AHOLD FINANCE U.S.A., INC., as Issuer
KONINKLIJKE AHOLD N.V., as Guarantor
AND
THE CHASE MANHATTAN BANK, as Trustee
INDENTURE
Dated as of [ ]
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GUARANTEED SENIOR DEBT SECURITIES
TABLE OF CONTENTS
Page
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ARTICLE ONE DEFINITIONS.......................................................1
SECTION 1.1 Certain Terms Defined......................................1
ARTICLE TWO SECURITIES........................................................9
SECTION 2.1 Forms Generally...........................................9
SECTION 2.2 Form of Face of Security..................................9
SECTION 2.3 Form of Reverse of Security..............................12
SECTION 2.4 Form of Notation on Security Relating to Guaranty........17
SECTION 2.5 Form of Trustees Certificate of Authentication...........20
SECTION 2.6 Amount Unlimited; Issuable in Series.....................20
SECTION 2.7 Authentication and Delivery of Securities................22
SECTION 2.8 Execution of Securities..................................24
SECTION 2.9 Certificate of Authentication............................24
SECTION 2.10 Execution and Delivery of Guaranty.......................24
SECTION 2.11 Denomination and Date of Securities;
Payments of Interest................................25
SECTION 2.12 Registration, Transfer and Exchange......................26
SECTION 2.13 Mutilated, Defaced, Destroyed, Lost and
Stolen Securities....................................28
SECTION 2.14 Cancellation of Securities Paid, etc.....................29
SECTION 2.15 Assumption by Guarantor..................................29
SECTION 2.16 Temporary Securities.....................................30
SECTION 2.17 CUSIP Numbers............................................30
SECTION 2.18 Form of Election to Convert..............................30
ARTICLE THREE COVENANTS.......................................................32
SECTION 3.1 Payment of Principal and Interest.........................32
SECTION 3.2 Offices for Payments, etc.................................32
SECTION 3.3 Paying Agents.............................................33
SECTION 3.4 Limitation on Liens.......................................34
SECTION 3.5 Limitation on Sales and Leasebacks........................35
SECTION 3.6 Notice of Default.........................................36
SECTION 3.7 Calculation of Original Issue Discount....................36
SECTION 3.8 Reports...................................................36
SECTION 3.9 Compliance Certificates...................................37
ARTICLE FOUR REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT............................................37
SECTION 4.1 Events of Default.........................................37
SECTION 4.2 Payment of Securities on Default; Suit Therefor...........40
SECTION 4.3 Application of Moneys Collected by Trustee................42
SECTION 4.4 Proceedings by Trustee....................................43
SECTION 4.5 Restoration of Rights on Abandonment of Proceedings.......43
SECTION 4.6 Proceedings by Securityholders............................44
SECTION 4.7 Remedies Cumulative and Continuing........................44
SECTION 4.8 Control by Securityholders................................44
SECTION 4.9 Waiver of Past Defaults...................................45
ARTICLE FIVE CONCERNING THE TRUSTEE...........................................45
SECTION 5.1 Reliance on Documents, Opinions, etc.; No Requirement for
Expenditure of Own Funds.............................45
SECTION 5.2 No Responsibility for Recitals, etc.......................47
SECTION 5.3 Trustee and Agents May Hold Securities....................47
SECTION 5.4 Moneys to Be Held in Trust................................47
SECTION 5.5 Compensation and Expenses of Trustee......................47
SECTION 5.6 Right of Trustee to Rely on Officers Certificate, etc.....48
SECTION 5.7 Eligibility of Trustee....................................48
SECTION 5.8 Resignation or Removal of Trustee; Appointment
of Successor Trustee..................................48
SECTION 5.9 Acceptance of Appointment by Successor Trustee...........50
SECTION 5.10 Merger, Conversion, Consolidation or Succession
to Business of Trustee..............................50
SECTION 5.11 Reports by Trustee to Securityholders....................51
ARTICLE SIX CONCERNING THE SECURITYHOLDERS....................................51
SECTION 6.1 Action by Securityholders.................................51
SECTION 6.2 Proof of Execution by Securityholders.....................52
SECTION 6.3 Holders to Be Treated as Owners...........................53
SECTION 6.4 Securities Owned by Issuer Deemed Not Outstanding.........53
SECTION 6.5 Right of Revocation of Action Taken.......................53
SECTION 6.6 Securityholders Meetings; Purposes........................54
SECTION 6.7 Call of Meetings by Trustee...............................54
SECTION 6.8 Call of Meetings by Issuer, Guarantor or Securityholders..55
SECTION 6.9 Qualifications for Voting.................................55
SECTION 6.10 Quorum; Adjourned Meetings...............................55
SECTION 6.11 Regulations..............................................56
SECTION 6.12 Voting...................................................56
SECTION 6.13 No Delay of Rights by Meeting............................57
SECTION 6.14 Written Consent in Lieu of Meeting.......................57
ARTICLE SEVEN SUPPLEMENTAL INDENTURES.........................................57
SECTION 7.1 Supplemental Indentures Without
Consent of Securityholders..........................57
SECTION 7.2 Supplemental Indentures With Consent of Securityholders...59
SECTION 7.3 Effect of Supplemental Indenture..........................60
SECTION 7.4 Certain Documents to Be Given to Trustee..................60
SECTION 7.5 Notation on Securities....................................60
ARTICLE EIGHT CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE...............61
SECTION 8.1 Issuer and Guarantor May Consolidate,
etc., on Certain Terms..............................61
SECTION 8.2 Successor Entity to Be Substituted........................62
SECTION 8.3 Opinion of Counsel and Officers Certificate
to Be Given to Trustee..............................63
ARTICLE NINE SATISFACTION AND DISCHARGE OF INDENTURE;UNCLAIMED MONEYS.........63
SECTION 9.1 Satisfaction and Discharge of Indenture...................63
SECTION 9.2 Funds Deposited with Trustee for Payment of Securities....64
SECTION 9.3 Repayment of Moneys Held by Paying Agent..................64
SECTION 9.4 Return of Moneys Held by Trustee and Paying Agent
Unclaimed for Two Years..............................64
SECTION 9.5 Option to Effect Defeasance or Covenant Defeasance........64
SECTION 9.6 Defeasance and Discharge..................................64
SECTION 9.7 Covenant Defeasance.......................................65
SECTION 9.8 Conditions to Defeasance or Covenant Defeasance...........65
SECTION 9.9 Deposited Money and U.S. Government Obligations
to Be Heldin Trust; Other Miscellaneous Provisions...67
ARTICLE TEN REDEMPTION OF SECURITIES AND SINKING FUNDS........................67
SECTION 10.1 Applicability of Article.................................67
SECTION 10.2 Notice of Redemption; Selection of Securities............68
SECTION 10.3 Payment of Securities Called for Redemption..............69
SECTION 10.4 Conversion Arrangement on Call for Redemption............70
SECTION 10.5 Exclusion of Certain Securities from Eligibility for
Selection for Redemption.............................70
SECTION 10.6 Mandatory and Optional Sinking Funds.....................70
SECTION 10.7 Redemption for Tax Reasons...............................73
ARTICLE ELEVEN CONVERSION OF SECURITIES.......................................74
SECTION 11.1 Conversion of Securities.................................74
SECTION 11.2 Issuance of Parent Shares on Conversion..................75
SECTION 11.3 No Adjustment for Interest or Dividends..................76
SECTION 11.4 Adjustment of Conversion Price...........................76
SECTION 11.5 No Fractional Parent Shares To Be Issued.................80
SECTION 11.6 Preservation of Conversion Rights upon Consolidation,
Merger, Sale or Similar Event........................80
SECTION 11.7 Notice to Holders of Securities Prior to Taking
Certain Types of Action..............................81
SECTION 11.8 Covenant to Reserve Parent Common Shares for Issuance
on Conversion of Securities..........................81
SECTION 11.9 Compliance with Governmental Requirements................82
SECTION 11.10 Payment of Taxes upon Certificates for Parent
Common Shares Issued upon Conversion.................82
SECTION 11.11 Trustees Duties with Respect to Conversion Provisions...82
ARTICLE TWELVE GUARANTY OF SECURITIES.........................................83
SECTION 12.1 Guaranty ................................................83
SECTION 12.2 Representation and Warranty..............................85
SECTION 12.3 Subrogation..............................................85
ARTICLE THIRTEEN MISCELLANEOUS PROVISIONS.....................................85
SECTION 13.1 Incorporators, Shareholders, Officers, Directors,
Members of the Executive Board and Supervisory
Board Exempt from Individual Liability...............85
SECTION 13.2 Provisions of Indenture for the Sole Benefit of Parties
and Securityholders..................................85
SECTION 13.3 Successors and Assigns of Issuer and Guarantor
Bound by Indenture...................................85
SECTION 13.4 Notices and Demands on Issuer, Guarantor, Trustee
and Securityholders..................................86
SECTION 13.5 Officers Certificates and Opinions of Counsel;
Statements to Be Contained Therein...................86
SECTION 13.6 Official Acts by Successor Entity........................87
SECTION 13.7 Payments Due on Saturdays, Sundays and Legal Holidays....87
SECTION 13.8 NEW YORK LAW TO GOVERN...................................88
SECTION 13.9 Counterparts.............................................88
SECTION 13.10 Effect of Headings......................................88
SECTION 13.11 Conflict with Trust Indenture Act.......................88
SECTION 13.12 Submission to Jurisdiction..............................88
SECTION 13.13 Severability............................................89
AHOLD FINANCE U.S.A., INC., as Issuer
KONINKLIJKE AHOLD N.V., as Guarantor
AND
THE CHASE MANHATTAN BANK,
TRUSTEE
INDENTURE
Dated as of
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The following table shows the location in this Indenture of
provisions inserted pursuant to sections 310 through 318(a) inclusive of the
Trust Indenture Act of 1939, as amended.
TIA Section Indenture Section
310 (a) (1) 5.7
(a) (2) 5.7
(b) 5.7, 5.8
313 (a) 5.11
(b) 5.11
(c) 5.11
314 (a) 3.8, 3.9(b)
(c) (1) 13.5
(c) (2) 13.5
(c) (3) 13.5
(e) 13.5
315 (a) (2) 5.1, 5.6
317 (a) 4.2
(b) 3.3(a)
318 (a) 13.11
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Note: This table shall not, for any purpose, be deemed to be a part of this
Indenture.
THIS INDENTURE, dated as of [ ] among AHOLD FINANCE U.S.A., INC., a
corporation organized under the laws of the State of Delaware, United States as
issuer (the "Issuer"), KONINKLIJKE AHOLD N.V., a company organized under the
laws of The Netherlands with its corporate seat in Zaandam (municipality
Zaanstad), The Netherlands as guarantor (the "Guarantor"), and The Chase
Manhattan Bank, a New York banking corporation, as trustee (the "Trustee").
W I T N E S S E T H :
WHEREAS, the Issuer has duly authorized the execution and delivery of
this Indenture for the issuance from time to time of its unsecured bonds,
debentures, notes and other evidences of indebtedness to be issued in one or
more series (the "Securities") up to such principal amount or amounts and
denominated in United States dollars or foreign currency or units or composites
of two or more thereof as may from time to time be authorized in accordance with
the terms of this Indenture and to provide, among other things, for the
authentication, delivery and administration thereof, the Issuer has duly
authorized the execution and delivery of this Indenture;
WHEREAS, the Guarantor has duly authorized the execution and delivery
of this Indenture and deems it appropriate from time to time to issue its
guaranty of the Securities on the terms herein provided; and
WHEREAS, all things necessary to make this Indenture, when executed
and delivered by the parties hereto, a valid indenture and agreement according
to its terms, have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities
by the Holders thereof, the Issuer, the Guarantor and the Trustee mutually
covenant and agree for the equal and proportionate benefit of the respective
Holders from time to time of the Securities as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1 Certain Terms Defined. The following terms (except as
herein 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 of
1939, as amended to the date of this Indenture as originally executed, or the
definitions of which in the Securities Act of 1933, as amended to the date of
this Indenture as originally executed, are referred to in the Trust Indenture
Act of 1939 (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 and in said Securities Act as in force at the date of
this Indenture. All accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles (whether or not such is indicated herein), and, except as otherwise
herein expressly provided, the term "generally accepted accounting principles"
with respect to any computation required or permitted hereunder shall mean such
accounting principles as are generally accepted in The Netherlands at the date
of such computation. The words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision. The terms defined in this
Article have the meanings assigned to them in this Article and include the
plural as well as the singular.
"Additional Amounts" has the meaning specified in Section 12.1.
"AEX-Stock Exchange" means the Amsterdam Stock Exchange.
"Attributable Debt" means, as to any particular lease under which any
person is at the time liable, at any date as of which the amount thereof is to
be determined, the total net amount of rent required to be paid by such person
under such lease during the remaining term thereof, discounted from the
respective due dates thereof to such date at the rate of interest per annum
implicit in the terms of such lease (as determined by any two of the following:
the president, any vice president or the secretary of such person) compounded
semi-annually. The net amount of rent required to be paid under any such lease
for any such period shall be the amount of the rent payable by the lessee with
respect to such period, after excluding amounts required to be paid on account
of maintenance and repairs, insurance, taxes, assessments, water rates and
similar charges. In the case of any lease which is terminable by the lessee upon
the payment of a penalty, such net amount shall also include the amount of such
penalty, but no rent shall be considered as required to be paid under such lease
subsequent to the first date upon which it may be so terminated.
"Average Closing Price" means the arithmetic average of the official
closing price per Parent Common Share quoted on the AEX-Stock Exchange for each
Stock Exchange Trading Day during the Relevant Period.
"Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Code, or any similar
U.S. Federal, state or local law for the relief of debtors or any comparable or
similar foreign laws relating to bankruptcy, receivership, liquidation,
dissolution or similar proceeding.
"Board of Directors" means the Board of Directors of the Issuer or any
duly authorized committee thereof.
"Business Day" means, except as otherwise provided pursuant to Section
2.6 for Securities of any series, any day that is not a Saturday or Sunday and
that is not a day on which banking institutions in The Netherlands or in the
Borough of Manhattan, City and State of New York are generally authorized or
obligated by law to close in the relevant place of payment.
"Cash Dividend" has the meaning specified in Section 11.4.
"Closing Price" on any day means the official closing price per Parent
Common Share quoted on the AEX-Stock Exchange for such day.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, as amended, 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 on such date.
"Consolidated Net Tangible Assets" means the aggregate amount of
assets of the Guarantor (less applicable reserves and other properly deductible
items) after deducting therefrom (a) all current liabilities (excluding any
thereof which are by their terms extendible or renewable at the option of the
obligor thereon to a time more than 12 months after the time as of which the
amount thereof is being computed and excluding current maturities of long-term
indebtedness and capital lease obligations) and (b) all goodwill, all as shown
in the most recent consolidated balance sheet of the Guarantor and its
Subsidiaries computed in accordance with generally accepted accounting
principles.
"Conversion Agent" has the meaning specified in Section 3.2.
"Conversion Price" means the price at which the Securities shall be
convertible into Parent Common Shares, such price to be established pursuant to
Section 2.6 and to be subject to adjustment as provided in Section 11.4.
"Corporate Trust Office" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered.
"covenant defeasance" and "defeasance" have the meanings assigned to
such terms, respectively, by Sections 9.7 and 9.6.
"Custodian" means any receiver, trustee, assignee, liquidator,
custodian or similar official under any Bankruptcy Law.
"Debt" has the meaning set forth in Section 3.4.
"Depositary" means, with respect to the Securities of any series or
tranche issuable or issued in the form of one or more Global Securities, the
person designated as Depositary for such Global Securities by the Issuer
pursuant to Section 2.7 until a successor Depositary shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Depositary" shall mean or include each person who is then a Depositary for such
Global Securities, and if at any time there is more than one person designated
as Depositary for Global Securities of a particular series or tranche,
"Depositary", as used with respect to the Securities of such series or tranche,
means the Depositary with respect to the particular Global Security or
Securities.
"Dollar", "U.S.$" 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.
"Effective Date" means (i) any day on which Parent Common Shares shall
trade on the AEX-Stock Exchange excluding the relevant right or entitlement
relating to an event giving rise to an adjustment of the Conversion Price or
(ii) if the foregoing provision is not applicable, the date on which the
relevant event is announced by the Guarantor or, if no such announcement is
made, the date the relevant issue is made.
"euro" means the currency introduced on January 1, 1999 at the start
of the third stage of economic and monetary union pursuant to the treaty
establishing the European Community.
"Event of Default" means any event or condition specified as such in
Section 4.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Executive Board" means the Executive Board ("Raad van Bestuur") of
the Guarantor.
"Extraordinary Dividend" means the amount by which the Total Current
Dividend exceeds the Cash Dividends paid or declared on the Parent Common Shares
for the fiscal year of the Guarantor immediately preceding the Effective Date.
"Funded Debt" means all indebtedness for money borrowed having a
maturity of more than 12 months from the date as of which the amount thereof is
to be determined or having a maturity of less than 12 months but by its terms
being renewable or extendable beyond 12 months from such date at the option of
the borrower.
"Global Security" means a Security evidencing all or a part of a
series or tranche of Securities, issued to the Depositary for such series or
tranche, as the case may be, in accordance with Section 2.7 and bearing the
legend prescribed in Section 2.7.
"guarantee" means any obligation, contingent or otherwise, of any
person directly or indirectly guarantying any indebtedness of any other person
and any obligation, direct or indirect, contingent or otherwise, of such person
(i) to purchase or pay (or advance or supply funds for the purchase or payment
of) such indebtedness of such other person (whether arising by virtue of
partnership arrangements, or by agreement to keep-well, to purchase assets,
goods, securities or services, to take-or-pay, or to maintain financial
statement conditions or otherwise) or (ii) entered into for purposes of assuring
in any other manner the obligee of such indebtedness of the payment thereof or
to protect such obligee against loss in respect thereof (in whole or in part);
provided, however, that the term "guarantee" shall not include endorsements for
collection or deposit in the ordinary course of business. The term "guarantee"
used as a verb has a corresponding meaning.
"Guarantor" means Koninklijke Ahold N.V., a company organized under
the laws of The Netherlands with its corporate seat in Zaandam (municipality
Zaanstad), The Netherlands.
"Guaranty" means the agreement of the Guarantor set forth in Article
Twelve and as endorsed (substantially in the form set forth in Section 2.4) on
each Security authenticated and delivered hereunder.
"Holder", "Holder of Securities", "Securityholder" or other similar
terms means a person in whose name a Security is registered in the Register.
"Indenture" means this instrument as originally executed and delivered
or, if amended or supplemented as herein provided, as so amended and/or
supplemented from time to time, and shall include (i) for all purposes of this
instrument and any supplemental indenture, the provisions of the Trust Indenture
Act of 1939 that are deemed to be a part of and govern this instrument and any
such supplemental indenture, respectively, and (ii) the forms and terms of
particular series of Securities established as contemplated hereunder.
"interest" means, when used with respect to a non-interest bearing
Security, interest payable after the principal thereof has become due and
payable whether at maturity, by declaration of acceleration, by call for
redemption, pursuant to a sinking fund or otherwise.
"Issuer" means Ahold Finance U.S.A., Inc., a corporation organized
under the laws of the State of Delaware, until any successor company shall have
become such pursuant to Article Eight and thereafter "Issuer" shall mean such
successor except as otherwise provided in Section 8.2.
"mandatory sinking fund payment" has the meaning set forth in Section
10.6.
"Market Exchange Rate" has the meaning set forth in Section 6.1.
"Market Price" on any day means the arithmetic mean of the Closing
Prices quoted for the Parent Common Shares on the AEX-Stock Exchange for the ten
consecutive Stock Exchange Trading Days ending on the earlier of such day and
the Stock Exchange Trading Day immediately preceding the Effective Date.
"Mortgage" or "Mortgages" has the meaning set forth in Section 3.4.
"New York Location" means the location in the Borough of Manhattan,
The City of New York, at which at any particular time the Trustee receives and
redelivers Securities.
"Officers' Certificate" means a certificate signed by (1) in the case
of the Issuer, any two of the following: the president or any vice president of
the Issuer and (2) in the case of the Guarantor, any two of the following: the
president, any executive vice president or the secretary of the Guarantor, and,
in each case, delivered to the Trustee. Each such certificate shall include the
statements required by the Trust Indenture Act of 1939 or as provided for in
Section 13.5, if and to the extent required hereby.
"Opinion of Counsel" means an opinion in writing signed by legal
counsel who may be an employee of or counsel to the Issuer, the Guarantor or any
other Subsidiary. Each such opinion shall include the statements required by the
Trust Indenture Act of 1939 or as provided for in Section 13.5, if and to the
extent required hereby.
"optional sinking fund payment" has the meaning set forth in Section
10.6.
"original issue date" of any Security (or portion thereof) means the
earlier of (a) the date of such Security or (b) the date of any Security (or
portion thereof) for which such Security was issued (directly or indirectly) on
registration of transfer, exchange or substitution.
"Original Issue Discount Security" means any Security that provides
for an amount less than the principal amount thereof to be due and payable upon
redemption or a declaration of acceleration of the maturity thereof pursuant to
Section 4.1.
"Outstanding" (except as otherwise required by the Trust Indenture Act
of 1939), when used with reference to Securities, shall, subject to the
provisions of Section 6.4, mean, as of any particular time, all Securities
theretofore authenticated and delivered by the Trustee under this Indenture,
except
(a) Securities theretofore canceled by the Trustee or delivered
to the Trustee for cancellation;
(b) Securities, or portions thereof, which have become due and
for the payment or redemption of which moneys in the necessary amount
shall have been theretofore 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); and
(c) Securities in lieu of or in substitution
for which other Securities shall have been authenticated and delivered
pursuant to the terms of Section 2.13, or which shall have been paid
pursuant to Section 2.13.
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 that shall be deemed to be Outstanding for such purposes in the case of
an Original Issue Discount Security or (unless as otherwise established pursuant
to Section 2.6) in the case of a Security which provides that an amount other
than the face amount thereof will or may be payable upon the maturity thereof or
a declaration of acceleration of the maturity thereof 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 4.1.
"Overdue Rate" means, unless otherwise specified in the Securities of
any series, the same rate as the rate of interest specified in the Securities of
such series or, in the case of a series of Original Issue Discount Securities,
the Yield to Maturity of such series of Securities.
"Parent American Depositary Receipts" or "Parent ADRs" shall mean
American depositary receipts issued by the Parent Common Shares Depositary
evidencing Parent American Depositary Shares.
"Parent American Depositary Shares" or "Parent ADSs" shall mean the
securities representing the interest in the Parent Common Shares deposited with
the Parent Common Shares Depositary.
"Parent Common Shares" means the common shares, par value NLG 0.50 per
common share, of the Guarantor, as designated on the date hereof, and all shares
resulting from any reclassification of such common shares.
"Parent Common Shares Depositary" shall mean The Bank of New York, a
New York banking corporation, as depositary, or any successor as such
depositary, under the Deposit Agreement dated as of January 20, 1998, among the
Guarantor, the Bank of New York and all owners and beneficial owners from time
to time of ADRs issued thereunder.
"Parent Conversion Shares" has the meaning specified in Section 11.2.
"Parent Shares" means Parent Common Shares and/or Parent American
Depositary Shares.
"person" means any individual, corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"principal" whenever used with reference to the Securities or any
Security or any portion thereof, shall be deemed to include "and premium, if
any".
"record date" has the meaning set forth in Section 2.11.
"Register" has the meaning set forth in Section 2.12.
"Relevant Period" means the period beginning on the first Stock
Exchange Trading day after the Effective Date for the first Cash Dividend
aggregated in the Total Current Dividend, and ending on the Stock Exchange
Trading Day immediately preceding the Effective Date for the Cash Dividend which
caused the adjustment to the Conversion Price; provided, however, that if there
were no Cash Dividends in the 365 consecutive day period prior to this Effective
Date, the Relevant Period will be the entire period of the 365 consecutive days.
"Resolution" means (1) with respect to the Issuer, a resolution of the
Board of Directors of the Issuer or any committee thereof, or (2) with respect
to the Guarantor, a resolution of the Executive Board of the Guarantor,
including, without limitation, any such resolution by which or pursuant to which
any series of Securities is authorized and established pursuant to Section 2.6.
"Responsible Officer", when used with respect to the Trustee, means
the chairman of the board of directors, any vice chairman of the board of
directors, the chairman of the trust committee, the chairman of the executive
committee, any vice chairman of the executive committee, the president, any vice
president, the cashier, the secretary, the treasurer, any senior trust officer,
trust officer, any assistant trust officer, any assistant vice president, any
assistant cashier, any assistant secretary, any assistant treasurer, or any
other officer or assistant officer of the Trustee customarily performing
functions similar to those performed by the persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred
because of his knowledge of and familiarity with the particular subject.
"sale and leaseback transaction" has the meaning set forth in Section
3.5.
"Securities Act" means the Securities Act of 1933, as amended.
"Security" or "Securities" (except as otherwise required by the Trust
Indenture Act of 1939) has the meaning stated in the first recital of this
Indenture or means any Securities that have been issued, authenticated and
delivered under this Indenture, as the context may require.
"Security registrar" has the meaning set forth in Section 2.12.
"series", as used in the definitions of "Indenture" and "Overdue Rate"
in this Section 1.1 and as used in Section 2.6 (except as used in the first
sentence of the second paragraph thereof and in the first and last sentences of
the third paragraph thereof), 2.9, 2.10, 2.11, 2.13, 3.1, 3.2, 3.3 (except as
used in the fourth paragraph thereof), 10.1, 10.2, 10.3, 10.4 and 10.6, means
"tranche" for any Securities of a series of Securities consisting of more than
one tranche.
"sinking fund payment date" has the meaning set forth in Section 10.6.
"Specified Currency" has the meaning set forth in Section 6.1.
"Stock Exchange Trading Day" means a day that AEX-Stock Exchange is
open for trading.
"Subsidiary" means any corporation or other entity of which at least a
majority of the outstanding stock or other ownership interests having by the
terms thereof ordinary voting power for the election of directors, managers or
trustees of such corporation or other entity or other persons performing similar
functions (irrespective of whether or not at the time stock or other ownership
interests of any other class or classes of such corporation or other entity
shall have or might have voting power by reason of the happening of any
contingency) is at the time directly or indirectly owned, or controlled by the
Issuer or the Guarantor or by one or more other Subsidiaries, or by the Issuer
or the Guarantor and one or more other Subsidiaries.
"Tax Redemption Date" has the meaning set forth in Section 10.7.
"Total Current Dividend" has the meaning specified in Section 11.4.
"tranche" means all Securities of the same series having the same
original issue date, interest rate, maturity, repayment and redemption
provisions.
"Trust Indenture Act of 1939" (except as otherwise provided in
Sections 7.1 and 7.2) means the Trust Indenture Act of 1939, as amended, as in
force at the date as of which this Indenture was originally executed; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after such
date, "Trust Indenture Act of 1939" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"Trustee" means the person identified as "Trustee" in the first
paragraph hereof and, subject to the provisions of Article Five, shall also
include any successor trustee. If pursuant to the provisions of this Indenture
there shall be at any time more than one Trustee hereunder, the term "Trustee"
as used with respect to Securities of any series shall mean the Trustee or
Trustees with respect to the Securities of that series.
"U.S. Government Obligations" has the meaning set forth in Section
9.8.
"vice president", when used with respect to the Trustee, 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".
"Yield to Maturity" means, in the case of any Original Issue Discount
Security, the yield to maturity specified in such Security or in a Resolution
relating thereto.
ARTICLE TWO
SECURITIES
SECTION 2.1 Forms Generally. The Securities of each series shall be
substantially in the form set forth in this Article, or in such other form as
shall be established by or pursuant to a Resolution or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture and may have imprinted or otherwise reproduced thereon such letters,
numbers or other marks of identification and such legends or endorsements as may
be required to comply with any applicable law, rule or regulation or with the
rules of any securities exchange or as may, consistent with the provisions of
this Indenture, be determined by the officers executing such Securities, as
evidenced by their execution of the Securities. In the case of Securities of any
series that are denominated in a coin or currency (including composite
currencies or currency units) that is, or may be, replaced by the euro, the form
of such Securities may contain such insertions, omissions, substitutions and
other variations as may be deemed appropriate or required.
The definitive Securities shall be printed, lithographed or engraved
on steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
In the case of Securities of any series that are convertible at the
option of Holders into Parent Shares, the form of election to convert shall be
substantially in the form set forth in Section 2.18, or in such other form as
shall be established by or pursuant to a Resolution or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture and may be imprinted or otherwise reproduced on the Securities of such
series.
SECTION 2.2 Form of Face of Security. [If the Security is an Original
Issue Discount Security, insert any legend required by the Internal Revenue Code
of 1986, as amended and the regulations thereunder.]
No.________________
U.S.$______________ CUSIP No.___________
AHOLD FINANCE U.S.A., INC.
[Insert Designation of Series]
Ahold Finance U.S.A., Inc., a company duly organized and existing
under the laws of the State of Delaware (herein called the "Issuer"), for value
received, hereby promises to pay to ________, or registered assigns, the
principal sum of ____________________ on _______________ [if the Security is to
bear interest prior to maturity, insert--, and to pay interest thereon [[insert
as applicable--annually or semi-annually or quarterly]] on [[insert appropriate
interest payment dates]] (the "Interest Payment Dates") in each year, commencing
_____________, [insert--at the rate of __% per annum or, if applicable, insert
the method for determining the adjustable, floating or other form of variable
interest rate borne by the Securities] until the principal hereof is paid or
made available for payment [if applicable, insert --, and (to the extent that
the payment of such interest shall be legally enforceable) at the rate of __%
per annum on any overdue principal and premium, if any, and on any overdue
installment of interest]. Notwithstanding the foregoing, this Security shall
bear interest from the most recent Interest Payment Date to which interest in
respect hereof has been paid or duly provided for, unless (i) the date hereof is
such an Interest Payment Date, in which case from the date hereof, or (ii) no
interest has been paid on this Security, in which case from ____________;
provided, however, that if the Issuer shall default in the payment of interest
due on the date hereof, then this Security shall bear interest from the next
preceding Interest Payment Date to which Interest has been paid or, if no
interest has been paid on this Security from __________. [If the Issuer has the
right to deliver Parent Common Shares in payment, in whole or in part, of the
principal and accrued interest due at maturity, insert applicable provisions.]
Notwithstanding the foregoing, if the date hereof is after the _________ [insert
if applicable--or __________] (whether or not a Business Day) (the "Record
Date") [insert if applicable, as the case may be,] next preceding an Interest
Payment Date and before such Interest Payment Date, this Security shall bear
interest from such Interest Payment Date; provided, however, that if the Issuer
shall default in the payment of interest due on such Interest Payment Date, then
this Security shall bear interest from the next preceding Interest Payment Date
to which interest has been paid or, if no interest has been paid on this
Security, from _________. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, subject to certain exceptions
provided in the Indenture referred to on the reverse hereof, be paid to the
person in whose name this Security is registered at the close of business on the
Record Date next preceding such Interest Payment Date. Unless otherwise
specified for the Security pursuant to Section 2.6, insert - [Interest on this
Security will be computed and paid on the basis of a 360-day year of twelve
30-day months.]
[If the Security is not to bear interest prior to maturity,
insert--The principal of this Security shall not bear interest except in the
case of a default in payment of principal upon acceleration, upon redemption or
at maturity and in such case the overdue principal of this Security shall bear
interest at the rate of __% per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of such
default in payment to the date payment of such principal has been made or duly
provided for. Interest on any overdue principal shall be payable on demand. Any
such interest on any overdue principal that is not so paid on demand shall bear
interest at the rate of __% per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of such
demand for payment to the date payment of such interest has been made or duly
provided for, and such interest shall also be payable on demand.]
To secure the due and punctual payment of the principal and additional
interest [If the Security is to bear interest prior to maturity, insert--and
interest], if any, on the Securities of this series and all other amounts
payable by the Issuer under the Indenture and the Securities when and as the
same shall be due and payable, whether at maturity, by acceleration or
otherwise, according to the terms of the Securities and the Indenture,
Koninklijke Ahold N.V. (the "Guarantor") has unconditionally guaranteed the
Securities pursuant to the terms of the Guaranty endorsed hereon and in the
Indenture referred to on the reverse hereof (the "Guaranty"). [If the Security
is convertible into Parent Shares at the option of the Holder, insert -- In
addition, the Guarantor has irrevocably and unconditionally guaranteed to the
Holder of this Security the conversion of this Security in accordance with the
terms of the Indenture, when this Security is presented for conversion in
accordance therewith.]
Payment of the principal of and [if applicable, insert -- any such]
interest on this Security will be made at the office or agency of the Issuer
maintained for that purpose in [insert the places of payment], in [insert the
currency or currencies of payment]; provided, however, that at the option of the
Issuer payment of interest may be made by check mailed to the address of the
person entitled thereto as such address shall appear in the Security register.
[If the Security is an extendible security, insert--The Securities of
this series are subject to repayment on [insert provisions with respect to
repayment date or dates] at the option of the Holders thereof exercisable on or
before the _________________, but not prior to the _______________ preceding
such ____________, at a repayment price equal to the principal amount thereof to
be repaid, together with interest payable thereon to the repayment date, as
described on the reverse side hereof.]
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by the manual signature of one of
its authorized signatories, this Security shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, this instrument has been duly executed in the name
of the Issuer.
AHOLD FINANCE U.S.A., INC.
By__________________________
Attest:
_________________
SECTION 2.3 Form of Reverse of Security.
AHOLD FINANCE U.S.A., INC.
This Security is one of a duly authorized issue of securities of the
Issuer (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of [ ], (herein called the "Indenture"),
among the Issuer, the Guarantor and The Chase Manhattan Bank, a New York banking
corporation, as Trustee (herein called the "Trustee"), to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement of
the respective rights, limitations of rights, obligations, duties and immunities
thereunder of the Issuer, the Guarantor, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof [if applicable, insert--limited in aggregate principal amount to
_________]. The separate series of Securities may be issued in various aggregate
principal amounts, may mature at different times, may bear interest, if any, at
different rates, may be subject to different redemption provisions (if any), may
be subject to different sinking or purchase funds (if any), may have different
conversion provisions (if any), may be subject to different repayment provisions
(if any), may be subject to different covenants and Events of Default and may
otherwise vary as in the Indenture provided. The Indenture further provides that
the Securities of a single series may be issued at various times, with different
maturity dates, may bear interest, if any, at different rates, may be subject to
different redemption provisions (if any), may be subject to different sinking or
purchase funds (if any) and may be subject to different repayment provisions (if
any).
If at any time subsequent to the issuance of the Securities of this
series as a result of any change in, or amendment to, the laws or regulations of
The Netherlands or of any political subdivision thereof or any authority therein
or thereof having power to tax or as a result of any change in the application
or official interpretation of such laws or regulations, the Guarantor becomes,
or will become, obligated to pay any Additional Amounts with respect to any
payments that it may be required to make pursuant to the Guaranty and such
obligations cannot be avoided by the Issuer or the Guarantor taking reasonable
measures available to either of them, then the Securities of this series will be
redeemable as a whole (but not in part), at the option of the Issuer, at any
time upon not less than thirty (30) nor more than sixty (60) days' notice given
to the Holders at their principal amount [if the Security is to bear interest
prior to maturity, insert--together with accrued interest thereon, if any,] [if
the Security is an Original Issue Discount Security, insert appropriate
provision.] to the date fixed for redemption (the "Tax Redemption Date"). In
order to effect a redemption of Securities of this series as described in this
paragraph, the Issuer shall deliver to the Trustee at least forty-five (45) days
prior to the Tax Redemption Date: (i) a written notice stating that the
Securities of this series are to be redeemed as a whole and (ii) an opinion of
independent legal counsel of recognized standing to the effect that the
Guarantor has or will become obligated to pay Additional Amounts with respect to
any payments which it may be required to make pursuant to the Guaranty as a
result of any such change or amendment. No notice of redemption may be given
earlier than ninety (90) days prior to the earliest date on which the Guarantor
would be obligated to pay such Additional Amounts were a payment in respect of
the Guaranty of the Securities of this series then due. The notice shall
additionally specify the Tax Redemption Date and all other information necessary
to the publication and mailing by the Trustee of notices of such redemption. The
Trustee shall be entitled to rely conclusively upon the information so furnished
by the Issuer and the Guarantor in such notice and shall be under no duty to
check the accuracy or completeness thereof. Such notice shall be irrevocable and
upon its delivery the Guarantor shall be obligated to make the payment or
payments referred to therein to the Trustee.
[If applicable, insert--The Securities of this series are subject to
redemption upon not less than 30 nor more than 60 days' notice by mail, [[if
applicable, insert --(1) on ______ in any year commencing with the year ______
and ending with the year ____ through operation of the sinking fund for this
series (as more fully described in the next succeeding paragraph) at [[insert
either--a redemption price equal to 100% of the principal amount of the
Securities to be redeemed or the redemption prices for redemption through
operation of the sinking fund (expressed as percentages of the principal amount)
set forth in the table below,]], and (2)]] at any time [[if applicable,
insert--on or after ________]], as a whole or in part, at the election of the
Issuer, at the [[insert either--following redemption prices or redemption prices
for redemption otherwise than through operation of the sinking fund]] (expressed
as percentages of the principal amount): if redeemed [[if applicable, insert--on
or before ________, __%, and if redeemed]] during the 12-month period beginning
________ of the years indicated,
Redemption Price For [[If applicable, insert -- Price
Redemption [[if For Redemption Otherwise Than
applicable, insert --
Through Operation of the Sinking
Through Operation of the Fund]]
Sinking Fund]]
Year
and thereafter at a redemption price equal to __% of the principal amount
thereof, together in the case of any such redemption (whether through operation
of the sinking fund or otherwise) with accrued interest to the date fixed for
redemption, but interest installments maturing on or prior to such redemption
date will be payable to the Holders of such Securities of record at the close of
business on the relevant Record Dates referred to on the face hereof, all as
provided in the Indenture.]
[If applicable, insert--The sinking fund for this series provides for
the redemption on ________ in each year beginning with the year ____ and ending
with the year ____ of [[not less than]] U.S.$________ [[("mandatory sinking fund
payments") and not more than U.S.$________]] aggregate principal amount of
Securities of this series.] [If applicable, insert--Securities of this series
acquired or redeemed by the Issuer otherwise than through [[mandatory]] sinking
fund payments [[if applicable, insert--and Securities of this series surrendered
to the Issuer for conversion]] may be credited against subsequent [[mandatory]]
sinking fund payments otherwise required to be made.]
[If applicable, insert--Notwithstanding the foregoing, the Issuer may
not, prior to ________, redeem any Securities of this series as contemplated by
[[Clause (2) of]] the [[second]] preceding paragraph as a part of, or in
anticipation of, any refunding operation by the application, directly or
indirectly, of moneys borrowed having an interest cost to the Issuer (calculated
in accordance with generally accepted financial practice) of less than __% per
annum.]
[If applicable, insert--Partial redemptions must be in an amount not
less than [U.S.$]______________ principal amount of Securities.]
[If applicable, insert--In the event of redemption of this Security in
part only, a new Security or Securities of this series for the unredeemed
portion hereof having the same interest rate and maturity as this Security will
be issued in the name of the Holder hereof upon the cancellation hereof.]
[If the Holders have the right to cause the Issuer to redeem, purchase
or repay in certain circumstances the Security prior to maturity, insert
applicable provisions.]
[If the Security is convertible at the option of the Holder, insert--
Subject to the provisions of the Indenture, the Holder hereof has the right, at
his option at any time until the close of business of the third Business Day (as
hereinafter defined) preceding the maturity date hereof (except that, in case
this Security shall be called for redemption before maturity, such right shall
terminate in respect of this Security at the close of business on the third
Business Day preceding the date fixed for redemption of this Security unless the
Issuer shall default in payment due upon such redemption), to convert this
Security (or any portion hereof which is [[insert minimum denomination]] or an
integral multiple thereof) into fully paid and nonassessable Common Shares of
the Guarantor ("Parent Common Shares"), or American Depositary Shares evidencing
such Parent Common Shares ("Parent ADSs" and, together with such Parent Common
Shares, "Parent Shares"), at the initial Conversion Price of [[U.S.$]]_______
per Parent Common Share, subject to such adjustment, if any, of the Conversion
Price and the securities or other property issuable upon conversion as may be
required by the provisions of the Indenture, but only upon surrender of this
Security to the Trustee or to the Conversion Agent for surrender to the Issuer
or the Guarantor in accordance with the instructions on file with the Conversion
Agent, accompanied by a written notice of election to convert, which shall be
substantially in the Form of Election to Convert contained in the Indenture, and
(if required by the Issuer or the Guarantor) by an instrument or instruments of
transfer, in form satisfactory to the Issuer, the Guarantor and the Conversion
Agent, duly executed by the Holder or by his attorney duly authorized in
writing.]
[If the Security is subject to mandatory conversion or conversion at
the option of the Issuer, insert applicable provisions.]
[If the Security is convertible into Parent Shares, insert--No payment
or adjustment is to be made on conversion of this Security for interest accrued
hereon or for dividends on Parent Common Shares issued on conversion or on
Parent Common Shares underlying Parent ADSs issued on conversion; provided,
however, that if this Security is surrendered for conversion after the Record
Date for a payment of interest and on or before the Interest Payment Date, then,
notwithstanding such conversion, the interest falling due to such Interest
Payment Date will be paid to the person in whose name this Security is
registered at the close of business on such Record Date and any Security
surrendered for conversion during the period from the close of business on any
Record Date to the opening of business on the corresponding Interest Payment
Date must be accompanied by payment of an amount equal to the interest payable
on such Interest Payment Date. No fractional Parent Shares shall be issuable
upon any conversion, but in lieu thereof the Guarantor shall make an adjustment
therefor in cash as provided in the Indenture.]
[If the Security is not an Original Issue Discount Security,
insert--If an Event of Default with respect to Securities of this series shall
occur and be continuing, then the Trustee or the Holders of not less than 25% in
aggregate principal amount (calculated as provided in the Indenture) of the
Securities of this series then Outstanding may declare the principal of the
Securities of this series and accrued interest thereon, if any, to be due and
payable in the manner and with the effect provided in the Indenture.] [If the
Security is an Original Issue Discount Security, insert--If an Event of Default
with respect to Securities of this series shall occur and be continuing, then
the Trustee or the Holders of not less than 25% in aggregate principal amount
(calculated as provided in the Indenture) of the Securities of this series then
Outstanding may declare an amount of principal of the Securities of this series
due and payable in the manner and with the effect provided in the Indenture.
Such amount shall be equal to [[insert formula for determining the amount]].]
[If the Security is an extendible security, insert --The Securities of
this series are subject to repayment in whole, or in part, on [insert month, day
and years], in increments of _______ or multiples of _______ in excess of
______, provided that the portion of the principal amount of any Security of
this series not being repaid shall be at least _____, at the option of the
Holder thereof at a repayment price equal to the principal amount thereof to be
repaid, together with interest payable thereon to the repayment date. For this
Security to be repaid at the option of the Holder, the Trustee must receive at
the Corporate Trust Office or the New York Location, on or before the [insert
month and day] or, if such [insert month and day] is not a day other than a day
on which banking institutions in The Netherlands or in the Borough of Manhattan,
the City and State of New York are authorized or required by law or regulation
to close (a "Business Day"), the next succeeding Business Day, but not earlier
than the [insert month and day] prior to the [insert month and day] on which the
repayment price will be paid (i) this Security, with the form entitled "Option
to Elect Repayment" below duly completed, or (ii) a facsimile transmission or
letter from a member of a national securities exchange or the National
Association of Securities Dealers, Inc. or a commercial bank or trust company in
the United States of America setting forth the name of the Holder of this
Security, the principal amount of the Security, the amount of such Security to
be repaid, a statement that the option to elect repayment is being made thereby
and a guarantee that the Security to be repaid with the form entitled "Option to
Elect Repayment" on the reverse thereof duly completed will be received by the
Issuer no later than five Business Days after the date of such facsimile
transmission or letter, and such Security and form duly completed are received
by the Issuer by such fifth Business Day. Either form of notice duly received on
or before the [insert month and day] preceding any such [insert month and day]
shall be irrevocable. All questions as to the validity, eligibility (including
time of receipt) and acceptance of any Securities of this series for repayment
will be determined by the Issuer, whose determination shall be final and
binding.]
The Indenture permits, with certain exceptions as therein provided,
the amendment or supplementing thereof and the modification of the rights and
obligations of the Issuer and the Guarantor and the rights of the Holders of the
Securities of each series to be affected under the Indenture at any time by the
Issuer, the Guarantor and the Trustee with the consent of the Holders of not
less than a majority in aggregate principal amount (calculated as provided in
the Indenture) of the Securities at the time Outstanding of all series to be
affected (all such series voting as a single class). The Indenture also contains
provisions permitting the Holders of not less than a majority in aggregate
principal amount (calculated as provided in the Indenture) of the Securities of
any series at the time Outstanding, on behalf of the Holders of all Securities
of such series, to waive certain past defaults or Events of Default under the
Indenture and the consequences of any such defaults or Events of Default. Any
such consent or waiver (unless revoked as provided in the Indenture) shall be
conclusive and binding upon any Holder and upon all future Holders of this
Security and of any Security issued upon the registration of transfer hereof or
in exchange heretofore or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest, if any, on
this Security at the times, place and rate, if any, and in the coin or currency,
herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
register, upon due presentment of this Security for registration of transfer at
the office or agency of the Issuer in any place where the principal of and
interest, if any, on this Security are payable, duly endorsed by, or accompanied
by a written instrument of transfer in form satisfactory to the Issuer and the
Security registrar duly executed by the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities of this series,
having the same interest rate and maturity and bearing interest from the same
date as this Security, of any authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of ________ and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate principal
amount of Securities of this series of a different authorized denomination
having the same interest rate and maturity and bearing interest from the same
date as such Securities, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Issuer may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to registration of transfer of this Security in the Security
register, the Issuer, the Guarantor, the Trustee and any agent of the Issuer,
the Guarantor or the Trustee may treat the person in whose name this Security is
registered as the owner hereof for all purposes, whether or not this Security be
overdue and notwithstanding any notation of ownership or other writing thereon,
and none of the Issuer, the Guarantor, the Trustee nor any such agent shall be
affected by notice to the contrary. All payments made to or upon the order of
such registered Holder, shall, to the extent of the sum or sums paid,
effectually satisfy and discharge liability for monies payable on this Security.
No recourse for the payment of the principal of or interest, if any,
on this Security, or for payment pursuant to the Guaranty or for any claim based
hereon or otherwise in respect hereof, and no recourse under or upon any
obligation, covenant or agreement of the Issuer or the Guarantor in the
Indenture or any indenture supplemental thereto or in any Security, or because
of the creation of any indebtedness represented thereby, shall be had against
any incorporator, shareholder, officer, official, member or deputy member of the
Executive Board or member or deputy member of the supervisory board of the
Guarantor or any successor entity, as such, past, present or future, or against
any incorporator, shareholder, officer or member of the Board of Directors of
the Issuer or of any successor entity, as such, past, present or future, either
directly or through the Issuer or the Guarantor, as the case may be, or any
successor corporation, whether by virtue of any constitution, statute or rule of
law or by the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of the consideration for
the issue hereof, expressly waived and released.
All terms used in this Security and not otherwise defined herein which
are defined in the Indenture shall have the meanings assigned to them in the
Indenture, except with respect to authorization, execution and delivery by the
Issuer.
This Security shall be governed by and construed in accordance with
the laws of the State of New York.
SECTION 2.4 Form of Notation on Security Relating to Guaranty.
GUARANTY
Koninklijke Ahold N.V., a company organized under the laws of The
Netherlands with its corporate seat in Zaandam (municipality Zaanstad), The
Netherlands (the "Guarantor"), FOR VALUE RECEIVED, hereby irrevocably and
unconditionally guarantees to the Holder of the Security upon which this
Guaranty is endorsed, the due and punctual payment of the principal, premium, if
any, and interest, if any, on the Security upon which this Guaranty is endorsed,
when and as the same shall become due and payable, subject to any applicable
grace period, whether on the date of maturity, by acceleration or upon
redemption pursuant to Article Ten of the Indenture referred to in the Security
on which this Guaranty is endorsed or otherwise. All payments under this
Guaranty shall be made in [insert relevant currency].
[If the Security is convertible at the option of the Holder, insert --
The Guarantor hereby also irrevocably and unconditionally guarantees to the
Holder of the Security upon which this Guaranty is endorsed the conversion of
such Security into Parent Shares when presented for conversion in accordance
with the terms of the Indenture.
All payments made pursuant to this Guaranty, including, without
limitation, payments of principal [if the Security is to bear interest prior to
maturity, insert --, interest, if any,] and premium, if any, in respect of the
Security on which this Guaranty is endorsed, shall be made by the Guarantor
without withholding or deduction for or on account of any present or future
taxes, duties, levies, or other governmental charges of whatever nature in
effect on the date of the Indenture or imposed or established in the future by
or on behalf of The Netherlands or any authority in The Netherlands ("Taxes").
In the event any such Taxes are so imposed or established, the Guarantor shall
pay such additional amounts ("Additional Amounts") as may be necessary in order
that the net amounts receivable by each Holder after any payment, withholding or
deduction in respect of such Taxes shall equal the respective amounts of
principal [if the Security is to bear interest prior to maturity, insert --,
interest] and premium, if any, which would have been receivable in respect of
the Security on which this Guaranty is endorsed in the absence of such payment,
withholding or deduction; except that no such Additional Amounts will be payable
with respect to any payment under this Guaranty to, or to a third party on
behalf of, a Holder for or on account of any such Taxes whatever that have been
imposed by reason of (i) the Holder being a resident or deemed a resident of The
Netherlands or having some connection with The Netherlands (including, but not
limited to, the Holder carrying on business in The Netherlands through a
permanent establishment or permanent representative in The Netherlands) other
than the mere holding of such Security or the receipt of principal, interest, if
any, or premium, if any, in respect thereof; (ii) the presentation by the Holder
of the Security on which this Guaranty is endorsed for payment on a date more
than thirty (30) days after the date on which such payment became due and
payable or the date on which payment thereof is duly provided for, whichever
occurs later; (iii) any estate, inheritance, gift, sales, transfer or personal
property tax or any similar tax, assessment or governmental charge; (iv) any
tax, assessment or other governmental charge which is payable otherwise than by
withholding from payments on or in respect of the Security on which this
Guaranty is endorsed; or (v) any combination of items (i), (ii), (iii) or (iv).
Furthermore, no Additional Amounts shall be paid with respect to any payment on
this Security to a Holder that is a fiduciary or partnership or other than the
sole beneficial owner of such payment to the extent that a beneficiary or
settlor with respect to such fiduciary or a member of such partnership or
beneficial owner would not have been entitled to receive the Additional Amounts
had such beneficiary, settlor, member or beneficial owner been the Holder.
The obligations of the Guarantor to the Holders of Securities and to
the Trustee pursuant to this Guaranty and the Indenture, and the rights of the
Guarantor with respect thereto, are expressly set forth in Article Twelve of the
Indenture and reference is hereby made to the Indenture for the precise terms of
this Guaranty, which are incorporated herein by reference and made a part
thereof.
No shareholder, officer, official or member of the Executive Board or
the supervisory board of the Guarantor, as such, past, present or future of the
Guarantor shall have any liability under this Guaranty by reason of his, her or
its status as such shareholder, officer, or member of the Executive Board or the
supervisory board.
The Guarantor hereby agrees that its obligations hereunder and under
Article Twelve of the Indenture shall be as principal obligor and not merely as
surety, and shall be unconditional, irrevocable and absolute, irrespective of
the validity, regularity or enforceability of the Security on which this
Guaranty is endorsed or the Indenture, the absence of any action to enforce the
same, any waiver or consent by the Holder of such Security with respect to any
provisions thereof, the recovery of any judgment against the Issuer, any action
to enforce the same, or any other circumstance which might otherwise constitute
a legal or equitable discharge or defense of a guarantor. The Guarantor hereby
waives diligence, presentment, demand of payment, filing of claims with a court
in the event of insolvency or bankruptcy of the Issuer, any right to require a
proceeding first against the Issuer, protest or notice with respect to such
Security or indebtedness evidenced thereby, and all demands whatsoever and
covenants that this Guaranty will not be discharged except by complete
performance of the obligations of the Guarantor contained in the Indenture and
in this Guaranty.
The Guarantor shall be subrogated to all rights of the Holder of the
Security on which this Guaranty is endorsed against the Issuer in respect to any
amounts paid by the Guarantor pursuant to the provisions of this Guaranty as and
to the extent provided in Article Twelve of the Indenture.
This Guaranty shall not be valid or obligatory for any purpose until
the certificate of authentication on the Security upon which this Guaranty is
endorsed shall have been executed by the Trustee under the Indenture by the
manual signature of one of its authorized signatories.
This Guaranty shall be governed by and construed in accordance with
the laws of the State of New York.
Capitalized terms used herein and not otherwise defined herein
have the meanings specified in the Indenture.
IN WITNESS WHEREOF this instrument has been duly executed in the name
of the Guarantor.
KONINKLIJKE AHOLD N.V.
By_____________________________
Name:
Title:
SECTION 2.5 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 herein and
referred to in the within-mentioned Indenture.
Dated:
The Chase Manhattan Bank, as Trustee
By
------------------------------
Authorized Signatory
SECTION 2.6 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, each of which may
consist of one or more tranches. There shall be established in or pursuant to a
Resolution, a copy of which, certified by the secretary of the Issuer, shall be
delivered to the Trustee, or established in one or more indentures supplemental
hereto, prior to the issuance of Securities of a particular series,
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 2.11, 2.12, 2.13 or 10.3);
(3) the date or dates on which the principal of the Securities
of the series is payable;
(4) the rate or rates at which the Securities of the series
shall bear interest, if any, or the method by which such rate or rates
(including the Overdue Rate) shall be determined, the date or dates from
which such interest shall accrue or the method by which such date or
dates may be determined, the interest payment dates on which such
interest shall be payable and the record dates for the determination of
Holders to whom interest is payable;
(5) the place or places where the principal and any interest on
Securities of the series shall be payable;
(6) the price or prices at which, the period or periods within
which and the terms and conditions 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;
(7) 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
at which, 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;
(8) the price or prices at which, the period or periods within
which and the terms and conditions upon which Securities of the series
may be repaid, in whole or in part, at the option of the Holder thereof;
(9) if the Securities of the series are to be convertible into
Parent Shares, the period or periods within which, the Conversion Price
or Prices at which (and the adjustments to be made thereto, if otherwise
than as provided in Section 11.4)) and the terms and conditions upon
which the Securities of the series may be converted, in whole or in
part, into Parent Shares, whether such conversion is mandatory, at the
option of Holders of the Securities of the series or at the option of
the Issuer and the identity of any Conversion Agent for Securities of
the series if other than or in addition to the Trustee;
(10) if other than Dollars, the coin or currency (including
composite currencies or currency units) in which the Securities of the
series shall be denominated and, if different, the coin or currency
(including composite currencies or currency units) in which payment of
the principal of and/or interest on the Securities of the series shall
be payable, and if such coin or currency (including composite currencies
or currency units) is replaced by the euro, the provisions to effect
such replacement;
(11) if the principal of and/or interest on the Securities of
the series are to be payable, at the election of the Issuer or a Holder
thereof, in a coin or currency (including composite currencies or
currency units) other than that in which the Securities are stated to be
payable, the period or periods within which, and the terms and
conditions upon which, such election may be made;
(12) if the amount of payments of principal of and/or interest
on the Securities of the series may be determined with reference to an
index based on a coin or currency (including composite currencies or
currency units) other than that in which the Securities are stated to be
payable or with reference to any other index, the manner in which such
amounts shall be determined;
(13) if other than denominations of U.S.$1,000 (or if the
Securities are denominated in a currency other than Dollars or in a
composite currency, 1,000 units of such other currency, composite
currency or other currency unit) and any multiple thereof, the
denominations in which Securities of the series shall be issuable;
(14) if other than the principal amount thereof, the portion of
the principal amount of Securities of the series which shall be payable
upon declaration of acceleration of the maturity thereof pursuant to
Section 4.1 or provable in any action or proceeding pursuant to Section
4.2;
(15) if the Securities of the series are Original Issue Discount
Securities, the price at which and the date on which Securities of the
series are to be issued and the Yield to Maturity at the time of
issuance of such series;
(16) if the Securities of the series are to be issued in the
form of one or more Global Securities, the name of the Depositary for
such Global Security or Securities or the nominee of such Depositary;
(17) if the principal of and/or interest on the Securities of
the series are to be payable (whether upon redemption or maturity), at
the election of the Issuer, in Parent Common Shares, the period or
periods within which, or dates on which, and the terms and conditions
upon which, such election may be made:
(18) CUSIP and/or ISIN/CINS numbers for Securities of the
series; and
(19) any other terms of the series which are not inconsistent
with this Indenture.
In the case of Securities of a series issued in tranches, all
Securities of any one tranche shall be substantially identical, except as to
denomination. Except as provided in the preceding sentence, all Securities of
any one series shall be substantially identical except as to denomination,
interest rate and maturity and except as may otherwise be provided in or
pursuant to such Resolution or in any such indenture supplemental hereto. The
applicable Resolution or the applicable supplemental indenture may provide that
Securities of any particular series may be issued at various times, with
different maturities and redemption and repayment provisions (if any) and
bearing interest at different rates, but shall for all purposes under this
Indenture, including, but not limited to, voting and Events of Default, be
treated as Securities of a single series.
Except as otherwise specified pursuant to this Section 2.6 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 2.7 Authentication 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 executed by the Issuer to the Trustee for
authentication, with, in each case, the Guaranty endorsed thereon executed by
the Guarantor, and the Trustee shall thereupon authenticate and make available
for delivery such Securities to or upon the written order of the Issuer, signed
by any two of the following: the president, any executive vice president or the
secretary of the Issuer, 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, and (subject to the requirements of the Trust Indenture Act
of 1939) shall be fully protected in relying upon:
(1) a copy of any Resolution or Resolutions relating to such
series, certified by the secretary of each of the Issuer and the
Guarantor;
(2) an executed supplemental indenture, if any, relating
thereto;
(3) an Officers' Certificate of the Issuer setting forth the
form and terms of the Securities as required pursuant to Sections 2.1
and 2.5, respectively, and prepared in accordance with the requirements
of the Trust Indenture Act of 1939 and Section 13.5;
(4) an Opinion of Counsel, prepared in accordance with the
requirements of the Trust Indenture Act of 1939 and Section 13.5, which
shall state that (i) if the form of such Securities has been established
by or pursuant to a Resolution of the Issuer as permitted by Section
2.1, that such form or forms, as the case may be, have been established
in conformity with the provisions of this Indenture, and that the terms
of such Securities have been established by or pursuant to a Resolution
of the Issuer as permitted by Section 2.6 in conformity with the
provisions of this Indenture and that the authentication and delivery of
such Securities by the Trustee is authorized under the provisions of
this Indenture and (ii) 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 valid and legally binding obligations of the Issuer,
enforceable in accordance with their terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors' rights
generally and to general principles of equity regardless of whether the
issue of enforceability is considered in a proceeding in equity or at
law; and
(5) an Opinion of Counsel, prepared in accordance with the
requirements of the Trust Indenture Act of 1939 and Section 13.5, which
shall state that the Guaranty endorsed upon such Securities, when such
Securities are 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 the valid and legally binding
obligation of the Guarantor, enforceable in accordance with its terms,
except as the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally and to general principles of
equity, regardless of whether the issue of enforceability is considered
in a proceeding in equity or at law.
The Trustee shall have the right to decline to authenticate and
deliver any Securities under this Section if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken by the Issuer or
if the Trustee in good faith by its board of directors or board of trustees,
executive committee, or a trust committee of directors or trustees and/or
Responsible Officers shall determine that such action would expose the Trustee
to personal liability to existing Holders or would adversely affect the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
The Trustee shall not be required to authenticate Securities
denominated in a coin or currency other than that of the United States of
America if the Trustee reasonably determines that such Securities impose duties
or obligations on the Trustee which the Trustee is not able or reasonably
willing to accept; provided that the Trustee, upon the request of the Issuer,
will resign as Trustee with respect to Securities of any series as to which such
a determination is made, prior to the issuance of such Securities, and will
comply with the request of the Issuer to execute and deliver a supplemental
indenture appointing a successor Trustee pursuant to Section 7.1.
If the Issuer shall establish pursuant to Section 2.6 that the
Securities of a series or a tranche are to be issued in the form of one or more
Global Securities, then the Issuer shall execute and the Trustee shall, in
accordance with this Section and the order of the Issuer with respect to such
series, authenticate and deliver one or more Global Securities, in each case
with the Guaranty endorsed thereon executed by the Guarantor, that (i) shall
represent and shall be denominated in an amount equal to the aggregate principal
amount of all of the Securities of such series or such tranche, as the case may
be, issued and not yet canceled, (ii) shall be registered in the name of the
Depositary for such Global Security or Securities or the nominee of such
Depositary, (iii) shall be delivered by the Trustee to such Depositary or
pursuant to such Depositary's instructions and (iv) shall bear such legend, if
any, as shall be required by the Depositary.
Each Depositary of a Global Security designated pursuant to Section
2.6 must, at the time of its designation and at all times while it serves as
Depositary hereunder, be a clearing agency registered under the Exchange Act and
any other applicable statute or regulation.
SECTION 2.8 Execution of Securities. The Securities shall be signed in
the name of the Issuer by its president or any vice president of the Issuer.
Such signatures may be the manual or facsimile signatures of the present or any
future such officers. Typographical and other minor errors or defects in any
such reproduction of any such signature shall not affect the validity or
enforceability of any Security that has been duly authenticated and delivered by
the Trustee.
In case any officer of the Issuer who shall have signed any of the
Securities shall cease to be such officer before the Security so signed shall be
authenticated and delivered by the Trustee or disposed of by the Issuer, such
Security nevertheless may be authenticated and delivered or disposed of as
though the person who signed such Security had not ceased to be such officer of
the Issuer; and any Security may be signed in the name of the Issuer by such
persons as, at the actual date of the execution of such Security, 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.
SECTION 2.9 Certificate of Authentication. Unless a certificate of
authentication substantially in the form hereinbefore recited set forth on a
Security has been executed by the Trustee by the manual signature of one of its
authorized signatories, such Security shall not be entitled to any benefits
under this Indenture and neither such Security nor the Guaranty endorsed thereon
shall be valid or obligatory for any purpose. Such certificate by 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 2.10 Execution and Delivery of Guaranty. To evidence the
Guaranty to the Securityholders hereunder, the Guaranty, substantially in the
form provided in Section 2.4, shall be endorsed on each Security authenticated
and delivered hereunder. The Guaranty endorsed upon each such Security shall be
signed in the name of the Guarantor by the president or any executive vice
president of the Guarantor. Such signature may be the manual or facsimile
signature of the present or any future such officers. Typographical and other
minor errors or defects in any such reproduction of any such signature shall not
affect the validity or enforceability of the Guaranty endorsed upon any Security
that has been duly authenticated and delivered by the Trustee.
In case any officer of the Guarantor who shall have signed any
Guaranty shall cease to hold such office before the Security on which such
Guaranty is endorsed shall be authenticated and delivered by the Trustee or
disposed of by the Issuer, such Security nevertheless may be authenticated and
delivered or disposed of as though the person who signed such Guaranty had not
ceased to hold such office of the Guarantor; and the Guaranty on any Security
may be signed in the name of the Guarantor by such persons as, at the actual
date of the execution of such Guaranty, shall be the proper officers of the
Guarantor, although at the date of the execution and delivery of this Indenture
any such person was not such an officer.
SECTION 2.11 Denomination and Date of Securities; Payments of
Interest. The Securities of each series shall be issuable as registered
Securities without coupons and in denominations as shall be specified as
contemplated by Section 2.6. In the absence of any such specification with
respect to the Securities of any series, the Securities of such series shall be
issuable in denominations of U.S.$1,000 (or, if such Securities are denominated
in a currency other than U.S. dollars or in a composite currency, 1,000 units of
such other currency or composite currency) and any multiple thereof. The
Securities of each series shall be numbered, lettered or otherwise distinguished
in such manner or in accordance with such plan as the officers of the Issuer
executing the same may determine with the approval of a Responsible Officer of
the Trustee as evidenced by the execution and authentication thereof.
Each Security shall be dated the date of its authentication, shall
bear interest, if any, from the date, and shall be payable on the dates, in each
case, which shall be specified as contemplated by Section 2.6.
Except as otherwise specified for a particular series pursuant to
Section 2.6, the person in whose name any Security of any series is registered
at the close of business on any record date (as hereinafter defined) applicable
to a particular series with respect to any interest payment date for such series
shall be entitled to receive the interest, if any, payable on such interest
payment date notwithstanding the cancellation of such Security upon any
registration of any transfer or exchange of such Security subsequent to the
record date and prior to such interest payment date, except if and to the extent
the Issuer shall default in the payment of the interest due on such interest
payment date for such series, in which case such defaulted interest shall be
paid to the persons in whose names Outstanding Securities of such series are
registered at the close of business on a subsequent record date (which shall be
not less than five days prior to the date of payment of such defaulted interest)
established by notice given by mail by or on behalf of the Issuer to the Holders
of Securities not less than 15 days preceding such subsequent record date. The
term "record date" as used with respect to any interest payment date (except a
date for payment of defaulted interest) shall mean the date specified as such in
the terms of the Securities of any particular series, or, if no such date is so
specified, if such interest payment date is the first day of a calendar month,
the fifteenth day of the next preceding calendar month or, if such interest
payment date is the fifteenth day of a calendar month, the first day of such
calendar month, whether or not such record date is a Business Day.
SECTION 2.12 Registration, Transfer and Exchange. The Issuer will
keep, either at the office or agency designated and maintained by the Issuer for
such purpose in the Borough of Manhattan, The City of New York, in accordance
with the provisions of Section 3.2, or at any of such other offices or agencies
as may be designated and maintained in accordance with the provisions of Section
3.2, a register or registers in which, subject to such reasonable regulations as
it may prescribe, it will register, and will register the transfer of,
Securities of a series as in this Article provided. Such register shall be in
written form in the English language or in any other form capable of being
converted into such form within a reasonable time. At all reasonable times such
register or registers shall be open for inspection by the Trustee and any
Security registrar (as defined below) other than the Trustee.
Upon due presentation for registration of transfer of any Security of
any series at any such office or agency to be maintained for the purpose as
provided in Section 3.2, the Issuer shall execute (in each case with the
Guaranty endorsed thereon executed by the Guarantor) and the Trustee shall
authenticate and make available for delivery in the name of the transferee or
transferees a new Security or Securities of the same series in authorized
denominations for a like aggregate principal amount and having the same interest
rate, maturity and repayment and redemption provisions.
Any Security or Securities of any series (other than a Global
Security, except as set forth below) may be exchanged for a Security or
Securities of the same series in other authorized denominations, in an equal
aggregate principal amount and having the same interest rate, maturity,
redemption and repayment provisions. Securities of any series to be exchanged
shall be surrendered at any office or agency to be maintained by the Issuer for
the purpose as provided in Section 3.2, and the Issuer shall execute (in each
case with the Guaranty endorsed thereon executed by the Guarantor) and the
Trustee shall authenticate and make available for delivery in exchange therefor
the Security or Securities of the same series and having the same interest rate,
maturity and repayment and redemption provisions which the Securityholder making
the exchange shall be entitled to receive, bearing numbers or other
distinguishing symbols not contemporaneously outstanding. Each person designated
by the Issuer pursuant to the provisions of Section 3.2 as a person authorized
to register, and register transfer of, the Security is sometimes herein referred
to as a "Security registrar".
The Issuer will at all times designate one person (who may be the
Issuer and who need not be a Security registrar) to act as repository of a
master list of names and addresses of the Holders of the Securities (the
"Register"). The Trustee shall act as such repository unless and until some
other person is, by written notice from the Issuer to the Trustee and each
Security registrar, designated by the Issuer to act as such. The Issuer shall
cause each Security registrar to furnish to such repository, on a current basis,
such information as to all registrations of transfer and exchanges effected by
such registrar, as may be necessary to enable such repository to maintain the
Register on as current a basis as is practicable.
No person shall at any time be designated as or act as a Security
registrar unless such person is at such time empowered under applicable law to
act as such and duly registered to act as such under and to the extent required
by applicable law and regulations.
All Securities presented for registration of transfer, exchange,
redemption or payment shall (if so required by the Issuer or the Trustee) be
duly endorsed by, or be accompanied by a written instrument or instruments of
transfer or exchange in form satisfactory to the Issuer and the Trustee duly
executed by, the Securityholder or his attorney duly authorized in writing.
The Issuer may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any exchange or
registration of transfer of Securities, other than exchanges pursuant to Section
2.15, 7.5 or 10.3 not involving any registration of transfer. No service charge
shall be made for any such transaction.
The Issuer shall not be required to exchange or register a transfer of
(a) any Securities of any series for a period of 15 days next preceding the
selection of Securities of that series to be redeemed, or (b) any Securities
selected, called or being called for redemption or surrendered for repayment in
whole or in part except, in the case of any Security to be redeemed or repaid in
part, the portion thereof not so to be redeemed or repaid.
Notwithstanding any other provision of this Section 2.12, unless and
until it is exchanged in whole or in part for Securities in definitive
registered form, a Global Security representing all or a portion of the
Securities of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such Depositary or by
such Depositary or any such nominee to a successor Depositary for such series or
a nominee of such successor Depositary.
If at any time the Depositary for any Securities of a series
represented by one or more Global Securities notifies the Issuer that it is
unwilling or unable to continue as Depositary for such Securities or if at any
time the Depositary for such Securities shall no longer be eligible under
Section 2.7, the Issuer shall appoint a successor Depositary with respect to
such Securities. If a successor Depositary for such Securities is not appointed
by the Issuer within 90 days after the Issuer receives such notice or becomes
aware of such ineligibility, the Issuer's election pursuant to Section 2.6 that
such Securities be represented by one or more Global Securities shall no longer
be effective and the Issuer will execute, and the Trustee, upon receipt of an
Officers' Certificate for the authentication and delivery of definitive
Securities of such series, will authenticate and make available for delivery
definitive Securities of the same series, in any authorized denominations, in an
aggregate principal amount equal to the principal amount of the Global Security
or Securities representing such Securities, in exchange for such Global Security
or Securities.
The Issuer may at any time, and in its sole discretion, determine that
Securities issued in the form of one or more Global Securities shall no longer
be represented by a Global Security or Securities. In such event the Issuer will
execute, and the Trustee, upon receipt of an Officers' Certificate for the
authentication and delivery of definitive Securities, will authenticate and make
available for delivery definitive Securities of the same series, in any
authorized denominations, in an aggregate principal amount equal to the
principal amount of the Global Security or Securities, in exchange for such
Global Security or Securities.
If specified by the Issuer pursuant to Section 2.6 with respect to
Securities represented by a Global Security, the Depositary for such Global
Security may surrender such Global Security in exchange in whole or in part for
definitive Securities of the same series on such terms as are acceptable to the
Issuer and such Depositary. Thereupon, the Issuer shall execute, (in each case
with the Guaranty endorsed thereon executed by the Guarantor) and the Trustee
shall authenticate and make available for delivery, without service charge:
(i) to the person specified by such Depositary, a new Security
or Securities of the same series, of any authorized denominations as
requested by such person, in an aggregate principal amount equal to and
in exchange for such person's beneficial interest in the Global
Security; and
(ii) to such Depositary a new Global Security in a denomination
equal to the difference, if any, between the principal amount of the
surrendered Global Security and the aggregate principal amount of
Securities authenticated and delivered pursuant to clause (i) above.
Upon the exchange of a Global Security for definitive Securities, in
authorized denominations, such Global Security shall be canceled by the Trustee
or an agent of the Issuer, the Guarantor or the Trustee. Definitive Securities
issued in exchange for a Global Security pursuant to this Section 2.12 shall be
registered in such names and in such authorized denominations as the Depositary
for such Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee or an agent of the Issuer,
the Guarantor or the Trustee. The Trustee or such agent shall make such
Securities available for delivery to or as directed by the persons in whose
names such Securities are so registered.
SECTION 2.13 Mutilated, Defaced, Destroyed, Lost and Stolen
Securities. 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 any destroyed, lost or stolen Security has been
acquired by a bona fide purchaser, the Issuer may in its discretion execute
(with the Guaranty endorsed thereon executed by the Guarantor) and the Trustee
shall authenticate and make available for delivery, a new Security of the same
series and of like tenor, bearing a number or other distinguishing symbol not
contemporaneously Outstanding, in exchange and substitution for the mutilated or
defaced Security, or in lieu of and substitution for the Security so destroyed,
lost or stolen. In every case the applicant for a substitute Security shall
furnish to the Issuer, the Guarantor and the Trustee (and any agent of the
Issuer, the Guarantor or Trustee, if requested by the Issuer or the Guarantor)
such security or indemnity as may be required by them to indemnify and defend
and to save each of them harmless and, in every case of destruction, loss or
theft, evidence to their satisfaction of the destruction, loss or theft of such
Security and of the ownership thereof.
Upon the issuance of any substitute Security, 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) connected therewith.
In case any Security that 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 in its discretion may instead of issuing a
substitute Security, pay or authorize the payment of the same (without surrender
thereof except in the case of a mutilated or defaced Security), if the applicant
for such payment shall furnish to the Issuer, the Guarantor and the Trustee (and
any agent of the Issuer, the Guarantor or the Trustee, if requested by the
Issuer or the Guarantor) such security or indemnity as any of them may require
to indemnify and defend and to save each of them harmless, and, in every case of
destruction, loss or theft, evidence to their satisfaction of the destruction,
loss or theft of such Security and of the ownership thereof.
Every substituted Security of any series, and the Guaranty endorsed
thereon, issued pursuant to the provisions of this Section by virtue of the fact
that any such Security is destroyed, lost or stolen shall constitute an
additional contractual obligation of the Issuer and the Guarantor, respectively,
whether or not the destroyed, lost or stolen Security shall be at any time
enforceable by anyone and shall be entitled to all the benefits of (but shall be
subject to all the limitations of rights set forth in) this Indenture equally
and proportionately with any and all other Securities of such series duly
authenticated and delivered hereunder. All Securities shall be held and owned
upon the express condition that, to the extent permitted by law, the foregoing
provisions are exclusive with respect to the replacement or payment of
mutilated, defaced or destroyed, lost or stolen Securities and 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 2.14 Cancellation of Securities Paid, etc. All Securities
surrendered for the purpose of payment, redemption, registration of transfer,
conversion or exchange, or for credit against any payment in respect of a
sinking or analogous fund, if surrendered to the Issuer, any Security registrar,
any paying agent, the Conversion Agent or any other agent of the Issuer or any
agent of the Trustee, shall be delivered to the Trustee and promptly canceled by
it or, if surrendered to the Trustee, shall be promptly canceled by it; and no
Securities shall be issued in lieu thereof except as expressly permitted by any
of the provisions of this Indenture. The Trustee shall deliver canceled
Securities 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 2.15 Assumption by Guarantor. The Guarantor may, without the
consent of the Securityholders, assume all of the covenants, agreements, rights
and obligations of the Issuer hereunder with respect to any series of Securities
and under the Securities of such series if, after giving effect to such
assumption, no Event of Default shall have occurred and be continuing. Upon such
an assumption, the Guarantor shall execute a supplemental indenture evidencing
its assumption of all such rights and obligations of the Issuer and the Issuer
shall be released from its liabilities hereunder and under such Securities as
obligor on the Securities of such series.
SECTION 2.16 Temporary Securities. Pending the preparation of
definitive Securities for any series, the Issuer may execute (with the Guaranty
endorsed thereon executed by the Guarantor), and the Trustee shall authenticate
and make available for delivery temporary Securities for such series (printed,
lithographed, typewritten or otherwise reproduced). Temporary Securities of any
series shall be issuable as registered Securities without coupons, 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 and the Guarantor. Temporary
Securities may contain such reference to any provisions of this Indenture as may
be appropriate. Every temporary Security shall be authenticated by the Trustee
upon the same conditions and in substantially the same manner, and with like
effect, as the definitive Securities in lieu of which they are issued. Without
unreasonable delay, and in no case more than 60 days after the issuance of such
temporary Securities, the Issuer shall execute definitive Securities of such
series and the Issuer shall furnish (with, in each case, the Guaranty endorsed
thereon executed by the Guarantor) such definitive securities and thereupon
temporary Securities of such series may be surrendered in exchange therefor
without charge at each office or agency to be maintained by the Issuer for that
purpose pursuant to Section 3.2, and the Trustee shall authenticate and make
available for delivery in exchange for such temporary Securities of such series
a like aggregate principal amount of definitive Securities of the same series of
authorized denominations having the same interest rate, maturity and redemption
and repayment provisions, and bearing interest from the same date as such
temporary Securities. Until so exchanged, the temporary Securities of any series
shall be entitled to the same benefits under this Indenture as definitive
Securities of the same series authenticated and delivered hereunder.
SECTION 2.17 CUSIP Numbers. The Issuer in issuing the Securities may
use "CUSIP" or "ISIN" numbers (if then generally in use), and, if so, the
Trustee shall use "CUSIP" or "ISIN" numbers in notices of redemption as a
convenience to Securityholders; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers.
SECTION 2.18 Form of Election to Convert. The notice of conversion to
be delivered by a Holder to the Conversion Agent in connection with the
conversion of Securities of any series that are convertible into Parent Shares
shall be in substantially the following form, with such appropriate insertions,
omissions, substitutions and other variations as are deemed necessary or
appropriate by the Guarantor or the Trustee:
NOTICE OF CONVERSION
The undersigned Holder of the Securities specified below hereby
irrevocably exercises the option to convert such Securities, or the aggregate
principal amount thereof specified below, into Common Shares of the Guarantor
("Parent Common Shares") or American Depositary Shares evidencing such Parent
Common Shares ("Parent ADSs" and, together with such Parent Common Shares, the
"Parent Shares"), as indicated below, in accordance with the terms of the
Securities and the Indenture dated as of _______, (the "Indenture") among Ahold
Finance U.S.A., Inc., as Issuer, Koninklijke Ahold N.V., as Guarantor, and The
Chase Manhattan Bank, as Trustee, and directs that (i) if such Holder is
electing to receive Parent Common Shares, the Parent Common Shares issuable and
deliverable upon conversion be delivered to such Holder through Nederlands
Centraal Instituut voor Giraal Effectenverkeer and (ii) if such Holder elects to
receive Parent ADSs, the Parent American Depositary Receipts evidencing such
Parent ADSs issuable and deliverable on conversion be issued in the name of and
delivered to the undersigned unless otherwise indicated below and, in either
case, any check in payment for fractional Parent Shares be issued in the name of
and delivered to the undersigned unless a different name has been indicated
below. If Parent ADSs are to be issued in the name of a person other than the
undersigned, the undersigned has paid all transfer taxes payable with respect
thereto. All capitalized terms used herein and not defined herein shall have the
meanings specified in the Indenture.
Dated:
---------------------------
Signature (for Conversion only)
Title of Securities:
Certificate Number(s)
(if applicable):
Aggregate Principal Amount
Represented:(1)
(1) Unless otherwise specified, a Holder will be deemed to be converting the
entire principal amount of the Securities delivered.
Principal Amount to be
Converted:(2)
(2) Certificate registered in the name of the Holder will be issued in the
principal amount of the Securities not converted, unless otherwise
provided.
Indicate Parent Shares to be issued:
(_) Parent Common Shares
(_) Parent American Depositary Shares
If ADSs are to be received and
are to be issued otherwise
than to Holder:
-------------------------
Please print name and address
If check for fractional Parent Shares to be issued otherwise than to Holder:
-------------------------
Please print name and address
Please print name and address of Holder
------------------------
------------------------
Signature Guarantee: ________________________
ARTICLE THREE
COVENANTS OF THE ISSUER AND THE GUARANTOR
SECTION 3.1 Payment of Principal and Interest. The Issuer covenants
and agrees for the benefit of each series of Securities that it will duly and
punctually pay or cause to be paid the principal of and interest, if any, on
each of the Securities of such series at the place or places, at the respective
times and in the manner provided in such Securities, but in no event later than
10 a.m., New York time, on the respective payment date. The Issuer shall request
that the bank, through which any such payment is to be made, agree to supply to
the Trustee two Business Days prior to the due date for any such payment an
irrevocable confirmation (by tested telefax or authenticated SWIFT MT 100
Message) of its intention to make such payment. Except as otherwise provided
pursuant to Section 2.6 for Securities of any series, each installment of
interest on the Securities of any series may be paid by mailing checks for such
interest payable to the person entitled thereto as such addresses shall appear
in the Register.
SECTION 3.2 Offices for Payments, etc. So long as any of the
Securities remain outstanding, the Issuer will designate and maintain in the
Borough of Manhattan, The City of New York, for each series: (a) an office or
agency where the Securities may be presented for payment, (b) if the Securities
of such series are convertible into Parent Shares, an office or agency where the
Securities may be presented for conversion into Parent Shares (hereinafter the
"Conversion Agent", which term shall include any additional Conversion Agents as
may be appointed by the Issuer), (c) an office or agency where the Securities
may be presented for registration of transfer and for exchange as in this
Indenture provided and (d) an office or agency where notices and demands to or
upon the Issuer in respect of the Securities or of this Indenture may be served.
In addition to such office or offices or agency or agencies, the Issuer may from
time to time designate and maintain one or more additional offices or agencies
within or outside the Borough of Manhattan, The City of New York, where the
Securities of that series may be presented for payment or for registration of
transfer or for exchange, and the Issuer may from time to time rescind such
designation, as it may deem desirable or expedient. The Issuer will give to the
Trustee written notice of the location of any such office or agency and of any
change of location thereof. The Issuer hereby designates the New York Location
and the Corporate Trust Office as the initial offices to be maintained by it for
such purposes. In case the Issuer shall fail to maintain any such office or
agency or shall fail to give such notice of the location or of any change in the
location thereof, presentations and demands may be made and notices may be
served at the Corporate Trust Office and the Issuer appoints the Trustee as its
agent to receive all such presentations, surrenders, notices and demands.
SECTION 3.3 Paying Agents. Whenever the Issuer shall appoint a paying
agent or agents other than the Trustee with respect to the Securities of any
series, it will cause each such paying agent to execute and deliver to the
Trustee an instrument in which each 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 agent for
the payment of the principal of or 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 persons entitled thereto until such sums shall be paid to
such persons or otherwise disposed of as herein provided,
(b) that it will give the Trustee written notice of any default
by the Issuer (or by any other obligor on the Securities of such series)
to make any payment of the principal of 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 default
referred to in clause (b) above, upon the written request of the
Trustee, it will forthwith pay to the Trustee all sums so held in trust
by such paying agent.
Whenever the Issuer shall have one or more paying agents with respect
to Securities of any series, it will, prior to each due date of the principal of
or interest, if any, on the Securities of such series, deposit with a designated
paying agent a sum sufficient to pay such principal or interest, if any, so
becoming due, such sum to be held in trust for the benefit of the persons
entitled to such principal or interest, if any, and (unless such paying agent is
the Trustee) the Issuer will promptly notify the Trustee of any failure to take
such action.
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 or interest, if any, on the Securities of such series, set aside, segregate
and hold in trust for the benefit of the persons entitled to such principal and
interest, if any, a sum sufficient to pay such principal or interest, if any, so
becoming due until such sums shall be paid to such persons or otherwise disposed
of as herein provided. The Issuer will promptly notify the Trustee of any
failure to take such action.
Anything in this Section to the contrary notwithstanding, the Issuer
may at any time, for the purpose of obtaining a satisfaction and discharge with
respect to one or more or all series of Securities hereunder, or for any other
reason, pay or cause to be paid to the Trustee all sums held in trust for any
such series by the Issuer or any paying agent hereunder, as required by this
Section, such sums to be held by the Trustee upon the trusts herein contained.
Anything in this Section to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section is subject to the
provisions of Sections 9.3 and 9.4.
SECTION 3.4 Limitation on Liens. The Guarantor will not itself, and
will not permit any Subsidiary to, incur, issue, assume or guarantee any
indebtedness for money borrowed or any other indebtedness evidenced by notes,
bonds, debentures or other similar evidences of indebtedness for money borrowed
(hereinafter in this Section and in Section 3.5 called "Debt") secured by pledge
of, or mortgage, deed of trust or other lien on, the whole or any part of its,
or any such Subsidiary's, as the case may be, undertakings, assets (including
shares of stock or Debt) or revenues, present or future (such pledges,
mortgages, deeds of trust and other liens being hereinafter in this Section and
in Section 3.5 called "Mortgage" or "Mortgages"), without effectively providing
that the Securities of all series (together with, if the Guarantor shall so
determine, any other Debt of the Guarantor or such Subsidiary then existing or
thereafter created which is not subordinate to the Securities) shall be secured
equally and ratably with (or prior to) such secured Debt, so long as such
secured Debt shall be so secured, unless, after giving effect thereto, the
aggregate principal amount of all such secured Debt which would otherwise be
prohibited, plus all Attributable Debt of the Guarantor and its Subsidiaries in
respect of sale and leaseback transactions (as defined in Section 3.5) which
would otherwise be prohibited by Section 3.5 would not exceed the greater of (i)
U.S.$750,000,000 or (ii) the sum of 15% of Consolidated Net Tangible Assets;
provided, that this Section shall not apply to, and there shall be excluded from
secured Debt in any computation under this Section, Debt secured by:
(a) Mortgages on property of, or on any shares of stock or Debt
of, any corporation existing at the time such corporation becomes a
Subsidiary;
(b) Mortgages to secure indebtedness of any Subsidiary to the
Guarantor or to another Subsidiary;
(c) Mortgages for taxes, assessments or governmental charges or
levies in each case (i) not then due and delinquent or (ii) the validity
of which is being contested in good faith by appropriate proceedings,
and materialmen's, mechanics', carriers', workmen's, repairmen's,
landlord's or other like Mortgages, or deposits to obtain the release of
such Mortgages;
(d) Mortgages arising under an order of attachment or distraint
or similar legal process so long as the execution or enforcement thereof
is effectively stayed and the claims secured thereby are being contested
in good faith;
(e) Mortgages to secure public or statutory obligations or to
secure payment of workmen's compensation or to secure performance in
connection with tenders, leases of real property, bids or contracts or
to secure (or in lieu of) surety or appeal bonds and Mortgages made in
the ordinary course of business for similar purposes;
(f) Mortgages on property (including any lease which should be
capitalized on the lessee's balance sheet in accordance with generally
accepted accounting principles), shares of stock or Debt existing at the
time of acquisition thereof (including acquisition through merger or
consolidation or through purchase or transfer of the properties of a
corporation as an entirety or substantially as an entirety) or to secure
the payment of all or any part of the purchase price or construction
cost or improvement cost thereof or to secure any Debt incurred prior
to, at the time of, or within one year after, the acquisition of such
property or shares or Debt or the completion of any such construction
(including any improvements on an existing property) or the commencement
of commercial operation of such property, whichever is later, for the
purpose of financing all or any part of the purchase price or
construction cost thereof;
(g) Mortgages to secure guarantees arising in connection with
the sale, discount, guarantee or pledge of notes, chattel mortgages,
leases, accounts receivable, trade acceptances and other paper arising,
in the ordinary course of business, out of installment or conditional
sales to or by, or transactions involving title retention with,
distributors, dealers or other customers, or merchandise, equipment or
services;
(h) Mortgages existing at the date of this Indenture; and
(i) Any extension, renewal or replacement (or successive
extensions, renewals or replacements), as a whole or in part, of any
Mortgage referred to in the foregoing clauses (a) to (h), inclusive;
provided, that (i) such extension, renewal or replacement Mortgage shall
be limited to all or a part of the same property, shares of stock or
Debt that secured the Mortgage extended, renewed or replaced (plus
improvements on such property) and (ii) the Debt secured by such
Mortgage at such time is not increased.
SECTION 3.5 Limitation on Sales and Leasebacks. The Guarantor will not
itself, and it will not permit any Subsidiary to, enter into any arrangement
with any bank, insurance company or other lender or investor (not including the
Guarantor or any Subsidiary) or to which any such lender or investor is a party,
providing for the leasing by the Guarantor or any such Subsidiary for a period,
including renewals, in excess of three years, of any property, whether owned by
the Guarantor or such Subsidiary as of the date of this Indenture or thereafter
acquired which has been or is to be sold or transferred more than 270 days after
the acquisition thereof or after the completion of construction and commencement
of full operation thereof, by the Guarantor or any such Subsidiary to such
lender or investor or to any person to whom funds have been or are to be
advanced by such lender or investor on the security of such property (herein
referred to as a "sale and leaseback transaction") unless either:
(a) the Guarantor or such Subsidiary could create Debt secured
by a Mortgage on the property to be leased back in an amount equal to
the Attributable Debt with respect to such sale and leaseback
transaction without equally and ratably securing the Securities of all
series pursuant to Section 3.4, or
(b) the Guarantor within 180 days after the sale or transfer
shall have been made by the Guarantor or by any such Subsidiary, applies
an amount equal to the greater of (i) the net proceeds of the sale of
the property sold and leased back pursuant to such arrangement or (ii)
the fair market value of the property so sold and leased back at the
time of entering into such arrangement (as determined by any two of the
following: the president, any executive vice president or the secretary
of the Guarantor) to (x) the purchase of property, facilities or
equipment (other than the property, facilities or equipment involved in
such sale) having a value at least equal to the net proceeds of such
sale or (y) the retirement of Funded Debt of the Guarantor or any
Subsidiary; provided, that the amount required to be applied to the
retirement of Funded Debt of the Guarantor or any Subsidiary shall be
reduced by (i) the principal amount of any Securities of any series (or,
if the Securities of any series are Original Issue Discount Securities,
such portion of the principal amount as may be due and payable with
respect to Securities of such series pursuant to a declaration in
accordance with Section 4.1 or, if the Securities of any series provide
that an amount other than the face thereof will or may be payable upon
the maturity thereof or a declaration of acceleration of the maturity
thereof, such amount as may be due and payable with respect to
Securities of such series pursuant to a declaration in accordance with
Section 4.1) delivered within 180 days after such sale or transfer to
the Trustee for retirement and cancellation, and (ii) the principal
amount of Funded Debt, other than the Securities of any series,
voluntarily retired by the Guarantor or any Subsidiary within 180 days
after such sale or transfer. Notwithstanding the foregoing, no
retirement referred to in clause (b) of the preceding sentence may be
effected by payment at maturity or pursuant to any mandatory sinking
fund payment or any mandatory prepayment provision.
SECTION 3.6 Notice of Default. The Issuer and the Guarantor shall file
with the Trustee written notice of the occurrence of any default or Event of
Default within five Business Days of any officer of the Issuer or the Guarantor
becoming aware of any such default or Event of Default.
SECTION 3.7 Calculation of Original Issue Discount. The Issuer shall
file with the Trustee promptly at the end of each calendar year a written notice
specifying the amount of original issue discount (including daily rates and
accrual periods) accrued on Outstanding Securities as of the end of such year
and such other specific information relating to such original issue discount as
may then be required under the Internal Revenue Code of 1986, as amended from
time to time.
SECTION 3.8 Reports. Each of the Issuer and the Guarantor shall comply
with the provisions of ss. 314(a) of the Trust Indenture Act of 1939. The
Guarantor shall file with the Trustee within 45 days after it files them with
the Commission and in any event no later than 180 days after the end of the
respective fiscal quarter, copies of its annual report and of the information,
documents and other reports (or copies of such portions of any of the foregoing
as the Commission may by rules and regulations prescribe) which the Guarantor is
required to file with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act.
SECTION 3.9 Compliance Certificates. (a) On or before April 15 in each
year (commencing with the first April 15 which is not less than 60 days
following the first date of issuance of Securities of any series under this
Indenture), each of the Issuer and the Guarantor will file with the Trustee a
brief certificate, signed by its principal executive officer, principal
financial officer or principal accounting officer, stating whether or not the
signer has knowledge of any default by the Issuer or the Guarantor,
respectively, in the performance or fulfillment of any covenant, agreement, or
condition contained in this Indenture, and, if so, specifying each such default
of which the signer has knowledge, the nature thereof, and what action, if any,
has been taken and is proposed to be taken to cure such default. For purposes of
this paragraph, such compliance shall be determined without regard to any period
of grace or requirement of notice provided under this Indenture.
(b) The Issuer and the Guarantor also shall comply with the other
provisions of ss. 314(a) of the Trust Indenture Act of 1939.
ARTICLE FOUR
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 4.1 Events of Default. "Event of Default" with respect to
Securities of a particular series wherever used herein, means any one of the
following events and such other events as may be established with respect to the
Securities of such series as contemplated by Section 2.6, continued for the
period of time, if any, and after the giving of notice, if any, designated in
this Indenture or as may be established with respect to such Securities as
contemplated by Section 2.6, as the case may be, unless such event is either
inapplicable or is specifically deleted or modified in, or pursuant to, the
applicable Resolution or in the supplemental indenture under which such series
of Securities is issued, as the case may be, as contemplated by Section 2.6:
(a) default in the payment of any installment of interest on the
Securities of such series or any Additional Amounts under the Guaranty
relating to the Securities of such series as and when the same shall
become due and payable, and continuance of such default for a period of
30 days; or
(b) default in the payment of the principal of (and 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 payment of any sinking fund installment as
and when the same shall become due and payable by the terms of the
Securities of such series; or
(d) failure on the part of the Issuer or the Guarantor duly to
observe or perform any other of the covenants or agreements on the part
of the Issuer or the Guarantor, as the case may be, in respect of the
Securities of such series contained in this Indenture (other than a
covenant or agreement in respect of the Securities of such series a
default in the performance of which or a breach of which is elsewhere in
this Section specifically addressed), and continuance of such default or
breach for a period of 90 days after there has been given, by registered
or certified mail, to the Issuer and the Guarantor, by the Trustee, or
to the Issuer, the Guarantor and the Trustee by the Holders of at least
25% in principal amount of the Outstanding Securities of such series, a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default"
hereunder; or
(e) the Issuer or the Guarantor or any Subsidiary of either
default in the payment of the principal of, or interest on, any note,
bond, coupon or other instrument evidencing indebtedness for money
borrowed in an aggregate principal amount of U.S.$100,000,000 or more,
other than the Securities of such series, issued, assumed or guaranteed
by it, when and as the same shall become due and payable, if such
default shall continue for more than the period of grace, if any,
originally applicable thereto and the time for payment of such amount
has not been effectively extended, or default in the observance of
any other terms and conditions relating to any such indebtedness for
money borrowed, if the effect of such default is to cause such
indebtedness to become due prior to its stated maturity; or
(f) the Issuer pursuant to or within the meaning of any
Bankruptcy Law:
(i) commences a voluntary case; or
(ii) consents to the entry of an order for relief
against it in an involuntary case; or
(iii) consents to the appointment of a Custodian of it
or for any substantial part of its property; or
(iv) makes a general assignment for the benefit of its
creditors; or
(v) ceases or suspends generally payments of its debts
or announces an intention so to do or is (or is deemed for the
purposes of any law applicable to it to be) unable to pay its
debts as they fall due, or makes a general assignment for the
benefit of or a composition with its creditors generally or a
moratorium is declared in respect of any of its indebtedness; or
(g) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(i) is for relief against the Issuer in an involuntary
case; or
(ii) appoints a Custodian of the Issuer or for any
substantial part of its property; or
(iii) orders the winding up or liquidation of the
Issuer; or
(iv) orders any execution of distress in respect of any
material liability to be levied against the Issuer or an
encumbrancer takes possession of the whole or any material part
of, the property, undertaking, or assets of the Issuer,
and the order or decree remains unstayed and in effect for 60
days; or
(h) there shall have occurred the dissolution and liquidation
(ontbinding en vereffening) of the Guarantor or any order is made or
resolution, law or regulation passed or other action taken (including
the making of any application to any court or other relevant authority)
for or with a view to the dissolution and liquidation of the Guarantor
or the Guarantor shall otherwise enter into liquidation; or
(i) the Guarantor petitions or applies to any court, tribunal or
other body or authority for the appointment of, or there shall otherwise
be appointed, any administrator, bewindvoerder, receiver, liquidator,
curator, sequestrator, trustee or other similar officer of the Guarantor
or of all or any part of the assets of the Guarantor; or
(j) the Guarantor applies for a moratorium or suspension of
payments (surseance van betaling) or for an arrangement with its
creditors or for any proceedings or arrangement by which the assets of
the Guarantor are submitted to the control of its creditors or the
Guarantor otherwise threatens, proposes or declares any moratorium on
its debts or any class of its debts; or
(k) the Guarantor becomes, or is declared by any competent
authority to be, bankrupt (failliet) or admits in writing its inability
to pay its debts as they fall due or is or becomes subject to or applies
for protection in any bankruptcy proceedings (faillissement); or
(l) the Guaranty ceases to be in full force and effect (except as
contemplated by the terms thereof) or the Guarantor denies or disaffirms
its obligations under the Guaranty.
If an Event of Default with respect to any series of Securities at the
time 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 Outstanding Securities of such
series, by notice in writing to the Issuer and the Guarantor (and to the Trustee
if given by Securityholders), may declare the entire principal amount (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 or if
so provided pursuant to Section 2.6 for Securities of any series, such other
amount as is specified pursuant thereto) of all of the 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.
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 or if so provided pursuant to Section 2.6 for Securities of any
series, such other amount as is specified pursuant thereto) of the Securities of
any series 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,
(a) the Issuer or the Guarantor shall pay or shall deposit with
the Trustee a sum sufficient to pay all matured installments of
interest, if any, upon all the Securities of such series and the
principal of any and all Securities of such series which shall have
become due otherwise than by such declaration of acceleration (with
interest upon such principal and, to the extent that payment of such
interest is enforceable under applicable law, on overdue installments of
interest, if any, at the Overdue Rate applicable to such series to the
date of such payment or deposit), and all amounts payable to the Trustee
pursuant to Section 5.5, and
(b) any and all Events of Default under the Indenture with
respect to such series of Securities other than the non-payment of the
principal of such Securities which shall have become due by such
declaration of acceleration, shall have been cured, waived or otherwise
remedied as provided herein or provision shall have been made therefor
to the satisfaction of the Trustee,
then and in every such case the Holders of not less than a majority in aggregate
principal amount of the Securities of such series then Outstanding, by written
notice to the Issuer, the Guarantor and the Trustee, may rescind and annul such
declaration and its consequences with respect to such series, but no such
rescission and annulment shall extend to or shall affect any subsequent default
or shall impair any right consequent thereon.
For all purposes under this Indenture, if a portion of the principal
of any Original Issue Discount Securities shall have been accelerated and
declared due and payable pursuant to the provisions hereof, then, from and after
such declaration, unless such declaration has been rescinded and annulled, the
principal amount of such Original Issue Discount Securities shall be deemed, for
all purposes hereunder, to be such portion of the principal thereof as shall be
due and payable as a result of such acceleration, and payment of such portion of
the principal thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all other amounts
owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities. If the Securities of any series provide the amount other
than the face amount thereof will be payable upon the maturity thereof or a
declaration of acceleration of the maturity thereof, for purposes of this
Section 4.1 the principal amount of such Securities shall be deemed to be such
amount as shall be due and payable upon the acceleration of the maturity
thereof, except as may otherwise be provided with respect to such Securities
pursuant to Section 2.6.
SECTION 4.2 Payment of Securities on Default; Suit Therefor. The
Issuer covenants that (a) in case a default shall be made in the payment of any
installment of interest on any of the Securities of any series as and 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 a default shall be made in the
payment of the principal of any of the Securities of any series as and when the
same shall have become due and payable, whether upon maturity of the Securities
of such series or upon redemption or by declaration or otherwise, or (c) in case
of a 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, the Issuer will pay to the
Trustee for the benefit of the Holders of the Securities of such series the
whole amount then due and payable on all Securities of such series for principal
and interest, if any, as the case may be (with interest to the date of such
payment upon the overdue principal and, to the extent that payment of such
interest is enforceable under applicable law, on overdue installments of
interest, if any, at the Overdue Rate applicable to Securities of such series);
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 Section 5.5.
Until such demand is made by the Trustee, the Issuer may pay the
principal of and interest, if any, on the Securities of any series to the
registered Holders, whether or not the principal of and interest, if any, on the
Securities of such series be overdue.
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 and collect in the manner provided by law out of the property of the
Issuer or other obligor upon such Securities, wherever situated, the moneys
adjudged or decreed to be payable.
In case there shall be pending proceedings for the liquidation, for
the bankruptcy or for the reorganization of the Issuer, the Guarantor or any
other obligor upon the Securities of any series under applicable law, or in case
an administrator, bewindvoerder, Custodian, curator, sequestrator, trustee or
other similar officer shall have been appointed for or taken possession of the
Issuer or the Guarantor or of all or any part of the assets of the Issuer, the
Guarantor or any such obligor, or in case of any other similar judicial
proceedings relative to the Issuer, the Guarantor or other obligor upon the
Securities of any series, or to the creditors or property of the Issuer, the
Guarantor or such other obligor, the Trustee, irrespective of whether the
principal of any Securities shall then be due and payable as therein expressed
or by declaration or otherwise and irrespective of whether the Trustee shall
have made any demand pursuant to the provisions of this Section, shall be
entitled and empowered, by intervention in such proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount of
principal (or, if the Securities of any series are Original Issue
Discount Securities or if the Securities of any series provide that an
amount other than the face thereof will or may be payable upon maturity
thereof or upon a declaration of acceleration thereof, such amount as
may be due and payable with respect to such series pursuant to a
declaration in accordance with Section 4.1) and interest, if any, owing
and unpaid in respect of the Securities of any series, and, in case of
any judicial proceedings, to file such proofs of claim and other papers
or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for any amounts payable to
the Trustee pursuant to Section 5.5) and of the Securityholders allowed
in any judicial proceedings relating to the Issuer, the Guarantor or
other obligor upon the Securities of any series, or to the creditors or
property of the Issuer, the Guarantor or such other obligor,
(b) unless prohibited by applicable law and regulations, to vote
on behalf of the Holders of the Securities of any series in any election
of a trustee or a standby trustee in arrangement, reorganization,
liquidation or other bankruptcy or insolvency proceedings or of a person
performing similar functions in comparable proceedings, and
(c) to collect and receive any moneys or other property payable
or deliverable on any such claims, and to distribute all amounts
received with respect to the claims of the Securityholders and of the
Trustee on their behalf (after deduction of costs and expenses of
collection, and any further amounts payable to the Trustee pursuant to
Section 5.5 and incurred by it up to the date of distribution); and any
administrator, bewindvoerder, Custodian, curator, sequestrator, trustee
or other similar officer is hereby authorized by each of the
Securityholders to make payments to the Trustee, and, in the event that
the Trustee shall consent to the making of payments directly to the
Securityholders, to pay to the Trustee costs and expenses of collection,
and any further amounts payable to the Trustee pursuant to Section 5.5
and incurred by it up to the date of distribution.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or vote for or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities of any series or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar person.
All rights of action and of asserting claims under this Indenture, or
under the Securities of any series, may be enforced by the Trustee without the
possession of any of the Securities of such series 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, shall be for the
ratable benefit of the Holders of the Securities in respect of which such action
was taken.
In any proceedings brought by the Trustee (and also any proceedings in
which a declaratory judgment of a court may be sought as to the interpretation
or construction of any provision of this Indenture to which the Trustee shall be
a party) the Trustee shall be held to represent all the Holders of the
Securities to which such proceedings relate, and it shall not be necessary to
make any Holders of such Securities parties to any such proceedings.
SECTION 4.3 Application of Moneys Collected by Trustee. Any moneys
collected by the Trustee pursuant to this Article shall be applied in the
following order at the date or dates fixed by the Trustee and, in the case of
distribution of such moneys on account of principal or interest, upon
presentation of the several Securities in respect of which moneys have been
collected and stamping (or otherwise noting) thereon the payment, or issuing
Securities in reduced principal amounts in exchange for the presented Securities
of like series (or, in the case of Securities of a series issued in more than
one tranche, of the same tranche) and tenor if only partially paid, or upon
surrender thereof if fully paid:
FIRST: To the payment of amounts due to the Trustee pursuant to
Section 5.5;
SECOND: In case the principal of the Outstanding Securities in
respect of which moneys have been collected shall not have become and be
then due and payable, to the payment of interest, if any, on the
Securities 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 and to the extent permitted by applicable
law) upon the overdue installments of interest at the Overdue Rate
applicable to such Securities, such payments to be made ratably to the
persons entitled thereto, without discrimination or preference;
THIRD: In case the principal of the Outstanding Securities in
respect of which moneys have been collected shall have become and shall
be then due and payable by declaration or otherwise, to the payment of
the whole amount then owing and unpaid upon such Securities for
principal and interest, if any, with interest upon the overdue
principal, and (to the extent that such interest has been collected by
the Trustee and to the extent permitted by applicable law) upon overdue
installments of interest, if any, at the Overdue Rate applicable to such
Securities; and in case such moneys shall be insufficient to pay in full
the whole amount so due and unpaid upon such Securities, then to the
payment of such principal and interest, if any, without preference or
priority of principal over interest, if any, or of interest, if any,
over principal, or of any installment of interest, if any, over any
other installment of interest, if any, or of any Security over any other
Security, ratably to the aggregate of such principal and accrued and
unpaid interest, if any; and
FOURTH: To the payment of the remainder, if any, to the Issuer
or, to the extent that such moneys were provided by the Guarantor, to
the Guarantor, their respective successors and assigns.
SECTION 4.4 Proceedings by Trustee. In case an Event of Default
hereunder has occurred, has not been waived and is continuing, the Trustee may
in its discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or 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 4.5 Restoration of Rights on Abandonment of Proceedings. In
case the Trustee or any Securityholder shall have proceeded to enforce any right
under this Indenture and such proceedings shall have been discontinued or
abandoned for any reason, or shall have been determined adversely to the Trustee
or to such Securityholder, then and in every such case the Issuer, the
Guarantor, the Securityholder and the Trustee shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions and rights hereunder, and all rights, remedies and powers
of the Issuer, the Guarantor, the Trustee and the Securityholders shall continue
as though no such proceedings had been taken.
SECTION 4.6 Proceedings by Securityholders. No Holder of any Security
of any series 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, moratorium of payments, liquidation or otherwise upon or under or
with respect to this Indenture, or for the appointment of an administrator,
bewindvoerder, Custodian, curator, sequestrator, or other similar officer or for
any other remedy hereunder, unless such Holder previously shall have given to
the Trustee written notice of default with respect to Securities of 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 to
institute such action, suit or proceedings in its own name as Trustee hereunder
and shall have offered to the Trustee such reasonable indemnity as it may
require against the 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 neglected or refused to institute any such
action, suit or proceeding and no direction inconsistent with such written
request shall have been given to the Trustee pursuant to Section 4.8 during such
60 day period; it being understood and intended, and being expressly covenanted
by the taker and Holder of every Security with every other taker and Holder and
the Trustee, that no one or more Holders of any Securities shall have any right
in any manner whatever by virtue or by availing of any provision of this
Indenture to affect, disturb or prejudice the rights of any other Holder of
Securities, or to obtain or seek to obtain priority over or preference to any
other 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 the applicable series. For the protection and enforcement of the
provisions of this Section, each and every Securityholder and the Trustee shall
be entitled to such relief as can be given either at law or in equity.
SECTION 4.7 Remedies Cumulative and Continuing. Except as provided in
Section 4.6, no right or remedy herein conferred upon or reserved to the Trustee
or to the Securityholders 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 Securityholder 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 4.6, every power and remedy given by this
Indenture or by law to the Trustee or to the Securityholders of any or all
series, as the case may be, may be exercised from time to time, and as often as
shall be deemed expedient, by the Trustee or by the Securityholders of such
series or all series, as the case may be.
SECTION 4.8 Control by Securityholders. The Holders of not less than a
majority in aggregate principal amount of the Securities of each series affected
at the time Outstanding (with each such series voting separately as a class)
shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred on the Trustee by this Indenture with respect to Securities of
such series. Notwithstanding any of the foregoing, no such direction shall be
otherwise than in accordance with law and the provisions of this Indenture and
(subject to the requirements of the Trust Indenture Act of 1939) 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 would be prejudicial to the Holders of
such Securities not taking part in such direction, or the Holders of the
Securities of any other series, 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.
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 4.9 Waiver of Past Defaults. Prior to the declaration of the
acceleration of the maturity of the Securities of any particular series the
Holders of not less than a majority in aggregate principal amount of the
Securities of such particular series at the time Outstanding may on behalf of
the Holders of all the Securities of such particular series waive any past
default or Event of Default with respect to such particular series 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
Outstanding Security affected as provided in Section 7.2. In the case of any
such waiver, the Issuer, the Guarantor, the Trustee and the Holders of the
Securities of each series affected shall be restored to their former positions
and rights hereunder, respectively; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
Upon any such waiver, such default shall cease to exist and be deemed
to have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured, and not to have occurred for every
purpose of this Indenture.
ARTICLE FIVE
CONCERNING THE TRUSTEE
SECTION 5.1 Reliance on Documents, Opinions, etc.; No Requirement for
Expenditure of Own Funds. Subject to the provisions of the Trust Indenture Act
of 1939:
(a) prior to the occurrence of an Event of Default hereunder and
after the curing or waiving of all Events of Default, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, in the absence of bad faith on the
part of the Trustee, upon certificates, notices or opinions conforming
to the requirements of this Indenture; but in the case of any such
certificates, notices 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 (but need not confirm or
investigate the accuracy of mathematical calculations or other facts
stated therein);
(b) any request, direction, order or demand of the Issuer and
the Guarantor mentioned herein shall be sufficiently evidenced by an
Officers' Certificate (unless other evidence in respect thereof be
herein specifically prescribed); and any Resolution may be evidenced to
the Trustee by a copy thereof certified by the secretary of the Issuer
or the Guarantor, as applicable;
(c) the Trustee may consult with counsel and any advice of such
counsel 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 shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request,
order or direction of any of the Securityholders pursuant to the
provisions of this Indenture, unless such Securityholders shall have
offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred therein or
thereby;
(e) 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, bond, direction, note 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 any
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; and the reasonable expenses of every such
investigation shall be paid by the Issuer or the Guarantor or, if paid
by the Trustee, shall be repaid by the Issuer or the Guarantor upon
demand;
(f) 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; and
(g) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper party or parties.
None of the provisions contained in this Indenture shall be construed
as requiring the Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers if there shall be reasonable grounds for
believing that the repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the requirements of the Trust Indenture Act of 1939.
SECTION 5.2 No Responsibility for Recitals, etc. The recitals
contained herein and in the Securities, except the Trustee's certificates of
authentication, shall be taken as the statements of the Issuer, and the 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, provided that the Trustee shall not be relieved of its duty to
authenticate Securities only as authorized by this Indenture. 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 5.3 Trustee and Agents May Hold Securities. The Trustee or any
agent of the Issuer, the Guarantor or the Trustee, in its individual or any
other capacity, may become the owner or pledgee of Securities with the same
rights it would have if it were not the Trustee or such agent and, subject to
the requirements of the Trust Indenture Act of 1939, may otherwise deal with the
Issuer and receive, collect, hold and retain collections from the Issuer with
the same rights it would have if it were not the Trustee or such agent.
SECTION 5.4 Moneys to Be Held in Trust. Subject to the provisions of
Sections 9.3 and 9.4, all moneys received by the Trustee or any paying agent,
all money and U.S. Government Obligations deposited with the Trustee pursuant to
Section 9.8 and all money received by the Trustee in respect of U.S. Government
Obligations deposited with the Trustee pursuant to Section 9.8, 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. Neither the Trustee nor any
paying agent shall be under any liability for interest on any moneys received by
it hereunder, except such as it may agree in writing with the Issuer to pay
thereon. So long as no Event of Default shall have occurred and be continuing,
all interest allowed on any such moneys shall be paid from time to time upon the
written order of the Issuer signed by one of its officers, who is one of the
officers who may sign an Officers' Certificate.
SECTION 5.5 Compensation and Expenses of Trustee. The Issuer and the
Guarantor covenant and agree to pay to the Trustee from time to time, and the
Trustee shall be entitled to, such compensation as shall be agreed to from time
to time in writing by the Issuer and the Guarantor and the Trustee (which shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust) and, except as otherwise expressly provided, the
Issuer or the Guarantor will pay or reimburse the Trustee upon its request for
all reasonable expenses, disbursements and advances incurred or made by or on
behalf of it in accordance with any of the provisions of this Indenture
(including the reasonable compensation and the expenses and disbursements of its
counsel and of all persons not regularly in its employ) except any such expense,
disbursement or advance as may arise from its negligence or bad faith. The
Issuer and the Guarantor also covenant to indemnify the Trustee for, and to hold
it harmless against, any and all loss, liability, damage, claim or expense,
including taxes (other than taxes based on the income, gains, wealth or similar
criteria of the Trustee) incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration of this
Indenture or the trusts hereunder and its duties hereunder, including the costs
and expenses of defending itself against any claim of liability in the premises.
The obligations of the Issuer and the Guarantor under this Section to compensate
and indemnify the Trustee and to pay or reimburse the 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 secured by a lien 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.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 4.1(f), (g), (h), (i), (j) or (k)
the expenses (including the reasonable fees and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable bankruptcy, insolvency, reorganization or
other similar laws.
SECTION 5.6 Right of Trustee to Rely on Officers' Certificate, etc.
Subject to the requirements of the Trust Indenture Act of 1939, 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 to be taken 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 5.7 Eligibility of Trustee. The Trustee for each series of
Securities hereunder shall at all times be a corporation which complies with the
requirements of the Trust Indenture Act of 1939, having a combined capital and
surplus of at least U.S.$50,000,000. 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, the combined capital and surplus of such corporation at any time shall
be deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time the Trustee shall cease to
be eligible in accordance with the provisions of this Section, the Trustee shall
resign immediately in the manner and with the effect specified in Section 5.8.
SECTION 5.8 Resignation or Removal of Trustee; Appointment of
Successor Trustee. (a) The Trustee, or any trustee or trustees hereafter
appointed, may at any time resign with respect to one or more or all series of
Securities by giving written notice of resignation to the Issuer and the
Guarantor. 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 requirements of the Trust
Indenture Act of 1939, on behalf of himself and all others similarly situated,
petition any such court for the appointment of a successor trustee. Such court
may thereupon, after such notice, if any, as it may deem proper and prescribe,
appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall cease to be eligible in accordance with the
provisions of Section 5.7 with respect to any series of Securities and
shall fail to resign after written request therefor by the Issuer or the
Guarantor or by any Securityholder; or
(ii) the Trustee shall become incapable of acting with respect to
any series of Securities, or shall be adjudged a bankrupt or insolvent,
or a receiver or liquidator of the Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation;
then, in any such case, the Issuer by Resolution may remove the Trustee with
respect to the applicable series of Securities (or all series, if required) and
appoint a successor trustee for such series by written instrument, in duplicate,
executed by authority 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 requirements of the Trust Indenture Act of 1939, 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 with
respect to such series.
(c) The Holders of a majority in aggregate principal amount of the
Securities of any series at the time Outstanding may at any time remove the
Trustee with respect to Securities of such series and appoint a successor
trustee with respect to the Securities of such series by delivering to the
Trustee so removed, to the successor trustee so appointed and to the Issuer and
the Guarantor the evidence provided for in Section 6.1 of the action in that
regard taken by the Securityholders.
(d) Any resignation or removal of the Trustee with respect to any
series and any appointment of a successor trustee with respect to such series
pursuant to any of the provisions of this Section 5.8 shall become effective
upon acceptance of appointment by the successor trustee as provided in Section
5.9.
SECTION 5.9 Acceptance of Appointment by Successor Trustee. Any
successor trustee appointed as provided in Section 5.8 shall execute,
acknowledge and deliver to the Issuer, the Guarantor and its predecessor Trustee
an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor Trustee with respect to all or any
applicable series shall become effective and such successor trustee, without any
further act, deed or conveyance, shall become vested with all rights, powers,
duties and obligations 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, the Guarantor or the
successor trustee, upon payment (or due provision therefor) of any amounts then
due it pursuant to Section 5.5, the predecessor Trustee ceasing to act shall,
subject to Section 9.4, 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 lien upon all property or funds held or collected
by such trustee to secure any amounts then due it pursuant to the provisions of
Section 5.5.
If a successor trustee is appointed with respect to the Securities of
one or more (but not all) series, the Issuer, the Guarantor, the predecessor
Trustee and each successor trustee with respect to the Securities of 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 co-trustees of the
same trust and that each such trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such trustee.
No successor trustee with respect to any series of Securities shall
accept appointment as provided in this Section 5.9 unless at the time of such
acceptance such successor trustee shall, with respect to such series, be
qualified under the provisions of the Trust Indenture Act of 1939 and eligible
under the provisions of Section 5.7.
Upon acceptance of appointment by any successor trustee as provided in
this Section 5.9, the Issuer shall mail notice thereof to the Holders of
Securities of any series for which such successor trustee is acting as trustee
at their last addresses as they shall appear in the Register. If the Issuer
fails to mail such notice within ten days after acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to be mailed at
the Issuer's expense.
SECTION 5.10 Merger, Conversion, Consolidation or Succession to
Business of Trustee. Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided, that such
corporation shall be qualified under the provisions of the Trust Indenture Act
of 1939 and eligible under the provisions of Section 5.7, without the execution
or filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities of any series shall have
been authenticated but not delivered, any such successor to the Trustee by
merger, conversion or consolidation 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 such successor to the Trustee or, if such successor to the
Trustee is a successor by merger, conversion or consolidation, in the name of
any predecessor hereunder; and in all such cases such certificate shall have the
full force which the certificate of the Trustee shall have as provided anywhere
in the Securities of such series or in this Indenture.
SECTION 5.11 Reports by Trustee to Securityholders. Within 60 days
after March 15 in each year, beginning with the March 15 following the date of
this Indenture, the Trustee shall mail to the Securityholders a brief report
dated as of such reporting date in compliance with ss. 313(a) of the Trust
Indenture Act of 1939. The Trustee also shall comply with ss. 313(b) of the
Trust Indenture Act of 1939. The Trustee shall also transmit by mail all reports
as required by ss. 313(c) of the Trust Indenture Act of 1939. The Issuer shall
promptly notify the Trustee when the Securities are listed on any stock
exchange.
ARTICLE SIX
CONCERNING THE SECURITYHOLDERS
SECTION 6.1 Action by Securityholders. Whenever in this Indenture it
is provided that the Holders of a specified percentage in aggregate principal
amount of the Securities of any or all 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 such Securityholders in person or by agent or proxy appointed in
writing, or (b) by the record of such Holders of Securities voting in favor
thereof at any meeting of such Securityholders duly called and held in
accordance with the provisions of this Article, or (c) by a combination of such
instrument or instruments and any such record of such a meeting of such
Securityholders; and, except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments and/or such record
are delivered to the Trustee. Proof of execution of any instrument or of a
writing appointing any such agent or proxy shall be sufficient for any purpose
of this Indenture and (subject to the requirements of the Trust Indenture Act of
1939 and Section 5.1) conclusive in favor of the Trustee, the Issuer and the
Guarantor, if made in the manner provided in this Article.
In determining whether the Holders of the requisite principal amount
of Outstanding Securities of any or all series have taken 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) hereunder and in determining voting
rights of any Holder of a Security hereunder (i) the principal amount of
Original Issue Discount Securities 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 4.1, (ii) in the case of Securities
which provide that an amount other than the face amount thereof will or may be
payable upon the maturity thereof or upon a declaration of acceleration of the
maturity thereof, the principal amount of such Securities that shall be deemed
to be Outstanding for such purposes shall be the amount that would be due and
payable in respect of such Securities as of the date of such determination upon
a declaration of acceleration of the maturity thereof pursuant to Section 4.1,
and (iii) the principal amount of any Security, the principal amount of which is
denominated in a currency other than U.S. dollars or in units of currencies or
in a composite currency (the "Specified Currency") shall be deemed to be that
amount of U.S. dollars which could have been obtained by the face amount of such
Specified Currency at the Market Exchange Rate. For purposes of this Section
6.1, "Market Exchange Rate" means, unless otherwise specified for a Specified
Currency with respect to any series of the Notes pursuant to Section 2.6, the
noon U.S. dollar buying rate in New York City for cable transfers of the
Specified Currency published by the Federal Reserve Bank of New York.
All decisions and determinations of the Trustee regarding the Market
Exchange Rate or any alternative determination provided for in the preceding
paragraph shall be in its sole discretion and shall, in the absence of manifest
error, be conclusive to the extent permitted by law for all purposes and
irrevocably binding upon the Issuer, the Guarantor and all Securityholders.
If the Issuer shall solicit from the Securityholders any demand,
request, notice, consent, waiver or the taking of any other action (other than
in accordance with the Securityholders voting provisions set forth in Sections
6.6 through 6.14 of this Article), the Issuer may, at its option, by a
Resolution, fix in advance a record date for the determination of Holders
entitled to give such demand, request, notice, consent or waiver or to take such
other action, but the Issuer shall have no obligation to do so. If such a record
date is fixed, such demand, request, notice, consent, waiver or such other
action may be given before or after the record date, but only the
Securityholders of record at the close of business on the record date shall be
deemed to be Holders for the purposes of determining whether Holders of the
requisite percentage of Securities Outstanding have authorized or agreed or
consented to such demand, request, notice, consent, waiver or taking of any
other action, and for that purpose the Securities Outstanding shall be computed
as of the record date; provided, that no such demand, request, notice, consent,
waiver or taking of any other action by the Holders on the record date shall be
deemed effective unless it shall become effective pursuant to the provisions of
this Indenture not later than six months after the record date.
SECTION 6.2 Proof of Execution by Securityholders. Subject to the
requirements of the Trust Indenture Act of 1939 and Sections 5.1 and 6.11, proof
of the execution of any instrument by a Securityholder or his agent or proxy
shall be sufficient if made in accordance with such reasonable rules and
regulations as is necessary or as may be prescribed by the Trustee or in such
manner as shall be satisfactory to the Trustee. The ownership of Securities
shall be proved by the Register or by a certificate of the person designated by
the Issuer to keep the Register and to act as repository in accordance with the
provisions of Section 2.12.
The record of any Securityholders' meeting shall be proved in the
manner provided in Section 6.12.
SECTION 6.3 Holders to Be Treated as Owners. The Issuer, the
Guarantor, the Trustee and any agent of the Issuer, the Guarantor or the Trustee
may deem and treat the person in whose name any Security shall be registered in
the Register for such series as the absolute owner of such Security (whether or
not such Security shall be overdue and notwithstanding any notation of ownership
or other writing thereon) for the purpose of receiving payment of or on account
of the principal of and, subject to the provisions of this Indenture, interest,
if any, on such Security and for all other purposes; and none of the Issuer, the
Guarantor, the Trustee or any agent of the Issuer, the Guarantor, or the Trustee
shall be affected by any notice to the contrary. All such payments so made to
any such person, or upon his order, shall be valid, and, to the extent of the
sum or sums so paid, effectual to satisfy and discharge the liability for moneys
payable upon any such Security.
SECTION 6.4 Securities Owned by Issuer Deemed Not Outstanding. In
determining whether the Holders of the requisite aggregate principal amount of
Outstanding Securities of any or all series have concurred in any demand,
request, notice, direction, consent or waiver under this Indenture, Securities
which are owned by the Issuer, the Guarantor or any other obligor on the
Securities with respect to which such determination is being made or by any
person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Issuer, the Guarantor or any other obligor on
the Securities with respect to which such determination is being made shall be
disregarded and deemed not to be Outstanding for the purpose of any such
determination, except that for the purpose of determining whether the Trustee
shall be protected in relying on any such demand, request, notice, direction,
consent or waiver only Securities which the Trustee actually knows are so owned
shall be so disregarded. Securities so owned which have been pledged in good
faith may be regarded as Outstanding for purposes of this Section 6.4 if the
pledgee establishes to the satisfaction of the Trustee the pledgee's right so to
act with respect to such Securities and that the pledgee is not the Issuer, the
Guarantor or any other obligor upon the Securities or any person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Issuer 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 the requirements of the Trust Indenture
Act of 1939 and Section 5.1, the Trustee shall, in the absence of manifest
error, 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 6.5 Right of Revocation of Action Taken. At any time prior to
(but not after) the evidencing to the Trustee, as provided in Section 6.1, of
the taking of any action by the Holders of the percentage in aggregate principal
amount of the Securities of any or all series, as the case may be, specified in
this Indenture in connection with such action, any Holder of a Security the
serial number or other distinguishing symbol of which is shown by the evidence
to be included among the serial numbers or other distinguishing symbols of the
Securities the Holders of which have consented to such action may, by filing
written notice at the Corporate Trust Office and upon proof of holding as
provided in this Article, revoke such action so far as concerns such Security.
Except as aforesaid any such action taken by the Holder of any Security shall be
conclusive and binding upon such Holder and upon all future Holders and owners
of such Security and of any Securities issued in exchange or substitution
therefor, irrespective of whether or not any notation in regard thereto is made
upon any such Security. Any action taken by the Holders of the percentage in
aggregate principal amount of the Securities of any or all series, as the case
may be, specified in this Indenture in connection with such action shall be
conclusively binding upon the Issuer, the Guarantor, the Trustee and the Holders
of all the Securities affected by such action.
SECTION 6.6 Securityholders' Meetings; Purposes. A meeting of Holders
of Securities of any series or all series, as the case may be, may be called at
any time and from time to time pursuant to the provisions of this Article Six
for any of the following purposes:
(1) to give any notice to the Issuer, the Guarantor or to the
Trustee, or to give any directions to the Trustee, or to consent to the
waiving of any default or Event of Default hereunder and its
consequences, or to take any other action authorized to be taken by
Securityholders pursuant to any of the provisions of Article Four;
(2) to remove the Trustee and nominate a successor trustee
pursuant to the provisions of Article Five;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 7.2; 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 series or all series, as the case may be, under any
other provision of this Indenture or under applicable law.
SECTION 6.7 Call of Meetings by Trustee. The Trustee may at any time
call a meeting of Holders of Securities of any series or all series, as the case
may be, to take any action specified in Section 6.6, to be held at such time and
at such place in the Borough of Manhattan, The City of New York, or other
location, as the Trustee shall determine. Notice of every meeting of the Holders
of Securities of any series or all series, as the case may be, 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 mailed to Holders of Outstanding Securities
of each series affected at their addresses as they shall appear in the Register
as of a date not more than 15 days prior to the mailing of such notice. Such
notice shall be mailed not less than 20 nor more than 90 days prior to the date
fixed for the meeting.
Any meeting of the Holders of Securities of any series or all series,
as the case may be, shall be valid without notice if the Holders of all
Securities of any series then Outstanding are present in person or by proxy, or,
if notice is waived before or after the meeting by the Holders of all Securities
of any series outstanding, and if the Issuer, the Guarantor and the Trustee are
either present by duly authorized representatives or have, before or after the
meeting waived notice.
SECTION 6.8 Call of Meetings by Issuer, Guarantor or Securityholders.
In case at any time the Issuer or the Guarantor, pursuant to a Resolution, or
the Holders of at least 10% in aggregate principal amount of the Securities then
Outstanding of any or all series, as the case may be, shall have requested the
Trustee to call a meeting of the Holders of Securities of such series 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 shall not
have mailed the notice of such meeting within 20 days after receipt of such
request, then the Issuer, the Guarantor or such Securityholders, in the amount
specified above, may determine the time and the place in said Borough of
Manhattan for such meeting and may call such meeting to take any action
authorized in Section 6.6, by mailing notice thereof as provided in Section 6.7.
SECTION 6.9 Qualifications for Voting. To be entitled to vote at any
meeting of Securityholders a person shall (a) be a Holder of one or more
Securities with respect to which such meeting is being held or (b) be a person
appointed by an instrument in writing as proxy by a Holder of one or more such
Securities. The only persons who shall be entitled to be present or to speak at
any meeting of Securityholders shall be the persons entitled to vote at such
meeting and their counsel, any representatives of the Trustee and its counsel
and any representatives of the Issuer and the Guarantor and their respective
counsel.
SECTION 6.10 Quorum; Adjourned Meetings. The persons entitled to vote
a majority in aggregate principal amount of the Securities of the relevant
series at the time Outstanding shall constitute a quorum for the transaction of
all business specified in Section 6.6. No business shall be transacted in the
absence of a quorum (determined as provided in this Section 6.10). In the
absence of a quorum within 30 minutes after the time appointed for any such
meeting, the meeting shall, if convened at the request of the Holders of
Securities (as provided in Section 6.8), be dissolved. In any other case the
meeting shall be adjourned for a period of not less than ten days as determined
by the chairman of the meeting. In the absence of a quorum at any such adjourned
meeting, such adjourned meeting shall be further adjourned for a period of not
less than ten days as determined by the chairman of the meeting. Notice of the
reconvening of any adjourned meeting shall be given as provided in Section 6.7,
except that such notice must be mailed not less than five days prior to the date
on which the meeting is scheduled to be reconvened.
Any Holder of a Security who has executed in person or by proxy and
delivered to the Trustee an instrument in writing complying with the provisions
of Section 6.2 shall be deemed to be present for the purposes of determining a
quorum and be deemed to have voted; provided, that such Holder of a Security
shall be considered as present or voting only with respect to the matters
covered by such instrument in writing.
SECTION 6.11 Regulations. Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as is necessary or
as it may deem advisable for any meeting of Securityholders, in regard to proof
of the holding of Securities 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 is necessary or
as it shall determine.
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, the Guarantor, or by Securityholders as provided in Section 6.8, in
which case the Issuer, the Guarantor or the Securityholders 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
the vote of the Holders of a majority of the principal amount of the Outstanding
Securities present at the meeting.
Subject to the provisions of Section 6.4, at any meeting each Holder
of Securities with respect to which such meeting is being held or proxy shall be
entitled to one vote for each U.S.$1,000 (or if any Securities are denominated
in a currency other than U.S. dollars or in units of currencies or in a
composite currency, the equivalent of U.S.$1,000 in the applicable currency,
units of currencies or composite currency calculated using the market Exchange
Rate) principal amount (or in the case of Original Issue Discount Securities or,
in the case of Securities which provide that an amount other than the face
amount thereof will or may be payable upon the maturity thereof or upon a
declaration of acceleration of the maturity thereof, such principal amount to be
determined as provided in the definition of "Outstanding" in Section 1.1) of
such 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 such Securities held by him or instruments in writing as aforesaid
duly designating him as the person to vote on behalf of other such
Securityholders. Any meeting of Holders of Securities with respect to which a
meeting was duly called pursuant to the provisions of Section 6.7 or 6.8 may be
adjourned from time to time by the Holders of a majority of the principal amount
of the Outstanding Securities present, whether or not constituting a quorum, and
the meeting may be held as so adjourned without further notice.
SECTION 6.12 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 of Securities or of their representatives by proxy and the
principal amount (in the case of Original Issue Discount Securities or, in the
case of Securities which provide that an amount other than the face amount
thereof will or may be payable upon the maturity thereof or upon a declaration
of acceleration of the maturity thereof, such principal amount to be determined
as provided in the definition of "Outstanding" in Section 1.1) and number or
numbers or other distinguishing symbol or symbols of such 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 Securityholders 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 6.7. The record shall show the
principal amount of the Securities (in the case of Original Issue Discount
Securities or, in the case of Securities which provide that an amount other than
the face amount thereof will or may be payable upon the maturity thereof or upon
a declaration of acceleration of the maturity thereof, such principal amount to
be determined as provided in the definition of "Outstanding" in Section 1.1)
voting in favor of or against any resolution. The record shall be signed and
verified by the affidavits of the permanent chairman and secretary of the
meeting and one of the duplicates shall be delivered to the Issuer and the other
to the Trustee to be preserved by the Trustee, the latter to have attached
thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
SECTION 6.13 No Delay of Rights by Meeting. Nothing in this Article
Six shall be deemed or construed to authorize or permit, by reason of any call
of a meeting of Securityholders of any or all series 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 Issuer, the
Guarantor, the Trustee or to the Securityholders of any or all such series under
any of the provisions of this Indenture or of the Securities.
SECTION 6.14 Written Consent in Lieu of Meeting. The written
authorization or consent by the Holders of the requisite percentage in aggregate
principal amount of Outstanding Securities of one or more series herein
provided, entitled to vote at any such meeting, evidenced as provided in Section
6.1 and filed with the Trustee, shall be effective in lieu of a meeting of the
Holders of Securities of such series, with respect to any matter provided for in
this Article Six.
ARTICLE SEVEN
SUPPLEMENTAL INDENTURES
SECTION 7.1 Supplemental Indentures Without Consent of
Securityholders. The Issuer and the Guarantor, each when authorized by, or
pursuant to a Resolution, and the Trustee 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 of 1939 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 one or more series any
property or assets;
(b) to evidence the succession of another entity to the Issuer
or the Guarantor, or successive successions, and the assumption by the
successor entity of the covenants, agreements, rights and obligations of
the Issuer or the Guarantor, as the case may be, pursuant to Article
Eight;
(c) to add to the covenants of the Issuer or the Guarantor such
further covenants, restrictions, conditions or provisions as the Issuer
or the Guarantor shall consider to be for the benefit of the Holders of
one or more series of Securities (and if such covenants, restrictions,
conditions or provisions are to be for the benefit of less than all
series of Securities, stating that such covenants, restrictions,
conditions or provisions are expressly being included solely for the
benefit of such series) or to surrender any right or power herein
conferred upon the Issuer or the Guarantor;
(d) to add additional Events of Default and to provide with
respect thereto for any particular periods of grace after default (which
may be shorter or longer than that allowed in the case of other
defaults) or for immediate enforcement upon such default or for any
limitation of the remedies available to the Trustee upon such default;
(e) to provide for the assumption by the Guarantor of the
covenants, agreements, rights and obligations of the Issuer pursuant to
Section 2.15;
(f) to provide for the issuance under this Indenture of
Securities in bearer form (including Securities registrable as to
principal only) with or without interest coupons and to provide for
exchangeability of such Securities with the Securities of the same
series or tranche, as the case may be, issued hereunder in fully
registered form and to make all appropriate changes for such purpose;
(g) to cure any ambiguity or to correct or supplement any
provision contained herein, in the Securities of any series or in the
Guaranty or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any
supplemental indenture; or to change or eliminate any provision or to
make such other provisions in regard to matters or questions arising
under this Indenture or under any supplemental indenture as the Issuer
or the Guarantor may deem necessary or desirable and which shall not
adversely affect the interests of the Holders of the Securities at the
time Outstanding;
(h) to establish the form or terms of Securities of any series
as permitted by Sections 2.1 and 2.5; or
(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 and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one trustee,
pursuant to the requirements of Section 5.9.
Upon the request of the Issuer and the Guarantor, accompanied by
copies of the Resolutions authorizing the execution of any such supplemental
indenture certified by the secretaries of each of the Issuer and the Guarantor,
the Trustee shall join with the Issuer and the Guarantor in the execution of any
such supplemental indenture, to make any further appropriate agreements and
stipulations which may be therein contained and to accept the conveyance,
transfer, assignment, mortgage or pledge of any property thereunder, but the
Trustee shall not be obligated to (but may in its discretion) enter into any
such supplemental indenture which adversely 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 by the Issuer, the Guarantor and the Trustee without the
consent of the Holders of any of the Securities at the time Outstanding,
notwithstanding any of the provisions of Section 7.2.
SECTION 7.2 Supplemental Indentures With Consent of Securityholders.
With the consent (evidenced as provided in Article Six) of the Holders of not
less than a majority in aggregate principal amount of the Securities of all
series affected by such supplemental indenture (all such series voting as a
single class) at the time Outstanding, the Issuer and the Guarantor, each when
authorized by, or pursuant to a Resolution, and the Trustee 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 of 1939 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 and obligations of the Issuer or the Guarantor or the rights of the
Holders of the Securities of all such series; provided, that no such
supplemental indenture shall (a) extend the fixed maturity of any Security, or
reduce the principal amount thereof, or reduce the rate or extend the time of
payment of interest thereon, or reduce any Additional Amount payable thereon, or
reduce any amount payable on redemption or reduce the Overdue Rate thereof or
make the principal thereof or interest thereon payable in any coin or currency
other than that provided in the Security or reduce the amount of the principal
of an Original Issue Discount Security (or a Security that provides that an
amount other than the face amount thereof will or may be payable upon a
declaration of acceleration of the maturity thereof) that would be due and
payable upon an acceleration of the maturity thereof pursuant to Section 4.1 or
the amount thereof provable in any action or proceeding pursuant to Section 4.2,
or impair, if the Securities provide therefor, any right of repayment at the
option of the Securityholder, or alter adversely or eliminate the right, if any,
of a Holder of a Security to convert the same into Parent Shares at the
Conversion Price set forth therein or upon the terms provided in this Indenture,
or impair the right to institute suit for the enforcement of any such payment on
or after the maturity thereof (or, in case of redemption, on or after the
redemption date), or for the enforcement of the conversion of any Security that
is convertible at the option of a Holder thereof into Parent Shares without the
consent of the Holder of each Security so affected, (b) reduce the aforesaid
percentage of Securities the consent of the Holders of which is required for any
such supplemental indenture, without the consent of the Holders of each Security
so affected or (c) modify any of the provisions of Article Twelve in a manner
adverse to the Holders of the Securities.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Securityholders of such series with respect to such covenant
or provision, shall be deemed not to affect the rights under this Indenture of
the Securityholders of any other series. The preceding sentence shall not,
however, raise any inference as to whether or not a particular series is
affected by any supplemental indenture not referred to in such sentence.
Upon the request of the Issuer and the Guarantor, accompanied by
copies of the Resolutions authorizing the execution of any such supplemental
indenture certified by the secretaries of each of the Issuer and the Guarantor,
and upon the filing with the Trustee of evidence of the consent of
Securityholders as aforesaid and other documents, if any, required by Section
6.1, the Trustee shall join with the Issuer and the Guarantor in the execution
of such supplemental indenture unless such supplemental indenture adversely
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent of the Securityholders under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Issuer, the Guarantor and the
Trustee of any supplemental indenture pursuant to the provisions of this Section
7.2, the Issuer shall mail a notice thereof to the Holders of Securities of each
series affected thereby at their addresses as they shall appear in the Register,
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 7.3 Effect of Supplemental Indenture. Upon the execution of
any supplemental indenture pursuant to the provisions hereof, this Indenture
shall be and be deemed to be modified and amended in accordance therewith and
the respective rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Issuer, the Guarantor and the Holders
of Securities of each series affected thereby shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such modifications
and amendments, and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of this
Indenture for any and all purposes.
SECTION 7.4 Certain Documents to Be Given to Trustee. The Trustee,
subject to the requirements of the Trust Indenture Act of 1939 and Section 5.1,
may receive an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that any supplemental indenture executed pursuant to this Article Seven
complies with the requirements of this Article Seven.
SECTION 7.5 Notation on Securities. Securities of any series
authenticated and delivered after the execution of any supplemental indenture
pursuant to the provisions of this Article Seven may bear a notation in form
approved by the Trustee for such series as to any matter provided for by such
supplemental indenture or as to any action taken at any such meeting. If the
Issuer or the Trustee shall so determine, new Securities of any series so
modified as to conform, in the opinion of the Trustee and the Issuer, to any
modification of this Indenture contained in any such supplemental indenture may
be prepared and executed (with the Guaranty endorsed thereon executed by the
Guarantor) by the Issuer, authenticated by the Trustee and delivered in exchange
for the Securities of such series then Outstanding.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
SECTION 8.1 Issuer and Guarantor May Consolidate, etc., on Certain
Terms. (a) Nothing contained in this Indenture or in any of the Securities shall
prevent any consolidation or merger of the Issuer with or into any other entity
or entities (whether or not affiliated with the Issuer), or successive
consolidations or mergers in which the Issuer or its successor or successors
shall be a party or parties, or shall prevent any sale, conveyance or lease of
all or substantially all the property of the Issuer, to any other entity
(whether or not affiliated with the Issuer) authorized to acquire and operate
the same; provided, however, and the Issuer hereby covenants and agrees, that
upon any such consolidation, merger, sale, conveyance or lease, (i) the due and
punctual payment of the principal of and interest, if any, on all of the
Securities, according to their tenor, and the due and punctual performance and
observance of all of the covenants and conditions of this Indenture to be
performed by the Issuer (including, without limitation, the terms, covenants and
conditions contained in Section 11.6), shall be expressly assumed, by
supplemental indenture satisfactory in form to the Trustee, executed and
delivered to the Trustee by the entity (if other than the Issuer) formed by such
consolidation, or into which the Issuer shall have been merged, or by the entity
which shall have acquired or leased such property and (ii) the Issuer or such
successor entity, as the case may be, shall not, immediately after such merger
or consolidation, or such sale, conveyance or lease, be in default in the
performance of any such covenant or condition.
(b) Nothing contained in this Indenture or in any of the Securities
shall prevent any consolidation or merger of the Guarantor with or into any
other entity or entities (whether or not affiliated with the Guarantor), or
successive consolidations or mergers in which the Guarantor or the successor or
successors shall be a party or parties, or shall prevent any sale, conveyance or
lease of all or substantially all the property of the Guarantor to any other
entity (whether or not affiliated with the Guarantor) authorized to acquire and
operate the same; provided, however, and the Guarantor hereby covenants and
agrees, that upon any such consolidation, merger, sale, conveyance or lease, (i)
the due and punctual performance and observance of all of the covenants and
conditions of this Indenture to be performed by the Guarantor and under the
Guaranty shall be expressly assumed, by supplemental indenture satisfactory in
form to the Trustee, executed and delivered to the Trustee by the entity (if
other than the Guarantor) formed by such consolidation, or into which the
Guarantor shall have been merged, or by the entity which shall have acquired or
leased such property and (ii) the Guarantor or such successor entity, as the
case may be, shall not, immediately after such merger or consolidation, or such
sale, conveyance or lease, be in default in the performance of any such covenant
or condition.
SECTION 8.2 Successor Entity to Be Substituted. (a) In case of any
consolidation, merger, sale, conveyance or lease referred to in Section 8.1 and
upon the assumption by the successor entity, by supplemental indenture, executed
and delivered to the Trustee and satisfactory in form to the Trustee, of, in the
case of Section 8.1(a), the due and punctual payment of the principal of and
interest, if any, on all of the Securities and the due and punctual performance
of all of the covenants and conditions of this Indenture to be performed by the
Issuer or, in the case of Section 8.1(b), the due and punctual performance of
all covenants and conditions of this Indenture be performed by the Guarantor and
under the Guaranty, such successor entity shall succeed to and be substituted
for the Issuer or the Guarantor, as applicable, with the same effect as if it
had been named herein as the party of the first part. In case of any such
consolidation, merger, sale, conveyance or lease, such changes in phraseology
and form (but not in substance) may be made in the Securities thereafter to be
issued as may be appropriate.
(b) In the case of a successor entity to the Issuer, such successor
entity thereupon may cause to be signed, and may issue in its own name any or
all of the Securities issuable hereunder which theretofore shall not have been
signed by the Issuer and delivered to the Trustee; and, upon the order of such
successor entity instead of the Issuer and subject to all the terms, conditions
and limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Securities which previously shall have been signed and
delivered by an officer of the Issuer to the Trustee for authentication, and any
Securities which such successor entity thereafter shall cause to be signed and
delivered to the Trustee for that purpose. All the Securities of any series so
issued shall in all respects have the same legal rank and benefit under this
Indenture as the Securities of the same series theretofore or thereafter issued
in accordance with the terms of this Indenture as though all of such Securities
had been issued at the date of the execution hereof. In the event of any such
sale or conveyance, but not any such lease, the Issuer or any successor entity
which shall theretofore have become such in the manner described in this Article
Eight shall be discharged from all obligations and covenants under this
Indenture and the Securities and may be dissolved and liquidated.
(c) In the case of a successor entity to the Guarantor, such successor
entity thereupon may cause to be signed, and may issue in its own name the
Guaranty with respect to any or all of the Securities issuable hereunder which
theretofore shall not have been signed by the Guarantor and delivered to the
Trustee; and, upon the order of such successor entity instead of the Guarantor
and subject to all the terms, conditions and limitations in this Indenture
prescribed, the Trustee shall authenticate and shall deliver any Securities on
which the Guaranty is endorsed which previously shall have been signed and
delivered by an officer of the Guarantor to the Trustee for authentication, and
any Securities on which the Guaranty is endorsed which such successor entity
thereafter shall cause to be signed and delivered to the Trustee for that
purpose. Any such Guaranty with respect to Securities of any series shall in all
respects have the same legal rank and benefit under this Indenture as the
Guaranty with respect to Securities of the same series theretofore or thereafter
issued in accordance with the terms of this Indenture as though all of such
Securities had been issued at the date of the execution hereof. In the event of
any such sale or conveyance referred to in Section 8.1, but not any lease
referred to in such Section, the Guarantor or any successor entity which shall
theretofore have become such in the manner described in this Article Eight shall
be discharged from all obligations and covenants under this Indenture and the
Guaranty and may be dissolved and liquidated.
SECTION 8.3 Opinion of Counsel and Officers' Certificate to Be Given
to Trustee. The Trustee, subject to the requirements of the Trust Indenture Act
of 1939 and Section 5.1, may receive an Opinion of Counsel and Officers'
Certificate as conclusive evidence that any such consolidation, merger, sale,
conveyance or lease and any such assumption complies with the provisions of this
Article Eight.
ARTICLE NINE
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 9.1 Satisfaction and Discharge of Indenture. If at any time
(a) the Issuer or the Guarantor shall have paid or caused to be paid the
principal of and interest on all the Securities of any particular series
Outstanding hereunder (other than Securities which have been mutilated, defaced,
destroyed, lost or stolen and which have been replaced or paid as provided in
Section 2.13 or in lieu of or in substitution for which other Securities shall
have been authenticated and delivered) as and when the same shall have become
due and payable, or (b) the Issuer or the Guarantor shall have delivered to the
Trustee for cancellation all Securities of such series theretofore authenticated
(other than any Securities of such series which shall have been mutilated,
defaced, destroyed, lost or stolen and which shall have been replaced or paid as
provided in Section 2.13 or in lieu of or in substitution for which other
Securities shall have been authenticated and delivered) and not theretofore
canceled, or (c)(i) all the Securities of such series not theretofore canceled
or delivered to the Trustee for cancellation shall have become due and payable,
or are by their terms to become due and payable within one year or are to be
called for redemption within one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption, and (ii) the Issuer or the
Guarantor shall have irrevocably deposited or caused to be deposited with the
Trustee as trust funds the entire amount in cash (other than moneys repaid by
the Trustee or any paying agent to the Issuer or the Guarantor in accordance
with Section 9.4) sufficient to pay at maturity or upon redemption all
Securities of such series not theretofore delivered to the Trustee for
cancellation (other than any Securities of such series which shall have been
mutilated, defaced, destroyed, lost or stolen which have been replaced or paid
as provided in Section 2.13 or in lieu of or in substitution for which other
Securities shall have been authenticated and delivered), including principal and
interest, if any, due or to become due to such date of maturity or the date
fixed for redemption, as the case may be, and if, in any such case, the Issuer
or the Guarantor shall also pay or cause to be paid all other sums payable
hereunder by the Issuer or the Guarantor with respect to Securities of such
series, then this Indenture shall cease to be of further effect with respect to
Securities of such series (except as to (i) rights of registration of transfer
and exchange, and the Issuer's right of optional redemption, (ii) substitution
of mutilated, defaced, destroyed, lost or stolen Securities, (iii) rights of
Securityholders to receive payments of principal thereof and interest, if any,
thereon, and remaining rights of the Securityholders to receive mandatory
sinking fund payments, if any, (iv) the rights, obligations and immunities of
the Trustee hereunder, including its rights under Section 5.5, (v) rights of
conversion, if any, and (vi) the rights of the Securityholders of such series as
beneficiaries hereof with respect to the property so deposited with the Trustee
payable to all or any of them), and the Trustee, on demand of the Issuer
accompanied by an Officers' Certificate and an Opinion of Counsel and at the
cost and expense of the Issuer, shall execute proper instruments acknowledging
such satisfaction of and discharging this Indenture with respect to such series.
SECTION 9.2 Funds Deposited with Trustee for Payment of Securities.
Subject to Section 9.4, all moneys deposited with the Trustee pursuant to
Section 9.1 shall be held in trust and applied by it to the payment, either
directly or through any paying agent (including the Issuer acting as its own
paying agent), to the Holders of the particular Securities of such series for
the payment or redemption of which such moneys have been deposited with the
Trustee, of all sums due and to become due thereon for principal and interest,
if any.
SECTION 9.3 Repayment of Moneys Held by Paying Agent. In connection
with the satisfaction and discharge of this Indenture with respect to Securities
of any series, all moneys then held by any paying agent, other than the Trustee,
under the provisions of this Indenture with respect to such series of Securities
shall, upon demand of the Issuer or the Guarantor, be repaid to the Issuer or,
to the extent that such moneys were deposited by it, the Guarantor, or paid to
the Trustee, and thereupon such paying agent shall be released from all further
liability with respect to such moneys.
SECTION 9.4 Return of Moneys Held by Trustee and Paying Agent
Unclaimed for Two Years. Any moneys deposited with or paid to the Trustee or any
paying agent for the payment of the principal of or interest, if any, on any
Security of any series and not applied but remaining unclaimed for two years
after the date upon which such principal or interest, as the case may be, shall
have become due and payable, shall, upon the written request of the Issuer or
the Guarantor and unless otherwise required by mandatory provisions of
applicable escheat or abandoned or unclaimed property law, be repaid to the
Issuer or, to the extent that such moneys were deposited by it, the Guarantor,
as the case may be by the Trustee for such series or such paying agent, and the
Holder of such Security of such series shall, unless otherwise required by
mandatory provisions of applicable escheat or abandoned or unclaimed property
laws, thereafter look only to the Issuer for any payment which such Holder may
be entitled to collect.
SECTION 9.5 Option to Effect Defeasance or Covenant Defeasance. The
Issuer or the Guarantor may at its option by or pursuant to a Resolution, at any
time, with respect to the Securities of any series, elect to have either Section
9.6 or Section 9.7 applied to the Outstanding Securities of such series upon
compliance with the conditions set forth below.
SECTION 9.6 Defeasance and Discharge. Upon the Issuer's or the
Guarantor's exercise of its option to utilize the provisions of this Section 9.6
and upon compliance with Section 9.8, the Issuer and the Guarantor shall be
deemed to have been discharged from their obligations with respect to the
Outstanding Securities of such series, and the Guarantor shall be deemed to have
been discharged from its obligations under the Guaranty with respect to such
Outstanding Securities, in each case on the date the conditions set forth below
are satisfied (hereinafter, "defeasance"). For this purpose, such defeasance
means that the Issuer shall be deemed to have paid and discharged the entire
indebtedness represented by the Outstanding Securities of such series and to
have satisfied all its other obligations under such Securities and this
Indenture insofar as such Securities are concerned and the Guarantor shall be
deemed to have discharged all of its obligations under the Guaranty (and the
Trustee, at the expense of the Issuer, shall execute proper instruments
acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (a) the rights of Holders of
Outstanding Securities of such series to receive, solely from the trust fund
described in Section 9.8 and as more fully set forth in such Section, payments
in respect of the principal of and interest on such Securities when such
payments are due, (b) the obligations of the Issuer and the Guarantor with
respect to such Securities under Sections 2.12, 2.13, 2.16, 3.2 and 3.3, (c) the
rights, powers, trusts, duties, and immunities of the Trustee under Sections
2.13, 2.14, 2.16, 4.3, 5.5 and 9.4, and otherwise the duty of the Trustee to
authenticate Securities of such series issued on registration of transfer or
exchange, (d) the conversion rights, if any, of Holders of Outstanding
Securities of such series and the obligations of the Issuer and the Guarantor,
if any, with respect thereto under Article Eleven, and (e) this Article Nine.
Subject to compliance with this Article Nine, the Issuer or the Guarantor may
exercise its option under this Section 9.6 notwithstanding the prior exercise of
its option under Section 9.7 with respect to the Securities of such series.
SECTION 9.7 Covenant Defeasance. Upon the Issuer's or the Guarantor's
exercise of its option to utilize the provisions of this Section 9.7 and upon
compliance with Section 9.8, the Issuer and the Guarantor shall be released from
their respective obligations, if any, under Sections 3.4 and 3.5 with respect to
the Outstanding Securities of such series on and after the date the conditions
set forth below are satisfied (hereinafter, "covenant defeasance"). For this
purpose, such covenant defeasance means that, with respect to the Outstanding
Securities of such series, the Issuer and the Guarantor may omit to comply with
and shall have no liability in respect of any term, condition or limitation set
forth in any such Section with respect to it, whether directly or indirectly by
reason of any reference elsewhere herein to any such Section (including under
Section 4.1(d)) or by reason of any reference in any such Section to any other
provision herein or in any other document, but the remainder of this Indenture
and such Securities shall be unaffected thereby.
SECTION 9.8 Conditions to Defeasance or Covenant Defeasance. The
following shall be the conditions to application of either Section 9.6 or
Section 9.7 to the Outstanding Securities of such series:
(a) The Issuer or the Guarantor shall irrevocably have deposited
or caused to be deposited with the Trustee (or another trustee
satisfying the requirements of Section 5.7 who shall agree to comply
with the provisions of this Article Nine applicable to it) as trust
funds in trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of such Securities, (A) money in an amount, or
(B) U.S. Government Obligations which through the scheduled payment of
principal and interest in respect thereof in accordance with their terms
will provide, not later than one day before the due date of any payment,
money in an amount, or (C) a combination thereof, sufficient, in the
opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to
the Trustee, to pay and discharge, and which shall be applied by the
Trustee (or other qualifying trustee) to pay and discharge, (i) the
principal of and each installment of principal of and interest on the
Outstanding Securities of such series on the stated maturity of such
principal or installment of principal or interest and (ii) any mandatory
sinking fund payments or analogous payments applicable to the
Outstanding Securities of such series on the day on which such payments
are due and payable in accordance with the terms of this Indenture and
of such Securities. For this purpose, "U.S. Government Obligations"
means securities that are (x) direct obligations of the United States of
America for the payment of which its full faith and credit is pledged or
(y) obligations of a person controlled or supervised by and acting as an
agency or instrumentality of the United States of America the payment of
which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and
shall also include a depositary receipt issued by a bank (as defined in
Section 3(a)(2) of the Securities Act) as Custodian with respect to any
such U.S. Government Obligation or a specific payment of principal of or
interest on any such U.S. Government Obligation held by such Custodian
for the account of the Holder of such depositary 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 depositary
receipt from any amount received by the Custodian in respect of the U.S.
Government Obligation or the specific payment of principal of or
interest on the U.S. Government Obligation evidenced by such depositary
receipt.
(b) No Event of Default or event which with notice or lapse of
time or both would become an Event of Default with respect to the
Securities of such series shall have occurred and be continuing on the
date of such deposit.
(c) Such defeasance or covenant defeasance shall not cause the
Trustee for the Securities of such series to have a conflicting interest
for purposes of the Trust Indenture Act of 1939 with respect to any
Securities of the Issuer.
(d) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other agreement or instrument to which the Issuer or the Guarantor
is a party or by which it is bound.
(e) Such defeasance or covenant defeasance shall not cause any
Securities of such series then listed on any registered national
securities exchange under the Exchange Act, to be delisted.
(f) In the case of an election under Section 9.6, the Issuer or
the Guarantor shall have delivered to the Trustee an Opinion of Counsel
(who may be counsel to the Issuer or the Guarantor) stating that (x) the
Issuer or the Guarantor has received from, or there has been published
by, the Internal Revenue Service a ruling, or (y) since the date of this
Indenture there has been a change in the applicable U.S. federal income
tax law, in either case to the effect that, and based thereon such
opinion shall confirm that, the Holders of the Outstanding Securities of
such series will not recognize income, gain or loss for U.S. federal
income tax purposes as a result of such defeasance and will be subject
to U.S. federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such defeasance had not
occurred.
(g) In the case of an election under Section 9.7, the Issuer or
the Guarantor shall have delivered to the Trustee an Opinion of Counsel
(who may be counsel to the Issuer or the Guarantor) to the effect that
the Holders of the Outstanding Securities of such series will not
recognize income, gain or loss for U.S federal income tax purposes as a
result of such covenant defeasance and will be subject to U.S. federal
income tax on the same amounts, in the same manner and at the same times
as would have been the case if such covenant defeasance had not
occurred.
(h) The Issuer or the Guarantor shall have delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent provided for relating to either the
defeasance under Section 9.6 or the covenant defeasance under Section
9.7 (as the case may be) have been complied with.
SECTION 9.9 Deposited Money and U.S. Government Obligations to Be Held
in Trust; Other Miscellaneous Provisions. Subject to the provisions of Section
9.4, all money and U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee (or other qualifying trustee -- collectively, for
purposes of this Section 9.9, the "Trustee") pursuant to Section 9.8 in respect
of the Outstanding Securities of such series shall be held in trust and applied
by the Trustee, in accordance with the provisions of such Securities and this
Indenture, to the payment, either directly or through any paying agent
(including the Issuer acting as its own paying agent) as the Trustee may
determine, to the Holders of such Securities, of all sums due and to become due
thereon in respect of principal and interest, but such money need not be
segregated from other funds except to the extent required by law.
The Issuer and the Guarantor shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against the U.S.
Government Obligations deposited pursuant to Section 9.8 or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the Outstanding
Securities of such series.
Anything in this Article Nine to the contrary notwithstanding, the
Trustee shall deliver or pay to the Issuer or the Guarantor, as applicable, from
time to time upon the Issuer's or the Guarantor's written request any money or
U.S. Government Obligations held by it as provided in Section 9.8 which, in the
written opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to be
deposited to effect an equivalent defeasance or covenant defeasance.
ARTICLE TEN
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 10.1 Applicability of Article. The provisions of this Article
shall be applicable to the Securities of any series which are redeemable before
their maturity and to any sinking fund for the retirement of Securities of a
series except as otherwise specified as contemplated by Section 2.6 for
Securities of such series.
SECTION 10.2 Notice of Redemption; Selection of Securities. In case
the Issuer shall desire to exercise any right to redeem all or any part of the
Securities of any series in accordance with their terms, the Issuer shall fix a
date for redemption and shall notify the Trustee in writing, at least 45 days
before such redemption date. The Issuer, or at the request and at the expense of
the Issuer, the Trustee, shall mail a notice of such redemption, at least 30
days and not more than 60 days prior to the date fixed for redemption, to the
Holders of Securities of such series so to be redeemed in whole or in part at
their last addresses as they shall appear in the Register. Any notice which is
mailed in the manner herein provided shall be conclusively presumed to have been
duly given, whether or not the Holder receives the notice. Failure to give
notice by mail, or any defect in the notice, to the Holder of any Security of a
series designated for redemption as a whole or in part shall not affect the
validity of the proceedings for the redemption of any other Security of such
series.
The notice of redemption to each such Holder shall specify the CUSIP
number of the Securities of such series, if any, the date fixed for redemption,
the redemption price, the place or places of payment, if the Securities of such
series are convertible at the option of the Holder into Parent Shares, the
Conversion Price, the place or places of conversion, that, unless otherwise
provided pursuant to Section 2.6 for Securities of such series, Securities
called for redemption may be converted at any time before the close of business
on the third Business Day prior to the date fixed for redemption and if not
converted prior to the close of business on such date, the right of conversion
will be lost and that Holders who want to convert Securities must satisfy the
requirements set forth in the terms thereof, that payment will be made upon
presentation and surrender of such Securities, that any interest accrued to the
date fixed for redemption will be paid as specified in such notice and that on
and after said date any interest thereon or on the portions thereof to be
redeemed will cease to accrue. If less than all of the Outstanding Securities of
a series are to be redeemed, the notice of redemption shall specify the number
or numbers or distinguishing symbol or symbols of the Securities to be redeemed.
In case any Security of a series is to be redeemed in part only the notice of
redemption shall state the portion of the principal amount thereof to be
redeemed and shall state that on and after the date fixed for redemption, upon
surrender of such Security, a new Security or Securities of such series in
principal amount equal to the unredeemed portion thereof will be issued.
Prior to the redemption date specified in the notice of redemption
given as provided in this Section, the Issuer or the Guarantor will deposit with
the Trustee or with one or more paying agents (or, if the Issuer is acting as
its own paying agent, segregate and hold in trust as required by the Trust
Indenture Act of 1939) an amount of money (in the currency or units of
currencies or composite currency in which the Securities so called for
redemption are denominated or an appropriate equivalent thereof) sufficient to
redeem on the redemption date all the Securities of such series or portions
thereof so called for redemption at the appropriate redemption price, together
with accrued interest to the date fixed for redemption. If less than all the
Outstanding Securities of a series are to be redeemed (or less than the full
principal amount of each Security in such series is to be redeemed), the Issuer
or the Guarantor will deliver to the Trustee at least 60 days prior to the date
fixed for redemption (or such shorter period if acceptable to the Trustee) an
Officers' Certificate stating the aggregate principal amount of Securities to be
redeemed and, if the Trustee is not acting as the repository of the Register for
such series, a current list of all Outstanding Securities of such series.
If less than all the Outstanding Securities of a series are to be
redeemed, the Trustee shall select, in such manner as it shall deem appropriate
and fair, Securities of such series to be redeemed in whole or in part; however,
if less than all the Securities of any series with differing issue dates,
interest rates and stated maturities are to be redeemed, the Issuer or the
Guarantor in its sole discretion shall select the particular Securities to be
redeemed and shall notify the Trustee in writing thereof at least 45 days prior
to the relevant redemption date. Except as otherwise specified for Securities of
a particular series pursuant to Section 2.6, Securities may be redeemed in part
in amounts equal to the minimum authorized denomination for Securities of such
series or any multiple thereof. The Trustee shall promptly notify the Issuer and
the Guarantor in writing of the Securities of such series selected for
redemption and, in the case of any Securities of such series selected for
partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities of any series
shall relate, in the case of any Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Security which has been or
is to be redeemed.
SECTION 10.3 Payment of Securities Called for Redemption. If notice of
redemption has been given as provided in Section 10.2, the Securities or
portions of Securities specified in such notice shall become due and payable on
the date and at the place or places stated in such notice at the applicable
redemption price, together with interest accrued to the date fixed for
redemption, and on and after said date (unless the Issuer shall default in the
payment of such Securities or portions thereof at the redemption price, together
with interest accrued to said date) interest on the Securities or portions of
Securities so called for redemption shall cease to accrue and, except as
provided in Sections 5.4 and 9.4, such Securities shall cease from and after the
date fixed for redemption to be entitled to any benefit or security under this
Indenture, and the Holders of such Securities shall have no right in respect of
such Securities except the right to receive the redemption price thereof and
unpaid interest to the date fixed for redemption. On presentation and surrender
of such Securities at a place of payment specified in said notice, said
Securities or the specified portions thereof shall be paid and redeemed by the
Issuer at the applicable redemption price, together with interest accrued
thereon to the date fixed for redemption; provided, that if the date fixed for
redemption is an interest payment date, the interest due on that date shall be
payable to the Holders of such Securities registered as such on the relevant
record date according to their terms.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal thereof so to be redeemed shall,
until paid or duly provided for, bear interest from the date fixed for
redemption at the Overdue Rate applicable to such series.
Upon presentation of any Security redeemed in part only, the Issuer
shall execute (in each case with the Guaranty endorsed thereon executed by the
Guarantor) and the Trustee shall authenticate and make available for delivery to
or on the order of the Holder thereof, at the expense of the Issuer, a new
Security or Securities of such series, of authorized denominations, in principal
amount equal to the unredeemed portion of the Security so presented.
SECTION 10.4 Conversion Arrangement on Call for Redemption. If in
connection with any redemption of Securities of any series with respect to which
the Holders have the right to convert such Securities into Parent Shares, the
Holders thereof do not elect to convert such Securities, the Issuer or the
Guarantor may arrange for the purchase and conversion of such Securities by an
agreement with one or more investment banking firms or other purchasers to
purchase such Securities by paying to the Trustee in trust for the Holders, not
later than the close of three Business Days prior to the date fixed for
redemption, an amount not less than the applicable redemption price, together
with interest accrued to the date fixed for redemption, of such Securities.
Notwithstanding anything to the contrary contained in this Article Ten, the
obligation of the Issuer to pay the redemption price of such Securities,
together with interest accrued to the date fixed for redemption, shall be deemed
to be satisfied and discharged to the extent such amount is so paid by such
purchasers to the Trustee in trust for the Holders. If such an agreement is
made, any Securities not duly surrendered for conversion by the Holders thereof
may, at the option of the Issuer or the Guarantor, as the case may be, be
deemed, to the fullest extent permitted by law, to have been acquired by such
purchasers from such Holders and (notwithstanding anything to the contrary
contained in Article Eleven) surrendered by such purchasers for conversion, all
as of immediately prior to the close of business on the date fixed for
redemption, subject to payment by the purchasers as specified above. The Trustee
shall hold and dispose of any such amount paid to it in the same manner as it
would moneys deposited with it by the Issuer for the redemption of Securities.
Without the Trustee's prior written consent, no arrangement between the Issuer
or the Guarantor and such purchasers for the purchase and conversion of any
Securities shall increase or otherwise affect any of the powers, duties,
responsibilities or obligations of the Trustee as set forth in this Indenture,
and the Issuer and the Guarantor agree to indemnify the Trustee from, and hold
it harmless against, any and all loss, liability, claim, damage or expense
arising out of or in connection with any such arrangement for the purchase and
conversion of any Securities between the Issuer or the Guarantor and such
purchasers, including the costs and expenses incurred by the Trustee and its
counsel in the defense of any claim or liability arising out of or in connection
with the exercise or performance of any of its powers, duties, responsibilities
or obligations under this Indenture.
SECTION 10.5 Exclusion of Certain Securities from Eligibility for
Selection for Redemption. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number or other distinguishing symbol in a written statement signed by an
authorized officer of the Issuer and delivered to the Trustee at least 10 days
prior to the date on which Securities are to be selected for redemption as being
owned of record and beneficially by, and not pledged or hypothecated by, either
(a) the Issuer or the Guarantor, 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 or the Guarantor.
SECTION 10.6 Mandatory and Optional Sinking Funds. The minimum amount
of any sinking fund payment provided for by the terms of Securities of any
series is herein referred to as a "mandatory sinking fund payment", and any
payment in excess of such minimum amount provided for by the terms of Securities
of any series is herein referred to as an "optional sinking fund payment". The
date on which a sinking fund payment is to be made is herein referred to as the
"sinking fund payment date".
In lieu of making all or any part of any mandatory sinking fund
payment with respect to any series of Securities in cash, the Issuer may at its
option (a) deliver to the Trustee Securities of such series theretofore
purchased or otherwise acquired (except upon redemption pursuant to the
mandatory sinking fund) or receive credit for Securities of such series by the
Issuer (not previously so credited) theretofore purchased or otherwise acquired
(except as aforesaid) and delivered to the Trustee for cancellation pursuant to
Section 2.14, (b) receive credit for optional sinking fund payments (not
previously so credited) made pursuant to this Section, (c) receive credit for
Securities of such series (not previously so credited) that have been
surrendered to the Issuer for conversion, or (d) receive credit for Securities
of such series (not previously so credited) redeemed by the Issuer through any
optional redemption provision contained in the terms of Securities of such
series. Securities so delivered or credited shall be received or credited by the
Trustee at the sinking fund redemption price specified in such Securities, and
the amount of such mandatory sinking fund payment shall be reduced accordingly.
On or before the sixtieth day next preceding each sinking fund payment
date for any series of Securities, the Issuer will deliver to the Trustee a
certificate of the Issuer (which need not contain the statements required by the
Trust Indenture Act of 1939) signed by an officer of the Issuer who is one of
the officers authorized to sign an Officers' Certificate, (a) specifying the
portion, if any, of the mandatory sinking fund payment to be satisfied by
payment of cash and the portion, if any, to be satisfied by credit of Securities
of such series, (b) stating that none of such Securities has theretofore been so
credited, (c) stating that no Event of Default with respect to such series has
occurred (which has not been waived or cured) and is continuing and (d) stating
whether or not the Issuer intends to exercise its right to make an optional
sinking fund payment with respect to such series and, if so, specifying the
amount of such optional sinking fund payment which the Issuer intends to pay on
or before the next succeeding sinking fund payment date. Any Securities of such
series to be credited and required to be delivered to the Trustee in order for
the Issuer to be entitled to credit therefor as aforesaid which have not
theretofore been delivered to the Trustee shall be delivered for cancellation
pursuant to Section 2.14 to the Trustee with such certificate. Such certificate
shall be irrevocable and upon its receipt by the Trustee the Issuer shall become
obligated to make all the cash payments or payments therein referred to, if any
(which cash may be deposited with the Trustee or with one or more paying agents
or, if the Issuer is acting as its own paying agent, segregated and held in
trust as required by the Trust Indenture Act of 1939), on or before the next
succeeding sinking fund payment date. Failure of the Issuer, on or before any
such sixtieth day, to deliver such certificate and Securities specified in this
paragraph, if any, shall not constitute a default but shall constitute, on and
as of such date, the irrevocable election of the Issuer (i) that the mandatory
sinking fund payment for such series due on the next succeeding sinking fund
payment date shall be paid entirely in cash without the option to deliver or
credit Securities of such series in respect thereof and (ii) that the Issuer
will make no optional sinking fund payment with respect to such series as
provided in this Section.
If the sinking fund payment or payments (mandatory or optional or
both) to be made in cash on the next succeeding sinking fund payment date plus
any unused balance of any preceding sinking fund payments made in cash shall
exceed U.S.$100,000 or, if payments on Securities of such series are to be made
in a currency other than Dollars or in units or composites of two or more
currencies, the equivalent thereof (based upon the Market Exchange Rate on the
sixtieth day preceding the relevant sinking fund payment date or if the Market
Exchange Rate is not available for such date, the immediately preceding date for
which the Market Exchange Rate is available) in the relevant currency or unit or
composite currency (or such other amount as is specified for a particular series
of Securities pursuant to Section 2.6), or a lesser sum if the Issuer shall so
request, with respect to the Securities of any particular series, such cash
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 next
sinking fund payment date following the date of such payment) to the redemption
of such Securities at the sinking fund redemption price specified in such
Securities for operation of the sinking fund together with accrued interest, if
any, to the date fixed for redemption. If such amount shall be U.S.$100,000 or,
if payments on Securities of such series are to be made in a currency other than
Dollars or in units or composites of two more currencies, the equivalent thereof
(based upon the Market Exchange Rate on the sixtieth day preceding the relevant
sinking fund payment date or if the Market Exchange Rate is not available for
such date, the immediately preceding date for which the Market Exchange Rate is
available) in the relevant currency or unit or composite currency (or such other
amount as is specified for the particular series pursuant to Section 2.6), or
less and the Issuer makes no such request then it shall be carried over until a
sum in excess of U.S.$100,000, or the equivalent thereof in the relevant
currency or unit or composite currency, is available.
The Trustee shall select, in the manner provided in Section 10.2, for
redemption on such sinking fund payment date, Securities of such series with
respect to which cash payment of the applicable sinking fund redemption price
will be made and shall (if requested in writing by the Issuer) inform the Issuer
of the serial numbers or other distinguishing symbols of the Securities of such
series (or portions thereof) so selected. If the Trustee shall be required to
select Securities of any series for the sinking fund and is not acting as
repository of the Register for such series, at least 60 days prior to the
sinking fund payment date the Issuer shall furnish to the Trustee a current list
of all Outstanding Securities of such series. Securities of any series which are
(a) owned by the Issuer, the Guarantor or an entity actually known by the
Trustee to be directly or indirectly controlling or controlled by or under
direct or indirect common control with the Issuer, as shown by the Register, and
not known to the Trustee to have been pledged or hypothecated by the Issuer the
Guarantor or any such entity or (b) identified in an Officers' Certificate at
least 60 days prior to the sinking fund payment date as being beneficially owned
by, and not pledged or hypothecated by, the Issuer, the Guarantor or an entity
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Issuer or the Guarantor, shall be excluded from
Securities of such series eligible for selection for redemption. The Trustee, in
the name and at the expense of the Issuer (or the Issuer, if it shall so notify
the Trustee in writing) shall cause notice of redemption of the Securities of
such series to be given in substantially the manner provided in Section 10.2,
except that the notice of redemption shall also state that the Securities are
being redeemed by operation of the sinking fund (and with the effect provided in
Section 10.3) for the redemption of Securities of such series which, if
applicable, is in part at the option of the Issuer.
The amount of any sinking fund payments 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 of such series shall be added to the next cash
sinking fund payment received by the Trustee (or if the Issuer is acting as its
own paying agent, segregated and held in trust as required by the Trust
Indenture Act of 1939) for such series and, together with such payment (or such
amount so segregated), shall be applied in accordance with the provisions of
this Section 10.6. Any and all sinking fund moneys held by the Trustee (or if
the Issuer is acting as its own paying agent, segregated and held in trust as
required by the Trust Indenture Act of 1939) on the stated maturity date of the
Securities of any particular series (or earlier, if such maturity is
accelerated), which are not held for the payment or redemption of particular
Securities of such series shall be applied by the Trustee (or by the Issuer if
the Issuer is acting as its own paying agent), together with other moneys, if
necessary, sufficient for the purpose, to the payment of the principal of, and
interest on, the Securities of such series at maturity.
On or before each sinking fund payment date, the Issuer shall pay to
the Trustee in cash (or if the Issuer is acting as its own paying agent will
segregate and hold in trust as required by the Trust Indenture Act of 1939) or
shall otherwise provide for the payment of all interest accrued to the date
fixed for redemption on Securities (or portions thereof) to be redeemed on such
sinking fund payment date.
Neither the Issuer nor the Trustee shall redeem or cause to be
redeemed any Securities of a series with sinking fund moneys or mail any notice
of redemption of Securities for such series by operation of the sinking fund
during the continuance of a default in payment of interest, if any, on such
Securities or of any Event of Default (other than an Event of Default occurring
as a consequence of this paragraph, with respect to such Securities) except
that, where the mailing of notice of redemption of any Securities shall
theretofore have been made, the Trustee (or the Issuer if the Issuer is acting
as its own paying agent) shall redeem or cause to be redeemed such Securities,
provided that it shall have received from the Issuer (or the Issuer shall have
segregated) a sum sufficient for such redemption. Except as aforesaid, any
moneys in the sinking fund for such series at the time when any such default or
Event of Default shall occur, and any moneys thereafter paid into the sinking
fund, shall, during the continuance of such default or Event of Default, be
deemed to have been collected under Article Four and held for the payment of all
such Securities. Notwithstanding anything in the foregoing to the contrary, in
case such default or Event of Default shall have been waived as provided in
Section 4.9 or the default or Event of Default cured on or before the sixtieth
day preceding the sinking fund payment date in any year, such moneys shall
thereafter be applied on the next succeeding sinking fund payment date in
accordance with this Section 10.6 to the redemption of such Securities.
SECTION 10.7 Redemption for Tax Reasons. If at any time after the date
of issuance of Securities of any series pursuant to this Indenture as a result
of any change in, or amendment to, the laws or regulations of The Netherlands or
of any political subdivision thereof or any authority therein or thereof having
power to tax or as a result of any change in the application or official
interpretation of such laws or regulations, which change or amendment becomes
effective after the date of such issuance, the Guarantor becomes, or will
become, obligated to pay any Additional Amounts with respect to any payments
that it may be required to make pursuant to the Guaranty with respect to
Securities of any series and such obligations cannot be avoided by the Issuer or
the Guarantor taking reasonable measures available to either of them, then the
Securities of such series will be redeemable as a whole (but not in part), at
the option of the Issuer, at any time upon not less than thirty (30) nor more
than sixty (60) days' notice given to the Holders at their principal amount
together with accrued interest thereon (and any Additional Amounts Payable with
respect thereto) to the date fixed for redemption (the "Tax Redemption Date").
The Guarantor will also pay to the Holders of Securities of such series on the
Tax Redemption Date any Additional Amounts which would otherwise be payable. In
order to effect a redemption of Securities of any such series as described in
this paragraph, the Issuer and the Guarantor shall deliver to the Trustee at
least forty-five (45) days prior to the Tax Redemption Date: (i) a written
notice stating that the Securities of this series are to be redeemed as a whole
and (ii) an opinion of independent legal counsel of recognized standing to the
effect that the Guarantor has or will become obligated to pay Additional Amounts
with respect to any payments that it may be required to make pursuant to such
Guaranty as a result of any such change or amendment. No notice of redemption
may be given earlier than ninety (90) days prior to the earliest date on which
the Guarantor would be obligated to pay such Additional Amounts were a payment
in respect of the Securities of such series then due. The notice shall
additionally specify the Tax Redemption Date and all other information necessary
to the publication and mailing by the Trustee of notices of such redemption. The
Trustee shall be entitled to rely conclusively upon the information so furnished
by the Issuer and the Guarantor in such notice and shall be under no duty to
check the accuracy or completeness thereof. Such notice shall be irrevocable and
upon its delivery the Guarantor shall be obligated to make the payment or
payments referred to therein to the Trustee.
ARTICLE ELEVEN
CONVERSION OF SECURITIES
SECTION 11.1 Conversion of Securities. In connection with Securities
of any series that are convertible into Parent Shares, each such Security (or
any portion thereof which is, unless otherwise specified as contemplated by
Section 2.6 for Securities of any series, U.S.$1,000 or an integral multiple
thereof) shall be convertible into Parent Common Shares or Parent American
Depositary Shares as specified pursuant to Section 2.6 for Securities of such
series, in accordance with its terms and (except as otherwise specified pursuant
to Section 2.6 for Securities of such series) in accordance with this Article
Eleven at any time until the close of business on the third Business Day
preceding the maturity date of the Securities of such series or in case such
Security shall have been called for redemption, then in respect of such Security
until (unless the Issuer shall default in payment due upon the redemption
thereof) the close of business on the third Business Day preceding the date
fixed for redemption, unless otherwise specified as contemplated by Section 2.6
for Securities of such series.
The initial Conversion Price at which a Security of any series is
convertible shall be set forth in or established pursuant to a Resolution of the
Issuer or the Guarantor or supplemental indenture contemplated by Section 2.6.
Any such Security that is convertible at the option of the Holder
thereof shall be so converted upon surrender to the Trustee or the Conversion
Agent for surrender to the Issuer or the Guarantor in accordance with the
instructions on file with the Trustee and the Conversion Agent, at any time
during usual business hours at the office or agency to be maintained by the
Issuer in accordance with the provisions of Section 3.2, accompanied by a
written notice of election to convert as provided in Section 11.2 and, if so
required by the Issuer or the Guarantor, by a written instrument or instruments
of transfer in form satisfactory to the Issuer, the Guarantor and the Conversion
Agent duly executed by the Holder or his attorney duly authorized in writing.
Any such Security that is convertible otherwise than at the option of the Holder
thereof shall be so converted as specified pursuant to Section 2.6 for
Securities of such series. The Issuer and the Guarantor covenant to effect such
conversion by procuring the issuance of Parent Shares and payment of cash in
lieu of fractional Parent Shares in exchange for and in consideration of
delivery to it of the Securities. For convenience, the conversion of principal
of any Security or Securities pursuant to this Article Eleven is hereinafter
sometimes referred to as the conversion of such Security or Securities. All
Securities surrendered for conversion shall, if surrendered to the Issuer, the
Guarantor or the Conversion Agent, be delivered to the Trustee for cancellation
and canceled by it as provided in Section 2.13 (except as otherwise provided
therein). Any Security surrendered for conversion shall not thereafter be
convertible.
SECTION 11.2 Issuance of Parent Shares on Conversion. As promptly as
practicable after the surrender as herein provided of any Security or Securities
for conversion, the Issuer (or the Guarantor if it has delivered to the Trustee
an agreement between the Company and the Guarantor which is then in effect that
the Guarantor shall effect the conversion of the Securities) shall deliver or
cause to be delivered at its office or agency to or upon the written order of
the Holder of the Security or Securities so surrendered, either, as requested by
the Holder, the number of duly authorized, validly issued, fully paid and
nonassessable Parent Common Shares into which such Security or Securities may be
converted in accordance with the provisions of this Article Eleven or a Parent
ADR evidencing Parent ADSs which represents such number of Parent Common Shares
(such Parent Common Shares or Parent ADSs being referred to in this Article
Eleven as the "Parent Conversion Shares"). Prior to delivery of such Parent
Conversion Shares upon conversion of a Security at the option of a Holder, the
Issuer or the Guarantor, as the case may be, shall require a written notice,
which shall be substantially in the Form of Election to Convert as provided for
in Section 2.17, to be delivered to its 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 for Parent Common Shares or Parent ADSs,
as specified in such notice. Such conversion notice once given shall be
irrevocable and may not be withdrawn without the consent in writing of the
Issuer or the Guarantor. The Issuer, the Guarantor or any Conversion Agent on
each of their behalf, may reject any incomplete or incorrect conversion notice.
All costs and expenses incurred or caused by an incomplete or incorrect notice
shall be for the account of the relevant Holder.
If the Holder is electing to receive Parent ADSs upon such conversion,
such notice shall also state the name or names (with address or addresses) in
which the Parent ADR evidencing such Parent ADSs are to be issued. Such
conversion shall be deemed to have been made at the close of business on the
date that such Security or Securities shall have been surrendered for conversion
and such notice shall have been received by the Issuer or the Guarantor, and the
rights of the Holder of such Security as a Holder shall cease at such time. The
person or persons entitled to receive the Parent Conversion Shares upon
conversion of such Security or Securities shall be treated for all purposes as
having become the holder or holders of such Parent Conversion Shares at such
time and such conversion shall be at the Conversion Price for such series of
Securities in effect at such time; provided, however, in the case of a Holder
electing to receive Parent ADSs upon such conversion, that no such surrender on
any date when the transfer books of the Parent Common Share Depositary shall be
closed shall be effective to constitute the person or persons entitled to
receive such Parent ADSs upon such conversion as the record holder or holders of
such Parent ADSs on such date, but such surrender shall be effective to
constitute the person or persons entitled to receive such Parent ADSs as the
record holder or holders thereof for all purposes at the close of business on
the next succeeding day on which such transfer books are open; such conversion
shall be at the Conversion Price in effect on the date that such Security or
Securities shall have been surrendered for conversion, as if the transfer books
of the Parent Common Share Depositary had not been closed.
Upon conversion of any Security which is converted in part only, the
Issuer shall execute and the Trustee shall authenticate and make available for
delivery to or on the order of the holder thereof, at the expense of the Issuer,
a new Security or Security of authorized denominations in a principal amount
equal to the unconverted portion of such Security.
SECTION 11.3 No Adjustment for Interest or Dividends. No payment or
adjustment in respect of interest on the Securities or dividends on the Parent
Conversion Shares shall be made upon the conversion of any Security or
Securities; provided, however, that if a Security or Securities or any portion
thereof shall be converted subsequent to any record date and on or prior to the
next succeeding interest payment date, the interest falling due on such interest
payment date shall be payable on such interest payment date notwithstanding such
conversion, and such interest (whether or not punctually paid or duly provided
for) shall be paid to the person in whose name such Security is registered at
the close of business on such record date and Securities surrendered for
conversion during the period from the close of business on any record date to
the opening of business on the corresponding interest payment date must be
accompanied by payment of any amount equal to the interest payable on such
interest payment date.
SECTION 11.4 Adjustment of Conversion Price. Except as may otherwise
be established pursuant to Section 2.6 with respect to a particular series of
Securities, the Conversion Price in effect at any time for any series of
Securities that is convertible into Parent Shares shall be subject to adjustment
as follows:
(a) If the Guarantor shall, after the original issue date of such
series of Securities, (i) pay a dividend or make a distribution on its Parent
Common Shares in the form of Parent Common Shares (including, for the avoidance
of doubt, a dividend or distribution that permits the recipient to elect between
cash and Parent Common Shares), (ii) split its outstanding Parent Common Shares
into a greater number of Parent Common Shares or (iii) consolidate its
outstanding Parent Common Shares into a lesser number of Parent Common Shares,
the Conversion Price shall be adjusted (with effect from the Effective Date of
such event) in accordance with the following formula:
A = P x X
------
Y
where:
"A" shall mean the adjusted Conversion Price;
"P" shall mean the Conversion Price prior to the adjustment;
"X" shall mean the number of Parent Common Shares outstanding
immediately prior to the happening of the relevant event; and
"Y" shall mean the number of Parent Common Shares outstanding
immediately after the happening of the relevant event.
(b) If the Guarantor or any of its Subsidiaries shall, after the
original issue date of such Securities, issue
(i) to all or substantially all holders of Parent Common Shares,
any rights to purchase or subscribe for Parent Common Shares or other
securities which are convertible into or exchangeable for Parent Common
Shares or warrants or other rights to purchase or subscribe for Parent
Common Shares; or
(ii) Parent Common Shares or other securities or rights which are
convertible into or exchangeable for Parent Common Shares or warrants or
other rights to purchase or subscribe for Parent Common Shares (other
than issuances covered by (a) of this Section 11.4);
and the purchase, subscription, conversion, exchange or other issue price per
Parent Common Share (taking into account the consideration, if any, received by
the Guarantor in respect of an issuance covered by clause (ii) above) is below
the Market Price on the date of announcement of such issuance (or in the case of
(ii) above, below 95% of the Market Price on such date), the Conversion Price
shall be adjusted (with effect from the Effective Date of such event) in
accordance with the following formula:
A = P x (S + f)
---------
(S + a)
where:
"A" and "P" shall have the same meanings as in paragraph (a) of
this Section 11.4;
"S" shall mean the number of Parent Common Shares outstanding on
the date of the announcement of such event;
"f" shall mean the number of additional Parent Common Shares
which the aggregate purchase, subscription, conversion, exchange or
other price (taking into account the consideration received by the
Guarantor in respect of an issuance covered by (ii) above) would
purchase at the Market Price; and
"a" shall mean the number of additional Parent Common Shares
which are issued or are initially issuable pursuant to the other
securities or rights that are the subject of the issue.
(c) In case the Guarantor shall issue or distribute, as the case may
be, after the original issue date of such series of Securities, to all or
substantially all holders of Parent Common Shares any securities (other than as
described in paragraph (a) or (b) above) or assets (other than cash dividends or
dividends in kind in accordance with applicable laws) in each case declared and
paid in the ordinary course of the Guarantor's operations (but, for the
avoidance of doubt, including any dividend, or portion thereof, which
constitutes a redemption of Parent Common Share capital as part of a reduction
in nominal value of the Parent Common Shares) or any rights to acquire such
securities or assets, the Conversion Price shall be adjusted (with effect from
the Effective Date of such event) in accordance with the following formula:
A = P x (M - d)
----------
M
where:
"A" and "P" shall have the same meanings as in paragraph (a) of
this Section 11.4;
"M" shall mean the Market Price on the date on which such issue
or distribution, as the case may be, shall be made; and
"d" shall mean the fair market value (as determined by the
Executive Board, which determination shall be conclusive as of the date
on which such issue or distribution, as the case may be, shall be made)
of such portion of securities or assets or rights to acquire any of the
foregoing as is attributable to one Parent Common Share.
(d) If the Guarantor shall issue or distribute, after the original
issue date of such series of Securities, an Extraordinary Dividend, the
Conversion Price shall be adjusted (with effect from the Effective Date of such
event) in accordance with the following formula:
A = P x (M - e)
---------
M
where:
"A", "P" and "M" have the same meaning as in paragraph (c) of
this Section 11.4; and
"e" shall mean the Extraordinary Dividend;
For purpose of this paragraph (d), an Extraordinary Dividend shall
have occurred if, at the Effective Date, the aggregate amount of (x) any cash
dividends (prior to the deduction of any withholding tax plus any corporate tax
attributable to such dividend (a "Cash Dividend")) paid or declared by the
Guarantor on the Parent Common Shares and (y) all other Cash Dividends paid or
declared on the Parent Common Shares in the 365 consecutive day period prior to
the Effective Date (such aggregate of (x) and (y) being the "Total Current
Dividend"), equals or exceeds on a per Parent Common Share basis 5% of the
Average Closing Price of the Parent Common Shares during the Relevant Period.
For the avoidance of doubt, all values are on a per Parent Common Share basis.
(e) If the Guarantor determines (after consultation with the Trustee)
that an adjustment should be made to the Conversion Price, the Guarantor shall,
if the effect of the adjustment is to reduce the Conversion Price, make such
adjustments as it determines is fair and reasonable.
(f) Notwithstanding anything in this Section 11.4 to the contrary, the
Conversion Price may not be reduced so that, on exchange and conversion, Parent
Common Shares would be issued at a discount to their par value. Except in the
case of a consolidation of Parent Common Shares as provided in paragraph (a) of
this Section 11.4, in no event shall the Conversion Price be increased as a
result of any adjustment.
(g) Except as otherwise may be specified for any series of Securities
pursuant to Section 2.6, all calculations under this Section 11.4 shall be made
to the nearest cent or to the nearest one-hundredth of a Parent Common Share, as
the case may be. If any doubt shall arise as to the appropriate adjustment to
the Conversion Price, a certificate of the auditors of the Guarantor at the time
shall be conclusive and binding on all concerned save in the case of manifest
error.
(h) No adjustment in the Conversion Price shall be required unless
such adjustment would require a change of at least 1% in the Conversion Price
then in effect; provided, however, that any adjustments which by reason of this
paragraph are not required to be made and any amount by which the Conversion
Price shall be rounded shall be carried forward and taken into account in any
subsequent adjustment.
(i) No adjustment in the Conversion Price shall be required for a
change in the par value of the Parent Common Shares.
(j) Notwithstanding anything herein to the contrary, no adjustment
will be made to the Conversion Price where Parent Common Shares or other
securities or options, warrants or other rights to subscribe for or purchase
Parent Common Shares or other securities are issued to employees (including
directors holding executive office) of the Guarantor or of any Subsidiary or
associated company of the Guarantor pursuant to any stock option programs or
similar arrangements for employees.
(k) If a conversion date shall fall prior to the Effective Date of an
event requiring adjustment of the Conversion Price in circumstances where the
delivery of Parent Shares in respect of the exercise of the relevant conversion
right falls on or after such Effective Date, the Guarantor shall issue to the
relevant Holder such additional number of Parent Shares to which such Holder
would have been entitled had the relevant conversion date fallen immediately
following such Effective Date.
(l) Whenever the Conversion Price of any series is adjusted, as herein
provided, the Guarantor shall promptly file with the Trustee and with the
Conversion Agent a certificate of the Chief Financial Officer or Treasurer of
the Guarantor setting forth the Conversion Price after such adjustment and
setting forth a brief statement of the facts requiring such adjustment and a
computation thereof. Such certificate shall be conclusive evidence of the
correctness of such adjustment. Neither the Trustee nor any Conversion Agent
shall be under any duty or responsibility with respect to any such certificate
or any facts or computations set forth therein, except to exhibit said
certificate from time to time to any Holder of Securities desiring to inspect
the same. The Trustee, at the expense of the Guarantor, shall cause notice
setting forth the Conversion Price to be mailed, first-class postage prepaid, to
each Holder of Securities of such series at the address of such Holder as it
appears in the Register or in such other manner as shall be specified pursuant
to Section 2.6 for Securities of such series.
SECTION 11.5 No Fractional Parent Shares To Be Issued. No fractional
Parent Conversion Shares shall be issued upon conversions 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 Parent 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 so surrendered. Instead of a
fraction of a Parent Conversion Share which would otherwise be issuable upon
conversion of any Security or Securities (or specified portions thereof), the
Guarantor shall pay a cash adjustment in respect of such fraction of a Parent
Share in an amount equal to the same fractional interest of the Closing Price of
Parent Common Shares on the Stock Exchange Trading Day next preceding the day of
conversion.
SECTION 11.6 Preservation of Conversion Rights upon Consolidation,
Merger, Sale or Similar Event. In the event that the Guarantor shall be a party
to (i) any consolidation of the Guarantor with, or merger of the Guarantor into,
any other person, any merger of another person into the Guarantor (other than a
consolidation or merger which does not result in a conversion, exchange or
cancellation of outstanding Parent Common Shares of the Guarantor) or (ii) any
sale or transfer of assets of the Guarantor or similar event which, in any such
case will result in a reclassification or change of the Parent Common Shares
(other than a change in the nominal value or by a split or consolidation of
Parent Common Shares), the corporation or person formed by such consolidation or
resulting from such merger or which shall have acquired such assets, as the case
may be, shall execute and deliver to the Trustee a supplemental indenture
providing that the Holder of each Security then Outstanding shall have the right
thereafter to convert such Security into the kind and amount of Parent Common
Shares, other securities, cash and other assets receivable upon such
consolidation, merger, sale or similar event by a holder of the number of Parent
Common Shares into which such Security might have been converted immediately
prior to such consolidation, merger, sale or similar event. In any such event,
the Conversion Price shall be appropriately allocated to such Parent Common
Shares, other securities cash or other assets. 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 Eleven. Neither the
Trustee nor any Conversion Agent shall be under any responsibility to determine
the correctness of any provision contained in any such supplemental indenture
relating either to the kind or amount of shares or other securities or property
receivable by Holders of Securities upon the conversion of their Securities
after any such consolidation, merger, sale or transfer, or to any adjustment to
be made with respect thereto and, subject to the provisions of Section 5.1, may
accept the signing of such supplemental indenture by such corporation or person
as conclusive evidence of the correctness of any such provisions. The above
provisions of this Section 11.6 shall similarly apply to any successive
consolidation, merger, sale or similar event.
SECTION 11.7 Notice to Holders of Securities Prior to Taking Certain
Types of Action.
In case:
(a) the Guarantor shall authorize the distribution to all or
substantially all holders of Parent Common Shares of assets (other than
cash dividends or other distributions paid out of funds legally
available therefor and the dividends payable in shares for which
adjustment is made pursuant to Section 11.4); or
(b) the Guarantor shall authorize the granting to all holders of
its Parent Common Shares of rights or securities to subscribe for or
purchase any shares of its capital of any class; or
(c) of any consolidation or merger to which the Guarantor is a
party and for which approval of any shareholders of the Guarantor is
required, or of the sale or conveyance of all or substantially all of
the Guarantor's assets or property to another company; or
(d) of the voluntary or involuntary liquidation, dissolution or
winding up of the Guarantor;
then the Guarantor shall cause to be filed with the Trustee and the Conversion
Agent, at least 15 days prior to the applicable record date hereinafter
specified, a notice stating (i) the date as of which the holders of Parent
Common Shares shall be entitled to receive such distribution, rights or
securities, or (ii) the date on which such consolidation, merger, sale,
conveyance, dissolution, liquidation or winding up is expected to become
effective, and the date as of which it is expected that holders of Parent Common
Shares shall be entitled to exchange their Parent Common Shares for securities,
cash or other assets deliverable upon such consolidation, merger, sale, similar
event, dissolution, liquidation or winding-up. The failure to give the notice
required by this Section 11.7 or any defect therein shall not affect the
legality or validity of the proceedings described in paragraphs (a), (b), (c) or
(d) of this Section 11.7. Such notice, at the expense of the Guarantor, shall be
mailed by the Trustee, first-class postage prepaid, to each Holder of Securities
that are convertible into Parent Common Shares of the Guarantor at the address
of such Holder as it appears in the Register.
SECTION 11.8 Covenant to Reserve Parent Common Shares for Issuance on
Conversion of Securities. The Guarantor covenants that it will at all times
reserve and keep available, in the case of Securities of any series that are
convertible into Parent Common Shares, out of the aggregate of its authorized
but unissued Parent Common Shares and its issued Parent Common Shares held in
its treasury, free from pre-emptive rights, solely for the purpose of issue upon
conversion of Securities as herein provided, such number of Parent Common Shares
as shall then be issuable upon the conversion of all Outstanding Securities of
such series. For the purpose of this Section, the full number of Parent Common
Shares issuable upon the conversion of all Outstanding Securities of such series
shall be computed as if at the time of such computation all Outstanding
Securities of such series were held by a single Holder. The Guarantor shall from
time to time, in accordance with the laws of The Netherlands, increase the
authorized amount of its Parent Common Shares if at any time the aggregate of
the authorized amount of its Parent Common Shares remaining unissued and its
issued shares of Parent Common Shares held in its treasury (other than any such
shares reserved for issuance in any other connection) shall not be sufficient to
permit the conversion of all Securities of such series at the time outstanding.
The Guarantor covenants that all Parent Common Shares which shall be so issuable
shall, when issued, be duly and validly issued common shares of its authorized
share capital, 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 accounts of the Guarantor will be duly credited.
SECTION 11.9 Compliance with Governmental Requirements. The Guarantor
covenants that if any Parent Common Shares required to be reserved for purposes
of conversion of Securities hereunder require registration with or approval of
any governmental authority under any Dutch law or United States Federal or state
law, or any Dutch or United States national securities exchange, before such
Parent Common Shares may be issued upon conversion, the Guarantor will use its
best efforts to cause such shares to be duly registered or approved, as the case
may be.
SECTION 11.10 Payment of Taxes upon Certificates for Parent Common
Shares Issued upon Conversion. The issuance of Parent Shares upon the conversion
of Securities shall be made without charge to the converting Holders for any tax
in respect of such issuance, and in the case of Holders who elect to receive
Parent Common Shares, such Parent Common Shares shall be issued in bearer form
and in the case of Holders who elect to receive Parent ADSs, the Parent ADR
evidencing such Parent ADSs shall be issued in the respective names of or in
such names as may be directed by such Holders; provided, however, that neither
the Issuer nor the Guarantor shall be required to pay any tax which may be
payable in respect of any transfer involved in the issuance and delivery of any
Parent ADR in a name other than that of the Holder of the Security converted,
and none of the Issuer, the Conversion Agent, the Guarantor or the Parent Common
Share Depositary shall be required to issue or deliver such Parent ADR unless or
until the person or persons requesting the issuance thereof shall have paid to
the Issuer or the Guarantor, as the case may be, the amount of such tax or shall
have established to the satisfaction of the Issuer or the Guarantor, as the case
may be, that such tax has been paid.
SECTION 11.11 Trustee's Duties with Respect to Conversion Provisions.
The Trustee, subject to the provisions of Section 5.1, and any Conversion Agent
shall not at any time be under any duty or responsibility to any Holder to
determine whether any facts exist which may require any adjustment of the
conversion rate, 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 Parent Conversion Shares, 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 for any failure of the Issuer or the Guarantor to
make any cash payment or to issue, transfer or deliver any shares or share
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 5.1, and any Conversion Agent shall not be responsible for any failure
of the Issuer or the Guarantor to comply with any of the covenants of the Issuer
or the Guarantor contained in this Article Eleven. Each Conversion Agent (other
than the Issuer, the Guarantor or any affiliate thereof) shall have the same
protection under this Article Eleven as the Trustee.
ARTICLE TWELVE
GUARANTY OF SECURITIES
SECTION 12.1 Guaranty (a) The Guarantor hereby irrevocably and
unconditionally guarantees as hereinafter provided to each Holder of a Security
of any series authenticated and delivered by the Trustee, and to the Trustee,
the due and punctual payment of the principal of, premium, if any, and interest,
if any, on such Security, when and as the same shall become due and payable,
subject to any applicable grace period, whether on the date of maturity, by
acceleration or upon redemption pursuant to Article Ten or otherwise, according
to the terms of such Security and this Indenture. In addition, the Guarantor
irrevocably and unconditionally guarantees to the Holder of any Security of any
series authenticated and delivered by the Trustee that is convertible into
Parent Shares, and to the Trustee, the conversion of such Security in accordance
with the terms of Article Eleven when such Security is presented for conversion
in accordance with Article Eleven.
(b) All payments by the Guarantor under the Guaranty with respect to
any Security of any series, including, without limitation, payments of
principal, interest, if any, and premium, if any, shall be made by the Guarantor
without withholding or deduction for or on account of any present or future
taxes, duties, levies, or other governmental charges of whatever nature in
effect on the date of the Indenture or imposed or established in the future by
or on behalf of The Netherlands or any authority in The Netherlands ("Taxes").
In the event any such Taxes are so imposed or established, the Guarantor shall
pay such additional amounts ("Additional Amounts") as may be necessary in order
that the net amounts receivable by each Holder after any payment, withholding or
deduction in respect of such Taxes shall equal the respective amounts of
principal, interest, if any, and premium, if any, which would have been
receivable in respect of the Securities of any series in the absence of such
payment, withholding or deduction; except that no such Additional Amounts will
be payable with respect to any payment under the Guaranty to, or to a third
party on behalf of, a Holder for or on account of any such Taxes whatever that
have been imposed by reason of (i) the Holder being a resident or deemed a
resident of The Netherlands or having some connection with The Netherlands
(including, but not limited to, a Holder carrying on business in The Netherlands
through a permanent establishment or permanent representative in The
Netherlands) other than the mere holding of such Security or the receipt of
principal, interest, if any, or premium, if any, in respect thereof; (ii) the
presentation by the Holder of a Security of any series for payment on a date
more than thirty (30) days after the date on which such payment became due and
payable or the date on which payment thereof is duly provided for, whichever
occurs later; (iii) any estate, inheritance, gift, sales, transfer or personal
property tax or any similar tax, assessment or governmental charge; (iv) any
tax, assessment or other governmental charge which is payable otherwise than by
withholding from payments on or in respect of a Security of any series; or (v)
any combination of items (i), (ii), (iii) or (iv). Furthermore, no Additional
Amounts shall be paid with respect to any payment on a Security of any series to
a Holder that is a fiduciary or partnership or other than the sole beneficial
owner of such payment to the extent that a beneficiary or settlor with respect
to such fiduciary or a member of such partnership or beneficial owner would not
have been entitled to receive the Additional Amounts had such beneficiary,
settlor, member or beneficial owner been the Holder.
Whenever in this Indenture or the Securities there is a reference, in
any context, to any payment under the Guaranty such payment shall be deemed to
include the payment of Additional Amounts provided for in this Section to the
extent that, in such context, Additional Amounts are, were or would be payable
in respect of such payment pursuant to the provisions of such Section and
express mention of the payment of Additional Amounts (if applicable) in any
provision hereof shall not be construed as excluding Additional Amounts in those
provisions hereof where such express mention is not made.
(c) The Guarantor hereby agrees that its obligations hereunder shall
be as principal obligor and not merely as surety, and shall be unconditional,
irrevocable and absolute, irrespective of the validity, regularity or
enforceability of the Securities of any series or this Indenture, the absence of
any action to enforce the same, any waiver or consent by any Holder of the
Securities of any series with respect to any provisions hereof or thereof, the
recovery of any judgment against the Issuer, any action to enforce the same or
any other circumstance which might otherwise constitute a legal or equitable
discharge or defense of a guarantor.
(d) The Guarantor hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or bankruptcy
of the Issuer, any right to require a proceeding first against the Issuer,
protest, notice with respect to the Security on which this Guaranty is endorsed
or the indebtedness evidenced thereby, and all demands whatsoever and covenants
that the Guaranty not be discharged except by complete performance of the
obligations of the Guarantor contained in the Securities and this Indenture. If
any Securityholder or the Trustee is required by any court or otherwise to
return to the Issuer, the Guarantor, any Custodian or other similar official
acting in relation to the Issuer or the Guarantor, any amount paid by the Issuer
or the Guarantor to the Trustee or such Securityholder, the Guaranty to the
extent theretofore discharged, shall be reinstated in full force and effect.
(e) The Guarantor agrees to pay any and all costs and expenses
(including reasonable attorneys' fees and expenses) incurred by the Trustee or
any Holders in enforcing any rights under the Guaranty.
(f) The Guarantor hereby waives, in favor of the Holders and the
Trustee, any and all of its rights, protections, privileges and defenses
provided by any applicable law to a guarantor and waives any right of set-off
which the Guarantor may have against the Holder of a Security in respect of any
amounts which are or may become payable by the Holder of a Security to the
Issuer.
SECTION 12.2 Representation and Warranty. The Guarantor hereby
represents and warrants that all acts, conditions and things required to be done
and performed and to have happened precedent to the creation and issuance of the
Guaranty and the Indemnity, and to constitute the same legal, valid and binding
obligations of the Guarantor enforceable in accordance with their respective
terms, have been done and performed and have happened in compliance with all
applicable laws.
SECTION 12.3 Subrogation. The Guarantor will be subrogated to all
rights of Holders of Securities of any series on which the Guaranty is endorsed
against the Issuer in respect of any amount paid by the Guarantor pursuant to
the Guaranty with respect to Securities of such series; provided, however, that
the Guarantor shall not, without the consent of the Holders of all of the
Securities of such series, be entitled to enforce, or to receive any payments
arising out of or based upon, such right of subrogation until the principal of
and premium, if any, and interest, if any, on all of the Securities of such
series shall be paid in full or payment thereof shall have been provided for in
accordance with this Indenture.
ARTICLE THIRTEEN
MISCELLANEOUS PROVISIONS
SECTION 13.1 Incorporators, Shareholders, Officers, Directors, Members
of the Executive Board and Supervisory Board Exempt from Individual Liability.
No recourse under or upon any obligation, covenant or agreement contained in
this Indenture, or in any Security, or because of any indebtedness evidenced
thereby, shall be had against any incorporator, as such or against any past,
present or future shareholder, officer or director of the Issuer, shareholder,
officer, member or deputy member of the Executive Board, or member or deputy
member of the supervisory board of the Guarantor, as such, or of any successor,
either directly or through the Issuer, the Guarantor or any successor, under any
rule of law, statute or constitutional provision or by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of the
Securities by the Holders thereof and as part of the consideration for the issue
of the Securities.
SECTION 13.2 Provisions of Indenture for the Sole Benefit of Parties
and Securityholders. Nothing in this Indenture or in the Securities, expressed
or implied, shall give or be construed to give to any person, other than the
parties hereto and their successors and assigns and the Holders of the
Securities, any legal or equitable right, remedy or claim under this Indenture
or under any covenant, condition or provision herein contained, all such
covenants and provisions being for the sole benefit of the parties hereto and
their successors and of the Holders of the Securities.
SECTION 13.3 Successors and Assigns of Issuer and Guarantor Bound by
Indenture. All the covenants, stipulations, promises and agreements in this
Indenture contained by the Issuer and the Guarantor shall bind each of their
successors and assigns, whether or not so expressed.
SECTION 13.4 Notices and Demands on Issuer, Guarantor, Trustee and
Securityholders. Any notice or demand which by any provision of this Indenture
is required or permitted to be given or served by the Trustee or by the Holders
of Securities to or on the Issuer may be given or served by being deposited
postage prepaid, first-class mail, in a post office letter box (except as
otherwise specifically provided herein) addressed (until another address of the
Issuer is furnished by the Issuer to the Trustee) to Ahold Finance U.S.A., Inc.,
One Atlanta Plaza, 000 Xxxx Xxxxx Xxxxx Xxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx
00000, U.S.A., Attention: Chief Financial Officer. Any notice or demand which by
any provision of this Indenture is required or permitted to be given or served
by the Trustee or by the Holders of Securities to or on the Guarantor may be
given or served by being deposited postage prepaid, first-class mail, in a post
office letter box (except as otherwise specifically provided herein) addressed
(until another address of the Guarantor is furnished by the Guarantor to the
Trustee) to, Xxxxxx Xxxxxxxx 0, 0000 XX Xxxxxxx, Xxx Xxxxxxxxxxx, Attention:
Treasurer. Any notice, direction, request or demand by the Issuer, the Guarantor
or any Securityholder to or upon the Trustee shall be deemed to have been
sufficiently given or made, for all purposes, if given or made in writing at its
Corporate Trust Office.
Where this Indenture provides for notice to Securityholders, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Securityholder
entitled thereto, at his last address as it appears in the Register. In any case
where notice to Securityholders is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any particular
Securityholder shall affect the sufficiency of such notice with respect to other
Securityholders. 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 Securityholders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver. Notwithstanding anything to the
contrary elsewhere in this Indenture as to the giving of notice, any other form
of written notice is sufficient, if received.
In case, by reason of the suspension of or irregularities in regular
mail service, it shall be impracticable to mail notice to the Issuer, the
Guarantor or Securityholders when such notice is required to be given pursuant
to any provision of this Indenture, then notwithstanding anything to the
contrary elsewhere in this Indenture as to the giving of notice, any manner of
giving such notice as shall be satisfactory to the Trustee shall be deemed to be
a sufficient giving of such notice.
SECTION 13.5 Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein. Upon any application or demand by the Issuer
or the Guarantor to the Trustee to take any action under any of the provisions
of this Indenture, the Issuer or the Guarantor, as the case may be, shall
furnish to the Trustee an Officers' Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent have been complied with,
except that in the case of any such application or demand as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or demand, no additional
certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture shall include (a) a statement that the person
making such certificate or opinion has read such covenant or condition, (b) a
brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion
are based, (c) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with and (d) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the Issuer or
the Guarantor may be based, insofar as it relates to legal matters, upon a
certificate or opinion of or representations by counsel, unless such officer
knows that the certificate or opinion or representations with respect to the
matters upon which his certificate, statement or opinion may be based as
aforesaid are erroneous. Any certificate, statement or opinion of counsel may be
based, insofar as it relates to factual matters or information which is in the
possession of the Issuer or the Guarantor, upon the certificate, statement or
opinion of or representations by an officer or officers of the Issuer or the
Guarantor, unless such counsel knows that the certificate, statement or opinion
or representations with respect to the matters upon which his certificate,
statement or opinion may be based as aforesaid are erroneous.
Any certificate, statement or opinion of an officer of the Issuer or
the Guarantor or of counsel may be based, insofar as it relates to accounting
matters, upon a certificate or opinion of or representations by an accountant or
firm of accountants in the employ of the Issuer or the Guarantor, unless such
officer or counsel, as the case may be, knows that the certificate or opinion or
representations with respect to the accounting matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous.
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 13.6 Official Acts by Successor Entity. Any act or proceeding
by any provision of this Indenture authorized or required to be done or
performed by any board, committee or officer of the Issuer or the Guarantor
shall and may be done and performed with like force and effect by the like
board, committee or officer of any entity that shall at the time be the lawful
sole successor of the Issuer or the Guarantor, as the case may be.
SECTION 13.7 Payments Due on Saturdays, Sundays and Legal Holidays.
Except as may be provided pursuant to Section 2.6 with respect to any series or
tranche, if the date of maturity of interest on or principal of the Securities
of any series or the date fixed for redemption or repayment of any such Security
shall not be a Business Day, then payment of such interest, if any, or principal
need not be made on such date, but may be made on the next succeeding Business
Day with the same force and effect as if made on the date of maturity or the
date fixed for redemption or repayment, and no interest shall accrue for the
period from and after such date.
SECTION 13.8 NEW YORK LAW TO GOVERN. THIS INDENTURE, INCLUDING THE
GUARANTY, AND EACH SECURITY AND THE ENDORSEMENT OF THE GUARANTY THEREON SHALL BE
DEEMED TO BE A CONTRACT UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL
PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF SUCH STATE.
SECTION 13.9 Counterparts. This Indenture may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
SECTION 13.10 Effect of Headings. The Article and Section headings
herein and the Table of Contents are for convenience of reference only, are not
to be considered a part hereof and shall not affect the construction hereof.
SECTION 13.11 Conflict with Trust Indenture Act. If any provision
hereof limits, qualifies or conflicts with a provision of the Trust Indenture
Act of 1939 that is required under such Act to be a part of and govern this
Indenture, the latter provisions shall control. If any provision of this
Indenture modifies or excludes any provision of the Trust Indenture Act of 1939
that may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
SECTION 13.12 Submission to Jurisdiction. Each of the Issuer and the
Guarantor (a) agrees that any legal suit, action or proceeding arising out of or
based upon this Indenture, the Securities or the Guaranty may be instituted in
any state or U.S. federal court in the State and County of New York, the Borough
of Manhattan, United States of America, (b) waives, to the extent it may
effectively do so, any objection which it may have now or hereafter to the
laying of the venue of any such suit, action or proceeding, and (c) irrevocably
submits to the jurisdiction of any such court in any such suit, action or
proceeding. The Guarantor hereby designates Ahold U.S.A., Inc. as its authorized
agent to accept and acknowledge on its behalf service of any and all process
which may be served in any such suit, action or proceeding in any such court and
agrees that service of process upon said agent at its office at One Atlanta
Plaza, 950 East Paces Ferry Road, Suite 2575, Xxxxxxx, Xxxxxxx 00000, U.S.A.,
Attention: Chief Executive Officer and written notice of said service to the
Guarantor, mailed or delivered to it at Xxxxxx Xxxxxxxx 0, 0000 XX Xxxxxxx, Xxx
Xxxxxxxxxxx, Attention: Treasurer, shall be deemed in every respect effective
service of process upon the Guarantor in any such suit, action or proceeding and
shall be taken and held to be valid personal service upon the Guarantor whether
or not the Guarantor shall then be doing, or at any time shall have done,
business within the State of New York, and that any such service of process
shall be of the same force and validity as if service were made upon it
according to the laws governing the validity and requirements of such service in
such State, and waives all claim of error by reason of any such service. Neither
such appointment nor such acceptance of jurisdiction shall be interpreted to
include actions brought under the United States federal securities laws. Said
designation and appointment shall be irrevocable until the earlier of the date
on which no Securities remain Outstanding or the date that this Indenture shall
have been satisfied and discharged in accordance with Article Nine.
SECTION 13.13 Severability. In case any provision in this Indenture or
in the Securities or the Guaranty 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.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, all as of [ ].
AHOLD FINANCE U.S.A., INC.
By
--------------------------------
Name:
Title:
Attest:
By
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Name:
Title:
KONINKLIJKE AHOLD N.V.
By
--------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
as Trustee
By
--------------------------------
Name:
Title:
Attest:
By
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Name:
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