EXHIBIT 4(a)
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LOCKHEED XXXXXX CORPORATION
as Issuer
LOCKHEED XXXXXX TACTICAL SYSTEMS, INC.
as Guarantor
AND
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as Trustee
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INDENTURE
Dated as of _____ __, 1996
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TABLE OF CONTENTS
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Page
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ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions......................................... 1
SECTION 1.02. Other Definitions................................... 4
SECTION 1.03. Incorporation by Reference of TIA................... 5
SECTION 1.04. Rules of Construction............................... 5
ARTICLE 2
THE SECURITIES
SECTION 2.01. Form and Dating..................................... 6
SECTION 2.02. Execution and Authentication........................ 8
SECTION 2.03. Title, Amount and Terms of Securities............... 9
SECTION 2.04. Registrar and Paying Agent.......................... 13
SECTION 2.05. Paying Agent to Hold Money in Trust................. 13
SECTION 2.06. Securityholder Lists................................ 13
SECTION 2.07. Transfer and Exchange............................... 13
SECTION 2.08. Replacement Securities.............................. 15
SECTION 2.09. Outstanding Securities.............................. 16
SECTION 2.10. Temporary Securities................................ 17
SECTION 2.11. Cancellation........................................ 17
SECTION 2.12. Defaulted Interest.................................. 17
SECTION 2.13. Currency and Manner of Payments in
Respect of Securities.............................. 17
SECTION 2.14. Appointment and Resignation of Currency
Determination Agent................................ 21
ARTICLE 3
REDEMPTION
SECTION 3.01. Applicability of this Article....................... 22
SECTION 3.02. Notices to Trustee.................................. 22
SECTION 3.03. Selection of Securities to be Redeemed.............. 22
SECTION 3.04. Notice of Redemption................................ 23
SECTION 3.05. Effect of Notice of Redemption...................... 23
SECTION 3.06. Deposit of Redemption Price......................... 24
SECTION 3.07. Securities Redeemed in Part......................... 24
ARTICLE 4
COVENANTS
SECTION 4.01. Certain Definitions................................. 24
SECTION 4.02. Payment of Securities............................... 26
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SECTION 4.03. Limitation on Liens................................. 26
SECTION 4.04. Limitation on Sale-Leaseback Transactions........... 28
SECTION 4.05. No Lien Created, etc................................ 29
SECTION 4.06. Compliance Certificate.............................. 29
SECTION 4.07. SEC Reports......................................... 29
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.01. When the Corporation or the Guarantor
May Merge, etc. ................................... 29
SECTION 5.02. When Securities Must be Secured..................... 30
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default................................... 31
SECTION 6.02. Acceleration........................................ 32
SECTION 6.03. Other Remedies...................................... 32
SECTION 6.04. Waiver of Past Defaults............................. 33
SECTION 6.05. Control by Majority................................. 33
SECTION 6.06. Limitation on Suits................................. 33
SECTION 6.07. Rights of Holders to Receive Payment................ 33
SECTION 6.08. Collection Suit by Trustee.......................... 34
SECTION 6.09. Trustee May File Proofs of Claim.................... 34
SECTION 6.10. Priorities.......................................... 34
SECTION 6.11. Undertaking for Costs............................... 34
ARTICLE 7
TRUSTEE
SECTION 7.01. Duties of Trustee................................... 35
SECTION 7.02. Rights of Trustee................................... 36
SECTION 7.03. Individual Rights of Trustee, etc. ................. 36
SECTION 7.04. Trustee's Disclaimer................................ 36
SECTION 7.05. Notice of Defaults.................................. 36
SECTION 7.06. Reports by Trustee to Holders....................... 36
SECTION 7.07. Compensation and Indemnity.......................... 37
SECTION 7.08. Replacement of Trustee.............................. 37
SECTION 7.09. Successor Trustee by Merger, etc. .................. 38
SECTION 7.10. Eligibility; Disqualification....................... 39
SECTION 7.11. Preferential Collection of Claims
Against Corporation................................ 39
ARTICLE 8
SATISFACTION, DISCHARGE AND DEFEASANCE
SECTION 8.01. Satisfaction and Discharge Under Limited
Circumstances...................................... 39
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SECTION 8.02. Satisfaction and Discharge of Indenture............. 39
SECTION 8.03. Defeasance of Certain Obligations................... 41
SECTION 8.04. Application of Trust Money.......................... 42
SECTION 8.05. Repayment to Corporation............................ 43
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders.......................... 43
SECTION 9.02. With Consent of Holders............................. 44
SECTION 9.03. Compliance with Trust Indenture Act of
1939............................................... 44
SECTION 9.04. Revocation and Effect of Consents................... 44
SECTION 9.05. Notation on or Exchange of Securities............... 45
SECTION 9.06. Trustee to Sign Amendments, etc..................... 45
ARTICLE 10
GUARANTEE OF SECURITIES
SECTION 10.01. Unconditional Guarantee............................ 45
SECTION 10.02. Execution and Delivery of Guarantees............... 46
SECTION 10.03. Form of Guarantee.................................. 46
ARTICLE 11
MISCELLANEOUS
SECTION 11.01. TIA Controls....................................... 48
SECTION 11.02 Notices............................................ 48
SECTION 11.03. Communication by Holders with Other
Holders........................................... 49
SECTION 11.04. Certificate and Opinion as to Conditions
Precedent......................................... 49
SECTION 11.05. Statements Required in Certificate or
Opinion........................................... 49
SECTION 11.06. When Treasury Securities Disregarded............... 50
SECTION 11.07. Rules by Trustee, Paying Agent,
Registrar......................................... 50
SECTION 11.08. Legal Holidays..................................... 50
SECTION 11.09. Governing Law...................................... 50
SECTION 11.10. No Adverse Interpretation of Other
Agreements........................................ 50
SECTION 11.11. No Recourse Against Others......................... 51
SECTION 11.12. Securities in a Foreign Currency................... 51
SECTION 11.13. Judgment Currency.................................. 51
SECTION 11.14. Successors......................................... 52
SECTION 11.15. Duplicate Originals................................ 52
SECTION 11.16. Acts of Holders; Record Dates...................... 52
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NOTE: This Table of Contents shall not, for any purpose, be
deemed to be a part of the Indenture.
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INDENTURE dated as of _____ __, 1996, among Lockheed Xxxxxx Corporation, a
Maryland corporation (the "Corporation"), Lockheed Xxxxxx Tactical Systems,
Inc., a New York corporation (the "Guarantor"), and
_________________________________________, a [national banking association] (the
"Trustee").
Each party agrees as follows for the benefit of the other party and, as to
each series of Securities, for the equal and ratable benefit of the Holders of
that series of the Corporation's Securities issued pursuant to this Indenture:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Board of Directors" means the Board of Directors, or any duly appointed
committee of the Board of Directors, of the Corporation or the Guarantor, as the
case may be.
"Board Resolution" means a resolution of the Board of Directors or of a
committee or person to which or to whom the Board of Directors has properly
delegated the appropriate authority, a copy of which has been certified by the
Secretary or an Assistant Secretary of the Corporation or the Guarantor, as the
case may be, to have been duly adopted by the Board of Directors or such
committee or person and to be in full force and effect on the date of such
certification and delivered to the Trustee.
"Business Day," when used with respect to any particular Place of Payment,
means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in that Place of Payment are authorized or obligated
by law to close, and shall otherwise mean each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking institutions, at the
place where any specified act pursuant to this Indenture is to occur, are
authorized or obligated by law to close.
"Conversion Event" means, in the good faith judgment of the Corporation,
the unavailability of any Foreign Currency or currency unit, due to the
imposition of exchange controls or other circumstances beyond the control of the
Corporation.
"Corporation" means the party named as such in this Indenture until a
successor replaces it and thereafter means the successor.
"Currency Determination Agent," with respect to Securities of any series,
means a New York Clearing House bank designated pursuant to Section 2.03 or
Section 2.14.
"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 the form of one or more Global Securities, the
party designated as Depositary by the Corporation pursuant to Section 2.03 until
a successor Depositary shall have become such pursuant to the applicable
provisions hereof, and thereafter "Depositary" shall mean or include each party
who is then a Depositary hereunder, and if at any time there is more than one
such party, "Depositary" as used with respect to the Securities on any such
series shall mean the Depositary with respect to the Securities of that series.
"Discounted Security" means any Security which provides for an amount
(excluding any amounts attributable to accrued but unpaid interest) less than
its principal amount to be due and payable upon a declaration of acceleration of
the maturity of the Security pursuant to Section 6.02.
"Dollars" and the sign "$" mean the currency of the United States of
America as at the time of payment is legal tender for the payment of public and
private debts.
"ECU" means the European Currency Unit as defined and revised from time to
time by the Council of the European Communities.
"Exchange Act" means the Securities Exchange Act of 1934, as it may be
amended from time to time.
"Exchange Rate Officers' Certificate" means a certificate or facsimile
thereof setting forth (i) the applicable Market Exchange Rate and (ii) the
Dollar, Foreign Currency or currency unit amounts of principal and interest, if
any (on an aggregate basis and on the basis of a Security having the
denomination principal amount determined in accordance with Section 2.03 in the
relevant currency or currency unit), payable with respect to a Security of any
series on the basis of such Market Exchange Rate, signed by any Officer of the
Corporation.
"Foreign Currency" means a currency issued by the government of any country
other than the United States of America.
"Global Security" means a Security evidencing all or a part of a series of
Securities, issued to the Depositary for such series in accordance with Section
2.01, and bearing the legend prescribed in Section 2.01.
"Guarantee" means any guarantee of the Guarantor endorsed on a Security
authenticated and delivered pursuant to this Indenture and shall include the
guarantee set forth in Article 10.
"Guarantor" means the party named as such in this Indenture until a
successor replaces it and thereafter means the successor.
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"Holder" or "Securityholder" means the person in whose name a Security is
registered on the Registrar's books.
"Indenture" means this Indenture as amended or supplemented from time to
time.
"Market Exchange Rate" means (i) for any conversion involving a currency
unit on the one hand and Dollars or any Foreign Currency on the other, the
exchange rate between the relevant currency unit and Dollars or such Foreign
Currency calculated by the method specified pursuant to Section 2.03 for the
Securities of the relevant series, (ii) for any conversion of Dollars into any
Foreign Currency, the noon (New York City time) buying rate for such Foreign
Currency for cable transfers quoted in New York City as certified for customs
purposes by the Federal Reserve Bank of New York, (iii) for any conversion of
one Foreign Currency into Dollars or another Foreign Currency, the spot rate at
noon local time in the relevant market at which, in accordance with normal
banking procedures, the Dollars or Foreign Currency into which conversion is
being made could be purchased with the Foreign Currency from which conversion is
being made from major banks located in either New York City, London or any other
principal market for Dollars or such purchased Foreign Currency, in each case
determined by the applicable Currency Determination Agent in its sole discretion
and without liability on its part. In the event of the unavailability of any of
the exchange rates provided for in the foregoing clauses (i), (ii) and (iii) the
Currency Determination Agent shall use, in its sole discretion and without
liability on its part, such quotation of the Federal Reserve Bank of New York as
of the most recent available date, or quotations from one or more major banks in
New York City, London or any other principal market for such currency or
currency unit in question, or such other quotations as the Currency
Determination Agent shall deem appropriate. Unless otherwise specified by the
Currency Determination Agent, if there is more than one market for dealing in
any currency or currency unit by reason of foreign exchange regulations or
otherwise, the market to be used with respect to such currency or currency unit
shall be that upon which a nonresident issuer of securities designated in such
currency or currency unit would purchase such currency or currency unit in order
to make payments with respect to such securities. For purposes of this
definition, a "nonresident issuer" shall mean an issuer that is not a resident
of the country or countries that issue such currency or whose currencies are
included in such currency unit.
"Officer" means the Chairman of the Board, the Chief Executive Officer, the
President, the Chief Operating Officer, any Executive Vice President, Senior
Vice President or Vice President, the Treasurer or the Secretary of the
Corporation or the Guarantor, as the case may be.
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"Officers' Certificate" means a certificate signed by two Officers or by an
Officer and an Assistant Treasurer or Assistant Secretary of the Corporation or
the Guarantor, as the case may be.
"Opinion of Counsel" means a written opinion from legal counsel who is
acceptable to the Trustee. The counsel may be an employee of or counsel to the
Corporation, the Guarantor or the Trustee.
"Place of Payment" means, when used with respect to the Securities of any
particular series, the place or places where the principal of and interest, if
any, on the Securities of that series are payable, as contemplated by Section
2.03.
"principal" of a Security means the principal of the Security plus, when
appropriate, the premium, if any, on the Security.
"SEC" means the Securities and Exchange Commission.
"Securities" means the securities issued pursuant to this Indenture from
time to time, as such securities may be amended or supplemented from time to
time.
"series" when used with respect to the Securities means all Securities
bearing the same title and initially authorized by the same Board Resolution.
"TIA" means the Trust Indenture Act of 1939, as in effect (unless otherwise
stated herein) on the date of this Indenture.
"Trustee" means the party named as such in this Indenture until a successor
replaces it and thereafter means the successor. The term "Trustee" includes any
additional Trustee appointed pursuant to Section 2.03 or Section 7.08 but, if at
any time there is more than one Trustee, the term "Trustee" as used with respect
to Securities of any series shall mean the Trustee with respect to Securities of
that series.
"Trust Officer" means a Vice President or any other officer, assistant
officer or employee of the Trustee assigned by the Trustee to administer its
corporate trust matters.
"Uniform Commercial Code" means the ________ Uniform Commercial Code.
SECTION 1.02. Other Definitions.
Defined in
Term Section
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"Attributable Debt".................................. 4.01
"Bankruptcy Law"..................................... 6.01
"Component Currency"................................. 2.13
"Consolidated Net Tangible Assets"................... 4.01
"Conversion Date".................................... 2.13
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"Custodian".......................................... 6.01
"Debt"............................................... 4.01
"Dollar Equivalent of the Currency Unit"............. 2.13
"Dollar Equivalent of the Foreign Currency".......... 2.13
"Election Date"...................................... 2.13
"Event of Default"................................... 6.01
"Judgment Date"...................................... 11.13
"Legal Holiday"...................................... 11.08
"Lien"............................................... 4.01
"Long-Term Debt"..................................... 4.01
"Paying Agent"....................................... 2.04
"Principal Property"................................. 4.01
"Registrar".......................................... 2.04
"Restricted Property"................................ 4.01
"Restricted Subsidiary".............................. 4.01
"Sale-Leaseback Transaction"......................... 4.01
"Specified Amount"................................... 2.13
"Subsidiary"......................................... 4.01
"Substitute Date".................................... 11.13
"United States"...................................... 4.01
"U.S. Government Obligations"........................ 8.02
"Valuation Date"..................................... 2.13
"Voting Stock"....................................... 4.01
SECTION 1.03. Incorporation by Reference of TIA. 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 Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Corporation.
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.
SECTION 1.04. Rules of Construction. Unless the context otherwise
requires:
(1) a term has the meaning assigned to it;
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(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with generally accepted accounting principles;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural
include the singular;
(5) any gender used in this Indenture shall be deemed to include the
neuter, masculine or feminine gender; and
(6) provisions apply to successive events and transactions.
ARTICLE 2
THE SECURITIES
SECTION 2.01. Form and Dating. The Securities shall be issued
substantially in the form or forms (including global form) as shall be
established by or pursuant to a Board Resolution or Resolutions or any
supplemental indenture, in each case with such appropriate insertions,
omissions, substitutions or other variations as are required or permitted by
this Indenture. The Securities may have notations, legends or endorsements
required by law, stock exchange rule or usage. Each Security shall be dated the
date of its authentication.
The Guarantees by the Guarantor to be endorsed on the Securities shall be
substantially in the form set forth in Section 10.03, or as shall be established
by or pursuant to a Board Resolution or Resolutions or any supplemental
indenture, in each case with such appropriate insertions, omissions,
substitutions or other variations as are required or permitted by this
Indenture. The Guarantees may have notations, legends or endorsements required
by law, stock exchange rule or usage.
Notwithstanding the foregoing, if any Security of a series is issuable in
the form of a Global Security or Securities, each such Global Security may
provide that it shall represent the aggregate amount of Securities outstanding
under the series from time to time endorsed thereon and also may provide that
the aggregate amount of Securities outstanding under the series represented
thereby may from time to time be reduced to reflect exchanges. Any endorsement
of a Global Security to reflect the amount of Securities outstanding under the
series represented thereby shall be made by the Trustee in accordance with the
instructions of the Corporation and in such manner as shall be specified on such
Global Security. Any instructions by the Corporation or the Guarantor with
respect to a Global Security, after its initial issuance, shall be in writing
but need not comply with Section 11.04.
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Before the first delivery of a Security of any series to the Trustee for
authentication, the Corporation shall deliver to the Trustee the following:
(1) the Board Resolution or Resolutions by or pursuant to which the
forms and terms of the Security and the Guarantee have been approved;
(2) Officers' Certificates of the Corporation and the Guarantor dated
the date of delivery stating that all conditions precedent provided for in
this Indenture relating to the authentication and delivery of Securities in
that series and the guarantee of such Securities by the Guarantor have been
complied with and directing the Trustee to authenticate and deliver the
Securities to or upon written order of the Corporation; and
(3) Opinions of Counsel stating that all conditions precedent provided
for in this Indenture relating to the authentication and delivery of
Securities of that series and the guarantee of such Securities by the
Guarantor have been complied with, the form and terms of the series have
been established by or pursuant to a Board Resolution or Resolutions in
conformity with this Indenture, the form and terms of the guarantee of such
Securities by the Guarantor have been established by or pursuant to a Board
Resolution or Resolutions in conformity with this Indenture, and that
Securities and Guarantees in such form when completed by appropriate
insertions and executed by the Corporation and the Guarantor and delivered
by the Corporation to the Trustee for authentication in accordance with
this Indenture, authenticated and delivered by the Trustee in accordance
with this Indenture within the authorization as to aggregate principal
amount established from time to time by the Board of Directors and sold in
the manner specified in such Opinions of Counsel will be the legal, valid
and binding obligations of the Corporation and the Guarantor, respectively,
entitled to the benefits of this Indenture, subject to applicable
bankruptcy, reorganization, insolvency and other similar laws generally
affecting creditors' rights and to general equity principles, and to such
other qualifications as such counsel shall conclude do not materially
affect the rights of Holders of Securities of that series or that are
customarily included in similar opinions by lawyers experienced in such
matters.
Notwithstanding the foregoing, if the Corporation shall establish pursuant
to Section 2.03 that the Securities of a series are to be issued in whole or in
part in the form of one or more Global Securities, then the Corporation and the
Guarantor shall execute and the Trustee shall, in accordance with this Section,
Section 2.02 and the authentication order of the Corporation with respect to
such series, authenticate and deliver one or more Global Securities in temporary
or permanent form that shall (a) represent and be denominated in an aggregate
amount equal to the aggregate
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principal amount of the Securities of such series to be represented by one or
more Global Securities, (b) be registered in the name of the Depositary for such
Global Security or Securities or the nominee of such Depositary, (c) be
delivered by the Trustee to such Depositary or pursuant to such Depositary's
instruction; and (d) bear a legend substantially to the following effect:
"Unless and until it is exchanged in whole or in part for Securities in
definitive form, this Security may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or by the Depositary or any
nominee to a successor Depositary or a nominee of any successor Depositary."
SECTION 2.02. Execution and Authentication. Two Officers shall sign the
Securities for the Corporation by manual or facsimile signature. Two Officers
shall sign the Guarantees for the Guarantor by manual or facsimile signature.
The Corporation's and the Guarantor's seals shall be impressed, affixed,
imprinted or reproduced on the Securities.
If an Officer whose signature is on a Security or a Guarantee no longer
holds that office at the time the Trustee authenticates the Security, the
Security or the Guarantee, as the case may be, shall be valid nevertheless.
A Security and the related Guarantee shall not be valid until the Trustee
manually signs the certificate of authentication on the Security. The signature
shall be conclusive evidence that the Security has been authenticated under this
Indenture.
Notwithstanding the provisions of Section 2.03 and of the preceding
paragraphs, if all Securities of a series are not to be originally issued at one
time (including, for example, a series constituting a medium-term note program),
it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 2.01 or the Opinions of Counsel otherwise required
pursuant to such preceding paragraphs at or prior to the time of authentication
of each Security of such series if such documents are delivered at or prior to
the time of authentication upon original issuance of the first Security of such
series. In such case the Trustee may conclusively rely on the foregoing
documents and opinions delivered pursuant to Section 2.01 and Section 2.03, and
this Section, as applicable (unless revoked by superseding comparable documents
or opinions), as to the matters set forth therein.
Notwithstanding the foregoing, if any Security shall have been duly
authenticated and delivered hereunder but never issued and sold by the
Corporation, and the Corporation shall deliver such Security to the Trustee for
cancellation as provided in Section 2.11 together with a written statement
(which need not comply with Section 2.01 and need not be accompanied by an
Opinion of Counsel) stating that such Security has never been issued and sold by
the Corporation, for all purposes of this Indenture such
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Security shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.
If any Security of a series shall be represented by a Global Security,
then, for purposes of this Section and Section 2.10, the notation of the record
owners' interest therein upon original issuance of such Security shall be deemed
to be delivered in connection with the original issuance of each beneficial
owner's interest in such Global Security.
The Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
This is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
Date: [Name of Trustee], as Trustee
By___________________________
The Trustee may appoint an authenticating agent acceptable to the
Corporation to authenticate Securities. An authenticating agent may
authenticate Securities whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes authentication by such
agent. An authenticating agent has the same rights as an Agent to deal with the
Corporation.
If at any time there shall be an authenticating agent appointed with
respect to any series of Securities, then the Trustee's certificate of
authentication to be borne by the Securities of each such series shall be
substantially as follows:
This is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
Date: [Name of Trustee], as Trustee
By:___________________________
as Authenticating Agent
By:___________________________
Authorized Officer
SECTION 2.03. Title, Amount and Terms of Securities. The principal amount
of Securities that may be authenticated and delivered and outstanding under this
Indenture is not limited. The Securities may be issued in a total principal
amount up to that authorized from time to time by or pursuant to relevant Board
Resolutions.
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The Securities may be issued in one or more series, each of which shall be
issued pursuant to a Board Resolution or Resolutions of the Corporation or the
Guarantor, as appropriate, which shall specify:
(1) the title of the Securities of that series (which shall
distinguish the Securities of that series from Securities of all other
series);
(2) any limit on the aggregate principal amount of the Securities of
that series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration or
transfer of, in exchange for or in lieu of other Securities of that series
pursuant to Sections 2.07, 2.08 or 3.07);
(3) the date or dates (or the manner of determining the same) on which
the principal of the Securities of that series is payable (which, if so
provided in the Board Resolution or Resolutions, may be determined by the
Corporation from time to time and set forth in the Securities of that
series issued from time to time);
(4) the rate or rates, or the method to be used in ascertaining the
rate or rates, at which the Securities of that series shall bear interest,
if any, the basis upon which interest shall be calculated if other than
that of a 360-day year of 12 30-day months, the date or dates from which
such interest shall accrue (which, in either case or both, if so provided
in the Board Resolution or Resolutions, may be determined by the
Corporation from time to time and set forth in the Securities of that
series issued from time to time), the interest payment dates on which such
interest shall be payable (or the manner of determining the same) and the
record date for the interest payable on any interest payment date;
(5) if the trustee of that series is other than the Trustee initially
named in this Indenture or any successor thereto, the trustee of that
series;
(6) the place or places where the principal of and interest, if any,
on Securities of that series shall be payable;
(7) the period or periods within which, the price or prices at which,
the currency or currency unit in which, and the terms and conditions on
which Securities of that series may be redeemed or converted into another
Security, in whole or in part, at the option of the Corporation;
(8) the obligation, if any, of the Corporation to redeem or purchase
Securities of that series pursuant to any sinking fund or analogous
provisions or at the option of Holders of Securities of that series (or to
convert such Securities into
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other Securities at the option of the Holder), and the period or periods
within which, the price or prices at which, the currency or currency unit
in which, and the terms and conditions upon which Securities of that series
shall be redeemed or purchased, in whole or in part, pursuant to such
obligation;
(9) if denominated in Dollars and in denominations other than
denominations of $1,000 and any multiple of $1,000, the denominations in
which Securities of that series shall be issuable;
(10) if denominated in other than Dollars, the currency or currencies,
including composite currencies, in which the Securities of that series are
denominated and the denominations in which Securities of that series shall
be issuable;
(11) if the principal of and interest, if any, on the Securities of
that series are to be payable, at the election of the Corporation or a
Holder thereof, in a currency or currency unit other than that in which the
Securities are denominated or stated to be payable, in accordance with
provisions in addition to or in lieu of or in accordance with the
provisions of Section 2.13, the period or periods within which (including
the Election Date), and the terms and conditions upon which, such election
may be made, and the time and manner of determining the exchange rate
between the currency or currency unit in which the Securities are
denominated or stated to be payable and the currency or currency unit in
which the Securities are to be so payable;
(12) the index, if any, used to determine the amount of payments of
principal of or interest, if any, on the Securities of that series;
(13) if the amount of payments of the principal of and interest, if
any, on the Securities of that series may be determined with reference to
an index based on a currency or currencies other than that in which the
Securities of that series are denominated, the manner in which such amounts
shall be determined;
(14) if other than the full principal amount, the portion of the
principal amount of Securities of that series which shall be payable upon a
declaration of acceleration of the maturity pursuant to Section 6.02;
(15) if convertible into Securities of another series, the terms upon
which the Securities of that series will be convertible into Securities of
such other series;
(16) the right, if any, of the Corporation to redeem all or any part
of the Securities of that series before maturity
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and the period or periods within which, the price or prices at which and
the terms and conditions upon which Securities of that series may be
redeemed;
(17) the provisions, if any, restricting defeasance of the Securities
of that series;
(18) if other than or in addition to the events specified in Section
6.01, events of default with respect to the Securities of that series;
(19) if the Securities of that series are to be issued in whole or in
part in the form of one or more Global Securities, the Depositary for such
Global Security or Securities and whether beneficial owners of interests
in any such Global Securities may exchange such interests for other
Securities of such series in the manner provided in Section 2.07, and the
manner and the circumstances under which and the place or places where any
such exchanges may occur if other than in the manner provided in Section
2.07, and any other terms of the series relating to the global nature of
the Securities of such series and the exchange, registration or transfer
thereof and the payment of any principal thereof or interest, if any,
thereon;
(20) the designation of the original Currency Determination Agent, if
any, with respect to the Securities of that series;
(21) the Guarantee of the Securities of such series pursuant to
Article 10; and
(22) any other terms of or relating to the Securities of that series
or the related Guarantees (which terms shall not be inconsistent with the
provisions of this Indenture).
References herein to currency shall include ECUs, unless otherwise
specified or unless the context otherwise requires.
All Securities of any particular series shall be identical as to currency
of denomination and otherwise shall be substantially identical except as to
denomination and except as may otherwise be provided in or pursuant to the
relevant Board Resolution or Resolutions.
The Trustee need not authenticate the Securities in any series if their
terms impose on the Trustee duties in addition to those imposed on the Trustee
by this Indenture. If the Trustee does authenticate any such Securities, the
authentication will evidence the Trustee's agreement to comply with any such
additional duties.
Each Depositary designated pursuant to this Section 2.03 for a Global
Security in registered form shall, if required, at the time of its designation
and at all times while it serves as a
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Depositary, be a clearing agency registered under the Exchange Act and any other
applicable statute or regulation.
SECTION 2.04. Registrar and Paying Agent. The Corporation shall maintain
an office or agency where Securities may be presented for registration of
transfer or for exchange ("Registrar") and an office or agency where Securities
may be presented for payment ("Paying Agent"). The Registrar shall keep a
register of the Securities and of their transfer and exchange. The Corporation
may have one or more co-registrars and one or more additional paying agents.
The term "Paying Agent" includes any additional paying agent. There may be
separate Registrars and Paying Agents for different series of Securities.
The Corporation shall enter into an appropriate agency agreement with any
Registrar, Paying Agent or co-registrar not a party to this Indenture. The
agreement shall implement the provisions of this Indenture that relate to such
Agent. The Corporation shall notify the Trustee of the name and address of any
such Agent. If the Corporation fails to maintain a Registrar or Paying Agent,
the Trustee shall act as such.
The Corporation initially appoints the Trustee as Registrar and Paying
Agent.
SECTION 2.05. Paying Agent to Hold Money in Trust. Each Paying Agent for
any series of Securities shall hold in trust for the benefit of Holders of
Securities of the same series or the Trustee all money held by the Paying Agent
for the payment of principal of or interest, if any, on such Securities and
shall notify the Trustee of any default by the Corporation in making such
payment. If the Corporation or a Subsidiary acts as Paying Agent with respect
to a series of Securities, it shall segregate the money for that series and hold
it as a separate trust fund. The Corporation at any time may require a Paying
Agent to pay all money held by it to the Trustee. Upon doing so the Paying
Agent shall have no further liability for the money.
SECTION 2.06. Securityholder Lists. For each series of Securities, 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
Securities of that series. If the Trustee is not the Registrar, the Corporation
shall furnish or cause to be furnished to the Trustee on or before each interest
payment date for each series of Securities 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 Holders of
Securities of that series.
SECTION 2.07. Transfer and Exchange. Where a Security (other than a
Global Security except as set forth herein) is presented to the Registrar or a
co-registrar with a request to register a transfer, the Registrar shall register
the transfer as requested if the requirements of Section 8-401(1) of the Uniform
Commercial Code
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(or any successor provision) are met. Where Securities (other than a Global
Security except as set forth herein) of any series are presented to the
Registrar or a co-registrar with a request to exchange them for an equal
principal amount of Securities of other denominations of the same series with
identical terms as the Securities exchanged, the Registrar shall make the
exchange as requested if the same requirements are met. To permit transfers and
exchanges, the Trustee shall authenticate Securities at the Registrar's request.
The Corporation may charge a reasonable fee for any transfer or exchange, but
not for any exchange pursuant to Section 2.10, 3.07 or 9.05. The Corporation
shall not be required to make transfers or exchanges of Securities of any series
for a period of 15 days before a selection of Securities of the same series to
be redeemed or before an interest payment.
Notwithstanding any other provision of this Section, unless and until it is
exchanged in whole or in part for Securities in definitive form, a Global
Security representing all or a portion of the Securities of a series may not be
transferred except as a whole by the Depositary for such series to a nominee of
such Depositary or by a nominee of such Depositary to such Depositary or another
nominee of such Depositary or by such Depositary or any such nominee to a
successor Depositary for such series or a nominee of such successor Depositary.
None of the Corporation, the Guarantor, the Trustee, the Paying Agent, the
Registrar or any co-registrar shall have any responsibility or liability for any
aspect of the records relating to or payments made on account of beneficial
ownership interests of a Global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
If at any time the Depositary for the Securities of a series notifies the
Corporation that it is unwilling or unable to continue as Depositary for the
Securities of such series or if at any time the Depositary for the Securities of
such series shall no longer be eligible under Section 2.03, the Corporation
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 Corporation within 90 days after the Corporation receives such
notice or becomes aware of such ineligibility, the Corporation's election
pursuant to Section 2.03(19) shall no longer be effective with respect to the
Securities of such series and the Corporation will execute, and the Trustee,
upon receipt of an order of the Corporation for the authentication and delivery
of definitive Securities of such series, will authenticate and deliver
Securities of such series in definitive form in an aggregate principal amount
equal to the principal amount of the Global Security or Securities representing
such series in exchange for such Global Security or Securities.
The Corporation 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
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such Global Security or Securities. In such event the Corporation will execute,
and the Trustee, upon receipt of an order of the Corporation for the
authentication and delivery of definitive Securities of such series, will
authenticate and deliver Securities of such series in definitive form in an
aggregate principal amount equal to the principal amount of the Global Security
or Securities representing such series in exchange for such Global Security or
Securities.
If specified by the Corporation pursuant to Section 2.03 with respect to a
series of Securities, the Depositary for such series of Securities may surrender
a Global Security for such series of Securities in exchange in whole or in part
for the Securities of such series in definitive form on such terms as are
acceptable to the Corporation and such Depositary. Thereupon, the Corporation
shall execute, and the Trustee shall authenticate and deliver:
(1) to each party specified by such Depositary a new Security or
Securities of the same series, of any authorized denomination as requested
by such party in aggregate principal amount equal to and in exchange for
such party's beneficial interest in the Global Security; and
(2) to such Depositary a new Global Security in a denomination equal
to the difference, if any, between the principal amount of the surrendered
Global Security and the aggregate principal amount of Securities delivered
to Holders thereof.
Upon the exchange of the Global Security for Securities in definitive form,
such Global Security shall be canceled by the Trustee. Securities issued in
exchange for a Global Security pursuant to this Section 2.07 shall be registered
in such names and in such authorized denominations as the Depositary for such
Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall
deliver such Securities to the parties in whose names such Securities are so
registered.
SECTION 2.08. Replacement Securities. If the Holder of a Security claims
that the Security has been mutilated, destroyed, lost or stolen, the Corporation
may issue and the Trustee shall authenticate a replacement Security of the same
series with identical terms as the Securities exchanged if the requirements of
Section 8-405 of the Uniform Commercial Code (or any successor provision) are
met. Such Holder shall furnish an indemnity bond sufficient in the judgment of
the Corporation and the Trustee to protect the Corporation, the Guarantor, the
Trustee, the Paying Agent, the Registrar and any co-registrar from any loss
which any of them may suffer if a Security is replaced. The Corporation and the
Trustee may charge for their expenses in replacing a Security.
In case any such mutilated, destroyed, lost or stolen Security has become
due and payable, the Corporation in its discretion may,
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instead of issuing a new Security, pay such Security (without surrender thereof
except in the case of a mutilated Security) if the applicant for such payment
shall furnish to the Corporation, the Guarantor, the Trustee, the Paying Agent,
the Registrar and any co-registrar for such Security such security or indemnity
as may be required by them to hold each of them harmless, and in case of
destruction, loss or theft, evidence satisfactory to the Corporation, the
Guarantor, the Trustee, the Paying Agent, the Registrar and any co-registrar,
and any agent of any of them, of the destruction, loss or theft of such Security
and the ownership thereof.
Upon the issuance of any new Security under this Section 2.08, the
Corporation 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 all fees and expenses of the Trustee, the Paying Agent, the
Registrar and any co-registrar for such Security) connected therewith.
Every new Security of any series issued pursuant to this Section 2.08 in
lieu of any destroyed, lost or stolen Security or in exchange for any mutilated
Security, shall constitute an original additional obligation of the Corporation,
whether or not the destroyed, lost or stolen Security shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of the
same series.
The provisions of this Section 2.08 are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 2.09. Outstanding Securities. Securities outstanding at any time
are all Securities authenticated by the Trustee (and, in the case of Global
Securities, endorsed by the Trustee) except for those canceled by it, those
delivered to it for cancellation and those described in this Section as not
outstanding. A Security does not cease to be outstanding because the
Corporation, the Guarantor or an affiliate of the Corporation or the Guarantor
holds the Security.
If a Security is replaced pursuant to Section 2.08, 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 Paying Agent holds on a redemption date or maturity date money
sufficient to pay Securities payable on that date, then on and after that date
such Securities cease to be outstanding and interest on them ceases to accrue.
If a Security is called for redemption, the Corporation and the Trustee
need not treat the Security as outstanding in
- 16 -
determining whether Holders of the required principal amount of Securities have
concurred in any direction, waiver or consent.
SECTION 2.10. Temporary Securities. Until definitive Securities of any
series are ready for delivery or a permanent Global Security or Securities are
prepared, as the case may be, the Corporation may prepare and the Trustee shall
authenticate temporary Securities or one or more temporary Global Securities, as
the case may be, of the same series, having endorsed thereon Guarantees duly
executed by the Guarantor in accordance with the terms and conditions of this
Indenture. Temporary Securities of any series shall be substantially in the
form of definitive Securities or permanent Global Securities, as the case may
be, of the same series, but may have variations that the Corporation considers
appropriate for temporary Securities. Without unreasonable delay, the
Corporation shall prepare and the Trustee shall authenticate definitive
Securities or a permanent Global Security or Securities, as the case may be, of
the same series in exchange for temporary Securities. Until so exchanged, the
temporary Securities of any series shall be entitled to the same benefits under
this Indenture as definitive Securities or permanent Global Securities of such
series.
SECTION 2.11. Cancellation. The Corporation or the Guarantor at any time
may deliver Securities to the Trustee for cancellation. The Registrar and the
Paying Agent shall forward to the Trustee any Securities surrendered to them for
transfer, exchange or payment. The Trustee and no one else shall cancel or
destroy all Securities surrendered for transfer, exchange, payment or
cancellation, and shall so certify to the Corporation. The Corporation may not
issue new Securities to replace Securities it has paid or it has delivered to
the Trustee for cancellation.
SECTION 2.12. Defaulted Interest. If the Corporation defaults in a
payment of interest on any Securities of any series, it shall pay the defaulted
interest to the persons who are Holders of those Securities on a subsequent
special record date. The Corporation shall fix the special record date and the
payment date in respect thereof. At least 15 days before the special record
date, the Corporation shall mail to each Holder of Securities of that series a
notice that states the special record date, the payment date and the amount of
defaulted interest to be paid. The Corporation may pay defaulted interest in
any other lawful manner.
SECTION 2.13. Currency and Manner of Payments in Respect of Securities.
(a) With respect to Securities of any series not permitting the election
provided for in paragraph (b) below or the Holders of which have not made the
election provided for in paragraph (b) below, except as provided in paragraph
(d) below, payment of the principal of and interest, if any, on any Security of
such series will be made in the currency or currency unit in which such Security
is payable.
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(b) It may be provided pursuant to Section 2.03 with respect to Securities
of any series that Holders shall have the option, subject to paragraphs (d) and
(e) below, to receive payments of principal of or interest, if any, on such
Securities in any of the currencies or currency units which may be designated
for such election by delivering to the Trustee for such series of Securities a
written election with signature guarantees and in form and substance
satisfactory to such Trustee, not later than the close of business on the
Election Date immediately preceding the applicable payment date. If a Holder so
elects to receive such payments in any such currency or currency unit, such
election will remain in effect for such Holder until changed by such Holder by
written notice to the Trustee for such series of Securities (but any such change
must be made not later than the close of business on the Election Date
immediately preceding the next payment date to be effective for the payment to
be made on such payment date and no such change of election may be made with
respect to payments to be made on any Security of such series with respect to
which an Event of Default has occurred or notice of redemption has been given by
the Corporation pursuant to Article 3). In the event any Holder makes any such
election pursuant to the preceding sentence, such election will not be effective
on any transferee of such Holder and such transferee shall be paid in the
currency or currency unit indicated pursuant to paragraph (a) above unless such
transferee makes an election pursuant to the preceding sentence; provided,
however, that such election, if in effect while funds are on deposit with
respect to the Securities of such series as described in Section 8.01, 8.02 or
8.03, will be effective on any transferee of such Holder unless otherwise
specified pursuant to Section 2.03 for the Securities of such series. Any
Holder of any such Security who shall not have delivered any such election to
the Trustee of such series of Securities not later than the close of business on
the applicable Election Date will be paid the amount due on the applicable
payment date in the relevant currency or currency unit as provided in paragraph
(a) of this Section. In no case may a Holder of Securities of any series elect
to receive payments in any currency or currency unit as described in this
Section 2.13(b) following a deposit of funds with respect to the Securities of
such series as described in Section 8.01, 8.02 or 8.03.
(c) If the election referred to in paragraph (b) above has been provided
for pursuant to Section 2.03, then not later than the fourth Business Day after
the Election Date for each payment date for Securities of any series, the
Currency Determination Agent for that series will deliver to the Corporation a
written notice specifying, in the currency or currency unit in which Securities
of such series are payable, the respective aggregate amounts of principal of and
interest, if any, on the Securities to be made on such payment date, and
specifying the amounts in such currency or currency unit so payable with respect
to the Securities of such series as to which the Holders thereof shall have
elected to be paid in a currency or currency unit other than that in which such
series is denominated as provided in paragraph (b) above. If the election
referred to in paragraph (b) above has been provided for
- 18 -
pursuant to Section 2.03 and if at least one Holder has made such election,
then, on the second Business Day preceding such payment date the Corporation
will deliver to the Trustee for such series of Securities an Exchange Rate
Officers' Certificate with respect to the Dollar, Foreign Currency, ECU or
currency unit payments to be made on such payment date. The Dollar, Foreign
Currency, ECU or currency unit amount receivable by Holders of Securities who
have elected payment in a currency or currency unit as provided in paragraph (b)
above shall, unless otherwise provided pursuant to Section 2.03, be determined
by the Corporation on the basis of the applicable Market Exchange Rate in effect
on the third Business Day (the "Valuation Date") immediately preceding each
payment date.
(d) If a Conversion Event occurs with respect to a Foreign Currency, the
ECU or any other currency unit in which any of the Securities are denominated or
payable other than pursuant to an election provided for pursuant to paragraph
(b) above, then with respect to each date for the payment of principal of and
interest, if any, on the applicable Securities denominated or payable in such
Foreign Currency, the ECU or such other currency unit occurring after the last
date on which such Foreign Currency, the ECU or such other currency unit was
available (the "Conversion Date"), the Dollar shall be the currency of payment
for use on each such payment date. The Dollar amount to be paid by the
Corporation to the Trustee of each such series of Securities and by such Trustee
or any Paying Agent to the Holders of such Securities with respect to such
payment date shall be the amount that would have been payable in Foreign
Currency or currency units but expressed in Dollars according to the Dollar
Equivalent of the Foreign Currency or, in the case of a currency unit, the
Dollar Equivalent of the Currency Unit, in each case as determined by the
Currency Determination Agent in the manner provided in paragraph (f) or (g)
below.
(e) If the Holder of a Security denominated in any currency or currency
unit shall have elected to be paid in another currency or currency unit as
provided in paragraph (b) above, and a Conversion Event occurs with respect to
such elected currency or currency unit, such Holder shall receive payment in the
currency or currency unit in which payment would have been made in the absence
of such election. If a Conversion Event occurs with respect to the currency or
currency unit in which payment would have been made in the absence of such
election, such Holder shall receive payment in Dollars as provided in paragraph
(d) above.
(f) The "Dollar Equivalent of the Foreign Currency" shall be determined by
the Currency Determination Agent and shall be obtained for each subsequent
payment after the Conversion Date by converting the specified Foreign Currency
into Dollars at the Market Exchange Rate on the Conversion Date.
(g) The "Dollar Equivalent of the Currency Unit" shall be determined by the
Currency Determination Agent and subject to the provisions of paragraph (h)
below shall be the sum of each amount
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obtained by converting the Specified Amount of each Component Currency into
Dollars at the Market Exchange Rate for such Component Currency on the Valuation
Date with respect to each payment.
(h) For purposes of this Section 2.13 the following terms shall have the
following meanings:
A "Component Currency" shall mean any currency which, on the Conversion
Date, was a component currency of the relevant currency unit, including, but not
limited to, the ECU.
A "Specified Amount" of a Component Currency shall mean the number of units
of such Component Currency or fractions thereof which were represented in the
relevant currency unit, including, but not limited to, the ECU, on the
Conversion Date. If after the Conversion Date the official unit of any
Component Currency is altered by way of combination or subdivision, the
Specified Amount of such Component Currency shall be divided or multiplied in
the same proportion. If after the Conversion Date two or more Component
Currencies are consolidated into a single currency, the respective Specified
Amounts of such Component Currencies shall be replaced by an amount in such
single currency equal to the sum of the respective Specified Amounts of such
consolidated Component Currencies expressed in such single currency, and such
amount shall thereafter be a Specified Amount and such single currency shall
thereafter be a Component Currency. If after the Conversion Date any Component
Currency shall be divided into two or more currencies, the Specified Amount of
such Component Currency shall be replaced by amounts of such two or more
currencies, each of whose Dollar Equivalent at the Market Exchange Rate on the
date of such replacement shall be equal to the Dollar Equivalent of the
Specified Amount of such former Component Currency at the Market Exchange Rate
on such date divided by the number of currencies into which such Component
Currency was divided, and such amounts shall thereafter be Specified Amounts and
such currencies shall thereafter be Component Currencies. If, after the
Conversion Date of the relevant currency unit, including, but not limited to,
the ECU, a Conversion Event (other than any event referred to above in this
definition of "Specified Amount") occurs with respect to any Component Currency
of such currency unit and is continuing on the applicable Valuation Date, the
Specified Amount of such Component Currency shall, for purposes of calculating
the Dollar Equivalent of the Currency Unit, be converted into Dollars at the
Market Exchange Rate in effect on the Conversion Date of such Component
Currency.
"Election Date" shall mean any date for any series of Securities as
specified pursuant to Section 2.03(11) by which the written election referred to
in Section 2.13(b) may be made, such date to be not later than the regular
record date for the earliest payment for which such election may be effective.
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All decisions and determinations of the Currency Determination Agent
regarding the Dollar Equivalent of the Foreign Currency, the Dollar Equivalent
of the Currency Unit, the Market Exchange Rate and changes in the Specified
Amounts as specified above shall be in its sole discretion and shall, in the
absence of manifest error, be conclusive for all purposes and irrevocably
binding upon the Corporation, the Trustee for the appropriate series of
Securities and all Holders of such Securities denominated or payable in the
relevant currency or currency units. The Currency Determination Agent shall
promptly give written notice to the Corporation and the Trustee for the
appropriate series of Securities of any such decision or determination.
In the event of a Conversion Event with respect to a Foreign Currency, the
Corporation, after learning thereof, will immediately give written notice
thereof to the Trustee of the appropriate series of Securities and the Currency
Determination Agent with respect to such series (and such Trustee will promptly
thereafter give notice to the Holders) specifying the Conversion Date. In the
event of a Conversion Event with respect to the ECU or any other currency unit
in which Securities are denominated or payable, the Corporation, after learning
thereof, will immediately give written notice thereof to the Trustee of the
appropriate series of Securities and the Currency Determination Agent with
respect to such series (and such Trustee will promptly thereafter give notice to
the Holders) specifying the Conversion Date and the Specified Amount of each
Component Currency on the Conversion Date. In the event of any subsequent
change in any Component Currency as set forth in the definition of Specified
Amount above, the Corporation, after learning thereof, will similarly give
written notice to the Trustee of the appropriate series of Securities and the
Currency Determination Agent.
The Trustee of the appropriate series of Securities shall be fully
justified and protected in relying and acting upon information received by it
from the Corporation and the Currency Determination Agent and shall not
otherwise have any duty or obligation to determine such information
independently.
SECTION 2.14. Appointment and Resignation of Currency Determination
Agent. (a) If and so long as the Securities of any series (i) are denominated
in a currency unit or a currency other than Dollars or (ii) may be payable in a
currency unit or a currency other than Dollars, or so long as it is required
under any other provision of this Indenture, then the Corporation will maintain
with respect to each such series of Securities, or as so required, a Currency
Determination Agent. The Corporation will cause the Currency Determination
Agent to make the necessary foreign exchange determinations at the time and in
the manner specified pursuant to Section 2.03 for the purpose of determining the
applicable rate of exchange and for the purpose of converting the issued
currency or currency unit into the applicable payment currency or currency unit
for the payment of principal and interest, if any, pursuant to Section 2.13.
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(b) No resignation of the Currency Determination Agent and no appointment
of a successor Currency Determination Agent pursuant to this Section shall
become effective until the acceptance of appointment by the successor Currency
Determination Agent as evidenced by a written instrument delivered to the
Corporation and the Trustee of the appropriate series of Securities accepting
such appointment executed by the successor Currency Determination Agent.
(c) If the Currency Determination Agent shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of the Currency
Determination Agent for any cause, with respect to the Securities of one or more
series, the Corporation, by a Board Resolution, shall promptly appoint a
successor Currency Determination Agent or Currency Determination Agents with
respect to the Securities of that or those series (it being understood that any
such successor Currency Determination Agent may be appointed with respect to the
Securities of one or more or all of such series and that at any time there shall
only be one Currency Determination Agent with respect to the Securities of any
particular series).
ARTICLE 3
REDEMPTION
SECTION 3.01. Applicability of this Article. Securities of any series
that are redeemable prior to their maturity shall be redeemable in accordance
with their terms (except as otherwise specified in this Indenture for Securities
of any series) and in accordance with this Article 3.
SECTION 3.02. Notices to Trustee. If the Corporation wants to redeem any
Securities, it shall notify the Trustee of the redemption date and the principal
amount of Securities to be redeemed in accordance with the terms of the
Securities. If the redemption is of less than all the outstanding Securities of
a series, the Corporation shall furnish to the Trustee a written statement
signed by an Officer of the Corporation stating that with respect to that series
there exists no Event of Default and no circumstance which, after notice or the
passage of time or both, would constitute an Event of Default. The Corporation
shall give the notice provided for in this Section at least 50 days before the
redemption date.
SECTION 3.03. Selection of Securities to be Redeemed. If, at the option
of the Corporation, less than all the Securities of a series are to be redeemed,
the Trustee shall select the Securities to be redeemed by a method the Trustee
considers fair and appropriate, subject to any applicable stock exchange
requirements. The Trustee shall make the selection from outstanding Securities
not previously called for redemption. The Trustee may select for redemption
portions of the principal of Securities that have a denomination larger than
$1,000 (or the applicable minimum
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denomination for such Securities in the event the Securities are payable in ECUs
or a Foreign Currency or Currencies). Securities and portions of them it
selects shall be in amounts of $1,000 (or the applicable minimum denomination
for such Securities in the event the Securities are payable in ECUs or a Foreign
Currency or Currencies) or a multiple of $1,000 (or the applicable minimum
denomination for such Securities in the event the Securities are payable in ECUs
or a Foreign Currency or Currencies). Provisions of this Indenture that apply
to Securities called for redemption also apply to portions of Securities called
for redemption.
The Trustee for the Securities of any series to be redeemed shall promptly
notify the Corporation in writing of the Securities of such series selected for
redemption and, in the case of any Securities selected for partial redemption,
the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Security redeemed or to be redeemed only in part, to the portion of
the principal amount of such Securities which has been or is to be redeemed.
SECTION 3.04. Notice of Redemption. At least 20 days but not more than 60
days before a date of redemption of Securities at the option of the Corporation,
the Corporation shall mail a notice of redemption by first-class mail to each
Holder of Securities to be redeemed.
The notice shall identify the Securities to be redeemed and shall state:
(1) the redemption date;
(2) the redemption price;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be surrendered to the
Paying Agent to collect the redemption price; and
(5) that interest, if any, on Securities called for redemption ceases
to accrue on and after the redemption date.
At the Corporation's request, the Trustee shall give the notice of
redemption in the Corporation's name and at its expense. In such event the
Corporation will provide the Trustee with the information required by clauses
(1) through (5) above.
SECTION 3.05. Effect of Notice of Redemption. Once notice of redemption
is mailed, Securities called for redemption become due and payable on the
redemption date and at the redemption price stated in the notice. Upon
surrender to the Paying Agent, such
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Securities shall be paid at the redemption price stated in the notice, plus
accrued interest, if any, to the redemption date; provided, however, that any
regular payment of interest becoming due on the redemption date shall be payable
to the Holder of any such Security being redeemed as provided in the Security.
SECTION 3.06. Deposit of Redemption Price. By the opening of business on
the redemption date, the Corporation shall deposit with the Paying Agent money
sufficient to pay the redemption price of and accrued interest, if any, on all
Securities to be redeemed on that date.
SECTION 3.07. Securities Redeemed in Part. Upon surrender of a Security
that is redeemed in part, the Trustee shall authenticate for the Holder a new
Security equal in principal amount to the unredeemed portion of the Security
surrendered.
ARTICLE 4
COVENANTS
SECTION 4.01. Certain Definitions. "Attributable Debt" for a lease means
the carrying value of the capitalized rental obligation determined under
generally accepted accounting principles. The carrying value may be reduced by
the capitalized value of the rental obligations, calculated on the same basis,
that any sublessee has for all or part of the same property. This term does not
include any obligation to make payments arising from the transfer of tax
benefits under the Economic Recovery Tax Act of 1981 (as it may from time to
time be amended, or any successor statute) to the extent such obligation is
offset by or conditioned upon receipt of payments from another person. A lease
obligation shall be counted only once even if the Guarantor or the Corporation
and one or more of their Subsidiaries may be responsible for the obligation.
"Consolidated Net Tangible Assets" means total assets less (1) total
current liabilities (excluding any Debt which, at the option of the borrower, is
renewable or extendable to a term exceeding 12 months and which is included in
current liabilities and further excluding any deferred income taxes which are
included in current liabilities) and (2) goodwill, patents and trademarks, all
as reflected in the Corporation's most recent consolidated balance sheet
preceding the date of a determination under Section 4.03(11).
"Debt" means all indebtedness for borrowed money reported as debt in the
consolidated financial statements or any guarantee of such a debt and includes
purchase money obligations. This term does not include any obligation to make
payments arising from the transfer of tax benefits under the Economic Recovery
Tax Act of 1981 (as it may from time to time be amended, or any successor
statute) to the extent such obligation is offset by or conditioned upon receipt
of payments from another person. A Debt shall be
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counted only once even if the Corporation or the Guarantor and one or more of
their Subsidiaries may be responsible for the obligation.
"Lien" means any mortgage, pledge, security interest or lien. This term
does not include any obligation arising from the transfer of tax benefits under
the Economic Recovery Tax Act of 1981 (as it may from time to time be amended,
or any successor statute) to the extent such obligation is offset by or
conditioned upon receipt of payments from another person.
"Long-Term Debt" means Debt that by its terms matures on a date more than
12 months after the date it was created or Debt that the obligor may extend or
renew without the obligee's consent to a date more than 12 months after the Debt
was created.
"Principal Property" means, as to any particular series of Securities, any
manufacturing facility located in the United States and owned by the
Corporation, the Guarantor or by one or more Restricted Subsidiaries from the
date Securities of that series are first issued and which has, as of the date
the Lien is incurred, a net book value (after deduction of depreciation and
other similar charges) greater than 3% of Consolidated Net Tangible Assets,
except (1) any such facility or property which is financed by obligations of any
State, political subdivision of any State or the District of Columbia under
terms which permit the interest payable to the holders of the obligations to be
excluded from gross income as a result of the plant, facility or property
satisfying the conditions of Section 103(b)(4)(C), (D), (E), (F) or (H) of the
Internal Revenue Code of 1954, as amended, Section 103(b)(6) of the Internal
Revenue Code of 1954, as amended, Section 142(a) or Section 144(a) of the
Internal Revenue Code of 1986, or of any successors to such provisions, or (2)
any such facility or property which, in the opinion of the Board of Directors of
the Corporation, is not of material importance to the total business conducted
by the Corporation and its Subsidiaries taken as a whole. However, the Chief
Executive Officer or Chief Financial Officer of the Corporation may at any time
declare any manufacturing facility or other property to be a Principal Property
by delivering a certificate to that effect to the Trustee.
"Restricted Property" means, as to any particular series of Securities, any
Principal Property, any Debt of a Restricted Subsidiary owned by the
Corporation, the Guarantor or a Restricted Subsidiary on the date Securities of
that series are first issued or secured by a Principal Property (including any
property received upon a conversion or exchange of such Debt), or any shares of
stock of the Corporation or a Restricted Subsidiary owned by the Corporation,
the Guarantor or a Restricted Subsidiary (including any property or shares
received upon a conversion, stock split or other distribution with respect to
the ownership of such stock).
"Restricted Subsidiary" means a Subsidiary that has substantially all its
assets located in, or carries on
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substantially all its business in, the United States and that owns a Principal
Property. Notwithstanding the preceding sentence, a Subsidiary shall not be a
Restricted Subsidiary during such period of time as it (or any corporation
(other than the Corporation) or other entity that, directly or indirectly,
beneficially owns a majority of the Voting Stock of the Subsidiary) has shares
of capital stock registered under the Exchange Act or it files reports and other
information with the SEC pursuant to Section 13 or 15(d) of the Exchange Act.
"Sale-Leaseback Transaction" means an arrangement whereby the Corporation,
the Guarantor or a Restricted Subsidiary now owns or hereafter acquires a
Principal Property, transfers it to a person and contemporaneously leases it
back from the person. This term does not include any transaction arising from
the transfer of tax benefits under the Economic Recovery Tax Act of 1981 (as it
may from time to time be amended, or any successor statute) to the extent the
obligation to make rental payments is offset or conditioned upon receipt of
payments from another person.
"Subsidiary" means a corporation a majority of the Voting Stock of which is
owned by the Corporation, the Corporation and one or more Subsidiaries, or one
or more Subsidiaries (including, without limitation, the Guarantor).
"United States" means the United States of America. The Commonwealth of
Puerto Rico, the Virgin Islands and other territories and possessions are not
part of the United States.
"Voting Stock" means capital stock having voting power under ordinary
circumstances to elect directors.
SECTION 4.02. Payment of Securities. The Corporation shall promptly pay
the principal of and interest, if any, on the Securities on the dates and in the
manner provided in the Securities.
To the extent lawful, the Corporation shall pay interest, if any, on
overdue principal at the rate borne by the Securities and shall pay interest, if
any, on overdue installments of interest at the same rate.
SECTION 4.03. Limitation on Liens. The Corporation and the Guarantor
shall not, and neither shall permit any Restricted Subsidiary to, incur a Lien
on Restricted Property to secure a Debt unless:
(1) the Lien equally and ratably secures the Securities and the Debt.
The Lien may equally and ratably secure the Securities and any other
obligation of the Corporation, the Guarantor or a Subsidiary. The Lien may
not secure an obligation of the Corporation that is subordinated to any
Securities or an obligation of the Guarantor that is subordinated to any
Guarantees; or
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(2) the Lien is on property, Debt or shares of stock of a corporation
at the time such corporation becomes a Restricted Subsidiary; or
(3) the Lien is on property at the time the Corporation, the Guarantor
or a Restricted Subsidiary acquires the property. However, the Lien may
not extend to any other Restricted Property owned by the Corporation, the
Guarantor or a Restricted Subsidiary at the time the property is acquired;
or
(4) the Lien secures the payment of all or any part of the purchase
price of property upon the acquisition of such property by the Corporation,
the Guarantor or a Restricted Subsidiary or secures any Debt incurred or
guaranteed by the Corporation, the Guarantor or a Restricted Subsidiary
prior to, at the time of, or within one year after the later of the
acquisition, completion of construction (including any improvements on an
existing property) or commencement of full operation of such property,
which Debt is incurred or guaranteed for the purpose of financing all or
any part of the purchase price thereof or construction or improvements
thereon, and which Debt may be in the form of obligations incurred in
connection with industrial revenue bonds or similar financings and letters
of credit issued in connection therewith; provided, however, that in the
case of any such acquisition, construction or improvement the Lien shall
not apply to any property theretofore owned by the Corporation, the
Guarantor or a Restricted Subsidiary, other than, in the case of any such
construction or improvement, any theretofore unimproved real property on
which the property so constructed or the improvement made is located; or
(5) the Lien secures Debt of a Restricted Subsidiary owed to the
Corporation, the Guarantor or another Restricted Subsidiary; or
(6) the Lien is on property of a corporation or other entity at the
time such corporation or other entity merges into, or consolidates or
enters into a share exchange with, the Corporation, the Guarantor or a
Restricted Subsidiary; or
(7) the Lien is on property of a person at the time the person
transfers or leases all or substantially all its assets to the Corporation,
the Guarantor or a Restricted Subsidiary; or
(8) the Lien is in favor of any customer (including any government or
governmental authority) to secure partial, progress, advance or other
payments or performance pursuant to any contract or statute or to secure
any related indebtedness or to secure Debt guaranteed by a government or
governmental authority; or
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(9) the Lien arises pursuant to any order of attachment, distraint or
similar legal process arising in connection with court proceedings so long
as the execution or other enforcement thereof is effectively stayed and the
claims secured thereby are being contested in good faith by appropriate
proceedings or the Lien is a materialmen's, suppliers', tax or other
similar Lien arising in the ordinary course of business securing
obligations which are not overdue or are being contested in good faith by
appropriate proceedings; or
(10) as to any particular series of Securities, the Lien extends,
renews or replaces in whole or in part a Lien ("existing Lien") permitted
by any of the clauses (1) through (9) or a Lien existing on the date that
Securities of such series are first issued. The Lien may not extend beyond
the property subject to the existing Lien. The Debt secured by the Lien
may not exceed the Debt secured at the time by the existing Lien unless the
existing Lien or a predecessor Lien was incurred under clause (1) or (5);
or
(11) the Debt secured by the Lien plus all other Debt secured by Liens
on Restricted Property, excluding Debt secured by a Lien permitted by any
of the clauses (1) through (10) and any Debt secured by a Lien existing at
the date of this Indenture, at the time does not exceed 10% of Consolidated
Net Tangible Assets. Attributable Debt for any lease entered into under
clause (4) of Section 4.04 shall be included in the determination and
treated as Debt secured by a Lien on Restricted Property not otherwise
permitted by any of the clauses (1) through (10).
SECTION 4.04. Limitation on Sale-Leaseback Transactions. The Corporation
and the Guarantor shall not, and neither shall permit any Restricted Subsidiary
to, enter into a Sale-Leaseback Transaction unless:
(1) the lease has a term of three years or less; or
(2) the lease is between the Corporation and the Guarantor, the
Guarantor and a Restricted Subsidiary, the Corporation and a Restricted
Subsidiary or between Restricted Subsidiaries; or
(3) the Corporation, the Guarantor or a Restricted Subsidiary under
clauses (2) through (10) of Section 4.03 could create a Lien on the
property to secure Debt at least equal in amount to the Attributable Debt
for the lease; or
(4) the Corporation, the Guarantor or a Restricted Subsidiary under
clause (11) of Section 4.03 could create a Lien on the property to secure
Debt at least equal in amount to the Attributable Debt for the lease; or
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(5) the Corporation or the Guarantor owns or acquires other property
which will be made a Principal Property and is determined by the Board of
Directors of the Corporation or the Guarantor to have a fair value equal to
or greater than the Attributable Debt incurred; or
(6) (A) the Corporation, the Guarantor or a Restricted Subsidiary
makes an optional prepayment in cash of its Debt at least equal in amount
to the Attributable Debt for the lease,
(B) the prepayment is made within 120 days of the effective date
of the lease,
(C) the Debt prepaid is not owned by the Corporation, the
Guarantor or a Restricted Subsidiary, and
(D) the Debt prepaid was Long-Term Debt at the time it was
created.
SECTION 4.05. No Lien Created, etc. This Indenture and the Securities do
not create a Lien, charge or encumbrance on any property of the Corporation, the
Guarantor or any Subsidiary.
SECTION 4.06. Compliance Certificate. The Corporation and the Guarantor
shall deliver to the Trustee within 120 days after the end of each fiscal year
of the Corporation an Officers' Certificate stating whether or not the signers
know of any default by the Corporation or the Guarantor in performing their
covenants in Section 4.03 or 4.04. If they do know of such a default, the
certificate shall describe the default. The certificate need not comply with
Section 11.05.
SECTION 4.07. SEC Reports. Each of the Corporation and the Guarantor
shall file with the Trustee within 15 days after it files them with the SEC
copies of the annual reports and of the information, documents and other reports
(or copies of such portions of any of the foregoing as the SEC may by rules and
regulations prescribe) which the Corporation or the Guarantor, as the case may
be, is required to file with the SEC pursuant to Section 13 or Section 15(d) of
the Exchange Act. The Corporation and the Guarantor, as applicable, also shall
comply with the other provisions of TIA Section 314(a).
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.01. When the Corporation or the Guarantor May Merge, etc.
(a) Neither the Corporation nor the Guarantor shall consolidate with
or merge into, or transfer all or substantially
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all its assets to another corporation, unless (1) the resulting, surviving or
transferee corporation assumes by supplemental indenture all the obligations of
the Corporation or the Guarantor, as the case may be, under the Securities or
the Guarantees and this Indenture, (2) immediately after giving effect to such
transaction no Event of Default and no circumstances which, after notice or
lapse of time or both, would become an Event of Default, shall have happened and
be continuing, and (3) the Corporation or the Guarantor, as the case may be,
shall have delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that such consolidation, merger or transfer and such
supplemental indenture comply with this Indenture, and thereafter all such
obligations of the Corporation or the Guarantor, as the case may be, shall
terminate.
(b) In the event that (1) the Corporation and the Guarantor shall
consolidate with each other into another corporation, (2) the Corporation shall
merge into the Guarantor or vice versa, or (3) the Corporation shall transfer
all or substantially all of its assets to the Guarantor or vice versa, then,
upon satisfaction of the conditions set forth in Section 5.01(a), the resulting,
surviving or transferee corporation shall be substituted for the Corporation
under this Indenture and the Guarantees shall terminate and be of no further
effect.
SECTION 5.02. When Securities Must be Secured. If upon any such
consolidation, merger or transfer a Restricted Property would become subject to
an attaching Lien that secures Debt, then, before the consolidation, merger or
transfer occurs, the Corporation or the Guarantor, as the case may be, by
supplemental indenture shall secure the Securities by a direct lien on the
Restricted Property. The direct Lien shall have priority over all Liens on the
Restricted Property except those already on it. The direct Lien may equally and
ratably secure the Securities or the Guarantees and any other obligation of the
Corporation, the Guarantor or a Subsidiary. However, the Corporation or the
Guarantor, as the case may be, need not comply with this Section if:
(1) upon the consolidation, merger or transfer the attaching Lien will
secure the Securities or the Guarantees, as the case may be, equally and
ratably with or prior to Debt secured by the attaching Lien; or
(2) the Corporation or the Guarantor or a Restricted Subsidiary under
any of the clauses (2) through (11) of Section 4.03 could create a Lien on
the Restricted Property to secure Debt at least equal in amount to that
secured by the attaching Lien.
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ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default. An "Event of Default" occurs with respect
to a series of Securities if:
(1) the Corporation defaults in the payment of interest on any
Security of that series when the same becomes due and payable and the
default continues for a period of 30 days;
(2) the Corporation defaults in the payment of the principal of any
Security of that series when the same becomes due and payable at maturity,
upon redemption or otherwise;
(3) the Corporation or the Guarantor fails to comply with any of its
other agreements in the Guarantees or the Securities of that series or this
Indenture for the benefit of that series and the default continues for the
period and after the notice specified in this Section;
(4) the Corporation or the Guarantor pursuant to or within the meaning
of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it in an
involuntary case,
(C) consents to the appointment of a Custodian of it or for all
or substantially all of its property, or
(D) makes a general assignment for the benefit of its creditors;
(5) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against the Corporation or the Guarantor in an
involuntary case,
(B) appoints a Custodian of the Corporation or the Guarantor or
for all or substantially all of the property of the Corporation or the
Guarantor, or
(C) orders the winding up or liquidation of the Corporation or
the Guarantor,
and the order or decree remains unstayed and in effect for 60 days; or
(6) there occurs any other event specifically described as an Event of
Default by the Securities of that series.
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The term "Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Code, or any
similar Federal or state law for the relief of debtors. The term "Custodian"
means any receiver, trustee, assignee, liquidator, custodian or similar official
under any Bankruptcy Law.
A default under clause (3) is not an Event of Default with respect to a
series of Securities until the Trustee or the Holders of at least 25% in
principal amount of the Securities of that series notify the Corporation and the
Guarantor of the default and the Corporation or the Guarantor, as the case may
be, does not cure the default within 90 days after receipt of the notice. The
notice must specify the default, demand that it be remedied and state that the
notice is a "Notice of Default." Subject to Sections 7.01 and 7.02 the Trustee
shall not be charged with knowledge of any default unless written notice thereof
shall have been given to the Trustee by the Corporation, the Guarantor, the
Paying Agent, the Holder of a Security or an agent of such Holder.
SECTION 6.02. Acceleration. If an Event of Default with respect to a
series of Securities occurs and is continuing, the Trustee, by notice to the
Corporation and the Guarantor or the Holders of at least 25% in principal amount
of the Securities of that series by notice to the Corporation, the Guarantor and
the Trustee, may declare the principal (or, in the case of Discounted
Securities, such amount of principal as may be provided for in such Securities)
of and accrued interest, if any, on all the Securities of that series to be due
and payable immediately. Upon such a declaration such principal and interest,
if any, shall be due and payable immediately. The Holders of a majority in
principal amount of the Securities of any series by notice to the Trustee may
rescind an acceleration (and upon such rescission any Event of Default caused by
such acceleration shall be deemed cured) with respect to that series and its
consequences if all existing Events of Default with respect to the series have
been cured or waived, if the rescission would not conflict with any judgment or
decree, and if all payments due to the Trustee and any predecessor Trustee under
Section 7.07 have been made.
SECTION 6.03. Other Remedies. If an Event of Default with respect to a
series of Securities occurs and is continuing, the Trustee may pursue any
available remedy by proceeding at law or in equity to collect the payment of
principal of (or, in the case of Discounted Securities, such amount of principal
as may be provided for in such Securities) or interest, if any, on the
Securities of that series or to enforce the performance of any provision of such
Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of
the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Securityholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of acquiescence in the Event of Default. No remedy is
- 32 -
exclusive of any other remedy. All available remedies are cumulative to the
extent permitted by law.
SECTION 6.04. Waiver of Past Defaults. Subject to Section 9.02 the
Holders of a majority in principal amount of the Securities of a series by
notice to the Trustee may waive an existing Default or Event of Default with
respect to that series and its consequences. When a Default or Event of Default
is waived, it is cured and stops continuing, but no such waiver shall extend to
any subsequent or other Default or Event of Default or impair any right
consequent thereto.
SECTION 6.05. Control by Majority. The Holders of a majority in principal
amount of the Securities of a series may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or of
exercising any trust of power conferred on it with respect to that series.
However, the Trustee may refuse to follow any direction that conflicts with law
or this Indenture, or, subject to Section 7.01, that the Trustee determines is
unduly prejudicial to the rights of other Holders of Securities of the same
series or would involve the Trustee in personal liability.
SECTION 6.06. Limitation on Suits. No Holder of a Security of any series
may pursue any remedy with respect to this Indenture or the Securities unless:
(1) the Holder gives to the Trustee written notice stating that an
Event of Default with respect to the Securities of the series is
continuing;
(2) the Holders of at least 25% in principal amount of the Securities
of that series make a written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee indemnity satisfactory
to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer of indemnity; and
(5) during such 60-day period the Holders of a majority in principal
amount of the Securities of that series do not give the Trustee a direction
inconsistent with the request.
A Securityholder may not use this Indenture to prejudice the rights of
another Securityholder or to obtain a preference or priority over any other
Securityholder.
SECTION 6.07. Rights of Holders to Receive Payment. Notwithstanding any
other provision of this Indenture, the right of any Holder to receive payment of
principal of and interest, if any,
- 33 -
on the Security on or after the respective due dates expressed in the Security,
or to bring suit for the enforcement of any such payment on or after such
respective date, shall not be impaired or affected without the consent of the
Holder.
SECTION 6.08. Collection Suit by Trustee. If an Event of Default in
payment of interest or principal specified in Section 6.01(1) or (2) occurs and
is continuing, subject to Sections 6.02 and 6.04 the Trustee may recover
judgment in its own name and as trustee of an express trust against the
Corporation and the Guarantor for the whole amount of principal and interest, if
any, remaining unpaid.
SECTION 6.09. Trustee May File Proofs of Claim. The Trustee may file such
proofs of claim and other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee and the Securityholders allowed in
any judicial proceedings relative to the Corporation or the Guarantor, or any of
their creditors or property, and unless prohibited by law or applicable
regulations, may vote on behalf of the Holders in any election of a trustee in
bankruptcy or other person performing similar functions.
SECTION 6.10. Priorities. If the Trustee collects any money pursuant to
this Article with respect to the Securities of any series, it shall pay out the
money in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: to Holders of Securities of that series for amounts due and
unpaid on such Securities for principal and interest, if any, ratably,
without preference or priority of any kind, according to the amounts due
and payable on such Securities for principal and interest, if any,
respectively; and
Third: to the Corporation.
The Trustee may fix a record date and payment date for any payment to
Securityholders pursuant to this Section.
SECTION 6.11. Undertaking for Costs. In any suit for the enforcement of
any right or remedy under this Indenture or in any suit against the Trustee for
any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant in the suit other than the Trustee 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 including the Trustee, having due regard to the merits and
good faith of the claims or defenses made by the party litigant. This Section
does not apply to a suit by the Trustee, a suit by a Holder pursuant to
- 34 -
Section 6.07 or a suit by Holders of more than 10% in principal amount of the
Securities of any series.
ARTICLE 7
TRUSTEE
SECTION 7.01. Duties of Trustee. (a) If an Event of Default has occurred
and is continuing, the Trustee shall with respect to Securities exercise its
rights and powers and use the same degree of care and skill in their exercise as
a prudent man would exercise or use under the circumstances in the conduct of
his own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee need perform only those duties that are specifically
set forth in this Indenture and no others; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates, notices or opinions
furnished to the Trustee and conforming to the requirements of this
Indenture. However, the Trustee shall examine the certificates, notices
and opinions to determine whether or not they conform to the requirements
of this Indenture.
(c) The Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct, except
that:
(1) this paragraph does not limit the effect of paragraph (b) of this
Section;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee may refuse to perform any duty or exercise any right or
power unless it receives indemnity satisfactory to it against any loss,
liability or expense.
- 35 -
(f) The Trustee shall not be liable for interest on any money received by
it except as the Trustee may agree with the Corporation.
SECTION 7.02. Rights of Trustee. (a) Subject to Section 7.01 the Trustee
may rely on any document believed by it to be genuine and to have been signed or
presented by the proper person. The Trustee need not investigate any fact or
matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may 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 the
Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible for the
misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within its rights or
powers.
SECTION 7.03. Individual Rights of Trustee, etc. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Corporation, the Guarantor or any of their
affiliates with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights. However, the Trustee must comply with
Sections 7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer. The Trustee makes no representations
as to the validity or adequacy of this Indenture or the Securities or the
Guarantees, it shall not be accountable for the Corporation's use of the
proceeds from the Securities, and it shall not be responsible for any statement
in the Securities or in the Guarantees other than its certificate of
authentication.
SECTION 7.05. Notice of Defaults. If a Default occurs with respect to a
series of Securities and is continuing and if it is known to the Trustee, the
Trustee shall mail to each Holder of Securities of that series notice of the
Default within 90 days after it occurs. Except in the case of a default in
payment on any Security, 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 such Holders.
SECTION 7.06. Reports by Trustee to Holders. If required pursuant to TIA
Section 313(a), the Trustee, within 60 days after each May 15, shall mail to
each Securityholder a brief report dated as of May 15 that complies with TIA
Section 313(a). The Trustee also shall comply with the reporting obligations of
TIA Section 313(b).
- 36 -
A copy of each report at the time of its mailing to Securityholders shall
be filed with the SEC and each stock exchange on which the Securities are
listed. The Corporation agrees to notify the Trustee whenever the Securities
become listed on any stock exchange.
SECTION 7.07. Compensation and Indemnity. The Corporation shall pay to
the Trustee from time to time reasonable compensation for its services. The
Corporation shall reimburse the Trustee upon request for all reasonable out-of-
pocket expenses incurred by it. Such expenses shall include the reasonable
compensation and expenses of the Trustee's agents and counsel. The Corporation
shall indemnify the Trustee against any loss or liability incurred by it in
connection with the administration of this trust and its duties hereunder. The
Trustee shall notify the Corporation promptly of any claim for which it may seek
indemnity. The Corporation need not pay for any settlement made without its
consent. The Corporation need not reimburse any expense or indemnify against
any loss or liability incurred by the Trustee through negligence or bad faith.
To secure the Corporation's payment obligations in this Section, the
Trustee shall have a senior claim to which the Securities are hereby made
subordinate on all money or property held or collected by the Trustee, except
that held in trust to pay principal of and interest, if any, on particular
Securities.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(4) or (5) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
SECTION 7.08. Replacement of Trustee. The Trustee may resign with respect
to the Securities of one or more series by so notifying the Corporation. The
Holders of a majority in principal amount of the Securities of any series may
remove the Trustee with respect to that series by so notifying the removed
Trustee and may appoint a successor Trustee with the Corporation's consent. The
Corporation may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of the Trustee or
its property; or
(4) 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, the Corporation shall promptly appoint a successor
Trustee.
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A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Corporation. Immediately after that, the
retiring Trustee shall transfer all property held by it as Trustee for the
benefit of the series with respect to which it is retiring to the successor
Trustee, the resignation or removal of the retiring Trustee shall then become
effective, and the successor Trustee shall have all the rights, powers and
duties of the Trustee under this Indenture with respect to that series. A
successor Trustee shall mail notice of its succession to each Holder of the
Securities of the series affected.
If pursuant to Section 2.03(5) a trustee, other than the Trustee initially
named in this Indenture (or any successor thereto), is appointed with respect to
one or more series of Securities, the Corporation, the Guarantor, the Trustee
initially named in this Indenture (or any successor thereto) and such newly
appointed trustee shall execute and deliver a supplement to this Indenture which
shall contain such provisions as shall be necessary or desirable to confirm that
all the rights, powers, trusts and duties of the Trustee initially named in this
Indenture (or any successor thereto) with respect to the Securities of any
series as to which the Trustee is continuing as trustee hereunder shall continue
to be vested in the Trustee initially named in this Indenture (or any successor
thereto), and shall add to, supplement or change any of the provisions of this
Indenture as shall be necessary or desirable to provide for or facilitate the
administration of the trusts hereunder by more than one trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such trustees co-trustees of the same trust and that each such
trustee shall be trustee of a trust or trusts relating to the separate series of
Securities as if it were acting under a separate indenture.
If a successor Trustee with respect to a series of Securities does not take
office within 60 days after the retiring Trustee resigns or is removed, the
retiring Trustee, the Corporation or the Holders of a majority in principal
amount of the Securities of that series may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
If the Trustee with respect to a series of Securities fails to comply with
Section 7.10, any Holder of Securities of that series may petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor Trustee.
If there are two or more Trustees at any time under this Indenture, each
will be the Trustee of a separate trust held under this Indenture for the
benefit of the series of Securities for which it is acting as Trustee and the
rights and obligations of each Trustee will be determined as if it were acting
under a separate indenture.
SECTION 7.09. Successor Trustee by Merger, etc. If the Trustee
consolidates with, merges or converts into or transfers all
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or substantially all its corporate trust assets to another corporation, the
resulting, surviving or transferee corporation without any further act shall be
the successor Trustee.
SECTION 7.10. Eligibility; Disqualification. This Indenture shall always
have a Trustee that satisfies the requirements of TIA Section 310(a). The
Trustee shall have a combined capital and surplus of at least $5,000,000 as set
forth in its most recent published annual report of condition. The Trustee shall
comply with TIA Section 310(b), provided that the question whether the Trustee
has a conflicting interest shall be determined as if each series of Securities
were separate issues of securities issued under separate indentures.
SECTION 7.11. Preferential Collection of Claims Against Corporation. 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 8
SATISFACTION, DISCHARGE AND DEFEASANCE
SECTION 8.01. Satisfaction and Discharge Under Limited Circumstances. If
at any time (a) all Securities of a series previously authenticated (other than
any Securities destroyed, lost or stolen and replaced or paid as provided in
Section 2.08) shall have been delivered to the Trustee for cancellation, or (b)
all the Securities of a series not previously delivered to the Trustee for
cancellation shall have become due and payable, the Corporation has deposited or
caused to be deposited with the Trustee as trust funds the entire amount (other
than moneys paid to the Corporation in accordance with Section 8.05) sufficient
to pay at maturity or upon redemption all Securities of that series not
previously delivered to the Trustee for cancellation, including principal and
interest, if any, due, and if, in either case, the Corporation shall also pay
all other sums then payable under this Indenture by the Corporation, then this
Indenture shall cease to be of further effect with respect to Securities of that
series and the related Guarantees, and the Trustee, on demand of and at the cost
and expense of the Corporation, shall execute proper instruments acknowledging
satisfaction of and discharging this Indenture with respect to Securities of
that series and the related Guarantees. The Corporation will reimburse the
Trustee for any subsequent costs or expenses reasonably and properly incurred by
the Trustee in connection with this Indenture, the Securities or the related
Guarantees.
SECTION 8.02. Satisfaction and Discharge of Indenture. The Corporation
may take any action provided for in this Section unless the Securities of the
affected series specifically provide that this Section shall not apply to the
series. The Corporation at any
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time at its option may terminate all of its obligations and the obligations of
the Guarantor under the Securities of a series previously authenticated and its
obligations under this Indenture with respect to such series (except as provided
below), and the Trustee, at the expense of the Corporation, shall, upon the
request of the Corporation, execute proper instruments acknowledging
satisfaction of and discharging this Indenture with respect to Securities of
that series, effective on the date the following conditions are satisfied:
(1) with reference to this Section, the Corporation has deposited or
caused to be deposited with the Trustee, as trust funds in trust,
specifically pledged as security for and dedicated solely to the benefit of
the Holders of the Securities of that series, (a) lawful money, in the
currency or currencies in which Securities of that series are payable, in
an amount, or (b) if the Securities of that series are payable in Dollars,
U.S. Government Obligations which through the payment of interest and
principal in respect thereof in accordance with their terms (and, as to
callable U.S. Government Obligations, regardless of when they are called)
will provide not later than the opening of business on the due dates of any
payment of the principal of and any interest on the Securities of that
series lawful money of the United States in an amount, or (c) Securities of
that series, or (d) a combination thereof, sufficient to pay and discharge
the principal of and interest, if any, on the Securities of that series on
the date on which such payments are due and payable in accordance with the
terms of this Indenture and of the Securities of that series and 91 days
have passed during which no Event of Default under Section 6.01(4) or
6.01(5) has occurred;
(2) if the Securities of that series are then listed on any national
securities exchange, the Corporation shall have delivered to the Trustee an
Opinion of Counsel to the effect that such deposit, defeasance and
discharge will not cause such Securities to be delisted; and
(3) the Corporation has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, complying with Section 11.04
relating to the Corporation's exercise of such option.
The trust established pursuant to subsection (1) above shall be irrevocable
and shall be made under the terms of an escrow trust agreement in form and
substance satisfactory to the Trustee. The escrow trust agreement may, at the
Corporation's election, grant the Corporation the right to substitute U.S.
Government Obligations or Securities of the same series from time to time for
any or all of the U.S. Government Obligations deposited with the Trustee
pursuant to this Section and the escrow trust agreement; provided, that the
condition specified in subsection (1) above is satisfied immediately following
any such substitution or substitutions. If
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any Securities of a series are to be redeemed prior to their stated maturity
pursuant to optional redemption provisions the applicable escrow trust agreement
shall provide therefor and the Corporation shall make such arrangements as are
satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Corporation.
Upon the satisfaction of the conditions set forth in this Section with
respect to the Securities, the terms and conditions of the Securities and the
Guarantees, including the terms and conditions with respect thereto set forth in
this Indenture, shall no longer be binding upon, or applicable to, the
Corporation or the Guarantor.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Corporation under Sections 2.04, 2.05, 2.06, 2.07, 2.08,
2.10, 7.07 and 7.08 with respect to the Securities of that series shall survive
until the Securities of that series are no longer outstanding. Thereafter, the
Corporation's obligations in Section 7.07 shall survive.
"U.S. Government Obligations" means the following obligations:
(1) direct obligations of the United States for the payment of which
its full faith and credit is pledged; or
(2) obligations of a person controlled or supervised by and acting as
an agency or instrumentality of the United States the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the
United States.
SECTION 8.03. Defeasance of Certain Obligations. The Corporation may take
any action provided for in this Section unless the Securities of the affected
series specifically provide that this Section shall not apply to the series.
The Corporation and the Guarantor at any time at their option may cease to be
under any obligation to comply with Sections 4.03, 4.04, 4.06, 5.01 and 5.02
with respect to Securities of a series effective on the date the following
conditions are satisfied:
(1) with reference to this Section, the Corporation has deposited or
caused to be deposited with the Trustee irrevocably, as trust funds in
trust, specifically pledged as security for and dedicated solely to the
benefit of the Holders of the Securities of that series, (a) lawful money,
in the currency or currencies in which Securities of that series are
payable, in an amount, or (b) if the Securities of that series are payable
in Dollars, U.S. Government Obligations which through the payment of
interest and principal in respect thereof in accordance with their terms
(and, as to callable U.S. Government Obligations, regardless of when they
are called) will provide not later than the opening of business on the due
dates of any payment of principal of and interest on the Securities of that
series lawful money of the United
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States in an amount, or (c) Securities of that issue, or (d) a combination
thereof, sufficient to pay and discharge the principal of and interest on
the Securities of that series on the day on which such payments are due and
payable in accordance with the terms of this Indenture and of the
Securities of that series; and
(2) the Corporation has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel complying with Section 11.04 relating
to the Corporation's exercise of such option.
The trust established pursuant to subsection (1) above shall be irrevocable
and shall be made under the terms of an escrow trust agreement in form and
substance satisfactory to the Trustee. The escrow trust agreement may, at the
Corporation's election, grant the Corporation the right to substitute U.S.
Government Obligations or Securities of the same series from time to time for
any or all of the U.S. Government Obligations deposited with the Trustee
pursuant to this Section and the escrow trust agreement; provided, that the
condition specified in subsection (1) above is satisfied immediately following
any such substitution or substitutions. If any Securities of a series are to be
redeemed prior to their stated maturity pursuant to optional redemption
provisions the applicable escrow trust agreement shall provide therefor and the
Corporation shall make such arrangements as are satisfactory to the Trustee for
the giving of notice of redemption by the Trustee in the name, and at the
expense, of the Corporation.
The Corporation's exercise of its option under this Section shall not
preclude the Corporation from subsequently exercising its option under Section
8.02 hereof and the Corporation may so exercise that option by providing the
Trustee with written notice to such effect.
SECTION 8.04. Application of Trust Money. The Trustee shall hold in trust
money, U.S. Government Obligations, and Securities of that series deposited with
it pursuant to Sections 8.01, 8.02 or 8.03. It shall apply the deposited money
and U.S. Government Obligations through the Paying Agent and in accordance with
this Indenture, to the payment of principal and interest, if any, on the
Securities of the series for the payment of which such money and U.S. Government
Obligations has been deposited. The Holder of any Security replaced pursuant to
Section 2.08 shall not be entitled to any such payment and shall look only to
the Corporation for any payment which such Holder may be entitled to collect.
In connection with the satisfaction and discharge of this Indenture or the
defeasance of certain obligations under this Indenture with respect to
Securities of a series pursuant to Section 8.02 or Section 8.03 hereof,
respectively, the escrow trust agreement may, at the Corporation's election, (1)
enable the Corporation to direct the Trustee to invest any money received by the
Trustee on the U.S. Government Obligations deposited in trust thereunder in
additional U.S. Government Obligations and (2) enable the Corporation to
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withdraw monies or U.S. Government Obligations from the trust from time to time;
provided, that the condition specified in Section 8.02(1) or 8.03(1) is
satisfied immediately following any investment of such money by the Trustee or
the withdrawal of monies or U.S. Government Obligations from the trust by the
Corporation as the case may be.
SECTION 8.05. Repayment to Corporation. The Trustee and the Paying Agent
shall promptly pay to the Corporation upon request any excess money or
securities held by them at any time. The Trustee and the Paying Agent shall
pay, unless otherwise prohibited by mandatory provisions of applicable escheat
or abandoned or unclaimed property law, to the Corporation upon request any
money held by them for the payment of principal or interest, if any, that
remains unclaimed for two years.
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders. The Corporation and the
Guarantor may amend or supplement this Indenture or the Securities of any series
without notice to or consent of any Securityholder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Article 5;
(3) to provide for uncertificated Securities in addition to or in
place of certificated Securities;
(4) to effectuate or comply with the provisions of Section 2.03(5) or
7.08;
(5) to change or eliminate any of the provisions of this Indenture;
provided, however, that any such change or elimination shall become
effective only when there is no outstanding Security of any series created
prior to the execution of such amendment or supplement that is entitled to
the benefit of such provision;
(6) to make any change that does not materially adversely affect the
rights of any Holder of any Security of that series; or
(7) to add or change or eliminate any provisions of this Indenture as
shall be necessary or desirable in accordance with any amendments to the
TIA.
The Trustee may waive compliance by the Corporation or the Guarantor with
any provision of this Indenture or the Securities of
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any series without notice to or consent of any Securityholder if the waiver does
not materially adversely affect the rights of any Holder of any Securities of
that series.
SECTION 9.02. With Consent of Holders. The Corporation and the Guarantor
may amend or supplement this Indenture or the Securities without notice to any
Securityholder but with the written consent of the Holders of not less than a
majority in principal amount of the Securities of each series affected and the
Trustee shall execute any such amendment or supplement at the direction of the
Corporation and the Guarantor. The Holders of a majority in principal amount of
the Securities of each series affected may waive compliance by the Corporation
or the Guarantor with any provision of this Indenture or the Securities of each
such series or the related Guarantees without notice to any Securityholder.
However, without the consent of each Securityholder affected, an amendment,
supplement or waiver, including a waiver pursuant to Section 6.04, may not:
(1) reduce the amount of Securities of any series whose Holders must
consent to an amendment, supplement or waiver;
(2) reduce the rate of or extend the time for payment of interest on
any Security;
(3) reduce the principal of or extend the fixed maturity of any
Security;
(4) reduce the portion of the principal amount of a Discounted
Security payable upon acceleration of its maturity; or
(5) make any Security payable in a currency or currency unit other
than that stated in the Security.
It shall not be necessary for any Act of Holders under this Section to approve
the particular form of any proposed supplement or amendment, but it shall be
sufficient if such Act shall approve the substance thereof.
SECTION 9.03. Compliance with Trust Indenture Act of 1939. Every
amendment to or supplement of this Indenture or the Securities shall comply with
the TIA as then in effect.
SECTION 9.04. Revocation and Effect of Consents. A consent to an
amendment, supplement or waiver by a Holder of a Security shall bind the Holder
and every subsequent Holder of that Security or portion of the Security that
evidences the same debt as the consenting Holder's Security, even if notation of
the consent is not made on the Security. However, any such Holder or subsequent
Holder may revoke the consent as to his Security or portion of the Security.
The Trustee must receive the notice of revocation before the date the amendment,
supplement or waiver becomes effective.
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After an amendment, supplement or waiver becomes effective, it shall bind
every Securityholder unless it makes a change described in clauses (2), (3), (4)
or (5) of Section 9.02. In that case the amendment, supplement or waiver shall
bind each Holder of a Security who has consented to it and every subsequent
Holder of a Security or portion of a Security that evidences the same debt as
the consenting Holder's Security.
SECTION 9.05. Notation on or Exchange of Securities. If an amendment,
supplement or waiver changes the terms of a Security, the Trustee may require
the Holder of the Security to deliver it to the Trustee. The Trustee may place
an appropriate notation on the Security about the changed terms and return it to
the Holder. Alternatively, if the Corporation or the Trustee so determine, the
Corporation in exchange for the Security shall issue and the Trustee shall
authenticate a new Security that reflects the changed terms.
SECTION 9.06. Trustee to Sign Amendments, etc. The Trustee shall sign any
amendment, supplement or waiver authorized pursuant to this Article if the
amendment, supplement or waiver 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, supplement or waiver the Trustee shall
be entitled to receive, and (subject to Section 7.01) shall be fully protected
in relying upon, an Opinion of Counsel stating that such amendment, supplement
or waiver is authorized or permitted by this Indenture. Neither the Corporation
nor the Guarantor may sign an amendment or supplement unless authorized by an
appropriate Board Resolution.
ARTICLE 10
GUARANTEE OF SECURITIES
SECTION 10.01. Unconditional Guarantee. The Guarantor hereby fully and
unconditionally guarantees to each Holder of a Security authenticated and
delivered by the Trustee, and to the Trustee, the due and punctual payment of
the principal of and interest, if any, on such Security, when and as the same
shall become due and payable, whether by declaration thereof or otherwise in
accordance with the terms of such Security and of this Indenture.
The Guarantor hereby agrees that its obligations hereunder shall be as if
it were principal debtor and not merely surety and shall be absolute and
unconditional, irrespective of, and shall be unaffected by, any invalidity,
irregularity or unenforceability of any such Security or this Indenture, any
failure to enforce the provisions of any such Security or this Indenture, any
waiver, modification or indulgence granted to the Corporation with respect
thereto, by the Holder of such Security or the Trustee, or any other
circumstances that otherwise may constitute a legal or
- 45 -
equitable discharge of a surety or guarantor; provided that, notwithstanding the
foregoing, no such waiver, modification, indulgence or circumstance shall,
without the consent of the Guarantor, increase the principal amount of a
Security or the interest rate thereon or increase any premium payable upon
redemption thereof. The Guarantor hereby agrees that this Guarantee shall be
enforceable without any demand, suit or proceeding first against the
Corporation. The Guarantor hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of merger or bankruptcy of
the Corporation, any right to require a proceeding first against the
Corporation, protest or notice with respect to any such Security or the
indebtedness evidenced thereby or with respect to any sinking fund payment
required by the terms of such Security and all demands whatsoever and covenants
that this Guarantee will not be discharged as to any such Security except in
accordance with Section 8.01 or 8.02 or by payment in full of the principal of
and interest, if any, on such Security.
The Guarantor will be subrogated to all rights of the Holder against the
Corporation in respect of any amount paid by the Guarantor pursuant to the
provisions of the Guarantee; provided, however, that the Guarantor shall not be
entitled to enforce, or to receive any payments arising out of or based upon,
such right of subrogation until the principal of and interest, if any, on such
Security shall have been paid in full.
The Guarantee set forth in this Section 10.01 shall not be valid or become
obligatory for any purpose with respect to a Security until the certificate of
authentication on such Security shall have been signed by the Trustee.
SECTION 10.02. Execution and Delivery of Guarantees. Subject to Section
2.01, the Guarantor hereby agrees to execute the Guarantee in substantially the
form set forth in Section 10.03 to be endorsed on each Security authenticated
and delivered by the Trustee. The delivery of such Security by the Trustee,
after the authentication thereof hereunder, shall constitute due delivery of
such Guarantee on behalf of the Guarantor.
SECTION 10.03. Form of Guarantee. Guarantees to be endorsed on the
Securities shall, subject to Section 2.01, be in substantially the form set
forth below:
GUARANTEE OF LOCKHEED XXXXXX TACTICAL SYSTEMS, INC.
For value received, Lockheed Xxxxxx Tactical Systems, Inc., a New York
corporation (the "Guarantor"), hereby fully and unconditionally guarantees
to the Holder of the Security upon which this Guarantee is endorsed the due
and punctual payment of the principal of, premium, if any, and interest, if
any, on said Security, when and as the same shall become due and payable,
whether by
- 46 -
declaration thereof or otherwise, according to the terms thereof and of the
Indenture referred to therein.
The Guarantor hereby agrees that its obligations hereunder shall be
absolute and unconditional, irrespective of, and shall be unaffected by,
any failure to enforce the provisions of said Security or said Indenture,
any extension, renewal, settlement, compromise, waiver, consent or
indulgence granted to the Corporation with respect thereto, by operation of
law or otherwise, or any other circumstance which may otherwise constitute
a legal or equitable discharge of a surety or guarantor; provided that,
notwithstanding the foregoing, no such extension, renewal, settlement,
compromise, waiver, consent, indulgence or circumstance shall, without the
consent of the Guarantor, increase the principal amount of, premium, if
any, or interest, if any, on said Security. The Guarantor hereby agrees
that this Guarantee shall be enforceable without any demand, suit or
proceeding first against the Corporation. The Guarantor hereby waives
diligence, presentment, demand of payment, filing of claims with a court in
the event of insolvency or bankruptcy of the Corporation, any right to
require a proceeding first against the Corporation, protest or notice with
respect to said Security or the indebtedness evidenced thereby or with
respect to any sinking fund payment required by the terms of said Security
and all demands whatsoever, and covenants that this Guarantee will not be
discharged except in accordance with certain provisions set forth in the
Indenture or by payment in full of the principal of, premium, if any, and
interest, if any, on said Security.
The Guarantor will be subrogated to all rights of the Holder against
the Corporation in respect of any amount paid by the Guarantor pursuant to
the provisions of this Guarantee; provided, however, that the Guarantor
shall not be entitled to enforce, or to receive any payments arising out of
or based upon, such right of subrogation until the principal of, premium,
if any, and interest, if any, on said Security shall have been paid in
full.
Notwithstanding the foregoing, the obligations of the Guarantor under
this Guarantee shall be limited to an amount equal to the largest amount
that would not render its obligations under this Guarantee subject to
avoidance under Section 548 of the United States Bankruptcy Code or any
comparable provisions of any applicable state law.
This Guarantee shall not be valid or become obligatory for any purpose
until the certificate of authentication on said Security shall have been
signed manually by the Trustee under the Indenture referred to
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in said Security. Terms used herein which are defined in such Indenture
shall have the respective meanings assigned thereto in the Indenture.
This Guarantee shall be deemed to be a contract made under the laws of
the State of ________, and for all purposes shall be governed by and
construed in accordance with the laws of such State, except as may
otherwise be required by mandatory provisions of law.
IN WITNESS WHEREOF, this Guarantee has been duly executed as of the
date of authentication on said Security.
LOCKHEED XXXXXX TACTICAL
SYSTEMS, INC.
By:______________________(SEAL)
______________________________
ARTICLE 11
MISCELLANEOUS
SECTION 11.01. TIA Controls. If any provision of this Indenture limits,
qualifies or conflicts with another provision which is required to be included
in this Indenture by the TIA, the required provision shall control.
SECTION 11.02 Notices. Any notice or communication shall be sufficiently
given if in writing and delivered in person or mailed by first-class mail
addressed as follows:
if to the Corporation:
Lockheed Xxxxxx Corporation
Attention: Treasurer
0000 Xxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
if to the Guarantor:
Lockheed Xxxxxx Tactical Systems, Inc.
Attention: Treasurer
0000 Xxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
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if to the Trustee:
______________________________
______________________________
______________________________
______________________________
The Corporation, the Guarantor or the Trustee by notice to the others may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication mailed to a Securityholder shall be mailed to
the Securityholder 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.
Failure to mail a notice of communication to a Securityholder or any defect
in it shall not affect its sufficiency with respect to other Securityholders.
If a notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it.
SECTION 11.03. 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 Corporation, the Guarantor, the Trustee, the Registrar and
anyone else shall have the protection of TIA Section 312(c).
SECTION 11.04. Certificate and Opinion as to Conditions Precedent. Upon
any request or application by the Corporation or the Guarantor to the Trustee to
take any action under this Indenture, the Corporation or the Guarantor, as the
case may be, shall furnish to the Trustee:
(1) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 11.05. Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include:
(1) a statement that the person making such certificate or opinion has
read such covenant or condition;
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(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such person, the person has
made such examination or investigation as is necessary to enable the person
to express an informed opinion as to whether such covenant or condition has
been complied with;
(4) a statement as to whether or not, in the opinion of such person,
such condition or covenant has been complied with.
SECTION 11.06. When Treasury Securities Disregarded. In determining
whether the Holders of the required principal amount of Securities have
concurred in any direction, waiver or consent, Securities owned by the
Corporation or the Guarantor, or by any person directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Corporation or the Guarantor, shall be disregarded, except that for the purpose
of determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Securities which the Trustee knows are so
owned shall be so disregarded. Also, subject to the foregoing, only Securities
outstanding at the time shall be considered in any such determination.
SECTION 11.07. Rules by Trustee, Paying Agent, Registrar. The Trustee may
make reasonable rules for action by or a meeting of Securityholders. The Paying
Agent or Registrar may make reasonable rules for its functions.
SECTION 11.08. Legal Holidays. A "Legal Holiday" is a Saturday, a Sunday,
a legal holiday or a day on which banking institutions are not required to be
open. If a payment date is a Legal Holiday at a place of payment, payment shall
be made at that place on the next succeeding day that is not a Legal Holiday,
and no interest shall accrue for the intervening period. If a regular record
date is a Legal Holiday in the state or other jurisdiction in which the Trustee
maintains its principal place of business, then the record date shall be the
next succeeding day that is not a Legal Holiday in such state or other
jurisdiction.
SECTION 11.09. Governing Law. The laws of the State of ________ shall
govern this Indenture and the Securities.
SECTION 11.10. No Adverse Interpretation of Other Agreements. This
Indenture may not be used to interpret another indenture, loan or debt agreement
of the Corporation, the Guarantor or any Subsidiary of the Corporation or the
Guarantor. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.
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SECTION 11.11. No Recourse Against Others. A director, officer, employee or
stockholder (other than the Corporation as issuer of the Debt Securities), as
such, of the Corporation or the Guarantor shall not have any liability for any
obligation of the Corporation or the Guarantor under the Securities or the
Guarantees or the Indenture or for any claim based on, with respect to or by
reason of such obligations or their creation. All such liability is waived and
released as a condition of, and as partial consideration for, the execution of
this Indenture, the issue of the Securities and the execution of the Guarantees.
SECTION 11.12. Securities in a Foreign Currency. Unless otherwise
specified in an Officers' Certificate delivered pursuant to Section 2.01 of this
Indenture with respect to a particular series of Securities, whenever for
purposes of this Indenture any action may be taken by the holders of a specified
percentage in aggregate principal amount of Securities of all series at the time
outstanding and, at such time, there are outstanding Securities of any series
which are denominated in a Foreign Currency, then the principal amount of
Securities of such series which shall be deemed to be outstanding for the
purpose of taking such action shall be that amount of Dollars that could be
obtained for such amount at the Market Exchange Rate on the record date fixed
for such action or, if no record date is fixed, on the New York Banking Day
immediately preceding the date of such action.
SECTION 11.13. Judgment Currency. If, for the purpose of obtaining a
judgment in any court with respect to any obligation of the Corporation
hereunder or under any Security or any related coupon it shall become necessary
to convert into any other currency or currency unit any amount in the currency
or currency unit due hereunder or under such Security or coupon then such
conversion shall be made by the Currency Determination Agent at the Market
Exchange Rate as in effect on the date of entry of the judgment (the "Judgment
Date"). If pursuant to any such judgment, conversion shall be made on a date
(the "Substitute Date") other than the Judgment Date and there shall occur a
change between the Market Exchange Rate as in effect on the Judgment Date and
the Market Exchange Rate as in effect on the Substitute Date, the Corporation
agrees to pay such additional amounts (if any) as may be necessary to ensure
that the amount paid is equal to the amount in such other currency or currency
unit which, when converted at the Market Exchange Rate as in effect on the
Judgment Date, is the amount due hereunder or under such Security or coupon.
Any amount due from the Corporation under this Section shall be due as a
separate debt and is not to be affected by or merged into any judgment being
obtained for any other sums due hereunder or with respect to any Security or
coupon. In no event, however, shall the Corporation be required to pay more in
the currency or currency unit due hereunder or under such Security or coupon at
the Market Exchange Rate as in effect on the Judgment Date than the amount of
currency or currency unit stated to be due hereunder or under such Security or
coupon so that in any event the Corporation's obligations hereunder or under
such Security or coupon will be
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effectively maintained as obligations in such currency or currency unit, and the
Corporation shall be entitled to withhold (or be reimbursed for, as the case may
be) any excess of the amount actually realized upon any such conversion on the
Substitute Date over the amount due and payable on the Judgment Date.
SECTION 11.14. Successors. All agreements of the Corporation and the
Guarantor in this Indenture and the Securities and the related Guarantees shall
bind its successor. All agreements of the Trustee in this Indenture shall bind
its successor.
SECTION 11.15. Duplicate Originals. The parties may sign any number of
copies of this Indenture. One signed copy is enough to prove this Indenture.
SECTION 11.16. Acts of Holders; Record Dates.
(a) 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 agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Corporation.
Such instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 7.1(e)) conclusive in favor of the Trustee and
the Corporation, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgements of deeds, certifying that the individual signing
such instrument or writing acknowledged to such officer the execution thereof.
Where such execution is a by a signer acting in a capacity other than such
signer's individual capacity, such certificate or affidavit shall also
constitute sufficient proof of such signer's authority. The fact and date of
the execution of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner which the Trustee
deems sufficient.
(c) The Corporation may, in the circumstances permitted by the TIA,
fix any day as the record date for the purpose of determining the Holders of
Securities of any series entitled to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action, or to vote on
any action, authorized or permitted to be given or taken by Holders of
Securities of such series. If not set by the Corporation prior to
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the first solicitation of a Holder of Securities of such series made by any
person in respect of any such action, or, in the case of any such vote, prior to
such vote, the record date for any such action or vote shall be the 30th day
(or, if later, the date of the most recent list of Holders required to be
provided pursuant to Section 2.6) prior to such first solicitation or vote, as
the case may be. With regard to any record date for action to be taken by the
Holders of one or more series of Securities, only the Holders of Securities of
such series on such date (or their duly designated proxies) shall be entitled to
give or take, or vote on, the relevant action.
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SIGNATURES
Attest: LOCKHEED XXXXXX CORPORATION
______________________________ By: ___________________________(Seal)
Secretary
Attest: LOCKHEED XXXXXX TACTICAL
SYSTEMS, INC., as Guarantor
______________________________ By:___________________________(Seal)
Secretary
Attest: [TRUSTEE], as Trustee
______________________________ By:___________________________(Seal)
Secretary
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