Exhibit 4
================================================================================
PACIFIC XXXX
TO
THE BANK OF NEW YORK
TRUSTEE
------------------
INDENTURE
DATED AS OF OCTOBER 7, 1997
------------------
PROVIDING FOR ISSUANCE OF
SECURITIES IN SERIES
================================================================================
Reconciliation and tie between Indenture dated as of October 7, 1997 and the
Trust Indenture Act of 1939. This reconciliation section does not constitute
part of the Indenture.
INDENTURE
TRUST INDENTURE ACT SECTION
------------------ ------------
310(a)(1).......................................................... 7.10
(a)(2).......................................................... 7.10
(a)(3)..........................................................Inapplicable
(a)(4)..........................................................Inapplicable
(b)............................................................. 7.08; 7.10
(c).............................................................Inapplicable
311(a)............................................................. 7.11
(b)............................................................. 7.11
(c).............................................................Inapplicable
312(a)............................................................. 2.07
(b)............................................................. 10.03
(c)............................................................. 10.03
313(a)............................................................. 7.06
(b)(1)..........................................................Inapplicable
(b)(2).......................................................... 7.06; 10.02
(c)............................................................. 10.02
(d)............................................................. 7.06
314(a)............................................................. 4.03; 10.02
(b).............................................................Inapplicable
(c)(1).......................................................... 10.04
(c)(2).......................................................... 10.04
(c)(3)..........................................................Inapplicable
(d).............................................................Inapplicable
(e)............................................................. 10.05
(f).............................................................Inapplicable
315(a)............................................................. 7.01(b)
(b)............................................................. 7.05; 10.02
(c)............................................................. 7.01(a)
(d)............................................................. 7.01(c)
(e)............................................................. 6.11
316(a)(last sentence).............................................. 2.11
(a)(1)(A)....................................................... 6.05
(a)(1)(B)....................................................... 6.04
(a)(2)..........................................................Inapplicable
(b)............................................................. 6.07
317(a)(1).......................................................... 6.08
(a)(2).......................................................... 6.09
(b)............................................................. 2.06
318(a)............................................................. 10.01
-2-
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE.........................1
SECTION 1.01. Definitions.........................................1
SECTION 1.02. Other Definitions...................................3
SECTION 1.03. Incorporation by Reference of Trust Indenture Act...4
SECTION 1.04. Rules of Construction...............................4
ARTICLE 2 THE SECURITIES.....................................................5
SECTION 2.01. Issuable in Series..................................5
SECTION 2.02. Establishment of Terms and Form of Series of
Securities........................................5
SECTION 2.03. Execution, Authentication and Delivery..............7
SECTION 2.04. Registrar and Paying Agent..........................9
SECTION 2.05. Payment on Securities...............................9
SECTION 2.06. Paying Agent to Hold Money in Trust................10
SECTION 2.07. Securityholder Lists; Ownership of Securities......11
SECTION 2.08. Registration of Transfer and Exchange..............11
SECTION 2.09. Replacement Securities.............................14
SECTION 2.10. Outstanding Securities.............................15
SECTION 2.11. Treasury Securities................................15
SECTION 2.12. Temporary Securities...............................15
SECTION 2.13. Cancellation.......................................16
SECTION 2.14. Defaulted Interest.................................16
ARTICLE 3 REDEMPTION........................................................17
SECTION 3.01. Notice to Trustee..................................17
SECTION 3.02. Selection of Securities to be Redeemed.............17
SECTION 3.03. Notice of Redemption...............................17
SECTION 3.04. Effect of Notice of Redemption.....................18
SECTION 3.05. Deposit of Redemption Price........................18
SECTION 3.06. Securities Redeemed in Part........................19
ARTICLE 4 COVENANTS.........................................................19
SECTION 4.01. Payment of Securities..............................19
SECTION 4.02. Lien on Assets.....................................19
SECTION 4.03. Reports by the Company.............................20
ARTICLE 5 SUCCESSOR CORPORATION.............................................20
SECTION 5.01. When Company May Merge, etc........................20
-i-
Page
ARTICLE 6 DEFAULTS AND REMEDIES.............................................21
SECTION 6.01. Events of Default..................................21
SECTION 6.02. Acceleration.......................................22
SECTION 6.03. Other Remedies Available to Trustee................23
SECTION 6.04. Waiver of Existing Defaults........................23
SECTION 6.05. Control by Majority................................24
SECTION 6.06. Limitation on Suits by Securityholders.............24
SECTION 6.07. Rights of Holders to Receive Payment...............25
SECTION 6.08. Collection Suits by Trustee........................25
SECTION 6.09. Trustee May File Proofs of Claim...................25
SECTION 6.10. Priorities.........................................25
SECTION 6.11. Undertaking for Costs..............................26
ARTICLE 7 TRUSTEE...........................................................26
SECTION 7.01. Duties of Trustee..................................26
SECTION 7.02. Rights of Trustee..................................27
SECTION 7.03. Individual Rights of Trustee.......................28
SECTION 7.04. Trustee's Disclaimer...............................28
SECTION 7.05. Notice of Defaults.................................28
SECTION 7.06. Reports by Trustee to Holders......................28
SECTION 7.07. Compensation and Indemnity.........................28
SECTION 7.08. Replacement of Trustee.............................29
SECTION 7.09. Successor Trustee, Agents by Merger, etc...........31
SECTION 7.10. Eligibility, Disqualification......................31
SECTION 7.11. Preferential Collection of Claims Against Company..31
ARTICLE 8 DISCHARGE OF INDENTURE............................................31
SECTION 8.01. Termination of Company's Obligations...............31
SECTION 8.02. Application of Trust Money.........................32
SECTION 8.03. Repayment to Company...............................32
SECTION 8.04. Indemnity for Government Obligations...............33
ARTICLE 9 AMENDMENTS AND WAIVERS............................................34
SECTION 9.01. Without Consent of Holders.........................34
SECTION 9.02. With Consent of Holders............................34
SECTION 9.03. Compliance with Trust Indenture Act................35
SECTION 9.04. Revocation and Effect of Consents..................36
SECTION 9.05. Notation on or Exchange of Securities..............36
SECTION 9.06. Trustee Protected..................................36
-ii-
Page
ARTICLE 10 MISCELLANEOUS.....................................................36
SECTION 10.01. Trust Indenture Act Controls......................36
SECTION 10.02. Notices...........................................36
SECTION 10.03. Communication by Holders with Other Holders.......38
SECTION 10.04. Certificate and Opinion as to Conditions
Precedent.......................................38
SECTION 10.05. Statements Required in Certificate or Opinion.....38
SECTION 10.06. Rules by Trustee and Agents.......................38
SECTION 10.07. Legal Holidays....................................39
SECTION 10.08. Governing Law.....................................39
SECTION 10.09. No Adverse Interpretation of Other Agreements.....39
SECTION 10.10. No Recourse Against Others........................39
SECTION 10.11. Execution in Counterparts.........................39
SIGNATURES...................................................................40
-iii-
INDENTURE dated as of October 7, 1997 from PACIFIC XXXX, a California
corporation ("Company"), to THE BANK OF NEW YORK, a banking corporation duly
organized and validly existing under the laws of the State of New York
("Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness ("Securities") as herein
provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed as
follows for the equal and ratable benefit of the Holders of the Securities:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Affiliate" means any person directly or indirectly controlling or
controlled by, or under direct or indirect common control with, the Company.
"Agent" means any Paying Agent, Registrar, or co-Registrar.
"Authorized Newspaper" means a newspaper of general circulation, in an
official language of the country of publication or in the English language,
customarily published on days other than Legal Holiday as defined in Section
10.07, in such country. Whenever successive weekly publications in an Authorized
Newspaper are required hereunder, they may be made (unless otherwise expressly
provided herein) on the same or different days of the week and in the same or
different Authorized Newspapers.
"Board of Directors" means the Board of Directors of the Company or any
duly authorized committee thereof.
"Board Resolution" means a copy of a resolution of the Board of Directors,
certified by the Secretary or an Assistant Secretary of the Company to have been
duly adopted by the Board of Directors and to be in full force and effect on the
date of the certificate, and delivery to the Trustee.
"Company" means the party named as such in this Indenture until a
successor replaces it pursuant to the applicable provisions hereof and
thereafter means the successor.
"Company Order" means an order signed in the name of the Company by two
Officers or by any Officer and an Assistant Treasurer or an Assistant Secretary
of the Company.
"Default" means any event which is, or after notice or passage of time
would be, an Event of Default.
"Depository" means, with respect to the Securities of any Series issuable
or issued in whole or in part in the form of one or more Global Securities, the
person designated as Depository by the Company pursuant to Section 2.02.
"Global Security" means a Security in the form prescribed in Section 2.02
evidencing all or part of a Series of Securities, issued to the Depositary for
such Series or its nominee, and registered in the name of such Depositary or
nominee.
"Holder" or "Securityholder" means the bearer of an Unregistered Security
or of a coupon appertaining thereto or the person in whose name a Registered
Security is registered on the Registrar's books.
"Indenture" means this Indenture as amended or supplemented from time to
time and shall include the forms and terms of particular Series of Securities
established as contemplated hereunder.
"Officer" means the Chairman of the Board of Directors, any Vice-Chairman
of the Board of Directors, the President, any Vice-President, the Treasurer or
the Secretary of the Company.
"Officers' Certificate" means a certificate signed by two Officers or by
any Officer and an Assistant Treasurer or an Assistant Secretary of the Company.
"Opinion of Counsel" means a written opinion of legal counsel who may be
an employee of or counsel to the Company or who may be other counsel
satisfactory to the Trustee.
"Original Issue Discount Security" means any Security which provides for
an amount less than the stated principal amount thereof to be due and payable
upon declaration of acceleration of the maturity thereof pursuant to Section
6.02.
"Principal" of a debt security means the principal of the security plus,
when appropriate, the premium, if any, on the security.
"Registered Security" means any Security issued hereunder and registered
by the Registrar.
-2-
"Responsible Officer" when used with respect to the Trustee, shall mean
the chairman or any vice-chairman of the board of directors or trustees, the
chairman or any vice-chairman of the executive committee of the board of
directors or trustees, the president, any vice-president, the treasurer, the
secretary, any trust officer, any second or assistant vice-president or any
other officer or assistant officer of the Trustee customarily performing
functions similar to those performed by the persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred
because of his knowledge of and familiarity with a particular subject.
"SEC" means the Securities and Exchange Commission.
"Series" or "Series of Securities" means a series of Securities.
"Securities" means the debentures, notes or other obligations of the
Company issued, authenticated and delivered under this Indenture.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb) as in effect on the date of this Indenture.
"Trustee" means the party named as such in this Indenture until a
successor replaces it pursuant to the applicable provisions hereof and
thereafter means the successor and if, at any time, there is more than one
Trustee, "Trustee" as used with respect to the Securities of any Series shall
mean the Trustee with respect to that Series.
"U.S. person" means a citizen, national or resident of the United States,
a corporation, partnership or other entity created or organized in or under the
laws of the United States or any political subdivision thereof, or an estate or
trust whose income from sources without the United States is includible in gross
income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States.
"Unregistered Security" means any Security issued hereunder which is not
a Registered Security.
"Yield to Maturity" means the yield to maturity, calculated by the Company
at the time of issuance of a Series of Securities or, if applicable, at the most
recent determination of interest on such Series in accordance with accepted
financial practice.
SECTION 1.02. Other Definitions.
TERM SECTION
---- -------
"Bankruptcy Law"..................................... 6.01
"Custodian".......................................... 6.01
"Event of Default"................................... 6.01
"Legal Holiday"...................................... 10.07
"Paying Agent"....................................... 2.04
-3-
TERM SECTION
---- -------
"Registrar".......................................... 2.04
"U.S. Government Obligations......................... 8.01
SECTION 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this lndenture. The following
TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Holder or a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule under the TIA
have the meanings assigned to them therein.
SECTION 1.04. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with accounting principles generally accepted in the
United States of America;
(3) "or" is not exclusive; and
(4) words in the singular include the plural, and words in the plural
include the singular.
-4-
ARTICLE 2
THE SECURITIES
SECTION 2.01. 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 may be Registered Securities and Unregistered
Securities within a Series and the Unregistered Securities may be subject to
such restrictions, and contain such legends, as may be required by United States
laws and regulations. Except as provided in the foregoing sentence, all
Securities of a Series shall be identical in all respects except that Securities
of a Series with serial maturities may differ with respect to maturity date,
interest rate, redemption price and denomination. Securities of different Series
may differ in any respect; provided that all Series of Securities shall be
equally and ratably entitled to the benefits of this Indenture.
SECTION 2.02. Establishment of Terms and Form of Series of Securities.
(a) At or prior to the issuance of any Series of Securities, the following
shall be established either by or pursuant to a Board Resolution, and set forth
in an Officers' Certificate, or by an indenture supplemental hereto:
(1) the title of the Securities of the Series (which title shall
distinguish the Securities of the Series from the Securities of all other
Series and from all other securities issued by the Company);
(2) any limit upon the aggregate principal amount of the Securities
of the Series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the Series pursuant to Section 2.08, 2.09, 2.12, 3.06 or
9.05);
(3) the date or dates on which the principal of the Securities of the
Series is payable;
(4) the rate or rates at which the Securities of the Series shall
bear interest, if any, or the method of calculating such rate or rates of
interest, the date or dates from which such interest shall accrue, the
dates on which such interest shall be payable and, with respect to
Registered Securities, the record date for the interest payable on any
interest payment date;
(5) the place or places where the principal of and interest on
Registered and any Unregistered Securities of the Series shall be payable;
-5-
(6) the period or periods within which, the price or prices at which,
and the terms and conditions upon which, Securities of the Series may be
redeemed, in whole or in part, at the option of the Company;
(7) the obligation, if any, of the Company to redeem or purchase
Securities of the Series pursuant to any sinking fund or analogous
provisions or upon the happening of a specified event or at the option of
a Holder thereof and the period or periods within which, the price or
prices at 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 in 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 which shall be payable upon
declaration of acceleration of the maturity thereof pursuant to Section
6.02;
(10) whether Securities of the Series shall be issuable as Registered
Securities or Unregistered Securities (with or without interest coupons),
or both, and any restrictions applicable to the offering, sale or delivery
of Unregistered Securities and whether, and the terms upon which,
Unregistered Securities of a Series may be exchanged for Registered
Securities of the same Series and vice versa;
(11) whether and under what circumstances the Company will pay
additional amounts on the Securities of that Series held by a person who
is not a U.S. person in respect of taxes or similar charges withheld or
deducted and, if so, whether the Company will have the option to redeem
such Securities rather than pay such additional amounts;
(12) whether the Securities of the Series shall be issuable in whole
or in part in the form of one or more Global Securities and, in such case,
the Depository for such Global Security or Securities, which Depository
shall be a clearing agency registered under the Securities Exchange Act of
1934, as amended;
(13) the currency or currencies, including composite currencies, in
which payment of the principal of and interest on the Securities of the
Series shall be payable (if other than the currency of the United States
of America);
(14) if the amount or payments of principal of or interest on the
Securities of the Series may be determined with reference to an index, the
manner in which such amounts shall be determined;
(15) any other terms of the Series (which terms shall not be
inconsistent with the provisions of this Indenture), including any terms
which may be required by or advisable under United
-6-
States laws or egulations or advisable in connection with the marketing of
Securities of that Series; and
(16) the form of the Securities (or forms thereof if Unregistered and
Registered Securities shall be issuable in such Series, including such
legends as may be required by United States laws or regulations, the form
of any coupons or temporary global Security which may be issued and the
forms of any certificates which may be required hereunder or under United
States laws or regulations in connection with the offering, sale, delivery
or exchange of Unregistered Securities).
(b) If the terms and form or forms of any Series of Securities are
established by or pursuant to a Board Resolution, the Company shall deliver a
copy of such Board Resolution to the Trustee at or prior to the issuance of such
Series with (1) the form or forms of Security which have been approved attached
thereto, or (2) if such Board Resolution authorizes Officers to approve the
terms and form or forms of the Securities, an Officers' Certificate approving
the terms and form or forms of Security with such form or forms of Securities
attached thereto.
SECTION 2.03. Execution, Authentication and Delivery.
(a) Securities shall be executed on behalf of the Company by its Chairman
of the Board of Directors or a Vice-Chairman of the Board of Directors or the
President or a Vice-President, and by its Treasurer or an Assistant Treasurer or
its Secretary or an Assistant Secretary. Signature shall be manual or facsimile.
The Company's seal shall be reproduced on the Securities and may, but need not,
be attested. The coupons of Unregistered Securities shall bear the facsimile
signature of the Treasurer or an Assistant Treasurer of the Company.
(b) If an Officer, an Assistant Treasurer or an Assistant Secretary whose
signature is on a Security or coupon no longer holds that office at the time the
Security is authenticated, the Security or coupon shall be valid nevertheless.
(c) A Security shall not be valid until authenticated by the manual
signature of the Trustee or an authenticating agent and no coupon shall be valid
until the Security to which it appertains has been so authenticated. Such
signature shall be conclusive evidence that the Security has been authenticated
under this Indenture. Each Registered Security shall be dated the date of its
authentication. and each Unregistered Security shall be dated as provided in
connection with the establishment of the Series thereof.
(d) The Trustee shall at any time, and from time to time, authenticate and
deliver Securities of any Series executed and delivered by the Company for
original issue in an aggregate principal amount not in excess of the principal
amount authorized for such Series, upon receipt by the Trustee of (i) a Company
Order for the authentication and delivery of such Securities, (ii) if the terms
and form or forms of the Securities of such Series have been established by or
pursuant to a Board Resolution as
-7-
permitted by Section 2.02, a copy of such Board Resolution and any Officers'
Certificate that may be required pursuant to 2.02(b) and (iii) an Opinion of
Counsel stating:
(1) if the form of such Securities has been established by or
pursuant to a Board Resolution as permitted by Section 2.02, that such
form has been established in conformity with the provisions of this
Indenture;
(2) if the terms of such Securities have been established by or
pursuant to a Board Resolution as permitted by Section 2.02, that such
terms have been established in conformity with the provisions of this
Indenture; and
(3) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company entitled to the benefits of the
Indenture.
If the terms and form or forms of such Securities have been established by
or pursuant to a Board Resolution as permitted by Section 2.02, the Trustee
shall not be required to authenticate such Securities if the issue of such
Securities pursuant to this Indenture will adversely affect the Trustee's own
rights, duties or immunities under the Securities and this Indenture or
otherwise in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the foregoing, until the Company has delivered an
Officers' Certificate to the Trustee and the Registrar stating that, as a result
of the action described, the Company would not suffer adverse consequences under
the provisions of United States law or regulations in effect at the time of the
delivery of Unregistered Securities, (i) delivery of Unregistered Securities by
the Trustee or Registrar will be made only outside the United States and its
possessions and (ii) Unregistered Securities will be released by the Trustee or
Registrar in definitive form to the person entitled to physical delivery thereof
only upon presentation of a certificate in the form prescribed by the Company.
(e) If the Company shall establish pursuant to Section 2.02 that the
Securities of a series are to be issued in whole or in part in the form of one
or more Global Securities, then the Company shall execute and the Trustee shall,
in accordance with this Section and the Company's order with respect to such
Series, authenticate and deliver one or more Global Securities that (i) shall
represent and shall be denominated in an amount equal to the aggregate principal
amount of outstanding Securities of such Series to be represented by one or more
Global Securities; (ii) shall be registered in the name of the Depository for
such Global Security or Securities or the nominee of such Depository; (iii)
shall be delivered by the Trustee to such Depository or pursuant to such
Depository's instruction; and (iv) shall bear a legend substantially to the
following effect: "This Security is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of a Depository
or a nominee of a Depository. Unless and until it is exchanged in whole or in
part for Securities in
-8-
definitive form in accordance with the provisions of the Indenture and the terms
of the Securities, this Security may not be transferred except as a whole by the
Depository to a nominee of the Depository or by a nominee of the Depository to
the Depository or another nominee of the Depository or by the Depository or any
such nominee to a successor Depository or a nominee of such successor
Depository."
Each depository designated pursuant to Section 2.02 for a Global Security
must, at the time of its designation and at all times while it serves as
Depository, be a clearing agency registered under the Securities Exchange Act of
1934, as amended, and any other applicable statute or regulation.
(f) The Trustee may appoint an authenticating agent to authenticate
Securities. An authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as an Agent to deal with the Company or an Affiliate.
SECTION 2.04. Registrar and Paying Agent.
The Company shall maintain in the Borough of Manhattan, the City of New
York, State of New York, an office or agency where Registered Securities may be
presented for registration of transfer or for exchange ("Registrar") and an
office or agency where (subject to Sections 2.05(c) and 2.08(b)) Securities may
be presented for payment or for exchange ("Paying Agent"). With respect to any
Series of Securities issued in whole or in part as Unregistered Securities, the
Company shall maintain one or more Paying Agents located outside the United
States and its possessions and shall maintain such Paying Agents for a period of
two years after the principal of such Unregistered Securities has become due and
payable. During any period thereafter for which it is necessary in order to
conform to United States tax law or regulations, the Company will maintain a
Paying Agent outside the United States and its possessions to which the
Unregistered Securities or coupons appertaining thereto may be presented for
payment and will provide the necessary funds therefor to such Paying Agent upon
reasonable notice. The Registrar shall keep a register with respect to each
Series of Securities issued in whole or in part as Registered Securities and to
their transfer and exchange. The Company may appoint one or more co-Registrars
acceptable to the Trustee and one or more additional Paying Agents for each
Series of Securities and the Company may terminate the appointment of any
co-Registrar or Paying Agent at any time upon written notice. The term
"Registrar" includes any co-Registrar. The term "Paying Agent"' includes any
additional Paying Agent. The Company shall notify the Trustee of the name and
address of any Agent not a party to this Indenture. If the Company fails to
maintain a Registrar or Paying Agent, the Trustee shall act as such.
The Company initially appoints the Trustee as Registrar and Paying Agent.
SECTION 2.05. Payment on Securities.
-9-
(a) Subject to the following provisions, the Company will pay to the
Trustee the amounts, in such coin or currency as is at the time legal tender for
the payment of public or private debt, in the manner, at the times and for the
purposes set forth herein and in the text of the Securities for each Series, and
the Company hereby authorizes and directs the Trustee from funds so paid to it
to make or cause to be made payment of the principal of and interest, if any, on
the Securities and coupons of each Series as set forth herein and in the text of
such Securities and coupons. The Trustee will arrange directly with any Paying
Agents for the payment, or the Trustee will make payment, from funds furnished
by the Company, of the principal of and interest, if any, on the Securities and
coupons of each Series by check drawn upon a bank in The City of New York.
(b) Interest, if any, on Registered Securities of a Series shall be paid
on each interest payment date for such Series to the Holder thereof at the close
of business on the relevant record dates specified in the Securities of such
Series. The Company may pay such interest by check mailed to such Holder's
address as it appears on the register for Securities of such Series. Principal
of Registered Securities shall be payable only against presentation and
surrender thereof at the office of the Paying Agent in New York, New York,
unless the Company shall have otherwise instructed the Trustee in writing.
(c) To the extent provided in the Securities of a Series, (i) interest if
any, on Unregistered Securities shall be paid only against presentation and
surrender of the coupons for such interest installments as are evidenced thereby
as they mature and (ii) original issue discount (as defined in Section 1273 of
the Internal Revenue Code of 1954, as amended), if any, on Unregistered
Securities shall be paid only against presentation and surrender of such
Securities, in either case at the office of a Paying Agent located outside of
the United States and its possessions, unless the Company shall have otherwise
instructed the Trustee in writing. Principal of Unregistered Securities shall be
paid only against presentation and surrender thereof as provided in the
Securities of a Series. If at the time a payment of principal of or interest, if
any, or original issue discount, if any, on an Unregistered Security or coupon
shall become due the payment of the full amount so payable at the office or
offices of all the Paying Agents outside the United States and its possessions
is illegal or effectively precluded because of the imposition of exchange
controls or other similar restrictions on the payment of such amount in United
States currency, then the Company may instruct the Trustee to make such payments
at the office of a Paying Agent located in the United States, provided that
provision for such payment in the United States would not cause such
Unregistered Security to be treated as a "registration-required obligation"
under United States law and regulations.
SECTION 2.06. Paying Agent to Hold Money in Trust.
The Company will require each Paying Agent for any Series of Securities
other than the Trustee to agree in writing that it will hold all sums held by it
for the payment of principal of and interest on Securities of that Series in
trust for the benefit of the persons entitled thereto until such sums are paid
to such persons or otherwise disposed of as herein provided, and that the Paying
Agent will notify the Trustee of any default by the Company in making any such
payment. While any such default
-10-
continues, the Trustee may require a Paying Agent to pay all money held by it to
the Trustee. If the Company acts as Paying Agent, it shall segregate the money
held by it for the payment of principal of and interest on any Series of
Securities and hold such money as a separate trust fund. The Company at any time
may require a Paying Agent to pay all money held by it to the Trustee. Upon so
doing the Paying Agent shall have no further liability for the money so paid.
SECTION 2.07. Securityholder Lists; Ownership of Securities.
(a) The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list received by or furnished to it of the names and
addresses of Holders of Securities. If the Trustee is not the Registrar or if
Unregistered Securities are outstanding under the Indenture, the Company shall
furnish to the Trustee semiannually on or before the last day of June and
December in each year, and at such other times as the Trustee may request in
writing, a list, in such form and as of such date as the Trustee may reasonably
require, containing all the information in the possession or control of the
Registrar, any co-Registrar, the Company or any of its Paying Agents other than
the Trustee as to the names and addresses of Holders of Securities.
(b) Ownership of Registered Securities of a Series shall be proved by the
register for such Series kept by the Registrar. Ownership of Unregistered
Securities may be proved by the production of such Unregistered Securities or by
a certificate or affidavit executed by the person holding such Unregistered
Securities or by a depository with whom such Unregistered Securities were
deposited, if the certificate or affidavit is satisfactory to the Trustee. The
Company, the Trustee and any agent of the Company may treat the bearer of any
Unregistered Security or coupon and the person in whose name a Registered
Security is registered as the absolute owner thereof for all purposes.
(c) Notwithstanding the foregoing, with respect to any Global Security,
nothing herein shall prevent the Company, the Trustee or any agent of the
Company or the Trustee from giving effect to any written certification, proxy or
other authorization furnished by a Depository or impair, as between a Depository
and holders of beneficial interest in any Global Security, the operation of
customary practices governing the exercise of the rights of the Depository as
Holder of such Global Security. None of the Company, the Trustee, and Paying
Agent or the Security Registrar will have any responsibility or liability for
any aspect of the records relating to or payments made on account of beneficial
ownership interests of a Global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
SECTION 2.08. Registration of Transfer and Exchange.
(a) When Registered Securities of a Series are presented to the Registrar
with a request to register their transfer or to exchange them for an equal
principal amount of Registered Securities of the same Series and date of
maturity of other authorized denominations, the Registrar shall register the
transfer or make the exchange if its customary requirements for such
transactions are met.
-11-
(b) If both Registered and Unregistered Securities are authorized for a
Series of Securities and the terms of such Securities permit, (i) Unregistered
Securities may be exchanged for an equal principal amount of Registered or
Unregistered Securities of the same Series and date of maturity in any
authorized denominations upon delivery to the Registrar (or a Paying Agent, if
the exchange is for Unregistered Securities) of the Unregistered Security with
all unmatured coupons and all matured coupons in default appertaining thereto
and if all other requirements of the Registrar (or such Paying Agent) and such
Securities for such exchange are met, and (ii) Registered Securities may be
exchanged for an equal principal amount of Unregistered Securities of the same
Series and date of maturity in any authorized denominations (except that any
coupons appertaining to such Unregistered Securities which have matured and have
been paid shall be detached) upon delivery to the Registrar of the Registered
Securities and if all other requirements of the Registrar (or such Paying Agent)
and such Securities for such exchange are met.
Notwithstanding the foregoing, the exchange of Unregistered Securities for
Registered Securities or Registered Securities for Unregistered Securities will
be subject to the satisfaction of the provisions of United States law and
regulations in effect at the time of such exchange, and no exchange of
Registered Securities for Unregistered Securities will be made until the Company
has notified the Trustee and the Registrar that, as a result of such exchange,
the Company would not suffer adverse consequences under such law or regulations.
(c) To permit registrations of transfers and exchanges, the Trustee shall
authenticate Securities upon surrender of Securities for registration of
transfer or for exchange as provided in this Section. The Company will not make
any charge for any registration of transfer or exchange but may require the
payment by the party requesting such registration of transfer or exchange of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith, but not for any exchange pursuant to Section 2.12, 3.06 or
9.05.
(d) Neither the Company nor the Registrar shall be required (i) to issue,
register the transfer of or exchange Securities of any Series for the period
beginning at the opening of business 15 days immediately preceding the selection
of any such Securities to be redeemed and ending at the close of business on the
day of first publication of the relevant notice of redemption or, if there is no
publication, the mailing of the relevant notice of redemption, or (ii) to
register the transfer of or exchange Securities of any Series selected, called
or being called for redemption as a whole or the portion being redeemed of any
such Securities selected, called or being called for redemption in part.
(e) Unregistered Securities or any coupons appertaining thereto shall be
transferable by delivery.
(f) Notwithstanding the foregoing, any Global Security shall be
exchangeable pursuant to this Section 2.08 for Securities registered in the
names of Persons other than the Depository for such Security or its nominee only
if (i) such Depository notifies the Company that it is unwilling or unable to
continue as Depository for such Global Security or if at any time such
Depository ceases to be a clearing agency registered under the Securities
Exchange Act of 1934, as amended, (ii) the Company
-12-
executes and delivers to the Trustee a Company Order that such Global Security
shall be so exchangeable or (iii) there shall have occurred and be continuing an
Event of Default with respect to the Securities. Any Global Security that is
exchangeable pursuant to the preceding sentence shall be exchangeable for
Securities registered in such names as such Depository shall direct.
Notwithstanding any other provision in this Indenture, a Global Security
may not be transferred except as a whole by the Depository with respect to such
Global Security to a nominee of such Depository or by a nominee of such
Depository to such Depository or another nominee of such Depository.
(g) If at any time the Depository for the Securities of a Series notifies
the Company that it is unwilling or unable to continue as Depository for the
Securities of such Series or if at any time the Depository for the Securities of
such Series shall no longer be eligible under Section 2.03, the Company shall
appoint a successor Depository with respect to the Securities of such Series. If
a successor depository for the Securities of such Series is not appointed by the
Company within 90 days after the Company receives such notice or becomes aware
of such ineligibility, the Company's election pursuant to Section 2.02(10) shall
no longer be effective with respect to the Securities of such Series and the
Company will execute, and the Trustee, upon receipt of the Company's 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 Securities representing such Series in exchange for such Global Security or
Securities.
The Company may at any time and in its sole discretion determine that the
Securities of any Series issued in the form of one or more Global Securities
shall no longer be represented by such Global Security or Securities. In such
event the Company will execute, and the Trustee, upon receipt of the Company's
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.
If (a) there shall have occurred and be continuing an Event of Default (as
defined in Section 6.01) or an event which, with the giving of notice or lapse
of time, or both, would constitute an Event of Default with respect to a Series
of Securities issued in the form of one or more Global Securities, or (b) if
specified by the Company pursuant to Section 2.02 with respect to a Series of
Securities, the Depository 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. Thereupon, the Company shall
execute, and the Trustee shall authenticate and deliver, without service closing
charge:
(i) to each person specified by such Depository a new Security or
Securities of the same Series, of any authorized denomination as requested
by such person in aggregate
-13-
principal amount equal to and in exchange for such person's beneficial
interest in the Global Security; and
(ii) to such Depository a new Global Security in a denomination equal
to the difference, if any, between the principal amount of the surrendered
Global Security and the aggregate principal amount of Securities delivered
to Holders thereof.
In any exchange provided for in any of the preceding three paragraphs, the
Company will execute and the Trustee will authenticate and deliver Securities in
definitive registered form in authorized denominations;
Upon the exchange of a Global Security for Securities in definitive form,
such Global Security shall be canceled by the Trustee. Registered Securities
issued in exchange for a Global Security pursuant to this Section shall be
registered in such names and in such authorized denominations as the Depository
for such Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee.
SECTION 2.09. Replacement Securities.
(a) If a mutilated Security or a Security with a mutilated coupon
appertaining to it is surrendered to the Trustee, the Company shall issue and
the Trustee shall authenticate and deliver in exchange therefor a replacement
Registered Security, if such surrendered security was a Registered Security, or
a replacement Unregistered Security with coupons corresponding to the coupons
appertaining to the surrendered Security, if such surrendered Security was an
Unregistered Security, of the same Series and date of maturity, if the Trustee's
requirements are met.
(b) If the Holder of a Security claims that the Security or any coupon
appertaining thereto has been lost, destroyed or wrongfully taken, the Company
shall issue and the Trustee shall authenticate a replacement Registered
Security, if such Holder's claim pertains to a Registered Security, or a
replacement Unregistered Security with coupons corresponding to the coupons
appertaining to the lost, destroyed or wrongfully taken Unregistered Security or
the Unregistered Security to which such lost, destroyed or wrongfully taken
coupon appertains, if such Holder's claim pertains to an Unregistered Security,
of the same Series and date of maturity, if the Trustee's requirements are met;
provided, however, that the Trustee or the Company may require any such Holder
to provide to the Trustee or the Company security or indemnity sufficient in the
judgment of the Company and the Trustee to protect the Company, the Trustee, any
Agent or any authenticating agent from any loss which any of them may suffer if
a Security or any coupon appertaining thereto is replaced. The Company may
charge the party requesting a replacement Security for its expenses in replacing
a Security.
(c) Every replacement Security is an additional obligation of the Company.
-14-
(d) The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other remedies with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities or coupons.
SECTION 2.10. Outstanding Securities.
(a) Securities outstanding at any time are all Securities authenticated by
the Trustee except for those canceled by it, those delivered to it for
cancellation, and those described in this Section as not outstanding.
(b) If a Security is replaced pursuant to Section 2.09, it ceases to be
outstanding until the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
(c) If a Paying Agent (other than the Company) holds on a redemption date
or maturity date money sufficient to pay all amounts due on Securities of any
Series on that date, then on and after that date all Securities of such Series
due on such date cease to be outstanding and interest on them ceases to accrue,
provided that if the 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.
(d) A Security does not cease to be outstanding because the Company or an
Affiliate holds the Security.
SECTION 2.11. Treasury Securities.
In determining whether the Holders of the requisite principal amount of
Securities of any Series have concurred in any direction, waiver or consent,
Securities of such Series owned by the Company or an Affiliate shall be
disregarded, except that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Securities of such Series which the Trustee knows are so owned shall be so
disregarded. Securities of such Series owned by the Company which have been
pledged in good faith may be considered by the Trustee if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right to so act
with respect to such Securities and that the pledgee is not the Company or an
Affiliate.
SECTION 2.12. Temporary Securities.
(a) Until definitive Registered Securities of any Series are ready for
delivery, the Company may prepare and execute and the Trustee shall authenticate
temporary Registered Securities of such Series. Temporary Registered Securities
of any Series shall be substantially in the form of definitive Registered
Securities of such Series but may have variations that the Company considers
appropriate for temporary Securities. Every temporary Registered Security shall
be executed by the Company and authenticated by the Trustee, and registered by
the Registrar, upon the same conditions, and with
-15-
like effect, as a definitive Registered Security. Without unreasonable delay,
the Company shall prepare and the Trustee shall authenticate definitive
Registered Securities of the same Series and date of maturity in exchange for
temporary Registered Securities.
(b) Until definitive Unregistered Securities of any Series are ready for
delivery, the Company may prepare and execute and the Trustee shall authenticate
one or more temporary Unregistered Securities, which may have coupons attached
or which may be in the form of a single temporary global Unregistered Security
of that Series without coupons. The temporary Unregistered Security or
Securities of any Series shall be substantially in the form approved by or
pursuant to a Board Resolution and shall be delivered to one of the Paying
Agents located outside the United States and its possessions or to such other
person or persons as the Company shall direct against such certification as the
Company may from time to time prescribe. The temporary Unregistered Security or
Securities of a Series shall be executed by the Company and authenticated by the
Trustee upon the same conditions, and with like effect, as a definitive
Unregistered Security of such Series, except as provided herein or in the Board
Resolution or supplemental indenture relating thereto. A temporary Unregistered
Security or Securities shall be exchangeable for definitive Unregistered
Securities at the time and on the conditions, if any, specified in the temporary
Security.
Upon any exchange of a part of a temporary Unregistered Security of a
Series for definitive Unregistered Securities of such Series, the temporary
Unregistered Security shall be endorsed by the Trustee or Paying Agent to
reflect the reduction of its principal amount by an amount equal to the
aggregate principal amount of the definitive Unregistered Securities of such
Series so exchanged and endorsed.
SECTION 2.13. Cancellation.
The Company at any time may deliver Securities and coupons to the Trustee
for cancellation. The Registrar and the Paying Agent shall forward to the
Trustee any Securities and coupons surrendered to them for registration of
transfer, for exchange or for payment. The Trustee shall cancel all Securities
and coupons surrendered for registration of transfer, exchange, payment or
cancellation and may dispose of canceled Securities and coupons as the Company
directs; provided, however, that any Unregistered Securities of a Series
delivered to the Trustee for exchange prior to maturity shall be retained by the
Trustee for reissue as provided herein or in the Securities of such Series. The
Company may not issue new Securities to replace Securities that it has paid for
or delivered to the Trustee for cancellation.
SECTION 2.14. Defaulted Interest.
If the Company defaults on a payment of interest on a Series of
Securities, it shall pay the defaulted interest as provided in such Securities
or in any other lawful manner not inconsistent with the requirements of any
securities exchange on which such Securities may be listed and acceptable to the
Trustee.
-16-
With respect to Registered Securities, the Trustee may pay the defaulted
interest, plus any interest payable on the defaulted interest, to the Holders of
such Registered Securities on a subsequent special record date. The Company
shall fix the record date and the payment date. At least 15 days before the
record date the Company shall mail to such Holders a notice that states the
record date, the payment date and the amount of interest to be paid.
ARTICLE 3
REDEMPTION
SECTION 3.01. Notice to Trustee.
The Company may, with respect to any Series of Securities, reserve the
right to redeem and pay such Series of Securities or any part thereof, or may
covenant to redeem and pay the Series of Securities or any plan thereof, before
maturity at such time and on such terms as provided for in such Securities. If a
Series of Securities is redeemable and the Company wants or is obligated to
redeem all or part of the Series of Securities pursuant to the terms of such
Securities, it shall notify the Trustee of the redemption date and the principal
amount of the Series of Securities to be redeemed. The Company shall give such
notice at least 75 days before the redemption date (or such shorter notice as
may be acceptable to the Trustee).
SECTION 3.02. Selection of Securities to be Redeemed.
If less than all the Securities of a Series are to be redeemed, the
Trustee, not more than 75 days prior to the redemption date, shall select the
Securities of the Series to be redeemed pro rata or by lot or in such other
manner as the Trustee shall deem fair and appropriate. The Trustee shall make
the selection from Securities of the Series that are outstanding and that have
not previously been called for redemption. Securities of the Series and portions
of them selected by the Trustee shall be in amounts of $1,000 or integral
multiples of $1,000 or, with respect to Securities of any Series issuable in
other denominations pursuant to Section 2.02(a)(8), in amounts equal to the
minimum principal denomination for each such Series and integral multiples
thereof. Provisions of this Indenture that apply to Securities of a Series
called for redemption also apply to portions of Securities of that Series called
for redemption. The Trustee shall promptly notify the Company 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.
SECTION 3.03. Notice of Redemption.
(a) At least 30 days but not more than 60 days before a redemption date,
the Company shall mail a notice of redemption by first-class mail to each Holder
of Registered Securities that are to be redeemed.
-17-
(b) If Unregistered Securities are to be redeemed, notice of redemption
shall be published in an Authorized Newspaper in each of The City of New York,
London and, if such Securities to be redeemed are listed on the Luxembourg Stock
Exchange, Luxembourg twice in different calendar weeks, the first publication to
be not less than 30 nor more than 60 days before the redemption date.
(c) All notices shall identify the Series of Securities to be redeemed and
shall state:
(1) the redemption date;
(2) the redemption price;
(3) if less than all the outstanding Securities of a Series are to be
redeemed, the identification (and, in the case of partial redemption, the
principal amounts) of the particular Securities to be redeemed;
(4) the name and address of the Paying Agent;
(5) that Securities of the Series called for redemption and all
unmatured coupons, if any, appertaining thereto must be surrendered to the
Paying Agent to collect the redemption price; and
(6) that interest on Securities of the Series called for redemption
ceases to accrue on and after the redemption date.
At the Company's request, the Trustee shall give the notice of redemption
in the Company's name and at its expense.
SECTION 3.04. Effect of Notice of Redemption.
Once notice of redemption is mailed or published, Securities of a Series
called for redemption become due and payable on the redemption date at the
redemption price. Upon surrender to the Paying Agent of such Securities together
with all unmatured coupons, if any, appertaining thereto, such Securities shall
be paid at the redemption price plus accrued interest to the redemption date,
but installments of interest due on or prior to the redemption date will be
payable, in the case of Unregistered Securities, to the bearers of the coupons
for such interest upon surrender thereof and, in the case of Registered
Securities, to the Holders of such Securities of record at the close of business
on the relevant record dates.
SECTION 3.05. Deposit of Redemption Price.
-18-
On or before the redemption date, the Company shall deposit with the
Trustee money sufficient to pay the redemption price of and (unless the
redemption date shall be an interest payment date) interest accrued to the
redemption date on all Securities to be redeemed on that date.
SECTION 3.06. Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the Company shall
issue and the Trustee shall authenticate for the Holder of that Security a new
Security or Securities of the same Series, the same form and the same maturity
in authorized denominations equal in aggregate principal amount to the
unredeemed portion of the Security surrendered. If a Global Security is so
surrendered, such new Security so issued shall be a new Global Security.
ARTICLE 4
COVENANTS
SECTION 4.01. Payment of Securities.
The Company shall pay or cause to be paid the principal of and interest on
the Securities on the dates and in the manner provided herein and in the
Securities.
The Company shall pay interest on overdue principal of a Security of any
Series at the rate of interest (or, in the case of Original Issue Discount
Securities, Yield to Maturity) borne by the Securities of that Series, and, to
the extent lawful, it shall pay interest on overdue installments of interest at
the same rate.
SECTION 4.02. Lien on Assets.
If at any time the Company mortgages, pledges or otherwise subjects to any
lien the whole or any part of any property or assets now owned or hereinafter
acquired by it, except as hereinafter provided in this Section 4.02, the Company
will secure the outstanding Securities, and any other obligations of the Company
which may then be outstanding and entitled to the benefit of a covenant similar
in effect to this covenant, equally and ratably with the indebtedness or
obligations secured by such mortgage, pledge or lien, for as long as any such
indebtedness or obligation is so secured. The foregoing covenant does not apply
to the creation, extension, renewal or refunding of purchase-money mortgages or
liens, or to the making of any deposit or pledge to secure public or statutory
obligations or with any governmental agency at any time required by law in order
to qualify the Company to conduct its business or any part thereof or in order
to entitle it to maintain self-insurance or to obtain the benefits of any law
relating to workers' compensation, unemployment insurance, old age pensions or
other social security, or with any court, board, commission or governmental
agency as security incident to the proper conduct of any proceeding before it.
Nothing contained in this
-19-
Indenture prevents an Affiliate from mortgaging, pledging or subjecting to any
lien any property or assets, whether or not acquired by such Affiliate from the
Company.
SECTION 4.03. Reports by the Company.
The Company agrees:
(a) to file with the Trustee, within 15 days after the Company is
required to file the same with the SEC, copies of the annual reports and
of the information, documents and other reports (or copies of such
portions of any of the foregoing as the SEC may from time to time by rules
and regulations prescribe) which the Company may be required to file with
the SEC pursuant to section 13 or section 15(d) of the Securities Exchange
Act of 1934, as amended; or, if the Company is not required to file
information, documents or reports pursuant to either of such sections,
then to file with the Trustee and the SEC, in accordance with rules and
regulations prescribed from time to time by the SEC, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to section 13 of the Securities Exchange Act of 1934, as
amended, in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such rules
and regulations;
(b) to file with the Trustee and the SEC, in accordance with the
rules and regulations prescribed from time to time by the SEC, such
additional information, documents and reports with respect to compliance
by the Company with the conditions and covenants provided for in this
Indenture as may be required from time to time by such rules and
regulations; and
(c) to transmit by mail to all Holders of Registered Securities, as
the names and addresses of such Holders appear on the register for each
Series of Securities, to such Holders of Unregistered Securities as have,
within the two years preceding such transmission, filed their names and
addresses with the Trustee for that purpose and to all Holders of
Securities whose names and addresses have been furnished to the Trustee
pursuant to Section 2.07, within 30 days after the filing thereof with the
Trustee, such summaries of any information, documents and reports required
to be filed by the Company pursuant to subsections (a) and (b) of this
Section 4.03 as may be required by rules and regulations prescribed from
time to time by the SEC.
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.01. When Company May Merge, etc.
The Company may not consolidate with, or merge into, or be merged into, or
transfer or lease its properties and assets substantially as an entirety to, any
person, unless the person is a corporation
-20-
organized under the laws of the United States, any State thereof or the District
of Columbia, the person assumes by supplemental indenture all the obligations of
the Company under the Securities and any coupons appertaining thereto and under
this Indenture and, after giving effect thereto, no Default or Event of Default
shall have occurred and be continuing. The surviving transferee or lessee
corporation shall be the successor Company, and the predecessor Company, except
in the case of a lease, shall be relieved of all obligations under this
Indenture and the Securities.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default.
An "Event of Default" occurs with respect to the Securities of any Series
if:
(1) the Company defaults in the payment of interest on any Security
of that Series when the same becomes due and payable and the Default
continues for a period of 90 days;
(2) the Company defaults in the payment of the principal of any
Security of that Series when the same becomes due and payable at maturity,
upon redemption or otherwise;
(3) the Company fails to comply with any of its other agreements in
the Securities of that Series, or in any supplemental indenture under
which the Securities of that Series may have been issued or in the
Indenture (other than an agreement included solely for the benefit of
Series of Securities other than that Series) and the Default continues for
the period and after the notice specified below;
(4) the Company pursuant to or within the meaning of any Bankruptcy
Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it in
an involuntary case,
(C) consents to the appointment of a Custodian of it or for all
or substantially all of its property, or
(D) makes a general assignment for the benefit of its creditors;
or
(5) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
-21-
(A) is for relief against the Company in an involuntary case,
(B) appoints a Custodian of the Company or for all or
substantially all of its property, or
(C) orders the liquidation of the Company,
and the order or decree remains unstayed and in effect for 60 days.
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar federal
or state law for the relief of debtors. The term "Custodian" means any receiver,
trustee, assignee, liquidator or similar official under any Bankruptcy Law.
A Default under clause (3) is not an Event of Default until the Trustee or
the Holders of at least 25% in principal amount of all the outstanding
Securities of that Series notify the Company (and the Trustee in the case of
notification by such Holder) of the Default and the Company does not cure the
Default within 90 days after receipt of the notice. The notice must specify the
Default, demand that it be remedied and state that the notice is a "Notice of
Default".
Upon receipt by the Trustee of any Notice of Default pursuant to this
Section 6.01 with respect to Securities of a Series all or part of which is
represented by a Global Security, a record date shall be established for
determining Holders of outstanding Securities of such Series entitled to join in
such Notice of Default, which record date shall be at the close of business on
the day the Trustee receives such Notice of Default. The Holders on such record
date, or their duly designated proxies, and only such Persons, shall be entitled
to join in such Notice of Default, whether or not such Holders remain Holders
after such record date; provided, that unless Holders of at least 10% in
principal amount of the outstanding Securities of such Series, or their proxies,
shall have joined in such Notice of Default prior to the day which is 90 days
after such record date, such Notice of Default shall automatically and without
further action by any Holder be canceled and of no further effect. Nothing in
this paragraph shall prevent a Holder, or a proxy of a Holder, from giving,
after expiration of such 90-day period, a new Notice of Default identical to a
Notice of Default which has been canceled pursuant to the proviso to the
preceding sentence, in which event a new record date shall be established
pursuant to the provisions of this Section 6.01.
SECTION 6.02. Acceleration.
If an Event of Default occurs with respect to the Securities of any Series
and is continuing, the Trustee, by notice to the Company, or the Holders of at
least 25% in principal amount of all of the outstanding Securities of that
Series, by notice to the Company and to the Trustee, may declare the principal
(or, if the Securities of that Series are Original Issue Discount Securities,
such portion of the principal amount as may be specified in the terms of that
Series) of, and any accrued interest on, all the Securities of that Series to be
due and payable. Upon such declaration, such principal (or, in
-22-
the case of Original Issue Discount Securities, such specified amount) and any
accrued interest shall be due and payable immediately. The Holders of a majority
in principal amount of all of the Securities of that Series, by notice to the
Company and the Trustee, may rescind such acceleration and its consequences if
the rescission would not conflict with any judgment or decree and if all
existing Events of Default have been cured or waived except nonpayment of
principal or interest that have become due solely because of the acceleration.
Upon receipt by the Trustee of any declaration of acceleration, or
rescission thereof, with respect to Securities of a Series all or part of which
is represented by a Global Security, the Trustee shall establish a record date
for determining Holders of outstanding Securities of such Series entitled to
join in such declaration of acceleration, or rescission, as the case may be,
which record date shall be at the close of business on the day the Trustee
receives such declaration of acceleration, or rescission, as the case may be.
The Holders on such record date, or their duly designated proxies, and only such
persons, shall be entitled to join in such declaration of acceleration, or
rescission, as the case may be, whether or not such Holders remain Holders after
such record date; provided, that unless such declaration of acceleration, or
rescission, as the case may be, shall have become effective by virtue of the
requisite percentage having been obtained prior to the day which is 90 days
after such record date, such declaration of acceleration, or rescission, as the
case may be, shall automatically and without further action by any Holder be
canceled and of no further effect. Nothing in this paragraph shall prevent a
Holder, or a proxy of a Holder, from giving, after expiration of such 90-day
period, a new declaration of acceleration, or rescission thereof, as the case
may be, that is identical to a declaration of acceleration, or rescission
thereof, which has been canceled pursuant to the proviso to the preceding
sentence, in which event a new record date shall be established pursuant to the
provisions of this Section 6.02.
SECTION 6.03. Other Remedies Available to Trustee.
(a) If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy to collect the payment of principal of and interest
on the Securities of the Series that is in Default or to enforce the performance
of any provision of the Securities of that Series or this Indenture.
(b) The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Securityholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. To the extent
permitted by law no remedy is exclusive of any other remedy and all available
remedies are cumulative.
SECTION 6.04. Waiver of Existing Defaults.
-23-
The Holders of a majority in principal amount of any Series of Securities
by notice to the Trustee may waive an existing Default with respect to that
Series and its consequences except a Default in the payment of the principal of
or interest on any Security.
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Persons entitled to waive any past default hereunder.
If a record date is fixed, the Holders on such record date, or their duly
designated proxies, and only such Persons, shall be entitled to waive any
default hereunder, whether or not such Holders remain Holders after such record
date; provided, that unless such majority in principal amount shall have waived
such default prior to the date which is 90 days after such record date, any such
waiver previously given shall automatically and without further action by any
Holder be canceled and of no further effect.
SECTION 6.05. Control by Majority.
The Holders of a majority in principal amount of the Securities of each
Series affected (with each such Series voting as a class) may 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 it with respect to
Securities of that Series. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture or that is unduly
prejudicial to the rights of the Securityholders of that Series.
Upon receipt by the Trustee of any such direction with respect to
Securities of a Series all or part of which is represented by a Global Security,
the Trustee shall establish a record date for determining Holders of outstanding
Securities of such Series entitled to join in such direction, which record date
shall be at the close of business on the day the Trustee receives such
direction. The Holders on such record date, or their duly designated proxies,
and only such Persons, shall be entitled to join in such direction, whether or
not such Holders remain Holders after such record date; provided, that unless
such majority in principal amount shall have been obtained prior to the day
which is 90 days after such record date, such direction shall automatically and
without further action by any Holder be canceled and of no further action by any
Holder be canceled and of no further effect. Nothing in this paragraph shall
prevent a Holder, or a proxy of a Holder, from giving, after expiration of such
90-day period, a new direction identical to a direction which has been canceled
pursuant to the proviso to the preceding sentence, in which event a new record
date shall be established pursuant to the provisions of this Section 6.05.
SECTION 6.06. Limitation on Suits by Securityholders.
A Securityholder may pursue a remedy with respect to this Indenture or the
Securities of any Series only if:
(1) the Holder gives to the Trustee written notice of a continuing
Event of Default with respect to Securities of that Series;
-24-
(2) the Holders of at least 25% in principal amount of the Securities
of that Series make a written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or expense to be,
or which may be, incurred by the Trustee in pursuing the remedy;
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer of indemnity; and
(5) during such 60-day period, the Holders of a majority in principal
amount of the Securities of that Series do not give the Trustee a
direction inconsistent with the request.
A Securityholder of any Series may not use this Indenture to prejudice the
rights of another Securityholder of that Series or any other Series or to obtain
a preference or priority over another Securityholder of that Series or any other
Securities.
SECTION 6.07. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Security to receive payment of principal of and interest on the
Security, on or after the respective due dates expressed in the Security, and
the right of any Holder of a coupon to receive payment of interest due as
provided in such coupon, or to bring suit for the enforcement of any such
payment on or after such respective dates, shall not be impaired or affected
without the consent of such Holder.
SECTION 6.08. Collection Suits by Trustee.
If an Event of Default specified in Section 6.01(1) or (2) occurs with
respect to Securities of any Series and is continuing, the Trustee may recover
judgment in its own name and as trustee of an express trust against the Company
for the whole amount of the principal of and interest on Securities of that
Series remaining unpaid.
SECTION 6.09. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee and the
Securityholders allowed in any judicial proceedings relating to the Company, its
creditors or its property.
SECTION 6.10. Priorities.
If the Trustee collects any money pursuant to this Article, it shall pay
out the money in the following order:
-25-
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to Holders of Securities in respect of which or for the
benefit of which such money has been collected for amounts due and unpaid
on such Securities for principal and interest, ratably, without preference
or priority of any kind, according to the amounts due and payable on such
Securities for principal and interest, respectively; and
THIRD: to the Company.
The Trustee may fix a record date (with respect to Registered Securities)
and payment date for any such payment to Holders of Securities.
SECTION 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section does not apply to a suit by the Company, the Trustee, a Holder
pursuant to Section 6.07, or a Holder or Holders of more than 10% in principal
amount of the Securities of any Series.
ARTICLE 7
TRUSTEE
SECTION 7.01. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise such of its rights and powers under 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.
(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform only those duties that are specifically
set forth in this Indenture, and no implied covenants or obligations shall
be read into this Indenture against the Trustee.
(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
-26-
opinions furnished to the Trustee and conforming to the requirements of
this Indenture. However, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements of
this Indenture.
(c) The Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct, except
that:
(1) This paragraph does not limit the effect of paragraph (b) 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 is proved that the Trustee
was negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee may refuse to perform any duty or exercise any right or
power unless it receives indemnity satisfactory to it against any loss,
liability or expense.
(f) The Trustee shall not be liable for interest on any money received by
it except as the Trustee may agree with the Company. Money held in trust by the
Trustee need not be segregated from other funds except to the extent required by
law.
SECTION 7.02. Rights of Trustee.
(a) The Trustee may rely on any document believed by it to be genuine and
to have been signed or presented by the proper person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may consult with
counsel or require an Officers' Certificate or an Opinion of Counsel. The
Trustee shall not be liable for any action it takes or omits to take in good
faith in reliance on a Board Resolution, an Officers' Certificate, an Opinion of
Counsel or the written advice of counsel acceptable to the Trustee.
(c) The Trustee may act through agents and shall not be responsible for
the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within its rights or
powers.
-27-
SECTION 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner
or pledgee of Securities and may otherwise deal with the Company or an Affiliate
with the same rights it would have if it were not Trustee. Any Agent may do the
same with like rights. However, the Trustee is subject to Sections 7.10 and
7.11.
SECTION 7.04. Trustee's Disclaimer.
The Trustee makes no representation as to the validity or adequacy of this
Indenture or the Securities, shall not be accountable for the Company's use of
the proceeds from the Securities and shall not be responsible for any statement
in the Securities other than its certificate of authentication.
SECTION 7.05. Notice of Defaults.
If a Default occurs and is continuing with respect to the Securities of
any Series and if it is known to the Trustee, the Trustee shall mail to each
Holder of a Security of that Series entitled to receive reports pursuant to
Section 4.03(c) (and, if Unregistered Securities of that Series are outstanding,
shall cause to be published at least once in an Authorized Newspaper in each of
The City of New York, London and, if Securities of that Series are listed on the
Luxembourg Stock Exchange, Luxembourg) notice of the Default within 90 days
after it occurs. Except in the case of a Default in payment on the Securities of
any Series, the Trustee may withhold the notice if and so long as a committee of
its Responsible Officers in good faith determines that withholding such notice
is in the interests of Securityholders of that Series.
SECTION 7.06. Reports by Trustee to Holders.
(a) Within 60 days after each anniversary date of the first issue of a
Series of Securities, the Trustee shall mail to each Securityholder of that
Series entitled to receive reports pursuant to Section 4.03(c) a brief report,
dated as of such date, that complies with TIA Section 313(a). The Trustee also
shall comply with TIA Section 313(b)(2).
(b) At the time that it mails such a report to Securityholders of any
Series, the Trustee shall file a copy of that report with the SEC and with each
stock exchange on which the Securities of that Series are listed. The Company
shall provide written notice to the Trustee when the Securities of any Series
are listed on any stock exchange.
SECTION 7.07. Compensation and Indemnity.
(a) The Company shall pay to the Trustee from time to time reasonable
compensation for its services. The Trustee's compensation shall not be limited
by any law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable out-of-
-28-
pocket expenses incurred by it in connection with the performance of its duties
under this Indenture. Such expenses shall include the reasonable compensation
and out-of-pocket expenses of the Trustee's agents and counsel.
(b) The Company shall indemnify the Trustee against any loss or liability
incurred by it arising out of or in connection with its acceptance or
administration of the trust or trusts hereunder. The Trustee shall notify the
Company promptly of any claim for which it may seek indemnity. The Company shall
defend the claim and the Trustee shall cooperate in the defense. The Trustee may
have separate counsel and the Company shall pay the reasonable fees and expenses
of such counsel. The Company need not pay for any settlement made without its
consent.
(c) The Company need not reimburse any expense or indemnify against any
loss or liability incurred by the Trustee through negligence or bad faith.
(d) To secure the payment obligations of the Company pursuant to this
Section, the Trustee shall have a lien prior to the Securities of any Series on
all money or property held or collected by the Trustee, except that held in
trust to pay principal of and interest on particular Securities of a Series.
(e) If the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(4) or (5) occurs, such expenses and the
compensation for such services are intended to constitute expenses of
administration under any Bankruptcy Law.
SECTION 7.08. Replacement of Trustee.
(a) The resignation or removal of the Trustee and the appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section.
(b) The Trustee may resign with respect to the Securities of any Series by
so notifying the Company. The Holders of a majority in principal amount of the
Securities of any Series may remove the Trustee with respect to that Series by
so notifying the Trustee and the Company. The Company may remove the Trustee
with respect to Securities of any Series if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or public officer takes charge of the Trustee or its
property; or
(4) the Trustee becomes incapable of acting.
-29-
(c) If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason with respect to Securities of any Series, the
Company shall promptly appoint a successor Trustee for such Series. Within one
year after a successor Trustee with respect to the Securities of any Series
takes office the Holders of a majority in principal amount of Securities of that
Series may appoint a successor Trustee with respect to the Securities of that
Series to replace the successor Trustee appointed by the Company.
(d) If a successor Trustee with respect to the Securities of any Series
does not take office within 60 days after the retiring Trustee resigns or is
removed, the retiring Trustee, the Company or the Holders of at least 10% in
principal amount of the Securities of the applicable Series may petition any
court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such Series.
(e) If the Trustee with respect to the Securities of any Series fails to
comply with Section 7.10, any Securityholder of the applicable Series may
petition any court of competent jurisdiction for the removal of such Trustee and
the appointment of a successor Trustee.
(f) A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee for any Series of Securities
shall become effective, and the successor Trustee shall have all the rights,
powers and duties of the retiring Trustee with respect to all Series of
Securities for which the successor Trustee is to be acting as Trustee under this
Indenture. The retiring Trustee shall promptly transfer all property held by it
as Trustee with respect to such Series of Securities to the successor Trustee
subject to the lien provided for in Section 7.07. The Company shall give notice
of each appointment of a successor Trustee for any Series of Securities by
mailing written notice of such event by first-class mail to the Holders of
Securities of such Series entitled to receive reports pursuant to Section
4.03(c) and, if any Unregistered Securities are outstanding, by publishing
notice of such event once in an Authorized Newspaper in each of The City of New
York, London, and, if Securities of that Series are listed on the Luxembourg
Stock Exchange, Luxembourg.
(g) All provisions of this Section 7.08 except subparagraphs (b)(l), (e)
and (h) and the words "subject to the lien provided for in Section 7.07" in
subparagraph (f) shall apply also to any Paying Agent located outside the United
States and its possessions and required by Section 2.04.
(h) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) Series, the Company, the
retiring Trustee and such successor Trustee shall execute and deliver a
supplemental indenture wherein such 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, such 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,
-30-
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.
SECTION 7.09. Successor Trustee, Agents by Merger, etc.
If the Trustee or any Agent consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business assets to,
another corporation, the successor corporation, without any further act, shall
be the successor Trustee or Agent, as the case may be.
SECTION 7.10. Eligibility, Disqualification.
This Indenture shall always have a Trustee with respect to each Series of
Securities which satisfies the requirements of TIA Section 310(a)(1). The
Trustee shall always have a combined capital and surplus of at least
$100,000,000, as set forth in its most recent published annual report of
condition. The Trustee is subject to TIA Section 310(b), including the optional
provision permitted by the second sentence of TIA Section 310(b)(9), except that
in determining whether the Trustee has a conflicting interest, as defined in TIA
Section 310(b)(1), there shall be excluded all indentures of the Company now or
hereafter existing which may be excluded under the proviso of TIA Section
310(b)(1).
SECTION 7.11. Preferential Collection of Claims Against Company.
The Trustee is subject to TIA Section 311 (a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated.
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.01. Termination of Company's Obligations.
(a) The Company reserves the right to terminate all of its obligations
under (i) this Indenture and the Securities, or (ii) the Securities of any
Series if the Company irrevocably deposits in trust with the Trustee money or
U.S. Government Obligations sufficient to pay, when due, the principal of and
any interest on all the Securities or all the Securities of that Series, as the
case may be, to maturity or redemption and if all other conditions set forth in
the Securities of that Series are met. However,
-31-
the Company's obligations in Sections 2.04, 2.05, 2.06, 2.07, 2.08, 2.09, 4.01,
7.07, 7.08, 8.03 and 8.04 shall survive until the Securities are no longer
outstanding. Thereafter the Company's obligations in Sections 7.07, 8.03 and
8.04 shall survive.
(b) Before or after a deposit the Company may make arrangements
satisfactory to the Trustee for the redemption of Securities at a future in
accordance with Article 3.
(c) After a deposit by the Company in a accordance with this Section in
respect of the Securities of a Series, the Trustee upon request shall
acknowledge in writing the discharge of the Company's obligations under the
Securities of the Series in respect of which the deposit has been made and this
Indenture with respect to the Securities of that Series except for those
surviving obligations specified above.
(d) In order to have money available on a payment date to pay principal of
and interest on the Securities of any Series, the U.S. Government Obligations
shall be payable as to principal or interest on or before such payment date in
such amounts as will provide the necessary money.
(e) "U.S. Government Obligations" means:
(i) direct obligations of the United States of America for the
payment of which the full faith and credit of the United States of America
are pledged; or
(ii) obligations of a person controlled or supervised by and acting
as an agency or instrumentality of the United States of America pursuant
to authority granted by the Congress of the United States, the payment of
which is unconditionally guaranteed as a full faith and credit obligation
by the United States of America;
provided, however, that U.S. Government Obligations shall not be callable at the
issuer's option.
SECTION 8.02. Application of Trust Money.
The Trustee shall hold in trust all money or U.S. Government Obligations
deposited with it pursuant to Section 8.01. It shall apply the deposited money
and the money from U.S. Government Obligations through the Paying Agent and in
accordance with this Indenture to the payment of principal of and interest on
the Securities of each Series in respect of which the deposit shall have been
made.
SECTION 8.03. Repayment to Company.
(a) The Trustee and the Paying Agent shall promptly pay to the Company
upon request any excess money or securities held by them at any time.
-32-
(b) The Trustee and the Paying Agent shall pay to the Company upon request
any money held by them for the payment of principal or interest that remains
unclaimed for two years after such principal or interest became due. After
payment to the Company, Securityholders entitled to the money must look to the
Company for payment as general creditors unless an applicable abandoned property
law designates another person.
SECTION 8.04. Indemnity for Government Obligations.
The Company shall pay and shall indemnify the Trustee and each
Securityholder of each Series in respect of which the deposit shall have been
made against any tax, fee or other charge imposed on or assessed against
deposited U.S. Government Obligations or the principal and interest received on
such obligations.
-33-
ARTICLE 9
AMENDMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders.
The Company and the Trustee may enter into one or more supplemental
indentures without consent of any Securityholder for any of the following
purposes:
(1) to cure any ambiguity, defect or inconsistency herein or in the
Securities of any Series;
(2) to provide for the issuance of and establish the form and terms
and conditions of Securities of any Series as provided in Section 2.02,
and to establish the form of any certifications required to be furnished
pursuant to the terms of this Indenture or any Series of Securities;
(3) to secure the Securities pursuant to Section 4.02;
(4) to comply with Article 5;
(5) to provide for uncertificated Securities in addition to or in
place of certificated Securities;
(6) to add to the rights of the Holders of any Series of Securities
or to surrender any right or power herein conferred on the Company; or
(7) to make any change that does not adversely affect the rights of
any Securityholder.
SECTION 9.02. With Consent of Holders.
(a) With the written consent of the Holders of a majority in principal
amount of the outstanding Securities of each Series affected by such
supplemental indenture (with each Series voting as a class), the Company and the
Trustee may enter into a supplemental indenture to add any provisions to or to
change or eliminate any provisions of this Indenture or of any supplemental
indenture or to modify, in each case in any manner not covered by Section 9.01,
the rights of the Securityholders of each such Series. The Holders of a majority
in principal amount of the outstanding Securities of each Series affected by
such waiver (with each Series voting as a class), by notice to the Trustee, may
waive compliance by the Company with any provision of this Indenture, any
supplemental indenture or the Securities of any such Series except a Default in
the payment of the principal of or interest on any Security. However, without
the consent of each Securityholder affected, an amendment or waiver may not:
-34-
(1) reduce the amount of Securities whose Holders must consent to an
amendment or waiver;
(2) reduce the rate of or change the time for payment of interest on
any Security;
(3) reduce the principal of or change the fixed maturity of any
Security;
(4) waive a Default in the payment of the principal of or interest on
any Security;
(5) make any Security payable in money other than that stated in the
Security; or
(6) make any change in Section 6.04, 6.07 or 9.02(a) (third
sentence).
(b) The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Persons entitled to consent to any indenture
supplemental hereto. If a record date is fixed, the Holders on such record date,
or their duly designated proxies, and only such Persons, shall be entitled to
consent to such supplemental indenture, whether or not such Holders remain
Holders after such record date; provided, that unless such consent shall have
become effective by virtue of the requisite percentage having been obtained
prior to the date which is 90 days after such record date, any such consent
previously given shall automatically and without further action by any Holder be
canceled and of no further effect.
(c) It is not necessary under this Section 9.02 for the Securityholders to
consent to the particular form of any proposed supplemental indenture, but it is
sufficient if they consent to the substance thereof.
(d) Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section 9.02, the
Company shall transmit by mail a notice, setting forth in general terms the
substance of such supplemental indenture, to all Holders of Registered
Securities, as the names and addresses of such Holders appear on the register
for each Series of Securities, and to such Holders of Unregistered Securities as
are entitled to receive reports pursuant to Section 4.03(c). Any failure of the
Company to mail such notice, or any defect therein. shall not, however, in any
way impair or affect the validity of any such supplemental indenture.
SECTION 9.03. Compliance with Trust Indenture Act.
Every amendment to this Indenture or the Securities of one or more Series
shall be set forth in a supplemental indenture that complies with the TIA as
then in effect.
-35-
SECTION 9.04. Revocation and Effect of Consents.
Until an amendment or waiver becomes effective, a consent to it by a
Holder of a Security is a continuing consent by the Holder and every subsequent
Holder of a Security or portion of a Security that evidences the same debt as
the consenting Holder's Security, even if notation of the consent is not made on
any Security. However, any such Holder or subsequent Holder may revoke the
consent as to his Security or portion of a Security if the Trustee receives the
notice of revocation before the date the amendment or waiver becomes effective.
After an amendment or waiver becomes effective, it shall bind every
Securityholder of each Series affected by such amendment or waiver.
SECTION 9.05. Notation on or Exchange of Securities.
The Trustee may place an appropriate notation about an amendment or waiver
on any Security of any Series thereafter authenticated. The Company in exchange
for Securities of that Series may issue and the Trustee shall authenticate new
Securities of that Series that reflect the amendment or waiver.
SECTION 9.06. Trustee Protected.
The Trustee need not sign any supplemental indenture that is reasonably
likely to adversely affect its rights.
ARTICLE 10
MISCELLANEOUS
SECTION 10.01. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with
another provision which is required to be included in this Indenture by the TIA,
the required provision shall control.
SECTION 10.02. Notices.
(a) Any notice or communication by the Company or the Trustee to the other
is duly given if in writing and delivered in person or mailed by first-class
mail:
-36-
if to the Company to:
Pacific Xxxx
000 X. Xxxxxxx, 0xx Xxxxx
Xxx Xxxxxxx, Xxxxx 00000
Attention: Treasurer
with a copy to:
Pacific Xxxx
000 X. Xxxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxx 00000
Attention: General Attorney - Corporate/SEC
if to the Trustee to:
The Bank of New York
000 Xxxxxxx Xxxxxx, 00X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Trustee Administration
(b) The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
(c) Any notice or communication to Holders of Securities entitled to
receive reports pursuant to 4.03(c) shall be mailed by first-class mail to the
addresses for Holders of Registered Securities shown on the register kept by the
Registrar and to addresses filed with the Trustee for other Holders. Failure to
so mail a notice or communication or any defect in such notice or communication
shall not affect its sufficiency with respect to other Holders of Securities of
that or any other Series entitled to receive notice.
(d) If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
(e) If the Company mails a notice or communication to Securityholders, it
shall mail a copy to the Trustee and to each Agent at the same time.
(f) If it shall be impractical in the opinion of the Trustee or the
Company to make any publication of any notice required hereby in an Authorized
Newspaper, any publication or other notice in lieu thereof which is made or
given with the approval of the Trustee shall constitute a sufficient publication
of such notice.
(g) All other notices or communications will be in writing.
-37-
SECTION 10.03. Communication by Holders with Other Holders.
Securityholders of any Series may communicate pursuant to TIA Section
312(b) with other Securityholders of that Series or of all Series with respect
to their rights under this Indenture or under the Securities of that Series or
of all Series. The Company, the Trustee, the Registrar and anyone else shall
have the protection of TIA Section 312(c).
SECTION 10.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take any
action under this Indenture, the Company shall furnish to the Trustee:
(1) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 10.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(1) a statement that the person making such certificate or opinion
has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether or not, in the opinion of such person,
such condition or covenant has been complied with.
SECTION 10.06. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or a meeting of
Securityholders of one or more Series. The Paying Agent or Registrar may make
reasonable rules and set reasonable require ments for its functions.
-38-
SECTION 10.07. Legal Holidays.
A "Legal Holiday" is a Saturday, a Sunday or a day on which banking
institutions are not required to be open. If a payment date is a Legal Holiday
at a place of payment, payment may be made at such place on the next succeeding
day that is not a Legal Holiday, and no interest shall accrue for the
intervening period.
SECTION 10.08. Governing Law.
The laws of the State of New York shall govern this Indenture, the
Securities and any coupons appertaining thereto.
SECTION 10.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or an Affiliate. No such indenture, loan or debt
agreement may be used to interpret this Indenture.
SECTION 10.10. No Recourse Against Others.
No director, officer, employee or stockholder, as such, of the Company
shall have any liability for any obligation of the Company under the Securities
or the Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. Each Securityholder by accepting a Security
waives and releases all such liability. The waiver and release are part of the
consideration for the issue of the Securities.
SECTION 10.11. Execution in Counterparts.
This Indenture may be executed in any number of counterparts, each of
which shall be an original, but such counterparts shall together constitute but
one instrument.
-39-
PACIFIC XXXX
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Treasurer
(SEAL)
ATTEST:
THE BANK OF NEW YORK
By: /s/ Xxxx Xxxx Xxxxxxx
-------------------------------------
Name: Xxxx Xxxx Xxxxxxx
Title: Assistant Vice President
-40-
