[Draft--11/25/96]
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INDENTURE
Among
CROWN CORK & SEAL COMPANY, INC.
as Issuer and Guarantor
and
CROWN CORK & SEAL FINANCE PLC
as Issuer
(with Guarantee of Crown Cork & Seal Company, Inc.)
and
CROWN CORK & SEAL FINANCE S.A.
as Issuer
(with Guarantee of Crown Cork & Seal Company, Inc.)
and
THE BANK OF NEW YORK
as Trustee
Dated as of , 1996
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Reconciliation and tie between Trust Indenture Act of 1939 and Indenture, dated
as of
Trust Indenture Act Section Indenture Section
--------------------------- -----------------
(S) 310(a)(1)............................................... 6.9
(a)(2)............................................... 6.9
(a)(3)............................................... N\A
(a)(4)............................................... N\A
(a)(5)............................................... 6.9
(b) ................................................ 6.8, 6.10
(S) 311(a) ................................................ 6.13(a)
(b) ................................................ 6.13(b)
(b)(2)............................................... 7.3(a)(2)
............................................... 7.3(b)
(S) 312(a) ................................................ 7.1, 7.2(a)
(b) ................................................ 7.2(b)
(c) ................................................ 7.2(c)
(S) 313(a) ................................................ 7.3(a)
(b) ................................................ 7.3(b)
(c) ................................................ 7.3(a)
7.3(b)
(d) ................................................ 7.3(c)
(S) 314(a) ................................................ 7.4
(b) ................................................ N\A
(c)(1)............................................... 1.2
(c)(2)............................................... 1.2
(c)(3)............................................... N\A
(d) ................................................ N\A
(e) ................................................ 1.2
(S) 315(a) ................................................ 6.1(a)
(b) ................................................ 6.2,
(c) ................................................ 6.1(b)
7.3(a)(b)
(d) ................................................ 6.1(c)
(d)(1)............................................... 6.1(a)(1)
(d)(2)............................................... 6.1(c)(2)
(d)(3)............................................... 6.1(c)(3)
(3) ................................................ 5.14
(S) 316(a)(1)............................................... 1.1
(a)(1)(A)............................................ 5.2, 5.12
(a)(1)(B)............................................ 5.13
(b) ................................................ 5.8
3
(S) 317(a)(1)............................................... 5.3
(a)(2)............................................... 5.4
(b) ................................................ 10.3
(S) 318(a) ................................................ 1.7
________________
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
TABLE OF CONTENTS/1/
Page
----
PARTIES............................................................. 1
RECITALS............................................................ 1
ARTICLE I
Definitions and Other
---------------------
Provisions of General Application
---------------------------------
SECTION 1.01. Definitions......................................... 2
SECTION 1.02. Compliance Certificates and Opinions................ 13
SECTION 1.03. Form of Documents Delivered to Trustee.............. 14
SECTION 1.04. Acts of Holders..................................... 15
SECTION 1.05. Notices, etc., to Trustee and Issuers and the
Guarantor.......................................... 16
SECTION 1.06. Notice to Holders; Waiver........................... 16
SECTION 1.07. Conflict with Trust Indenture Act................... 17
SECTION 1.08. Effect of Headings and Table of Contents............ 17
SECTION 1.09. Successors and Assigns.............................. 17
SECTION 1.10. Severability Clause................................. 18
SECTION 1.11. Benefits of Indentures.............................. 18
SECTION 1.12. Governing Law....................................... 18
SECTION 1.13. Submission to Jurisdiction; Appointment
of Agent for Service of Process..................... 18
SECTION 1.14. Legal Holidays...................................... 19
SECTION 1.15. Certain Matters Relating to Currencies.............. 19
SECTION 1.16. Indenture, Securities and Guarantees Solely
Corporate Obligations.............................. 20
SECTION 1.17. Execution in Counterparts........................... 20
ARTICLE II
Security Forms
--------------
SECTION 2.01. Forms Generally..................................... 20
SECTION 2.02. Form of Face of Security............................ 22
SECTION 2.03. Form of Reverse of Security......................... 25
SECTION 2.04. Form of Notation of Guarantees...................... 30
____________________
/1/Note: This table of contents shall not, for any purpose, be deemed to
be a part of this Indenture.
Contents, p. 2
Page
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SECTION 2.05. Form of Trustee's Certificate of Authentication..... 31
ARTICLE III
The Securities
--------------
SECTION 3.01. Amount Unlimited; Issuable in Series................ 31
SECTION 3.02. Denominations....................................... 35
SECTION 3.03. Execution, Authentication, Delivery and Dating...... 35
SECTION 3.04. Temporary Securities................................ 37
SECTION 3.05. Registration, Registration of Transfer and Exchange. 38
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities.... 39
SECTION 3.07. Payment of Interest; Interest Rights Preserved...... 41
SECTION 3.08. Persons Deemed Owners............................... 42
SECTION 3.09. Cancelation......................................... 43
SECTION 3.10. Computation of Interest............................. 43
SECTION 3.11. Global Securities................................... 43
SECTION 3.12. UK Global Securities................................ 46
SECTION 3.13. Payment to be in Proper Currency.................... 50
ARTICLE IV
Satisfaction and Discharge
--------------------------
SECTION 4.01. Satisfaction and Discharge of any Series............ 50
SECTION 4.02. Application of Trust Money.......................... 54
SECTION 4.03. Satisfaction and Discharge of Indenture............. 55
SECTION 4.04. Reinstatement....................................... 55
ARTICLE V
Remedies
--------
SECTION 5.01. Events of Default................................... 56
SECTION 5.02. Acceleration for Maturity; Rescission and Annulment. 58
SECTION 5.03. Collection of Indebtedness and Suits for Enforcement
by Trustee......................................... 59
SECTION 5.04. Trustee May File Proofs of Claim.................... 60
SECTION 5.05. Trustee May Enforce Claims Without Possession of
Securities......................................... 61
SECTION 5.06. Application of Money Collected...................... 62
SECTION 5.07. Limitation on Suits................................. 62
Page
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SECTION 5.08. Unconditional Right of Holders to Receive Principal,
Premium and Interest............................... 63
SECTION 5.09. Restoration of Rights and Remedies.................. 63
SECTION 5.10. Rights and Remedies Cumulative...................... 63
SECTION 5.11. Delay or Omission Not Waiver........................ 64
SECTION 5.12. Control by Holders.................................. 64
SECTION 5.13. Waiver of Past Defaults............................. 64
SECTION 5.14. Undertaking for Costs............................... 65
SECTION 5.15. Waiver of Usury, Stay or Extension Laws............. 65
ARTICLE VI
The Trustee
-----------
SECTION 6.01. Certain Duties and Responsibilities................. 66
SECTION 6.02. Notice of Defaults.................................. 67
SECTION 6.03. Certain Rights of Trustee........................... 68
SECTION 6.04. Not Responsible for Recitals or Issuance of
Securities......................................... 69
SECTION 6.05. May Hold Securities................................. 69
SECTION 6.06. Money Held in Trust................................. 69
SECTION 6.07. Compensation and Reimbursement...................... 70
SECTION 6.08. Qualification of Trustee; Conflicting Interests..... 70
SECTION 6.09. Corporate Trustee Required; Eligibility............. 70
SECTION 6.10. Resignation and Removal; Appointment of Successor... 71
SECTION 6.11. Acceptance of Appointment by Successor.............. 73
SECTION 6.12. Merger, Conversion, Consolidation or Succession to
Business........................................... 75
SECTION 6.13. Preferential Collection of Claims Against Issurers
or the Guarantor................................... 75
SECTION 6.14. Appointment of Authenticating Agent................. 75
ARTICLE VII
Holders' Lists and Reports by
-----------------------------
Trustee and Issuers and the Guarantor
-------------------------------------
SECTION 7.01. Issuers and the Guarantor to Furnish Trustee Names
and Addresses of Holders........................... 79
SECTION 7.02. Preservation of Information; Communications to
Holders............................................ 79
SECTION 7.03. Reports by Trustee.................................. 81
SECTION 7.04. Reports by Issuers and the Guarantor................ 81
Contents, p. 4
Page
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ARTICLE VIII
Consolidation, Merger, Conveyance,
---------------------------------
Transfer or Lease
-----------------
SECTION 8.01. Company May Consolidate, etc., Only on Certain Terms 81
SECTION 8.02 Subsidiary Issuers May Consolidate, etc., Only on
Certain Terms...................................... 83
SECTION 8.03. Successor Substituted............................... 87
SECTION 8.04. Assumption by Company of Subsidiary Issuers'
Obligations........................................ 87
SECTION 8.05. Indemnification Procedure........................... 88
ARTICLE IX
Supplemental Indentures
-----------------------
SECTION 9.01. Supplemental Indentures without Consent of Holders.. 90
SECTION 9.02. Supplemental Indentures with Consent of Holders..... 92
SECTION 9.03. Execution of Supplemental Indentures................ 93
SECTION 9.04. Effect of Supplemental Indentures................... 93
SECTION 9.05. Conformity with Trust Indenture Act................. 94
SECTION 9.06. Reference in Securities to Supplemental Indentures.. 94
ARTICLE X
Covenants
---------
SECTION 10.01. Payment of Principal, Premium and Interest........ 94
SECTION 10.02. Maintenance of Office or Agency................... 94
SECTION 10.03. Money for Security Payments to be Held in Trust... 96
SECTION 10.04. Corporate Existence............................... 98
SECTION 10.05. Maintenance of Properties......................... 98
SECTION 10.06. Payment of Taxes and Other Claims................. 98
SECTION 10.07. Additional Amounts................................ 99
SECTION 10.08. Limitations on Liens.............................. 101
SECTION 10.09. Limitations on Sale and Leaseback................. 103
SECTION 10.10. Statement by Officers as to Default............... 104
SECTION 10.11. Waiver of Certain Covenants....................... 104
SECTION 10.12. Defeasance of Certain Obligations................. 104
Contents, p. 5
Page
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ARTICLE XI
Redemption of Securities
------------------------
SECTION 11.01. Applicability of Article.......................... 106
SECTION 11.02. Election To Redeem; Notice to Trustee............. 107
SECTION 11.03. Selection by Trustee of Securities to be Redeemed. 107
SECTION 11.04. Notice of Redemption.............................. 107
SECTION 11.05. Deposit of Redemption Price....................... 108
SECTION 11.06. Securities Payable on Redemption Date............. 109
SECTION 11.07. Securities Redeemed in Part....................... 109
SECTION 11.08. Optional Redemption Due to Changes in Tax
Treatement....................................... 110
ARTICLE XII
Sinking Funds
-------------
SECTION 12.01. Applicability of Article.......................... 112
SECTION 12.02. Satisfaction of Sinking Fund Payments with
Securities....................................... 112
SECTION 12.03 Redemption of Securities for Sinking Fund......... 113
ARTICLE XIII
Guarantees of Securities
------------------------
SECTION 13.01. Guarantees........................................ 113
SECTION 13.02. Execution of Guarantees........................... 115
[Draft--11/25/96]
INDENTURE, dated as of December , 0000, xxxxx XXXXX XXXX &
SEAL COMPANY, INC., a Pennsylvania corporation (the "Company"
and, with respect to Securities (as defined herein) issued by
either Subsidiary Issuer (as defined herein), the "Guarantor");
CROWN CORK & SEAL FINANCE S.A., a societe anonyme organized
under the laws of the Republic of France ("Crown France"); CROWN
CORK & SEAL FINANCE PLC, a public limited company organized under
the laws of England and Wales ("Crown UK") (each of Crown France
and Crown UK being a "Subsidiary Issuer" and, collectively the
"Subsidiary Issuers"); and THE BANK OF NEW YORK, as trustee (the
"Trustee"). The Subsidiary Issuers and the Company in its
capacity as an issuer of Securities are herein referred to
individually as an "Issuer" and collectively as the "Issuers".
Each of the Issuers has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
The Guarantor has duly authorized the execution and delivery of this
Indenture to provide for the Guarantees of the Securities provided for herein.
All things necessary have been done to make this Indenture a valid
agreement of each of the Issuers and the Guarantor, in accordance with its
terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities, it is mutually covenanted and
2
agreed, for the equal and proportionate benefit of all Holders of the
Securities, as follows:
ARTICLE I
Definitions and Other Provisions
--------------------------------
of General Application
----------------------
SECTION 1.01. Definitions. For all purposes of this Indenture, except
------------
as otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(b) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as
are generally accepted at the date of this Indenture;
(d) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to the Indenture as a whole and not to any particular
Article, Section or other subdivision;
(e) references to the "applicable Issuer" are to the Issuer of the
Securities being described; and
(f) references to "Guarantees" and the "Guarantor" are operative only
where a Subsidiary Issuer is, was or may become the Issuer of the relevant
series of Securities, and only with respect to such series of Securities.
"Act", when used with respect to any Holder, has the meaning specified
in Section 1.04.
3
"Additional Amounts" has the meaning specified in Section 10.07.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agreement Currency" has the meaning specified in Section 1.18.
"Attributable Debt" with respect to any sale leaseback transaction
restricted by Section 10.09 means the lesser of (i) the total net amount of rent
required to be paid during the remaining base term of the related lease or until
the earliest date on which the lessee may terminate such lease upon payment of a
penalty or a lump-sum termination payment (in which case the total net rent
shall include such penalty or termination payment), discounted at the weighted
average interest rate borne by the Outstanding Securities, compounded semi-
annually, or (ii) the sale price of the property so leased multiplied by a
fraction the numerator of which is the remaining base term of the related lease
(expressed in months) and the denominator of which is the base term of such
lease (expressed in months).
"Authenticating Agent" means any Person authorized by the Trustee to
act on behalf of the Trustee to authenticate Securities.
"Authorized Agent" has the meaning specified in Section 1.13.
"Authorized Officer" means any person (whether designated by name or
the persons for the time being holding a designated office) appointed by or
pursuant to a Board Resolution for the purpose, or a particular purpose, of this
Indenture, provided that written notice of such appointment shall have been
given to the Trustee.
"Bearer Security Depositary" means, with respect to any series of
Securities of Crown UK issuable in whole or
4
in part in the form of one or more UK Global Securities, the book-entry
depositary or its nominee or the custodian of either, designated by Crown UK in
the Bearer Security Depositary Agreement until a successor depositary shall have
become such pursuant to applicable provisions of the Bearer Security Depositary
Agreement, and thereafter "Bearer Security Depositary" shall mean such successor
book-entry depositary or its nominee or the custodian of either, and if at any
time there is more than one such Person, "Bearer Security Depositary" as used
with respect to the Securities of any series shall mean the Bearer Security
Depositary with respect to the Securities of that series.
"Bearer Security Depositary Agreement" means the Note Depositary
Agreement dated as of the date of this Indenture between Crown UK and .
"Beneficial Owner" means, with respect to Global Securities or UK
Global Securities, the Person who is the beneficial owner of such Securities as
reflected on the books of the Depositary for such Securities or on the books of
a Person maintaining an account with such Depositary (directly or as an indirect
participant, in accordance with the rules of such Depositary).
"Board of Directors", when used with reference to any of the Issuers
or the Guarantor, means the board of directors (or any duly authorized committee
thereof) of such Issuer or the Guarantor, as the case may be.
"Board Resolution", when used with reference to an Issuer or the
Guarantor, means a copy of a resolution certified by the Secretary or an
Assistant Secretary of such Issuer or the Guarantor, as the case may be, to have
been duly adopted by the applicable Board of Directors and to be in full force
and effect on the date of such certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by
law, regulation or executive order to close.
"Certificate of a Firm of Independent Public Accountants" means a
certificate signed by any firm of independent public accountants of recognized
national standing selected by the applicable Issuer or the Guarantor.
5
The term "independent" when used with respect to any specified firm of public
accountants means such a firm which (1) is in fact independent, (2) does not
have any direct financial interest or any material indirect financial interest
in such Issuer or in any other obligor upon the Securities of any series or in
any affiliate of such Issuer or of such other obligor, and (3) is not connected
with such Issuer or such other obligor or any affiliate of such Issuer or of
such other obligor, as an officer, employee, promoter, underwriter, trustee,
partner, director or person performing similar functions, but such firm may be
the regular auditors employed by such Issuer or the Guarantor. Whenever it is
herein provided that any Certificate of a Firm of Independent Public Accountants
shall be furnished to the Trustee for Securities of any series, such Certificate
shall state that the signer has read this definition and that the signer is
independent within the meaning hereof.
"Code" shall mean the United States Internal Revenue Code of 1986, as
amended, and regulations, rulings and judicial decisions thereunder as of
, 1996.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any time
after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument, until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Consolidated Net Tangible Assets" means the aggregate amount of
assets (less applicable reserves and other properly deductible items) after
deducting therefrom (a) all current liabilities and (b) all goodwill,
tradenames, trademarks, patents, unamortized debt discount and expense (to the
extent included in said aggregate amount of assets) and other like intangibles,
all as set forth on the most recent consolidated balance sheet of the Company
and its consolidated Subsidiaries and computed in accordance with generally
accepted accounting principles.
6
"Corporate Trust Office" means the principal office of the Trustee in
The City of New York, in the State of New York at which at any particular time
its corporate trust business shall be administered, which office at the date of
execution of this Indenture is located at .
"Corporation" means a corporation, association, company, joint stock
company or business trust.
"Defaulted Interest" has the meaning specified in Section 3.07.
"Depositary" means, with respect to Securities of any series issuable
in whole or in part in the form of one or more Global Securities or UK Global
Securities, a clearing agency registered as such under the Exchange Act, or any
successor thereto, which shall in either case be designated by the applicable
Issuer pursuant to Section 3.01 until a successor Depositary shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Depositary" shall mean or include each Person who is then a Depositary
hereunder, and if at any time there is more than one such Person, "Depositary"
as used with respect to the Securities of any series shall mean the Depositary
with respect to the Securities of that series.
"Discounted Security" means any Security which provides for an amount
(excluding any amounts attributable to accrued but unpaid interest thereon) less
than the principal amount thereof to be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 5.02.
"Dollars" and the sign "$" mean the currency of the United States of
America as at the time of payment is legal tender for the payment of public and
private debts.
"Event of Default" has the meaning specified in Article V.
"Exchange Act" means the Securities Exchange Act of 1934 and any
statute successor thereto, in each case, as amended from time to time.
"Exempted Indebtedness" means as of any particular time the sum of
(i) all then-outstanding indebtedness for borrowed money of the Company and
Restricted Subsidiaries
7
incurred after the date hereof and secured by any mortgage, security interest,
pledge or lien other than those permitted by paragraph (a) of Section 10.08, and
(ii) all Attributable Debt with respect to Sale and Leaseback Transactions
entered into by the Company and Restricted Subsidiaries after the date hereof
other than those permitted by paragraph (a) of Section 10.09.
"Foreign Currency" means a currency issued by the government of any
country other than the United States of America or any composite currency
(including, without limitation, the European Currency Unit).
"Funded Debt" means any indebtedness of the Company or a Restricted
Subsidiary for borrowed money having a maturity of more than 12 months from the
date such indebtedness was incurred or having a maturity of less than 12 months
but by its terms being renewable or extendable beyond 12 months from the date
such indebtedness was incurred at the option of the obligor.
"Global Security" means a Security evidencing all or part of a series
of Securities which the applicable Issuer executed and authenticated and
delivered to the Depositary or pursuant to the Depositary's instructions, and
which the Guarantor executed, as applicable, the notation of any Guarantees
pursuant to Article XIII or any Guarantees endorsed on, all in accordance with
this Indenture and pursuant to an Issuer Order, which shall be registered in the
name of the Depositary or its nominee and which shall represent the amount of
uncertificated Securities as specified therein.
"Government Obligations" means securities that are (i) direct
obligations of the government which issued the currency in which the Securities
of a particular series are payable or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the government which
issued the currency in which the Securities of such series are payable, the
payment of which is unconditionally guaranteed by such government, which, in
either case, are full faith and credit obligations of such government payable in
such currency and are not callable or redeemable at the option of the issuer
thereof.
"Guarantee" means the irrevocable and unconditional guarantee by the
Guarantor of any Security of any series of any Subsidiary Issuer authenticated
and
8
delivered pursuant to this Indenture either (i) if specified in a Board
Resolution of the Guarantor as contemplated by Section 3.01 and endorsed on such
Security or (ii) otherwise applicable pursuant to Article XIII.
"Guarantor" means the Person named as the "Guarantor" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Guarantor" shall mean such successor Person.
"Holder" means, (i) with respect to a series of Securities of Crown UK
issuable in whole or in part in the form of one or more UK Global Securities,
the bearer thereof which shall initially be the Bearer Security Depositary and
(ii) otherwise a Person in whose name a Security is registered in the Security
Register.
"Indemnifiable Transaction" shall have the meaning specified in
Section 8.05.
"Indenture" means this instrument as originally executed and as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities established as
contemplated by Section 3.01.
"interest", when used with respect to a Discounted Security which by
its terms bears interest only after Maturity, means interest payable after
Maturity.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Issuer" means (i) any of the Persons named as an "Issuer" in the
first paragraph of this instrument until a successor Person shall have become
such pursuant to the applicable provisions of this Indenture in respect of any
such Person, and thereafter "Issuer", in respect of such Person, shall mean such
successor Person and (ii) when used with respect to Securities, shall mean the
Issuer of Securities of the relevant series.
"Issuer Request" or "Issuer Order" means, with respect to Securities
of a series, a written request or order signed in the name of the Issuer or the
Guarantor of
9
such Securities by any one of such Issuer's or the Guarantor's Chairman of the
Board, President or a Vice President, and by any one of such Issuer's or the
Guarantor's Treasurer, any Assistant Treasurer, Secretary or any Assistant
Secretary, and delivered to the Trustee.
"Judgment Currency" has the meaning specified in Section 1.18.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate", with respect to an Issuer or the Guarantor,
means a certificate signed by the Chairman of the Board, the President, a Vice
President or the Treasurer, and by the Secretary or an Assistant Secretary, of
such Issuer or the Guarantor, as the case may be, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for an Issuer or the Guarantor (including in-house counsel) or the
Trustee, and who shall be acceptable to the Trustee.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(a) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(b) Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the applicable Issuer or the Guarantor) in trust or set aside
and segregated in trust by the applicable Issuer or the Guarantor (if such
Issuer or the Guarantor shall act as its own or their own Paying Agent) for
the Holders of such Securities; provided that if such Securities are to be
--------
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been made;
10
(c) Securities, except to the extent provided in Section 4.03, as to
which the applicable Issuer or the Guarantor has effected defeasance as
provided in Article IV; and
(d) Securities that have been paid pursuant to Section 3.06 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the applicable
Issuer;
provided, however, that in determining whether the Holders of the requisite
-------- -------
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder as of any date,
(i) Securities owned by any of the Issuers or the Guarantor or any other obligor
upon the Securities or any Affiliate of any of the Issuers or the Guarantor or
such other obligor shall be disregarded and deemed not to be Outstanding, except
that (A) in determining whether the Trustee shall be protected in relying upon
any such request, demand, authorization, direction, notice, consent or waiver,
only Securities which the Trustee knows to be so owned shall be so disregarded
and (B) Securities so owned that have been pledged in good faith may be regarded
as Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not an Issuer or the Guarantor or any other obligor upon the Securities or
any Affiliate of an Issuer or the Guarantor or such other obligor; (ii) the
principal amount of any Discounted Security that shall be deemed to be
Outstanding for such purposes shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon a declaration
of acceleration pursuant to Section 5.02; (iii) if the principal amount of a
Security payable at Maturity is to be determined by reference to an index or
indices, the principal amount of such Security that shall be deemed to be
Outstanding shall be the face amount thereof; (iv) if, as of such date, the
principal amount payable at the Stated Maturity of a Security is not
determinable, the principal amount of such Security which shall be deemed to be
Outstanding shall be the amount as established as contemplated by Section 3.01;
and (v) the principal amount
11
of a Security denominated in one or more foreign currencies or currency units
which shall be deemed to be Outstanding shall be the equivalent in Dollars,
determined as of such date in the manner established as contemplated by Section
1.15, of the principal amount of such Security (or, in the case of a Security
described in Clause (ii) or (iii) above, of the amount determined as provided in
such Clause).
"Paying Agent" means any Person authorized by any Issuer to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
such Issuer.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of (and premium, if any)
and interest on the Securities of that series are payable as specified as
contemplated by Section 3.01.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.06 in exchange for a mutilated
Security or in lieu of a lost, destroyed or stolen Security shall be deemed to
evidence the same debt as the mutilated, lost, destroyed or stolen Security.
"Principal Property" means any single manufacturing or processing
plant or warehouse (excluding any equipment or personnel located therein), other
than any such plant or warehouse or portion thereof that the Board of Directors
of the Company reasonably determines is not of material importance to the
business conducted by the Company and its Subsidiaries as an entirety.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption established by or pursuant to
this Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed established pursuant to
this Indenture.
12
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
established as contemplated by Section 3.01.
"Required Currency" has the meaning specified in Section 3.13.
"Responsible Officer", when used with respect to the Trustee, means
any officer of the Trustee assigned by the Trustee to administer its corporate
trust matters.
"Restricted Subsidiary" means any Subsidiary that owns, operates or
leases one or more Principal Properties.
"Securities" has the meaning specified in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.05.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 3.07.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" means with respect to the Company each corporation of
which the Company, or the Company and one or more Subsidiaries, or any one or
more Subsidiaries, directly or indirectly own securities entitling the holders
thereof to elect a majority of the directors, either at all times or so long as
there is no default or contingency that permits the holders of any other class
or classes of securities to vote for the election of one or more directors.
"Subsidiary Assignee" shall have the meaning set forth in Section
8.02.
"Succession Date" has the meaning specified in Section 11.08.
13
"Successor" shall have the meaning set forth in Section 8.02.
"Successor Additional Amounts" shall have the meaning set forth in
Section 8.02.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee, and if at any time there is more
than one such Person, "Trustee" as used with respect to the Securities of any
series shall mean the Trustee with respect to Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, as in force at the date as of which this instrument was executed,
except as provided in Section 9.05; provided, however, that in the event the
-------- -------
Trust Indenture Act of 1939 is amended after such date, "Trust Indenture Act"
means, to the extent required by any such amendment, the Trust Indenture Act of
1939 as so amended.
"UK Global Security" means a Security evidencing all or part of a
series of Securities which Crown UK executed and authenticated and delivered to
the Bearer Security Depositary or pursuant to the Bearer Security Depositary's
instructions, and which the Guarantor executed, as applicable, the notation of
any Guarantees pursuant to Article XIII or any Guarantees endorsed on, all in
accordance with this Indenture and pursuant to an Issuer Order, which shall be
in bearer form and represent the amount of uncertificated Securities as
specified therein.
"Yield to Maturity", when used with respect to any Discounted
Security, means the yield to maturity, if any, set forth on the face thereof.
SECTION 1.02. Compliance Certificates and Opinions. Upon any
-------------------------------------
application or request by an Issuer or the Guarantor to the Trustee to take any
action under any provision of this Indenture, such Issuer or the Guarantor shall
furnish to the Trustee an Officers' Certificate stating that all conditions
precedent, if any, provided for in this Indenture (including any covenants
compliance with which constitutes a condition precedent) relating to the
proposed action have been complied with and an Opinion of Counsel stating that
in the opinion of such counsel all such
14
conditions precedent, if any, have been complied with, except that, in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate (other than certificates provided pursuant to
Section 10.10) or opinion by or on behalf of an Issuer or the Guarantor with
respect to compliance with a condition or covenant provided for in this
Indenture shall include:
(a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(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 each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 1.03. Form of Documents Delivered to Trustee. In any case
---------------------------------------
where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified
by, or covered by the opinion of, any one such Person, or that they be so
certified or covered by only one document, but one such Person may certify or
give an opinion with respect to some matters and one or more other such Persons
as to other matters, and any such Person may certify or give an opinion as to
such matters in one or several documents.
Any certificate or opinion of an officer of an 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, or
15
in the exercise of reasonable care should know, that the certificate or opinion
or representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel may
be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of such Issuer or the
Guarantor stating that the information with respect to such factual matters is
in the possession of such Issuer or the Guarantor, unless such counsel knows, or
in the exercise of reasonable care should know, that the certificate or opinion
or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.04. Acts of Holders. (a) Any request, demand,
----------------
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders of Securities of any series may
be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent duly appointed in writing;
and, except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee and,
where it is hereby expressly required, to the applicable Issuer and to the
Guarantor. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Section 6.01) conclusive in favor of
the Trustee, such Issuer and the Guarantor, if made in the manner provided in
this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
16
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The ownership of Securities other than Securities issued as UK
Global Securities shall be proved by the Security Register. The bearer of any
Securities issued as a UK Global Security shall be treated as the owner thereof
for all purposes, subject to the terms of this Indenture.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or Act by the Holder of any Security shall bind every future Holder of
the same Security and the Holder of every Security issued upon the transfer
thereof or in exchange therefor or in lieu thereof, in respect of anything done,
suffered or omitted to be done by the Trustee, any Paying Agent or the
applicable Issuer or the Guarantor in reliance thereon, whether or not notation
of such action is made upon such Security.
SECTION 1.05. Notices, etc., to Trustee and Issuers and the
---------------------------------------------
Guarantor. Any request, demand, authorization, direction, notice, consent,
----------
waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with:
(a) the Trustee by any Holder or by an Issuer or the Guarantor shall
be sufficient for every purpose hereunder if mailed first class, postage
prepaid to, or otherwise made, given, furnished or filed, in writing, to or
with the Trustee at its principal Corporate Trust Office, Attention:
Corporate Trust Administration; or
(b) an Issuer or the Guarantor by the Trustee or by any Holder shall be
sufficient for every purpose (except as provided in Sections 5.01(d), 3.12 and
3.13) hereunder if in writing and mailed, first-class postage prepaid, to such
Issuer or Guarantor addressed to such party at the respective addresses of their
principal offices specified in Annex A to this instrument or at any other
address previously furnished in writing to the Trustee.
17
SECTION 1.06. Notice to Holders; Waiver. Where this Indenture
--------------------------
provides for notice to Holders of Securities of any series of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid at the expense of the
applicable Issuer, to each Holder affected by such event, at his address as it
appears in the Security Register, not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice. In
any case where notice to Holders is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any particular Holder
shall affect the sufficiency of such notice with respect to other Holders. Any
notice when mailed to a Holder in the aforesaid manner shall be conclusively
deemed to have been received by such Holder whether or not actually received by
such Holder. Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause, it shall be impracticable to mail notice of any event
as required by any provision of this Indenture, then any method of giving such
notice as shall be satisfactory to the Trustee shall be deemed to be a
sufficient giving of such notice.
SECTION 1.07. Conflict with Trust Indenture Act. If any provision
----------------------------------
hereof limits, qualifies or conflicts with a provision of the Trust Indenture
Act which is required under such Act to be part of and govern this Indenture,
the latter provision shall control. If any provision of this Indenture modifies
or excludes any provision of the Trust Indenture Act which 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 1.08. Effect of Headings and Table of Contents. The Article
-----------------------------------------
and Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
18
SECTION 1.09. Successors and Assigns. All covenants and agreements
-----------------------
in this Indenture by the Issuers or the Guarantor shall bind their respective
successors and assigns, whether so expressed or not.
SECTION 1.10. Severability Clause. In case any provision in this
--------------------
Indenture or in the Securities or the Guarantees shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 1.11. Benefits of Indenture. Nothing in this Indenture or in
----------------------
the Securities or the Guarantees, express or implied, shall give to any Person
(other than the parties hereto and their successors hereunder, any Paying Agent
and, the Holders) any benefit or any legal or equitable right, remedy or claim
under this Indenture.
SECTION 1.12. Governing Law. This Indenture, the Securities and the
--------------
Guarantees shall be governed by and construed in accordance with the laws of the
State of New York, but without regard to the principles of conflicts of law
thereof; provided, however, that all matters governing the authorization and
-------- -------
execution of this Indenture and the Securities by each Subsidiary Issuer will be
governed by and construed in accordance with the laws of the jurisdiction of
organization of such Subsidiary Issuer.
SECTION 1.13. Submission to Jurisdiction; Appointment of Agent for
----------------------------------------------------
Service of Process. Each of the Company and each Subsidiary Issuer hereby
-------------------
appoints CT Corporation System, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 as its
authorized agent (the "Authorized Agent") upon which process may be served in
any legal action or proceeding against it with respect to its obligations under
this Indenture or the Securities of any series either as Issuer thereof or
Guarantor, as the case may be, instituted in any Federal or State court in the
Borough of Manhattan, The City of New York by the Trustee or by the Holder of
such Security and each of the Company and each Subsidiary Issuer hereby
irrevocably submits to the non-exclusive jurisdiction of any such court in
respect of any such legal action or proceeding and waives any objection it may
have to the laying of the venue of any such legal action or proceeding. The
Company and the Subsidiary Issuers, jointly, reserve the right to appoint
another Person located or with an office in the Borough of Manhattan, The City
of New York, selected in
19
their discretion, as a successor Authorized Agent, and upon acceptance of such
appointment by such a successor the appointment of the prior Authorized Agent
shall terminate. If for any reason CT Corporation System ceases to be able to
act as the Authorized Agent or to have an address in the Borough of Manhattan,
The City of New York, the Company and the Subsidiary Issuers, jointly, will
appoint a successor Authorized Agent in accordance with the preceding sentence.
Each of the Company and each of the Subsidiary Issuers further agrees to take
any and all action, including the filing of any and all documents and
instruments, as may be necessary to continue such designation and appointment of
such agent in full force and effect until this Indenture has been satisfied and
discharged in accordance with Article IV or Article X hereof. Service of
process upon the Authorized Agent addressed to it at the address set forth
above, as such address may be changed within the Borough of Manhattan, The City
of New York by notice given by the Authorized Agent to the Trustee, together
with written notice of such service mailed or delivered to the Company or the
applicable Subsidiary Issuer shall be deemed, in every respect, effective
service of process on the Company or such Subsidiary Issuer, as the case may be.
SECTION 1.14. Legal Holidays. In any case where any Interest Payment
---------------
Date, Redemption Date or Stated Maturity of any Security shall not be a Business
Day at any Place of Payment, then (notwithstanding any other provision of this
Indenture or of the Securities) payment of interest or principal (and premium,
if any) or any Additional Amounts need not be made at such Place of Payment on
such date, but may be made on the next succeeding Business Day at such Place of
Payment with the same force and effect as if made on the Interest Payment Date
or Redemption Date, or at the Stated Maturity, and no interest shall accrue with
respect to such payment for the period from and after such Interest Payment
Date, Redemption Date or Stated Maturity, as the case may be, to such next
succeeding Business Day.
SECTION 1.15. Certain Matters Relating to Currencies. Whenever any
---------------------------------------
action or Act is to be taken hereunder by the Holders of Securities denominated
in different currencies or currency units, then for purposes of determining the
principal amount of Securities held by such Holders, the aggregate principal
amount of the Securities denominated in a foreign currency or currency unit
shall be deemed to be that amount of Dollars that could be obtained for such
principal amount on the basis of a spot rate of
20
exchange specified to the Trustee for such series in an Officers' Certificate
for such Foreign Currency or currency unit into Dollars as of the date the
taking of such action or Act by the Holders of the requisite percentage in
principal amount of Securities is evidenced to such Trustee.
The Trustee shall segregate moneys, funds and accounts held by the
Trustee in one currency or currency unit from any moneys, funds or accounts held
in any other currencies or currency units, notwithstanding any provision herein
that would otherwise permit the Trustee to commingle such amounts.
SECTION 1.16. Indenture, Securities and Guarantees Solely Corporate
-----------------------------------------------------
Obligations. No recourse for the payment of the principal of or premium, if
------------
any, or interest or any Additional Amounts on any Security, or for any claim
based thereon, and no recourse under or upon any obligation, covenant or
agreement of any Issuer or the Guarantor in this Indenture or in any
supplemental indenture, or under the Guarantees, or in any Security, or because
of the creation of any indebtedness represented thereby, shall be had against
any incorporator, stockholder, officer or director, as such, past, present or
future, of any Issuer or the Guarantor or of any successor corporation, either
directly or through any Issuer or the Guarantor or any successor corporation,
whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being expressly
understood that all such liability is hereby expressly waived and released as a
condition of, and as a consideration for the execution of this Indenture and the
Guarantees and the issue of the Securities.
SECTION 1.17. Execution in Counterparts. This Indenture may be
--------------------------
signed in any number of counterparts with the same effect as if the signatures
to each counterpart were upon a single instrument, and all such counterparts
together shall be deemed an original of this Indenture.
ARTICLE II
Security Forms
--------------
SECTION 2.01. Forms Generally. The Securities of each series shall
----------------
be in substantially the form set forth in this Article, or in such other form as
shall be established
21
by or pursuant to a Board Resolution or in one or more indentures supplemental
hereto, in each case with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture, and may
have such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or Depositary or Bearer Security Depositary therefor or as
may, consistently herewith, be determined by the officers executing such
Securities, as evidenced by their execution of the Securities. If the form of
Securities of any series is established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such action shall be certified by
the Secretary or an Assistant Secretary of the applicable Issuer and delivered
to the Trustee at or prior to the delivery of the Issuer Order contemplated by
Section 3.03 for the authentication and delivery of such Securities.
The Trustee's certificates of authentication shall be in substantially
the form set forth in this Article.
If Article XIII is to be applicable to Securities of any series then
the Securities of each such series shall bear a notation of the Guarantees in
substantially the form set forth in Section 2.04. For any other series of
Securities, the Guarantees shall be endorsed on the Securities and shall be
substantially in the form established by or pursuant to a Board Resolution of
the Guarantor in accordance with Section 3.01 or one or more indentures
supplemental hereto. Notwithstanding the foregoing, the notation of the
Guarantees to be endorsed on the Securities of any series may have such
appropriate insertions, omissions, substitutions and other corrections from the
forms thereof referred to above as are required or permitted by this Indenture
and may have such letters, numbers or other marks of identification and such
legends or endorsements placed thereon as may be required to comply with the
rules of any securities exchange or as may, consistently herewith, be determined
by the officers delivering the same, in each case as evidenced by such delivery.
The definitive Securities shall be printed, lithographed or engraved
or produced by any combination of these methods or may be produced in any other
manner permitted by the rules of any securities exchange on which the Securities
may be listed, all as determined by the
22
officers executing such Securities, as evidenced by their execution of such
Securities.
SECTION 2.02. Form of Face of Security. [If the Security is a
------------------------- --------------------
Discounted Security, insert--FOR PURPOSES XX XXXXXXX 0000 XX XXX XXXXXX XXXXXX
-----------------------------
INTERNAL REVENUE CODE OF 1986, AS AMENDED, THE ISSUE PRICE OF THIS SECURITY IS
% OF ITS PRINCIPAL AMOUNT AND THE ISSUE DATE IS , 19 .]
[If the Security is a Global Security or a UK Global Security, insert-
--------------------------------------------------------------------
- UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
[BEARER SECURITY] DEPOSITARY TO A NOMINEE OF THE [BEARER SECURITY] DEPOSITARY OR
BY A NOMINEE OF THE [BEARER SECURITY] DEPOSITARY TO THE [BEARER SECURITY]
DEPOSITARY OR ANOTHER NOMINEE OF THE [BEARER SECURITY] DEPOSITARY OR BY THE
[BEARER SECURITY] DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR [BEARER
SECURITY] DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR [BEARER SECURITY]
DEPOSITARY.]
No. $
[NAME OF APPLICABLE ISSUER]
______________________
[Title of Security]
[NAME OF APPLICABLE ISSUER], [a corporation duly organized and
existing under the laws of Pennsylvania] [a societe anonyme organized under the
laws of the Republic of France] [a corporation incorporated under the Companies
Xxx 0000 of Great Britain] (herein called the "Issuer", which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to [ or registered assigns] [the
Holder upon surrender hereof], the principal sum of Dollars on
, at the office or agency of the Issuer referred to below,
[If the Security is to bear interest prior to Maturity, insert--, and to pay
---------------------------------------------------------------
interest thereon from or from the most recent Interest Payment Date
to which interest has been paid or duly provided for, semi-annually on
and in each year, commencing , [at
the rate of % per annum] [Or, if applicable, insert--at a rate per annum as
-------------------------
hereinafter provided], until the principal hereof is paid or duly provided for
[If applicable,
--------------
23
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
and on any overdue installment of interest]. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in such Indenture, be paid to [the Holder hereof] [the Person in whose
name this Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, which shall be
the or (whether or not a Business Day), as the case may be,
next preceding such Interest Payment Date, and at maturity, to the Persons to
whom principal is payable.] Any such interest not so punctually paid or duly
provided for shall forthwith cease to be payable to the Holder on such Regular
Record Date and [shall be paid to the Holder hereof on a Special Record Date for
the payment of such Defaulted Interest, notice whereof shall be given to Holders
not less than 10 days prior to such Special Record Date] [may either be paid to
the Person in whose name this Security (or one or more Predecessor Securities)
is registered at the close of business on a Special Record Date for the payment
of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders not less than 10 days prior to such Special Record Date, or may
be paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in said Indenture.] [If the Security is not to bear interest prior to
------------------------------------------------
Maturity, insert--The principal of this Security shall not bear interest except
------------------
in the case of a default in payment of principal upon acceleration, upon
redemption or at Stated Maturity and in such case the overdue principal of this
Security shall bear interest at the rate of % per annum (to the extent that
the payment of such interest shall be legally enforceable), 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 of the Holder hereof. 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 of the Holder hereof.]
24
Payment of the principal of (and premium, if any) and [If applicable,
--------------
insert--any such] interest on this Security will be made at the [If applicable,
-------- --------------
insert Corporate Trust Office of the Trustee in The City of New York otherwise
------ ---------
insert office or agency of the Issuer maintained for that purpose in or at such
------
other office or agency of the Issuer as may be maintained for such purpose], in
[such coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts] [If applicable,
--------------
insert--provision for payment in Foreign Currency] [If applicable, insert--;
----------------------------------------------------------------------------
provided, however, that payment of interest may be made at the option of the
-----------------
Issuer by check drawn upon any Paying Agent and mailed on or prior to an
Interest Payment Date to the address of the Person entitled thereto as such
address shall appear on the Security Register].
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 duly executed
by the Trustee referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture, or be valid
or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed under its corporate seal.
[NAME OF APPLICABLE ISSUER],
by
_____________________________
[SEAL]
Attest:
____________________
Authorized Signature
Date:
25
SECTION 2.03. Form of Reverse of Security. 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
(herein called the "Indenture") dated as of _______________, 1996, among the
Issuer, [delete Issuer--Crown Cork & Seal Company Inc. (herein the "Guarantor"
which term includes any successor Person under the Indenture referred to
herein), Crown Cork & Seal Finance plc, Crown Cork & Seal Finance SA and
, as trustee (herein called the "Trustee," which term includes any successor
Trustee under the Indenture), to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties, obligations 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 a series designated on the face hereof [ ,
limited in aggregate principal amount to $_______].
[If applicable, insert -- The Securities of this series are subject to
------------------------
redemption upon not less than 30 days' notice [by mail, [If applicable, insert -
----------------------
- (1) on ___________ in any year commencing with the year _____________ and
ending with the year _____________ through operation of the sinking fund for
this series at a Redemption Price equal to 100% of the principal amount, and
(2)] at any time ([on or after _________________, 19__], as a whole or in part,
at the election of the Issuer, at the following Redemption Prices (expressed as
percentages of the principal amount): If redeemed [on or before ____________,
__%, and if redeemed] during the 12-month period beginning __________ of the
years indicated,
Redemption Redemption
Year Price Year Price
---- ---------- ---- ----------
and thereafter at a Redemption Price equal to ___% of the principal amount,
together in the case of any such redemption [if applicable, insert -- (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to [the Holder hereof on such
date] [the
26
Holders of such Securities, or one or more Predecessor Securities, of record at
the close of business on the relevant Record Dates referred to on the face
hereof, all as provided in the Indenture.]
[If applicable, insert -- The Securities of this series are subject to
------------------------
redemption upon not less than 30 days' notice by mail, (1) on ___________ in any
year commencing with the year ____ and ending with the year ____ through
operation of the sinking fund for this series at the Redemption Prices for
redemption through operation of the sinking fund (expressed as percentages of
the principal amount) set forth in the table below, and (2) at any time [on or
after _______], as a whole or in part, at the election of the Issuer, at the
Redemption Prices for redemption otherwise than through operation of the sinking
fund (expressed as percentages of the principal amount) set forth in the table
below: If redeemed during the 12-month period beginning _____ of the years
indicated,
Redemption Price Redemption Price for
for Redemption through Redemption Otherwise
Operation of the than through Operation
Year Sinking Fund of the Sinking Fund
------ ---------------------- ----------------------
and thereafter at a Redemption Price equal to ___% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to [the Holder hereof on such date] [the Holders of such
Securities, or one or more Predecessor Securities, of record at the close of
business on the relevant Record Dates referred to on the face hereof, all as
provided in the Indenture.]
[Notwithstanding the foregoing, the Issuer may not, prior to
__________, redeem any Securities of this series as contemplated by [Clause (2)]
of the preceding paragraph as a part of, or in anticipation of, any refunding
operations by the application, directly or indirectly, of moneys borrowed having
an interest cost to the Issuer
27
(calculated in accordance with generally accepted financial practice) of less
than % per annum.]
[If applicable, insert--[In addition to its ability to redeem this
Security pursuant to the foregoing, this] [This] Security may be redeemed by the
Issuer on the terms set forth, and as more fully described, in the Indenture, in
certain circumstances where the Issuer would be required to pay Additional
Amounts in respect hereof as a result of a change or amendment of any law,
regulation or published tax ruling of the jurisdiction in which the Issuer or
any Successor are organized, or any political subdivision or taxing authority
thereof or therein, affecting taxation, or change in the official
administration, interpretation or application thereof, in each case occurring
after the issue date hereof or which change in such official administration,
interpretation or application shall not have been available to the public prior
to the issue date hereof, which change shall require the Issuer to pay
Additional Amounts.]
[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] $ [("mandatory sinking fund") and not
more than $_________] aggregate principal amount of Securities of this series.
[Securities of this series acquired or redeemed by the Issuer otherwise than
through [mandatory] sinking fund payments may be credited against subsequent
[mandatory] sinking fund payments otherwise required to be made.]
In the event of redemption of this Security in part only, a new
Security or Securities of this series for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.
[If applicable, insert--The Indenture contains provisions for
---------------------
defeasance at any time of the entire indebtedness of the series of which this
Security is a part or certain restrictive covenants and Events of Default with
respect to this Security, in each case upon compliance with certain conditions
set forth in the Indenture.]
[If the Security is not a Discounted Security, -- If an Event of
------------------------------------------------
Default with respect to Securities of this series shall occur and be continuing,
the principal of the Securities of this series may be declared due and payable
in the manner and with the effect provided in the Indenture.]
28
[If the Security is a Discounted Security, -- If an Event of Default
---------------------------------------------
with respect to Securities of this series shall occur and be continuing, an
amount of principal of the Securities of this series may be declared due and
payable in the manner and with the effect provided in the Indenture. Such
amount shall be equal to-- insert formula for determining the amount. Upon
-----------------------------------------
payment (i) of the amount of principal so declared due and payable and (ii) of
interest on any overdue principal and overdue interest (in each case to the
extent that the payment of such interest shall be legally enforceable), all of
the Issuer's obligations in respect of the payment of the principal of and
interest, if any, on the Securities of this series shall terminate.)
[If applicable, insert--All payments pursuant to this Security shall
be made without withholding or deduction for, or on account of, any present or
future taxes, duties, assessments or governmental charges of whatever nature
imposed or levied by or on behalf of the jurisdiction (the "applicable taxing
jurisdiction") in which the Issuer or any Successors are organized or resident
(or deemed for tax purposes to be resident) or any political subdivision or
taxing authority thereof or therein, unless such taxes, duties, assessments or
governmental charges are required by the applicable taxing jurisdiction or any
such subdivision or authority to be withheld or deducted. In that event, the
Issuer will pay such Additional Amounts (as defined in the Indenture) as will
result (after deduction of such taxes, duties, assessments or governmental
charges and any additional taxes, duties, assessments or governmental charges
and any additional taxes, duties, assessments or governmental charges payable in
respect of such) in the payment to each Holder of a Security of the amounts
which would have been payable in respect of the Security thereof had no such
withholding or deduction been required, subject to certain exceptions as set
forth in Section 10.07 of the Indenture.]
The Indenture permits, with certain exceptions as therein provided,
the amendment 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 a majority in
aggregate principal amount of the Securities at the time Outstanding of each
series to be affected. The Indenture also contains
29
provisions permitting the Holders of specified percentages in aggregate
principal amount of the Securities of each series at the time Outstanding, on
behalf of the Holders of all the Securities, to waive compliance by the Issuer
[and the Guarantor] with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any such consent or waiver
by or on behalf of the Holder of this Security shall be conclusive and binding
upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange hereof
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 premium, if any) and
interest [and any Additional Amounts] on this Security at the times, place, and
rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
[If applicable, insert Corporate Trust Office of the Trustee in The City of New
----------------------
York otherwise insert office or agency of the Issuer maintained for such purpose
----------------
in The City of New York or at such other office or agency of the Issuer as may
be maintained for such purpose], 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 authorized denominations
and for the same aggregate principal amount, will be issued to the designated
transferee or transferee.
The Securities of this series are issuable [in bearer form without
coupons] [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, the Securities are exchangeable for a
like aggregate principal amount of Securities of a different authorized
denomination, as requested by the Holder surrendering the same.
30
No service charge shall be made to the Holders for any registration of
transfer or exchange or redemption of Securities, but the Issuer may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to and at the time of due presentment of this Security for
registration of transfer, 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 neither the Issuer, [the Guarantor,] the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security [if applicable, insert--and the
notation of the Guarantees set forth below] which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
SECTION 2.04 Form of Notation of Guarantees. CROWN CORK & SEAL
-------------------------------
COMPANY, INC., a Pennsylvania corporation (the "Guarantor", which term includes
any Successor under the Indenture (the "Indenture") referred to in the Security
on which this notation is endorsed) has unconditionally guaranteed, pursuant to
the terms of the Guarantees contained in Article XIII of the Indenture, the due
and punctual payment of the principal of, any premium, interest and Additional
Amounts on this Security, when and as the same shall become due and payable,
whether at the Stated Maturity, by declaration of acceleration, call for
redemption or otherwise, in accordance with the terms of this Security and the
Indenture.
The obligations of the Guarantor to the Holders of the Securities and
to the Trustee pursuant to the Guarantees and the Indenture are expressly set
forth in Article XIII of the Indenture, and reference is hereby made to such
Article and Indenture for the precise terms of the Guarantees.
The Guarantees shall not be valid or obligatory for any purpose until
the certificate of authentication on the Security upon which this notation of
the Guarantees is endorsed shall have been executed by the Trustee under the
Indenture by the manual signature of one of its authorized signatories.
31
SECTION 2.05 Form of Trustee's Certificate of Authentication. This
-----------------------------------------------
is one of the Securities referred to in the within-mentioned Indenture.
, as Trustee,
by
__________________________
Authorized Officer
ARTICLE III
The Securities
--------------
SECTION 3.01 Amount Unlimited: Issuable in Series. The aggregate
-------------------------------------
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to Board Resolutions of the applicable Issuer and the
Guarantor, and set forth in an Officers' Certificate, or established in one or
more indentures supplemental hereto, prior to the issuance of any 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 Sections 3.04, 3.05, 3.06, 9.06 or 11.07);
(3) the date or dates on which the principal of, and any premium on,
the Securities of the series is payable;
(4) the rate or rates at which the Securities of the series shall bear
interest, if any, the date or dates from which such interest shall accrue,
the
32
Interest Payment Dates on which such interest shall be payable and the
Regular Record Date for the interest payable on any Interest Payment Date;
(5) the place or places where the principal of (and premium, if any)
and interest on Securities of the series shall be payable, any Securities
of that series may be surrendered for exchange, and notices and demands to
or upon the applicable Issuer and the Guarantor, in respect of the
Securities of that series and this Indenture may be served;
(6) the period or periods within which, the price or prices at which,
the currency or currency unit in which, and the terms and conditions upon
which, Securities of the series shall be redeemed, in whole or in part,
either at the option of the applicable Issuer of such Securities or
mandatorily;
(7) the obligation, if any, of the applicable Issuer to redeem or
purchase Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods
within which, the price or prices at which, the currency or currency unit
in which, and the terms and conditions upon which Securities of the series
shall be redeemed or purchased, in whole or in part, pursuant to such
obligation;
(8) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be
issuable;
(9) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series that shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section
5.02;
(10) any Events of Default in addition to the Events of Default
described in Section 5.01 and any covenants of the applicable Issuer or the
Guarantor with respect to the Securities of the series, whether or not such
Events of Default or covenants are consistent with the Events of Default or
covenants set forth herein;
33
(11) if other than Dollars, the currency or currency unit in which
payment of the principal of (and premium, if any) or interest, if any, on
the Securities of the series shall be made or in which the Securities of
the series shall be denominated and the particular provisions applicable
thereto;
(12) if the principal of (and premium, if any) and interest, if any,
on the Securities of the series are to be payable, at the election of the
applicable Issuer or a Holder thereof, in a currency or currency unit other
than that in which such Securities are denominated or stated to be payable,
the currency or currency unit in which the principal of (and premium, if
any) and interest, if any, on such Securities as to which such election is
made shall be payable, the period or periods within which, and the terms
and conditions upon which, such election may be made, and the time and
manner of determining the exchange rate between the currency or currency
unit in which such Securities are denominated or stated to be payable and
the currency or currency unit in which such Securities are to be so
payable;
(13) if the amount of payments of principal of (and premium, if any)
or interest, if any, on the Securities of the series may be determined with
reference to an index based on a currency or currency unit other than that
in which such Securities are denominated or stated to be payable or any
other index or formula, the manner in which such amounts shall be
determined;
(14) if the Securities will be entitled to the benefits of the
Guarantees afforded by Article XIII of the Indenture or, if not, the form
of the Guarantees to be endorsed on the Securities;
(15) where appropriate, that the Securities of the series, in whole or
in part, shall not be defeasible pursuant to Article IV or Article X;
(16) if the Securities of the series do not bear interest, the
applicable dates for purposes of Section 7.01;
(17) if the provisions of Section 4.01 relating to the satisfaction
and discharge of Securities of any series shall apply to the Securities of
such series; or
34
if provisions for the satisfaction and discharge of this Indenture other
than as set forth in Section 4.01 shall apply to the Securities of the
series;
(18) whether the Securities of the series shall be issued in whole or
in part in the form of one or more Global Securities or UK Global
Securities and, in such case, the Depositary or Bearer Security Depositary
for such Global or UK Global Securities, as the case may be; and whether
such Global Securities or UK Global Securities shall be temporary or
permanent; and whether the Securities of the series shall be issued in
bearer form (including Securities registrable as to principal only) with or
without interest coupons and, if applicable, the exchangeability of such
Securities with Securities issued in fully registered form;
(19) if the Securities of any series may be converted into or
exchanged for any other securities, the terms and conditions of such
conversion or exchange; and
(20) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture except as permitted by
Section 9.01(e)).
All Securities of any one series shall be substantially identical
except as to denomination, and except as may otherwise be provided in or
pursuant to such Board Resolutions or supplemental indentures relating thereto.
The terms of such Securities, as set forth above, may be determined by the
applicable Issuer from time to time if so provided in or established pursuant to
the authority granted in Board Resolutions of the applicable Issuer and the
Guarantor. All Securities of any one series need not be issued at the same
time, and unless otherwise provided, a series may be reopened for issuance of
additional Securities of such series.
If any of the terms of the series are established by action taken
pursuant to Board Resolutions or supplemental indentures, a copy of an
appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary of the applicable Issuer or the Guarantor, as the case may
be, and delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
35
SECTION 3.02. Denominations. The Securities of each series other
--------------
than series of Securities issued as UK Global Securities shall be issuable in
registered form without coupons in such denominations as shall be specified as
contemplated by Section 3.01 which may be in Dollars or in any Foreign Currency.
Each series of Securities issued as UK Global Securities shall be issuable in
bearer form without coupons in such denominations as shall be specified as
contemplated by Section 3.01 which may be in Dollars or in any Foreign Currency.
In the absence of any such provisions with respect to the Securities of any
series, the Securities of such series shall be issuable in denominations of
$1,000 and any integral multiple thereof.
SECTION 3.03. Execution, Authentication, Delivery and Dating. The
-----------------------------------------------
Securities shall be executed on behalf of the applicable Issuer and any
Guarantees to be endorsed on the Securities shall be executed on behalf of the
Guarantor by the Chairman of the Board, the President or one of the Vice
Presidents of such Issuer or the Guarantor, as the case may be, under the
corporate seal reproduced thereon attested by the Secretary or one of the
Assistant Secretaries of such Issuer or the Guarantor, as the case may be. The
signature of any of these officers on the Securities and any Guarantees, as the
case may be, may be manual or facsimile. The notation of any Guarantees,
endorsed on the Securities, shall be executed as provided in Section 13.02.
Securities or any Guarantees bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of the
applicable Issuer or the Guarantor, as the case may be, shall bind such Issuer
or the Guarantor, as the case may be, notwithstanding that such individuals or
any of them have ceased to hold such offices prior to the authentication and
delivery of such Securities or Guarantees or did not hold such offices on the
date of such Securities or Guarantees.
At any time and from time to time after the execution and delivery of
this Indenture, the applicable Issuer may deliver Securities of any series
executed by such Issuer bearing the notation of any Guarantees pursuant to
Article XIII or having any Guarantees endorsed thereon, as applicable, in each
case executed by the Guarantor, to the Trustee for authentication, together with
an Issuer Order for the authentication and delivery of such Securities; and the
Trustee in accordance with such Issuer Order shall authenticate and deliver such
Securities as provided in this
36
Indenture and not otherwise. If the form or terms of the Securities of the
series have been established in or pursuant to one or more Board Resolutions or
supplemental indentures as permitted by Sections 2.01 and 3.01, 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 Section 6.01) shall be fully protected in
relying upon, an Opinion of Counsel stating,
(a) if the form of such Securities or any Guarantees has been
established by or pursuant to Board Resolutions or indentures supplemental
hereto as permitted by Section 2.01, that such form has been established in
conformity with the provisions of this Indenture;
(b) if the terms of such Securities or any Guarantees have been
established by or pursuant to Board Resolutions or indentures supplemental
hereto as permitted by Section 3.01, that such terms have been established
in conformity with the provisions of this Indenture; and
(c) that such Securities and any Guarantees thereof, when
authenticated and delivered by the Trustee and issued by the applicable
Issuer and the Guarantor in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and legally
binding obligations of such Issuer and the Guarantor, respectively,
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, reorganization and other laws of general applicability relating
to or affecting the enforcement of creditors' rights and to general equity
principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities, the Guarantees and this Indenture or otherwise
in a manner which is not reasonably acceptable to the Trustee.
Each Security shall be dated the date of its authentication.
37
No Security or Guarantee shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided for
herein duly executed by the Trustee by manual signature of an authorized
officer, and such certificate upon any Security shall be conclusive evidence,
and the only evidence, that such Security or Guarantee has been duly
authenticated and delivered hereunder and is entitled to the benefits of this
Indenture.
The delivery of any Security by the Trustee, after the authentication
thereof hereunder, shall constitute delivery of any Guarantees endorsed or noted
thereon on behalf of the Guarantor. The Guarantor by its execution of this
Indenture hereby authorizes the applicable Subsidiary Issuer, in the name and on
behalf of the Guarantor, to confirm the applicable Guarantees to the Holder of
each Security authenticated and delivered hereunder by its execution and
delivery of each such Security, with such Guarantees noted or endorsed thereon,
authenticated and delivered by the Trustee. When delivered pursuant to the
provisions of Section 3.03 hereof, only Guarantees endorsed or noted on the
Securities shall bind the Guarantor notwithstanding the fact that the Guarantees
do not bear the signature of the Guarantor.
SECTION 3.04. Temporary Securities. Pending the preparation of
---------------------
definitive Securities of any series, the applicable Issuer may execute, and the
Guarantor may execute, as applicable, the notation of any Guarantees pursuant to
Article XIII or any Guarantees endorsed on, and upon Issuer Order the Trustee
shall authenticate and deliver, temporary Securities of such series which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive Securities
in lieu of which they are issued and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such
Securities or Guarantees or notations of the Guarantees pursuant to Article
XIII, as applicable, may determine, as conclusively evidenced by their execution
of such Securities or Guarantees or notations, as the case may be.
If temporary Securities of any series are issued, the applicable
Issuer will cause definitive Securities of such series to be prepared without
unreasonable delay.
38
After the preparation of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for definitive Securities of
such series upon surrender of the temporary Securities of such series at the
office or agency of such Issuer in a Place of Payment for such series, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series the Issuer shall execute, and the Guarantor
shall execute, as applicable, the notation of any Guarantees pursuant to Article
XIII or the Guarantees endorsed on, and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive Securities of
such series of authorized denominations. Until so exchanged the temporary
Securities of such series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of such series.
SECTION 3.05. Registration, Registration of Transfer and Exchange.
----------------------------------------------------
Each of the Issuers shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency of such Issuer in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, such Issuer shall provide for the
registration of Securities and of transfers of Securities. The Trustee is
hereby initially appointed "Security Registrar" for the purpose of registering
Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of any
series at the office or agency of the applicable Issuer in a Place of Payment
for such series, such Issuer shall execute, and the Guarantor shall execute, as
applicable, the notation of any Guarantees pursuant to Article XIII or the
Guarantees endorsed on, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series of any authorized denomination or denominations and of a like
aggregate principal amount and with the notation of any Guarantees pursuant to
Article XIII or any Guarantees endorsed thereon.
At the option of the Holder, Securities may be exchanged for other
Securities of the same series of any authorized denomination or denominations
and of a like aggregate principal amount and with the notation of any Guarantees
pursuant to Article XIII or any Guarantees
39
endorsed thereon, upon surrender of the Securities to be exchanged at such
office or agency. Whenever any Securities are so surrendered for exchange, the
applicable Issuer shall execute, and the Guarantor shall execute, as applicable,
the notation of any Guarantees pursuant to Article XIII or the Guarantees
endorsed on, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
All Securities and any Guarantees issued upon any registration of
transfer or exchange of Securities shall be the valid obligations of the
applicable Issuer and the Guarantor, respectively, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange and any Guarantees
thereof.
Every Security presented or surrendered for registration of transfer,
or for exchange or redemption shall (if so required by the applicable Issuer or
the Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to such Issuer and the Security Registrar, duly
executed by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made to a Holder for any registration of
transfer or exchange or redemption of Securities, but the applicable Issuer may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or
exchange of Securities, other than exchanges pursuant to Section 3.04, 9.06 or
11.07 not involving any transfer.
The applicable Issuer shall not be required (a) to issue, register the
transfer of, or exchange, any Security during a period beginning at the opening
of business 15 days before the mailing of a notice of redemption of any
Securities of that same series selected for redemption under Section 11.03 and
ending at the close of business on the day of such mailing, or (b) to register
the transfer of or exchange any Security so selected for redemption in whole or
in part, except the unredeemed portion of Securities being redeemed in part.
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities. If
-------------------------------------------------
any mutilated Security is surrendered to the Trustee, the applicable Issuer
shall execute and the
40
Guarantors shall execute, as applicable, the notation of any Guarantees pursuant
to Article XIII or any Guarantees endorsed on, and the Trustee shall
authenticate and deliver in exchange therefor a new Security of the same series
and of like tenor and principal amount, having the notation of any Guarantees
pursuant to Article XIII or any Guarantees endorsed thereon, as applicable, and
bearing a number not contemporaneously outstanding.
If (i) the applicable Issuer, the Guarantor and the Trustee receive
evidence to their satisfaction of the destruction, loss or theft of any
Security, and (ii) there is delivered to the applicable Issuer, the Guarantor
and the Trustee such security or indemnity as may be required by them to save
each of them harmless, then, in the absence of notice to such Issuer, the
Guarantor and the Trustee that such Security has been acquired by a bona fide
purchaser, such Issuer shall execute, and the Guarantors shall execute, as
applicable, the notation of any Guarantees pursuant to Article XIII or any
Guarantees endorsed on, and upon such Issuer's written request, the Trustee
shall authenticate and deliver, in exchange for any such mutilated Security or
in lieu of any such destroyed, lost or stolen Security, a new Security of like
tenor and principal amount, having the notation of any Guarantees pursuant to
Article XIII or any Guarantees endorsed thereon, as applicable, and bearing a
number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the applicable Issuer or the
Guarantor, each in its discretion, may, instead of issuing a new Security, pay
any such Security.
Upon the issuance of any new Securities under this Section, the
applicable Issuer or the Guarantor, as the case may be, may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security, and any Guarantees thereof,
shall constitute an original additional contractual obligation of the applicable
Issuer and the Guarantor, whether or not the destroyed, lost or stolen Security
shall be at any time enforceable by anyone, and shall be entitled to all
benefits of this
41
Indenture equally and proportionately with any and all other Securities and
Guarantees of such series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.07. Payment of Interest; Interest Rights Preserved.
-----------------------------------------------
Interest on any Security of any series other than series of Securities issued as
UK Global Securities which is payable, and is punctually paid or duly provided
for, on any Interest Payment Date shall be paid to the Person in whose name the
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest. Interest on any series
of Securities issued as UK Global Securities which is payable, and is punctually
paid or duly provided for, on any Interest Payment Date shall be paid to the
Holder thereof.
Any interest on any Security of any series which is payable, but is
not punctually paid or duly provided for, on any Interest Payment Date
("Defaulted Interest") shall forthwith cease to be payable to the Holder in
accordance with the preceding paragraph, and such Defaulted Interest may be paid
by the applicable Issuer or the Guarantor, at its election in each case, as
provided in Clause (a) or (b) below:
(a) The applicable Issuer or the Guarantor may elect to make payment
of any Defaulted Interest to the Holders of the Securities of such series
(or their respective Predecessor Securities) at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which shall
be fixed in the following manner. Such Issuer or the Guarantor shall
notify the Trustee in writing of the amount of Defaulted Interest proposed
to be paid on each Security of such series and the date of the proposed
payment, and at the same time such Issuer or Guarantor shall deposit with
the Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the
42
Persons entitled to such Defaulted Interest as in this Clause provided.
Thereupon the Trustee shall fix a Special Record Date for the payment of
such Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify such Issuer and the Guarantor
in writing of such Special Record Date and, in the name and at the expense
of such Issuer or the Guarantor, the Trustee shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each Holder of
Securities of such series at his address as it appears in the Security
Register, not less than 10 days prior to such Special Record Date. Notice
of the proposed payment of such Defaulted Interest and the Special Record
Date therefor having been so mailed, such Defaulted Interest shall be paid
to the Persons entitled thereto pursuant to the first sentence of this
Clause (a) and shall no longer be payable pursuant to the following Clause
(b).
(b) The applicable Issuer or the Guarantor may make payment of any
Defaulted Interest on the Securities of any series in any other lawful
manner not inconsistent with the requirements of any securities exchange on
which such Securities may be listed,and upon such notice as may be required
by such exchange, if, after written notice given by such Issuer or the
Guarantor to the Trustee of the proposed payment pursuant to this Clause,
such payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 3.08. Persons Deemed Owners. Prior to and at the time of due
----------------------
presentment of a Security for registration of transfer, the applicable Issuer,
the Guarantor, the Trustee and any agent of such Issuer, the Guarantor or the
Trustee may treat the Holder thereof as the owner of such Security for the
purpose of receiving payment of principal of (and premium, if any) and (subject
to
43
Section 3.07) interest on such Security and for all other purposes whatsoever,
whether or not such Security be overdue, and neither such Issuer, the Guarantor,
the Trustee nor any agent of such Issuer, the Guarantor or the Trustee shall be
affected by notice to the contrary.
SECTION 3.09. Cancelation. All Securities surrendered for payment,
------------
redemption, registration of transfer or exchange, or for credit against any
sinking fund payment, shall be delivered to the Trustee and shall be promptly
canceled by it. Any Issuer or the Guarantor may at any time deliver to the
Trustee for cancellation any Securities previously authenticated and delivered
hereunder which such Issuer or the Guarantor may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly canceled by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for any
Securities canceled as provided in this Section, except as expressly permitted
by this Indenture. All canceled Securities held by the Trustee may be destroyed
and certification of their destruction delivered to the applicable Issuer and
the Guarantor, unless by an Issuer Order such Issuer directs that canceled
Securities be returned to it.
SECTION 3.10. Computation of Interest. Except as otherwise specified
------------------------
as contemplated by Section 3.01 for Securities of any series, interest on the
Securities of each series shall be computed on the basis of a 360-day year of
twelve 30-day months.
SECTION 3.11. Global Securities. If an Issuer shall establish
------------------
pursuant to Section 3.01 that the Securities of a series are to be issued in
whole or in part in the form of one or more Global Securities, then such Issuer
shall execute, and the Guarantor shall execute, as applicable, the notation of
any Guarantees pursuant to Article XIII or any Guarantees endorsed on, and the
Trustee shall, in accordance with Section 3.03 and the Issuer Order with respect
to such series, authenticate and deliver one or more Global Securities in
temporary or permanent form that (i) shall represent and shall be denominated in
an amount equal to the aggregate principal amount of the outstanding Securities
of such series to be represented by one or more Global Securities, (ii) shall be
registered in the name of the Depositary for such Global Security or Securities
or the nominee of such Depositary, (iii) shall be delivered by the Trustee to
the Depositary or pursuant to the Depositary's instruction and (iv) shall bear a
legend substantially to
44
the following effect: "Unless and until it is exchanged in whole or in part for
Securities in definitive form, this Security may not be transferred except as a
whole by the Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee of such
successor Depositary". The Trustee shall deal with the Depositary and its
participants as representatives of the Beneficial Owners of the Global
Securities for purposes of exercising the rights of the Holders hereunder and
under any Guarantees and the rights of the Beneficial Owners of the Global
Securities shall be limited to those established by law and agreements between
such Beneficial Owners and the Depositary and its participants. Beneficial
Owners shall not be entitled to certificates for Global Securities as to which
they are the Beneficial Owners. Requests and directions from, and votes of,
such representatives shall not be deemed to be inconsistent if they are made
with respect to different Beneficial Owners.
Except as otherwise provided herein, unless and until it is exchanged
in whole or in part for Securities in definitive form, a Global Security
representing all or a portion of the Securities of a series may not be
transferred except as a whole by the 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.
The Beneficial Owner's ownership of Securities shall be recorded on the records
of a participant of the Depositary that maintains such Beneficial Owner's
account for such purpose and the participant's record ownership of such
Securities shall be recorded on the records of the Depositary.
If at any time the Depositary for the Securities of a series, whether
as Holder of a Global Security or the recipient of certificateless depositary
interests in a UK Global Security, notifies the applicable Issuer that it is
unwilling or unable to continue as Depositary for the Securities of such series
or if at any time the Depositary for Securities of a series shall no longer be
registered or in good standing under the Exchange Act, or other applicable
statute or regulation, and such Issuer shall not have appointed a successor
Depositary with respect to the Securities of such series, such Issuer will
execute, and the
45
Guarantor shall execute, as applicable, the notation of any Guarantees pursuant
to Article XIII or any Guarantees endorsed on, and the Trustee, upon receipt of
an Issuer Order for the authentication and delivery of definitive Securities of
such series, will authenticate and deliver, Securities of such series in
definitive form in an aggregate principal amount equal to the principal amount
of the Global Security or UK Global Security representing such series in
exchange for such Global Security or UK Global Security, having the notation of
any Guarantees pursuant to Article XIII or any Guarantees endorsed thereon. In
addition, if at any time there shall have occurred and be continuing an Event of
Default under this Indenture with respect to the Securities of such series, any
Beneficial Owner of the Global Security, upon written request given by
registered or certified mail to the applicable Issuer, shall be entitled to
receive definitive Securities in an aggregate principal amount equal to and in
exchange for its respective beneficial interest in the Global Security,
executed, authenticated and delivered as aforesaid.
The applicable Issuer may at any time and in its sole discretion
determine that the Securities of any series issued in the form of one or more
Global Securities shall no longer be represented by such Global Security or
Securities. In such event, such Issuer will execute, and the Guarantor shall
execute, as applicable, the notation of any Guarantees pursuant to Article XIII
or any Guarantees endorsed on, and the Trustee, upon receipt of an Issuer Order
for the authentication and delivery of definitive Securities of such series,
will authenticate and deliver, Securities of such series in definitive form and
in an aggregate principal amount equal to the principal amount of the Global
Security or Securities representing such series in exchange for such Global
Security or Securities, having the notation of any Guarantees pursuant to
Article XIII or any Guarantees endorsed thereon.
If specified by the applicable Issuer pursuant to Section 3.01 which
respect to Securities of a series, the Depositary for such series of Securities
may surrender a Global Security for such series of Securities in exchange in
whole or in part for Securities of such series in definitive form on such terms
as are acceptable to such Issuer and such Depositary. Thereupon, the applicable
Issuer shall execute, and the Guarantor shall execute, as applicable, the
notation of any Guarantees pursuant to Article XIII or any Guarantees
46
endorsed on, and the Trustee shall authenticate and deliver, without charge,
(i) to each Person specified by the Depositary a new Security or
Securities of the same series, of any authorized denomination as requested
by such Person in aggregate principal amount equal to and in exchange for
such Person's beneficial interest in the Global Security, having the
notation of any Guarantees pursuant to Article XIII or any Guarantees
endorsed thereon; and
(ii) to the Depositary a new Global Security in a denomination equal
to the difference, if any, between the principal amount of the surrendered
Global Security and the aggregate principal amount of Securities delivered
to the Beneficial Owners thereof, having the notation of any Guarantees
pursuant to Article XIII or any Guarantees endorsed thereon.
Upon the exchange of a Global Security for Securities in definitive
form, such Global Security shall be canceled by the Trustee. Securities issued
in exchange for a Global Security pursuant to this Section 3.11 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. The Trustee shall
deliver such Securities to the Persons in whose names such Securities are so
registered.
SECTION 3.12. UK Global Securities. If Crown UK shall establish
---------------------
pursuant to Section 3.01 that the Securities of a series are to be issued in
whole or in part in the form of one or more UK Global Securities, then Crown UK
shall execute, and the Guarantor shall execute, as applicable, the notation of
any Guarantees pursuant to Article XIII or any Guarantees endorsed on, and the
Trustee shall, in accordance with Section 3.03 and the Issuer Order with respect
to such series, authenticate and deliver one or more UK Global Securities in
temporary or permanent form that (i) shall represent and shall be denominated in
an amount equal to the aggregate principal amount of the outstanding Securities
of such series to be represented by one or more UK Global Securities, (ii) shall
be delivered by the Trustee to the Bearer Security Depositary or pursuant to the
Bearer Security Depositary's instruction and (iii) shall bear a legend
substantially to the following effect: "Unless and
47
until it is exchanged in whole or in part for Securities in definitive form,
this Security may not be transferred except as a whole by the Bearer Security
Depositary to a nominee of the Bearer Security Depositary or by a nominee of the
Bearer Security Depositary to the Bearer Security Depositary or another nominee
of the Bearer Security Depositary or by the Bearer Security Depositary or any
such nominee to a successor Bearer Security Depositary or a nominee of such
successor Bearer Security Depositary". Pursuant to the Bearer Security
Depositary Agreement, the Bearer Security Depositary shall issue a
certificateless depositary interest representing an amount equal to the
aggregate principal amount of the UK Global Security or Securities to the
Depositary, which upon its confirmation that the Bearer Security Depositary or a
nominee thereof has custody of the UK Global Security or Securities and
acceptance of such certificateless depositary interest, shall credit accounts of
Persons held with it with the respective principal amounts of the series of
Securities represented by such UK Global Security or Securities. The Trustee
shall deal with the Bearer Security Depositary for purposes of exercising the
rights of the Holders hereunder and under any Guarantees and the rights of the
Beneficial Owners of the UK Global Securities shall be limited to those
established by law and agreements between such Beneficial Owners and the
Depositary and its participants. The Beneficial Owner's ownership of Securities
shall be recorded on the records of a participant of the Depositary that
maintains such Beneficial Owner's account for such purpose and the participant's
record ownership of such Securities shall be recorded on the records of the
Depositary. Dealings between the Bearer Security Depositary and the Depositary
and its participants relating to exercising the rights of the Holders hereunder
and under any Guarantees and the rights of the Beneficial Owners of the UK
Global Securities shall be governed by the Bearer Security Depositary Agreement.
Beneficial Owners shall not be entitled to certificates for UK Global Securities
as to which they are the Beneficial Owners. Requests and directions from, and
votes of, such representatives shall not be deemed to be inconsistent if they
are made with respect to different Beneficial Owners.
Except as otherwise provided herein, unless and until a UK Global
Security is exchanged in whole or in part for Securities in definitive form,
(i) such UK Global Security representing all or a portion of the Securities of a
series may not be transferred except as a whole by the Bearer Security
Depositary for such series to a nominee of
48
such Bearer Security Depositary or by a nominee of such Bearer Security
Depositary to such Bearer Security Depositary or another nominee of such Bearer
Security Depositary or by such Bearer Security Depositary or any such nominee to
a successor Bearer Security Depositary for such series or a nominee of such
successor Bearer Security Depositary, and (ii) the certificateless depositary
interest in such UK Global Security held by the Depositary may not be
transferred except as a whole by such Depositary 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
or a nominee of such Successor Depositary.
If at any time the Bearer Security Depositary for the Securities of a
series notifies Crown UK that it is unwilling or unable to continue as Bearer
Security Depositary for the Securities of such series and Crown UK shall not
have appointed a successor Bearer Security Depositary with respect to the
Securities of such series, Crown UK will execute, and the Guarantor shall
execute, as applicable, the notation of any Guarantees pursuant to Article XIII
or any Guarantees endorsed on, and the Trustee, upon receipt of an Issuer Order
for the authentication and delivery of definitive Securities of such series,
will authenticate and deliver, Securities of such series in definitive form in
an aggregate principal amount equal to the principal amount of the UK Global
Security or Securities representing such series in exchange for such UK Global
Security or Securities, having the notation of any Guarantees pursuant to
Article XIII or any Guarantees endorsed thereon. In addition, if at any time
there shall have occurred and be continuing an Event of Default under this
Indenture with respect to the Securities of such series, any Beneficial Owner of
the UK Global Security, upon written request given by registered or certified
mail to Crown UK shall be entitled to receive definitive Securities in an
aggregate principal amount equal to and in exchange for its respective
beneficial interest in the UK Global Security, executed, authenticated and
delivered as aforesaid.
Crown UK may at any time and in its sole discretion determine that the
Securities of any series issued in the form of one or more UK Global Securities
shall no longer be represented by such UK Global Security or Securities. In
such event, Crown UK will execute, and the
49
Guarantor shall execute, as applicable, the notation of any Guarantees pursuant
to Article XIII or any Guarantees endorsed on, and the Trustee, upon receipt of
an Issuer Order for the authentication and delivery of definitive Securities of
such series, will authenticate and deliver, Securities of such series in
definitive form and in an aggregate principal amount equal to the principal
amount of the UK Global Security or Securities representing such series in
exchange for such UK Global Security or Securities, having the notation of any
Guarantees pursuant to Article XIII or any Guarantees endorsed thereon.
If specified by Crown UK pursuant to Section 3.01 which respect to
Securities of a series, the Bearer Security Depositary for such series of
Securities may surrender a UK Global Security for such series of Securities in
exchange in whole or in part for Securities of such series in definitive form on
such terms as are acceptable to Crown UK, the Bearer Security Depositary and the
Depositary. Thereupon, Crown UK shall execute, and the Guarantor shall execute,
as applicable, the notation of any Guarantees pursuant to Article XIII or any
Guarantees endorsed on, and the Trustee shall authenticate and deliver, without
charge,
(i) to each Person specified by the Bearer Security Depositary a new
Security or Securities of the same series, of any authorized denomination
as requested by such Person in aggregate principal amount equal to and in
exchange for such Person's beneficial interest in the UK Global Security,
having the notation of any Guarantees pursuant to Article XIII or any
Guarantees endorsed thereon; and
(ii) to the Bearer Security Depositary a new UK Global Security in a
denomination equal to the difference, if any, between the principal amount
of the surrendered UK Global Security and the aggregate principal amount of
Securities delivered to the Beneficial Owners thereof, having the notation
of any Guarantees pursuant to Article XIII or any Guarantees endorsed
thereon.
Upon the exchange of a UK Global Security for Securities in definitive
form, such UK Global Security shall be canceled by the Trustee. Securities
issued in exchange for a UK Global Security pursuant to this Section 3.12 shall
be registered in such names and in such authorized denominations as the Bearer
Security Depositary for such
50
UK Global Security, pursuant to instructions from the Depositary and its direct
or indirect participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Securities to the Persons in whose names such Securities are
so registered.
SECTION 3.13. Payment To Be in Proper Currency. Each reference in
---------------------------------
any Securities to any currency shall be of the essence. In the case of any
Securities denominated in any currency (the "Required Currency") other than
Dollars, except as otherwise provided therein, the obligation of the applicable
Issuer and the Guarantor to make any payment of the principal, premium or
interest or any Additional Amounts thereon shall not be discharged or satisfied
by any tender by such Issuer or the Guarantor, or recovery by the Trustee, in
any currency other than the Required Currency, except to the extent that such
tender or recovery shall result in the Trustee timely holding the full amount of
the Required Currency then due and payable. If any such tender or recovery is
in a currency other than the Required Currency, the Trustee may take such
actions as it considers appropriate to exchange such currency for the Required
Currency. The costs and risks of any such exchange, including without
limitation the risks of delay and exchange rate fluctuation, shall be borne by
the applicable Issuer and the Guarantor, and such Issuer and the Guarantor shall
remain fully liable for any shortfall or delinquency in the full amount of the
Required Currency then due and payable, and in no circumstances shall the
Trustee be liable therefor. Each Issuer and the Guarantor hereby waive any
defense of payment based upon any such tender or recovery which is not in the
Required Currency, or which, when exchanged for the Required Currency by the
Trustee, is less than the full amount of Required Currency then due and payable.
ARTICLE IV
Satisfaction and Discharge
--------------------------
SECTION 4.01. Satisfaction and Discharge of any Series. (a) The
-----------------------------------------
applicable Issuer and the Guarantor shall be deemed to have satisfied and
discharged the entire indebtedness on all the Securities of any particular
series (i) that have become due and payable, or (ii) that by their terms are to
become due and payable at their Stated Maturity within one year or are to be
called for redemption within
51
one year under arrangements satisfactory to the Trustee for the Securities of
such series, or (iii) with respect to which this Section 4.01 is specified to be
applicable pursuant to Section 3.01, and, so long as no Event of Default shall
be continuing, the Trustee for the Securities of such series, upon Issuer
Request and at the expense of the applicable Issuer or the Guarantor, shall
execute proper instruments acknowledging satisfaction and discharge of such
indebtedness, when:
(1) either
(A) all Securities of such series theretofore authenticated and
delivered and all coupons, if any, appertaining thereto (other than
(i) any Securities and coupons of such series which have been
destroyed, lost or stolen and which have been replaced or paid as
provided in Section 3.06, (ii) coupons appertaining to Securities
called for redemption and maturing after the relevant Redemption Date
and (iii) Securities and coupons of such series for whose payment
money has theretofore been deposited in trust or segregated and held
in trust by such Issuer or the Guarantor and thereafter repaid to such
Issuer or the Guarantor, as the case may be, or discharged from such
trust, as provided in the last paragraph of Section 10.03) have been
delivered to such Trustee for cancellation; or
(B) with respect to all Outstanding Securities of such series
described in (A) above (and, in the case of (i) or (ii) below, any
coupons appertaining thereto) not theretofore so delivered to the
Trustee for the Securities of such series for cancellation:
(i) such Issuer or the Guarantor has deposited or caused to
be deposited with such Trustee as trust funds in trust an amount
in the currency or currency unit in which the Securities of such
series are payable (except as otherwise specified pursuant to
Section 3.01 for the Securities of such series), sufficient to
pay and discharge the entire indebtedness on all such Outstanding
Securities of such series and any related coupons for unpaid
principal (and premium, if
52
any) and interest, if any, to the date of such deposit (in the
case of Securities which have become due and payable) or to the
Stated Maturity or any Redemption Date as contemplated by Section
4.02, as the case may be; or
(ii) such Issuer or the Guarantor has deposited or
caused to be deposited with such Trustee as obligations in trust
such amount of Government Obligations denominated in the Required
Currency as will, as evidenced by a Certificate of a Firm of
Independent Public Accountants delivered to such Trustee,
together with the predetermined and certain income to accrue
thereon (without consideration of any reinvestment thereof), be
sufficient to pay and discharge when due the entire indebtedness
on all such Outstanding Securities of such series and any related
coupons for unpaid principal (and premium, if any) and interest,
if any, to the date of such deposit (in the case of Securities
which have become due and payable) or to the Stated Maturity or
any Redemption Date as contemplated by Section 4.02, as the case
may be; or
(iii) such Issuer or the Guarantor has deposited or caused
to be deposited with such Trustee in trust an amount equal to the
amount referred to in clause (i) or (ii) in any combination of
currency or currency unit or Government Obligations;
(2) such Issuer or the Guarantor has paid or caused to be paid all
other sums payable with respect to the Securities of such series and any
related coupons;
(3) such Issuer or the Guarantor has delivered to such Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction and
discharge of the entire indebtedness on all Securities of such series and
any related coupons have been complied with; and
53
(4) the applicable Issuer or the Guarantor, as the case may be, shall
have delivered to the Trustee, not later than the date of such deposit, an
Opinion of Counsel stating that the Holders of the Securities of all series
will not recognize gain or loss for Federal income tax purposes or be
subject to any taxes or recognize gain or loss for income tax purposes in
the jurisdictions in which such Issuer is organized, resident or carries on
a business as a result of such deposit and defeasance and will be subject
to Federal income tax and income taxes, capital and other taxes, including
withholding taxes in such jurisdictions on the same amount and in the same
manner and at the same times as would have been the case if such deposit,
defeasance and discharge had not occurred.
(b) Upon the satisfaction of the conditions set forth in this Section
4.01 with respect to all the Securities of a series, the terms and conditions of
such series, including the terms and conditions with respect thereto set forth
in this Indenture and any Guarantees, shall no longer be binding upon, or
applicable to, the applicable Issuer and the Guarantor, and the Holders of the
Securities of such series and any related coupons shall look for payment only to
the funds or obligations deposited with the Trustee pursuant to Section
4.01(a)(1)(B); provided, however, that in no event shall the applicable Issuer
-------- -------
and the Guarantor be discharged from (i) any payment obligations in respect of
Securities of such series and any related coupons which are deemed not to be
Outstanding under clause (c) of the definition thereof if such obligations
continue to be valid obligations of the applicable Issuer under applicable law,
(ii) any obligations under Sections 4.02(b), 6.07, 6.10 and 10.12 and (iii) any
obligations under Sections 3.05 and 3.06 (except that Securities of such series
issued upon registration of transfer or exchange or in lieu of mutilated,
destroyed, lost or stolen Securities and any related coupons shall not be
obligations of the applicable Issuer and the Guarantor) and Sections 3.13, 7.01
and 10.02; and provided further, that in the event a petition for relief under
----------------
the Bankruptcy Act of 1978 or Title 11 of the United States Code or a successor
statute is filed and not discharged with respect to the applicable Issuer or the
Guarantor within 91 days after the deposit, the entire indebtedness on all
Securities of such series and any related coupons shall not be discharged, and
in such event the Trustee shall return such deposited funds or
54
obligations as it is then holding to the applicable Issuer or the Guarantor, as
the case may be, upon Issuer Request.
SECTION 4.02. Application of Trust Money. (a) All money and
---------------------------
obligations deposited with the Trustee for any series of Securities pursuant to
Section 4.01 and Section 10.12 shall be held irrevocably in trust and shall be
made under the terms of an escrow trust agreement in form satisfactory to such
Trustee. Such money and obligations shall be applied by such Trustee, in
accordance with the provisions of the Securities, any coupons, this Indenture
and such escrow trust agreement, to the payment, either directly or through any
Paying Agent (including the applicable Issuer or the Guarantor acting as its own
Paying Agent) as such Trustee may determine, to the Persons entitled thereto, of
the principal of (and premium, if any) and interest, if any, on the Securities
for the payment of which such money and obligations have been deposited with
such Trustee. If Securities of any series are to be redeemed prior to their
Stated Maturity, whether pursuant to any optional redemption provision or in
accordance with any mandatory sinking fund requirement, the applicable Issuer or
the Guarantor shall make such arrangements as are satisfactory to the Trustee
for any series of Securities for the giving of notice of redemption by such
Trustee in the name, and at the expense, of the applicable Issuer or the
Guarantor.
(b) The applicable Issuer or the Guarantor shall pay and shall
indemnify the Trustee for any series of Securities against any tax, fee or other
charge imposed on or assessed against Government Obligations deposited pursuant
to Section 4.01 or the interest and principal received in respect of such
Government Obligations other than any such tax, fee or other charge which by law
is payable by or on behalf of Holders. The obligation of the applicable Issuer
and the Guarantor under this Section 4.02(b) shall be deemed to be an obligation
of the applicable Issuer and the Guarantor under Section 6.07(b).
(c) Anything in this Article IV to the contrary notwithstanding, the
Trustee for any series of Securities shall deliver or pay to the applicable
Issuer or the Guarantor, as the case may be, from time to time upon Issuer
Request any money or Government Obligations held by it as provided in Section
4.01 which, as expressed in a Certificate of a Firm of Independent Public
Accountants delivered to such Trustee, are in excess of the amount
55
thereof which would then have been required to be deposited for the purpose for
which such money or Government Obligations were deposited or received provided
such delivery can be made without liquidating any Government Obligations.
SECTION 4.03. Satisfaction and Discharge of Indenture. Upon
----------------------------------------
compliance by the applicable Issuer or the Guarantor with the provisions of
Section 4.01 as to the satisfaction and discharge of each series of Securities
issued hereunder, and if the applicable Issuer or the Guarantor has paid or
caused to be paid all other sums payable under this Indenture, this Indenture
shall cease to be of any further effect (except as otherwise provided herein).
Upon Issuer Request and receipt of an Opinion of Counsel and an Officers'
Certificate complying with the provisions of Section 1.02, the Trustees for all
series of Securities (at the expense of the applicable Issuer or the Guarantor)
shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture.
Notwithstanding the satisfaction and discharge of this Indenture, any
obligations of any Issuer or the Guarantor under Sections 3.04, 3.05, 3.06,
4.02(b), 6.07, 6.10, 7.01, 10.02 and 10.12 and the obligations of the Trustee
for any series of Securities under Section 4.02 shall survive.
SECTION 4.04. Reinstatement. If the Trustee for any series of
--------------
Securities is unable to apply any of the amounts (for purposes of this Section
4.04, "Amounts") or Government Obligations, as the case may be, described in
Section 4.01(a)(1)(B)(i) or (ii), respectively, in accordance with the
provisions of Section 4.01 by reason of any legal proceeding or any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the applicable Issuer's and the
Guarantor's obligations under this Indenture and the Securities of such series
and the coupons, if any, appertaining thereto shall be revived and reinstated as
though no deposit had occurred pursuant to Section 4.01 until such time as the
Trustee for such series is permitted to apply all such Amounts or Government
Obligations, as the case may be, in accordance with the provisions of Section
4.01; provided, however, that if, due to the reinstatement of its rights or
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obligations hereunder, the applicable Issuer or the Guarantor has made any
payment of principal of (or premium, if any) or interest, if any, on
56
such Securities or coupons, such Issuer or the Guarantor, as the case may be,
shall be subrogated to the rights of the Holders of such Securities or coupons
to receive payment from such Amounts or Government Obligations, as the case may
be, held by the Trustee for such series.
ARTICLE V
Remedies
--------
SECTION 5.01. Events of Default. "Event of Default", wherever used
------------------
herein with respect to Securities of any series of an Issuer or any Guarantees
thereof, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body),
unless such event is either inapplicable to a particular series or it is
specifically deleted or modified in the supplemental indenture creating such
series of Securities or in the form of Security for such series:
(a) default in the payment of any interest on any Security of such
series when it becomes due and payable, and continuance of such default for
a period of 30 days; or
(b) default in the payment of the principal of (or premium, if any,
on) any Security of such series at its Maturity; or
(c) default in the deposit of any sinking fund payment, when and as
due by the terms of a Security of that series; or
(d) default in the performance, or breach, of any covenant or
agreement of such Issuer or the Guarantor in this Indenture with respect to
the Securities of that series (other than a default in the performance, or
a breach, of a covenant or warranty which is specifically dealt with
elsewhere in this Section or which has expressly been included in this
Indenture solely for the benefit of a series of Securities other than such
series), and continuance of such default or breach for a period of 60 days
after there has been given, by registered or certified mail, to such Issuer
57
and the Guarantor by the Trustee or to such Issuer, the Guarantor and the
Trustee by the Holders of at least 25% in aggregate 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 entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the applicable Issuer or the
Guarantor in an involuntary case or proceeding under any applicable
bankruptcy, insolvency, reorganization or other similar law or (B) a decree
or order adjudging such Issuer or the Guarantor a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of such Issuer or the Guarantor
under any applicable law, or appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of such Issuer or
the Guarantor or of any substantial part of such Issuer's or the
Guarantor's property, or ordering the winding up or liquidation of such
Issuer's or the Guarantor's affairs, and the continuance of any such decree
or order for relief or any such other decree or order unstayed and in
effect for a period of 60 consecutive days; or
(f) the commencement by the applicable Issuer or the Guarantor of a
voluntary case or proceeding under any applicable bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent by such Issuer or
the Guarantor to the entry of a decree or order for relief in respect of it
in an involuntary case or proceeding under any applicable bankruptcy,
insolvency, reorganization or other similar law or to the commencement of
any bankruptcy or insolvency case or proceeding against it, or the filing
by such Issuer or the Guarantor of a petition or answer or consent seeking
reorganization or relief under any applicable law, or the consent by such
Issuer or the Guarantor to the filing of such petition or the appointment
of or taking possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or similar official of it or of any substantial part
of its property, or the making by such Issuer or the Guarantor of an
assignment for the benefit of
58
creditors, or the admission by such Issuer or the Guarantor in writing of
its inability to pay its debts generally as they become due, or the taking
of corporate action by such Issuer or the Guarantor in furtherance of any
such action; or
(g) any other Event of Default provided with respect to Securities of
that series.
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment. If
---------------------------------------------------
an Event of Default with respect to the Securities of any series of any Issuer
at the time Outstanding occurs and is continuing, then and in every such case
the Trustee or the Holders of not less than 25% in aggregate principal amount of
the Outstanding Securities of such series of such Issuer may, and the Trustee
upon the request of the Holders of not less than 25% in aggregate principal
amount of the Outstanding Securities of such series of such Issuer shall,
declare the principal amount of all the Securities of that series of such Issuer
(or, if the Securities of such series are Discounted Securities, such portion of
the principal amount as may be specified in the terms of that series), together
with any accrued interest, to be due and payable immediately, by a notice in
writing to such Issuer and the Guarantor (and to the Trustee if given by the
Holders) and, upon any such declaration such principal amount (or specified
amount) shall become immediately due and payable. If an Event of Default
specified in Section 5.01(e) or (f) occurs and is continuing, then the principal
of all the Securities of that series of the applicable Issuer, together with any
accrued interest, shall ipso facto become and be immediately due and payable
without any declaration or other act on the part of the Trustee or any Holder.
At any time after such declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of such series, by written notice to the applicable
Issuer, the Guarantor and the Trustee, may rescind and annul such declaration
and its consequences if:
(i) such Issuer or the Guarantor has paid or deposited with the
Trustee a sum sufficient to pay:
59
(A) all overdue interest on all Securities of such series,
(B) the principal of (and premium, if any, on) any Securities of
such series which have become due otherwise than by such declaration
of acceleration and interest thereon at the rate or rates prescribed
therefor in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursement and advances of the
Trustee, its agents and counsel; and
(ii) all Events of Default with respect to Securities of such series,
other than the non-payment of principal of Securities of such series which
have become due solely by such declaration of acceleration, have been cured
or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 5.03. Collection of Indebtedness and Suits for Enforcement by
-------------------------------------------------------
Trustee. Each of the Issuers and the Guarantor covenants that if:
--------
(a) default is made by such Issuer in the payment of any interest on
any Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(b) default is made by such Issuer in the payment of principal of (or
premium, if any, on) any Security at the Maturity thereof,
such Issuer or the Guarantor will, upon demand of the Trustee, pay to it, for
the benefit of the Holders of such Securities, the whole amount then due and
payable on such Securities for principal (and premium, if any) and interest,
with interest upon the overdue principal (and premium, if any) and, to the
extent that payment of such interest shall be legally enforceable, upon overdue
installments of
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interest, at the rate borne by the Securities; and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If such Issuer or the Guarantor fails to pay such amounts forthwith
upon such demand, the Trustee, in its own name and as trustee of an express
trust, may institute a judicial proceeding for the collection of the sums so due
and unpaid and may prosecute such proceeding to judgment or final decree, and
may enforce the same against such Issuer or the Guarantor or any other obligor
upon the Securities and collect the moneys adjudged or decreed to be payable in
the manner provided by law out of the property of such Issuer or the Guarantor
or any other obligor upon the Securities, wherever situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement for
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
SECTION 5.04. Trustee May File Proofs of Claim. In case of the
---------------------------------
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to an Issuer or the Guarantor or any other obligor upon the
Securities or the property of such Issuer or the Guarantor or of such other
obligor or their creditors, the Trustee (irrespective of whether the principal
of such 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 on such Issuer or the Guarantor for the payment of overdue principal
or interest) shall be entitled and empowered, by intervention in such proceeding
or otherwise,
(a) to file and prove a claim for the whole amount of principal (and
premium, if any) and interest owing and unpaid in respect of such
Securities and to file such other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee
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(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and of
the Holders allowed in such judicial proceeding, and
(b) to collect and receive any money or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay the
Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and any other
amounts due the Trustee under Section 6.07.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 5.05. Trustee May Enforce Claims Without Possession of
------------------------------------------------
Securities. All rights of action and claims under this Indenture or the
-----------
Securities or the Guarantees may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name and as trustee of an express trust, and any
recovery of judgment shall after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the Securities in
respect of which such judgment has been recovered.
SECTION 5.06. Application of Money Collected. Any money collected by
------------------------------
the Trustee pursuant to this Article shall be applied in the following order, at
the date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal (or premium, if any) or interest, upon
presentation of the Securities and the
62
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
First: to the payment of all amounts due the Trustee under Section
6.07;
Second: to the payment of the amounts then due and unpaid upon the
Securities for principal (and premium, if any) and interest, in respect of
which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts due
and payable on such Securities for principal (and premium, if any) and
interest; and
Third: the balance, if any, to the applicable Issuer, to the
Guarantor or to any other Person or Persons entitled thereto.
SECTION 5.07. Limitation on Suits. No Holder of any Securities of
--------------------
any series of an Issuer shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the appointment of
a receiver or trustee, or for any other remedy hereunder, unless:
(a) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of such
series;
(b) the Holders of not less than 25% in principal amount for the
Outstanding Securities of such series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee indemnity
satisfactory to the Trustee against the costs, expenses and liabilities to
be incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(e) no direction inconsistent with such written request has been given
to the Trustee during such 60-
63
day period by the Holders of a majority in principal amount of the
Outstanding Securities of such series;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
SECTION 5.08. Unconditional Right of Holders to Receive Principal,
----------------------------------------------------
Premium and Interest. Notwithstanding any other provision in this Indenture,
---------------------
the Holder of any Security shall have the right on the terms stated herein,
which is absolute and unconditional, to receive payment of the principal of (and
premium, if any) and (subject to Section 3.07) interest on such Security on the
respective Stated Maturities expressed in such Security (or, in the case of
redemption, on the Redemption Date) and to institute suit for the enforcement of
any such payment, and such rights shall not be impaired without the consent of
such Holder.
SECTION 5.09. Restoration of Rights and Remedies. If the Trustee or
-----------------------------------
any Holder has instituted any proceeding to enforce any right or remedy under
this Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to such Holder, then
and in every such case the applicable Issuer, the Guarantor, the Trustee and the
Holders shall, subject to any determination in such proceeding, be restored
severally and respectively to their former positions hereunder, and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding has been instituted.
SECTION 5.10. Rights and Remedies Cumulative. Except as provided in
-------------------------------
Section 3.06, no right or remedy herein conferred upon or reserved to the
Trustee or to the Trustee and the Holders is intended to be exclusive of any
other right or remedy, and every right and remedy shall, to the extent permitted
by law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or
64
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 5.11. Delay or Omission Not Waiver. No delay or omission of
-----------------------------
the Trustee or of any Holder of any Security to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
SECTION 5.12. Control by Holders. The Holders of a majority in
-------------------
principal amount of the Outstanding Securities of any series shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred on
the Trustee, with respect to the Securities of such series; provided that
--------
(a) such direction shall not be in conflict with any rule of law or
with this Indenture; and
(b) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
SECTION 5.13. Waiver of Past Defaults. The Holders of not less than
------------------------
a majority in principal amount of the Outstanding Securities of any series of an
Issuer may on behalf of the Holders of all the Securities of such series waive
any past default hereunder and its consequences, except a default
(a) in the payment of the principal of (or premium, if any) or
interest on any Security of such series or any Additional Amounts payable
in respect thereof, or
(b) in respect of a covenant or provision hereof which under Article
IX cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be
65
deemed to have been cured, for every purpose of this Indenture, but no such
waiver shall extend to any subsequent or other default or impair any right
consequent thereon.
SECTION 5.14. Undertaking for Costs. All parties to this Indenture
----------------------
agree, and each Holder of any Security by his acceptance thereof shall be deemed
to have agreed, that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken, suffered or omitted by it as Trustee,
the filing by any party litigant in such suit of an undertaking to pay the costs
of such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to any
suit instituted by the Trustee, to any suit instituted by any Holder, or group
of Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Securities, or to any suit instituted by any Holder for the
enforcement of the payment of the principal of (or premium, if any) or interest
on any Security on or after the respective Maturity or Stated Maturity expressed
in such Security.
SECTION 5.15. Waiver of Usury, Stay or Extension Laws. Each of the
----------------------------------------
Issuers and the Guarantor covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any usury, stay or extension law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and each of the Issuers and the
Guarantor (to the extent that it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
had been enacted.
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ARTICLE VI
The Trustee
-----------
SECTION 6.01. Certain Duties and Responsibilities. (a) Except
------------------------------------
during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture or the Trust Indenture Act,
and no implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; but in
the case of any such certificates or opinions which by provision hereof are
specifically required to be furnished to the Trustee, the Trustee shall be
under a duty to examine the same to determine whether or not they conform
to the requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that
(1) this Subsection (c) shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in
67
good faith in accordance with the direction of the Holders of a majority in
principal amount of the Outstanding Securities of any series, determined as
provided in Section 5.12, relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Indenture with respect to such series; and
(4) no provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
SECTION 6.02. Notice of Defaults. Within 90 days after the
-------------------
occurrence of any default hereunder with respect to the Securities of any
series, the Trustee shall transmit by mail to all Holders of Securities of such
series, as their names and addresses appear in the Security Register, notice of
such default hereunder known to the Trustee, unless such default shall have been
cured or waived; provided, however, that, except in the case of a default in the
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payment of the principal of (or premium, if any) or interest on any Security of
such series or in the payment of any sinking fund installment with respect to
Securities, the Trustee shall be protected in withholding such notice if and so
long as a trust committee of Responsible Officers of the Trustee in good faith
determines that the withholding of such notice is in the interest of the
Holders; and provided further that in the case of any default of the character
-------- -------
specified in Section 5.01(d) no such notice to Holders shall be given until at
least 60 days after the occurrence thereof. For the purpose of this Section,
the term "default" means any event which is, or after notice or lapse of time or
both would become, an Event of Default.
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SECTION 6.03. Certain Rights of Trustee. Subject to the provisions
--------------------------
of Section 6.01:
(a) 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;
(b) any request or direction of an Issuer or the Guarantor mentioned
herein shall be sufficiently evidenced by an Issuer Request or Issuer Order
and any resolution of the Board of Directors of such Issuer or the
Guarantor may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate and Opinion of
Counsel;
(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
69
order, bond, debenture, note, other evidence of indebtedness or other paper
or document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit, and,
if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the applicable Issuer and the Guarantor, personally or by agent
or attorney; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys.
SECTION 6.04. Not Responsible for Recitals or Issuance of Securities.
------------------------------------------------------
The recitals contained herein, and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Issuers
or the Guarantor, as the case may be, and neither the Trustee nor any
Authenticating Agent assumes any responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities or the Guarantees. Neither the Trustee nor any
Authenticating Agent shall be accountable for the use or application by any of
the Issuers or the Guarantor of Securities or the proceeds thereof.
SECTION 6.05. May Hold Securities. The Trustee, any Authenticating
--------------------
Agent, any Paying Agent, any Security Registrar or any other agent of the
Trustee, any of the Issuers or the Guarantor, in its individual or any other
capacity, may become the owner or pledgee of Securities, and, subject to
Sections 6.08 and 6.13, may otherwise deal with each of the Issuers and the
Guarantor with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other agent.
SECTION 6.06. Money Held in Trust. Money held by the Trustee in
--------------------
trust hereunder need not be segregated from other funds except to the extent
required by law. The Trustee shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed with the applicable
Issuer or the Guarantor, as the case may be.
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SECTION 6.07. Compensation and Reimbursement. Each of the Issuers
-------------------------------
and the Guarantor agrees:
(a) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(b) to reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be attributable to
its negligence or bad faith; and
(c) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration
of this trust, including the costs and expenses of defending itself against
any claim or liability in connection with the exercise or performance of
any of its powers or duties hereunder.
SECTION 6.08. Qualification of Trustee; Conflicting Interests. The
-----------------------------------------------
Trustee shall be subject to the provisions of Section 310(b) of the Trust
Indenture Act during the period of time required thereby. Nothing herein shall
prevent the Trustee from filing with the Commission the application referred to
in the penultimate paragraph of Section 310(b) of the Trust Indenture Act. In
determining whether the Trustee has a conflicting interest as defined in Section
310(b) of the Trust Indenture Act with respect to the securities of any series,
there shall be excluded securities of any particular series of securities other
than that series.
SECTION 6.09. Corporate Trustee Required; Eligibility. There shall
----------------------------------------
at all times be a Trustee hereunder with respect to the Securities of each
series of each Issuer, which may be Trustee hereunder for Securities of one or
more series and shall be:
(i) a corporation organized and doing business under the laws of the
United States of America, any
71
State thereof, or the District of Columbia, authorized under such laws to
exercise corporate trust powers, and subject to supervision or examination
by Federal or State authority; or
(ii) a corporation or other Person organized and doing business under
the laws of a foreign government that is permitted to act as Trustee
pursuant to a rule, regulation, or other order of the Commission,
authorized under such laws to exercise corporate trust powers, and subject
to supervision or examination by authority of such foreign government or a
political subdivision thereof substantially equivalent to supervision or
examination applicable to United States institutional trustees,
having a combined capital and surplus of at least $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 shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. No obligor upon the
Securities or a Person directly or indirectly controlling, controlled by, or
under common control with such obligor shall serve as Trustee upon the
Securities. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
SECTION 6.10. Resignation and Removal; Appointment of Successor.
--------------------------------------------------
(a) No resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee under Section 6.11.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series of an Issuer by giving written notice thereof to such
Issuer and the Guarantor. If an instrument of acceptance by a successor Trustee
shall not have been delivered to the Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
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(c) The Trustee may be removed at any time with respect to the
Securities of any series by an Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series, delivered to the Trustee
and to the applicable Issuer and the Guarantor.
(d) If at any time:
(1) the Trustee for a series of Securities shall fail to comply
with Section 310(b) of the Trust Indenture Act pursuant to Section
6.08 hereof after written request therefor by the applicable Issuer or
the Guarantor or by any Holder who has been a bona fide Holder of such
Security for at least six months unless the Trustee's duty to resign
is stayed in accordance with Section 310(b) of the Trust Indenture
Act, or
(2) the Trustee for a series of Securities shall cease to be
eligible under Section 6.09 and shall fail to resign after written
request therefor by the applicable Issuer or the Guarantor or by any
Holder who has been a bona fide Holder of such Security for at least
six months, or
(3) the Trustee for a series of Securities shall become incapable
of acting or shall be adjudged a bankrupt or insolvent, or a receiver
of the Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its property
or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any case, (i) the applicable Issuer or the Guarantor by a Board
Resolution may remove such Trustee with respect to all Securities, or
(ii) subject to Section 5.14, the Holder of any such Security who has been a
bona fide Holder of such Security for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all Securities and
the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of any one or more series of an Issuer, such
73
Issuer and the Guarantor, by Board Resolutions, shall promptly appoint a
successor Trustee with respect to the Securities of such series and shall comply
with the applicable requirements of Section 6.11. If, within one year after
such resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series of an Issuer
shall be appointed by Act of the Holders of a majority in principal amount of
the Outstanding Securities of such series delivered to such Issuer and the
Guarantor and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance with the
applicable requirements of Section 6.11, become the successor Trustee with
respect to the Securities of such series of such Issuer and to that extent
supersede the successor Trustee appointed by such Issuer and the Guarantor. If
no successor Trustee with respect to the Securities of any series of any Issuer
shall have been so appointed by such Issuer and the Guarantor or the Holders of
such Securities and accepted appointment in the manner required by Section 6.11,
the Holder of any Security of such series who has been a bona fide Holder for at
least six months may, subject to Section 5.14, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such series
of such Issuer.
(f) The applicable Issuer shall give notice of each resignation and
each removal of the Trustee with respect to the Securities of any series of such
Issuer and each appointment of a successor Trustee with respect to the
Securities of any series of such Issuer by mailing written notice of such event
by first-class mail, postage prepaid, to the Holders of Securities of such
series as their names and addresses appear in the Security Register. Each
notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
SECTION 6.11. Acceptance of Appointment by Successor. (a) In case
---------------------------------------
of the appointment hereunder of a successor Trustee with respect to all
Securities, every such successor Trustee appointed hereunder shall execute,
acknowledge and deliver to each of the Issuers and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
74
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on request of
any of the Issuers or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee, and shall duly assign, transfer and deliver to such successor Trustee
all property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series of one or more
Issuers, the applicable Issuer, the Guarantor, the retiring Trustee and each
successor Trustee with respect to the Securities of one or more series of such
Issuer shall execute and deliver an indenture supplemental hereto wherein each
successor Trustee shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates, (2) if the retiring Trustee
is not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trust and duties of
the retiring Trustee with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates; but, on request of the
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applicable Issuer, the Guarantor or any successor Trustee, such retiring Trustee
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder with respect to the Securities
of that or those series to which the appointment of such successor Trustee
relates.
(c) Upon request of any such successor Trustee, the applicable Issuer
and the Guarantor shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all such rights,
powers, trusts and duties referred to in paragraph (a) or (b) of this Section,
as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
SECTION 6.12. Merger, Conversion, Consolidation or Succession to
--------------------------------------------------
Business. Any corporation into which the Trustee may be merged or converted or
---------
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder;
provided such corporation shall be otherwise qualified and eligible under this
--------
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 6.13. Preferential Collection of Claims Against Issuers or
----------------------------------------------------
the Guarantor. The Trustee shall comply with Section 311(a) of the Trust
--------------
Indenture Act, excluding any creditor relationship listed in Section 311(b) of
that Act. If the Trustee shall resign or be removed as Trustee, it shall be
subject to Section 311(a) of the Trust Indenture Act to the extent provided
therein.
SECTION 6.14. Appointment of Authenticating Agent. At any time when
------------------------------------
any of the Securities remain
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Outstanding the Trustee, with the consent of the applicable Issuer or Issuers
and the Guarantor, may appoint an Authenticating Agent or Agents with respect to
one or more series of Securities of such Issuer or Issuers which shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series issued upon exchange, registration of transfer or partial redemption
thereof or pursuant to Section 3.06, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee hereunder. Wherever reference
is made in this Indenture to the authentication and delivery of Securities by
the Trustee or the Trustee's certificate of authentication, such reference shall
be deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the applicable Issuer or Issuers and shall at all times be a
corporation organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia, authorized under such
laws to act as Authenticating Agent, having a combined capital and surplus of
not less than $50,000,000 and subject to supervision or examination by Federal
or State authority. If such Authenticating Agent publishes reports of condition
at least annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purpose of this Section, the combined capital
and surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
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An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee, to the applicable Issuer or Issuers and to the
Guarantor. The Trustee may at any time terminate the agency of an
Authenticating Agent by giving written notice thereof to such Authenticating
Agent, to the applicable Issuer or Issuers and to the Guarantor. Upon receiving
such a notice of resignation or upon such a termination, or in case at any time
such Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to each of the applicable Issuers and shall mail
written notice of such appointment by first-class mail, postage prepaid, to all
Holders of Securities of the series with respect to which such Authenticating
Agent will serve, as their names and addresses appear in the Security Register.
Any successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 6.07.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the
78
Trustee's certificate of authentication, an alternate certificate of
authentication in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
-------------------------------
As Trustee
By
-----------------------------
As Authenticating Agent
By
-----------------------------
Authorized Officer
79
ARTICLE VII
Holders' Lists and Reports by Trustee
--------------------------------------
and Issuers and the Guarantor
-----------------------------
SECTION 7.01. Issuers and the Guarantor to Furnish Trustee Names and
------------------------------------------------------
Addresses of Holders. Each of the Issuers and the Guarantor will furnish or
---------------------
cause to be furnished to the Trustee:
(a) semiannually, not later than May 15 and November 15 in each year,
a list, in such form as the Trustee may reasonably require, of the names
and addresses of the Holders of Outstanding Securities of each series of
the applicable Issuer as of the preceding April 1 or October 1, as the case
may be; and
(b) at such other times as the Trustee may request in writing, within
30 days after receipt by the applicable Issuer or the Guarantor, as the
case may be, of any such request, a list of similar form and content as of
a date not more than 15 days prior to the time such list is furnished;
provided, however, that if and so long as the Trustee shall be the Security
--------
Registrar, no such list need be furnished.
SECTION 7.02. Preservation of Information; Communications to Holders.
-------------------------------------------------------
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 7.01 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar or Paying Agent (if so acting). The Trustee may destroy any list
furnished to it as provided in Section 7.01 upon receipt of a new list so
furnished.
(b) If three or more Holders (hereinafter referred to as "applicants")
apply in writing to the Trustee, and furnish to the Trustee reasonable proof
that each such applicant has owned a Security for a period of at least six
months preceding the date of such application, and such application states that
the applicants desire to communicate with other Holders with respect to their
rights under this Indenture or under the Securities and the Guarantees and is
accompanied by a copy of the form of proxy or other communication which such
applicants propose to transmit,
80
then the Trustee shall, within five Business Days after the receipt of such
application, at its election, either
(1) afford such applicants access to the information preserved at the
time by the Trustee in accordance with Section 7.02(a), or
(2) inform such applicants as to the approximate number of Holders
whose names and addresses appear in the information preserved at the time
by the Trustee in accordance with Section 7.02(a), and as to the
approximate cost of mailing to such Holders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder whose name and address appear in the information
preserved at the time by the Trustee in accordance with Section 7.02(a) , a copy
of the form of proxy or other communication which is specified in such request,
with reasonable promptness after a tender to the Trustee of the material to be
mailed and of payment, or provision for the payment, of the reasonable expenses
of mailing, unless within five days after such tender, the Trustee shall mail to
such applicants and file with the Commission, together with a copy of the
material to be mailed, a written statement to the effect that, in the opinion of
the Trustee, such mailing would be contrary to the best interests of the Holders
or would be in violation of applicable law. Such written statement shall
specify the basis of such opinion. If the Commission, after opportunity for a
hearing upon the objections specified in the written statement so filed, shall
enter an order refusing to sustain any of such objections or if, after the entry
of an order sustaining one or more of such objections, the Commission shall
find, after notice and opportunity for hearing, that all the objections so
sustained have been met and shall enter an order so declaring, the Trustee shall
mail copies of such material to all such Holders with reasonable promptness
after the entry of such order and the renewal of such tender; otherwise the
Trustee shall be relieved of any obligation or duty to such applicants
respecting their application.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with each of the Issuers, the Guarantor and the Trustee that none of the
Issuers, the
81
Guarantor nor the Trustee shall be held accountable by reason of the disclosure
of any such information as to the names and addresses of the Holders in
accordance with Section 7.02(b), regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under Section 7.02(b).
SECTION 7.03. Reports by Trustee. Within 60 days after May 15 of
-------------------
each year commencing with the year following the first issuance of Securities,
the Trustee shall transmit by mail to all Holders of the Securities of each
outstanding series a brief report dated as of such date that complies with
Section 313(a) of the Trust Indenture Act, but only if such report is required
in any year under such Section 313(a) of the Trust Indenture Act. With respect
to each series of Securities, the Trustee shall also comply with Sections 313(b)
and 313(c) of the Trust Indenture Act. At any time a report is mailed to the
Holders of any particular series of Securities, a copy of such report shall be
filed with the Commission and with each securities exchange, if any, on which
the Securities of such series are listed. With respect to each series of
Securities, the applicable Issuer will notify the Trustee when such series of
Securities is listed on any securities exchange.
SECTION 7.04. Reports by Issuers and the Guarantor. Each of the
-------------------------------------
Issuers and the Guarantor shall file such annual and/or periodic reports and
certificates with the Trustee and/or with the Commission and/or with the Holders
of each series of Securities as are required by the provisions of Section 314(a)
of the Trust Indenture Act.
ARTICLE VIII
Consolidation, Merger, Conveyance, Transfer or Lease
----------------------------------------------------
SECTION 8.01. Company May Consolidate, etc., Only on Certain Terms.
-----------------------------------------------------
The Company shall not consolidate with or merge into any other Person or convey,
transfer or lease its properties and assets substantially as an entirety to any
Person, unless:
(1) any Person formed by such consolidation or into which the Company
is merged or to whom the Company has conveyed, transferred or leased its
properties and assets substantially as an entirety is a corporation,
82
partnership or trust or other entity organized and validly existing under
the laws of the United States of America, any State thereof or the District
of Columbia, and such Person expressly assumes by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory to the
Trustee, the due and punctual payment of the principal of and any premium
and interest on all the Securities of the Company and the performance or
observance of every covenant of this Indenture on the part of the Company
to be performed or observed (including the performance or observance of the
Guarantees);
(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have occurred and be continuing;
(3) the Company shall expressly agree by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory to the
Trustee, (i) to immediately indemnify (pursuant to the indemnification
procedure described in Section 8.05) the Holder of each Security against
(A) any tax, assessment or governmental charge imposed on such Holder or
required to be withheld or deducted from any payment to such Holder
(including any governmental charge or withholding attributable to the
Company's indemnifying such Holder) as a consequence of such consolidation,
merger, conveyance, transfer or lease and (B) any other tax costs or other
tax expenses imposed on such Holder as a result of the act of such
consolidation, merger, conveyance, transfer or lease (except that if the
Company or such Person delivers by the date of any such transaction an
opinion of an independent counsel or a tax consultant of recognized
standing that the Holders will not recognize income, gain or loss for U.S.
federal income tax purposes as a result of such transaction, the Holders
will have such rights to indemnification only if and when gain for U.S.
federal income tax purposes is actually imposed on such Holders) and (ii)
that all payments pursuant to the Securities in respect of the principal of
and any premium and interest on the Securities, as the case may be, shall
be made without withholding or deduction for, or on account of, any present
or future taxes, duties, assessments or governmental charges of whatever
nature
83
imposed or levied by or on behalf of the jurisdiction of organization of
such Person or any political subdivision or taxing authority thereof or
therein, unless such taxes, duties, assessments or governmental charges are
required by such jurisdiction or any such subdivision or authority to be
withheld or deducted, in which case such Person will pay such additional
amounts of, or in respect of, principal and any premium and interest as
will result (after deduction of such taxes, duties, assessments or
governmental charges and any additional taxes, duties, assessments or
governmental charges payable in respect of such) in the payment to each
Holder of a Security of the amounts which would have been payable pursuant
to the Securities had no such withholding or deduction been required,
subject to the same exceptions as would apply with respect to the payment
by such Subsidiary Issuer of Additional Amounts in respect of the
Securities;
(4) if, as a result of any such consolidation or merger or such
conveyance, transfer or lease, any Principal Property of the Company would
become subject to a mortgage, pledge, lien, security interest or other
encumbrance that would not be permitted by this Indenture, such Person
shall take such steps as shall be necessary effectively to secure the
Securities of the Company and of the Subsidiary Issuers equally and ratably
with (or prior to) all indebtedness secured thereby; and
(5) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and, if a supplemental indenture is required
in connection with such transaction, such supplemental indenture, comply
with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with.
SECTION 8.02. Subsidiary Issuers May Consolidate, etc., Only on
-------------------------------------------------
Certain Terms. (a) Each Subsidiary Issuer shall not consolidate with or merge
--------------
into any other Person, or convey, transfer or lease its properties and assets
substantially as any entirety to any Person, unless:
(1) any Person formed by such consolidation or into which the
applicable Subsidiary Issuer is merged or to whom such Subsidiary Issuer
has conveyed,
84
transferred or leased its properties and assets substantially as an
entirety (a "Successor") is a corporation, partnership or trust or other
entity organized and validly existing under the laws of the jurisdiction of
organization of such Person, and expressly assumes by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the principal
of and any premium and interest on all the Securities of such Subsidiary
Issuer and the performance or observance of every covenant of this
Indenture on the part of such Subsidiary Issuer to be performed or observed
(including any obligation to pay any Additional Amounts);
(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have occurred and be continuing;
(3) any such Person shall expressly agree, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, (i) to immediately indemnify (pursuant to the
indemnification procedure described in Section 8.05) the Holder of each
Security against (A) any tax, assessment or governmental charge imposed on
such Holder or required to be withheld or deducted from any payment to such
Holder (including any governmental charge or withholding attributable to
such Person's indemnifying such Holder) as a consequence of such
consolidation, merger, conveyance, transfer or lease, and (B) any other tax
costs or other tax expenses of the act of such consolidation, merger,
conveyance, transfer or lease (except that if the Company or any such
Person delivers by the date of any such transaction an opinion of an
independent counsel or a tax consultant of recognized standing that the
Holder will not recognize income, gain or loss for U.S. federal income tax
purposes as a result of such transaction, the Holders will have such rights
to indemnification only if and when gain for U.S. federal income tax
purposes is actually imposed on such Holders) and (ii) that all payments
pursuant to the Securities in respect of the principal of and any premium
and interest on such Securities, as the case
85
may be, shall be made without withholding or deduction for, or on account
of, any present or future taxes, duties, assessments or governmental
charges of whatever nature imposed or levied by or on behalf of the
jurisdiction of organization of such Person or any political subdivision or
taxing authority thereof or therein, unless such taxes, duties, assessments
or governmental charges are required by such jurisdiction or any such
subdivision or authority to be withheld or deducted, in which case such
Person will pay by way of additional interest such additional amounts of,
or in respect of, principal and any premium and interest ("Successor
Additional Amounts") as will result (after deduction of such taxes, duties,
assessments or governmental charges and any additional taxes, duties,
assessments or governmental charges payable in respect of such) in the
payment to each Holder of a Security of the amounts which would have been
payable pursuant to the Securities had no such withholding or deduction
been required, except that no Successor Additional Amounts shall be so
payable for or on account of:
(A) any tax, duty, levy, assessment or other governmental charge which
would not have been imposed but for the fact that such Holder: (i) was a
resident, domiciliary or national of, or engaged in business or maintained
a permanent establishment or was physically present in, the jurisdiction of
organization of such Successor or any of its territories or any political
subdivision thereof or otherwise had some connection with such jurisdiction
other than the mere ownership of, or receipt of payment under, such
Security; (ii) presented (if presentation is required) such Security for
payment in such jurisdiction or any of its territories or any political
subdivision thereof, unless such Security could not have been presented for
payment elsewhere; or (iii) presented (if presentation is required) such
Security more than thirty (30) days after the date on which the payment in
respect of such Security first became due and payable or provided for,
whichever is later, except to the extent that the Holder would have been
entitled to such Successor Additional Amounts if it had presented such
Security for payment on any day within such period of thirty (30) days;
86
(B) any estate, inheritance, gift, sale, transfer, personal property
or similar tax, assessment or other governmental charge;
(C) any tax, assessment or other governmental charge which is payable
otherwise than by withholding or deduction from payments of (or in respect
of) principal of or any premium or interest on, such Securities;
(D) any tax, assessment or other governmental charge that is imposed
or withheld by reason of the failure to comply by the Holder or the
beneficial owner of the Security with a request of such Subsidiary Issuer
or the Successor addressed to the Holder (i) to provide information
concerning the nationality, residence or identity of the Holder or such
beneficial owner or (ii) to make any declaration or other similar claim or
satisfy any information or reporting requirement, which, in the case of (i)
or (ii), is required or imposed by statute, treaty, regulation or
administrative practice of the taxing jurisdiction as a precondition or
exemption from all or part of such tax, assessment or other governmental
charge; or
(E) any combination of items (A), (B), (C) and (D);
nor shall Successor Additional Amounts be paid with respect to any payment of
the principal of or any premium or interest on any such Security to any Holder
who is a fiduciary or partnership or other than the sole beneficial owner of
such payment to the extent such payment would be required by the laws of the
jurisdiction of organization of such Person (or any political subdivision or
taxing authority thereof or therein) to be included in the income for tax
purposes of a beneficiary or settlor with respect to such fiduciary or a member
of such partnership or a beneficial owner who would not have been entitled to
such Successor Additional Amounts had it been the Holder of the Security; and
(4) such Subsidiary Issuer has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a supplemental
indenture is required in connection with such transaction, such
supplemental indenture comply with
87
this Article and that all conditions precedent herein provided for relating
to such transaction have been complied with.
(b) A Subsidiary Issuer may assign its obligations under any series
of Securities to any other Subsidiary (the "Subsidiary Assignee") provided that
the conditions set forth in Section 8.02(a) that would apply to the merger of
such Subsidiary Issuer into such Subsidiary Assignee are satisfied, and such
Subsidiary Assignee shall be treated as the Successor to such Subsidiary Issuer
with respect to such series of Securities.
SECTION 8.03. Successor Substituted. Upon (A) any consolidation of
----------------------
an Issuer or the Guarantor with, or merger of an Issuer or the Guarantor into,
any other Person or any conveyance, transfer or lease of the properties and
assets of such Issuer or the Guarantor substantially as an entirety in
accordance with Sections 8.01 or 8.02(a), or (B) any assignment of its
obligations under any series of Securities by a Subsidiary Issuer to any
Subsidiary Assignee in accordance with Section 8.02(b), the successor Person
formed by such consolidation or into which such Issuer or the Guarantor is
merged or to which such conveyance, transfer or lease is made, or the Subsidiary
Assignee, as the case may be, shall succeed to, and be substituted for, and may
exercise every right and power of, such Issuer or the Guarantor or Subsidiary
Issuer under this Indenture with the same effect as if such successor Person had
been named as such Issuer or the Guarantor or Subsidiary Issuer herein, and
thereafter, except in the case of a lease, the predecessor Person shall be
relieved of all obligations and covenants under this Indenture and the
Securities or the Guarantees, as the case may be.
SECTION 8.04. Assumption by Company of Subsidiary Issuers'
--------------------------------------------
Obligations. (a) The Company may, at its option, assume the obligations of a
------------
Subsidiary Issuer as obligor under any series of Securities and this Indenture;
provided that:
--------
(i) the Company expressly assumes in an assumption agreement or
supplemental indenture executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the principal
of and any premium and interest on such Securities and the performance or
observance of every covenant of this Indenture on the part of such
Subsidiary Issuer to be
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performed or observed (including any obligation to pay any Additional
Amounts);
(ii) immediately after giving effect to such assumption, no Event of
Default and no event, which after notice or lapse of time or both, would
become an Event of Default, shall have occurred and be continuing; and
(iii) the Company shall expressly agree in an assumption agreement or
supplemental indenture executed and delivered to the Trustee, in form
satisfactory to the Trustee, to immediately indemnify (pursuant to the
indemnification procedure described in Section 8.05) the Holder of each
Security against (i) any tax, assessment or governmental charge imposed on
such Holder or required to be withheld or deducted from any payment to such
Holder (including any governmental charge or withholding tax attributable
to the Company's indemnifying such Holder) as a consequence of such
assumption and (ii) any costs or expenses of such assumption (except that
if the Company delivers to the Trustee an opinion of an independent counsel
or a tax consultant of recognized standing that the Holders will not
recognize income, gain or loss for U.S. federal income tax purposes as a
result of such assumption by the date of such assumption, the Holders will
have indemnification rights pursuant to the indemnification procedure
described in Section 8.05 only if and when gain for U.S. federal income tax
purposes is actually imposed on such Holders); and
(iv) the Company shall have delivered to the Trustee an Officers'
Certificate stating that such assumption and such assumption agreement
comply with this Article and that all conditions precedent herein provided
for relating to such assumption have been complied with.
(b) Upon any assumption pursuant to Section 8.04(a), the Company
shall succeed to, and be substituted for, any may exercise every right and power
of, the applicable Subsidiary Issuer under such Securities and this Indenture
with the same effect as if the Company had been the applicable Subsidiary Issuer
thereof, and such Subsidiary Issuer shall be released from its liability as
obligor upon the Securities and under this Indenture.
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SECTION 8.05. Indemnification Procedure. (a) If a transaction
--------------------------
described above under Sections 8.01, 8.02 or 8.04 (an "Indemnifiable
Transaction") should constitute a taxable event for U.S. federal income tax
purposes, the Company or any Person, as the case may be, must indemnify a Holder
of a Security against any tax, assessment or governmental charge imposed on such
Holder or required to be withheld or deducted from any payment to such Holder
(including any governmental charge or withholding attributable to an
indemnification payment made by or on behalf of the Company or any Person) and
any other tax costs or other tax expenses attributable to such Indemnifiable
Transaction, the Company or any such Person, as the case may be, shall comply
with the following indemnification procedures:
(1) Unless the Company or any such Person, as the case may be,
delivers to the Trustee by the date of an Indemnifiable Transaction an
opinion of an independent counsel or a tax consultant of recognized
standing to the effect that such Indemnifiable Transaction will not be a
taxable event for U.S. federal income tax purposes, the Company or any such
Person, as the case may be, shall deliver to each Holder on the date of
such Indemnifiable Transaction (i) notification explaining the U.S. federal
income tax consequences to each such Holder of such Indemnifiable
Transaction and (ii) an indemnification claim form requesting (A)
information concerning each such Holder's tax basis and holding period in a
Security and (B) a statement that the Holder is not then an entity
described in Section 5.01 of the Code that is exempt from U.S. federal
income tax and setting forth the address to which each such Holder must
remit such form.
(2) If the Company or any such Person delivers such an opinion, the
Holders will have indemnification rights pursuant to this Section 8.05 only
if and when gain for U.S. federal income tax purposes is actually imposed
on such Holders.
(3) When the Company or any Person, as the case may be, receives from
a Holder an indemnification claim form, the Company or such Person, as the
case may be, shall within 15 business days remit to such Holder a certified
check in an amount equal to the sum of (i) the product of any gain
recognized as a result of the Indemnifiable Transaction and the highest
marginal tax
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rate in effect at the time of such Indemnifiable Transaction (the
"Indemnification Amount"), and (ii) the product of the Indemnification
Amount and such tax rate. For these purposes, gain shall equal the amount
by which the fair market value of a Security at the time of such
Indemnifiable Transaction exceeds such Holder's tax basis in such Security.
ARTICLE IX
Supplemental Indentures
-----------------------
SECTION 9.01. Supplemental Indentures without Consent of Holders.
---------------------------------------------------
Without the consent of any Holders, any Issuer or the Guarantor, when authorized
by a Board Resolution of such Issuer or the Guarantor, as the case may be, and
the Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to the Trustee, for any of
the following purposes:
(a) to evidence the succession of another Person to such Issuer or the
Guarantor and the assumption by any such successor of the covenants of such
Issuer or the Guarantor herein and in the Securities or the Guarantees; or
(b) to add to the covenants of such Issuer or the Guarantor for the
benefit of the Holders of all or any series of Securities (and if such
covenants are to be for the benefit of less than all series of Securities,
stating that such covenants are expressly being included solely for the
benefit of such series) or to surrender any right or power herein conferred
upon such Issuer or the Guarantor; or
(c) to add any additional Events of Default with respect to any or all
series of Securities (and, if any such Event of Default applies to fewer
than all series of Securities, stating each series to which such Event of
Default applies); or
(d) to add or change any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal,
and with or without interest coupons; or
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(e) to change or eliminate any of the provisions of this Indenture;
provided that any such change or elimination shall become effective only
--------
when there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the benefit
of such provision; or
(f) to establish the form or terms of Securities of any series as
permitted by Sections 2.01 and 3.01; or
(g) 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 6.11(b); or
(h) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture; provided that, in each case, such
--------
provisions shall not adversely affect the interests of the Holders of
Securities of any series in any material respect; or
(i) to add to the conditions, limitations and restrictions on the
authorized amount, form, terms or purposes of issue, authentication and
delivery of Securities, as herein set forth, other conditions, limitations
and restrictions thereafter to be observed; or
(j) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Section 4.01; provided
--------
that any such action shall not adversely affect the interests of the
Holders of Securities of such series and any related coupons or any other
series of Securities in any material respect; or
(k) to comply with the requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the Trust
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Indenture Act, as contemplated by Section 9.05 or otherwise.
SECTION 9.02. Supplemental Indentures with Consent of Holders. With
------------------------------------------------
the consent of the Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the applicable
Issuer, the Guarantor and the Trustee, the applicable Issuer and the Guarantor,
when authorized by Board Resolutions of, respectively, the applicable Issuer and
the Guarantor, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of such series
under this Indenture; provided, however, that no such supplemental indenture
-------- -------
shall, without the consent of the Holder of each Outstanding Security affected
thereby:
(a) change the Stated Maturity of the principal of, or any installment
of principal of or interest on, any Security, or reduce the principal
amount thereof or the rate of interest thereon or any premium payable upon
the redemption thereof, or change any obligation of such Issuer or the
Guarantor to pay any Additional Amounts or reduce the amount of the
principal of a Discounted Security or any other Security that would be due
and payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 5.02, or change any Place of Payment where, or the coin
or currency in which, any Security or any premium or the interest thereon
is payable, or impair the right to institute suit for the enforcement of
any such payment after the Maturity thereof; or
(b) reduce the percentage in principal amount of the Outstanding
Securities of any series of such Issuer, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain provisions
of this Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture; or
(c) modify any of the provisions of this Section or Sections 5.13 and
10.11, except to increase
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any such percentage or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the Holder of
each Outstanding Security affected thereby; provided, however, that this
-------- -------
clause shall not be deemed to require the consent of any Holder with
respect to changes in the references to "the Trustee" and concomitant
changes in this Section and Section 10.11, or the deletion of this proviso,
in accordance with the requirements of Sections 6.11(b) and 9.01(h).
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
Upon the request of the applicable Issuer and the Guarantor, each
accompanied by copies of Board Resolutions of, respectively, the applicable
Issuer and the Guarantor authorizing the execution of any such supplemental
indenture, and upon the filing with the Trustee of evidence of the consent of
Holders as aforesaid, the Trustee shall join with such Issuer and the Guarantor
in the execution of such supplemental indenture.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 9.03. Execution of Supplemental Indentures. In executing, or
-------------------------------------
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and (subject to Section
6.01) shall be fully protected in relying upon, an Opinion of Counsel and an
Officers' Certificate stating that the execution of such supplemental indenture
is authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
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SECTION 9.04. Effect of Supplemental Indentures. Upon the execution
---------------------------------
of any supplemental indenture under this Article, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a
part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder shall be bound
thereby.
SECTION 9.05. Conformity with Trust Indenture Act. Every
------------------------------------
supplemental indenture executed pursuant to the Article shall conform to the
requirements of the Trust Indenture Act as then in effect.
SECTION 9.06. Reference in Securities to Supplemental Indentures.
---------------------------------------------------
Securities of any series authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the applicable Issuer and the
Guarantor shall so determine, new Securities of any series so modified as to
conform, in the opinion of the Trustee and such Issuer and the Guarantor, to any
such supplemental indenture may be prepared and executed by such Issuer, the
notation of the Guarantor or the Guarantees endorsed thereon may be prepared and
executed by the Guarantor and such Securities may be and authenticated and
delivered by the Trustee in exchange for Outstanding Securities of such series.
ARTICLE X
Covenants
---------
SECTION 10.01. Payment of Principal, Premium and Interest. Each of
-------------------------------------------
the Issuers covenants and agrees for the benefit of the Holders of each series
of Securities of such Issuer that it will duly and punctually pay the principal
of (and premium, if any) and interest on the Securities of that series in
accordance with the terms of the Securities and this Indenture.
SECTION 10.02. Maintenance of Office or Agency. Each of the Issuers
--------------------------------
will maintain in each Place of Payment for any series of Securities of such
Issuer, an office or agency where Securities of such series may be presented or
surrendered for payment, where Securities of such series may be surrendered for
registration of transfer or exchange and
95
where notices and demands to or upon such Issuer in respect of the Securities of
such series and this Indenture may be served. The office of the Trustee at its
Corporate Trust Office or at the offices or agencies of its agent shall be such
office or agency of each of the Issuers, except to the extent that any of the
Issuers shall designate and maintain some other office or agency for one or more
of such purposes. Each applicable Issuer will give prompt written notice to the
Trustee of the location, and any change in the location, of any such office or
agency. If at any time an Issuer shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office, and each of the Issuers hereby appoints the Trustee as
its agent to receive all such presentations, surrenders, notices and demands.
Each of the Issuers may from time to time designate one or more other
offices or agencies where the Securities of one or more series of such Issuer
may be presented or surrendered for any or all such purposes, and may from time
to time rescind such designation; provided, however, that no such designation or
-------- -------
rescission shall in any manner relieve such Issuer of its obligation to maintain
an office or agency in each Place of Payment for Securities of any series for
such purposes. Each applicable Issuer will give prompt written notice to the
Trustee of any such designation or rescission and of any change in the location
of any such office or agency.
The Guarantor will maintain in each Place of Payment for any series of
Securities to which the Guarantees apply an office or agency where Securities of
such series may be presented or surrendered for payment pursuant to the
Guarantees and where notices and demands to or upon the Guarantor in respect of
the Guarantees and this Indenture may be served. The Guarantor will give prompt
written notice to the Trustee of the location, and any change in the location,
of such office or agency. If at any time the Guarantor shall fail to maintain
any such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders and demands may be made or
served at the Corporate Trust Office of the Trustee, and the Guarantor hereby
appoints the Trustee as its agent to receive all such presentations, surrender
and demands.
96
The Guarantor may also from time to time designate one or more other
offices or agencies where the Securities of one or more series to which the
Guarantees apply may be presented or surrendered for such purpose or where such
notices or demands may be served and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
-------- -------
any manner relieve the Guarantor of its obligation to maintain an office or
agency in each Place of Payment for Securities of any series for such purposes.
The Guarantor will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
SECTION 10.03. Money for Security Payments to be Held in Trust. If
------------------------------------------------
any of the Issuers or the Guarantor shall at any time act as its own Paying
Agent with respect to any series of Securities, it will, on or not more than one
Business Day before each due date of the principal of (and premium, if any) or
interest on any of the Securities of that series, segregate and hold in trust
for the benefit of the Persons entitled thereto a sum sufficient to pay the
principal (and premium, if any) or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided, and
will promptly notify the Trustee of its action or failure so to act.
If any of the Issuers shall have one or more Paying Agents for any
series of Securities, it will, on or before each due date of the principal of
(and premium, if any), or interest on, any Securities of that series, deposit
with a Paying Agent a sum in same day funds sufficient to pay the principal (and
premium, if any) or interest so becoming due, such sum to be held in trust for
the benefit of the Persons entitled to such principal, premium or interest, and
(unless such Paying Agent is the Trustee) the applicable Issuer will promptly
notify the Trustee of such action or any failure so to act.
The applicable Issuer will cause each Paying Agent other than the
Trustee to execute and deliver to the Trustee an instrument in which such Paying
Agent shall agree with the Trustee, subject to the provisions of this Section,
that such Paying Agent will:
(a) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest on Securities in trust for the benefit of the
Persons
97
entitled thereto until such sums shall be paid to such Persons or otherwise
disposed of as herein provided;
(b) give the Trustee notice of any default by the applicable Issuer
(or any other obligor upon the Securities) in the making of any payment of
principal (and premium, if any) or interest;
(c) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent; and
(d) acknowledge, accept and agree to comply in all aspects with the
provisions of this Indenture relating to the duties, rights and liabilities
of such Paying Agent.
Any of the Issuers may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Issuer Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the applicable Issuer or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by such
Issuer or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by any of the Issuers or the Guarantor, in trust for the payment of the
principal of (and premium, if any) or interest or Additional Amounts on any
Security and remaining unclaimed for three years after such principal (and
premium, if any) or interest or Additional Amounts has become due and payable
shall be paid to the applicable Issuer or the Guarantor on Issuer Request, or
(if then held by such Issuer or the Guarantor) shall be discharged from such
trust; and the Holder of such Security shall thereafter, as an unsecured general
creditor, look only to the applicable Issuer or the Guarantor for payment
thereof, and all liability of the Trustee or such Paying Agent with respect to
such trust money, and all liability of such Issuer or the Guarantor as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
-------- -------
Paying Agent, before being required to make any such repayment, may at the
expense of the applicable Issuer or the Guarantor cause to be published once, in
a newspaper published in the
98
English language, customarily published on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York, or mail to each
such Holder or both notice that such money remains unclaimed and that, after a
date specified therein, which shall not be less than 30 days from the date of
such notification, publication or mailing, any unclaimed balance of such money
then remaining will be repaid to such Issuer or the Guarantor.
SECTION 10.04. Corporate Existence. Subject to Article VIII, each of
--------------------
the Issuers and the Guarantor shall do or cause to be done all things necessary
to preserve and keep in full force and effect its corporate existence, rights
(charter and statutory) and franchises (including those of each Subsidiary);
provided, however, that each of the Issuers and the Guarantor shall not be
-------- -------
required to preserve any such right or franchise if its respective Board of
Directors shall determine in a Board Resolution that the preservation thereof is
no longer desirable in the conduct of the business of the applicable Issuer or
the Guarantor and that the loss thereof is not disadvantageous in any material
respect to the Holders; and provided further, however, that the foregoing shall
---------------- -------
not prohibit a sale, transfer or conveyance of a Subsidiary or assets of any
Issuer or any Subsidiary in compliance with the terms of this Indenture.
SECTION 10.05. Maintenance of Properties. Each of the Issuers and
--------------------------
the Guarantor shall cause all properties owned by it or any of its Subsidiaries
or used or held for use in the conduct of its business or the business of any of
its Subsidiaries to be maintained and kept in good condition, repair and working
order and supplied with all necessary equipment, and will cause to be made all
necessary repairs, renewals, replacements, betterments and improvements thereof,
all as in the judgment of such Issuer or the Guarantor may be necessary so that
the business carried on in connection therewith may be properly and
advantageously conducted at all times; provided, however, that nothing in this
-------- -------
Section shall prevent any Issuer or the Guarantor from discontinuing the
maintenance of any of such properties if such discontinuance is, in the judgment
of such Issuer or the Guarantor, desirable in the conduct of its business or the
business of any of its Subsidiaries and not disadvantageous in any material
respect to the Holders of any of the Securities of such Issuer.
SECTION 10.06. Payment of Taxes and Other Claims. Each of the
----------------------------------
Issuers and the Guarantor will pay or discharge
99
or cause to be paid or discharged, before the same shall become delinquent, (a)
all taxes, assessments and governmental charges levied or imposed upon the
applicable Issuer or the Guarantor or any Subsidiary thereof or upon the income,
profits or property of such Issuer or the Guarantor or any Subsidiary thereof,
and (b) all lawful claims for labor, materials and supplies which, if unpaid,
might by law become a lien upon the property of such Issuer or the Guarantor or
any Subsidiary thereof; provided, however, that any such Issuer and the
-------- -------
Guarantor shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount, applicability
or validity is being contested in good faith by appropriate proceedings.
SECTION 10.07. Additional Amounts. All payments of, or in respect
-------------------
of, principal of and any premium and interest on Securities issued by a
Subsidiary Issuer shall be made without withholding or deduction for, or on
account of, any present or future taxes, duties, levies, assessments or
governmental charges of whatever nature imposed or levied by or on behalf of the
jurisdiction (or any political subdivision or taxing authority thereof or
therein) in which the Subsidiary Issuer is incorporated or resident (or deemed
for tax purposes to be resident) (the "applicable taxing jurisdiction"), unless
such taxes, duties, levies, assessments or governmental charges are required by
the applicable taxing jurisdiction or any such subdivision or authority to be
withheld or deducted. In that event, the Subsidiary Issuer will pay by way of
additional interest such additional amounts of, or in respect of, principal and
any premium and interest ("Additional Amounts") as will result (after deduction
of such taxes, duties, levies, assessments or governmental charges and any
additional taxes, duties, levies, assessments or governmental charges payable in
respect of such Additional Amounts) in the payment to each Holder of such
Securities of the amounts which would have been payable in respect of such
Securities had no such withholding or deduction been required, except that no
Additional Amounts shall be so payable for or on account of:
(1) any tax, duty, levy, assessment or other governmental charge which
would not have been imposed but for the fact that such Holder: (A) was a
resident, domiciliary or national of, or engaged in business or maintained
a permanent establishment or was physically present in, the applicable
taxing jurisdiction or
100
otherwise had some connection with the applicable taxing jurisdiction other
than the mere ownership of such Security; (B) presented (if presentation is
required) such Security for payment in the applicable taxing jurisdiction,
unless such Security could not have been presented for payment elsewhere;
or (C) presented (if presentation is required) such Security more than
thirty (30) days after the date on which the payment in respect of such
Security first became due and payable or provided for, whichever is later,
except to the extent that the Holder would have been entitled to such
Additional Amounts if it had presented such Security for payment on any day
within such period of thirty (30) days;
(2) any estate, inheritance, gift, sale, transfer, personal property
or similar tax, assessment or other governmental charge;
(3) any tax, assessment or other governmental charge which is payable
otherwise than by withholding or deduction from payments of, or in respect
of, principal of or any premium or interest on the Security;
(4) any tax, assessment or other governmental charge that is imposed
or withheld by reason of the failure to comply by the Holder or the
beneficial owner of a Security with a request of the applicable Subsidiary
Issuer addressed to the Holder (A) to provide information concerning the
nationality, residence or identity of the Holder or such beneficial owner
or (B) to make any declaration or other similar claim or satisfy any
information or reporting requirement, which, in the case of (A) or (B), is
required or imposed by a statute, treaty, regulation or administrative
practice of the applicable taxing jurisdiction as a precondition to
exemption from all or part of such tax, assessment or other governmental
charge; or
(5) any combination of items (1), (2), (3) and (4);
nor shall Additional Amounts be paid with respect to any payment of the
principal of or any premium or interest on any such Security to any Holder who
is a fiduciary or partnership or other than the sole beneficial owner of such
101
payment to the extent such payment would be required by the laws of the
applicable taxing jurisdiction to be included in the income for tax purposes of
a beneficiary or settlor with respect to such fiduciary or a member of such
partnership or a beneficial owner who would not have been entitled to such
Additional Amounts had it been the Holder of the Security.
Whenever in this Indenture there is mentioned, in any context, the
payment of principal of, or any premium or interest on, or in respect of, any
Securities of any series issued by a Subsidiary Issuer or the net proceeds
received on the sale or exchange of any Securities of any series issued by a
Subsidiary Issuer, such mention shall be deemed to include mention of 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
thereof pursuant to this Indenture.
SECTION 10.08. Limitations on Liens. (a) The Company will not, and
---------------------
will not permit any Restricted Subsidiary to, hereafter, create, assume or
suffer to exist any mortgage, security interest, pledge or lien (herein referred
to as a "Lien") of or upon any Principal Property, or any shares of capital
stock or evidences of indebtedness for borrowed money issued by any Restricted
Subsidiary and owned by the Company or any Restricted Subsidiary, whether owned
at the date of this Indenture or thereafter acquired, without making effective
provision, and the Company in such case will make or cause to be made effective
provision, whereby the Securities shall be secured by such Lien equally and
ratably with any and all other indebtedness or obligations thereby secured, so
long as such indebtedness or obligations shall be so secured; provided, however,
-------- -------
that the foregoing shall not apply to any of the following:
(i) Liens that exist on the date of this Indenture;
(ii) Liens on property, shares of capital stock or evidences of
indebtedness of any corporation existing at the time such corporation
becomes a Subsidiary;
(iii) Liens in favor of the Company or any Subsidiary;
(iv) Liens in favor of governmental bodies to secure progress,
advance or other payments pursuant to contract or statute or indebtedness
incurred to finance
102
all or a part of construction of or improvements to property subject to
such Liens;
(v) Liens (A) on property, shares of capital stock or evidences of
indebtedness for borrowed money existing at the time of acquisition thereof
(including acquisition through merger or consolidation), and construction
and improvement Liens that are entered into within one year from the date
of such construction or improvement; provided that in the case of
--------
construction or improvement the Lien shall not apply to any property
theretofore owned by the Company or any Restricted Subsidiary except
substantially unimproved real property on which the property so constructed
or the improvement is located and (B) for the acquisition of any Principal
Property, which Liens are created within 180 days after the completion of
such acquisition to secure or provide for the payment of the purchase price
of the Principal Property acquired; provided that any such Liens do not
--------
extend to any other property of the Company or any of its Subsidiaries
(whether such property is then owned or thereafter acquired);
(vi) mechanics', landlords' and similar Liens arising in the
ordinary course of business in respect of obligations not due or being
contested in good faith;
(vii) Liens for taxes, assessments, or governmental charges or levies
that are not delinquent or are being contested in good faith;
(viii) Liens arising from any legal proceedings that are being
contested in good faith;
(ix) any Liens that (A) are incidental to the ordinary conduct of
its business or the ownership of its properties and assets, including Liens
incurred in connection with workmen's compensation, unemployment insurance
or other forms of governmental insurance or benefits, or to secure
performance of tenders, statutory obligations, leases and contracts, (B)
were not incurred in connection with the borrowing of money or the
obtaining of advances or credit and (C) do not in the aggregate materially
detract from the value of the property of the Company or any Subsidiary or
materially impair the use thereof in the operation of its business;
103
(x) Liens securing industrial development or pollution control bonds;
and
(xi) Liens for the sole purpose of extending, renewing or replacing
(or successively extending, renewing or replacing) in whole or in part any
of the foregoing.
(b) Notwithstanding the provisions of paragraph (a) of this Section
10.08, the Company or any Restricted Subsidiary may, without equally and ratably
securing the Securities, create, assume or suffer to exist Liens which would
otherwise be subject to the foregoing restrictions if at the time of such
creation, assumption or sufferance of existence, and after giving effect
thereto, Exempted Indebtedness does not exceed 10% of Consolidated Net Tangible
Assets.
SECTION 10.09. Limitations on Sale and Leaseback. (a) The Company
----------------------------------
will not, nor will it permit any Restricted Subsidiary to, enter into any
arrangement with any person providing for the leasing (as lessee) by the Company
or any Restricted Subsidiary of any Principal Property (except for temporary
leases for a term, including any renewal thereof, of not more than three years
and except for leases between the Company and a Restricted Subsidiary or between
Restricted Subsidiaries) which property has been or is to be sold or transferred
by the Company or a Restricted Subsidiary to such person (herein referred to as
a "Sale and Leaseback Transaction") unless either (i) the Company or such
Restricted Subsidiary would be entitled to incur a Lien on such property without
equally and ratably securing the Securities pursuant to paragraph (a) of Section
10.08 or (ii) the net proceeds of such sale are at least equal to the fair value
(as determined by the Board of Directors) of such property and the Company shall
apply an amount equal to the net proceeds of such sale to (A) the retirement
(other than any mandatory retirement or payment at maturity) of (x) Securities
(other than any retirement prohibited by the terms of any Securities pursuant to
prohibitions on advance refundings) or (y) Funded Debt of the Company or any
Restricted Subsidiary ranking prior to or on a parity with the Securities or (B)
the acquisition, construction or improvement of a Principal Property, within 120
days of the effective date of any such arrangement.
(b) Notwithstanding the provisions of paragraph (a) of this Section
10.09, the Company or any
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Restricted Subsidiary may enter into Sale and Leaseback Transactions, if at the
time of such entering into, and after giving effect thereto, Exempted
Indebtedness does not exceed 10% of Consolidated Net Tangible Assets.
SECTION 10.10. Statement by Officers as to Default. The Company will
------------------------------------
deliver to the Trustee, within 120 days after the end of each fiscal year of the
Company ending after the date hereof, a certificate signed by its principal
executive officer, principal financial officer or principal accounting officer,
stating whether or not to the best knowledge of the signers thereof the Company
or any of the Subsidiary Issuers is in default in the performance and observance
of any of the terms, provisions and conditions of Sections 10.01 to 10.09,
inclusive, and if the Company or any of the Subsidiary Issuers shall be in
default, specifying all such defaults and the nature and status thereof of which
they may have knowledge.
SECTION 10.11. Waiver of Certain Covenants. Any Issuer and the
----------------------------
Guarantor may, with respect to the Securities of a series of such Issuer, omit
in any particular instance to comply with any covenant or condition set forth in
Sections 10.02 through 10.09 if, before or after the time for such compliance,
the Holders of not less than a majority in aggregate principal amount of the
Securities at the time Outstanding of such series shall, by Act of such Holders,
either waive such compliance in such instance or generally waive compliance with
such covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of such Issuer and the Guarantor
and the duties of the Trustee in respect of any such covenant or condition shall
remain in full force and effect.
SECTION 10.12. Defeasance of Certain Obligations. If specified
----------------------------------
pursuant to Section 3.01 to be applicable to the Securities of any series, the
Issuer thereof may omit to comply with any term, provision or condition set
forth in Sections 8.01, 8.02, 10.08 and 10.09 and any such omission with respect
to such Sections shall not be an Event of Default, in each case with respect to
the Securities of such series; provided, however, that the following conditions
-------- -------
have been satisfied:
(a) with respect to all Outstanding Securities of such series and any
coupons appertaining thereto not
105
theretofore delivered to the Trustee for cancellation, the applicable
Issuer or the Guarantor shall have deposited or caused to be deposited with
the Trustee for such series as trust funds or obligations in trust an
amount of:
(i) cash in the currency or currency unit in which the
Securities of such series are payable (except as otherwise specified
pursuant to Section 3.01 for the Securities of such series);
(ii) Government Obligations; or
(iii) a combination of such cash and Government Obligations;
in each case in an amount which, together with, as evidenced by a
Certificate of a Firm of Independent Public Accountants delivered to such
Trustee, the predetermined and certain income to accrue on any Government
Obligations when due (without the consideration of any reinvestment
thereof) is sufficient to pay and discharge when due the entire
indebtedness on all such Outstanding Securities of such series and any
related coupons for unpaid principal (and premium, if any) and interest, if
any, to the Stated Maturity or any Redemption Date, as the case may be;
(b) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or
instrument to which the applicable Issuer or the Guarantor is a party or by
which it is bound;
(c) no Event of Default or event which with the giving of notice or
lapse of time, or both, would become an Event of Default with respect to
the Securities of that series shall have occurred and be continuing on the
date of such deposit and no Event of Default under Section 5.01(e) or
Section 5.01(f) or event which with the giving of notice or lapse of time,
or both, would become an Event of Default under Section 5.01(e) or Section
5.01(f) shall have occurred and be continuing on the 91st day after such
date;
(d) the applicable Issuer or the Guarantor has delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel each stating
that all conditions
106
precedent herein provided for relating to the defeasance contemplated in
the Section have been complied with; and
(e) the applicable Issuer or the Guarantor, as the case may be, shall
have delivered to the Trustee, not later than the date of such deposit, an
Opinion of Counsel stating that the Holders of the Securities of such
series will not recognize gain or loss for Federal income tax purposes or
be subject to any taxes or recognize gain or loss for income tax purposes
in the jurisdictions in which such Issuer is organized, resident or carries
on a business as a result of such deposit and defeasance and will be
subject to Federal income tax and income taxes, capital and other taxes,
including withholding taxes in such jurisdiction on the same amount and in
the same manner and at the same times as would have been the case if such
deposit and defeasance had not occurred.
All obligations of the applicable Issuer and the Guarantor under this
Indenture with respect to the Securities of such series, other than with respect
to Sections 8.01, 8.02, 10.08 and 10.09, shall remain in full force and effect.
Anything in this Section 10.12 to the contrary notwithstanding, the Trustee for
any series of Securities shall deliver or pay to the applicable Issuer or the
Guarantor, from time to time upon Issuer Request, any money or Government
Obligations held by it as provided in this Section 10.12 which, as expressed in
a Certificate of a Firm of Independent Public Accountants delivered to such
Trustee, are in excess of the amount thereof which would then have been required
to be deposited for the purpose of which such money or Government Obligations
were deposited or received; provided such delivery can be made without
--------
liquidating any Government Obligations.
ARTICLE XI
Redemption of Securities
------------------------
SECTION 11.01. Applicability of Article. Securities of any series
-------------------------
which are redeemable before their Stated Maturity shall be redeemable in
accordance with their terms and (except as otherwise specified as contemplated
by Section 3.01 for Securities of any series) in accordance with this Article.
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SECTION 11.02. Election to Redeem; Notice to Trustee. The election
--------------------------------------
of an Issuer to redeem any Securities of any series of such Issuer pursuant to
Section 11.01 shall be evidenced by a Board Resolution of such Issuer and an
Officers' Certificate. In case of any redemption at the election of an Issuer,
such Issuer shall, at least 60 days prior to the Redemption Date fixed by such
Issuer (unless a shorter notice period shall be satisfactory to the Trustee),
notify the Trustee in writing of such Redemption Date and of the principal
amount of Securities of the series to be redeemed.
SECTION 11.03. Selection by Trustee of Securities to be Redeemed. If
--------------------------------------------------
less than all the Securities of any series are to be redeemed, the particular
Securities or portions thereof to be redeemed shall be selected not more than 60
days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series not previously called for redemption, either pro rata
or by lot, and the amounts to be redeemed may be equal to $1,000 or any integral
multiple thereof.
The Trustee shall promptly notify the applicable Issuer and each
Security Registrar in writing of the Securities selected for redemption and, in
the case of any Securities selected for partial redemption, the principal amount
thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security which has been or is to be
redeemed.
SECTION 11.04. Notice of Redemption. Notice of redemption shall be
---------------------
given by first-class mail, postage prepaid, mailed not less than 30 nor more
than 60 days prior to the Redemption Date, to each Holder of Securities to be
redeemed at his address appearing in the Security Register.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
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(c) if less than all Outstanding Securities of any series are to be
redeemed, the identification of the particular Securities to be redeemed;
(d) in the case of a Security to be redeemed in part, the principal
amount of such Security to be redeemed, and that after the Redemption Date
upon surrender of such Security, a new Security or Securities in the
aggregate principal amount equal to the unredeemed portion thereof will be
issued;
(e) that Securities called for redemption must be surrendered to the
Paying Agent to collect the Redemption Price;
(f) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security or portion thereof, and that (unless
the applicable Issuer shall default in payment of the Redemption Price)
interest thereon shall cease to accrue on and after said date;
(g) the place or places where such Securities are to be surrendered
for payment of the Redemption Price;
(h) the CUSIP Number of the Securities; and
(i) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of
any of the Issuers shall be given by the applicable Issuer or, at such Issuer's
request, by the Trustee in the name and at the expense of such Issuer.
The notice if mailed in the manner herein provided shall be
conclusively presumed to have been given, whether or not the Holder receives
such notice. In any case, failure to give such notice by mail or any defect in
the notice to the Holder of any Security designated for redemption as a whole or
in part shall not affect the validity of the proceedings for the redemption of
any other Security.
SECTION 11.05. Deposit of Redemption Price. On or prior to any
----------------------------
Redemption Date the applicable Issuer shall deposit with the Trustee or with a
Paying Agent (or, if such Issuer is acting as its own Paying Agent, segregate
and hold in trust as provided in Section 10.03) an amount of money in
109
same day funds sufficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) accrued interest on, all the
Securities or portions thereof which are to be redeemed on that date.
SECTION 11.06. Securities Payable on Redemption Date. Notice of
--------------------------------------
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified, and from and after such date (unless the applicable Issuer
shall default in the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest. Upon surrender of any such Security
for redemption in accordance with said notice, such Security shall be paid by
the applicable Issuer at the Redemption Price together with accrued interest to
the Redemption Date; provided, however, that installments of interest whose
-------- -------
Stated Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such Securities, or one or more Predecessor Securities, registered as
such at the close of business on the relevant Regular Record Dates according to
the terms and provisions of Section 3.07.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate borne by such
Security.
SECTION 11.07. Securities Redeemed in Part. Any Security which is to
----------------------------
be redeemed only in part shall be surrendered at the office or agency of the
applicable Issuer maintained for such purpose pursuant to Section 10.02 (with,
if the applicable Issuer, the Security Registrar or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to such
Issuer, the Security Registrar or the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing), and the applicable Issuer
shall execute, the Guarantor shall execute the notation of the Guarantees
pursuant to Article XIII or the Guarantees endorsed on, and the Trustee shall
authenticate and deliver to the Holder of such Security without service charge
to the Holder, a new Security or Securities of the same series, of any
authorized denomination as requested by such Holder in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered; provided, however, that the Depositary or the
-------- -------
Bearer Security Depositary need not surrender Global Securities or
110
UK Global Securities, as the case may be, for a partial redemption and may be
authorized to make a notation on such Global Security or UK Global Security of
such partial redemption. In the case of a partial redemption of the Global
Securities, the Depositary, and in turn, the participants in the Depositary,
shall have the responsibility to select any Securities to be redeemed by random
lot.
SECTION 11.08. Optional Redemption Due to Changes in Tax Treatment.
----------------------------------------------------
If as the result of any change in or any amendment to the laws, regulations or
published tax rulings of the applicable taxing jurisdiction affecting taxation,
or any change in the official administration, application or interpretation of
such laws, regulations or published tax rulings either generally or in relation
to any Securities issued by a Subsidiary Issuer, which change or amendment
becomes effective on or after the original issue date of such Securities or
which change in official administration, application or interpretation shall not
have been available to the public prior to such issue date, it is determined by
the applicable Subsidiary Issuer that such Subsidiary Issuer (x) would be
required to pay any Additional Amounts pursuant to Section 10.07 of this
Indenture or the terms of any Security (1) in respect of interest on the next
succeeding Interest Payment Date or (2) in respect of the principal of any
Discounted Securities on the date of such determination, assuming that a payment
in respect of such principal were required to be made on such date under the
terms of the Securities, and (y) such obligation cannot be avoided by the
Company or such Subsidiary Issuer taking reasonable measures available to it, in
either case (1) or (2) above such Subsidiary Issuer may, at its option, redeem
all (but not less than all) the Securities of any series in respect of which
such Additional Amounts would be so payable at any time, upon notice as provided
in Sections 11.02 and 11.04, at a Redemption Price equal to 100% of the
principal amount thereof plus accrued interest to the date fixed for redemption
(except that any such Securities that are Outstanding Discounted Securities may
be redeemed at the Redemption Price specified in the terms thereof); provided,
--------
however, that (a) no such notice of redemption may be given earlier than 60 days
-------
prior to the earliest date on which the applicable Subsidiary Issuer would be
obligated to pay such Additional Amounts were a payment in respect of the
Securities then due, and (b) at the time any such redemption notice is given,
such obligation to pay such Additional Amounts must remain in effect. If (1)
the applicable
111
Subsidiary Issuer shall have on any date (the "Succession Date") consolidated
with or merged into, or conveyed or transferred or leased its properties and
assets substantially as an entirety to, any Successor referred to in Section
8.02 which is organized under the laws of any jurisdiction other than the United
States of America, any State thereof or the District of Columbia or the
jurisdiction in which such Subsidiary Issuer is organized, (2) as the result of
any change in or any amendment to the laws, regulations or published tax rulings
of such jurisdiction of organization, or of any political subdivision or taxing
authority thereof or therein, affecting taxation, or any change in the official
administration, application or interpretation of such laws, regulations or
published tax rulings either generally or in relation to any particular
Securities, which change or amendment becomes effective on or after the
Succession Date or which change in official administration, application or
interpretation shall not have been available to the public prior to such
Succession Date and is notified to the Subsidiary Issuer of such series of
Securities, such Successor would be required to pay any Successor Additional
Amounts pursuant to Section 8.02 hereof or the terms of any Securities (i) in
respect of interest on any Securities on the next succeeding Interest Payment
Date, or (ii) in respect of the principal of any Discounted Securities on the
date of such determination (assuming such principal were required to be paid on
such date under the terms of the Securities) and (3) such obligation cannot be
avoided by the Company or such Successor taking reasonable measures available to
it, such Subsidiary Issuer or such Successor may, at its option, redeem all (but
not less than all) of the Securities of any series in respect of which such
Successor Additional Amounts would be so payable at any time, upon notice as
provided in Sections 11.02 and 11.04, at a Redemption Price equal to 100% of the
principal amount thereof plus accrued interest to the date fixed for redemption
(except that any such Securities that are Outstanding Discounted Securities may
be redeemed at the Redemption Price specified in the terms thereof); provided,
--------
however, that (1) no such notice of redemption may be given earlier than 60 days
-------
prior to the earliest date on which a Successor would be obligated to pay such
Successor Additional Amounts were a payment in respect of the Securities then
due, and (2) at the time any such redemption notice is given, such obligation to
pay such Successor Additional Amounts must remain in effect.
112
Prior to any redemption of any Securities pursuant to this Section,
the applicable Subsidiary Issuer or a Successor shall provide the Trustee with
an Opinion of Counsel that the conditions precedent to the right of such
Subsidiary Issuer or Successor to redeem such Securities pursuant to this
Section have occurred. Such Opinion of Counsel shall be based on the laws and
application and interpretation thereof in effect on the date of such opinion or
to become effective on or before the next succeeding Interest Payment Date.
ARTICLE XII
Sinking Funds
-------------
SECTION 12.01. Applicability of Article. The provisions of this
-------------------------
Article shall be applicable to any sinking fund for the retirement of Securities
of a series except as otherwise specified as contemplated by Section 3.01 for
Securities of such series.
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". If provided for by the terms of Securities of any
series, the cash amount of any sinking fund payment may be subject to reduction
as provided in Section 12.02. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
SECTION 12.02. Satisfaction of Sinking Fund Payments with Securities.
-----------------------------------------------------
Any Issuer (a) may deliver Outstanding Securities of a series (other than any
previously called for redemption) and (b) may apply as a credit Securities of a
series which have been redeemed either at the election of such Issuer pursuant
to the terms of such Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Securities, in each case in
satisfaction of all or any part of any sinking fund payment with respect to the
Securities of such series required to be made pursuant to the terms of such
Securities as provided for by the terms of such series; provided that such
--------
Securities have not been previously so credited. Such
113
Securities shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
SECTION 12.03. Redemption of Securities for Sinking Fund. Not less
------------------------------------------
than 90 days prior to each sinking fund payment date for any series of
Securities, the applicable Issuer will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 12.02, and will also deliver to the Trustee any Securities
to be so delivered. The Trustee shall select the Securities to be redeemed upon
such sinking fund payment date in the manner specified in Section 11.03 and
cause notice of the redemption thereof to be given in the name of and at the
expense of such Issuer in the manner provided in Section 11.04. Such notice
having been duly given, the redemption of such Securities shall be made upon the
terms and in the manner stated in Sections 11.06 and 11.07.
ARTICLE XIII
Guarantees of Securities
------------------------
SECTION 13.01. Guarantees. This Section 13.01 and Section 13.02
-----------
apply to the Securities of any series of any Subsidiary Issuer to the extent
that the form of the Guarantees to be endorsed on such Securities is not
otherwise established as contemplated by Section 3.01.
The Guarantor hereby fully and unconditionally guarantees to each
Holder of a Security of each series issued by a Subsidiary Issuer, authenticated
and delivered by the Trustee the due and punctual payment of the principal
(including any amount due in respect of original issue discount) of and any
premium and interest on such Security (and any Additional Amounts (as defined in
Section 10.07) payable in respect thereof), and the due and punctual payment of
any sinking fund payments provided for pursuant to the terms of such Security,
when and as the same shall become due and payable, whether at the Stated
Maturity, by
114
declaration of acceleration, call for redemption or otherwise, in accordance
with the terms of such Security and of this Indenture. The Guarantor hereby
agrees that in the event of an Event of Default its obligations hereunder shall
be as if it were a principal debtor and not merely a surety, and shall be
absolute and unconditional, irrespective of, and shall be unaffected by, any
invalidity, irregularity or unenforceability of any Security of any series or
this Indenture, any failure to enforce the provisions of any Security of any
series or this Indenture, any waiver, modification or indulgence granted to the
applicable Subsidiary Issuer with respect thereto, by the Holder of any Security
of any series of such Subsidiary Issuer or the Trustee, or any other
circumstances which may otherwise constitute a legal or equitable discharge of a
surety or guarantor; provided, however, that, notwithstanding the foregoing, no
-------- -------
such waiver, modification or indulgence shall, without the consent of the
Guarantor, increase the principal amount of any Security of a Subsidiary Issuer
or the interest rate thereon or increase any premium payable upon redemption
thereof. The Guarantor hereby waives diligence, presentment, demand of payment,
filing of claims with a court in the event of merger or bankruptcy of the
applicable Subsidiary Issuer, any right to require a proceeding first against
such Subsidiary Issuer, the benefit of discussion, protest or notice with
respect to any Security of such Subsidiary Issuer or the indebtedness evidenced
thereby or with respect to any sinking fund payment required pursuant to the
terms of such Security issued under this Indenture and all demands whatsoever,
and covenants that this Guarantee will not be discharged with respect to such
Security except by payment in full of the principal thereof and any premium and
interest thereon or as provided in Article IV, Section 8.01 or Section 10.12.
If any Holder or the Trustee is required by any court or otherwise to return to
any Subsidiary Issuer, the Guarantor, or any custodian, trustee, liquidator or
other similar official acting in relation to such Issuer or the Guarantor any
amount paid by such Issuer or the Guarantor to the Trustee or such Holder, this
Guarantee to the extent theretofore discharged, shall be reinstated in full
force and effect. The Guarantor further agrees that, as between the Guarantor,
on the one hand, and the Holders and the Trustee, on the other hand, the
Maturity of the obligations guaranteed hereby may be accelerated as provided in
Article V hereof for the purposes of this Guarantee, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
obligations guaranteed hereby.
115
The Guarantor also agrees, to pay any and all reasonable costs and
expenses (including reasonable attorneys' fees and expenses) incurred by the
Trustee or any Holders in enforcing any rights under this Guarantee.
The Guarantor hereby waives any right of set-off which the Guarantor
may have against the Holder of any Security of a Subsidiary Issuer in respect of
any amounts which are or may become payable by such Holder to such Subsidiary
Issuer.
The Guarantor shall be subrogated to all rights of the Holders of any
series of Securities and the Trustee against the applicable Subsidiary Issuer in
respect of any amounts paid to such Holders and the Trustee by the Guarantor
pursuant to the provisions of the Guarantees; provided, however, that the
-------- -------
Guarantor shall not be entitled to enforce or to receive any payments arising
out of or based upon, such right of subrogation until the principal of, premium,
if any, and interest and any Additional Amounts on all of the Securities of such
series shall have been paid in full.
No past, present or future stockholder, officer, director, employee or
incorporator of the Guarantor shall have any personal liability under the
Guarantees set forth in this Section 13.01 by reason of his or its status as
such stockholder, officer, director, employee or incorporator.
The Guarantees set forth in this Section 13.01 shall not be valid or
become obligatory for any purpose with respect to a Security until the
certificate of authentication on such Security shall have been signed by or on
behalf of the Trustee.
SECTION 13.02. Execution of Guarantees. To evidence its guarantee to
------------------------
the Holders specified in Section 13.01, the Guarantor hereby agrees to execute
the notation of the Guarantee in substantially the form set forth in Section
2.04 to be endorsed on each Security authenticated and delivered by the Trustee.
The Guarantor hereby agrees that its Guarantee set forth in Section 13.01 shall
remain in full force and effect notwithstanding any failure to endorse on each
Security a notation of such Guarantee. Each such notation of such Guarantee
shall be signed on behalf of the Guarantor, by any Authorized Officer, prior to
the authentication of the Security on which it is endorsed, and the delivery of
such Security by
116
the Trustee, after the due authentication thereof by the Trustee hereunder,
shall constitute due delivery of the Guarantee on behalf of the Guarantor. Such
signatures upon the notation of the Guarantee may be manual or facsimile
signatures of any present, past or future such Authorized Officers and may be
imprinted or otherwise reproduced below the notation of the Guarantee, and in
case any such Authorized Officer who shall have signed the notation of the
Guarantee shall cease to be such Authorized Officer before the Security on which
such notation is endorsed shall have been authenticated and delivered by the
Trustee or disposed of by the applicable Subsidiary Issuer, such Security
nevertheless may be authenticated and delivered or disposed of as though the
person who signed the notation of the Guarantee had not ceased to be such
Authorized Officer of the Guarantor.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
CROWN CORK & SEAL COMPANY, INC.,
by
________________________________
Name: Xxxxx X.X. Xxxxx
Title:
Attest: ______________________________
Name: Xxxxxxx X. Xxxxxxxxxxxx
Title: Secretary
CROWN CORK & SEAL FINANCE PLC,
by
________________________________
Name:
Title:
Attest: ______________________________
Name:
Title:
000
XXXXX XXXX & SEAL FINANCE S.A.,
by
________________________________
Name:
Title:
Attest: __________________________
Name:
Title:
THE BANK OF NEW YORK, as Trustee,
by
________________________________
Name:
Title:
Attest: __________________________
Name:
Title:
