits, qualifies or conflicts with the duties
imposed by any of Sections 310 to 317, inclusive, of the Trust
Indenture Act through operation of Section 318(c) thereof, such
imposed duties shall control.
SECTION 13.12. New York Law To Govern. This Indenture and
each Security shall be deemed to be a contract under the laws of
the state of New York, and for all purposes shall be construed in
accordance with the laws of said State, except as may otherwise
be required by mandatory provisions of law.
SECTION 13.13. Counterparts. This Indenture may be executed
in any number of counterparts, each of which shall be an
original; but such counterparts shall together constitute but one
and the same instrument.
SECTION 13.14. Effect of Headings. The Article and Section
headings herein and the Table of Contents are for convenience
only and shall not affect the construction hereof.
SECTION 13.15. Separability Clause. In case any provision
of this Indenture or of the Securities or any Coupons
appertaining thereto, if any, 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.
ARTICLE FOURTEEN
REDEMPTION OF SECURITIES
SECTION 14.1. Applicability of Article. The provisions of
this Article Fourteen shall be applicable to the Securities of
any series which are redeemable before their maturity or to any
sinking fund for the retirement of Securities of a series except
as otherwise specified as contemplated by Section 3.1 for
Securities of such series.
SECTION 14.2. Notice of Redemption; Selection of Securities.
In case the Issuer shall desire to exercise the right to redeem
all, or, as the case may be, any, part of the Securities of any
series (or all or part of the Unregistered Securities of such
series or all or any part of the Registered Securities of such
series, if the terms and conditions of redemption shall be
different with respect to Unregistered Securities and Registered
Securities of such series as specified in the terms of such
Securities established pursuant to Section 3.1) in accordance
with their terms, it shall fix a Redemption Date and shall
provide notice of such redemption to the Trustee, in the case
such Securities are to be redeemed as a whole, 45 days, and in
the case such Securities are to be redeemed in part, 60 days,
prior to such Redemption Date, and at least 30 and not more than
60 days prior to such Redemption Date to the Holders of
Securities of such series so to be redeemed as a whole or in part
in the manner provided in Section 13.4. The notice provided in
the manner herein specified shall be conclusively presumed to
have been duly given, whether or not the Holder receives such
notice. In any case, failure to give such notice or any defect in
the notice to the Holder of any Security of a series designated
for redemption as a whole or in part shall not affect the
validity of the proceedings for the redemption of any other
Security of such series.
Each such notice of redemption shall specify the Redemption
Date, the Redemption Price, the Place or Places of Payment, that
the Securities of such series are being redeemed at the option of
the Issuer pursuant to provisions contained in the terms of the
Securities of such series or in a supplemental indenture
establishing such series, if such be the case, together with a
brief statement of the facts permitting such redemption, that
payment will be made upon presentation and surrender of the
appli- cable Securities, that, unless otherwise specified in such
notice, Coupon Securities of
any series, if any, surrendered for payment must be accompanied
by all Coupons, if any, maturing subsequent to the date fixed for
redemption, failing which the amount of any such missing Coupon
or Coupons will be deducted from the sum due for payment, the
current conversion price or rate, if applicable, that the right
of the Holder to convert Securities called for redemption shall
terminate at the close of business on the Redemption Date (or
such other date as may be specified as contemplated by
Section 3.1 for Securities of any series), if applicable, that
Holders who want to convert Securities called for redemption must
satisfy the requirements for conversion contained in such
Securities, if applicable, that any interest accrued to the
Redemption Date will be paid as specified in said notice, and
that on and after said Redemption Date any interest thereon or on
the portions thereof to be redeemed will cease to accrue. If less
than all the Securities of any series are to be redeemed the
notice of redemption shall specify the numbers of the Securities
of such series to be redeemed, and, if only Unregistered
Securities of any series are to be redeemed, and if such
Unregistered Securities may be exchanged for Registered
Securities, the last date on which exchanges of Unregistered
Securities for Registered Securities not subject to redemption
may be made. In case any Security of any series is to be redeemed
in part only, the notice of redemption shall state the portion of
the principal amount thereof to be redeemed and shall state that
on and after the Redemption Date, upon surrender of such Security
and any Coupons appertaining thereto, a new Security or
Securities of such series in principal amount equal to the
unredeemed portion thereof and with appropriate Coupons will be
issued, or, in the case of Securities providing appropriate space
for such notation, at the option of the Holders, the Trustee, in
lieu of delivering a new Security or Securities as aforesaid, may
make a notation on such Security of the payment of the redeemed
portion thereof.
On or before (but at least one New York Business Day before,
in the case of payments made in a currency or currency unit other
than Dollars) the Redemption Date with respect to the Securities
of any series stated in the notice of redemption given as
provided in this Section 14.2, the Issuer will deposit with the
Trustee or with one or more Paying Agents an amount of money in
the currency or currency unit in which the Securities of such
series and any Coupons appertaining thereto are payable (except
as otherwise specified as contemplated by Section 3.1 for the
Securities of such series and except as provided in Sections
3.12(b), 3.12(e) and 3.12(f) of this Indenture) sufficient to
redeem on such Redemption Date all the Securities or portions
thereof so called for redemption (other than any Securities
called for redemption on such date which have been converted
prior to the date of such deposit) at the applicable Redemption
Price, together with accrued interest to such Redemption Date. If
the Issuer is acting as its own Paying Agent, it will segregate
such amount and hold it in trust as provided in Section 4.4.
If fewer than all the Securities of a series are to be
redeemed (except in the case of a redemption in whole of the
Unregistered Securities, the Coupon Securities, the Registered
Securities or the Fully Registered Securities of such series),
the Issuer will give the Trustee written notice not less than
60 days prior to the Redemption Date as to the aggregate
principal amount of Securities to be redeemed and the Trustee
shall select, not more than 75 days prior to the Redemption Date
and in such manner as in its sole discretion it shall deem
appropriate and fair, the Securities of such series or portions
thereof (in multiples of 1,000 in the currency or currency unit
in which the Securities of such series are denominated, except as
otherwise set forth in the applicable form of Security) to be
redeemed.
For the purpose of such selection in case of redemption of
less than all of the Securities of any series, the Trustee and
the Issuer shall have the option to treat as Outstanding
Securities any Securities of such series which are surrendered
for conversion after the fifteenth day immediately preceding the
mailing of notice of such redemption and need not treat as
Outstanding Securities any Securities authenticated and delivered
during such period in exchange for the unconverted portion of any
Securities converted in part during such period.
SECTION 14.3. Payment of Securities Called for Redemption.
If notice of redemption has been given as above provided, the
Securities or portions of Securities of the series specified in
such notice shall become due and payable on the Redemption Date
and at the place or places stated in such notice at the
applicable Redemption Price, together with any interest accrued
to such Redemption Date, and on and after said Redemption Date
(unless the Issuer shall default in the payment of such
Securities at the applicable Redemption Price, together with any
interest accrued to said Redemption Date) any interest on the
Securities or portions of Securities of any series so called for
redemption shall cease to accrue and the right to convert such
Securities or portions thereof, if the terms of such Securities
provide for conversion pursuant to Section 3.1, shall terminate
at the close of business on the Redemption Date or such other day
as may be specified as contemplated by Section 3.1 for Securities
of such series. On presentation and surrender of such Securities
and all Coupons, if any, appertaining thereto at a Place of
Payment in such notice specified, such Securities and Coupons or
the specified portions thereof shall be paid and redeemed by the
Issuer at the applicable Redemption Price, together with any
interest accrued thereon to the applicable Redemption Date in the
currency or currency unit in which the Securities of such series
and the Coupons, if any, appertaining thereto are payable (except
as otherwise specified as contemplated by Section 3.1 for the
Securities of such series and except as provided in
Sections 3.12(b), 3.12(e) and 3.12(f) of this Indenture).
If any Coupon Security, surrendered for redemption shall not
be accompanied by all appurtenant Coupons maturing on or after
the Redemption Date, such Security may be paid after deducting
from the Redemption Price an amount equal to the face amount of
all such missing Coupons or the surrender of such missing Coupon
or Coupons may be waived by the Issuer and the Trustee, if there
be furnished to them such security or indemnity as they may
require to save each of them and any Paving Agent harmless. If
thereafter the Holder of such Security shall surrender to any
Paying Agent any such missing Coupon in respect of which a
deduction shall have been made from the Redemption Price, such
Holder shall be entitled to receive the amount so deducted
provided, however, that, unless otherwise provided pursuant to
Section 3.1 or Section 10.1(f), interest represented by Coupons
shall be payable only upon presentation and surrender of those
Coupons at an office or agency located outside of the United
States.
Upon presentation of any Security redeemed in part only and
the Coupons, if any, appertaining thereto, the Issuer shall
execute and the Trustee shall authenticate and deliver to or on
the order of the Holder thereof, at the expense of the Issuer, a
new Security or Securities of such series and the Coupons, if
any, appertaining thereto, of authorized denominations, in
principal amount equal to the unredeemed portion of the
Securities so presented.
If any Security called for redemption pursuant to
Section 14.1 is converted pursuant to Article Seventeen, any
monies deposited with the Trustee for the purpose of paying or
redeeming any such Security shall be promptly paid to the Issuer.
SECTION 14.4. Exclusion of Certain Securities from
Eligibility for Selection for Redemption. Securities shall be
excluded from eligibility for selection for redemption if they
are identified by registration or certificate number in the case
of Registered Securities or Fully Registered Securities, or by
certificate number, in the case of Coupon Securities, in a
written statement signed by an authorized officer of the Issuer
and delivered to the Trustee at least 40 days prior to the last
date on which notice of redemption may be given as being owned
by, and not pledged or hypothe- cated by, either (a) the Issuer
or (b) an entity specifically identified in such written
statement directly or indirectly controlling or controlled by or
under direct or indirect common control with the Issuer. In the
case of Coupon Securities, the Issuer will provide evidence
satisfactory to the Trustee of the ownership thereof.
SECTION 14.5. Redemption Pursuant to Gaming Laws.
(a) Notwithstanding the provisions of Section 14.2 hereof and
any related paragraphs of the Securities of any series, if any
Gaming Authority requires that a Holder or beneficial owner of
Securities of any series must be licensed or found qualified or
suitable to hold or own the Securities of any such series, but
that Person is not licensed or found qualified or
suitable within any time specified by such Gaming Authority, or
such Gaming Authority denies a license to or finds unqualified or
unsuitable such Person, the Issuer will have the right at its
option to require such Person to dispose of such Person's
Securities of such series within the time period prescribed by
the Issuer or such other time period as may be prescribed by any
Gaming Authority, which time period shall be specified in a
written notice from the Issuer. If such Holder or beneficial
owner, having been given the opportunity by the Issuer to dispose
of such Securities, fails to dispose of such Securities within
the prescribed time period, the Issuer shall have the right to
call for redemption such Securities by notice of redemption to
such Person.
(b) On any redemption of Securities of any series pursuant
to this Section 14.5, the Redemption Price shall be the lesser of
(i) the lowest closing sale price of the Securities of such
series on any trading day during the 120-day period commencing on
the date upon which the Issuer shall have received notice from a
Gaming Authority of such Holder's disqualification or (ii) the
price at which such Holder or beneficial owner acquired the
Securities, unless a different redemption price is required by
such Gaming Authority, in which event such required price shall
be the Redemption Price. Each Holder and beneficial owner, by
accepting a Security of any series, agrees to the provisions of
this Section 14.5 and any related paragraphs of the Securities of
such series and agrees to inform the Issuer upon request of the
price at which such Holder or beneficial owner acquired such
Xxxxxx's or beneficial owner's Securities.
(c) Any redemption notice given by the Issuer under this
Section 14.5 shall state (i) that the Securities are being called
for redemption as a result of the Holder's or beneficial owner's
status under the relevant Gaming Laws, (ii) the Redemption Date,
(iii) the Redemption Price and (iv) the place or places where
such Securities are to be surrendered for payment of the
Redemption Price.
ARTICLE FIFTEEN
SINKING FUNDS
SECTION 15.1. Applicability of Article. The provisions of
this Article Fifteen shall be applicable to any sinking fund for
the retirement of Securities of a series except as otherwise
specified as contemplated by Section 3.1 for Securities of such
series.
The minimum amount of any sinking fund payment provided for
by the terms of Securities of any series is hereinafter referred
to as a "mandatory sinking fund payment", and any payment in
excess of such minimum amount provided for by the
terms of the Securities of any series is herein referred to as an
"optional sinking fund payment".
SECTION 15.2. Satisfaction of Mandatory Sinking Fund
Payments with Securities. In lieu of making all or any part of
any mandatory sinking fund payment with respect to any Securities
of a series in cash, the Issuer may at its option, (a) at any
time no more than 16 months and no less than 45 days prior to the
date on which such sinking fund payment is due, deliver to the
Trustee Outstanding Securities of such series (together with the
unmatured Coupons, if any, appertaining thereto) theretofore
purchased or otherwise acquired by the Issuer, except Securities
of such series which have been redeemed or previously called for
redemption through the application of mandatory or optional
sinking fund payments pursuant to the terms of the Securities of
such series or which have been acquired or redeemed out of the
proceeds of sale of a Principal Property pursuant to clause (i)
of Section 4.5, accompanied by an Issuer Order instructing the
Trustee to credit such obligations and stating that the
Securities of such series were originally issued by the Issuer by
way of bona fide sale or other negotiation for value or
(b) receive credit for any Securities which have been converted
pursuant to the terms of such Securities; provided that such
Securities have not been previously so credited. Such Securities
shall be received and credited for such purpose by the Trustee at
the Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such
mandatory sinking fund payment shall be reduced accordingly.
SECTION 15.3. Redemption of Securities for Sinking Fund. Not
less than 60 days prior to each sinking fund payment date for any
series of Securities, the Issuer will deliver to the Trustee a
certificate signed by the treasurer or any assistant treasurer of
the Issuer specifying the amount of the next ensuing sinking fund
payment for such series pursuant to the terms of such series, the
portion thereof, if any, which is to be satisfied by payment of
cash in the currency or currency unit in which the Securities of
such series and the Coupons, if any, appertaining thereto are
payable (except as otherwise specified as contemplated by
Section 3.1 for the Securities of such series and except as
provided in Sections 3.12(b), 3.12(e) and 3.12(f) of this
Indenture) and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities of such series
pursuant to Section 15.2 and whether the Issuer intends to
exercise its right to make a permitted optional sinking fund
payment with respect to such series. Such certificate shall be
irrevocable and upon its delivery the Issuer shall be obligated
to make the cash payment or payments (in the currency or currency
unit described above) therein referred to, if any, on or before
the next succeeding sinking fund payment date. In the case of the
failure of the Issuer to deliver such certificate (or to deliver
the Securities and Coupons, if any, specified in such certificate
within the time period specified in Section 15.2), the sinking
fund payment due on the next succeeding sinking fund payment date
for such series shall
be paid entirely in cash (in the currency, or currency unit
described above) and shall be sufficient to redeem the principal
amount of the Securities of such series subject to a mandatory
sinking fund payment without the right to deliver or credit
Securities as provided in Section 15.2 and without the right to
make any optional sinking fund payment, if any, with respect to
such series.
Any sinking fund payment or payments (mandatory or optional)
made in cash (in the currency or currency unit described above)
plus any unused balance of any preceding sinking fund payments
made with respect to the Securities of any particular series
shall be applied by the Trustee (or by the Issuer if the Issuer
is acting as its own Paying Agent) on the sinking fund payment
date on which such payment is made (or, if such payment is made
before a sinking fund payment date, on the sinking fund payment
date following the date of such payment) to the redemption of
Securities of such series at the Redemption Price specified in
such Securities with respect to the sinking fund together with
accrued interest, if any, to the applicable Redemption Date. Any
excess sinking fund moneys not so applied or allocated by the
Trustee (or by the Issuer if the Issuer is acting as its own
Paying Agent) to the redemption of Securities shall be added to
the next sinking fund payment received by the Trustee (or if the
Issuer is acting as its own Paying Agent, segregated and held in
trust as provided in Section 4.4) for such series and, together
with such payment (or such amount so segregated) shall be applied
in accordance with the provisions of this Section 15.3. Any and
all sinking fund moneys with respect to the Securities of any
particular series held by the Trustee (or if the Issuer is acting
as its own Paying Agent, segregated and held in trust as provided
in Section 4.4) on the last sinking fund payment date with
respect to Securities of such series and not held for the payment
or redemption of particular Securities of such series shall be
applied by the Trustee (or by the Issuer if the Issuer is acting
as its own Paying Agent), together with other moneys, if
necessary, to be deposited (or segregated) sufficient for the
purpose, to the payment of the principal of the Securities of
such series at Maturity. The Trustee shall not convert any
currency or currency unit in which the Securities of such series
are payable for the purposes of such sinking fund application
unless specifically requested to do so by the Issuer, and any
such conversion agreed to by the Trustee in response to such
request shall be for the account and at the expense of the Issuer
and shall not affect the Issuer's obligation to pay the Holders
in the currency or currency unit to which such Holders may be
entitled.
The Trustee shall select or cause to be selected the
Securities to be redeemed upon such sinking fund payment date in
the manner specified in the last paragraph of Section 14.2 and
the Issuer shall cause notice of the redemption thereof to be
given in the manner provided in Section 14.2 except that the
notice of redemption shall also state that the Securities are
being redeemed by operation of the sinking fund and whether the
sinking fund payment is mandatory or optional, or both, as the
case may
be. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated
in Section 14.3.
On or before (but at least one New York Business Day before
in the case of payments made in a currency or currency unit other
than Dollars) each sinking fund payment date, the Issuer shall
pay to the Trustee (or, if the Issuer is acting as its own Paying
Agent, will segregate and hold in trust as provided in
Section 4.4) in cash (in the currency or currency unit described
in the first paragraph of this Section 15.3) a sum equal to the
principal and any interest accrued to the Redemption Date for
Securities or portions thereof to be redeemed on such sinking
fund payment date pursuant to this Section 15.3.
Neither the Trustee nor the Issuer shall redeem any
Securities of a series with sinking fund moneys or mail any
notice of redemption of Securities of such series by operation of
the sinking fund for such series during the continuance of a
default in payment of interest, if any on any Securities of such
series or of any Event of Default (other than an Event of Default
occurring as a consequence of this paragraph) with respect to the
Securities of such series, except that if the notice of
redemption shall have been provided in accordance with the
provisions hereof, the Trustee (or the Issuer if the Issuer is
acting as its own Paying Agent) shall redeem such Securities if
cash (in the currency or currency unit described in the first
paragraph of this Section 15.3) sufficient for the purpose shall
be deposited with the Trustee (or segregated by the Issuer) for
that purpose in accordance with the terms of this Article
Fifteen. Except as aforesaid, any moneys (in the currency or
currency unit described in the first paragraph of this
Section 15.3) in the sinking fund for such series at the time
when any such default or Event of Default shall occur and any
moneys (in the currency or currency unit described in the first
paragraph of this Section 15.3) thereafter paid into such sinking
fund shall, during the continuance of such default or Event of
Default, be held as security for the payment of the Securities of
such series and the Coupons, if any, appertaining thereto;
provided, however that in case such Event of Default or default
shall have been cured or waived as provided herein, such moneys
(in the currency or currency unit described in the first
paragraph of this Section 15.3) shall thereafter be applied on
the next sinking fund payment date for the Securities of such
series on which such moneys (in the currency or currency unit
described in the first paragraph of this Section 15.3) may be
applied pursuant to the provisions of this Section 15.3.
ARTICLE SIXTEEN
CONVERSION OF CONVERTIBLE SECURITIES
SECTION 16.1. Applicability of Article. Securities of any
series which are convertible into Capital Stock at the option of
the Holders thereof shall be convertible in accordance with their
terms and (unless otherwise specified in one or more indentures
supplemental hereto or in a resolution of the Board of Directors
as contemplated by Section 3.1 for Securities of any series) in
accordance with this Article. Each reference in this Article
Seventeen to "a Security" or "the Securities" refers to the
Securities of the particular series that is convertible into
Capital Stock. Each reference in this Article to "Underlying
Stock" into which Securities of any series are convertible refers
to the class of Capital Stock into which the Securities of such
series are convertible in accordance with their terms (as
specified as contemplated by Section 3.1). If more than one
series of Securities with conversion privileges are Outstanding
at any time, the provisions of this Article Seventeen shall be
applied separately to each such series.
SECTION 16.2. Right of Holders to Convert Securities.
Subject to and upon compliance with the terms of the Securities
and this Article Seventeen, at the option of the Holder thereof,
any Security of any series of any authorized denomination, or any
portion of the principal amount thereof which is $1,000 or any
integral multiple of $1,000, may, at any time during the period
specified in the Securities of such series, be converted into
duly authorized, validly issued, fully paid and nonassessable
shares of the class, or combination of classes, of Underlying
Stock, as specified in such Security, at the conversion rate for
each $1,000 principal amount of Securities in effect on the
conversion date, or if such Security or portion thereof shall
have been called for redemption, then in respect of such Security
or portion thereof until and including, but not after (unless the
Issuer shall default in payment due upon the redemption thereof)
the close of business on the date fixed for redemption except
that in the case of redemption at the option of the Holder, if
specified in the terms of such Securities, such option to convert
shall terminate upon receipt of written notice of the exercise of
such option to redeem, or if an adjustment in the Conversion
Price has taken place pursuant to the provisions of Section 16.5,
then at the applicable conversion rate as so adjusted, upon
surrender of the Security or Securities, the principal amount of
which is so to be converted, to the Issuer at any time during
usual business hours at the office or agency to be maintained by
it in accordance with the provisions of Section 4.2 accompanied
by a written notice of election to convert as provided in
Section 16.3 and, if so required by the Issuer and the Trustee,
by a written instrument or instruments of transfer in form
satisfactory to the Issuer and the Trustee duly executed by the
Holder or his attorney duly authorized in writing. All Securities
surrendered for conversion shall, if surrendered to the Issuer or
any conversion agent, be delivered to the Trustee for
cancellation and canceled by it, or shall, if surrendered to the
Trustee, be canceled by it, as provided in Section 3.9.
The initial conversion price (the "Conversion Price") in
respect of a series of Securities shall be as specified in the
Securities of such series. The Conversion Price will be subject
to adjustment on the terms set forth in Section 16.5 or such
other or different terms, if any, as may be specified pursuant to
Section 3.1 for Securities of such series. Provisions of this
Indenture that apply to conversion of all of a Security also
apply to conversion of a portion of it.
SECTION 16.3. Issuance of Shares of Underlying Stock on
Conversion. As promptly as practicable after the surrender, as
herein provided, of any Security or Securities for conversion,
the Issuer shall deliver or cause to be delivered at its said
office or agency to or upon the written order of the Holder of
the Security or Securities so surrendered a certificate or
certificates representing the number of duly authorized, validly
issued, fully paid and nonassessable shares of Underlying Stock
into which such Security or Securities may be converted in
accordance with the terms thereof and the provisions of this
Article Seventeen. Prior to the delivery of such certificate or
certificates, the Issuer shall require a written notice at its
said office or agency from the Holder of the Security or
Securities so surrendered stating that the Holder irrevocably
elects to convert such Security or Securities, or, if less than
the entire principal amount thereof is to be converted, stating
the portion thereof to be converted. Such notice shall also state
the name or names (with address and social security or other
taxpayer identification number) in which said certificate or
certificates are to be issued. Such conversion shall be deemed to
have been made at the time that such Security or Securities shall
have been surrendered for conversion and such notice shall have
been received by the Issuer or the Trustee, the rights of the
Holder of such Security or Securities as a Holder shall cease at
such time, the person or persons entitled to receive the shares
of Underlying Stock upon conversion of such Security or
Securities shall be treated for all purposes as having become the
record holder or holders of such shares of Underlying Stock at
such time and such conversion shall be at the Conversion Price in
effect at such time. In the case of any Security of any series
which is converted in part only, upon such conversion, the Issuer
shall execute and the Trustee or any Authenticating Agent shall
authenticate and deliver to the Holder thereof, as requested by
such Holder, a new Security or Securities of such series of
authorized denominations in aggregate principal amount equal to
the unconverted portion of such Security.
If the last day on which a Security may be converted is not
a Business Day in a place where the conversion agent for the
applicable series of Securities is located, the Security may be
surrendered to that conversion agent on the next succeeding day
that is a Business Day with the same effect as if surrendered on
such last day.
The Issuer will not be required to deliver certificates for
shares of Underlying Stock upon conversion while its stock
transfer books are closed for a meeting of
shareholders or for the payment of dividends or for any other
purpose, but certificates for shares of Underlying Stock shall be
delivered as soon as the stock transfer books shall again be
opened.
SECTION 16.4. No Payment or Adjustment for Interest or
Dividends. Unless otherwise specified as contemplated by Section
3.1 for Securities of such series, Securities surrendered for
conversion during the period from the close of business on any
regular record date (or special record date for payment of
defaulted interest) next preceding any Interest Payment Date to
the opening of business on such Interest Payment Date (except
Securities called for redemption on a redemption date within such
period) when surrendered for conversion must be accompanied by
payment of an amount equal to the interest thereon which the
Holder is to receive on such Interest Payment Date. Payment of
interest shall be made, as of such Interest Payment Date or such
date, as the case may be, to the Holder of the Securities as of
such regular or special record date, as applicable. Except where
Securities surrendered for conversion must be accompanied by
payment as described above, no interest on converted Securities
will be payable by the Issuer on any Interest Payment Date
subsequent to the date of conversion. No other payment or
adjustment for interest or dividends is to be made upon
conversion. Notwithstanding the foregoing, upon conversion of any
Original Issue Discount Security, the fixed number of shares of
Underlying Stock into which such Security is convertible
delivered by the Issuer to the Holder thereof shall be applied,
first, to pay the accrued original issue discount attributable to
the period from the date of issuance to the date of conversion of
such Security, and, second, to pay the balance of the principal
amount of such Security.
SECTION 16.5. Adjustment of Conversion Price. Unless
otherwise specified as contemplated by Section 3.1 for Securities
of such series, the Conversion Price shall be adjusted from time
to time by the Issuer as follows:
(a) If the Issuer shall hereafter pay a dividend or
make a distribution to substantially all holders of the
outstanding shares of Underlying Stock in shares of such
Underlying Stock, the Conversion Price in effect at the opening
of business on the date following the date fixed for the
determination of stockholders entitled to receive such dividend
or other distribution shall be reduced to an amount equal to the
product of (x) such Conversion Price and (y) a fraction of which
(i) the numerator shall be the number of shares of Underlying
Stock outstanding at the close of business on the Record Date (as
defined in Section 16.5(g)) fixed for such determination and
(ii) the denominator shall be the sum of (A) such number of
shares and (B) the total number of shares constituting such
dividend or other distribution, such reduction to become
effective immediately after the opening of business on the day
following such Record Date. If any dividend or distribution of
the type described in this Section 16.5(a) is declared but not so
paid or made, the Conversion Price shall again
be adjusted to the Conversion Price which would then be in effect
if such dividend or distribution had not been declared.
(b) If the Issuer shall issue rights or warrants to
substantially all holders of the outstanding shares of Underlying
Stock entitling them to subscribe for or purchase shares of such
Underlying Stock at a price per share less than the Current
Market Price (as defined in Section 16.5(g)) on the Record Date
fixed for the determination of stockholders entitled to receive
such rights or warrants, the Conversion Price shall be adjusted
so that the same shall be an amount equal to the product of (x)
the Conversion Price in effect at the opening of business on the
date after such Record Date and (y) a fraction of which (i) the
numerator shall be the sum of (A) the number of shares of
Underlying Stock outstanding at the close of business on such
Record Date plus (B) the number of shares which the aggregate
exercise price of the total number of rights or warrants so
distributed would purchase at such Current Market Price, and of
which (ii) the denominator shall be the sum of (A) the number of
shares of Underlying Stock outstanding on the close of business
on such Record Date plus (B) the total number of additional
shares of Underlying Stock to be issued upon exercise of the
rights or warrants so distributed. Such adjustment shall become
effective immediately after the opening of business on the day
following the Record Date fixed for determination of stockholders
entitled to receive such rights or warrants. To the extent that
shares of Underlying Stock are not delivered pursuant to such
rights or warrants, upon the expiration or termination of such
rights or warrants, the Conversion Price shall again be adjusted
to be the Conversion Price which would then be in effect had the
adjustments made upon the issuance of such rights or warrants
been made on the basis of delivery of only the number of shares
of Underlying Stock actually delivered. If such rights or
warrants are not so issued, the Conversion Price shall again be
adjusted to be the Conversion Price which would then be in effect
if such date fixed for the determination of stockholders entitled
to receive such rights or warrants had not been fixed. In
determining whether any rights or warrants entitle the holders to
subscribe for or purchase shares of Underlying Stock at less than
such Current Market Price, and in determining the aggregate
offering price of such shares of Underlying Stock, there shall be
taken into account any consideration received for such rights or
warrants, with the value of such consideration, if other than
cash, to be determined by the Board of Directors.
(c) If the Issuer shall (1) subdivide the outstanding
shares of Underlying Stock into a greater number of shares or
(2) combine or reclassify (other than a reclassification to which
Section 16.7 applies) the outstanding shares of Underlying Stock
into a smaller number of shares, the Conversion Price in effect
immediately prior to such action shall be adjusted so that the
Holder of any Security of such series thereafter surrendered for
conversion shall be entitled to receive the number of shares of
Underlying Stock that he would have owned immediately
following such action had such Security of such series been
converted immediately prior thereto. An adjustment made pursuant
to this Section 16.5 (c) shall become effective immediately after
the opening of business on the day following the day upon which
such subdivision, reclassification or combination becomes
effective.
(d) If the Issuer shall, by dividend or otherwise,
distribute to substantially all holders of Underlying Stock
shares of any other class of Capital Stock of the Issuer (other
than any dividends or distributions to which Section 16.5(a)
applies) or evidences of its indebtedness, cash or other assets
(including securities, but excluding any rights or warrants of a
type referred to in Section 16.5(b) and dividends and
distributions paid exclusively in cash and excluding any Capital
Stock, evidences of indebtedness, cash or assets distributed upon
a merger or consolidation to which Section 16.7 applies) (the
foregoing hereinafter in this Section 16.5(d) called the
"Distributed Securities"), then, in each such case, the
Conversion Price shall be reduced so that the same shall be an
amount equal to the product of (x) the Conversion Price in effect
immediately prior to the close of business on the Record Date (as
defined in Section 16.5(g)) with respect to such distribution and
(y) a fraction of which (i) the numerator shall be the result of
(A) the Current Market Price (determined as provided in Section
16.5(g)) on such date minus (B) the fair market value (as
determined by the Board of Directors, whose determination shall
be conclusive and described in a Board Resolution) on such date
of the portion of the Distributed Securities so distributed
applicable to one share of Underlying Stock and (ii) the
denominator shall be such Current Market Price, such reduction to
become effective immediately prior to the opening of business on
the day following the Record Date; provided, however, that in the
event the then fair market value (as so determined) of the
portion of the Distributed Securities so distributed applicable
to one share of Underlying Stock is equal to or greater than the
Current Market Price on the Record Date, in lieu of the foregoing
adjustment, adequate provision shall be made so that each Holder
of Securities of such series shall have the right to receive upon
conversion of a Security of such series (or any portion thereof)
the amount of Distributed Securities such Holder would have
received had such Holder converted such Security of such series
(or portion thereof) immediately prior to such Record Date. If
such dividend or distribution is not so paid or made, the
Conversion Price shall again be adjusted to be the Conversion
Price which would then be in effect if such dividend or
distribution had not been declared. If the Board of Directors
determines the fair market value of any distribution for purposes
of this Section 16.5(d) by reference to the actual or when issued
trading market for any securities comprising all or part of such
distribution, it must in doing so consider the prices in such
market over the same period used in computing the Current Market
Price pursuant to Section 16.5(g) to the extent possible.
Rights or warrants distributed by the Issuer to
substantially all holders of shares of Underlying Stock entitling
the holders thereof to subscribe for or purchase shares of any
class of the Issuer's Capital Stock (either initially or under
certain circumstances), which rights or warrants until the
occurrence of a specified event or events ("Trigger Event"):
(i) are deemed to be transferred with such shares of Underlying
Stock; (ii) are not exercisable; and (iii) are also issued in
respect of future issuances of shares of Underlying Stock, shall
be deemed not to have been distributed for purposes of this
Section 16.5(d) (and no adjustment to the Conversion Price under
this Section 16.5(d) shall be required) until the occurrence of
the earliest Trigger Event, whereupon such rights and warrants
shall be deemed to have been distributed and an appropriate
adjustment to the Conversion Price under this Section 16.5(d)
shall be made. If any such rights (including the Rights (as
defined below)) or warrants, including rights or warrants
distributed prior to the date of this Indenture (including the
Rights), shall become exercisable to purchase different
securities, evidences of indebtedness or other assets upon the
occurrence of certain subsequent events, then the occurrence of
each such event shall be deemed to be the date of issuance and
record date with respect to new rights or warrants (and a
termination or expiration of the existing rights or warrants
without exercise by the holder thereof). In addition, in the
event of any distribution (or deemed distribution) of rights or
warrants (including the Rights), or any Trigger Event with
respect thereto, that was taken into account for purposes of
calculating a distribution amount for which an adjustment to the
Conversion Price under this Section 16.5 was made, (1) in the
case of any such rights (including the Rights) or warrants which
shall all have been redeemed or repurchased without exercise by
any of the holders thereof, the Conversion Price shall be
readjusted upon such final redemption or repurchase to give
effect to such distribution or Trigger Event, as the case may be,
as though it were a cash distribution equal to the per share
redemption or repurchase price received by a holder or holders of
shares of Underlying Stock with respect to such rights or
warrants (assuming such holder had retained such rights or
warrants and thus received such price), made to all holders of
shares of the class of Capital Stock into which Securities of
such series are convertible as of the date of such redemption or
repurchase, and (2) in the case of such rights (including the
Rights) or warrants which shall have expired or been terminated
without exercise by any holders thereof, the Conversion Price
shall be readjusted as if such rights (including the Rights) and
warrants had not been issued. In lieu of any adjustment to the
Conversion Price otherwise required by this Section 16.5(d) as a
result of a Trigger Event affecting rights (the "Rights")
distributed pursuant to the Issuer's Rights Agreement dated as of
November 1, 1995, as amended (the "Rights Plan"), the Issuer may
amend such Rights Plan to provide that upon conversion of the
Securities of such series the holder thereof will receive, in
addition to the shares of Underlying Stock issuable upon such
conversion, the Rights which attached to such shares of
Underlying Stock or would
have attached to such shares if the Rights had not become
separated from the Underlying Stock pursuant to the provisions of
the Rights Plan.
Notwithstanding any other provision of this
Section 16.5(d) to the contrary, rights, warrants, evidences of
indebtedness, other securities, cash or other assets (including,
without limitation, any rights distributed pursuant to any
stockholder rights plan) shall be deemed not to have been
distributed for purposes of this Section 16.5(d) if the Issuer
makes proper provision so that each Holder of Securities of such
series who converts a Security of such series (or any portion
thereof) after the date fixed for determination of stockholders
entitled to receive such distribution shall be entitled to
receive upon such conversion, in addition to the shares of
Underlying Stock issuable upon such conversion, the amount and
kind of such distributions that such Holder would have been
entitled to receive if such Holder had, immediately prior to such
determination date, converted such Security of such series into
shares of Underlying Stock.
For purposes of this Section 16.5(d) and
Sections 16.5(a) and (b), any dividend or distribution to which
this Section 16.5(d) is applicable that also includes (x) shares
of Underlying Stock, (y) rights or warrants to subscribe for or
purchase shares of Underlying Stock to which Section 16.5(b)
applies or (z) both (x) and (y), shall be deemed instead to be
(1) a dividend or distribution of the evidences of indebtedness,
assets, shares of capital stock, rights or warrants other than
such shares of Underlying Stock or rights or warrants to which
Section 16.5(b) applies (and any Conversion Price reduction
required by this Section 16.5(d) with respect to such dividend or
distribution shall then be made) immediately followed by (2) a
dividend or distribution of such shares of Underlying Stock or
such rights or warrants (and any further Conversion Price
reduction required by Section 16.5(a) and (b) with respect to
such dividend or distribution shall then be made, except that for
purposes of calculating such further Conversion Price reduction,
if any, (a) the Record Date of such dividend or distribution
shall be substituted for the phrases "the date fixed for the
determination of stockholders entitled to receive such dividend
or other distribution", "Record Date (as defined in Section
16.5(g)) fixed for such determination" and "Record Date" for
purposes of Section 16.5(a) and for the phrases "the Record Date
fixed for the determination of stockholders entitled to receive
such rights or warrants" and "such Record Date" for purposes of
Section 16.5(b) and (b) any shares of Underlying Stock included
in such dividend or distribution shall not be deemed "outstanding
at the close of business on the Record Date fixed for such
determination" for purposes of Section 16.5(a)).
(e) If the Issuer shall, by dividend or otherwise,
distribute to substantially all holders of shares of Underlying
Stock cash (the "Cash Distribution") (excluding any cash that is
distributed upon a merger or consolidation to which
Section 16.7 applies or as part of a distribution referred to in
Section 16.5(d) for which no adjustment to the Conversion Price
was made) in an aggregate amount that, taken together with
(1) the aggregate amount of any other such distributions to all
holders of its Underlying Stock made exclusively in cash within
the 12 months preceding the date of payment of such distribution,
and in respect of which no adjustment pursuant to this
Section 16.5(e) has been made, and (2) the aggregate amount of
any cash plus the fair market value (as determined by the Board
of Directors, whose determination shall be conclusive and
described in a Board Resolution) of consideration payable in
respect of any tender offer by the Issuer or any Subsidiary for
all or any portion of the Underlying Stock concluded within the
12 months preceding the date of payment of such distribution, and
in respect of which no adjustment pursuant to Section 16.5(f) has
been made, exceeds 15% of the product of (x) the Current Market
Price (determined as provided in Section 16.5(g)) on the Record
Date with respect to such distribution and (y) the number of
shares of Underlying Stock outstanding on such date, then, and in
each such case, immediately after the close of business on such
date, the Conversion Price shall be reduced so that the same
shall equal an amount equal to the product of (x) the Conversion
Price in effect immediately prior to the close of business on
such Record Date and (y) a fraction of which (i) the numerator
shall be the result of (A) the Current Market Price on the Record
Date minus (B) an amount equal to the result of (p) the aggregate
amount of the Cash Distribution and (2) above divided by (q) the
number of shares of Underlying Stock outstanding on the Record
Date and (ii) the denominator shall be equal to the Current
Market Price on such Record Date; provided, however, that in the
event the portion of the cash so distributed applicable to one
share of Underlying Stock is equal to or greater than the Current
Market Price of the Underlying Stock on the Record Date, in lieu
of the foregoing adjustment, adequate provision shall be made so
that each Holder of Securities of such series shall have the
right to receive upon conversion of a Security of such series (or
any portion thereof) the amount of cash such Holder would have
received had such Holder converted such Security of such series
(or portion thereof) immediately prior to such Record Date. If
such dividend or distribution is not so paid or made, the
Conversion Price shall again be adjusted to be the Conversion
Price which would then be in effect if such dividend or
distribution had not been declared.
In lieu of making any adjustment to the Conversion
Price pursuant to the immediately preceding paragraph, the Issuer
may elect to reserve an amount of cash for distribution to the
Holders of Securities of such series upon the conversion of the
Securities of such series so that any such Holder converting
Securities of such series will receive upon such conversion, in
addition to the shares of Underlying Stock and other items to
which such Holder is entitled, the full amount of cash which such
Holder would have received if such Holder had, immediately prior
to the Record Date for such distribution of cash, converted its
Securities of such series into
Underlying Stock, together with any interest accrued with respect
to such amount, in accordance with this paragraph. The Issuer may
make such election by providing an Officers' Certificate to the
Trustee to such effect on or prior to the payment date for any
such distribution and depositing with the Trustee on or prior to
such date an amount of cash equal to the aggregate amount that
the Holders of Securities of such series would have received if
such Holders had, immediately prior to the Record Date for such
distribution, converted all of the Securities of such series into
Underlying Stock. Any such funds so deposited by the Issuer with
the Trustee shall be invested by the Trustee in Government
Obligations with a maturity not more than three months from the
date of issuance. Upon conversion of Securities of such series by
a Holder thereof, such holder shall be entitled to receive, in
addition to the Underlying Stock issuable upon conversion, an
amount of cash equal to the amount such Holder would have
received if such Holder had, immediately prior to the Record Date
for such distribution, converted its Securities of such series
into Underlying Stock, along with such Holder's pro rata share of
any accrued interest earned as a consequence of the investment of
such funds. Promptly after making an election pursuant to this
paragraph, the Issuer shall give or shall cause to be given
notice to all Holders of Securities of such series of such
election, which notice shall state the amount of cash per $1,000
principal amount of Securities of such series such Holders shall
be entitled to receive (excluding interest) upon conversion of
the Securities of such series as a consequence of the Issuer
having made such election. Any cash distribution to all holders
of Underlying Stock as to which the Issuer makes the election
permitted by this paragraph and as to which the Issuer has
complied with the requirements of such Section shall be treated
as not having been made for all purposes of this Section 16.5(e).
(f) If a tender offer made by the Issuer or any
Subsidiary for all or any portion of the Underlying Stock expires
and such tender offer (as amended upon the expiration thereof)
requires the payment to stockholders (based on the acceptance (up
to any maximum number of shares specified in the terms of the
tender offer) of Purchased Shares (as defined below)) of an
aggregate consideration having a fair market value (as determined
by the Board of Directors, whose determination shall be
conclusive and described in a Board Resolution) that, taken
together with (1) the aggregate of the cash plus the fair market
value (as determined by the Board of Directors, whose
determination shall be conclusive and described in a Board
Resolution), as of the expiration of such tender offer, of
consideration payable in respect of any other tender offers, by
the Issuer or any Subsidiary for all or any portion of the
Underlying Stock expiring within the 12 months preceding the
expiration of such tender offer and in respect of which no
adjustment pursuant to this Section 16.5(f) has been made and
(2) the aggregate amount of any distributions to all holders of
Underlying Stock made exclusively in cash within 12 months
preceding the expiration of such tender offer and in respect of
which no adjustment pursuant to
Section 16.5(e) has been made, exceeds 15% of the product of
(x) the Current Market Price (determined as provided in
Section 16.5(g)) as of the last time (the "Expiration Time")
tenders could have been made pursuant to such tender offer (as it
may be amended) and (y) the number of shares of Underlying Stock
outstanding (including any tendered shares) on the Expiration
Time, then, and in each such case, immediately prior to the
opening of business on the day after the date of the Expiration
Time, the Conversion Price shall be adjusted so that the same
shall equal an amount equal to the product of (x) the Conversion
Price in effect immediately prior to the close of business on the
date of the Expiration Time and (y) a fraction of which (i) the
numerator shall be the result of (A) the product of (p) the
number of shares of Underlying Stock outstanding (including any
tendered shares) on the Expiration Time and (q) the Current
Market Price of the Underlying Stock on the Expiration Time minus
(B) the fair market value (determined as aforesaid) of the
aggregate consideration to be paid to stockholders based on the
acceptance (up to any maximum number of shares specified in the
terms of the tender offer) of all shares validly tendered and not
withdrawn as of the Expiration Time (the shares deemed so
accepted, up to any such maximum number of shares, being referred
to as the "Purchased Shares") and (ii) the denominator shall be
the product of (A) the number of shares of Underlying Stock
outstanding (less any Purchased Shares) on the Expiration Time
and (B) the Current Market Price of the Underlying Stock on the
Expiration Time, such reduction (if any) to become effective
immediately prior to the opening of business on the day following
the Expiration Time. If the Issuer is obligated to purchase
shares pursuant to any such tender offer, but the Issuer is
permanently prevented by applicable law from effecting any such
purchases or all such purchases are rescinded, the Conversion
Price shall again be adjusted to be the Conversion Price which
would then be in effect if such tender offer had not been made.
If the application of this Section 16.5(f) to any tender offer
would result in an increase in the Conversion Price, no
adjustment shall be made for such tender offer under this
Section 16.5(f).
(g) For purposes of this Section 16.5, the following
terms shall have the meaning indicated:
(1) "closing price" with respect to any securities on
any day means the closing price on such day or, if no such
sale takes place on such day, the average of the reported
high and low prices on such day, in each case on The Nasdaq
Stock Market or New York Stock Exchange, as applicable, or,
if such security is not listed or admitted to trading on
such national market or exchange, on the principal national
securities exchange or quotation system on which such
security is quoted or listed or admitted to trading, or, if
not quoted or listed or admitted to trading on any national
securities exchange or quotation system, the average of the
high and low prices of such security on
the over-the-counter market on the day in question as
reported by the National Quotation Bureau Incorporated, or a
similar generally accepted reporting service, or, if not so
available, in such manner as furnished by any New York Stock
Exchange member firm selected from time to time by the Board
of Directors for that purpose, or, if not so available, a
price determined in good faith by the Board of Directors,
whose determination shall be conclusive and described in a
Board Resolution.
(2) "Current Market Price" means the average of the
daily closing prices per share of the Underlying Stock for
the 10 consecutive trading days immediately prior to the
date in question; provided, however, that (i) if the "ex"
date (as hereinafter defined) for any event (other than the
issuance or distribution requiring such computation) that
requires an adjustment to the Conversion Price pursuant to
Section 16.5(a), (b), (c), (d), (e) or (f) occurs during
such 10 consecutive trading days, the closing price for each
trading day prior to the "ex" date for such other event
shall be adjusted by multiplying such closing price by the
same fraction by which the Conversion Price is so required
to be adjusted as a result of such other event, (ii) if the
"ex" date for any event (other than the issuance or
distribution requiring such computation) that requires an
adjustment to the Conversion Price pursuant to
Section 16.5(a), (b), (c), (d), (e) or (f) occurs on or
after the "ex" date for the issuance or distribution
requiring such computation and prior to the date in
question, the closing price for each trading day on and
after the "ex" date for such other event shall be adjusted
by multiplying such closing price by the reciprocal of the
fraction by which the Conversion Price is so required to be
adjusted as a result of such other event, and (iii) if the
"ex" date for the issuance or distribution requiring such
computation is prior to the date in question, after taking
into account any adjustment required pursuant to clause (i)
or (ii) of this proviso, the closing price for each trading
day on or after such "ex" date shall be adjusted by adding
thereto the amount of any cash and the fair market value (as
determined by the Board of Directors in a manner consistent
with any determination of such value for purposes of
Section 16.5(d) or (f), whose determination shall be
conclusive and described in a Board Resolution) of the
evidences of indebtedness, shares of Underlying Stock or
assets being distributed applicable to one share of the
Underlying Stock as of the close of business on the day
before such "ex" date. For purposes of this paragraph, the
term "ex" date, (i) when used with respect to any issuance
or distribution, means the first date on which the
Underlying Stock trades regular way on the relevant exchange
or in the relevant market from which the closing price was
obtained without the right to receive such issuance or
distribution, (ii) when used with respect to any subdivision
or combination of shares of Underlying Stock, means the
first date on which the
Underlying Stock trades regular way on such exchange or in
such market after the time at which such subdivision or
combination becomes effective, and (iii) when used with
respect to any tender or exchange offer, means the first
date on which the Underlying Stock trades regular way on
such exchange or in such market after the Expiration Time of
such offer. Notwithstanding the foregoing, whenever
successive adjustments to the Conversion Price are called
for pursuant to this Section 16.5, such adjustment shall be
made to the Current Market Price as may be necessary or
appropriate to effectuate the intent of this Section 16.5
and to avoid unjust or inequitable results as determined in
good faith by the Board of Directors.
(3) "fair market value" shall mean the amount which a
willing buyer would pay a willing seller in an arm's-length
transaction.
(4) "Record Date" shall mean, with respect to any
dividend, distribution or other transaction or event in
which the holders of Capital Stock have the right to receive
any cash, securities or other property or in which the
Capital Stock (or other applicable security) is exchanged
for or converted into any combination of cash, securities or
other property, the date fixed for determination of
stockholders entitled to receive such cash, securities or
other property (whether such date is fixed by the Board of
Directors or by statute, contract or otherwise).
(5) "trading day" shall mean (x) if the applicable
security is listed or admitted for trading on the New York
Stock Exchange or another national securities exchange, a
day on which the New York Stock Exchange or such other
national securities exchange is open for business, as
applicable, or (y) if the applicable security is quoted on
The Nasdaq Stock Market, a day on which trades may be made
thereon or (z) if the applicable security is not so listed,
admitted for trading or quoted, any day other than a
Saturday or Sunday or a day on which banking institutions in
the State of New York are authorized or obligated by law or
executive order to close.
(h) Certain adjustments in the conversion price in
accordance with the foregoing provisions could be taxable
pursuant to Section 305 of the Internal Revenue Code of 1986, as
amended, as a constructive distribution of stock to holders of
the convertible Debt Securities at the time of the adjustment in
the conversion rate to the extent of the value of such
adjustment. Accordingly, the Issuer may make such reduction in
the Conversion Price, in addition to those required by
Sections 16.5(a), (b), (c), (d), (e) and (f), as the Board of
Directors considers to be advisable to avoid or diminish any
income tax to holders of Underlying Stock or rights to purchase
Underlying Stock resulting from any dividend or distribution of
stock (or rights to acquire stock) or from any event treated as
such for income tax purposes.
To the extent permitted by applicable law, the Issuer
from time to time may reduce the Conversion Price by any amount
for any period of time if the period is at least 20 days, the
reduction is irrevocable during the period and the Board of
Directors has made a determination that such reduction would be
in the Issuer's best interests, which determination shall be
conclusive and described in a Board Resolution. Whenever the
Conversion Price is reduced pursuant to the preceding sentence,
the Issuer shall mail to the Holders of Securities of such series
at his or her last address appearing on the register of Holders
maintained for that purpose a notice of the reduction at least
15 days prior to the date the reduced Conversion Price takes
effect, and such notice shall state the reduced Conversion Price
and the period during which it will be in effect.
(i) No adjustment in the Conversion Price shall be
required unless such adjustment would require an increase or
decrease of at least 1% in such price; provided, however, that
any adjustments which by reason of this Section 16.5(i) are not
required to be made shall be carried forward and taken into
account in any subsequent adjustment. All calculations under this
Article Seventeen shall be made by the Issuer and shall be made
to the nearest cent or to the nearest 100th of a share, as the
case may be. No adjustment need be made for a change in the par
value or no par value of the Underlying Stock.
(j) Whenever the Conversion Price is adjusted as herein
provided, the Issuer shall promptly file with the Trustee and any
conversion agent other than the Trustee an Officers' Certificate
setting forth the Conversion Price after such adjustment and
setting forth a brief statement of the facts requiring such
adjustment. Promptly after delivery of such certificate, the
Issuer shall prepare a notice of such adjustment of the
Conversion Price setting forth the adjusted Conversion Price and
the date on which each adjustment becomes effective and shall
mail such notice of such adjustment of the Conversion Price to
each Holder of Securities of such series at his or her last
address appearing on the register of Holders maintained for that
purpose within 20 days of the effective date of such adjustment.
Failure to deliver such notice shall not affect the legality or
validity of any such adjustment.
(k) In any case in which this Section 16.5 provides
that an adjustment shall become effective immediately after a
Record Date for an event, the Issuer may defer until the
occurrence of such event issuing to the Holder of any Security of
such series converted after such Record Date and before the
occurrence of such event the additional shares of Underlying
Stock issuable upon such conversion by reason of the
adjustment required by such event over and above the Underlying
Stock issuable upon such conversion before giving effect to such
adjustment.
(l) For purposes of this Section 16.5, the number of
shares of any class of Capital Stock at any time outstanding
shall not include shares held in the treasury of the Issuer but
shall include shares issuable in respect of scrip certificates
issued in lieu of fractions of shares such shares of such class
of Capital Stock. The Issuer shall not pay any dividend or make
any distribution on shares of any class of Capital Stock held in
the treasury of the Issuer.
(m) In the event that at any time, as a result of
shares of any other class of Capital Stock of the Issuer becoming
issuable in exchange or substitution for or in lieu of shares of
Underlying Stock or as a result of an adjustment made pursuant to
subsection (a) or (c) above, the Holder of any Security of such
series thereafter surrendered for conversion shall become
entitled to receive any shares of the Issuer other than shares of
Underlying Stock, thereafter the number of such other shares so
receivable upon conversion of any Security shall be subject to
adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with respect to the
class of Capital Stock into which the Securities of such series
are convertible contained in subsections (a) to (l) above, and
the provisions of this Article Seventeen with respect to the
class of Capital Stock into which the Securities of such series
are convertible shall apply on like terms to any such other
shares.
(n) The conversion rate with respect to any Original
Issue Discount Securities, the terms of which provide for
convertibility, shall not be adjusted during the term of such
Original Issue Discount Securities for accrued original issue
discount.
(o) In the event that the Securities of any series are
convertible into more than one class of Capital Stock, the
provisions of this Section 16.5 shall apply separately to events
affecting each such class.
SECTION 16.6. No Fractional Shares to be Issued. No
fractional shares of Underlying Stock shall be issued upon
conversion of Securities. If more than one Security of any series
shall be surrendered for conversion at one time by the same
Holder, the number of full shares which shall be issuable upon
conversion thereof shall be computed on the basis of the
aggregate principal amount of the Securities of such series (or
specified portions thereof to the extent permitted hereby) so
surrendered. Instead of a fraction of a share of Underlying Stock
which would otherwise be issuable upon conversion of any Security
or Securities (or specified portions thereof), the Issuer shall
pay a cash adjustment in respect of such fraction of a share in
an amount equal to the same fractional interest of the closing
price per
share (as defined in Section 16.5(g)(1)) of Underlying Stock on
the Business Day next preceding the day of conversion.
SECTION 16.7. Effect of Reclassification, Consolidation,
Merger or Sale. If any of the following events occur: (i) any
reclassification or change of the outstanding shares of
Underlying Stock (other than a change in par value, or from par
value to no par value, or from no par value to par value, or as a
result of a subdivision or combination), (ii) any consolidation,
merger or combination of the Issuer with another corporation as a
result of which holders of Capital Stock shall be entitled to
receive stock, securities or other property or assets (including
cash) with respect to or in exchange for such Underlying Stock,
or (iii) any sale of the properties and assets of the Issuer as,
or substantially as, an entirety to any other corporation as a
result of which holders of Underlying Stock shall be entitled to
receive stock, securities or other property or assets (including
cash) with respect to or in exchange for such Underlying Stock,
then the Issuer or the successor or purchasing corporation, as
the case may be, shall execute with the Trustee a supplemental
indenture (which shall comply with the Trust Indenture Act as in
force at the date of execution of such supplemental indenture if
such supplemental indenture is then required to so comply)
providing that the Securities of such series shall be convertible
into the kind and amount of shares of stock and other securities
or property or assets (including cash) receivable upon such
reclassification, change, consolidation, merger, combination or
sale by a holder of a number of shares of Underlying Stock
issuable upon conversion of the Securities of such series
(assuming, for such purposes, a sufficient number of authorized
shares of Underlying Stock available to convert all such
Securities of such series) immediately prior to such
reclassification, change, consolidation, merger, combination or
sale assuming such holder of Underlying Stock did not exercise
his or her rights of election, if any, as to the kind or amount
of securities, cash or other property receivable upon such
consolidation, merger, statutory exchange or sale (provided, that
if the kind or amount of securities, cash or other property
receivable upon such consolidation, merger, statutory exchange or
sale is not the same for each share of Underlying Stock in
respect of which such rights of election have not been exercised
("non-electing share"), then, for the purposes of this
Section 16.7, the kind and amount of securities, cash or other
property receivable upon such consolidation, merger, statutory
exchange or sale for each non-electing share shall be deemed to
be the kind and amount so receivable per share by a plurality of
the non-electing shares). Such supplemental indenture shall
provide for adjustments which shall be as nearly equivalent as
may be practicable to the adjustments provided for in this
Article Seventeen. If, in the case of any such reclassification,
change, consolidation,
merger, combination or sale, the stock or other securities and
assets receivable thereupon by a holder of shares of Underlying
Stock includes shares of stock or other securities and assets of
a corporation other than the successor or purchasing corporation,
as the case may be, in such reclassification, change,
consolidation, merger, combination or sale, then such
supplemental indenture shall also be executed by such other
corporation and shall contain such additional provisions to
protect the interests of the holders of the Securities of such
series as the Board of Directors shall reasonably consider
necessary by reason of the foregoing.
The Issuer shall cause notice of the execution of such
supplemental indenture to be mailed to each Holder of Securities
of such series at his or her address appearing on the register of
Holders for that purpose within 20 days after execution thereof.
Failure to deliver such notice shall not affect the legality or
validity of such supplemental indenture.
The above provisions of this Section 16.7 shall
similarly apply to successive reclassifications, changes,
consolidations, mergers, combinations and sales.
If this Section 16.7 applies to any event or
occurrence, Section 16.5 shall not apply.
SECTION 16.8. Notice to Holders of Securities of a Series
Prior to Taking Certain Types of Action. With respect to the
Securities of any series, in case:
(a) the Issuer shall authorize the issuance to all
holders of Underlying Stock of rights or warrants to
subscribe for or purchase shares of its Underlying Stock or
of any other right;
(b) the Issuer shall authorize the distribution to all
holders of Underlying Stock of evidences of its indebtedness
or assets (except for the exclusions with respect to certain
dividends set forth in Section 16.5(c));
(c) of any subdivision, combination or reclassification
of Underlying Stock or of any consolidation or merger to
which the Issuer is a party and for which approval by the
shareholders of the Issuer is required, or of the sale of
all or substantially all of the assets of the Issuer; or
(d) of the voluntary or involuntary dissolution,
liquidation or winding up of the company;
then the Issuer shall cause to be filed with the Trustee and at
the office or agency maintained for the purpose of conversion of
Securities of such series pursuant to Section 4.2, and shall
cause to be mailed to the Holders of Securities of such series,
at their last addresses as they shall appear upon the
registration books of the Issuer, at least ten days prior to the
applicable record date hereinafter specified, a notice stating
(i) the date as of which the holders of Underlying Stock to be
entitled to receive any
such rights, warrants or distribution are to be determined, or
(ii) the date on which any such subdivision, combination,
reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation, winding up or other action is expected
to become effective, and the date as of which it is expected that
holders of record of Underlying Stock shall be entitled to
exchange their Underlying Stock of such class for securities or
other property, if any, deliverable upon such subdivision,
combination, reclassification, consolidation, merger, sale,
dissolution, liquidation, winding up or other action. The failure
to give the notice required by this Section 16.8 or any defect
therein shall not affect the legality or validity of any
distribution, right, warrant, subdivision, combination,
reclassification, consolidation, merger, sale, dissolution,
liquidation, winding up or other action, or the vote upon any of
the foregoing. Such notice shall also be published by and at the
expense of the Issuer not later than the aforesaid filing date at
least once in an Authorized Newspaper.
SECTION 16.9. Covenant to Reserve Shares for Issuance on
Conversion of Securities. The Issuer covenants that at all times
it will reserve and keep available out of its Underlying Stock,
free from preemptive rights, solely for the purpose of issue upon
conversion of Securities of any series as herein provided, such
number of shares of Underlying Stock as shall then be issuable
upon the conversion of all Outstanding Securities of such series.
The Issuer covenants that all shares of Underlying Stock which
shall be so issuable shall, when issued or delivered, be duly and
validly issued shares of authorized Underlying Stock, and shall
be fully paid and nonassessable, free of all liens and charges
and not subject to preemptive rights and that, upon conversion,
the appropriate capital stock accounts of the Issuer will be duly
credited.
SECTION 16.10. Compliance with Governmental Requirements.
The Issuer covenants that if any shares of Underlying Stock
required to be reserved for purposes of conversion of Securities
hereunder require registration or listing with or approval of any
governmental authority under any Federal or State law, pursuant
to the Securities Act or the Exchange Act or any national or
regional securities exchange on which such Underlying Stock is
listed at the time of delivery of any shares of such Underlying
Stock, before such shares may be issued upon conversion, the
Issuer will use its best efforts to cause such shares to be duly
registered, listed or approved, as the case may be.
SECTION 16.11. Payment of Taxes Upon Certificates for Shares
Issued upon Conversion. The issuance of certificates for shares
of Underlying Stock upon the conversion of Securities shall be
made without charge to the converting Holders for any tax
(including, without limitation, all documentary and stamp taxes)
in respect of the issuance and delivery of such certificates, and
such certificates shall be issued in the respective names of, or
in such names as may be directed by, the Holders of
Securities converted; provided, however, that the Issuer shall
not be required to pay any tax which may be payable in respect of
any transfer involved in the issuance and delivery of any such
certificate in a name other than that of the Holder of the
Security converted, and the Issuer shall not be required to issue
or deliver such certificates unless or until the person or
persons requesting the issuance thereof shall have paid to the
Issuer the amount of such tax or shall have established to the
satisfaction of the Issuer that such tax has been paid.
SECTION 16.12. Trustee's Duties with Respect to Conversion
Provisions. The Trustee and any conversion agent shall not at any
time be under any duty or responsibility to any Holder of
Securities to determine whether any facts exist which may require
any adjustment of the Conversion Price or with respect to the
nature or extent of any such adjustment when made, or with
respect to the method employed, or herein or in any supplemental
indenture provided to be employed, in making the same. Neither
the Trustee nor any conversion agent shall be accountable with
respect to the registration under securities laws, listing,
validity or value (or the kind or amount) of any shares of
Underlying Stock, or of any other securities or property, which
may at any time be issued or delivered upon the conversion of any
Security; and neither the Trustee nor any conversion agent makes
any representation with respect thereto. Neither the Trustee nor
any conversion agent shall be responsible or liable for any
failure of the Issuer to make any cash payment or to issue,
transfer or deliver any shares of stock or stock certificates or
other securities or property upon the surrender of any Security
for the purpose of conversion; and the Trustee, subject to the
provisions of Section 7.1, and any conversion agent shall not be
responsible or liable for any failure of the Issuer to comply
with any of the covenants of the Issuer contained in this Article
Sixteen.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed and their respective corporate
seals to be hereunto affixed and attested, all as of the day and
year first above written.
ITT CORPORATION,
by
------------------------
Vice President
[Corporate Seal]
Attest:
--------------------------------
Assistant Secretary
THE FIRST NATIONAL BANK OF CHICAGO,
Authorized Officer
[Corporate Seal]
Attest:
---------------------------------
Assistant Secretary
