Exhibit 4.2
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MAIL-WELL, INC.
AND
THE BANK OF NEW YORK
AS TRUSTEE
_______________________
SUBORDINATED DEBT SECURITIES
_______________________
INDENTURE
DATED AS OF NOVEMBER ___, 1997
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MAIL-WELL, INC.
CERTAIN SECTIONS OF THIS INDENTURE RELATING TO
SECTIONS OF THE TRUST INDENTURE ACT OF 1939
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
(S)310(a)(1)........................................... 7.8, 7.10
(a)(2)........................................... 7.10
(a)(3)........................................... Not Applicable
(a)(4)........................................... Not Applicable
(a)(5)........................................... 7.10
(b).............................................. 7.10
(S)311(a).............................................. 7.8, 7.10
(b).............................................. 7.11
(S)312(a).............................................. 2.7
(b).............................................. 13.3
(c).............................................. 13.3
(S)313(a).............................................. 7.6
(b).............................................. 7.6
(c).............................................. 7.6, 13.2
(d).............................................. 7.6
(S)314(a).............................................. 4.2, 13.2
(b).............................................. Not Applicable
(c)(1)........................................... 13.4
(c)(2)........................................... 13.4
(c)(3)........................................... Not Applicable
(d).............................................. Not Applicable
(e).............................................. 13.5
(f).............................................. 4.3
(S)315(a).............................................. 7.1
(b).............................................. 7.5, 13.2
(c).............................................. 7.1
(d).............................................. 7.1
(e).............................................. 6.11
(S)316(a)(1)(A)........................................ 6.5
(a)(1)(B)........................................ 6.4
(a)(2)........................................... Not Applicable
(b).............................................. 6.7
(c).............................................. Not Applicable
(S)317(a)(1)........................................... 6.8
(a)(2)........................................... 6.9
(b).............................................. 2.6
(S)318(a).............................................. 13.1
(b).............................................. Not Applicable
(c).............................................. 13.1
_________________
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
not part of the Indenture.
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
......................................................
Section 1.1 Definitions.............................................. 1
Section 1.2 Other Definitions........................................ 6
Section 1.3 Incorporation by Reference of Trust Indenture Act........ 6
Section 1.4 Rules of Construction.................................... 7
ARTICLE II
THE SECURITIES
Section 2.1 Forms Generally.......................................... 7
Section 2.2 Securities in Global Form................................ 8
Section 2.3 Title, Terms And Denominations........................... 10
Section 2.4 Execution, Authentication, Delivery And Dating........... 13
Section 2.5 Registrar And Paying Agent............................... 16
Section 2.6 Paying Agent to Hold Money And Securities in Trust....... 16
Section 2.7 Securityholder Lists..................................... 17
Section 2.8 Transfer And Exchange.................................... 17
Section 2.9 Replacement Securities And Coupons....................... 20
Section 2.10 Outstanding Securities; Determinations of Holders' Action 21
Section 2.11 Temporary Securities..................................... 22
Section 2.12 Cancellation............................................. 24
Section 2.13 Payment of Interest; Interest Rights Preserved........... 25
Section 2.14 Persons Deemed Owners.................................... 26
Section 2.15 Computation of Interest.................................. 27
ARTICLE III
REDEMPTION
Section 3.1 Right to Redeem; Notices to Trustee...................... 27
Section 3.2 Selection of Securities to Be Redeemed................... 27
Section 3.3 Notice of Redemption..................................... 28
Section 3.4 Effect of Notice of Redemption........................... 28
Section 3.5 Deposit of Redemption Price.............................. 29
Section 3.6 Securities Redeemed in Part.............................. 30
ARTICLE IV
COVENANTS
Section 4.1 Payment of Securities..................................... 30
Section 4.2 SEC Reports............................................... 30
Section 4.3 Compliance Certificate.................................... 31
Section 4.4 Further Instruments And Acts.............................. 31
Section 4.5 Maintenance of Office or Agency........................... 31
Section 4.6 Additional Amounts........................................ 32
ARTICLE V
SUCCESSOR CORPORATION
Section 5.1 When Company May Merge or Transfer Assets................. 33
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.1 Events of Default......................................... 34
Section 6.2 Acceleration.............................................. 35
Section 6.3 Other Remedies............................................ 36
Section 6.4 Waiver of Past Defaults................................... 36
Section 6.5 Control by Majority....................................... 37
Section 6.6 Limitation on Suits....................................... 37
Section 6.7 Rights of Holders to Receive Payment...................... 37
Section 6.8 Collection Suit by Trustee................................ 38
Section 6.9 Trustee May File Proofs of Claim.......................... 38
Section 6.10 Priorities................................................ 39
Section 6.11 Undertaking For Costs..................................... 39
Section 6.12 Waiver of Stay, Extension or Usury Laws................... 39
ARTICLE VII
TRUSTEE
Section 7.1 Duties of Trustee......................................... 40
Section 7.2 Rights of Trustee......................................... 41
Section 7.3 Individual Rights of Trustee, Etc......................... 42
Section 7.4 Trustee's Disclaimer...................................... 42
ii
Section 7.5 Notice of Defaults........................................ 43
Section 7.6 Reports by Trustee to Holders............................. 43
Section 7.7 Compensation And Indemnity................................ 43
Section 7.8 Replacement of Trustee.................................... 44
Section 7.9 Successor Trustee by Merger............................... 46
Section 7.10 Eligibility; Disqualification............................. 46
Section 7.11 Preferential Collection of Claims Against Company......... 46
ARTICLE VIII
SATISFACTION AND DISCHARGE
Section 8.1 Discharge of Liability on Securities...................... 46
Section 8.2 Repayment to The Company.................................. 47
Section 8.3 Option to Effect Defeasance or Covenant Defeasance........ 47
Section 8.4 Defeasance And Discharge.................................. 47
Section 8.5 Covenant Defeasance....................................... 48
Section 8.6 Conditions to Defeasance or Covenant Defeasance........... 48
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.1 Supplemental Indentures Without Consent of Holders........ 49
Section 9.2 Supplemental Indentures With Consent of Holders........... 50
Section 9.3 Compliance With Trust Indenture Act....................... 51
Section 9.4 Revocation And Effect of Consents, Waivers And Actions.... 51
Section 9.5 Notation on or Exchange of Securities..................... 51
Section 9.6 Trustee to Sign Supplemental Indentures................... 52
Section 9.7 Effect of Supplemental Indentures......................... 52
ARTICLE X
SINKING FUNDS
Section 10.1 Applicability of Article.................................. 52
Section 10.2 Satisfaction of Sinking Fund Payments With Securities..... 52
Section 10.3 Redemption of Securities For Sinking Fund................. 53
iii
ARTICLE XI
ACTIONS OF HOLDERS OF SECURITIES
Section 11.1 Purposes For Which Meetings May Be Called................. 53
Section 11.2 Call, Notice And Place of Meetings........................ 53
Section 11.3 Persons Entitled to Vote at Meetings...................... 54
Section 11.4 Quorum; Action............................................ 54
Section 11.5 Determination of Voting Rights; Conduct And Adjournment of
Meetings................................................. 55
Section 11.6 Counting Votes And Recording Action of Meetings........... 56
Section 11.7 Actions of Holders Generally.............................. 56
ARTICLE XII
SUBORDINATION
Section 12.1 Securities Subordinate to Senior Indebtedness............. 58
Section 12.2 Payment Over of Proceeds Upon Dissolution, Etc............ 59
Section 12.3 Acceleration of Securities................................ 60
Section 12.4 Default in Senior Indebtedness............................ 61
Section 12.5 Payment Permitted If No Default........................... 62
Section 12.6 Subrogation Rights of Holders of Senior Indebtedness...... 62
Section 12.7 Provision Solely to Define Relative Rights................ 62
Section 12.8 Trustee to Effectuate Subordination....................... 63
Section 12.9 No Waiver of Subordination Provisions..................... 63
Section 12.10 Notice to Trustee......................................... 64
Section 12.11 Reliance on Judicial Order or Certificate of Liquidating
Agent.................................................... 64
Section 12.12 Trustee Not Fiduciary For Holders of Senior Indebtedness.. 65
Section 12.13 Rights of Trustee as Holder of Senior Indebtedness;
Preservation of Trustee's Rights......................... 65
Section 12.14 Article XII Applicable to Paying Agents................... 65
ARTICLE XIII
MISCELLANEOUS
Section 13.1 Trust Indenture Act Controls.............................. 66
Section 13.2 Notices................................................... 66
Section 13.3 Communication by Holders with Other Holders............... 67
Section 13.4 Certificate and Opinion as to Conditions Precedent........ 68
Section 13.5 Statements Required in Certificate or Opinion............. 68
iv
Section 13.6 Separability Clause....................................... 68
Section 13.7 Rules by Trustee, Paying Agent and Registrar.............. 68
Section 13.8 Legal Holidays............................................ 69
Section 13.9 Governing Law and Jurisdiction............................ 69
Section 13.10 No Recourse Against Others................................ 69
Section 13.11 Successors................................................ 70
Section 13.12 Effect of Headings and Table of Contents.................. 70
Section 13.13 Benefits of Indenture..................................... 70
Section 13.14 Multiple Originals........................................ 70
Exhibit A Form of Certificate to be given by Euroclear or CEDEL S.A... 72
v
INDENTURE
THIS INDENTURE dated as of November ___, 1997, by and among MAIL-WELL,
INC., a Colorado corporation ("Company"), and THE BANK OF NEW YORK, a New York
banking corporation, as trustee ("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 (herein called the
"Securities") to be issued in one or more series as in this Indenture provided.
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
ratable benefit of the Holders from time to time of the Securities or each
series thereof as follows:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions.
"Affiliate" of any specified person means any other person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified person. For the purposes of this definition,
"Control" when used with respect to any specified person means the power to
direct or cause the direction of the management and policies of such person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "Controlling" and "Controlled" have
meanings correlative to the foregoing.
"Authorized Newspaper" means a newspaper, in the English language or, at
the option of the Company, in an official language of the country of
publication, customarily published on each Business Day (with respect to Bearer
Securities, set forth in the Officers' Certificate with respect to a series of
Bearer Securities), whether or not published on Saturdays, Sundays or holidays,
and of general circulation in the place in connection with which the term is
used or in the financial community of such place. Where successive publications
are required to be made in Authorized Newspapers, the successive publications
may be made in the same or in different Authorized Newspapers meeting the
foregoing requirements and in each case on any Business Day.
"Bearer Security" means any Security in the form (to the extent applicable
thereto) established pursuant to Section 2.1 which is payable to the bearer.
"Board of Directors" means the board of directors of the Company or any
committee of such board authorized with respect to any matter to exercise the
powers of the Board of Directors of the Company.
"Board Resolution" means a copy of a resolution 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 such
certification, and delivered to the Trustee.
"Business Day" means, except as otherwise specified as contemplated by
Section 2.3(a), with respect to any Place of Payment or any other particular
location referred to in this Indenture or the Securities, means each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions in that Place of Payment or other location are authorized or
obligated by law or executive order to close.
"Capital Stock" for any corporation means any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) stock issued by that corporation.
"Cash" means such coin or currency of the United States as at any time of
payment is legal tender for the payment of public and private debts.
"Company" means the party named as the "Company" in the first paragraph of
this Indenture until a successor replaces it pursuant to the applicable
provisions of this Indenture and, thereafter, shall mean such successor.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, a Vice Chairman,
its Chief Executive Officer, its President or a Vice President, and by its
Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and
delivered to the Trustee or, with respect to Sections 2.4, 2.8, 2.11 and 7.2,
any other employee of the Company named in an Officers' Certificate delivered to
the Trustee.
"Coupon" means any interest coupon appertaining to a Bearer Security.
"Default" means any event which is, or after notice or passage of time or
both would be, an Event of Default.
"Depositary" means, with respect to the Securities of any series issuable
or issued in whole or in part in global form, the person specified as
contemplated by Section 2.3(a) as the Depositary with respect to such series of
Securities, until a successor shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or include
such successor.
2
"Debt" means with respect to any person at any date, without duplication
(i) all obligations of such person for borrowed money, (ii) all obligations of
such person evidenced by bonds, debentures, notes or other similar instruments,
(iii) all Debt of others secured by a lien on any asset of such person, whether
or not such Debt is assumed by such person, (iv) all obligations of such person
pursuant to leases which are required to be capitalized under generally accepted
accounting principles consistently applied and (v) all Debt of others for the
payment of which such person is responsible or liable as obligor or guarantor.
"Discount Security" means any Security which provides for an amount less
than the Principal Amount thereof to be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 6.2.
"Dollar" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States as at the time shall be legal tender for the
payment of public and private debts.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Holder" or "Securityholder," when used with respect to any Security,
means, in the case of a Registered Security, a person in whose name a Security
is registered on the Registrar's books and, in the case of a Bearer Security,
the bearer thereof and, when used with respect to any coupon, means the bearer
thereof.
"Indenture" means this Indenture, as amended or supplemented from time to
time in accordance with the terms hereof and shall include the terms of a
particular series of Securities established as contemplated in Section 2.3(a).
"Interest," when used with respect to a Discount Security which by its
terms bears interest only after Maturity, means interest payable after Maturity.
"Interest Payment Date," when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Maturity," when used with respect to any Security, means the date on
which the Principal of such Security or an installment of Principal or, in the
case of a Discount Security, the Principal Amount payable upon a declaration of
acceleration pursuant to Section 6.2, becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Officer" means the Chairman of the Board, any Vice Chairman, the Chief
Executive Officer, the President, any Vice President, the Treasurer, the
Secretary, any Assistant Treasurer or any Assistant Secretary of the Company.
3
"Officers' Certificate" means a written certificate containing the
information specified in Sections 13.4 and 13.5, signed in the name of the
Company by its Chairman of the Board, a Vice Chairman, its Chief Executive
Officer, its President or a Vice President, and by its Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary, and delivered to the
Trustee.
"Opinion of Counsel" means a written opinion containing the information
specified in Sections 13.4 and 13.5, from legal counsel who is acceptable to the
Trustee. The counsel may be an employee of, or counsel to, the Company or the
Trustee.
"Periodic Offering" means an offering of Securities of a series from time
to time the specific terms of which Securities, including, without limitation,
the rate or rates of interest, if any, thereon, the Stated Maturity or
Maturities thereof, the original issue date or dates thereof, the redemption
provisions, if any, and any other terms specified as contemplated by Section
2.3(a) with respect thereto, are to be determined by the Company, or one or more
of the Company's agents designated in an Officers' Certificate, upon the
issuance of such Securities.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability company, trust,
unincorporated organization, or government or any agency or political
subdivision thereof.
"Place of Payment," when used with respect to the Securities of any
series, means the place or places where, subject to the provisions of Section
4.5, the Principal of and any interest on the Securities of that series are
payable as specified as contemplated by Section 2.3(a).
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 2.9 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen coupon
appertains, as the case may be.
"Principal" or "Principal Amount" of a Security, except as otherwise
specifically provided in this Indenture, means the outstanding principal of the
Security plus the premium, if any, of the Security.
"Redemption Date" or "Redemption Date," when used with respect to any
Security to be redeemed, shall mean the date specified for redemption of such
Security in accordance with the terms of such Security and this Indenture.
"Redemption Price" or "Redemption Price," when used with respect to any
Security to be redeemed, means the price at which it is to be redeemed pursuant
to this Indenture.
4
"Registered Security" means any Security in the form (to the extent
applicable thereto) established pursuant to Section 2.1 which is registered on
the books of the Registrar.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Registered Securities of any series means the date specified for
that purpose as contemplated by Section 2.3(a).
"SEC" means the Securities and Exchange Commission.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture.
"Securityholder" or "Holder," when used with respect to any Security,
means in the case of a Registered Security, a person in whose name a Security is
registered on the Registrar's books and in the case of a Bearer Security the
bearer thereof and, when used with respect to any coupon, means the bearer
thereof.
"Special Record Date" for the payment of any Defaulted Interest on the
Registered Securities of any issue means a date fixed by the Trustee pursuant to
Section 2.13.
"Stated Maturity," when used with respect to any Security or any
installment of Principal thereof or interest thereon, means the date specified
in such Security or a coupon representing such installment of interest as the
fixed date on which an amount equal to the Principal of such Security or an
installment of Principal thereof or interest thereon is due and payable.
"Subsidiary" means, with respect to any person, a corporation of which a
majority of the Capital Stock having voting power under ordinary circumstances
to elect a majority of the board of directors of such corporation is owned by
(i) such person, (ii) such person and one or more Subsidiaries or (iii) one or
more Subsidiaries of such person.
"TIA" means the Trust Indenture Act of 1939 as in effect on the date of
this Indenture, except as provided in Section 9.3.
"Trust Officer" means, when used with respect to the Trustee, any Senior
Trust Officer, any Vice President, any Trust Officer, any 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 or her knowledge of or familiarity with the particular
subject.
"Trustee" means the party named as the "Trustee" in the first paragraph of
this Indenture until a successor replaces it pursuant to the applicable
provisions of this Indenture and, thereafter, shall mean such successor.
5
"United States" means the United States of America, its territories, its
possessions (including the Commonwealth of Puerto Rico), and other areas subject
to its jurisdiction.
"United States Alien" means any person who, for United States Federal
income tax purposes, is a foreign corporation, a non-resident alien individual,
a non-resident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more of the members of which is, for United States Federal
income tax purposes, a foreign corporation, a non-resident alien individual or a
non-resident alien fiduciary of a foreign estate or trust.
Section 1.2 Other Definitions.
Term Section
---- -------
"Bankruptcy Law".................... 6.1
"Custodian"......................... 6.1
"Defaulted Interest"................ 2.13
"Event of Default".................. 6.1
"Exchange Date"..................... 2.11
"Legal Holiday"..................... 13.8
"Notice of Default"................. 6.1
"Outstanding"....................... 2.10
"Paying Agent"...................... 2.5
"Registrar"......................... 2.5
"Senior Indebtedness"............... 12.1
Section 1.3 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 Indenture. 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 Securityholder.
"Indenture to Be Qualified" means this Indenture.
"Indenture Trustee" or "Institutional Trustee" means the Trustee.
"Obligor" on the indenture securities means the Company.
6
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule have the
meanings assigned to them by such definitions.
Section 1.4 Rules of Construction.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned
to it in accordance with generally accepted accounting principles in the United
States as in effect from time to time;
(c) "or" is not exclusive;
(d) "Including" means including, without limitation; and
(e) words in the singular include the plural, and words in the plural
include the singular.
ARTICLE II
THE SECURITIES
Section 2.1 Forms Generally.
The Registered Securities, if any, of each series and the Bearer
Securities, if any, of each series and related coupons shall be in substantially
such form (including global form) as shall be established by delivery to the
Trustee of an Officers' Certificate or in one or more indentures supplemental
hereto, in each case with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture, and may
have such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
Officers executing such Securities or coupons as evidenced by their execution of
the Securities or coupons. The Officers' Certificate so establishing the form
of Security or coupons, if any, of any series shall be delivered to the Trustee
at or prior to the delivery of the Company Order contemplated by Section 2.4 for
the authentication and delivery of such Securities or coupons.
Unless otherwise specified as contemplated by Section 2.3(a), Bearer
Securities shall have interest coupons attached.
7
The permanent Securities and coupons, if any, shall be printed,
lithographed, engraved or word processed or produced by any combination of these
methods or may be produced in any other manner, provided, that such method is
permitted by the rules of any securities exchange on which such Securities may
be listed, all as determined by the Officers executing such Securities as
evidenced by their execution of such Securities.
Section 2.2 Securities in Global Form.
If Securities of a series are issuable in temporary or permanent global
form, as specified as contemplated by Section 2.3(a), then, notwithstanding
clause (10) of Section 2.3(a) and the provisions of Section 2.3(b), any such
Security shall represent such of the Outstanding Securities of such series as
shall be specified therein and may provide that it shall represent the aggregate
amount of Outstanding Securities from time to time endorsed thereon or otherwise
notated on the books and records of the Registrar and that the aggregate amount
of Outstanding Securities represented thereby may from time to time be reduced
to reflect exchanges. Any endorsement of a Security in global form to reflect
the amount of any increase or decrease in the amount of Outstanding Securities
represented thereby shall be made by the Trustee in such manner and upon
instructions given by such person or persons as shall be specified therein or in
the Company Order to be delivered to the Trustee pursuant to Section 2.4 or
Section 2.11. Subject to the provisions of Section 2.4 and, if applicable,
Section 2.11, the Trustee shall deliver and redeliver any Security in global
form in the manner and upon instructions given by the person or persons
specified therein or in the applicable Company Order. If a Company Order
pursuant to Section 2.4 or 2.11 has been, or simultaneously is, delivered, any
instructions by the Company with respect to endorsement or other notation on the
books and records of the Registrar or delivery or redelivery of a Security of
such series in global form shall be in writing but need not comply with Section
13.4 or 13.5 and need not be accompanied by an Opinion of Counsel (except as
required by Section 2.4).
The provisions of the last sentence of Section 2.4 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company, and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 13.4 or 13.5 and need not be accompanied by an Opinion of
Counsel) with regard to the reduction in the Principal Amount of Securities
represented thereby, together with the written statement contemplated by the
last sentence of Section 2.4.
Notwithstanding the provisions of Sections 2.1 and 2.13, unless otherwise
specified as contemplated by Section 2.3(a), payment of Principal of and any
interest on any Security in global form shall be made to the person or persons
specified therein.
Any series of Bearer Securities shall be issued initially in the form of
one temporary global Bearer Security (the "Temporary Global Bearer Security"),
which Temporary Global Bearer Security shall be deposited on behalf of the
beneficial owners of the Bearer Securities represented thereby with the main
office of the Trustee, as common depositary (the "Common Depositary"), for
credit
8
to their respective accounts (or to such other accounts as they may direct) at
Xxxxxx Guaranty Trust Company of New York, Brussels office, as operator of
Euroclear or CEDEL S.A.
On or before the date 40 days after the later of the announcement of the
offering and the date of settlement (the "Exchange Date"), the Company shall
deliver to a Paying Agent located outside the United States, or its designated
agent, Bearer Securities executed by the Company. On or after the Exchange
Date, the Temporary Global Bearer Security shall be surrendered by the Common
Depositary to the Trustee or its agent, as the Company's agent for such purpose,
to be exchanged, in whole or from time to time in part, at the sole discretion
of the Company for (i) Bearer Securities or (ii) a permanent global Bearer
Security (the "Permanent Global Bearer Security") without charge to Holders, and
the principal Paying Agent or other Paying Agent outside the United States shall
authenticate and deliver (at an office or agency outside the United States), in
exchange for the Temporary Global Bearer Security or the portions thereof to be
exchanged, an equal aggregate principal amount of Bearer Securities or the
Permanent Global Bearer Security, as shall be specified by the beneficial owners
thereof; provided, however, that upon such presentation by the Common
Depositary, the Temporary Global Bearer Security is accompanied by a certificate
dated the Exchange Date or a subsequent date and signed by Euroclear as to the
portion of the Temporary Global Bearer Security held for its account then to be
exchanged and a certificate dated the Exchange Date or a subsequent date and
signed by CEDEL S.A. as to the portion of the Temporary Global Bearer Security
held for its account then to be exchanged, each to the effect hereinafter
provided. The Company and the Trustee agree that they will cooperate in causing
the paying agent located outside the United States to retain each certificate
provided by Euroclear or CEDEL S.A. for a period of four calendar years
following the year in which the certificate is received and not to destroy or
otherwise dispose of any such certificate without first offering to deliver it
to the Company.
Each certificate to be provided by Euroclear and CEDEL S.A. shall be
substantially in the form attached hereto as Exhibit A or with such changes
therein as shall be approved by the Company and be satisfactory to the Trustee.
Each certificate received by Euroclear and CEDEL S.A. from persons
appearing in their records as persons entitled to a portion of the Temporary
Global Bearer Security shall be substantially to the effect set forth in this
Indenture.
Upon any such exchange of a portion of the Temporary Global Bearer Security
for Bearer Securities or the Permanent Global Bearer Security, the Temporary
Global Bearer Security shall be endorsed to reflect the reduction of the
principal amount evidenced thereby. Until so exchanged in full, the Temporary
Global Bearer Security shall in all respects be entitled to the same benefits
under, and subject to the same terms and conditions of, this Indenture as Bearer
Securities authenticated and delivered hereunder, except that none of Euroclear,
CEDEL S.A. or the beneficial owners of the Temporary Global Bearer Security
shall be entitled to receive payment of interest or other payments thereon or to
convert the Temporary Global Bearer Security, or any portion thereof, into
Common Stock of the Company or any other security, cash or other property.
9
Section 2.3 Title, Terms And Denominations.
The aggregate Principal Amount of Securities which may be authenticated and
delivered under this Indenture shall be unlimited.
The Securities may be issued in one or more series. There shall be
established and, subject to Section 2.4, set forth, or determined in the manner
provided, in an Officers' Certificate of the Company, or established in one or
more indentures supplemental hereto:
(a) the title of the Securities of the series (which shall distinguish
the Securities of the series from all other Securities);
(b) 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
Sections 2.8, 2.9, 2.11, 3.6, 9.5 or 10.3 and except for any Securities which,
pursuant to Section 2.4, are deemed never to have been authenticated and
delivered hereunder);
(c) whether Securities of the series are to be issuable as Registered
Securities, Bearer Securities or both, whether any Securities of the series may
be represented initially by a Security in temporary or permanent global form
and, if so, the initial Depositary with respect to any such temporary or
permanent global Security, and if other than as provided in Section 2.8 or
Section 2.11, as applicable, whether and the circumstances under which
beneficial owners of interests in any such temporary or permanent global
Security may exchange such interests for Securities of such series and of like
tenor of any authorized form and denomination and the Authorized Newspapers for
publication of notices to holders of Bearer Securities;
(d) any other terms required for the establishment of a series of
Bearer Securities, including, but not limited to, tax compliance procedures;
(e) the person to whom any interest on any Registered Security of the
series shall be payable, if other than the person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest, the manner in which, and the
person to whom, any interest on any Bearer Security of the series shall be
payable, if otherwise than upon presentation and surrender of the coupons
appertaining thereto as they severally mature, and the extent to which, or the
manner in which (including any certification requirement and other terms and
conditions under which), any interest payable on a temporary or permanent global
Security on an Interest Payment Date will be paid if other than in the manner
provided in Section 2.2 and Section 2.4, as applicable;
(f) the date or dates on which the Principal of the Securities of the
series is payable or the method of determination thereof;
10
(g) the rate or rates at which the Securities of the series shall bear
interest, if any, the date or dates from which any such interest shall accrue,
the Interest Payment Dates on which any such interest shall be payable and the
Regular Record Date for any interest payable on any Registered Securities on any
Interest Payment Date;
(h) the place or places where, subject to the provisions of Section
4.5, the Principal of and any interest on Securities of the series shall be
payable, any Registered Securities of the series may be surrendered for
registration of transfer, Securities of the series may be surrendered for
exchange and notices and demands to or upon the Company in respect of the
Securities of the series and this Indenture may be served;
(i) 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;
(j) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous provisions or
at the option of a Holder thereof, the conditions, if any, giving rise to such
obligation, 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, and any provisions for the
remarketing of such Securities;
(k) the denominations in which any Registered Securities of the series
shall be issuable, if other than denominations of $1,000 and any integral
multiple thereof, and the denomination or denominations in which any Bearer
Securities of the series shall be issuable, if other than denominations of
$5,000 and $100,000;
(l) the currency or currencies, including composite currencies, in
which payment of the Principal of and any interest on the Securities of the
series shall be payable if other than the currency of the United States, and if
so, whether the Securities of the series may be satisfied and discharged other
than as provided in Article VIII;
(m) if the amount of payments of principal of and any interest on the
Securities of the series is to be determined with reference to an index, formula
or other method, or based on a coin or currency other than that in which the
Securities are stated to be payable, the manner in which such amounts shall be
determined and the calculation agent, if any, with respect thereto;
(n) if other than the Principal Amount thereof, the portion of the
Principal Amount of any Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 6.2;
(o) if the Company will pay additional amounts on any of the
Securities and coupons, if any, of the series to any Holder who is a United
States Alien (including any modification in the definition of such term), in
respect of any tax, assessment or governmental charge withheld
11
or deducted, under what circumstances and with what procedures and documentation
the Company will pay such additional amounts, whether such additional amounts
will be treated as interest or Principal pursuant to this Indenture, and whether
the Company will have the option to redeem such Securities rather than pay
additional amounts (and the terms of any such option);
(p) if other than as defined in Section 1.1, the meaning of "Business
Day" when used with respect to any Securities of the series;
(q) if and the terms and conditions upon which the Securities of the
series may or must be converted into securities of the Company or exchanged for
securities of the Company or another enterprise;
(r) any terms applicable to Original Issue Discount, if any, (as that
term is defined in the Internal Revenue Code of 1986 and the Regulations
thereunder) including the rate or rates at which such Original Issue Discount,
if any, shall accrue;
(s) if the Securities of the series may be issued or delivered
(whether upon original issuance or upon exchange of a temporary Security of such
series or otherwise), or any installment of Principal of or any interest is
payable, only upon receipt of certain certificates or other documents or
satisfaction of other conditions in addition to those specified in this
Indenture, the form and terms of such certificates, documents or conditions; and
(t) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
Section 9.1(7)).
All Securities of any one series and the coupons appertaining to any Bearer
Securities of such series shall be substantially identical except as to
denomination and the rate or rates of interest, if any, and Stated Maturity, the
date from which interest, if any, shall accrue and except as may otherwise be
provided in or pursuant to an Officers' Certificate pursuant to this Section
2.3(a) or in any indenture supplemental hereto. All Securities of any one
series need not be issued at the same time and, unless otherwise provided, a
series may be reopened for issuances of additional Securities of such series or
for the establishment of additional terms with respect to the Securities of such
series.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution, a copy of any appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series. With respect to Securities
of a series subject to a Periodic Offering, such Board Resolution or Officers'
Certificate may provide general terms for Securities of such series and provide
either that the specific terms of particular Securities of such series shall be
specified in a Company Order or that such terms shall be determined by the
Company, or one or more of the Company's agents designated in an Officers'
Certificate, in
12
accordance with the Company Order as contemplated by the first proviso of the
third paragraph of Section 2.4.
(i) Unless otherwise provided as contemplated by Section 2.3(a)
with respect to any series of Securities, any Registered Securities of a
series shall be issuable in denominations of $1,000 and any integral
multiple thereof and any Bearer Securities of a series shall be issuable in
denominations of $5,000 and $100,000.
Section 2.4 Execution, Authentication, Delivery And Dating.
The Securities shall be executed on behalf of the Company by its Chairman
of the Board, one of its Vice Chairmen, its President or one of its Vice
Presidents, or the Treasurer or any Assistant Treasurer, under its corporate
seal reproduced thereon attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Securities may be
manual or facsimile. Coupons shall bear the facsimile signature of the Treasurer
or any Assistant Treasurer of the Company.
Securities and coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture (and subject to delivery of the Board Resolution or Officers'
Certificate or supplemental indenture as set forth in Section 2.3 with respect
to the initial issuance of Securities of any series), the Company may deliver
Securities of any series together with any coupons appertaining thereto,
executed by the Company to the Trustee or its authenticating agent with respect
to Bearer Securities for authentication, together with a Company Order for the
authentication and delivery of such Securities; and the Trustee or its
authenticating agent with respect to Bearer Securities in accordance with such
Company Order shall authenticate and deliver such Securities; provided, however,
that, with respect to Securities of a series subject to a Periodic Offering, (a)
such Company Order may be delivered by the Company to the Trustee or its
authenticating agent with respect to Bearer Securities prior to the delivery to
the Trustee of such Securities for authentication and delivery, (b) the Trustee
shall authenticate and deliver Securities of such series for original issue from
time to time, in an aggregate Principal Amount not exceeding the aggregate
Principal Amount established for such series, pursuant to a Company Order or
pursuant to such procedures acceptable to the Trustee as may be specified from
time to time by a Company Order, (c) the rate or rates of interest, if any, the
Stated Maturity or Maturities, the original issue date or dates, the redemption
provisions, if any, and any other terms of Securities of such series shall be
determined by a Company Order or pursuant to such procedures and (d) if provided
for in such procedures, such Company Order may authorize authentication and
delivery pursuant to oral or electronic instructions from the Company, or the
Company's duly authorized agent or agents designated in an Officers'
Certificate, which oral
13
instructions shall be promptly confirmed in writing; and provided, further, that
no Bearer Security or coupon shall be mailed or otherwise delivered to any
person who is not a United States Alien or to any location in the United States.
Except as permitted by Section 2.9, the authenticating agent shall not
authenticate and deliver any Bearer Security unless all appurtenant coupons for
interest then matured have been detached and canceled.
If the forms or terms of the Securities of the series and any related
coupons have been established in or pursuant to one or more Officers'
Certificates as permitted by Sections 2.1 and 2.3(a), in authenticating such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to receive, and
(subject to Section 7.1) shall be fully protected in relying upon, an Opinion of
Counsel stating:
(i) that the form and terms of such Securities and any
coupons have been duly authorized by the Company and established in
conformity with the provisions of this Indenture; and
(ii) that such Securities, together with any coupons
appertaining thereto, when authenticated and delivered by the Trustee or
its authenticating agent 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,
enforceable in accordance with their terms, subject to customary
exceptions; provided, however, that, with respect to Securities of a series
subject to a Periodic Offering, the Trustee shall be entitled to receive
such Opinion of Counsel only once at or prior to the time of the first
authentication of Securities of such series (provided that such Opinion of
Counsel covers all Securities of such series) and that the Opinion of
Counsel above may state:
(A) that the forms of such Securities have been, and
the terms of such Securities (when established in accordance with
such procedures as may be specified from time to time in a Company
Order, all as contemplated by and in accordance with a Board
Resolution or an Officers' Certificate or supplemental indenture
pursuant to Section 2.3(a), as the case may be) will have been,
duly authorized by the Company and established in conformity with
the provisions of this Indenture; and
(B) that such Securities, together with the coupons,
if any, appertaining thereto, when (1) executed by the Company,
(2) completed, authenticated and delivered by the Trustee or in
the case of Bearer Securities and coupons, an authenticating agent
located outside the United States, in accordance with this
Indenture, and (3) 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,
enforceable in accordance with their terms, subject to customary
exceptions.
14
With respect to Securities of a series subject to a Periodic Offering, the
Trustee may conclusively rely, as to the authorization by the Company of any of
such Securities, the form and terms thereof and the legality, validity, binding
effect and enforceability thereof, upon the Opinion of Counsel and other
documents delivered pursuant to Sections 2.1 and 2.3(a) and this Section, as
applicable, at or prior to the time of the first authentication of Securities of
such series unless and until it has received written notification that such
opinion or other documents have been superseded or revoked. In connection with
the authentication and delivery of Securities of a series subject to a Periodic
Offering, the Trustee shall be entitled to assume, unless it has actual
knowledge to the contrary, that the Company's instructions to authenticate and
deliver such Securities do not violate any rules, regulations or orders of any
governmental agency or commission having jurisdiction over the Company.
Notwithstanding the provisions of Section 2.3(a) and of the preceding three
paragraphs, if all Securities of a series are subject to a Periodic Offering, it
shall not be necessary to deliver the Officers' Certificate otherwise required
pursuant to Section 2.3(a) at or prior to the time of authentication of each
Security of such series if such Officers' Certificate is delivered at or prior
to the authentication upon original issuance of the first Security of such
series to be issued.
Each Registered Security shall be dated the date of its authentication;
and, unless otherwise specified as contemplated by Section 2.3(a), each Bearer
Security (including a Bearer Security represented by a temporary global
Security) shall be dated as of the date of original issuance of the first
Security of such series to be issued.
The Trustee may appoint an authenticating agent acceptable to the Company
to authenticate Securities. Unless otherwise provided in the appointment, 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.
No Security or coupon shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Security
a certificate of authentication substantially in the form provided for herein
duly executed by the Trustee by manual signature of an authorized signatory, and
such certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder. The Trustee's certificate of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
[ ], as Trustee
15
By:____________________________________
____________________________________
Authorized Officer
Notwithstanding the foregoing, if any Security shall have been duly
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 2.12 together with a written statement (which need not
comply with Section 13.4 or 13.5 and need not be accompanied by an Opinion of
Counsel) stating that such Security has never been issued and sold by the
Company, for all purposes of this Indenture such Security shall be deemed never
to have been authenticated and delivered hereunder and shall never be entitled
to the benefits of this Indenture.
Section 2.5 Registrar And Paying Agent.
The Company shall maintain, with respect to each series of Securities, an
office or agency where such Securities may be presented for registration of
transfer or for exchange ("Registrar") and an office or agency where such
Securities may be presented for purchase or payment ("Paying Agent"). The
Registrar shall keep a register of the Securities and of their transfer and
exchange. The Company may have one or more co- registrars and one or more
additional paying agents. The term Paying Agent includes any additional paying
agent.
The Company shall enter into an appropriate agency agreement with respect
to each series of Securities with any Registrar, Paying Agent or co-registrar
(if not the Trustee). The agreement shall implement the provisions of this
Indenture that relate to such agent. The Company shall notify the Trustee of
the name and address of any such agent. If the Company fails to maintain a
Registrar or Paying Agent for a particular series of Securities, the Trustee
shall act as such and shall be entitled to appropriate compensation therefor
pursuant to Section 7.7. The Company or any Subsidiary or an Affiliate of
either of them may act as Paying Agent, Registrar or co-registrar.
The Company initially appoints the Trustee as the Registrar and Paying
Agent in connection with such Securities and the Trustee, acting through its
main office or as provided in the Officer's Certificate establishing the
Securities, as paying agent and authenticating agent for Bearer Securities.
Section 2.6 Paying Agent to Hold Money And Securities in Trust.
Except as otherwise provided herein, prior to or on each due date of
payments in respect of any series of Securities, the Company shall deposit with
the Paying Agent with respect to such Securities a sum of money sufficient to
make such payments when so becoming due. The Company shall require each Paying
Agent (other than the Trustee) to agree in writing that the Paying Agent shall
hold in trust for the benefit of Holders or the Trustee all money held by such
Paying Agent for the making of payments in respect of the Securities of such
series and shall notify the Trustee of any default by the Company in making any
such payment. At any time during the continuance of any such default, a Paying
Agent shall, upon the written request of the Trustee, forthwith pay to the
16
Trustee all money so held in trust with respect to such Securities. If the
Company, a Subsidiary or an Affiliate of either of them acts as Paying Agent for
a series of Securities, it shall segregate the money held by it as Paying Agent
with respect to such Securities and hold it as a separate trust fund. The
Company at any time may require a Paying Agent for a series of Securities to pay
all money held by it with respect to such Securities to the Trustee and to
account for any money disbursed by it. Upon doing so, such Paying Agent shall
have no further liability for the money.
Section 2.7 Securityholder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders of each series of Securities. If the Trustee is not the Registrar for
any series of Securities, the Company shall cause to be furnished to the Trustee
at least semiannually on June 1 and December 1 a listing of Holders of such
series of Securities dated within 15 days of the date on which the list is
furnished 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 of the
names and addresses of Securityholders of such series of Securities.
Section 2.8 Transfer And Exchange.
Upon surrender for registration of transfer of any Security at the office
or agency of the Company designated pursuant to Section 4.5 for such purpose in
a Place of Payment, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Securities of any authorized denomination or
denominations of a like aggregate Principal Amount and tenor. The Company shall
not charge a service charge for any registration of transfer or exchange, but
the Company may require payment of a sum sufficient to pay all taxes,
assessments or other governmental charges that may be imposed in connection with
the transfer or exchange of the Securities from the Securityholder requesting
such transfer or exchange (other than any exchange of a temporary Security for a
definitive Security not involving any change in ownership or any exchange
pursuant to Section 2.11, 3.6, 9.5 or 10.3, not involving any transfer).
Notwithstanding any other provisions (other than the provisions set forth
in the sixth and seventh paragraphs) of this Section, a Security in global form
representing all or a portion of the Securities of a series may not be
transferred except as a whole by the Depositary for such series to a nominee of
such Depositary or by a nominee of such Depositary to such Depositary or another
nominee of such Depositary or by such Depositary or any such nominee to a
successor Depositary for such series or a nominee of such successor Depositary.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series of any authorized
denomination or denominations, of a like aggregate Principal Amount and tenor,
upon surrender of the Securities to be exchanged at such office or agency.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the
17
exchange is entitled to receive. Bearer Securities may not be issued in exchange
for Registered Securities.
At the option of the Holder, Bearer Securities of any series may be
exchanged for Registered Securities of the same series of any authorized
denomination or denominations and of a like aggregate Principal Amount and
tenor, upon surrender of the Bearer Securities to be exchanged at any office or
agency of the Company located outside the United States, with all unmatured
coupons and all matured coupons in default thereto appertaining. If the Holder
of a Bearer Security is unable to produce any such unmatured coupon or coupons
or matured coupon or coupons in default, such exchange may be effected if the
Bearer Securities are accompanied by payment in funds acceptable to the Company
and the Trustee or Paying Agent in an amount equal to the face amount of such
missing coupon or coupons, or the surrender of such missing coupon or coupons
may be waived by the Company, the Paying Agent and the Trustee if there is
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to any Paying Agent any such missing coupon in respect of which
such a payment shall have been made, such Holder shall be entitled to receive
the amount of such payment; provided, however, that, except as otherwise
provided in Section 4.5, interest represented by coupons shall be payable only
upon presentation and surrender of those coupons at an office or agency located
outside the United States. Notwithstanding the foregoing, in case a Bearer
Security of any series is surrendered at any such office or agency in exchange
for a Registered Security of the same series and like tenor after the close of
business at such office or agency on (i) any Regular Record Date and before the
opening of business at such office or agency on the relevant Interest Payment
Date, or (ii) any Special Record Date and before the opening of business at such
office or agency on the related proposed date for payment of Defaulted Interest,
such Bearer Security shall be surrendered without the coupon relating to such
Interest Payment Date or proposed date for payment, as the case may be, and
interest or Defaulted Interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in
respect of the Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such coupon when due in accordance
with the provisions of this Indenture.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee or a duly appointed authenticating agent shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
If at any time the Depositary for the Securities of a series notifies the
Company that it is unwilling or unable to continue as Depositary for the
Securities of such series, the Company shall appoint a successor Depositary with
respect to the Securities of such series. If a successor Depositary for the
Securities of such series is not appointed by the Company within 90 days after
the Company receives such notice, the Company will execute, and the Trustee,
upon receipt of a Company 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 Security or Securities in global form representing such
series
18
in exchange for such Security or Securities in global form in accordance with
the instructions, if any, of the Depositary.
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 a Company 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 Security
or Securities in global form representing such series in exchange for such
Security or Securities in global form in accordance with the instructions, if
any, of the Depositary.
Notwithstanding the foregoing, except as otherwise specified in the
preceding two paragraphs or as contemplated by Section 2.3(a), any global
Security shall be exchangeable only as provided in this paragraph. If the
beneficial owners of interests in a global Security are entitled to exchange
such interests for definitive Securities of such series and of like Principal
Amount and tenor but of another authorized form and denomination, as specified
as contemplated by Section 2.3(a), then without unnecessary delay but in any
event not later than the earliest date on which such interests may be so
exchanged, the Company shall deliver to the Trustee definitive Securities in
aggregate Principal Amount equal to the Principal Amount of such global
Security, executed by the Company. On or after the earliest date on which such
interests may be so exchanged, such global Security shall be surrendered by the
Depositary with respect thereto to the Trustee, as the Company's agent for such
purpose, to be exchanged, in whole or from time to time in part, for definitive
Securities without charge and the Trustee or, in the case of Bearer Securities,
an authenticating agent outside the United States shall authenticate and
deliver, in exchange for each portion of such global Security, an equal
aggregate Principal Amount of definitive Securities of the same series of
authorized denominations and of like tenor as the portion of such global
Security to be exchanged which, unless the Securities of the series are not
issuable both as Bearer Securities and as Registered Securities, as specified as
contemplated by Section 2.3(a), shall be in the form of Bearer Securities or
Registered Securities, or any combination thereof, as shall be specified by the
beneficial owner thereof; provided, however, that notwithstanding the last
paragraph of this Section 2.8, no such exchanges may occur during a period
beginning at the opening of business 15 days before any selection of Securities
of that series to be redeemed and ending on the relevant Redemption Date; and
provided, further, that no Bearer Security or coupon delivered in exchange for a
portion of a global Security shall be mailed or otherwise delivered to any
person that is not a United States Alien or to any location in the United
States. If a Registered Security is issued in exchange for any portion of a
global Security after the close of business at the office or agency where such
exchange occurs on (i) any Regular Record Date and before the opening of
business at such office or agency on the relevant Interest Payment Date, or (ii)
any Special Record Date and before the opening of business at such office or
agency on the related proposed date for payment of Defaulted Interest, interest
or Defaulted Interest, as the case may be, will not be payable on such Interest
Payment Date or proposed date for payment, as the case may be, in respect of
such Registered Security, but will be payable on such Interest Payment Date or
proposed date for payment, as the case may be, only to
19
the Person to whom interest in respect of such portion of such global Security
is payable in accordance with the provisions of this Indenture.
Upon the exchange of a Security in global form for Securities in definitive
form, such Security in global form shall be canceled by the Trustee. All
canceled Securities and coupons held by the Trustee shall be destroyed by the
Trustee and a certificate of their destruction delivered to the Company unless
the Company directs, by Company Order, that the Trustee shall cancel Securities
and deliver a certificate of destruction to the Company. Registered Securities
issued in exchange for a Security in global form pursuant to this Section 2.8
shall be registered in such names and in such authorized denominations as the
Depositary for such Security in global form, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the Trustee. The
Trustee shall deliver such Registered Securities to the persons in whose names
such Securities are so registered.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange shall be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Registrar
duly executed, by the Holder thereof or his attorney duly authorized in writing.
The Company shall not be required (i) to issue, register the transfer of or
exchange Securities of any series during a period beginning at the opening of
business 15 days before any selection of Securities of that series to be
redeemed and ending (except as otherwise provided in the first proviso in the
eighth paragraph of this Section 2.8) at the close of business on (A) if
Securities of the Series are issuable only as Registered Securities, the day of
the mailing of the relevant notice of redemption and (B) if Securities of the
series are issuable as Bearer Securities, the day of the first publication of
the relevant notice of redemption or, if Securities of the series are also
issuable as Registered Securities and there is no publication, the mailing of
the relevant notice of redemption, or (ii) to register the transfer of or
exchange any Registered Security so selected for redemption, in whole or in
part, except the unredeemed portion of any Security being redeemed in part, or
(iii) to exchange any Bearer Security so selected for redemption except that
such a Bearer Security may be exchanged for a Registered Security of that series
and like tenor, provided that such Registered Security shall be simultaneously
surrendered for redemption.
Section 2.9 Replacement Securities And Coupons.
If (a) any mutilated Security or a Security with a mutilated coupon
appertaining thereto is surrendered to the Trustee or paying agent outside the
United States, or (b) the Company and the Trustee receive evidence to their
satisfaction of the destruction, loss or theft of any Security or coupon, and
there is delivered to the Company and the Trustee such security or indemnity as
may
20
be required by them to save each of them harmless, then, in the absence of
written notice to the Company, any paying agent or the Trustee that such
Security or coupon has been acquired by a bona fide purchaser, the Company shall
execute and upon its written request the Trustee or paying agent outside the
United States shall authenticate and deliver, in exchange for any such mutilated
Security or coupon or in lieu of any such destroyed, lost or stolen Security or
coupon, or in exchange for the Security to which a mutilated, destroyed, lost or
stolen coupon appertains (with all appurtenant coupons not mutilated, destroyed,
lost or stolen), a new Security of the same series and of like tenor and
Principal Amount, bearing a number not contemporaneously outstanding, with
coupons corresponding to the coupons, if any, appertaining to such destroyed,
lost or stolen Security or coupon, or to the Security to which such destroyed,
lost or stolen coupon appertains.
In case any such mutilated, destroyed, lost or stolen Security or coupon
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security or coupon; provided,
however, that the Principal of and any interest on Bearer Securities shall,
except as otherwise provided in Section 4.5, be payable only at an office or
agency located outside the United States and, unless otherwise specified as
contemplated by Section 2.3(a), any interest on Bearer Securities shall be
payable only upon presentation and surrender of the coupons appertaining
thereto.
Upon the issuance of any new Securities under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu of
any mutilated, destroyed, lost or stolen Security, or in exchange for a Security
to which a mutilated, destroyed, lost or stolen coupon appertains, shall
constitute an original additional contractual obligation of the Company, whether
or not the destroyed, lost or stolen Security and its coupons, if any, or the
destroyed, lost or stolen coupon shall be at any time enforceable by anyone, and
any such new Security and coupons, if any, shall be entitled to all benefits of
this Indenture equally and proportionately with any and all other Securities of
that issue and their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons.
Section 2.10 Outstanding Securities; Determinations of Holders' Action.
Securities of any series "Outstanding" at any time are, as of the date of
determination, all the Securities of such series theretofore authenticated by
the Trustee for such series except for those canceled by it, those delivered to
it for cancellation and those described in this Section 2.10 as not outstanding.
A Security does not cease to be "Outstanding" because the Company or an
Affiliate
21
thereof holds the Security; provided, however, that in determining whether the
Holders of the requisite Principal Amount of Outstanding Securities have given
or concurred in any request, demand, authorization, direction, notice, consent
or waiver hereunder, Securities owned by the Company or any other obligor upon
the Securities or any Affiliate of the Company or such other obligor shall be
disregarded and deemed not to be outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which the
Trustee knows to be so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor. Subject to the foregoing, only Securities outstanding at the time
of such determination shall be considered in any such determination (including,
without limitation, determinations pursuant to Articles 6 and 9). In addition,
in determining whether the Holders of the requisite Principal Amount of
Outstanding Securities have given or concurred in any request, demand,
authorization, direction, notice, consent or waiver hereunder, (i) the Principal
Amount of a Discount Security that shall be deemed to be Outstanding shall be
the amount of the Principal thereof that would be due and payable as of the date
of such determination upon acceleration of the Maturity thereof pursuant to
Section 6.2, (ii) the Principal Amount of a Security denominated in a foreign
currency or currencies shall be the Dollar equivalent, as determined on the date
of original issuance of such Security, of the Principal Amount (or, in the case
of a Discount Security, the Dollar equivalent on the date of original issuance
of such Security of the amount determined as provided in (i) above) of such
Security.
If a Security has been paid pursuant to Section 2.9 or in exchange for or
in lieu of which another Security has been authenticated and delivered pursuant
to this Indenture, it ceases to be outstanding unless the Trustee receives proof
satisfactory to it that the replaced Security is held by a bona fide purchaser.
If the Trustee (other than the Company) holds, in accordance with this
Indenture, on a Redemption Date or on Stated Maturity, money sufficient to pay
Securities and any coupons thereto appertaining payable on that date, then on
and after that date such Securities shall cease to be outstanding and interest,
if any, on such Securities shall cease to accrue; provided, that if such
Securities are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to the Trustee has
been made.
Section 2.11 Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company
may execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued, in
registered form or, if authorized, in bearer form with one or more coupons or
without coupons, and with such appropriate insertions, omissions, substitutions
and other variations as the Officers
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executing such Securities may determine, as conclusively evidenced by their
execution of such Securities. Such temporary Securities may be in global form.
Except in the case of Securities represented by a temporary global Security
(which shall be exchanged in accordance with the provisions of the three
succeeding paragraphs), if temporary Securities for some or all of the
Securities of any series are issued, the Company will cause definitive
Securities representing such Securities to be prepared without unreasonable
delay. Subject to Section 2.2, after the preparation of such definitive
Securities, the temporary Securities shall be exchangeable for such definitive
Securities of like tenor upon surrender of the temporary Securities at the
office or agency of the Company designated for such purpose pursuant to Section
4.5 in a Place of Payment for such series for the purpose of exchanges of
Securities of such series, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities of any series (accompanied
by any unmatured coupons appertaining thereto), the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a like Principal
Amount of definitive Securities of the same series and of like tenor of
authorized denominations; provided, however, that no definitive Bearer Security
or Permanent Global Bearer Security shall be delivered in exchange for a
temporary Registered Security. Until so exchanged the temporary Securities
shall in all respects be entitled to the same benefits under this Indenture as
definitive Securities.
Unless otherwise specified as contemplated by Section 2.3(a), if Bearer
Securities of any series are represented by a Security in temporary global form,
any such temporary global Security shall be delivered to the Depositary for the
benefit of Euroclear and CEDEL S.A. for credit to the respective accounts of the
beneficial owners of such Securities (or to such other accounts as they may
direct).
Without unnecessary delay but in any event not later than the Exchange
Date, the Company shall deliver to the Trustee or paying agent outside the
United States permanent Securities of the same series which may be in definitive
or global form at the sole discretion of the Company, in aggregate Principal
Amount equal to the Principal Amount of such temporary global Security, executed
by the Company. On or after the Exchange Date, such temporary global Security
shall be surrendered by the Depositary to the Trustee or paying agent outside
the United States, as the Company's agent for such purpose, to be exchanged, in
whole or from time to time in part, for permanent Securities of the same series
which may be in definitive or global form at the sole discretion of the Company
and of like tenor without charge and the Trustee shall authenticate and deliver,
in exchange for each portion of such temporary global Security, an equal
aggregate Principal Amount of definitive Securities or interests in Permanent
Global Bearer Security of the same series of authorized denominations and of
like tenor as the portion of such temporary global Security to be exchanged. The
permanent Securities to be delivered in exchange for any such temporary global
Security shall be in definitive bearer form or registered form, or shall be
represented by a Permanent Global Bearer Security, or any combination thereof,
as specified as contemplated by Section 2.3(a), and, if any combination thereof
is so specified, as requested by the beneficial owner thereof provided, that no
beneficial owner of a registered Temporary Global Bearer Security who is not a
23
United States alien or who is located in the United States shall be entitled to
receive Bearer Securities.
Unless otherwise specified in any such Temporary Global Bearer Security,
the interest of a beneficial owner of Securities of a series represented by such
Temporary Global Bearer Security shall be exchanged for permanent Securities of
the same series which may be in definitive or global form at the sole discretion
of the Company and of like tenor following the Exchange Date when the account
holder instructs Euroclear or CEDEL S.A. as the case may be, to request such
exchange on his behalf and delivers to Euroclear or CEDEL S.A., as the case may
be, any certificate specified as contemplated by Section 2.3(a). Unless
otherwise specified in such Temporary Global Bearer Security, any such exchange
shall be made free of charge to the beneficial owners of such Temporary Global
Bearer Security, except that a person receiving permanent Securities must bear
the cost of insurance, postage, transportation and the like in the event that
such person does not take delivery of such permanent Securities in person at the
offices of Euroclear or CEDEL S.A.
Until exchanged in full as hereinabove provided, the temporary Securities
of any series shall in all respects be entitled to the same benefits under this
Indenture as permanent Securities of the same series and of like tenor
authenticated and delivered hereunder, except that, unless otherwise specified
as contemplated by Section 2.3(a), interest payable on a temporary global
Security representing a series of Bearer Securities on an Interest Payment Date
for Securities of such series occurring prior to the applicable Exchange Date
shall be payable to Euroclear and CEDEL S.A. on such Interest Payment Date, upon
delivery by Euroclear and CEDEL S.A. to a paying agent outside the United States
of any certificate specified as contemplated by Section 2.3(a), for credit
without further interest on or after such Interest Payment Date to the
respective accounts of the persons who are the beneficial owners of such
Temporary Global Bearer Security on such Interest Payment Date and who have each
delivered to Euroclear or CEDEL S.A., as the case may be, any certificate
specified as contemplated by Section 2.3(a).
Section 2.12 Cancellation.
All Securities or coupons surrendered for payment, redemption, registration
of transfer or exchange, or for credit against any sinking fund payment, shall,
if surrendered to any person other than the Trustee, be delivered to the Trustee
and all Registered Securities and matured coupons so delivered shall be promptly
canceled by it. All Bearer Securities and unmatured coupons so delivered shall
be held by the Trustee and shall be canceled. The Company may at any time
deliver to the Trustee for cancellation any Securities previously authenticated
and delivered hereunder which the Company may have acquired in any manner
whatsoever (including Securities received by the Company in exchange or payment
for other Securities of the Company) and may deliver to the Trustee (or to any
other person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold,
and all Securities so delivered shall be promptly canceled by the Trustee. The
Company may not reissue, or issue new Securities to replace, Securities it has
paid or delivered to the Trustee for cancellation. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided
in this Section, except
24
as expressly permitted in the form of Securities for any particular series or as
permitted by this Indenture. All canceled Securities and coupons held by the
Trustee shall be destroyed by the Trustee in accordance with its customary
procedures and evidence of their destruction delivered to the Company unless the
Company directs, by Company Order, that the Trustee deliver canceled Securities
to the Company.
Section 2.13 Payment of Interest; Interest Rights Preserved.
Unless otherwise provided as contemplated by Section 2.3(a) with respect to
any series of Securities, interest on any Registered Security which is payable,
and is punctually paid or duly provided for, on any Interest Payment Date shall
be paid to the person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest. In case a Bearer Security of any series is surrendered in
exchange for a Registered Security of such series after the close of business
(at an office or agency in a Place of Payment for such series) on any Regular
Record Date and before the opening of business (at such office or agency) on the
next succeeding Interest Payment Date, such Bearer Security shall be surrendered
without the coupon relating to such Interest Payment Date and interest will not
be payable on such Interest Payment Date in respect of the Registered Security
issued in exchange for such Bearer Security, but will be payable only to the
Holder of such coupon when due in accordance with the provisions of this
Indenture.
Any interest on any Registered Security of any series which is payable, but
is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable to the
Holder on the relevant Regular Record Date by virtue of having been such Holder,
and such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (1) or (2) below:
(a) The Company may elect to make payment of any Defaulted Interest to
the persons in whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Registered Security and
the date of the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit of the
persons entitled to such Defaulted Interest as in this Clause provided.
Thereupon the Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 days and not less than 10
days prior to the date of the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such Special Record Date and, in the name
and at the expense of the Company, shall cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder of Registered Securities at his
25
address as it appears in the Security Register, not less than 10 days prior to
such Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed, such
Defaulted Interest shall be paid to the persons in whose names the Securities
(or their respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable pursuant to
the following Clause (2).
(b) The Company may make payment of any Defaulted Interest on the
Registered Securities in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Registered Securities may
be listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant to
this Clause, such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 2.8, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
Section 2.14 Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the person in whose name such Registered Security is registered as the
owner of such Registered Security for the purpose of receiving payment of
Principal of and (except as otherwise specified as contemplated by Section
2.3(a) and subject to Section 2.8 and Section 2.13) interest on such Registered
Security and for all other purposes whatsoever, whether or not such Registered
Security be overdue, and neither the Company, the Trustee nor any agent of the
Company or the Trustee shall be affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining thereto shall
pass by delivery. The Company, the Trustee and any agent of the Company or the
Trustee may treat the bearer of any Bearer Security and the bearer of any coupon
as the absolute owner of such Bearer Security or coupon for the purpose of
receiving payment thereof or on account thereof and for all other purposes
whatsoever, whether or not such Bearer Security or coupon be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the 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 Security in
global form or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
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Section 2.15 Computation of Interest.
Except as otherwise specified as contemplated by Section 2.3(a) for
Securities of any series, (i) interest on any Securities which bear interest at
a fixed rate shall be computed on the basis of a 360-day year comprised of
twelve 30-day months and (ii) interest on any Securities which bear interest at
a variable rate shall be computed on the basis of the actual number of days in
an interest period divided by 360.
ARTICLE III
REDEMPTION
Section 3.1 Right to Redeem; Notices to Trustee.
Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified as contemplated by Section 2.3(a) for Securities of any series) in
accordance with this Article.
In the case of any redemption at the election of the Company of less than
all the Securities of any series, the Company shall, within the time period set
forth below, notify the Trustee in writing of the Redemption Date, the Principal
Amount of and of any other information necessary to identify the Securities of
such series to be redeemed and the Redemption Price (including the information
set forth in clauses (4), (5) and (6) of Section 3.3).
The Company shall give the notice to the Trustee provided for in this
Section 3.1 at least 60 days before the Redemption Date (unless a shorter notice
shall be satisfactory to the Trustee).
Section 3.2 Selection of Securities to Be Redeemed.
Unless otherwise specified as contemplated by Section 2.3(a) with respect
to any series of Securities, if less than all the Securities of any series with
the same issue date, interest rate and Stated Maturity are to be redeemed, the
Trustee shall select the particular Securities to be redeemed by a method the
Trustee considers fair and appropriate, which method may provide for the
selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof) of
the Principal Amount of Registered Securities of such series of a denomination
larger than the minimum authorized denomination for Securities of that series.
The Trustee shall make the selection not more than 60 days before the Redemption
Date from Outstanding Securities of such series not previously called for
redemption. Provisions of this Indenture that apply to Securities called for
redemption also apply to portions of Securities called for redemption. The
Trustee shall notify the Company promptly in writing of the Securities to be
redeemed and, in the case of any portions of Securities to be redeemed, the
principal amount thereof to be redeemed.
27
Section 3.3 Notice of Redemption.
Unless otherwise specified as contemplated by Section 2.3(a) with respect
to any series of Securities, 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, postage prepaid, to each Holder of Securities to be redeemed.
The notice shall identify the Securities (including CUSIP/ISIN numbers) to
be redeemed and shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if fewer than all the Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption, the
Principal Amounts) of the particular Securities to be redeemed;
(d) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security (or portion thereof) to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after said date;
(e) the place or places where such Securities, together in the case
of Bearer Securities with all coupons appertaining thereto, if any, maturing
after the Redemption Date, are to be surrendered for payment of the Redemption
Price; and
(f) that the redemption is for a sinking fund, if such is the case.
A notice of redemption published as contemplated by Section 13.2 need not
identify particular Registered Securities to be redeemed.
At the Company's request, the Trustee shall give the notice of redemption
in the Company's name and at the Company's expense; provided, however, that, in
all cases, the text of such Company notice shall be prepared by the Company.
Section 3.4 Effect of Notice of Redemption.
Once notice of redemption is given, Securities called for redemption become
due and payable on the Redemption Date and at the Redemption Price stated in the
notice, and from and after such date (unless the Company shall default in the
payment of the Redemption Price and accrued interest) such Securities shall
cease to bear interest and the coupons for such interest appertaining to any
Bearer Securities so to be redeemed, except to the extent provided below, shall
be void. Upon surrender of any such Security for redemption in accordance with
said notice, together with all
28
coupons, if any, appertaining thereto maturing after the Redemption Date, such
Security shall be paid by the Company at the Redemption Price, together with
accrued interest to the Redemption Date; provided, however, that installments of
interest on Bearer Securities whose Stated Maturity is on or prior to the
Redemption Date shall be payable only at an office or agency located outside the
United States (except as otherwise provided in Section 4.5) and, unless
otherwise specified as contemplated by Section 2.3(a), only upon presentation
and surrender of coupons for such interest; and provided, further, that, unless
otherwise specified as contemplated by Section 2.3(a), installments of interest
on Registered Securities whose Stated Maturity is on or prior to the Redemption
Date shall be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on the
relevant Regular Record Dates according to their terms and the provisions of
Sections 2.8 and 2.13.
If any Bearer Security surrendered for redemption shall not be accompanied
by all appurtenant coupons maturing after the Redemption Date, such Security may
be paid after deducting from the Redemption Price an amount equal to the face
amount of all such missing coupons, or the surrender of such missing coupon or
coupons may be waived by the Company and a paying agent outside the United
States if there be furnished to the Company, the Trustee and such paying agent
such security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Security shall surrender
to any Paying Agent any such missing coupon in respect of which a deduction
shall have been made from the Redemption Price, such Holder shall be entitled to
receive the amount so deducted; provided, however, that interest represented by
coupons shall be payable only at an office or agency located outside the United
States (except as otherwise provided in Section 4.5) and, unless otherwise
specified as contemplated by Section 2.3(a), only upon presentation and
surrender of those coupons.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the Principal shall, until paid, bear interest from the
Redemption Date at the rate prescribed therefor in the Security.
Section 3.5 Deposit of Redemption Price.
Prior to or on the Redemption Date, the Company shall deposit with the
Paying Agent (or if the Company or a Subsidiary or an Affiliate of either of
them is the Paying Agent, shall segregate and hold in trust) money sufficient to
pay the Redemption Price and (except if the Redemption Date shall be an Interest
Payment Date) accrued interest on, of all Securities to be redeemed on that date
other than Securities or portions of Securities called for redemption which
prior thereto have been delivered by the Company to the Trustee for
cancellation. If such money is then held by the Company in trust and is not
required for such purpose, it shall be discharged from such trust.
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Section 3.6 Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof
or his attorney duly authorized in writing), and upon such surrender, the
Company shall execute and the Trustee shall authenticate and deliver to the
Holder of such Security a new Registered Security or Securities of the same
series and of like tenor, in an authorized denomination as requested by such
Holder, equal in aggregate Principal Amount to and in exchange for the
unredeemed portion of the Principal of the Security surrendered.
ARTICLE IV
COVENANTS
Section 4.1 Payment of Securities.
The Company shall promptly make all payments in respect of each series of
Securities on the dates and in the manner provided in the Securities and any
coupons appertaining thereto and, to the extent not otherwise so provided,
pursuant to this Indenture. An installment of Principal of or interest on the
Securities shall be considered paid on the date it is due if the Trustee or a
Paying Agent (other than the Company or an Affiliate of the Company) holds on
that date funds (in the currency or currencies of payment with respect to such
Securities) designated for and sufficient to pay such installment. Unless
otherwise specified as contemplated by Section 2.3(a) with respect to any series
of Securities, any interest due on Bearer Securities on or before Maturity shall
be payable only upon presentation and surrender of the several coupons for such
interest installments as are evidenced thereby as they severally mature. At the
Company's option, payments of Principal or interest may be made by check or by
transfer to an account maintained by the payee subject, in the case of Bearer
Securities, to the provisions of Section 4.5.
Section 4.2 SEC Reports.
The Company shall file with the Trustee, within 15 days after it files such
annual and quarterly reports, information, documents and other reports with the
SEC, copies of its annual report and of the information, documents and other
reports (or copies of such portions of any of the foregoing as the SEC may by
rules and regulations prescribe) which the Company is required to file with the
SEC pursuant to Section 13 or 15(d) of the Exchange Act. The Company also shall
comply with the other provisions of TIA Section 314(a).
30
Section 4.3 Compliance Certificate.
The Company shall deliver to the Trustee within 120 days after the end of
each fiscal year (beginning with the fiscal year ending on December 31, 1997) an
Officers' Certificate stating whether or not the signers know of any Default
that occurred during such period. If they do, such Officers' Certificate shall
describe the Default and its status.
Section 4.4 Further Instruments And Acts.
Upon request of the Trustee, the Company will execute and deliver such
further instruments and do such further acts as may be reasonably necessary or
proper to carry out more effectively the purposes of this Indenture.
Section 4.5 Maintenance of Office or Agency.
If Securities of a series are issuable only as Registered Securities, the
Company will maintain in each Place of Payment for such series an office or
agency where Securities of that series may be presented or surrendered for
payment, where Securities of that series may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served. If
Securities of a series are issuable as Bearer Securities, the Company will
maintain (A) in the Borough of Manhattan, the City of New York, an office or
agency where any Registered Securities of that series may be presented or
surrendered for payment, where any Registered Securities of that series may be
surrendered for registration of transfer, where Securities of that series may be
surrendered for exchange, purchase or redemption and where notices and demands
to or upon the Company in respect of the Securities of that series and this
Indenture may be served and where Bearer Securities of that series and related
coupons may be presented or surrendered for payment in the circumstances
described in the following paragraph (and not otherwise), (B) subject to any
laws or regulations applicable thereto, in a Place of Payment for that series
which is located outside the United States, an office or agency where Securities
of that series and related coupons may be presented and surrendered for payment
(including payment of any additional amounts payable on Securities of that
series pursuant to Section 4.6), and (C) subject to any laws or regulations
applicable thereto, in a Place of Payment for that series located outside the
United States an office or agency where any Registered Securities of that series
may be surrendered for registration of transfer, where Securities of that series
may be surrendered for exchange and where notices and demands to or upon the
Company in respect of the Securities of that series and this Indenture may be
served. The office of the Trustee, in New York, New York, shall be such office
or agency for all of the aforesaid purposes unless the Company shall maintain
some other office or agency for such purposes and shall give prompt written
notice to the Trustee of the location, and any change in the location, of such
other office or agency. If at any time the Company shall fail to maintain any
such required office or agency in respect of any series of Securities or shall
fail to furnish the Trustee with the address thereof, such presentations and
surrenders of Securities of that series may be made and notices and demands may
be made or served at the address of the Trustee set forth in Section 13.2,
except that Bearer Securities of that series and
31
the related coupons may be presented and surrendered for payment (including
payment of any additional amounts payable on Bearer Securities of that series
pursuant to Section 4.6) at the place specified for that purpose as contemplated
by Section 2.3(a) or, if no such place is specified, at the main office of the
Trustee, and the Company hereby appoints the same as its agent to receive such
respective presentations, surrenders, notices and demands.
No payment of Principal or interest on Bearer Securities shall be made at
any office or agency of the Company in the United States, by check mailed to any
address in the United States, by transfer to an account located in the United
States or upon presentation or surrender in the United States of a Bearer
Security or coupon for payment, even if the payment would be credited to an
account located outside the United States; provided, however, that, if the
Securities of a series are denominated and payable in Dollars, payment of
Principal of and any interest on any such Bearer Security (including any
additional amounts payable on Securities of such series pursuant to Section 4.6)
shall be made at the office of the Company's Paying Agent in the Borough of
Manhattan, The City of New York, if (but only if) payment in Dollars of the full
amount of such Principal, interest or additional amounts, as the case may be, at
all offices or agencies outside the United States maintained for such purpose by
the Company in accordance with this Indenture is illegal or effectively
precluded by exchange controls or other similar restrictions.
The Company may also from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in accordance with the requirements set forth above for Securities of any series
for such purposes. The Company will give prompt written notice to the Trustee
of any such designation or rescission and of any change in the location of any
such other office or agency.
Section 4.6 Additional Amounts.
If specified as contemplated by Section 2.3(a), the Securities of a series
may provide for the payment of additional amounts, and in such case, the Company
will pay to the Holder of any Security of such series or any coupon appertaining
thereto additional amounts as provided therein. Wherever in this Indenture there
is mentioned, in any context, the payment of the Principal of or any interest
on, or in respect of, any Security of any series or payment of any related
coupon, such mention shall be deemed to include mention of the payment of
additional amounts provided for in this Section to the extent that, in such
context, additional amounts are, were or would be payable in respect thereof
pursuant to the provisions of this Section and express mention of the payment of
additional amounts (if applicable) in any provisions hereof shall not be
construed as excluding additional amounts in those provisions hereof where such
express mention is not made.
If the Securities of a series provide for the payment of additional
amounts, at least 10 days prior to the first Interest Payment Date with respect
to that series of Securities (or if the Securities of that series will not bear
interest prior to Maturity, the first day on which payment of Principal is
32
made), and at least 10 days prior to each date of payment of Principal and any
interest if there has been any change with respect to the matters set forth in
the below-mentioned Officers' Certificate, the Company will furnish the Trustee
and the Company's Paying Agent or Paying Agents, if other than the Trustee, with
an Officers' Certificate instructing the Trustee and such Paying Agent or Paying
Agents whether such payment of Principal of and any interest on the Securities
of that series shall be made to Holders of Securities of that series or any
related coupons who are United States Aliens without withholding for or on
account of any tax, assessment or other governmental charge described in the
Securities of that series. If any such withholding shall be required, then such
Officers' Certificate shall specify by country the amount, if any, required to
be withheld on such payments to such Holders of Securities or coupons and the
Company will pay to the Trustee or such Paying Agent the additional amounts
required by the Securities of such series and this Section. The Company
covenants to indemnify the Trustee and any Paying Agent for, and to hold them
harmless against, any loss, liability or expense reasonably incurred without
negligence or bad faith on their part arising out of or in connection with
actions taken or omitted by any of them in reliance on any Officers' Certificate
furnished pursuant to this Section.
ARTICLE V
SUCCESSOR CORPORATION
Section 5.1 When Company May Merge or Transfer Assets.
The Company, in a single transaction or through a series of related
transactions, shall not consolidate with or merge with or into any other person
or convey or transfer (by lease, assignment, sale or otherwise) all or
substantially all of its properties and assets to another person or group of
affiliated persons, unless:
(a) either (1) the Company shall be the continuing corporation or (2)
the person (if other than the Company) formed by such consolidation or into
which the Company is merged or to which all or substantially all of the
properties and assets of the Company are conveyed or transferred (i) shall be a
corporation, partnership, limited liability company or trust organized and
validity existing under the laws of the United States or any state thereof or
the District of Columbia and (ii) shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form satisfactory
to the Trustee, all of the obligations of the Company under the Securities and
this Indenture;
(b) immediately after giving effect to such transaction and the
assumption contemplated by clause (a)(ii), above, no Default or Event of Default
shall have occurred and be continuing; and
(c) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger, conveyance or transfer and, if a supplemental indenture is required in
connection with such transaction, such supplemental
33
indenture, comply with this Article and that all conditions precedent herein
provided for relating to such transaction have been satisfied.
For purposes of the foregoing, the conveyance or transfer (by lease,
assignment, sale or otherwise) of the properties and assets of one or more
Subsidiaries (other than to the Company or another wholly owned Subsidiary),
which, if such assets were owned by the Company, would constitute all or
substantially all of the properties and assets of the Company, shall be deemed
to be the conveyance or transfer of all or substantially all of the properties
and assets of the Company.
The successor person formed by such consolidation or into which the Company
is merged or the successor person to which such conveyance or transfer is made
shall succeed to, and be substituted for, and may exercise every right and power
of the Company under this Indenture with the same effect as if such successor
had been named as the Company herein; and thereafter, except in the case of a
lease of its properties and assets substantially as an entirety, the Company
shall be discharged from all obligations and covenants under this Indenture, the
Securities and coupons. The Trustee shall enter into a supplemental indenture
to evidence the succession and substitution of such successor person and such
discharge and release of the Company.
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.1 Events of Default.
Unless otherwise specified as contemplated by Section 2.3(a) with respect
to any series of securities, an "Event of Default" occurs, with respect to each
series of the Securities individually, if:
(a) the Company defaults in (a) the payment of the principal of any
Security of such series at its Maturity or (b) the payment of any interest upon
any Security of such series when the same becomes due and payable and
continuance of such default for a period of 30 days;
(b) the Company fails to comply with any of its agreements in the
Securities or this Indenture (other than those referred to in clause (1) above
and other than a covenant or warranty a default in whose performance or whose
breach is elsewhere in this Section specifically dealt with or which has been
expressly included in this Indenture solely for the benefit of a series of
Securities other than such series) and such failure continues for 60 days after
receipt by the Company of a Notice of Default;
(c) there shall have been the entry by a court of competent
jurisdiction of (a) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Bankruptcy Law or (b) a
decree or order adjudging the Company bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment or composition of or in respect of the
Company
34
under any applicable federal or state law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator (or other similar official) of the
Company or of any substantial part of its property, or ordering the wind up or
liquidation of its affairs, and any such decree or order for relief shall
continue to be in effect, or any such other decree or order shall be unstayed
and in effect, for a period of 60 consecutive days;
(d) (a) the Company commences a voluntary case or proceeding under any
applicable Bankruptcy Law or any other case or proceeding to be adjudicated
bankrupt or insolvent, (b) the Company consents to the entry of a decree or
order for relief in respect of the Company in an involuntary case or proceeding
under any applicable Bankruptcy Law or to the commencement of any bankruptcy or
insolvency case or proceeding against it, (c) the Company files a petition or
answer or consent seeking reorganization or substantially comparable relief
under any applicable federal state law, (d) the Company (x) consents to the
filing of such petition or the appointment of, or taking possession by, a
custodian, receiver, liquidator, assignee, trustee, sequestrator or similar
official of the Company or of any substantial part of its property, (y) makes an
assignment for the benefit of creditors or (z) admits in writing its inability
to pay its debts generally as they become due or (e) the Company takes any
corporate action in furtherance of any such actions in this clause (4); or
(e) any other Event of Default provided with respect to Securities of
that series.
"Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Code, or any similar Federal
or state law for the relief of debtors. "Custodian" means any receiver,
trustee, assignee, liquidator, custodian or similar official under any
Bankruptcy Law.
A Default under clause (2) above is not an Event of Default until the
Trustee notifies the Company, or the Holders of at least 25% in aggregate
Principal Amount of the Outstanding Securities of such series notify the Company
and the Trustee, of the Default and the Company does not cure such Default
within the time specified in clause (2) above after receipt of such notice. Any
such notice must specify the Default, demand that it be remedied and state that
such notice is a "Notice of Default."
Section 6.2 Acceleration.
If an Event of Default with respect to Securities of any series at the time
Outstanding (other than an Event of Default specified in Section 6.1(3) or (4))
occurs and is continuing, the Trustee by notice to the Company, or the Holders
of at least 25% in aggregate Principal Amount of the Outstanding Securities of
that series by notice to the Company and the Trustee, may declare the Principal
Amount (or, if any of the Securities of that series are Discount Securities,
such portion of the Principal Amount of such Securities as may be specified in
the terms thereof) of all the Securities of that series to be immediately due
and payable. Upon such a declaration, such Principal (or portion thereof) shall
be due and payable immediately. If an Event of Default specified in Section
6.1(3) or (4) occurs and is continuing, the Principal (or portion thereof) of
all the Securities of that series shall
35
become and be immediately due and payable without any declaration or other act
on the part of the Trustee or any Securityholders. The Holders of a majority in
aggregate Principal Amount of the Outstanding Securities of any series, by
notice to the Trustee (and without notice to any other Securityholder) may
rescind an acceleration with respect to that series and its consequences if the
rescission would not conflict with any judgment or decree and all existing
Events of Default with respect to Securities of such series have been cured or
waived except nonpayment of the Principal (or portion thereof) of Securities of
such series that has become due solely as a result of such acceleration and if
all amounts due to the Trustee under Section 7.7 have been paid. No such
rescission shall affect any subsequent Default or impair any right consequent
thereto.
Section 6.3 Other Remedies.
If an Event of Default with respect to a series of Outstanding Securities
occurs and is continuing, the Trustee may pursue any available remedy to (a)
collect the payment of the whole amount then due and payable on such Securities
for Principal and interest, with interest upon the overdue Principal and, to the
extent that payment of such interest shall be legally enforceable, upon overdue
installments of interest from the date such interest was due, at the rate or
rates prescribed therefor in such Securities and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including amounts due the Trustee under Section 7.7 or (b) enforce
the performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if the Trustee does not possess
any of the Securities or coupons or does not produce any of the Securities or
coupons 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. No remedy is exclusive of any other
remedy. All available remedies are cumulative.
Section 6.4 Waiver of Past Defaults.
The Holders of a majority in aggregate Principal Amount of the Outstanding
Securities of any series, by notice to the Trustee (and without notice to any
other Securityholder), may on behalf of the Holders of all the Securities of
such series and any related coupons waive an existing Default with respect to
such series and its consequences except (1) an Event of Default described in
Section 6.1(1) with respect to such series or (2) a Default in respect of a
provision that under Section 9.2 cannot be amended without the consent of the
Holder of each Outstanding Security of such series affected. When a Default is
waived, it is deemed cured, but no such waiver shall extend to any subsequent or
other Default or impair any consequent right.
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Section 6.5 Control by Majority.
The Holders of a majority in aggregate Principal Amount of the Outstanding
Securities of any series may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or of exercising any trust or
power conferred on the Trustee with respect to the Securities of such series.
However, the Trustee may refuse to follow any direction that conflicts with law
or this Indenture or that the Trustee determines in good faith is unduly
prejudicial to the rights of other Securityholders or would involve the Trustee
in personal liability.
Section 6.6 Limitation on Suits.
A Holder of any Security of any series or any related coupons may not
pursue any remedy with respect to this Indenture or the Securities unless:
(a) the Holder gives to the Trustee written notice stating that an
Event of Default with respect to the Securities of that series is continuing;
(b) the Holders of at least 25% in aggregate Principal Amount of the
Outstanding Securities of that series make a written request to the Trustee to
pursue the remedy;
(c) such Holder or Holders offer to the Trustee reasonable security or
indemnity against any loss, liability or expense satisfactory to the Trustee;
(d) the Trustee does not comply with the request within 60 days after
receipt of the notice, the request and the offer of security or indemnity; and
(e) the Holders of a majority in aggregate Principal Amount of the
Outstanding Securities of that series do not give the Trustee a direction
inconsistent with such request during such 60-day period.
A Securityholder may not use this Indenture to prejudice the rights of any
other Securityholder or to obtain a preference or priority over any other
Securityholder.
Section 6.7 Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right, which is
absolute and unconditional, of any Holder of any Security or coupon to receive
payment of the Principal of and (subject to Section 2.13) interest on such
Security or payment of such coupon on the Stated Maturity or Maturities
expressed in such Security or coupon (or, in the case of redemption, on the
Redemption Date) held by such Holder, on or after the respective due dates
expressed in the Securities or any Redemption Date, or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected adversely without the consent of each such Holder.
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Section 6.8 Collection Suit by Trustee.
If an Event of Default described in Section 6.1(1) with respect to
Securities of any series occurs 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 owing with respect to such series of Securities and the
amounts provided for in Section 7.7.
Section 6.9 Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the Principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue Principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of Principal and
interest owing and unpaid in respect of the Securities and to file such other
papers or documents as may be necessary or advisable in order to have the claims
of the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and any other
amount due the Trustee under Section 7.7) and of the Holders of Securities and
coupons allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any Custodian,
receiver, assignee, trustee, liquidator, sequestrator or similar official in any
such judicial proceeding is hereby authorized by each Holder of Securities and
coupons to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders of
Securities and coupons, to pay the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.7.
Nothing herein contained shall be deemed to authorize the Trustee or the
holders of Senior Indebtedness to authorize or consent to or accept or adopt on
behalf of any Holder of a Security or coupon any plan of reorganization,
arrangement, adjustment or composition affecting the Securities or coupons or
the rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Holder of a Security or coupon in any such proceeding.
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Section 6.10 Priorities.
If the Trustee collects any money pursuant to this Article 6, it shall pay
out the money in the following order and, in case of the distribution of such
money on account of Principal or interest, upon presentation of the Securities
or coupons, or both, as the case may be, and the notation thereon of the payment
if only partially paid and upon surrender thereof if fully paid:
FIRST: to the Trustee for amounts due under Section 7.7;
SECOND: to holders of Senior Indebtedness as provided in Article XII;
THIRD: to Securityholders for amounts due and unpaid for the Principal
and interest on the Securities and interest evidenced by coupons in respect of
which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts due and
payable on such Securities and coupons for Principal and interest, respectively;
and
FOURTH: the balance, if any, to the Company.
The Trustee may fix a record date and payment date for any payment to
Securityholders pursuant to this Section 6.10. At least 15 days before such
record date, the Company shall mail to each Securityholder and the Trustee a
notice that states the record date, the payment date and amount to be paid.
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
(other than the Trustee) 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 6.11 does not apply to a suit by the Trustee, a suit by
a Holder pursuant to Section 6.7 or a suit by Holders of more than 10% in
aggregate Principal Amount of the Outstanding Securities of any series, or to
any suit instituted by any Holder of any Security or coupon for the enforcement
of the payment of the Principal of or interest on any Security or the payment of
any coupon on or after the Stated Maturity or Maturities expressed in such
Security or coupon (or, in the case of redemption, on or after the Redemption
Date).
Section 6.12 Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law or any usury or
other law wherever enacted, now or at any time hereafter in force,
39
which may affect the covenants or the performance of this Indenture; and the
Company (to the extent that it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
had been enacted.
ARTICLE VII
TRUSTEE
Section 7.1 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise the rights and powers vested in it by this Indenture and use the
same degree of care and skill in its 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 with respect
to Securities of any series:
(i) the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture. However,
with respect to any certificates or opinions specifically required to be
furnished to the Trustee, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements of
this Indenture.
(iii) 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 (c) does not limit the effect of
paragraph (b) of this Section 7.1.;
(2) The Trustee shall not be liable for any error of
judgment made in good faith by a Trust 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
40
by it pursuant to Section 6.5 or exercising any trust or power
conferred upon the Trustee under this Indenture.
(c) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.1.
(d) The Trustee may refuse to perform any duty or exercise any right
or power or extend or risk its own funds or otherwise incur any financial
liability unless it receives indemnity satisfactory to it against any loss,
liability or expense.
(e) Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall not be liable for any interest on any money received by it except as the
Trustee may otherwise agree with the Company.
Section 7.2 Rights of Trustee.
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.
(a) Before the Trustee acts or refrains from acting, it may 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 such
Officers' Certificate or Opinion of Counsel.
(b) The Trustee may act through agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care.
(c) Subject to the provisions of Section 7.1 (c), 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.
(d) Subject to the provisions Section 7.1, the Trustee may rely and
shall be protected in acting or refraining from acting upon any resolution,
Officers' Certificate, Opinion of Counsel (or both), Company Order or any other
certificate, statement, instrument, opinion report, notice, request, consent,
order, bond, debenture, note, coupon, security or other paper believed to be
genuine and to have been signed or presented by the proper party or parties.
(e) Any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by an Officers' Certificate unless other
evidence in respect thereof be herein specifically prescribed); and any
resolution of the Board of Directors may be evidenced to the Trustee by a copy
thereof certified by the secretary or an assistant secretary of the Company.
41
(f) The Trustee may consult with counsel and any written advice or
Opinion of Counsel shall, subject to the provisions of Section 7.1, be full and
complete authorization and protection in respect of any action taken, suffered
or omitted to be taken by it hereunder in good faith and in reliance thereon in
accordance with such advice or Opinion of Counsel.
(g) The Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
which might be incurred therein or thereby.
(h) Prior to the occurrence of an Event of Default hereunder and after
the curing or waiving of all Events of Default, the Trustee shall not be bound
to make any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request, consent,
order, approval, appraisal, bond, debenture, note, coupon, security or other
paper or document unless requested in writing to do so by the Holders of not
less than a majority in the aggregate principal amount of the Securities of such
series then Outstanding; provided, that, if the payment within a reasonable time
to the Trustee of the costs, expenses or liabilities likely to be incurred by it
in the making of any such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by the terms of
this Indenture, the Trustee may require reasonable indemnity against such
expense or liabilities as a condition to proceeding; the reasonable expense of
every such investigation shall be paid by the Company or, if paid by the Trustee
or any predecessor trustee, shall be repaid by the Company upon demand.
(i) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys not regularly in its employ and the Trustee shall not be responsible
for any misconduct or negligence on the part of any such agent or attorney
appointed with due care by it hereunder.
Section 7.3 Individual Rights of Trustee, Etc.
The Trustee in its individual or any other capacity may become the owner or
pledgee of Securities or coupons and may otherwise deal with the Company or its
Affiliates with the same rights it would have if it were not Trustee. Any
Paying Agent, Registrar or co-registrar or any other agent of the Company may do
the same with like rights. However, the Trustee must comply with Sections 7.10
and 7.11.
Section 7.4 Trustee's Disclaimer.
The recitals contained herein and in the Securities, except the Trustee's
certificate of authentication, shall be taken as the statements of the Company,
and the Trustee assumes no responsibility for the correctness of the same. The
Trustee makes no representation as to the validity or adequacy of this Indenture
or the Securities or coupons. The Trustee shall not be accountable for
42
the Company's use of the proceeds from the Securities and, shall not be
responsible for any statement in the registration statement for the Securities
under the Securities Act of 1933, as amended, or in the Indenture or the
Securities or any coupons (other than its certificate of authentication) or for
the determination as to which beneficial owners are entitled to receive any
notices hereunder.
Section 7.5 Notice of Defaults.
If a Default with respect to the Securities of any series occurs and is
continuing and if it is known to the Trustee, the Trustee shall give to each
Holder of Securities of such series notice of such Default in the manner set
forth in TIA Section 315(b) within 90 days after it occurs. Except in the case
of a Default described in Section 6.1(1) with respect to any Security of such
series or a Default in the payment of any sinking fund installment with respect
to any Security of such series, the Trustee may withhold the notice if and so
long as a committee of its Trust Officers in good faith determines that
withholding the notice is in the interests of the Holders of Securities of such
series.
Section 7.6 Reports by Trustee to Holders.
Within 60 days after each May 15 beginning with the May 15 following the
date of this Indenture, the Trustee shall mail to each Holder of Securities a
brief report dated as of such May 15 that complies with TIA Section 313(a). The
Trustee also shall comply with TIA Section 313(b) and (c).
A copy of each report at the time of its mailing to Holders of Securities
shall be filed with the SEC and each stock exchange on which the Securities of
that series may be listed. The Company agrees to notify the Trustee whenever
the Securities of a particular series become listed on any stock exchange and of
any delisting thereof.
Section 7.7 Compensation And Indemnity.
The Company agrees:
(a) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust);
(b) to reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the reasonable
compensation and the expenses, advances and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
43
(c) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration of this
trust, including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers or
duties hereunder.
To secure the Company's payment obligations in this Section 7.7, the
Trustee shall have a lien prior to the Securities and any coupons on all money
or property held or collected by the Trustee, except that held in trust to pay
the Principal of or interest, if any, on particular Securities or for the
payment of particular coupons.
The Company's payment obligations pursuant to this Section 7.7 shall
survive the discharge of this Indenture. When the Trustee incurs expenses after
the occurrence of a Default specified in Section 6.1(3) or (4), the expenses are
intended to constitute expenses of administration under any Bankruptcy Law.
Section 7.8 Replacement of Trustee.
The Trustee may resign by so notifying the Company; provided, however, no
such resignation shall be effective until a successor Trustee has accepted its
appointment pursuant to this Section 7.8. The Holders of a majority in
aggregate Principal Amount of the Outstanding Securities of any series at the
time outstanding may remove the Trustee with respect to the Securities of such
series by so notifying the Trustee and may appoint a successor Trustee. The
Company shall remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged bankrupt or insolvent;
(c) a receiver or public officer takes charge of the Trustee or its
property; or
(d) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason, with respect to the Securities of one or more series,
the Company shall promptly appoint, by resolution of its Board of Directors, a
successor Trustee with respect to the Securities of that or those series (it
being understood that any such successor Trustee may be appointed with respect
to the Securities of one or more or all of such series and that at any time
there shall be only one Trustee with respect to the Securities of any series).
In the case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such 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 shall
44
become effective and the successor Trustee shall have all the rights, powers and
duties of the Trustee under this Indenture. The successor Trustee shall mail a
notice of its succession to Holders of Securities of the particular series with
respect to which such successor Trustee has been appointed. The retiring Trustee
shall promptly transfer all property held by it as Trustee to the successor
Trustee, subject to the lien provided for in Section 7.7.
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 each successor Trustee with respect to the Securities of one or more
series shall execute and deliver an indenture supplemental hereto wherein each
successor Trustee shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates, (2) if the retiring Trustee
is not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees as co-Trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, 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; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates, subject,
nevertheless, to its lien, if any, provided for in Section 7.7.
If a successor Trustee with respect to the Securities of any series does
not take office within 30 days after the retiring Trustee resigns or is removed,
the retiring Trustee, the Company or the Holders of a majority in aggregate
Principal Amount of the Outstanding Securities of such series at the time
outstanding may petition any court of competent jurisdiction for the appointment
of a successor Trustee with respect to the Securities of such series.
If the Trustee fails to comply with Section 7.10, any Holder of a Security
of such series may petition any court of competent jurisdiction for the removal
of such Trustee and the appointment of a successor Trustee.
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Section 7.9 Successor Trustee by Merger.
If the Trustee consolidates with, merges or converts into, or transfers all
or substantially all its corporate trust business or assets to, another
corporation, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee.
Section 7.10 Eligibility; Disqualification.
The Trustee shall at all times satisfy the requirements of TIA Section
310(a)(1) and 310(a)(5). The Trustee shall have a combined capital and surplus
of at least $50,000,000 as set forth in its most recent published annual report
of condition. The Trustee shall comply with TIA Section 310(b), including the
optional provision permitted by the second sentence of TIA Section 310(b)(9). In
determining whether the Trustee has conflicting interests as defined in TIA
Section 310(b)(1), the provisions contained in the proviso to TIA Section
310(b)(1) shall be deemed incorporated herein.
Section 7.11 Preferential Collection of Claims Against Company.
The Trustee shall comply with 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 therein.
ARTICLE VII
SATISFACTION AND DISCHARGE
Section 8.1 Discharge of Liability on Securities.
Except as otherwise contemplated by Section 2.3(a), when (a) the Company
delivers to the Trustee all Outstanding Securities or all Outstanding Securities
of any series, as the case may be, theretofore authenticated and delivered and
all coupons, if any, appertaining thereto (other than (i) coupons appertaining
to Bearer Securities surrendered for exchange for Registered Securities and
maturing after such exchange, whose surrender is not required or has been waived
as provided in Section 2.8, (ii) Securities or Securities of such series, as the
case may be, and coupons, if any, which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 2.9, (iii) coupons, if
any, appertaining to Securities or Securities of such series, as the case may
be, called for redemption and maturing after the relevant Redemption Date, whose
surrender has been waived as provided in Section 3.4, and (iv) Securities or
Securities of such series, as the case may be, and coupons, if any, for whose
payment money has theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or discharged from
such trust, as provided in Section 2.4) for cancellation or (b) all Outstanding
Securities have become due and payable and the Company deposits with the Trustee
cash sufficient to pay at Stated Maturity the Principal Amount of all Principal
of and interest on Outstanding Securities or all Outstanding Securities of such
series (other than Securities replaced pursuant to Section 2.9), and
46
if in either case the Company pays all other sums payable hereunder by the
Company, then this Indenture shall, subject to Section 7.7, cease to be of
further effect as to all Outstanding Securities or all Outstanding Securities of
any series, as the case may be. The Trustee shall join in the execution of a
document prepared by the Company acknowledging satisfaction and discharge of
this Indenture on demand of the Company accompanied by an Officers' Certificate
and Opinion of Counsel and at the cost and expense of the Company.
Section 8.2 Repayment to The Company.
The Trustee and the Paying Agent shall return to the Company on Company
Request any money held by them for the payment of any amount with respect to the
Securities that remains unclaimed for two years; provided, however, that the
Trustee or such Paying Agent, before being required to make any such return, may
at the expense and direction of the Company cause to be published once in an
Authorized Newspaper in each Place of Payment of or mail to each such Holder
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication
or mailing, any unclaimed money then remaining xxxx be returned to the Company.
After return to the Company, Holders entitled to the money must look to the
Company for payment as general creditors unless an applicable abandoned property
law designates another person.
Section 8.3 Option to Effect Defeasance or Covenant Defeasance.
Unless otherwise specified as contemplated by Section 2.3(a) with respect
to Securities of a particular series, the Company, may at its option, by Board
Resolution, at any time, with respect to any series of Securities, elect to have
either Section 8.4 or Section 8.5 be applied to all of the outstanding
Securities of any series (the "Defeased Securities"), upon compliance with the
conditions set forth below in Article VIII.
Section 8.4 Defeasance And Discharge.
Upon the Company's exercise under Section 8.3 of the option applicable to
this Section 8.2, the Company shall be deemed to have been discharged from its
obligations with respect to the Defeased Securities on the date the conditions
set forth below are satisfied (hereinafter "Defeasance"). For this purpose, such
defeasance means that the Company shall be deemed to have paid and discharged
the entire indebtedness represented by the defeased Securities, which shall
thereafter be deemed to be "Outstanding" only for the purposes of Sections 2.4,
2.5,2.6, 2.9, 2.11, 2.12, 4.1, 4.5, 6.6, 6.7, 7.7, 7.8 and 8.2 of this Indenture
and to have satisfied all its other obligations under such series of Securities
and this Indenture insofar as such series of Securities are concerned (and the
Trustee, at the expense of the Company, and, upon written request, shall execute
proper instruments acknowledging the same). Subject to compliance with this
Article VIII, the Company may exercise its option under this Section 8.4
notwithstanding the prior exercise of its option under Section 8.5 with respect
to a series of Securities.
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Section 8.5 Covenant Defeasance.
Upon the Company's exercise under Section 8.3 of the option applicable this
Section 8.5, the Company shall be released from its obligations under Sections
4.2 and 4.3 and Article V and such other provisions as may be provided as
contemplated by Section 2.3(a) with respect to Securities of a particular series
and with respect to the Defeased Securities on and after the date the conditions
set forth below are satisfied (hereinafter "Covenant Defeasance"), and the
Defeased Securities shall thereafter be deemed to be not "Outstanding" for the
purposes of any direction, waiver, consent or declaration or act of Holders (and
the consequences if any thereof) in connection with such covenants, but shall
continue to be deemed "Outstanding" for all other purposes hereunder. For this
purpose, such covenant defeasance means that, with respect to the Defeased
Securities, the Company may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such Section or
Article, whether directly or indirectly, by reason of any reference elsewhere
herein to any such Section or Article or by reason of any reference in any such
Section or Article to any other provisions herein or in any other document and
such omission to comply shall not constitute a Default or an Event of Default
under Section 6.1 but, except as specified above, the remainder of this
Indenture and such Defeased Securities shall be unaffected thereby.
Section 8.6 Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section 8.4
or Section 8.5 to a series of outstanding Securities.
(a) The Company shall have irrevocably deposited with the Trustee, in
trust, (i) sufficient funds in the currency or currency unit in which the
Securities of such series are denominated to pay the Principal of and interest
to Stated Maturity (or redemption) on, the Debt Securities of such series, or
(ii) such amount of direct obligations of, or obligations the principal of and
interest on which are fully guaranteed by, the government which issued the
currency in which the Securities of such series are denominated, and which are
not subject to prepayment, redemption or call, as will, together with the
predetermined and certain income to accrue thereon without consideration of any
reinvestment thereof, be sufficient to pay when due the Principal of, and
interest to Stated Maturity (or redemption) on, the Debt Securities of such
series.
(b) The Company shall (i) have delivered an opinion of counsel that
the Holders of the Securities of such series will not recognize income, gain or
loss for United States Federal income tax purposes as a result of such
defeasance, and will be subject to tax in the same manner as if no defeasance
and discharge or covenant defeasance, as the case may be, had occurred or (ii)
in the case of an election under Section 8.4 the Company shall have delivered to
the Trustee an Opinion of Counsel to the effect that (A) the Company has
received from, or there has been published by, the Internal Revenue Service a
ruling or (B) since the date this Indenture was first executed, there has been a
change in the applicable federal income tax law, in either case to the effect
that, and based thereon such Opinion of Counsel in the United States shall
confirm that, the holders
48
of Outstanding Securities of that particular series will not recognize income,
gain or loss for federal income tax purposes as a result of such defeasance.
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.1 Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders of Securities or coupons, the Company
and the Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to the Trustee, for any of
the following purposes:
(a) to evidence the succession of another corporation to the Company
and the assumption by any such successor of the covenants of the Company herein
and in the Securities; or
(b) to add to the covenants, agreements and obligations of the Company
for the benefit of the Holders of all of the Securities or any series thereof,
or to surrender any right or power herein conferred upon the Company; or
(c) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registerable as to Principal, to change or
eliminate any restrictions (including restrictions relating to payment in the
United States) on the payment of Principal of or any premium or interest on
Bearer Securities, to permit Bearer Securities to be issued in exchange for
Registered Securities, to permit Bearer Securities to be issued in exchange for
Bearer Securities of other authorized denominations or to permit the issuance of
Securities in uncertificated form; or
(d) to establish the form or terms of Securities of any series and any
related coupons as permitted by Sections 2.1 and 2.3(a), respectively; or
(e) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of Section 7.8;
or
(f) to cure any ambiguity, defect or inconsistency; or
(g) to add to, change or eliminate any of the provisions of this
Indenture (which addition, change or elimination may apply to one or more series
of Securities), provided that any such addition, change or elimination shall
neither (A) apply to any Security of any series created prior to the execution
of such supplemental indenture and entitled to the benefit of such provision nor
(B) modify the rights of the Holder of any such Security with respect to such
provision; or
49
(h) to secure the Securities; or
(i) to make any other change that does not adversely affect the rights
of any Securityholder.
Section 9.2 Supplemental Indentures With Consent of Holders.
With the written consent of the Holders of at least a majority in aggregate
Principal Amount of the Outstanding Securities of each series affected by such
supplemental indenture, the Company and the Trustee may amend this Indenture or
the Securities of any series or may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of the Securities of such
series and any related coupons under this Indenture; provided, however, that no
such amendment or supplemental indenture shall, without the consent of the
Holder of each Outstanding Security affected thereby:
(a) change the Stated Maturity of the Principal of, or any installment
of Principal or interest on, any such Security, or reduce the Principal Amount
thereof or the rate of interest thereon or any premium payable upon redemption
thereof or reduce the amount of Principal of any such Discount Security that
would be due and payable upon a declaration of acceleration of maturity thereof
pursuant to Section 6.2, or change the Place of Payment, or change the coin or
currency in which, any Principal of, or any installment of interest on, any such
Security is payable, or impair the right to institute suit for the enforcement
of any such payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date);
(b) reduce the percentage in Principal Amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any such
amendment or supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) with respect to the
Securities of such series provided for in this Indenture;
(c) make any change in the terms of the Subordination of the
Securities in a manner adverse to the Holders of any series of outstanding
Securities; or
(d) modify any of the provisions of this Section, Section 6.4 or 6.7,
except to increase the percentage of Outstanding Securities of such series
required for such actions to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the Holder of each
Outstanding Security affected thereby.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with
50
respect to such covenant or other provision, shall be deemed not to affect the
rights under this Indenture of the Holders of Securities of any other series.
It shall not be necessary for the consent of the Holders under this Section
9.2 to approve the particular form of any proposed amendment or supplemental
indenture, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment or supplemental indenture under this Section 9.2 becomes
effective, the Company shall mail to each Holder of the particular Securities
affected thereby a notice briefly describing the amendment.
Section 9.3 Compliance With Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall comply
with the TIA as then in effect.
Section 9.4 Revocation And Effect of Consents, Waivers And Actions.
Until an amendment or waiver with respect to a series of Securities becomes
effective, a consent to it or any other action by a Holder of a Security of that
series hereunder is a continuing consent by the Holder and every subsequent
Holder of that Security or portion of that Security that evidences the same
obligation as the consenting Holder's Security, even if notation of the consent,
waiver or action is not made on the Security. However, any such Holder or
subsequent Holder may revoke the consent, waiver or action as to such Holder's
Security or portion of the Security if the Trustee receives the notice of
revocation before the Company or an agent of the Company certifies to the
Trustee that the consent of the requisite aggregate Principal Amount of the
Securities of that series has been obtained. After an amendment, waiver or
action becomes effective, it shall bind every Holder of Securities of that
series.
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Holders entitled to consent to any amendment or
waiver with respect to a series of Securities. If a record date is fixed, then
notwithstanding the first two sentences of the immediately preceding paragraph,
those persons who were Holders of Securities of that series at such record date
(or their duly designated proxies), and only those persons, shall be entitled to
revoke any consent previously given, whether or not such persons continue to be
Holders after such record date. No such consent shall be valid or effective for
more than 90 days after such record date.
Section 9.5 Notation on or Exchange of Securities.
Securities of any series authenticated and delivered after the execution of
any supplemental indenture with respect to such series pursuant to this Article
may, and shall if required by the Trustee, bear a notation in form approved by
the Trustee as to any matter provided for in such supplemental indenture. If
the Company shall so determine, new Securities of such series so
51
modified as to conform, in the opinion of the Trustee and the Board of
Directors, to any such supplemental indenture may be prepared and executed by
the Company and authenticated and delivered by the Trustee in exchange for
outstanding Securities of that series.
Section 9.6 Trustee to Sign Supplemental Indentures.
The Trustee shall sign any supplemental indenture authorized pursuant to
this Article 9 if the amendment does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. If it does, the Trustee may, but need
not, sign it. In signing such amendment, the Trustee shall be entitled to
receive, and (subject to the provisions of Section 7.1) shall be fully protected
in relying upon, an Officers' Certificate and an Opinion of Counsel stating that
such amendment is authorized or permitted by this Indenture.
Section 9.7 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby, except to the extent otherwise set forth thereon.
ARTICLE X
SINKING FUNDS
Section 10.1 Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of a series, except as otherwise specified as
contemplated by Section 2.3(a) for Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "Mandatory Sinking Fund
Payment," and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "Optional Sinking
Fund Payment." If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 10.2. Each sinking fund payment shall be applied to the redemption
of Securities of any series as provided for by the terms of the Securities of
such series.
Section 10.2 Satisfaction of Sinking Fund Payments With Securities.
The Company (1) may deliver Outstanding Securities of a series with the
same issue date, interest rate and Stated Maturity (other than any previously
called for redemption), together in the case of any Bearer Securities of such
series with the same issue date, interest rate and Stated
52
Maturity with all unmatured coupons appertaining thereto, and (2) may apply as a
credit Securities of a series with the same issue date, interest rate and Stated
Maturity which have been redeemed either at the election of the Company pursuant
to the terms of such Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Securities, in each case in
satisfaction of all or any part of any mandatory sinking fund payment with
respect to the Securities of such series with the same issue date, interest rate
and Stated Maturity; provided that such Securities have not been previously so
credited. Such Securities shall be received and credited for such purpose by the
Trustee at the Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such sinking fund
payment shall be reduced accordingly.
Section 10.3 Redemption of Securities For Sinking Fund.
Not less than 60 days (or such shorter period as shall be acceptable to the
Trustee) prior to each sinking fund payment date for any series of Securities,
the Company will deliver to the Trustee an Officers' Certificate specifying the
amount of the next ensuing sinking fund payment for that series pursuant to the
terms of that series, the portion thereof, if any, which is to be satisfied by
payment of cash and the portion thereof, if any, which is to be satisfied by
delivering and crediting Securities of that series pursuant to Section 10.2 and
will also deliver to the Trustee any Securities to be so delivered. Not less
than 30 days before each such sinking fund payment date the Trustee shall select
the Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 3.2 and cause notice of the redemption thereof to be given
in the name of and at the expense of the Company in the manner provided in
Section 3.3. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections 3.4
and 3.6.
ARTICLE XI
ACTIONS OF HOLDERS OF SECURITIES
Section 11.1 Purposes For Which Meetings May Be Called.
A meeting of Holders of Securities of any series may be called at any time
and from time to time pursuant to this Article to make, give or take any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be made, given or taken by Holders of
Securities of such series.
Section 11.2 Call, Notice And Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 11.1, to be held
at such time and at such place in the Borough of Manhattan, The City of New York
or, for a series of Securities issued as Bearer Securities, as the Trustee shall
determine or, with the approval of the Company, at any other place.
53
Notice of every meeting of Holders of Securities of any series, setting forth
the time and the place of such meeting and in general terms the action proposed
to be taken at such meeting, shall be given, in the manner provided in Section
13.2, not less than 21 nor more than 180 days prior to the date fixed for the
meeting.
(b) In case at any time the Company or the Holders of at least 10% in
Principal Amount of the Outstanding Securities of any series shall have
requested the Trustee to call a meeting of the Holders of Securities of such
series for any purpose specified in Section 11.1, by written request setting
forth in reasonable detail the action proposed to be taken at the meeting, and
the Trustee shall not have made the first publication of the notice of such
meeting within 21 days after receipt of such request or shall not thereafter
proceed to cause the meeting to be held as provided herein, then the Company or
the Holders of Securities of such series in the amount above specified, as the
case may be, may determine the time and the place in the Borough of Manhattan,
The City of New York, or for a series of Securities issued as Bearer Securities,
in such other place as shall be determined and approved by the Company, for such
meeting and may call such meeting for such purposes by giving notice thereof as
provided in subsection (a) of this Section 11.2.
Section 11.3 Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of any
series, a person shall be (1) a Holder of one or more Outstanding Securities of
such series, or (2) a person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more Outstanding Securities of such series by such
Holder or Holders. The only persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the persons
entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its counsel.
Section 11.4 Quorum; Action.
The persons entitled to vote a majority in Principal Amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series. In the absence of a quorum within 30
minutes of the time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Securities of such series, be dissolved.
In any other case, the meeting may be adjourned for a period determined by the
chairman of the meeting prior to the adjournment of such meeting. In the
absence of a quorum at any such adjourned meeting, such adjourned meeting may be
further adjourned for a period determined by the chairman of the meeting prior
to the adjournment of such adjourned meeting. Notice of the reconvening of any
adjourned meeting shall be given as provided in Section 11.2(a), except that
such notice need be given only once not less than five days prior to the date on
which the meeting is scheduled to be reconvened. Notice of the reconvening of an
adjourned meeting shall state expressly the percentage, as provided above, of
the principal amount of the Outstanding Securities of such series which shall
constitute a quorum.
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Except as limited by the proviso to Section 9.2, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted by the affirmative vote of the Holders of a majority
in Principal Amount of the Outstanding Securities of that series; provided,
however, that, except as limited by the proviso to Section 9.2, any resolution
with respect to any request, demand, authorization, direction, notice, consent,
waiver or other action which this Indenture expressly provides may be made,
given or taken by the Holders of a specified percentage, which is less than a
majority, in Principal Amount of the Outstanding Securities of a series may be
adopted at a meeting or an adjourned meeting duly reconvened and at which a
quorum is present as aforesaid by the affirmative vote of the Holders of such
specified percentage in Principal Amount of the Outstanding Securities of that
series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related coupons,
whether or not present or represented at the meeting.
Section 11.5 Determination of Voting Rights; Conduct And Adjournment of
Meetings.
Notwithstanding any other provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities of a series in regard to proof of the holding of
Securities of such series and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall deem appropriate.
Except as otherwise permitted or required by any such regulations, the holding
of Securities shall be proved in the manner specified in Section 11.7 and the
appointment of any proxy shall be proved in the manner specified in Section 11.7
or by having the signature of the person executing the proxy witnessed or
guaranteed by any trust company, bank or banker authorized by Section 11.7 to
certify to the holding of Bearer Securities. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 11.7 or other proof.
(a) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders of Securities as provided in Section 11.2(b), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the persons entitled to vote a majority in Principal Amount of the
Outstanding Securities of such series represented at the meeting.
(b) At any meeting each Holder of a Security of such series or proxy
shall be entitled to vote with respect to the Outstanding Securities of such
series held or represented by him; provided, however, that no vote shall be cast
or counted at any meeting in respect to any Security challenged as not
Outstanding and ruled by the chairman of the meeting to be not Outstanding. The
55
chairman of the meeting shall have no right to vote, except as a Holder of a
Security of such series or proxy.
(c) Any meeting of Holders of Securities of any series duly called
pursuant to Section 11.2 at which a quorum is present may be adjourned from time
to time by persons entitled to vote a majority in Principal Amount of the
Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
Section 11.6 Counting Votes And Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed signatures of the Holders of Securities of such series or of their
representatives by proxy and the Principal Amounts and serial numbers of the
Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 11.2 and, if
applicable, Section 11.4. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
Section 11.7 Actions of Holders Generally.
Any request, demand, authorization, direction, notice, consent, waiver or
other action provided by this Indenture to be given or taken by Holders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent duly appointed in writing.
If Securities of a series are issuable as Bearer Securities, any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Holders of such series may,
alternatively, be embodied in and evidenced by the record of Holders of
Securities of such series voting in favor thereof, either in person or by
proxies duly appointed in writing, at any meeting of Holders of Securities of
such series duly called and held in accordance with the provisions of this
Article, or a combination of such instruments and any such record. Except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments or record or both are delivered to the Trustee
and, where it is hereby expressly required, to the Company. Proof of execution
of any such instrument or of a writing appointing any such agent, or of the
holding by any person of a Security, shall be sufficient for any purpose of this
Indenture and (subject to Section 7.1) conclusive in favor
56
of the Trustee and the Company, if made in the manner provided in this Section.
The record of any meeting of Holders of Securities shall be proved in the manner
provided in Section 11.6.
(a) The fact and date of the execution by any person of any such
instrument or writing, or the authority of the persons executing the same, may
be proved in any reasonable manner which the Trustee deems sufficient.
(b) The Principal Amount and serial numbers of Registered Securities
held by the person, and the date of holding the same, shall be proved by the
books of the Registrar.
(c) The Principal Amount and serial numbers of Bearer Securities held
by any person, and the date of holding the same, may be proved by the production
of such Bearer Securities or by a certificate executed by any trust company,
bank, banker or other depositary, wherever situated, as depositary, if such
certificate shall be deemed by the Trustee to be satisfactory, showing that at
the date therein mentioned such person had on deposit with such depositary, or
exhibited to it, the Bearer Securities therein described; or such facts may be
proved by the certificate or affidavit of the person holding such Bearer
Securities, if such certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Company may assume that such ownership of any
Bearer Security continues until (1) another certificate or affidavit bearing a
later date issued in respect of the same Bearer Security is produced, or (2)
such Bearer Security is produced to the Trustee by some other person, or (3)
such Bearer Security is surrendered in exchange for a Registered Security, or
(4) such Bearer Security is no longer Outstanding. The Principal Amount and
serial numbers of Bearer Securities held by any person, and the date of holding
the same, may also be proved in any other manner which the Trustee deems
sufficient.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other act of the Holder of any Security in accordance with this
Section shall bind every future Holder of the same Security and the Holder of
every Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to
be done by the Trustee or the Company in reliance thereon, whether or not
notation of such action is made upon such Security.
(e) If the Company shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other act in accordance
with this Section, the Company may, at its option, by or pursuant to an
Officers' Certificate delivered to the Trustee, fix in advance a record date for
the determination of Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or such other act, but the
Company shall have no obligation to do so. If such a record date is fixed, such
request, demand, authorization, direction, notice, consent, waiver or other act
may be given before or after such record date, but only the Holders of record at
the close of business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite percentage of
Outstanding Securities or Outstanding Securities of a series, as the case may
be, have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other act, and for that
57
purpose the Outstanding Securities or Outstanding Securities of the series, as
the case may be, shall be computed as of such record date; provided, that no
such authorization, agreement or consent by the Holders on the record date shall
be deemed effective unless such request, demand, authorization, direction,
notice, consent, waiver or other act shall become effective pursuant to the
provisions of clause (a) of this Section 11.7 not later than six months after
the record date.
ARTICLE XII
SUBORDINATION
Section 12.1 Securities Subordinate to Senior Indebtedness.
Unless otherwise specified as contemplated by Section 2.3(a), the
Securities shall be subordinated to Senior Indebtedness as set forth in this
Article XII. The Company covenants and agrees, and each Holder of a Security of
any series by such Holder's acceptance thereof likewise covenants and agrees,
that, to the extent and in the manner hereinafter set forth in this Article XII,
the indebtedness represented by the Securities and the payment of the Principal
Amount, interest and such other amounts as provided for in Section 2.3(a), if
any, in respect of each and all of the Securities are hereby expressly made
subordinate and subject in right of payment to the prior payment in full of all
Senior Indebtedness.
"Senior Indebtedness" means the principal of (and premium, if any) and
interest on (including interest accruing after the filing of a petition
initiating any proceeding pursuant to any Bankruptcy Law, but only to the extent
allowed or permitted to the holder of such Debt of the Company against the
bankruptcy or any other insolvency estate of the Company in such proceeding) and
other amounts due on or in connection with any Debt of the Company incurred,
assumed or guaranteed by the Company, whether outstanding on the date of the
Indenture or thereafter incurred, assumed or guaranteed and all renewals,
extensions and refundings of any such Debt of the Company; provided, however,
that the following will not constitute Senior Indebtedness:
(a) any Debt of the Company as to which, in the instrument creating
the same or evidencing the same or pursuant to which the same is outstanding, it
is expressly provided that such Debt of the Company shall be subordinated to any
other Debt of the Company, unless such Debt of the Company expressly provides
that such Debt of the Company shall be senior in right of payment to the
Securities;
(b) any Debt of the Company which by its terms states that such Debt
of the Company shall not be senior in right of payment to the Securities;
(c) Debt of the Company in respect of the Securities; and
58
(d) any Debt of the Company to any Affiliate of the Company or a
Subsidiary of the Company.
Section 12.2 Payment Over of Proceeds Upon Dissolution, Etc.
Upon any distribution of assets of the Company in the event of:
(a) any insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, reorganization or other similar case or proceeding in
connection therewith, relative to the Company or to its creditors, as such, or
to its assets, or
(b) any liquidation, dissolution or other winding up of the Company,
whether voluntary or involuntary and whether or not involving insolvency or
bankruptcy, or
(c) any assignment for the benefit of creditors or any other
marshaling of assets and liabilities of the Company, then and in such event
(i) the holders of Senior Indebtedness shall be entitled to
receive payment in full of all amounts due or to become due on or in
respect of all Senior Indebtedness, or provision shall be made for such
payment in cash, before the Holders of the Securities are entitled to
receive any payment on account of the Principal Amount, interest or such
other amounts as may be provided for in Section 2.3(a), if any, in respect
of the Securities; and
(ii) any payment or distribution of assets of the Company of any
kind or character, whether in cash, property or securities, by set-off or
otherwise, to which the Holders or the Trustee would be entitled but for
the provisions of this Article XII, including any such payment or
distribution which may be payable or deliverable by reason of the payment
of any other Debt of the Company being subordinated to the payment of the
Securities, shall be paid by the liquidating trustee or agent or other
person making such payment or distribution, whether a trustee in
bankruptcy, a receiver or liquidating trustee or otherwise, directly to the
holders of Senior Indebtedness or their representative or representatives
or to the trustee or trustees under any indenture under which any
instruments evidencing any of such Senior Indebtedness may have been
issued, ratably according to the aggregate amounts remaining unpaid on
account of the principal of, and premium, if any, and interest on the
Senior Indebtedness held or represented by each, to the extent necessary to
make payment in full of all Senior Indebtedness remaining unpaid, after
giving effect to any concurrent payment or distribution to the holders of
such Senior Indebtedness.
In the event that, notwithstanding the foregoing provisions of this Section
12.2, the Trustee or the Holder of any Security shall receive any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, including any such payment or distribution which may be
payable or deliverable by reason of the payment of any other Debt of the
59
Company being subordinated to the payment of the Securities, before all Senior
Indebtedness is paid in full or payment thereof provided for, and if such fact
shall then have been made known to the Trustee as provided in Section 12.10, or,
as the case may be, such Holder, then and in such event such payment or
distribution shall be paid over or delivered forthwith to the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other
person making payment or distribution of assets of the Company for application
to the payment of all Senior Indebtedness remaining unpaid, to the extent
necessary to pay all Senior Indebtedness in full, after giving effect to any
concurrent payment or distribution to or for the holders of Senior Indebtedness.
For purposes of this Article XII only, the words "Cash, Property or
Securities," or any combination thereof, shall not be deemed to include shares
of Capital Stock of the Company as reorganized or readjusted, or securities of
the Company or any other corporation provided for by a plan of reorganization or
readjustment the payment of which is subordinated, at least to the extent
provided in this Article XII with respect to the Securities, to the payment of
all Senior Indebtedness which may at the time be outstanding; provided, however,
that (i) Senior Indebtedness is assumed by the new corporation, if any,
resulting from any such reorganization or readjustment, and (ii) the rights of
the holders of the Senior Indebtedness are not, without the consent of such
holders, altered, in any manner adverse to such holders, by such reorganization
or readjustment.
The consolidation of the Company with, or the merger of the Company into,
another corporation or the liquidation or dissolution of the Company following
the conveyance or transfer of all or substantially all of its assets to another
person upon the terms and conditions set forth in Article V shall not be deemed
a dissolution, winding up, liquidation, reorganization, assignment for the
benefit of creditors or marshaling of assets and liabilities of the Company for
the purposes of this Section 12.2 if the corporation formed by such
consolidation or into which the Company is merged or the person which acquires
by conveyance or transfer all or substantially all of the assets of the Company,
as the case may be, shall, as a part of such consolidation, merger, conveyance
or transfer, comply with the conditions set forth in Article V.
Section 12.3 Acceleration of Securities.
In the event that any Securities are declared due and payable before their
Stated Maturity pursuant to Section 6.2, then and in such event the Company
shall promptly notify holders of Senior Indebtedness of such acceleration. The
Company may not pay the Securities until 120 days have passed after such
acceleration occurs and may thereafter pay the Securities if this Article XII
permits the payment at that time.
In the event that, notwithstanding the foregoing, the Company shall make
any payment to the Trustee or the Holder of any Securities prohibited by the
foregoing provisions of this Section 12.3, and if such facts then shall have
been known or thereafter shall have been made known to the Trustee (as provided
in Section 12.10) or to such Holder, as the case may be, pursuant to the terms
of this Indenture, then and in such event such payment shall be paid over and
delivered forthwith
60
to the Company by or on behalf of the person holding such payment for the
benefit of the holders of Senior Indebtedness.
The provisions of this Section 12.3 shall not apply to any payment with
respect to which Section 12.2 would be applicable.
Section 12.4 Default in Senior Indebtedness.
The Company may not make any payment of the Principal Amount, interest or
other such amounts as may be provided for in Section 2.3(a), if any, in respect
of the Securities and may not acquire any Securities for cash or property (other
than for Capital Stock of the Company) if:
(a) a default on Senior Indebtedness occurs and is continuing that
permits holders of such Senior Indebtedness to accelerate its maturity; and
(b) the default is the subject of judicial proceedings or the Company
receives a notice of default thereof from any person who may give such notice
pursuant to the instrument evidencing or document governing such Senior
Indebtedness. If the Company receives any such notice, then a similar notice
received within nine months thereafter relating to the same default on the same
issue of Senior Indebtedness shall not be effective for purposes of this Section
12.4.
The Company may resume payments on the Securities and may acquire
Securities if and when:
(A) the default is cured or waived; or
(B) 120 or more days pass after the receipt by the
Company of the notice described in clause (2) above and the default is
not then the subject of judicial proceedings; and this Article XII
otherwise permits the payment or acquisition at that time.
In the event that, notwithstanding the foregoing, the Company shall make
any payment to the Trustee or the Holder of any Security prohibited by the
foregoing provisions of this Section 12.4, and if such fact then shall have been
known or thereafter shall have been made known to the Trustee as provided in
Section 12.10 or such Holder, as the case may be, pursuant to the terms of this
Indenture, then and in such event such payment shall be paid over and delivered
forthwith to the Company by or on behalf of the person holding such payment for
the benefit of the holders of the Senior Indebtedness.
The provisions of this Section 12.4 shall not apply to any payment with
respect to which Section 12.2 would be applicable.
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Section 12.5 Payment Permitted If No Default.
Nothing contained in this Article XII or elsewhere in this Indenture or in
any of the Securities shall prevent (a) the Company, at any time except during
the pendency of any case, proceeding, dissolution, liquidation or other winding
up, assignment for the benefit of creditors or other marshaling of assets and
liabilities of the Company referred to in Section 12.2 or under the conditions
described in Section 12.3 or 12.4, from making payments at any time of the
Principal Amount, interest or such other amounts as may be provided for in
Section 2.3(a), if any, as the case may be, in respect of the Securities, or (b)
the application by the Trustee or the retention by any Holder of any money
deposited with it hereunder to the payment of or on account of the Principal
Amount, interest or such other amounts as may be provided for in Section 2.3(a),
if any, as the case may be, in respect of the Securities if the Trustee did not
have, at the time provided in the proviso to the first paragraph of Section
12.10, notice that such payment would have been prohibited by the provisions of
this Article XII.
Section 12.6 Subrogation Rights of Holders of Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness, the Holders of
the Securities shall be subrogated to the extent of the payments or
distributions made to the holders of such Senior Indebtedness pursuant to the
provisions of this Article XII to the rights of the holders of such Senior
Indebtedness to receive payments or distributions of cash, property or
securities applicable to the Senior Indebtedness until the Principal Amount,
interest or such other amounts as provided for in Section 2.3(a), if any, as the
case may be, in respect of the Securities shall be paid in full. For purposes
of such subrogation, no payments or distributions to the holders of the Senior
Indebtedness of any cash, property or securities to which the Holders of the
Securities or the Trustee would be entitled except for the provisions of this
Article XII, and no payments pursuant to the provisions of this Article XII to
the Company or to the holders of Senior Indebtedness by Holders of the
Securities or the Trustee, shall, as between the Company, its creditors other
than holders of Senior Indebtedness and the Holders of the Securities, be deemed
to be a payment or distribution by the Company to or on account of the Senior
Indebtedness.
Section 12.7 Provision Solely to Define Relative Rights.
The provisions of this Article XII are and are intended solely for the
purpose of defining the relative rights of the Holders of the Securities, on one
hand, and the holders of Senior Indebtedness, on the other hand. Nothing
contained in this Article XII or elsewhere in this Indenture or in the
Securities is intended to or shall:
(a) impair, as between the Company and the Holders of the Securities,
the obligation of the Company, which is absolute and unconditional, to pay to
the Holders of the Securities the Principal Amount, interest or such other
amounts as may be provided for in Section 2.3(a), if any, as the case may be, in
respect of the Securities as and when the same shall become due and payable in
accordance with the terms of the Securities and this Indenture and which,
subject to
62
the rights under this Article XII of the holders of Senior Indebtedness, is
intended to rank equally with all other general obligations of the Company; or
(b) affect the relative rights against the Company of the Holders of
the Securities and creditors of the Company other than holders of Senior
Indebtedness; or
(c) prevent the Trustee or the Holder of any Security from exercising
all remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article XII of the holders
of Senior Indebtedness to receive cash, property or securities otherwise payable
or deliverable to the Trustee or such Holder.
Section 12.8 Trustee to Effectuate Subordination.
Each Holder of a Security by such Holder's acceptance thereof authorizes
and directs the Trustee on such Holder's behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article XII and appoints the Trustee such Holder's attorney-in-fact for any and
all such purposes.
Section 12.9 No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder may have or be
otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph, the
holders of Senior Indebtedness may, at any time and from time to time, without
the consent of, or notice to, the Trustee or the Holders of the Securities,
without incurring responsibility to the Holders of the Securities and without
impairing or releasing the subordination provided in this Article XII or the
obligations hereunder of the Holders of the Securities to the holders of Senior
Indebtedness, do any one or more of the following: (i) change the manner, place
or terms of payment or extend the time of payment of, or renew or alter, Senior
Indebtedness, or otherwise amend or supplement in any manner Senior Indebtedness
or any instrument evidencing the same or any agreement under which Senior
Indebtedness is outstanding; (ii) sell, exchange, release or otherwise dispose
of any property pledged, mortgaged or otherwise securing Senior Indebtedness;
(iii) release any person liable in any manner for the collection of Senior
Indebtedness and (iv) exercise or refrain from exercising any rights against the
Company or any other person.
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Section 12.10 Notice to Trustee.
The Company shall give prompt written notice to the Trustee of any fact
known to the Company which would prohibit the making of any payment to or by the
Trustee in respect of the Securities. Failure to give such notice shall not
affect the subordination of the Securities to Senior Indebtedness.
Notwithstanding the provisions of this Article XII or any other provision of
this Indenture, the Trustee shall not be charged with knowledge of the existence
of any facts which would prohibit the making of any payment to or by the Trustee
in respect of the Securities, unless and until the Trustee shall have received
written notice thereof at the address specified in Section 13.2 from the Company
or a holder of Senior Indebtedness or from any trustee or agent therefor; and,
prior to the receipt of any such written notice, the Trustee, subject to the
provisions of Section 7.1, shall be entitled in all respects to assume that no
such facts exist; provided, however, that if a Trust Officer of the Trustee
shall not have received, at least three Business Days prior to the date upon
which by the terms hereof any such money may become payable for any purpose
(including, without limitation, the payment of the Principal Amount, interest or
such other amounts as may be provided for in Section 2.3(a), if any, as the case
may be, in respect of any Security), the notice with respect to such money
provided for in this Section 12.10, then, anything herein contained to the
contrary notwithstanding, the Trustee shall have full power and authority to
receive such money and to apply the same to the purpose for which such money was
received and shall not be affected by any notice to the contrary which may be
received by it within three Business Days prior to such date.
Subject to the provisions of Section 7.1, the Trustee shall be entitled to
rely on the delivery to it of a written notice by a person representing himself
to be a holder of Senior Indebtedness (or a trustee or agent on behalf of such
holder) to establish that such notice has been given by a holder of Senior
Indebtedness (or a trustee or agent on behalf of any such holder). In the event
that the Trustee determines in good faith that further evidence is required with
respect to the right of any person as a holder of Senior Indebtedness to
participate in any payment or distribution pursuant to this Article XII, the
Trustee may request such person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Indebtedness held by such
person, the extent to which such person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
person under this Article XII, and if such evidence is not furnished, the
Trustee may defer any payment which it may be required to make for the benefit
of such person pursuant to the terms of this Indenture pending judicial
determination as to the right of such person to receive such payment.
Section 12.11 Reliance on Judicial Order or Certificate of Liquidating Agent.
Upon any payment or distribution of assets of the Company referred to in
this Article XII, the Trustee, subject to the provisions of Section 7.1, and the
Holders of the Securities shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in which such insolvency,
bankruptcy, receivership, liquidation, reorganization, dissolution, winding up
or similar case or proceeding is pending, or a certificate of the trustee in
bankruptcy, liquidating trustee, custodian, receiver, assignee for the benefit
of creditors, agent or other person making such payment
64
or distribution, delivered to the Trustee or to the Holders of Securities, for
the purpose of ascertaining the persons entitled to participate in such payment
or distribution, the holders of Senior Indebtedness and other indebtedness of
the Company, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Article
XII.
Section 12.12 Trustee Not Fiduciary For Holders of Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the holders of
Senior Indebtedness and shall not be liable to any such holders if the Trustee
shall in good faith mistakenly pay over or distribute to Holders of Securities
or to the Company or to any other person cash, property or securities to which
any holders of Senior Indebtedness shall be entitled by virtue of this Article
XII or otherwise. The Trustee shall not be charged with knowledge of the
existence of Senior Indebtedness or of any facts that would prohibit any payment
hereunder unless a Trust Officer of the Trustee shall have received notice to
that effect at the address of the Trustee set forth in Section 13.2. With
respect to the holders of Senior Indebtedness, the Trustee undertakes to perform
or to observe only such of its covenants or obligations as are specifically set
forth in this Article XII and no implied covenants or obligations with respect
to holders of Senior Indebtedness shall be read into this Indenture against the
Trustee.
Section 12.13 Rights of Trustee as Holder of Senior Indebtedness; Preservation
of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all the rights
set forth in this Article XII with respect to any Senior Indebtedness which may
at any time be held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder.
Nothing in this Article XII shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 7.7.
Section 12.14 Article XII Applicable to Paying Agents.
The term "Trustee" as used in this Article XII shall (unless the context
otherwise requires) be construed as extending to and including the Paying Agent
within its meaning as fully for all intents and purposes as if the Paying Agent
were named in this Article XII in addition to or in place of the Trustee;
provided, however, that Sections 12.10 and 12.12 shall not apply to the Company
or any Affiliate of the Company if it or such Affiliate acts as Paying Agent.
65
ARTICLE XII
MISCELLANEOUS
Section 13.1 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with
another provision hereof which is required to be included in this Indenture by
the TIA, the required provision shall control.
Section 13.2 Notices.
Any notice or communication shall be in writing and delivered in person or
mailed by first-class mail, postage prepaid; provided, that any notice or
communication by and among the Trustee and the Company may be made by telecopy
or other commercially accepted electronic means and shall be effective upon
receipt thereof and shall be confirmed in writing, mailed by first-class mail,
postage prepaid, addressed as follows:
If to the Company:
Mail-Well, Inc.
00 Xxxxxxxxx Xxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
If to the Trustee:
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxxxx 00X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
The Company or the Trustee by notice to the other may designate additional
or different addresses for subsequent notices or communications.
Any notice or communication given to a Holder of Registered Securities
shall be mailed to such Security holder at the Securityholder's address as it
appears on the registration books of the Registrar and shall be sufficiently
given if so mailed within the time prescribed. Notice shall be sufficiently
given to Holders of Bearer Securities if published in an Authorized Newspaper in
The City of New York and in such other city or cities as may be specified in
such Securities on a
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Business Day at least twice, the first such publication to be not earlier than
the earliest date, and not later than the latest date, prescribed for the giving
of such notice.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
Failure to mail a notice or communication to a Securityholder or any defect
in it shall not affect its sufficiency with respect to other Holders of
Securities of the same series. If a notice or communication is mailed in the
manner provided above, it is duly given, whether or not received by the
addressee.
If the Company mails a notice or communication to the Holders of Securities
of a particular series, it shall mail a copy to the Trustee and each Registrar,
co-registrar or Paying Agent, as the case may be, with respect to such series.
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give notice to Holders of
Registered Securities by mail, then such notification as shall be made with the
acceptance of the Trustee shall constitute a sufficient notification for every
purpose hereunder. In any case where notice to Holders of Registered Securities
is given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder of a Registered Security shall affect
the sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice to Holders of Bearer Securities
given as provided herein.
In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither the failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of any notice to Holders
of Registered Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent or waiver
required or permitted under this Indenture shall be in the English language,
except that any published notice may be in an official language of the country
of publication.
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Section 13.3 Communication by Holders with Other Holders.
Securityholders may communicate pursuant to TIA Section 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company and the Trustee, the Registrar or the Paying Agent with
respect to a particular series of Securities, and anyone else, shall have the
protection of TIA Section 312(c).
Section 13.4 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:
(a) 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
(b) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
Section 13.5 Statements Required in Certificate or Opinion.
Each Officers' Certificate or Opinion of Counsel with respect to compliance
with a covenant or condition provided for in this Indenture shall include:
(a) statement that each person making such Officers' Certificate or
Opinion of Counsel has read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such Officers'
Certificate or Opinion of Counsel are based;
(c) a statement that, in the opinion of each such person, he has made
such examination or investigation as is necessary to enable such person to
express an informed opinion as to whether or not such covenant or condition has
been complied with; and
(d) a statement that, in the opinion of such person, such covenant or
condition has been complied with.
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Section 13.6 Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 13.7 Rules by Trustee, Paying Agent and Registrar.
With respect to the Securities of a particular series, the Trustee with
respect to such series of Securities may make reasonable rules for action by or
a meeting of Holders of such series of Securities. With respect to the
Securities of a particular series, the Registrar and the Paying Agent with
respect to such series of Securities may make reasonable rules for their
functions.
Section 13.8 Legal Holidays.
A "Legal Holiday" is any day other than a Business Day. If any specified
date (including an Interest Payment Date, Redemption Date or Stated Maturity of
any Security, or a date for giving notice) is a Legal Holiday at any Place of
Payment or place for giving notice, then (notwithstanding any other provision of
this Indenture or of the Securities or coupons other than a provision in the
Securities of any series which specifically states that such provision shall
apply in lieu of this Section) payment of interest or Principal need not be made
at such Place of Payment, or such other action need not be taken, on such date,
but the action shall be taken on the next succeeding day that is not a Legal
Holiday at such Place of Payment with the same force and effect as if made on
the Interest Payment Date or Redemption Date, or at the Stated Maturity or such
other date and to the extent applicable no Original Issue Discount or interest,
if any, shall accrue for the intervening period.
Section 13.9 Governing Law and Jurisdiction.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW. THE COMPANY, THE TRUSTEE, AND EACH HOLDER OF A SECURITY (BY
ACCEPTANCE THEREOF) THEREBY, (I) SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE
FEDERAL AND NEW YORK STATE COURTS LOCATED IN THE BOROUGH OF MANHATTAN IN THE
CITY OF NEW YORK IN CONNECTION WITH ANY SUIT, ACTION OR PROCEEDING RELATED TO
THIS INDENTURE, (II) IRREVOCABLY WAIVES ANY DEFENSE OF LACK OF PERSONAL
JURISDICTION IN SUCH SUITS AND (III) IRREVOCABLY WAIVES TO THE FULLEST EXTENT IT
MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR PROCEEDING BROUGHT
IN THE FEDERAL AND NEW YORK STATE COURTS LOCATED IN THE BOROUGH OF MANHATTAN IN
THE CITY OF NEW
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YORK AND (C) THAT SUCH SUIT, ACTION OR PROCEEDING HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.
Section 13.10 No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the Company shall
not have any liability for any obligations of the Company under the Securities
or this Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Security, each Holder of such
Security shall waive and release all such liability. The waiver and release
shall be part of the consideration for the issue of the Securities.
Section 13.11 Successors.
All agreements of the Company in this Indenture and the Securities shall
bind its successor. All agreements of the Trustee in this Indenture shall bind
its successor.
Section 13.12 Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 13.13 Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall
give to any person, other than the parties hereto and their successors hereunder
and the Holders of Securities, any benefits or any legal or equitable right,
remedy or claim under this Indenture.
Section 13.14 Multiple Originals.
The parties may sign any number of copies of this Indenture. Each signed
copy shall be an original, but all of them together represent the same
agreement. One signed copy is enough to prove this Indenture.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the day and year first above written.
MAIL-WELL, INC.
By: ____________________________________
Name:
Title:
THE BANK OF NEW YORK
as Trustee
By: ____________________________________
Name:
Title:
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EXHIBIT A
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR OR CEDEL S.A.
This is to certify that, based on certificates we have received from our
member organizations substantially in the form set out in the Indenture relating
to the above-captioned Securities, as of the date hereof, U.S. $________
principal amount of the above-captioned Securities acquired from Mail-Well
Industries, Inc. (i) is owned by persons that are not United States persons (as
defined below), (ii) is owned by United States persons that are (a) foreign
branches of United States financial institutions (as defined in United States
Treasury Regulations Section 1.165-12(c)(1)(v) ("Financial Institutions"))
purchasing for their own account or for resale or (b) United States persons who
acquired the Securities through foreign branches of United States financial
institutions and who hold the Securities through such financial institutions on
the date hereof (and in the case of either clause (a) or (b), each financial
institution has agreed for the benefit of Mail-Well, Inc. to comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the United States Internal
Revenue Code of 1986, as amended, and the regulations thereunder) or (iii) is
owned by financial institutions for purposes of resale during the restricted
period (as defined in United States Treasury Regulations Section 1.163-
5(c)(2)(i)(D)(7)). Financial institutions described in clause (iii) of the
preceding sentence (whether or not also described in clause (i) or (ii)) have
certified that they have not acquired the Securities for purposes of resale
directly or indirectly to United States persons or to persons within the United
States or its possessions.
As used in this Certificate, "United States Persons" means citizens or
residents of the United States, corporations, partnerships or other entities
created or organized in or under the laws of the United States or any political
subdivision thereof or estates or trusts the income of which is subject to
United States Federal income taxation regardless of the source; "United States"
means the United States of America (including the States and the District of
Columbia), its territories, its possessions and other areas subject to its
jurisdiction; and its "possessions" include Puerto Rico, the U.S. Virgin
Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands.
We further certify that (i) we are not making available herewith for
exchange any portion of the Temporary Global Bearer Security excepted in such
certificates and (ii) as of the date hereof, we have not received any
notification from any of our member organizations to the effect that the
statements made by such member organizations with respect to any portion of the
part submitted herewith for exchange are no longer true and cannot be relied
upon as of the date hereof.
We understand that this certificate is required in connection with certain
tax laws of the United States. In connection therewith, if administrative or
legal proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate to any interested party in such proceedings. We agree to
retain each statement provided by a member organization for a period of four
calendar years following the year in which the statement is received.
Dated: ___________, _____ *To be dated no earlier than the Exchange Date.
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