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ITT CORPORATION,
Issuer
AND
THE FIRST NATIONAL BANK OF CHICAGO,
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Indenture
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Dated as of November , 1996
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Subordinated Debt Securities
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ITT CORPORATION
CROSS-REFERENCE TABLE
TIA Indenture
Section Section
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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
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RECITALS OF THE ISSUER......................................... 1
ARTICLE ONE
DEFINITIONS
SECTION 1.1. Certain Terms Defined.......................... 1
SECTION 1.2. Other Defined Terms............................ 10
ARTICLE TWO
SECURITY FORMS
SECTION 2.1. Forms Generally................................ 10
SECTION 2.2. Form of Trustee's Certificate of
Authentication............................... 11
SECTION 2.3. Form of Trustee's Certificate of
Authentication by an Authenticating Agent.... 11
SECTION 2.4. Securities Issuable in the Form of
a Global Security............................ 12
ARTICLE THREE
THE SECURITIES
SECTION 3.1. Amount Unlimited; Issuable in Series........... 13
SECTION 3.2. Form and Denominations......................... 16
SECTION 3.3. Authentication, Dating and Delivery
of Securities................................ 16
SECTION 3.4. Execution of Securities and Coupons............ 18
SECTION 3.5. Certificate of Authentication.................. 19
SECTION 3.6. Registration; Registration of Transfer
and Exchange................................. 19
SECTION 3.7. Mutilated, Defaced, Destroyed, Lost and Stolen
Securities or Coupons........................ 21
SECTION 3.8. Payment of Interest; Interest
Rights Preserved............................. 23
SECTION 3.9. Cancellation of Securities;
Destruction Thereof.......................... 24
SECTION 3.10. Temporary Securities........................... 24
SECTION 3.11. Computation of Interest........................ 25
SECTION 3.12. Currency and Manner of Payments in
Respect of Securities........................ 25
SECTION 3.13. Compliance with Certain Laws and Regulations... 30
ARTICLE FOUR
COVENANTS OF THE ISSUER
SECTION 4.1. Payment of Securities........................... 31
SECTION 4.2. Offices or Agency............................... 31
SECTION 4.3. Appointment To Fill a Vacancy in
Office of Trustee............................. 32
SECTION 4.4. Paying Agents................................... 32
SECTION 4.5. Certificates to Trustee......................... 34
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........ 34
SECTION 5.2. Preservation and Disclosure of
Securityholders Lists....................... 35
SECTION 5.3. Reports by the Issuer.......................... 37
SECTION 5.4. Reports by the Trustee......................... 37
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................ 39
SECTION 6.2. Collection of Indebtedness by Trustee;
Trustee May Prove Debt........................ 43
SECTION 6.3. Application of Proceeds......................... 45
SECTION 6.4. Suits for Enforcement........................... 47
SECTION 6.5. Restoration of Rights on Abandonment
of Proceedings................................ 47
SECTION 6.6. Limitations on Suits by Securityholders......... 47
SECTION 6.7. Unconditional Right of Securityholders
To Institute Certain Suits.................... 48
SECTION 6.8. Powers and Remedies Cumulative; Delay or
Omission Not Waiver of Default................ 48
SECTION 6.9. Control by the Holders of Securities............ 49
SECTION 6.10. Waiver of Past Defaults......................... 49
SECTION 6.11. Trustee To Give Notice of Default, But May
Withhold in Certain Circumstances............. 50
SECTION 6.12. Right of Court To Require Filing of
Undertaking To Pay Costs...................... 50
SECTION 6.13. Judgment Currency............................... 51
ARTICLE SEVEN
CONCERNING THE TRUSTEE
SECTION 7.1. Duties and Responsibilities of the Trustee;
During Default; Prior to Default.............. 52
SECTION 7.2. Certain Rights of the Trustee................... 53
SECTION 7.3. Trustee Not Responsible for Recitals,
Disposition of Securities or
Application of Proceeds Thereof............... 54
SECTION 7.4. Trustee and Agents May Hold Securities;
Collections, etc.............................. 55
SECTION 7.5. Moneys Held by Trustee.......................... 55
SECTION 7.6. Compensation and Indemnification of
Trustee and Its Prior Claim................... 55
SECTION 7.7. Right of Trustee To Rely on
Officers' Certificate, etc.................... 56
SECTION 7.8. Qualification of Trustee;
Conflicting Interests......................... 56
SECTION 7.9. Persons Eligible for Appointment as Trustee..... 56
SECTION 7.10. Resignation and Removal; Appointment of
Successor Trustee............................. 57
SECTION 7.11. Acceptance of Appointment by Successor Trustee.. 58
SECTION 7.12. Merger, Conversion, Consolidation or Succession
to Business of Trustee........................ 59
SECTION 7.13. Preferential Collection of Claims
Against the Issuer............................ 59
SECTION 7.14. Authenticating Agent............................ 64
ARTICLE EIGHT
CONCERNING THE HOLDERS OF SECURITIES
SECTION 8.1. Action by Holders............................... 66
SECTION 8.2. Proof of Execution of Instruments by Holders
of Securities................................ 66
SECTION 8.3. Holders To Be Treated as Owners................. 67
SECTION 8.4. Securities Owned by Issuer Deemed
Not Outstanding............................... 67
SECTION 8.5. Right of Revocation of Action Taken............. 68
ARTICLE NINE
HOLDERS' MEETINGS
SECTION 9.1. Purposes of Meetings............................ 69
SECTION 9.2. Call of Meetings by Trustee..................... 69
SECTION 9.3. Call of Meetings by Issuer or Holders........... 69
SECTION 9.4. Qualifications for Voting....................... 70
SECTION 9.5. Regulations..................................... 70
SECTION 9.6. Voting.......................................... 71
SECTION 9.7. No Delay of Rights by Meeting................... 71
ARTICLE TEN
SUPPLEMENTAL INDENTURES
SECTION 10.1. Supplemental Indentures Without Consent
of Securityholders............................ 72
SECTION 10.2 Supplemental Indentures with Consent
of Securityholders............................ 74
SECTION 10.3. Notice of Supplemental Indenture................ 75
SECTION 10.4. Effect of Supplemental Indenture................ 75
SECTION 10.5. Documents To Be Given to Trustee................ 76
SECTION 10.6. Notation on Securities and Coupons in
Respect of Supplemental Indentures............ 76
SECTION 10.7. Issuance of Securities by
Successor Corporation......................... 76
ARTICLE ELEVEN
CONSOLIDATION, MERGER OR SALE
SECTION 11.1. Issuer May Consolidate, Merge or Sell
on Certain Terms.............................. 77
SECTION 11.2. Opinion of Counsel To Be Given to Trustee....... 78
ARTICLE TWELVE
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 12.1. Satisfaction and Discharge of Securities
of Any Series................................. 78
SECTION 12.2. Satisfaction and Discharge of Indenture......... 81
SECTION 12.3. Application of Trust Money...................... 81
SECTION 12.4. Repayment of Moneys Held by Paying Agent........ 81
SECTION 12.5. Return of Moneys Held by Trustee and
Paying Agent Unclaimed for Two Years.......... 82
ARTICLE THIRTEEN
MISCELLANEOUS PROVISIONS
SECTION 13.1. Incorporators, Stockholders, Officers
and Directors of Issuer Exempt
from Individual Liability..................... 82
SECTION 13.2. Provisions of Indenture for the Sole
Benefit of Parties and Securityholders........ 82
SECTION 13.3. Successors and Assigns of Issuer Bound
by Indenture.................................. 83
SECTION 13.4. Notices to Holders; Waiver...................... 83
SECTION 13.5. Addresses for Notices........................... 84
SECTION 13.6. Officers' Certificates and Opinions
of Counsel; Statements To Be
Contained Therein............................. 84
SECTION 13.7. Cross References................................ 85
SECTION 13.8. Legal Holidays.................................. 85
SECTION 13.9. Moneys of Different Currencies
To Be Segregated.............................. 86
SECTION 13.10. Payment To Be in Proper Currency................ 86
SECTION 13.11. Conflict of Any Provision of
Indenture with Trust Indenture Act............ 86
SECTION 13.12. New York Law To Govern.......................... 87
SECTION 13.13. Counterparts.................................... 87
SECTION 13.14. Effect of Headings.............................. 87
SECTION 13.15. Separability Clause............................. 87
ARTICLE FOURTEEN
REDEMPTION OF SECURITIES
SECTION 14.1. Applicability of Article........................ 87
SECTION 14.2. Notice of Redemption; Selection
of Securities................................. 87
SECTION 14.3. Payment of Securities Called
for Redemption................................ 89
SECTION 14.4. Exclusion of Certain Securities
from Eligibility for
Selection for Redemption...................... 90
SECTION 14.5 Redemption Pursuant to Gaming Laws ............. 91
ARTICLE FIFTEEN
SINKING FUNDS
SECTION 15.1. Applicability of Article........................ 92
SECTION 15.2. Satisfaction of Mandatory Sinking
Fund Payments with Securities................. 92
SECTION 15.3. Redemption of Securities for Sinking Fund....... 92
ARTICLE SIXTEEN
SUBORDINATION OF SUBORDINATED SECURITIES
SECTION 16.1 Agreement to Subordinate........................ 95
SECTION 16.2. Terms of Subordination.......................... 95
SECTION 16.3. Subrogation of Subordinated Securities.......... 97
SECTION 16.4. Payments Over to Holders of Senior Debt......... 98
SECTION 16.5. Authorization by Holders of Subordinated
Securities.................................... 98
SECTION 16.6. Notice to Trustee ............................. 99
SECTION 16.7. Trustee's Relation to Senior Debt............... 100
ARTICLE SEVENTEEN
CONVERSION OF CONVERTIBLE SECURITIES
SECTION 17.1 Applicability of Article ....................... 101
SECTION 17.2. Right of Holders to Convert Securities.......... 101
SECTION 17.3. Issuance of Shares of Underlying
Stock on Conversion........................... 102
SECTION 17.4. No Payment or Adjustment for
Interest or Dividends......................... 103
SECTION 17.5. Adjustment of Conversion Price.................. 103
SECTION 17.6. No Fractional Shares to be Issued............... 114
SECTION 17.7. Effect of Reclassification, Consolidation,
Merger or Sale................................ 115
SECTION 17.8. Notice to Holders of Securities
of a Series Prior to Taking
Certain Types of Action....................... 116
SECTION 17.9. Covenant to Reserve Shares for Issuance
on Conversion of Securities................... 117
SECTION 17.10. Compliance with Governmental Requirements....... 117
SECTION 17.11. Payment of Taxes upon Certificates for
Shares Issued upon Conversion................. 117
SECTION 17.12. Trustee's Duties with Respect to
Conversion Provisions......................... 118
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.
"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).
"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.
"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.
"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.
"Senior Debt" means (a) all indebtedness of the Company
(other than indebtedness which by its terms is subordinate in right of
payment to other indebtedness), whether outstanding on the date of
this Indenture or thereafter created, (i) for money borrowed by the
Company, (ii) for money borrowed by others and assumed or guaranteed,
directly or indirectly, by the Company including without limitation
any endorsement or other contingent obligation of the Company in
respect of, or to purchase, or otherwise acquire, any obligation of
another or (iii) constituting purchase money indebtedness, or
indebtedness secured by property at the time of the acquisition of
such property by the Company, for the payment of which the Company is
directly or contingently liable, and (b) all deferrals, renewals,
extensions and refundings of, and amendments, modifications and
supplements to, any such indebtedness, unless by the terms of the
instrument creating or evidencing any such indebtedness referred to in
clause (a) or (b) above it is expressly provided that such
indebtedness is not senior in right of payment to the Securities, or
unless by its terms such indebtedness is subordinate in right of
payment to other indebtedness of the issuer. As used in the preceding
sentence the term "purchase money indebtedness" shall mean
indebtedness evidenced by a note, debenture, bond or other written
instrument (whether or not secured by any lien or other security
interest) issued or assumed as all or a part of the consideration for
the acquisition of property, whether by purchase, merger,
consolidation or otherwise. The term Senior Debt shall not include any
account payable or other indebtedness created or assumed by the
Company in the ordinary course of business in connection with the
obtaining of materials or services.
"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.
"Subordinated Debt" means all notes or other unsecured
evidences of indebtedness of the Issuer for money borrowed by the
Issuer which is expressed to be
subordinate in right of payment to all Senior Debt, but not to any
other indebtedness of the Issuer.
"Subordinated Securities": See Section 16.1.
"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.
"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 Registered 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 inconsistent 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 surrendered 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 Unregistered 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 paragraph (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 Component 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 Section 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. 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 4.5, 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 accountable 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
occasioned by the provisions of Article Sixteen or 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 (whether or not such payment is
prohibited by the subordination provisions of Article Sixteen of
this Indenture) 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 (whether or not such payment is
prohibited by the subordination provisions of Article Sixteen of
this Indenture) 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 hereunder, 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,
executed 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 trustee; and
in all such cases such certificate shall have the full force which it
is anywhere in the Securities of such series or in this Indenture
provided that the certificate of the Trustee shall have; provided,
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,
xxxx 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, xxxx 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
Holder. The only persons who shall be entitled to be present or to
speak at any meeting of Holders shall be the persons entitled to vote
at such meeting and their counsel 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) modify the provisions of this Indenture with respect
to the subordination of the Securities in a manner adverse to the
Holders thereof, 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 authenticated 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 sufficiently 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 applicable 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
hypothecated 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
Holder'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, 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
SUBORDINATION OF SUBORDINATED SECURITIES
SECTION 16.1. Agreement To Subordinate. The Issuer covenants
and agrees, and each Holder of Securities of any series of
Subordinated Debt issued under this Indenture (hereafter "Subordinated
Securities"), or any Coupons appertaining thereto, issued hereunder by
his acceptance thereof likewise covenants and agrees, that all
Subordinated Securities of such series, or any Coupons appertaining
thereto, shall be issued subject to the provisions of this Article
Sixteen; and each person holding any Security of such series, or any
Coupons appertaining thereto, whether upon original issue or upon
transfer, assignment or exchange thereof accepts and agrees that the
principal of, premium, if any, and interest on all Subordinated
Securities of such series, or any Coupons appertaining thereto, issued
hereunder shall, to the extent and in the manner set forth in this
Article Sixteen, be subordinated and subject in right to the prior
payment in full of all Senior Debt, but not to any other indebtedness
of the Issuer other than Senior Debt.
SECTION 16.2. Terms of Subordination. Anything in this
Indenture to the contrary notwithstanding, the indebtedness evidenced
by Subordinated Securities of any series, or any Coupons appertaining
thereto, shall be subordinate and junior in right of payment, to the
extent and in the manner hereafter set forth, to all Senior Debt of
the Issuer, whether outstanding at the date of this Indenture or
incurred after the date of this Indenture but not to any other
indebtedness of the Issuer other than Senior Debt.
(1) In the event of any insolvency or bankruptcy
proceedings, and any receivership, liquidation, reorganization or
other similar proceedings in connection therewith, relative to
the Issuer or to its creditors, as such, or to its property, and
in the event of any proceedings for voluntary liquidation,
dissolution or other winding up of the Issuer, whether or not
involving insolvency or bankruptcy, then the holders of Senior
Debt shall be entitled to receive payment in full of all
principal and interest on all Senior Debt before the holders of
the Subordinated Securities of any series, or any Coupons
appertaining thereto, are entitled to receive any payment on
account of principal or interest thereon, and to that end (but
subject to the power of a court of competent jurisdiction to make
other equitable provision reflecting the rights conferred in this
Indenture upon the Senior Debt and the holders thereof with
respect to the subordinated indebtedness represented by the
Subordinated Securities of such series, or any Coupons
appertaining thereto, and the Holders thereof by a lawful plan of
reorganization under applicable bankruptcy law) the holders of
Senior Debt shall be entitled to receive for application in
payment thereof any payment or distribution of any kind or
character, whether in cash or property or securities, which may
be payable or deliverable in any such proceedings in respect of
the Subordinated Securities of such series, or any Coupons
appertaining thereto, except securities which are subordinate and
junior in right of payment to the payment of all Senior Debt then
outstanding; and
(2) in the event that pursuant to any provision of the
Indenture or the Subordinated Securities of any series, or any
Coupons appertaining thereto, the Subordinated Securities of such
series are declared or otherwise become due and payable before
their expressed maturity because of the occurrence of an Event of
Default hereunder or otherwise (under circumstances when the
provisions of the foregoing clause (1) shall not be applicable),
the holders of the Senior Debt outstanding at the time the
Subordinated Securities of such series, or any Coupons
appertaining thereto, so become due and payable shall be entitled
to receive payment in full of all principal of and interest on
all Senior Debt before the holders of the Subordinated Securities
of such series, or any Coupons appertaining thereto, are entitled
to receive any payment due solely by reason of such acceleration;
and
(3) in the event of any default in the payment of any Senior
Debt and during the continuance of any such default, no amount
shall be paid, whether in cash, property, securities, or
otherwise, in respect of the principal of or interest of the
Subordinated Securities of any series, or any Coupons
appertaining thereto, if either (a) notice of such default in
writing has been given to the Issuer by any holder or holders of
any Senior Debt; provided that judicial proceedings shall be
commenced with respect to such default within 30 days thereafter,
or (b) judicial proceedings shall be pending in respect of such
default.
No present or future holder of Senior Debt shall be prejudiced in his
right to enforce subordination of the Subordinated Securities of any
series, or any Coupons appertaining thereto, by any act or failure to
act on the part of the Issuer. The provisions of this Article Sixteen
are solely for the purpose of defining the relative
rights of the holders of Senior Debt on the one hand, and the Holders
of the Subordinated Securities of such series, or any Coupons
appertaining thereto, on the other hand, and nothing herein shall
impair, as between the Issuer and the Holder of any of the
Subordinated Securities of such series, or any Coupons appertaining
thereto, the obligation of the Issuer, which is unconditional and
absolute, to pay to the Holder thereof the principal thereof and (to
the extent legally enforceable) interest on overdue principal thereon
in accordance with the terms of the Subordinated Securities of such
series, or any Coupons appertaining thereto, nor shall anything in
this Article Sixteen prevent the Trustee or the Holder of any of the
Subordinated Securities of such series, or any Coupons appertaining
thereto, from exercising all remedies otherwise permitted by
applicable law or under this Indenture upon default under this
Indenture, subject to the rights, if any, under this Article Sixteen
of holders of Senior Debt to receive cash, property or securities
otherwise payable or deliverable to the Holders of the Subordinated
Securities of such series, or any Coupons appertaining thereto. The
Issuer agrees, for the benefit of the holders of Senior Debt, that in
the event that any of the Subordinated Securities of such series is
declared or otherwise becomes due and payable before its expressed
maturity because of the occurrence of a default under this Indenture
(a) the Issuer will give prompt notice in writing of such happening to
the holders of Senior Debt and (b) all Senior Debt shall forthwith
become immediately due and payable upon demand regardless of the
expressed maturity thereof.
No right of any present or future holder of any Senior Debt
to enforce subordination as herein provided shall at any time in any
way be prejudiced or impaired by any act or failure to act in good
faith by any such holder, or by any noncompliance by the Issuer with
the terms, provisions and covenants of this Article Sixteen,
regardless of any knowledge thereof any such holder may have or be
charged with.
SECTION 16.3. Subrogation of Subordinated Securities.
Subject to the payment in full of all Senior Debt, the Holders of the
Subordinated Securities of any series, or any Coupons appertaining
thereto, shall be subrogated to the rights of the holders of Senior
Debt to receive payments or distributions of cash, property or
securities of the Issuer applicable to the Senior Debt until the
principal of, interest on and (to the extent legally enforceable)
interest on overdue principal of the Subordinated Securities of such
series, or any Coupons appertaining thereto, shall be paid in full;
and, for the purposes of such subrogation, no payments or
distributions to the holders of the Senior Debt of any cash, property
or securities to which the Holders of the Subordinated Securities of
such series, or any Coupons appertaining thereto, or the Trustee on
their behalf would be entitled except for the provisions of this
Article Sixteen, and no payment over pursuant to the provisions of
this Article Sixteen to the holders of Senior Debt by Holders of the
Subordinated Securities of
such series, or any Coupons appertaining thereto, or the Trustee on
their behalf shall, as between the Issuer, its creditors other than
holders of Senior Debt and the Holders of the Subordinated Securities
of such series, or any Coupons appertaining thereto, be deemed to be a
payment by the Issuer to or on account of the Senior Debt; and no
payment or distribution of cash, property or securities to or for the
benefit of the Holders of Subordinated Securities pursuant to the
subrogation provision of this Article Sixteen, which would otherwise
have been paid to the holders of Senior Debt, shall be deemed to be a
payment by the Issuer to or for the account of the Subordinated
Securities of such series, or any Coupons appertaining thereto.
SECTION 16.4. Payments Over to Holders of Senior Debt. In
the event that, notwithstanding the provisions of Section 16.2, any
payment or distribution of assets of the Issuer of any kind or
character, whether in cash, property or securities, prohibited by the
provisions of Section 16.2, shall be received by the Trustee under
this Indenture or the Holders of the Subordinated Securities of any
series, or any Coupons appertaining thereto, before all Senior Debt is
paid in full or provision is made for such payment in accordance with
its terms, such payment or distribution shall be held in trust for the
benefit of and shall be paid over or delivered to the holders of such
Senior Debt or their respective representatives, or to the trustee or
trustees under any indenture pursuant to which any instruments
evidencing any of such Senior Debt may have been issued, as their
respective interests may appear, for application to the payment of all
Senior Debt remaining unpaid until all such Senior Debt shall have
been paid in full in accordance with its terms, after giving effect to
any concurrent payment or distribution to or for the holders of such
Senior Debt.
Upon any payment or distribution of assets of the Issuer
referred to in this Article Sixteen, the Trustee for any series of
Subordinated Securities, subject to the provisions of Section 7.1, and
the Holders of the Subordinated Securities of any series, or any
Coupons appertaining thereto, shall be entitled to rely upon any order
or decree made by any court of competent jurisdiction in which such
receivership, liquidation, reorganization, dissolution or other
winding-up proceedings are pending, or a certificate of the receiver,
trustee in bankruptcy, liquidating trustee, agent or other person
making such payment or distribution, delivered to the Trustee or to
the Holders of the Subordinated Securities of such series, or any
Coupons appertaining thereto, for the purpose of ascertaining the
persons entitled to participate in such distribution, the holders of
the Senior Debt and other indebtedness of the Issuer, the amount
thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article
Sixteen.
SECTION 16.5. Authorization by Holders of Subordinated
Securities. Each Holder of a Subordinated Security of any series by
his acceptance thereof authorizes the Trustee for such series on his
behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article
Sixteen and appoints the Trustee his attorney-in-fact for any and all
such purposes.
SECTION 16.6. Notice to Trustee. The Issuer shall give
prompt written notice to the Trustee and to any Paying Agent of any
fact known to the Issuer which would prohibit the making of any
payment of moneys to or by the Trustee or any Paying Agent in respect
of the Subordinated Securities of any series, or any Coupons
appertaining thereto, pursuant to the provisions of this Article
Sixteen. Notwithstanding the provisions of this Article Sixteen or any
other provision of this Indenture, the Trustee and any Paying Agent
shall not be charged with knowledge of the existence of any facts
which would prohibit the making of any payment of moneys to or by the
Trustee or any Paying Agent in respect of the Subordinated Securities
of any series, or any Coupons appertaining thereto, pursuant to the
provisions of this Article Sixteen, unless and until the Trustee or
any Paying Agent, respectively, shall have received written notice
thereof from the Issuer or a holder or holders of Senior Debt or from
any trustee therefor; and, prior to the receipt of any such written
notice, the Trustee, subject (as between itself and the Holders of the
Subordinated Securities of any series) to the provisions of Section
7.1, or any Paying Agent, respectively, shall be entitled in all
respects to assume that no such facts exist; provided, that if on a
date not less than three Business Days prior to the date upon which by
the terms hereof any such moneys shall become payable for any purpose
(including, without limitation, the payment of the principal of or (to
the extent legally enforceable) interest on overdue principal of any
Subordinated Securities of any series, or any Coupons appertaining
thereto) the Trustee or any Paying Agent shall not have received with
respect to such moneys the notice provided in this Section 16.6, then,
anything herein contained to the contrary notwithstanding, the Trustee
or any Paying Agent, as the case may be, shall be entitled to apply
such moneys for the purpose for which they were received, and shall
not be affected by any notice to the contrary which may be received by
it on or after such prior date and shall be entitled in all respects
to assume that no such facts exist; and provided, further, that the
Trustee or any Paying Agent, as the case may be, shall be entitled to
pay to the Holders of Subordinated Securities of any series, or any
Coupons appertaining thereto, such moneys deposited with it pursuant
to Article Twelve and shall be entitled to assume that no such facts
exist in the event that the proper instruments acknowledging
satisfaction of and discharging of this Indenture shall have been
received by the Trustee for their execution by the Trustee pursuant to
Section 12.1.
Notwithstanding anything to the contrary hereinbefore set
forth, nothing shall prevent the application by any Paying Agent or
the Trustee for any series of Subordinated Securities of any moneys
deposited with such Paying Agent or such Trustee for the purpose of
payment of or on account of the principal of or interest on or (to the
extent legally enforceable) interest on overdue principal of the
Subordinated
Securities of any series, or any Coupons appertaining thereto, in the
case of any such Paying Agent, if it did not have knowledge of facts
which would prohibit such application pursuant to this Article
Sixteen, or, in the case of the Trustee, prior to the receipt by it of
written notice as aforesaid.
The Trustee for any series of Subordinated Securities shall
be entitled to rely on the delivery to it of a written notice by a
person representing himself to be a holder of Senior Debt (or a
trustee on behalf of such holder) to establish that such notice has
been given by a holder of Senior Debt or a trustee on behalf of any
such holder. In the event that the Trustee determines in good faith
that further evidence is required with respect to the right of any
person as a holder of Senior Debt, or a trustee on behalf of any such
holder, to participate in any payment or distribution pursuant to this
Article Sixteen, the Trustee may request such person to furnish
evidence to the reasonable satisfaction of the Trustee as to the
amount of Senior Debt held by such person, the extent to which such
person is entitled to participate in such payment or distribution and
any other facts pertinent to the rights of such person under this
Article Sixteen, and if such evidence is not furnished the Trustee may
defer any payment to such person pending appropriate determination as
to the right of such person to receive such payment.
SECTION 16.7. Trustee's Relation to Senior Debt. The Trustee
for any series of Subordinated Securities in its individual capacity
shall be entitled to be a holder of Senior Debt and shall be entitled
to all the rights set forth in this Article Sixteen in respect of any
Senior Debt at any time held by it, to the same extent as any other
holder of Senior Debt.
With respect to the holders of Senior Debt, the Trustee for
any series of Subordinated Securities undertakes to perform or to
observe only such of its covenants and obligations as are specifically
set forth in this Article Sixteen, and no implied covenants or
obligations with respect to the holders of Senior Debt shall be read
into this Indenture against the Trustee. The Trustee shall not be
deemed to owe any fiduciary duty to the holders of Senior Debt and the
Trustee shall not be liable to any holder of Senior Debt if it shall
pay over or deliver to Holders of Subordinated Securities of any
series, or any Coupons appertaining thereto, the Issuer or any other
person moneys or assets to which any holder of Senior Debt shall be
entitled by virtue of this Article Sixteen or otherwise.
ARTICLE SEVENTEEN
CONVERSION OF CONVERTIBLE SECURITIES
SECTION 17.1. 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 17.2. 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 17.5, 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 17.3 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 17.5 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 17.3. 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 17.4. 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 17.5. 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 17.5(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 17.5(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 17.5(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 17.7
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
17.5 (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 17.5(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 17.5(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
17.7 applies) (the foregoing hereinafter in this Section 17.5(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 17.5(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 17.5(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 17.5(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 17.5(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 17.5(d) (and no adjustment to
the Conversion Price under this Section 17.5(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
17.5(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 17.5 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 17.5(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 17.5(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
17.5(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 17.5(d) and Sections 17.5(a)
and (b), any dividend or distribution to which this Section 17.5(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 17.5(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 17.5(b) applies (and any Conversion Price
reduction required by this Section 17.5(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 17.5(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 17.5(g)) fixed for such determination" and
"Record Date" for purposes of Section 17.5(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 17.5(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 17.5(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 17.7 applies or as part of a distribution referred to in
Section 17.5(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 17.5(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 17.5(f) has been
made, exceeds 15% of the product of (x) the Current Market Price
(determined as provided in Section 17.5(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 17.5(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 17.5(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 17.5(e) has been made, exceeds 15% of the product of (x) the
Current Market Price (determined as provided in Section 17.5(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 17.5(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 17.5(f).
(g) For purposes of this Section 17.5, the following terms
shall have the meaning indicated:
(1) "closing price" with respect to any securities on any
day means the last reported sale 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 17.5(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 17.5(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 17.5(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 17.5, such adjustment shall
be made to the Current Market Price as may be necessary or
appropriate to effectuate the intent of this Section 17.5 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 17.5(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 17.5(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 17.5 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 17.5, 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 17.5 shall apply separately to events affecting each
such class.
SECTION 17.6. 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 17.5(g)(1)) of Underlying Stock on the
Business Day next preceding the day of conversion.
SECTION 17.7. 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 or
transfer 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 17.7, 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 17.7 shall similarly
apply to successive reclassifications, changes, consolidations,
mergers, combinations and sales.
If this Section 17.7 applies to any event or occurrence,
Section 17.5 shall not apply.
SECTION 17.8. 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 17.5(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
17.8 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 17.9. 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 17.10. 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 17.11. 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 17.12. 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 Seventeen.
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,
by
-----------------------
Authorized Officer
[Corporate Seal]
Attest:
---------------------------
Assistant Secretary
