EXECUTION COPY
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INCO LIMITED
TO
THE BANK OF NEW YORK,
Trustee
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SUBORDINATED INDENTURE
Dated as of March 7, 2003
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INCO LIMITED
CERTAIN SECTIONS OF THIS INDENTURE RELATING TO SECTIONS 310 THROUGH 318,
INCLUSIVE, OF THE TRUST INDENTURE ACT OF 1939:
TRUST INDENTURE INDENTURE SECTION
ACT SECTION
ss.310(a)(1) ........................................ 609
(a)(2) ........................................ 609
(a)(3) ........................................ Not Applicable
(a)(4) ........................................ Not Applicable
(b) ........................................ 608
610
ss.311(a) ........................................ 613
(b) ........................................ 613
ss.312(a) ........................................ 701
702
(b) ........................................ 702
(c) ........................................ 702
ss.313(a) ........................................ 703
(b) ........................................ 703
(c) ........................................ 703
(d) ........................................ 703
ss.314(a) ........................................ 704
(a)(4) ........................................ 101
1004
(b) ........................................ Not Applicable
(c)(1) ........................................ 102
(c)(2) ........................................ 102
(c)(3) ........................................ Not Applicable
(d) ........................................ Not Applicable
(e) ........................................ 102
ss.315(a) ........................................ 601
(b) ........................................ 602
(c) ........................................ 601
(d) ........................................ 601
(e) ........................................ 514
ss.316(a) ........................................ 101
(a)(1)(A) ........................................ 502
512
(a)(1)(B) ........................................ 513
(a)(2) ........................................ Not Applicable
(b) ........................................ 508
(c) ........................................ 104
ss.317(a)(1) ........................................ 503
(a)(2) ........................................ 504
(b) ........................................ 1003
ss.318(a) ........................................ 107
TABLE OF CONTENTS
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PARTIES........................................................................1
RECITALS.......................................................................1
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION............1
Section 101. Definitions.......................................................1
Accredited Investor Letter................................................2
Act.......................................................................2
Additional Interest.......................................................2
Additional Trustee........................................................2
Affiliate.................................................................2
Agent Member..............................................................2
Applicable Procedures.....................................................2
Authenticating Agent......................................................2
Board of Directors........................................................2
Board Resolution..........................................................2
Business Day..............................................................3
Certificated Security.....................................................3
Clearstream...............................................................3
Commission................................................................3
Company...................................................................3
Company Request...........................................................3
Corporate Trust Office....................................................3
corporation...............................................................3
Defaulted Interest........................................................3
Depositary................................................................3
Depository Securities Certification.......................................3
DTC.......................................................................3
Euroclear.................................................................3
Event of Default..........................................................4
Exchange Act..............................................................4
Exchange Offer............................................................4
Exchange Registration Statement...........................................4
Exchange Security.........................................................4
Expiration Date...........................................................4
Expiration Period.........................................................4
GAAP......................................................................4
Global Security...........................................................4
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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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Holder....................................................................4
Indenture.................................................................4
Institutional Accredited Investor.........................................4
interest..................................................................4
Interest Payment Date.....................................................5
Investment Company Act....................................................5
Issue Date................................................................5
Maturity..................................................................5
Notice of Default.........................................................5
Officers' Certificate.....................................................5
Opinion of Counsel........................................................5
Original Issue Discount Security..........................................5
Original Securities.......................................................5
Other Additional Amounts..................................................5
Outstanding...............................................................5
Paying Agent..............................................................6
Person....................................................................6
Place of Payment..........................................................6
Predecessor Security......................................................6
Purchase Agreement........................................................7
Qualified Institutional Buyer.............................................7
Record Date...............................................................7
Record Date Period........................................................7
Redemption Date...........................................................7
Redemption Price..........................................................7
Registered Securities.....................................................7
Registration Default......................................................7
Registration Rights Agreement.............................................7
Regular Record Date.......................................................7
Regulation S..............................................................7
Regulation S Certificate..................................................7
Regulation S Global Security..............................................7
Regulation S Legend.......................................................7
Regulation S Securities...................................................7
Relevant Taxing Jurisdiction..............................................7
Repayment Date............................................................8
Repayment Price...........................................................8
Resale Registration Statement.............................................8
Responsible Officer.......................................................8
Restricted Global Security................................................8
Restricted Period.........................................................8
Restricted Securities.....................................................8
Restricted Securities Certificate.........................................8
Restricted Securities Legend..............................................8
Rule 144A.................................................................8
Rule 144A Securities......................................................8
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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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Securities................................................................8
Securities Act............................................................8
Securities Act Legend.....................................................9
Securities Register.......................................................9
Senior Indebtedness.......................................................9
Special Interest..........................................................9
Special Record Date.......................................................9
Specified Taxes...........................................................9
Stated Maturity...........................................................9
Subsidiary................................................................9
Successor Corporation....................................................10
Successor Security.......................................................10
Temporary Regulation S Global Security...................................10
Transferee Securities Certification......................................10
Trust Indenture Act......................................................10
Trustee..................................................................10
Vice President...........................................................10
Section 102. Compliance Certificates and Opinions.............................10
Section 103. Form of Documents Delivered to Trustee...........................11
Section 104. Acts of Holders; Record Dates....................................11
Section 105. Notices, Etc., to Trustee and Company............................13
Section 106. Notice to Holders; Waiver........................................13
Section 107. Conflict with Trust Indenture Act................................14
Section 108. Effect of Headings and Table of Contents.........................14
Section 109. Successors and Assigns...........................................14
Section 110. Separability Clause..............................................14
Section 111. Benefits of Indenture............................................14
Section 112. Governing Law....................................................14
Section 113. Legal Holidays...................................................15
ARTICLE TWO SECURITY FORMS....................................................15
Section 201. Forms Generally..................................................15
Section 202. Form of Face of Security.........................................17
Section 203. Form of Reverse of Security......................................21
Section 204. Form of Legend for Securities....................................25
Section 205. Form of Trustee's Certificate of Authentication..................28
ARTICLE THREE THE SECURITIES..................................................28
Section 301. Amount Unlimited; Issuable in Series.............................28
Section 302. Denominations....................................................31
Section 303. Execution, Authentication, Delivery and Dating...................31
Section 304. Temporary Securities.............................................33
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NOTE: This table of contents shall not, for any purpose, be deemed to be a
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Section 305. Registration, Registration of Transfer and Exchange;
Certain Transfers and Exchanges.................................33
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.................41
Section 307. Payment of Interest and Additional Interest; Interest
Rights Preserved................................................42
Section 308. Persons Deemed Owners............................................43
Section 309. Cancellation.....................................................43
Section 310. Computation of Interest..........................................44
Section 311. Deferrals of Interest Payment Dates..............................44
Section 312. CUSIP Numbers....................................................45
ARTICLE FOUR SATISFACTION AND DISCHARGE.......................................46
Section 401. Satisfaction and Discharge of Indenture..........................46
Section 402. Application of Trust Money.......................................47
ARTICLE FIVE REMEDIES.........................................................47
Section 501. Events of Default................................................47
Section 502. Acceleration of Maturity; Rescission and Annulment...............49
Section 503. Collection of Indebtedness and Suits for Enforcement
by Trustee......................................................50
Section 504. Trustee May File Proofs of Claim.................................51
Section 505. Trustee May Enforce Claims Without Possession
of Securities...................................................51
Section 506. Application of Money Collected...................................51
Section 507. Limitation on Suits..............................................52
Section 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest and to Convert.............................52
Section 509. Restoration of Rights and Remedies...............................53
Section 510. Rights and Remedies Cumulative...................................53
Section 511. Delay or Omission Not Waiver.....................................53
Section 512. Control by Holders...............................................53
Section 513. Waiver of Past Defaults..........................................53
Section 514. Undertaking for Costs............................................54
Section 515. Waiver of Stay or Extension Laws.................................54
ARTICLE SIX THE TRUSTEE.......................................................54
Section 601. Certain Duties and Responsibilities..............................54
Section 602. Notice of Defaults...............................................56
Section 603. Certain Rights of Trustee........................................56
Section 604. Not Responsible for Recitals or Issuance of Securities...........57
Section 605. May Hold Securities..............................................57
Section 606. Money Held in Trust..............................................58
Section 607. Compensation and Reimbursement...................................58
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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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Section 608. Disqualification; Conflicting Interests..........................59
Section 609. Corporate Trustee Required; Eligibility..........................59
Section 610. Resignation and Removal; Appointment of Successor................59
Section 611. Acceptance of Appointment by Successor...........................60
Section 612. Merger, Conversion, Consolidation or Succession
to Business.....................................................61
Section 613. Preferential Collection of Claims Against Company................62
Section 614. Appointment of Authenticating Agent..............................62
Section 615. Appointment of Additional Trustees...............................63
ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY...............64
Section 701. Company to Furnish Trustee Names and Addresses of Holders........64
Section 702. Preservation of Information; Communications to Holders...........64
Section 703. Reports by Trustee...............................................65
Section 704. Reports by Company...............................................65
ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE............65
Section 801. Company May Consolidate, Etc., Only on Certain Terms.............65
Section 802. Taxing Jurisdiction..............................................66
Section 803. Successor Corporation Substituted................................67
ARTICLE NINE SUPPLEMENTAL INDENTURES..........................................68
Section 901. Supplemental Indentures Without Consent of Holders...............68
Section 902. Supplemental Indentures With Consent of Holders..................69
Section 903. Execution of Supplemental Indentures.............................70
Section 904. Effect of Supplemental Indentures................................70
Section 905. Conformity with Trust Indenture Act..............................70
Section 906. Reference in Securities to Supplemental Indentures...............71
Section 907. Subordination Unimpaired.........................................71
Section 908. Notice of Supplemental Indentures................................71
ARTICLE TEN COVENANTS.........................................................71
Section 1001. Payment of Principal; Premium and Interest......................71
Section 1002. Maintenance of Office or Agency.................................71
Section 1003. Money for Securities Payments to Be Held in Trust...............72
Section 1004. Corporate Existence.............................................73
Section 1005. Maintenance of Properties.......................................73
Section 1006. Payment of Taxes and Other Claims...............................73
Section 1007. Statement by Officers as to Default.............................74
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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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Section 1008. Waiver of Certain Covenants.....................................74
ARTICLE ELEVEN REDEMPTION OF SECURITIES.......................................74
Section 1101. Applicability of Article........................................74
Section 1102. Election to Redeem; Notice to Trustee...........................74
Section 1103. Selection by Trustee of Securities to Be Redeemed...............74
Section 1104. Notice of Redemption............................................75
Section 1105. Deposit of Redemption Price.....................................76
Section 1106. Securities Payable on Redemption Date...........................76
Section 1107. Securities Redeemed in Part.....................................77
Section 1108. Purchase of Securities..........................................77
ARTICLE TWELVE PURCHASE OR REPAYMENT OF SECURITIES BY THE COMPANY
AT OPTION OF HOLDERS..........................................................77
Section 1201. Applicability of Article........................................77
Section 1202. Notice of Repayment Date........................................77
Section 1203. Deposit of Repayment Price......................................78
Section 1204. Securities Payable on Repayment Date............................78
Section 1205. Securities Repaid in Part.......................................78
ARTICLE THIRTEEN SINKING FUNDS................................................79
Section 1301. Applicability of Article........................................79
Section 1302. Satisfaction of Sinking Fund Payments with Securities...........79
Section 1303. Redemption of Securities for Sinking Fund.......................79
ARTICLE FOURTEEN CONCERNING THE HOLDERS.......................................80
Section 1401. Action by Holders...............................................80
Section 1402. Proof of Record of Holders' Meeting.............................80
Section 1403. Identification of Company-Owned Securities......................80
Section 1404. Revocation of Consents; Future Holders Bound....................80
ARTICLE FIFTEEN HOLDERS' MEETINGS.............................................81
Section 1501. Purposes of Meetings............................................81
Section 1502. Call of Meetings By Trustee.....................................81
Section 1503. Call of Meetings By Company or Holders..........................81
Section 1504. Qualifications for Voting.......................................82
Section 1505. Regulations.....................................................82
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NOTE: This table of contents shall not, for any purpose, be deemed to be a
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Section 1506. Voting..........................................................83
Section 1507. No Delay of Rights by Meeting...................................83
ARTICLE SIXTEEN SUBORDINATION OF SECURITIES...................................83
Section 1601. Securities Subordinate to Senior Indebtedness...................83
Section 1602. No Payment When Senior Indebtedness in Default;
Payment Over of Proceeds Upon Dissolution, Etc.................84
Section 1603. Payment Permitted If No Default.................................85
Section 1604. Subrogation to Rights of Holders of Senior Indebtedness.........86
Section 1605. Provisions Solely to Define Relative Rights.....................86
Section 1606. Trustee to Effectuate Subordination.............................86
Section 1607. No Waiver of Subordination Provisions...........................87
Section 1608. Notice to Trustee...............................................87
Section 1609. Reliance on Judicial Order or Certificate of Liquidating
Agent..........................................................88
Section 1610. Trustee Not Fiduciary for Holders of Senior Indebtedness........88
Section 1611. Rights of Trustee as Holder of Senior Indebtedness;
Preservation of Trustee's Rights...............................88
Section 1612. Article Applicable to Paying Agents.............................89
Section 1613. Effect on Events of Default.....................................89
Section 1614. Acceleration of Securities......................................89
ARTICLE SEVENTEEN MISCELLANEOUS PROVISIONS....................................89
Section 1701. Consent to Jurisdiction and Service of Process..................89
Section 1702. Indenture and Securities Solely Corporate Obligations...........90
Section 1703. Execution in Counterparts.......................................91
TESTIMONIUM...................................................................88
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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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Annex A-1 - Form of Transfer Certificate - Restricted Global Security to
Temporary Regulation S Global Security
Annex A-2 - Form of Transfer Certificate - Restricted Global Security to
Regulation S Global Security
Annex B - Form of Transfer Certificate - Temporary Regulation S Global
Security or Regulation S Global Security to Restricted Global
Security
Annex C-1 - Form of Certification to be Given by Holders of Beneficial
Interest in a Temporary Regulation S Global Security to
Euroclear or Clearstream
Annex C-2 - Form of Certification to be Given by Euroclear Bank S.A./N.V.,
as operator of the Euroclear System, or Clearstream Banking
Annex C-3 - Form of Certification to be Given by Transferee of Beneficial
Interest in a Temporary Regulation S Global Security After the
Restricted Period
Annex D-1 - Form of Transfer Certificate - Non-Global Restricted Security
to Restricted Global Security
Annex D-2 - Form of Certificate - Non-Global Restricted Security to
Regulation S Global Security or Temporary Regulation S Global
Security
Annex E - Institutional Accredited Investor Letter
Annex F - Form of Instruction for Exchange
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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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SUBORDINATED INDENTURE, dated as of March 7, 2003, between INCO
LIMITED, a corporation duly organized and existing under the laws of Canada
(herein called the "Company"), having its principal office at 000 Xxxx Xxxxxx
Xxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx Xxxxxx X0X 0X0, and THE BANK OF NEW YORK, a
New York banking corporation duly organized and existing under the laws of the
State of New York, as Trustee (herein called the "Trustee").
RECITALS
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of the Company's
subordinated debentures, notes or other evidences of indebtedness (herein called
the "Securities"), to be issued in one or more series as provided in this
Indenture.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of any series thereof,
as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP;
(4) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may
be, of this Indenture;
(5) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision;
(6) All references to dollars and $ shall mean U.S. dollars unless
otherwise indicated; and
(7) when used with respect to any Security, the words "convert",
"converted" and "conversion" are intended to refer to the right of the
Holder or the Company to convert or exchange such Security into or for
securities or other property in accordance with such terms, if any, as may
hereafter be specified for such Security as contemplated by Section 301,
and these words are not intended to refer to any right of the Holder or the
Company to exchange such Security for other Securities of the same series
and like tenor pursuant to Section 304, 305, 306, 906, 1107 or 1205 or
another similar provision of this Indenture, unless the context otherwise
requires; and references herein to the terms of any Security that may be
converted mean such terms as may be specified for such Security as
contemplated in Section 301.
"Accredited Investor Letter" has the meaning specified in Section 201.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Additional Interest", means the interest, if any, that shall accrue on
any interest on the Securities of any series the payment of which has been
deferred pursuant to Section 311 and which shall accrue at the rate per annum
specified or determined as specified in such Security.
"Additional Trustee", has the meaning specified in Section 615.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent Member" means any member of, or participant in, the Depositary.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Security or beneficial interest therein, the
rules and procedures of the Depositary for such Security, Euroclear and
Clearstream, in each case to the extent applicable to such transaction and as in
effect from time to time.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Board of Directors" means either the board of directors of the Company
or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
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"Business Day", (i) when used with respect to any Place of Payment,
means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in that Place of Payment are authorized or obligated
by law to close and (ii) when used in any other context, means each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions in New York are authorized or obligated by law or executive order
to close.
"Certificated Security" has the meaning set forth in Section 201.
"Clearstream" means Clearstream Banking, societe anonyme, Luxembourg
(or any successor securities clearing agency).
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act, or, if at any time after
the execution of this instrument such Commission is not existing and performing
the duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by any one of its Chairman, any Vice Chairman,
its President, any Executive Vice President or any Vice President, together with
any one of its Treasurer, any Assistant Treasurer, its Secretary or any
Assistant Secretary, and delivered to the Trustee.
"Corporate Trust Office" means the principal office of the Trustee in
The City of New York at which at any particular time its corporate trust
business shall be administered, which office at the date hereof is located at
000 Xxxxxxx Xxxxxx, Xxxxx 8 West, New York, New York 10286, Attention: Corporate
Trust Administration, or such other address as the Trustee may designate from
time to time by notice to the Holders and the Company, or the principal
corporate trust office of any successor Trustee (or such other address as such
successor Trustee may designate from time to time by notice to the Holders and
the Company).
"corporation" means a corporation, association, company, limited
liability company, business trust or other entity.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to Securities of any series issuable
in whole or in part in the form of one or more Global Securities, a clearing
agency registered under the Exchange Act that is designated to act as Depositary
for such Securities as contemplated by Section 301.
"Depository Securities Certification" has the meaning specified in
Section 201.
"DTC" means The Depository Trust Company.
"Euroclear" means the Euroclear Bank S.A./N.V., as operator of the
Euroclear System (or any successor securities clearing agency).
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"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934 and any
statute successor thereto, in each case as amended from time to time.
"Exchange Offer" has the meaning set forth in the form of the
Securities contained in Section 202.
"Exchange Registration Statement" has the meaning set forth in the form
of the Securities contained in Section 202.
"Exchange Security" means any Security issued in exchange for an
Original Security or Original Securities pursuant to the Exchange Offer or
otherwise, and registered under the Securities Act, and any Security with
respect to which the next preceding Predecessor Security of such Security was an
Exchange Security.
"Expiration Date" has the meaning specified in Section 104.
"Extension Period" has the meaning specified in Section 311.
"GAAP" means such accounting principles as are generally accepted in
Canada in respect of the date or period for any computation or statement
hereunder; provided, however, that in the event that the audited financial
statements of the Company set forth in its annual report to shareholders in
respect of any fiscal year shall be prepared in accordance with generally
accepted United States accounting principles, then "Generally Accepted
Accounting Principles" shall mean such principles for the purpose of any
computation or statement hereunder made during, or in respect of, such fiscal
year (or portion thereof).
"Global Security" means a Security that evidences all or part of the
Securities of any series, registered in the name of the Depositary, and bears
the legend set forth in Section 204 (or such legend as may be specified as
contemplated by Section 301 for such Securities).
"Holder" means a Person in whose name a Security is registered in the
Securities Register.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of any
particular series of Securities established as contemplated by Section 301.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" within the meaning of Rule 501(a)(1), (2), (3) or (7) of
Regulation D under the Securities Act.
"interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
-4-
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Investment Company Act" means the Investment Company Act of 1940 and
any statute successor thereto, in each case as amended from time to time.
"Issue Date" means, with respect to any series, the first date on which
the Securities of such series are initially issued.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption, exercise of a Holder's option
to require the Company to purchase or repay the Security or otherwise.
"Notice of Default" means a written notice of the kind specified in
Section 501(4).
"Officers' Certificate" means a certificate signed by any one of the
Chairman, any Vice Chairman, the President, any Executive Vice President or any
Vice President, together with any one of the Treasurer, any Assistant Treasurer,
the Secretary or any Assistant Secretary, of the Company, and delivered to the
Trustee. One of the officers signing an Officers' Certificate given pursuant to
Section 1005 shall be the principal executive, financial or accounting officer
of the Company.
"Opinion of Counsel" means a written opinion of counsel who may be
internal legal counsel for the Company, and who shall be acceptable to the
Trustee.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Original Securities" means all Securities other than Exchange
Securities.
"Other Additional Amounts" has the meaning specified in Section 802.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(1) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(2) Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by
the Company (if the Company shall act as its own Paying Agent) for the
Holders of such Securities; provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been made;
(3) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to
-5-
this Indenture, other than any such Securities in respect of which there
shall have been presented to the Trustee proof satisfactory to it that such
Securities are held by a bona fide purchaser in whose hands such Securities
are valid obligations of the Company;
(4) Securities as to which any property deliverable upon conversion
thereof has been delivered (or such delivery has been duly provided for),
or as to which any other particular conditions have been satisfied, in each
case as may be provided for such Securities as contemplated in Section 301;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder (i) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon acceleration of the Maturity
thereof pursuant to Section 502, (ii) the principal amount of a Security
denominated in a foreign currency or currencies shall be the U.S. dollar
equivalent, determined on the date of the original issuance of such Security, of
the principal amount (or, in the case of an Original Issue Discount Security,
the U.S. dollar equivalent on the date of original issuance of such Security of
the amount determined as provided in (i) above) of such Security, and (iii)
Securities owned by the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which a Responsible
Officer of the Trustee actually knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor upon the Securities or any Affiliate of
the Company or of such other obligor. In the case of a dispute to such right,
any decision by the Trustee taken upon the advice of counsel shall be full
protection to the Trustee.
"Owner Securities Certification" has the meaning specified in Section
201.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and any premium, if any) or interest on any Securities on behalf
of the Company.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Place of Payment" when used with respect to the Securities of any
series, means the place or places where the principal of (and premium, if any)
and interest on the Securities of that series are payable as specified as
contemplated by Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
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"Purchase Agreement" means, with respect to a series of Securities, the
agreement between the Company, on the one hand, and the initial purchasers of
such series of Securities named therein as such, on the other hand, setting
forth the terms and conditions for the initial offer and sale of such
Securities.
"Qualified Institutional Buyer" means a "qualified institutional buyer"
as defined in Rule 144A.
"Record Date" means any Regular Record Date or Special Record Date.
"Record Date Period" means the period from the close of business of any
Regular Record Date next preceding any Interest Payment Date to the opening of
business on such Interest Payment Date.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Securities" means the Exchange Securities and all other
Securities sold or otherwise disposed of pursuant to an effective registration
statement under the Securities Act, together with their respective Successor
Securities.
"Registration Default" has the meaning specified in Section 202.
"Registration Rights Agreement" means, with respect to Securities of
any series, the Registration Rights Agreement between the Company and the
initial purchasers named under the Purchase Agreement in respect of the
Securities of such series.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
"Regulation S" means Regulation S under the Securities Act (or any
successor provision), as it may be amended from time to time.
"Regulation S Certificate" means a certificate substantially in the
form set forth in Annex A.
"Regulation S Global Security" has the meaning specified in Section
201.
"Regulation S Legend" means a legend substantially in the form set
forth in Section 204 to be placed upon each Regulation S Security.
"Regulation S Securities" means all Securities offered and sold
pursuant to Regulation S. Such term includes the Regulation S Global Security.
"Relevant Taxing Jurisdiction" has the meaning specified in Section
802.
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"Repayment Date", when used with respect to Securities of any series
the terms of which provide each Holder an option to require the Company to
purchase or repay the Securities held by such Holder, means the date, if any,
fixed for such purchase or repayment pursuant to this Indenture.
"Repayment Price", when used with respect to Securities of any series
the terms of which provide each Holder an option to require the Company to
purchase or repay the Securities held by such Holder means the price, if any, at
which such purchase or repayment is to occur pursuant to this Indenture.
"Resale Registration Statement" has the meaning set forth in the form
of the Securities contained in Section 202.
"Responsible Officer", when used with respect to the Trustee, means any
vice president, any assistant vice president who shall have direct
responsibility for the administration of this Indenture, any assistant
secretary, any assistant treasurer or any trust officer or any other officer of
the Trustee customarily performing functions similar to those performed by any
of the above designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject and who
shall have direct responsibility for the administration of this Indenture.
"Restricted Global Security" has the meaning specified in Section 201.
"Restricted Period" for a series means the period of 40 consecutive
days beginning on and including the later of (i) the day on which Securities of
that series are first offered to persons other than distributors (as defined in
Regulation S) in reliance on Regulation S and (ii) the original issuance date of
the Securities of that series.
"Restricted Securities" means all Securities offered and sold pursuant
to Rule 144A or to Institutional Accredited Investors in a transaction that is
not registered under the Securities Act. Such term includes the Restricted
Global Security and Certificated Securities.
"Restricted Securities Certificate" means a certificate substantially
in the form set forth in Annex B.
"Restricted Securities Legend" means, collectively, the legends
substantially in the forms set forth in Section 204 to be placed upon each
Restricted Security.
"Rule 144A" means Rule 144A under the Securities Act (or any successor
provision), as it may be amended from time to time.
"Rule 144A Securities" means the Securities of a series purchased upon
their original issuance by the initial purchasers from the Company for resale
pursuant to Rule 144A.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Securities Act" means the Securities Act of 1933 and any statute
successor thereto, in each case as amended from time to time.
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"Securities Act Legend" means a Restricted Securities Legend or a
Regulation S Legend.
"Securities Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Indebtedness" means, with respect to the Company, (i) the
principal, premium, if any, interest, fees, expenses, indemnity payments or
other obligation in respect of (A) indebtedness of the Company for money
borrowed and (B) indebtedness evidenced by securities, notes, debentures, bonds
or other similar instruments issued by the Company; (ii) all capital lease
obligations of the Company; (iii) all obligations issued or assumed by the
Company as the deferred purchase price of property, all conditional sale
obligations of the Company and all obligations of the Company under any
conditional sale or title retention agreement (but excluding trade accounts
payable in the ordinary course of business); (iv) all obligations, contingent or
otherwise, of the Company in respect of any letters of credit, banker's
acceptance, security purchase facilities or similar credit transactions; (v) all
obligations in respect of interest rate swap, cap, forward or other agreements,
interest rate futures or option contracts, currency swap, cap forward or other
agreements, currency futures or option contracts, commodity swap, cap, forward
or other agreements in respect of any metal or other product produced or
marketed by the Company and any commodity used or consumed by the Company and
any other commodity futures or option contracts and other similar agreements;
(vi) all obligations of the type referred to in clauses (i) through (v) of other
Persons for the payment of which the Company is responsible or liable as
obligor, guarantor or otherwise; and (vii) all obligations of the type referred
to in clauses (i) through (vi) of other Persons secured by any lien on any
property or asset of the Company (whether or not such obligation is assumed by
such obligor). Notwithstanding the foregoing, Senior Indebtedness does not
include (1) any such indebtedness that is by its terms subordinated to or pari
passu with the Securities, and (2) any indebtedness between or among the Company
and its Affiliates.
"Special Interest" has the meaning set forth in Section 202.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Specified Taxes" has the meaning specified in Section 802.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof (and premium, if any) or interest (including
any Additional Interest) thereon, means the date specified in such Security as
the fixed date on which the principal of such Security or such installment of
principal (and premium, if any) or interest (including any Additional Interest)
is due and payable, as such date may, in the case of the stated maturity of the
principal of any Security, be shortened or extended as provided pursuant to the
terms of such Security and this Indenture and, in the case of any installment of
interest, subject to the deferral of any such date in the case of any Extension
Period.
"Subsidiary" means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting stock" means stock
which ordinarily has voting power for the election of directors, whether at all
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times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"Successor Corporation" has the meaning specified in Section 801.
"Successor Security" of any particular Security means every Security
issued after, and evidencing all or a portion of the same debt as that evidenced
by, such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Temporary Regulation S Global Security" has the meaning specified in
Section 201.
"Transferee Securities Certification" has the meaning specified in
Section 305(b).
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
Section 102. Compliance Certificates and Opinions.
Except as otherwise expressly provided by this Indenture, upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include,
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
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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 each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of any officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 104. Acts of Holders; Record Dates.
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Indenture to be given, made 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 Company. 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 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
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The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
The ownership of any Security shall be proved by the Securities
Register.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to
give, make or take any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Indenture to be
given, made or taken by Holders of Securities of such series, provided that the
Company may not set a record date for, and the provisions of this paragraph
shall not apply with respect to, the giving or making of any notice,
declaration, request or direction referred to in the next paragraph. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of the relevant series on such record date, and no other Holders,
shall be entitled to take the relevant action, whether or not such Holders
remain Holders after such record date; provided that no such action shall be
effective hereunder unless taken on or prior to the applicable Expiration Date
by Holders of the requisite principal amount of Outstanding Securities of such
series on such record date. Nothing in this paragraph shall be construed to
prevent the Company from setting a new record date for any action for which a
record date has previously been set pursuant to this paragraph (whereupon the
record date previously set shall automatically and with no action by any Person
be cancelled and of no effect), and nothing in this paragraph shall be construed
to render ineffective any action taken by Holders of the requisite principal
amount of Outstanding Securities of the relevant series on the date such action
is taken. Promptly after any record date is set pursuant to this paragraph, the
Company, at its own expense, shall cause notice of such record date, the
proposed action by Holders and the applicable Expiration Date to be given to the
Trustee in writing and to each Holder of Securities of the relevant series in
the manner set forth in Section 106.
The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to join
in the giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Xxxxxxx 000, (xxx) any request to institute
proceedings referred to in Section 507(2) or (iv) any direction referred to in
Section 512, in each case with respect to Securities of such series. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of such series on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or direction, whether or
not such Holders remain Holders after such record date; provided that no such
action shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date. Nothing in this
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paragraph shall be construed to prevent the Trustee from setting a new record
date for any action for which a record date has previously been set pursuant to
this paragraph (whereupon the record date previously set shall automatically and
with no action by any Person be cancelled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of Outstanding Securities of the relevant
series on the date such action is taken. Promptly after any record date is set
pursuant to this paragraph, the Trustee, at the Company's expense, shall cause
notice of such record date, the proposed action by Holders and the applicable
Expiration Date to be given to the Company in writing and to each Holder of
Securities of the relevant series in the manner set forth in Section 106.
With respect to any record date set pursuant to this Section, the party
hereto which sets such record dates may designate any day as the "Expiration
Date" and from time to time may change the Expiration Date to any earlier or
later day; provided that no such change shall be effective unless notice of the
proposed new Expiration Date is given to the other party hereto in writing, and
to each Holder of Securities of the relevant series in the manner set forth in
Section 106, on or prior to the existing Expiration Date. If an Expiration Date
is not designated with respect to any record date set pursuant to this Section,
the party hereto which set such record date shall be deemed to have initially
designated the 180th day after such record date as the Expiration Date with
respect thereto, subject to its right to change the Expiration Date as provided
in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be
later than the 180th day after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Security may do so with regard to
all or any part of the principal amount of such Security or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.
Section 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
(which may be by facsimile) to or with the Trustee at its Corporate Trust
Offices, Attention: Corporate Trust Administration, 00 Xxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company.
Section 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid or delivered by an
overnight delivery service, to each Holder affected by such
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event, at his address as it appears in the Securities Register, not later than
the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee, which
approval shall not be unreasonably withheld, shall constitute a sufficient
notification for every purpose hereunder.
Section 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision
of the Trust Indenture Act which is required under such Act to be a part of and
govern this Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
which may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
Section 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
Section 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder, the holders of Senior Indebtedness and the Holders, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
Section 112. Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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Section 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, Repayment
Date or Stated Maturity of any Security, or on any date on which a Holder has a
right to convert his Security, shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or of the
Securities (other than a provision of any Security which specifically states
that such provision shall apply in lieu of this Section)) payment of interest or
principal (and premium, if any), or conversion of such Security need not be made
at such Place of Payment on such date, but may be made on the next succeeding
Business Day at such Place of Payment with the same force and effect as if made
on the Interest Payment Date or Redemption Date, or at the Stated Maturity;
provided that no interest shall accrue for the period from and after such
Interest Payment Date, Redemption Date or Stated Maturity, or on such date for
conversion, as the case may be.
ARTICLE TWO
SECURITY FORMS
Section 201. Forms Generally.
(a) The Securities of each series shall be in substantially the form
set forth in this Article, or in such other form as shall be established by or
pursuant to a Board Resolution or in one or more indentures supplemental hereto,
in each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have
such letters, numbers or other xxxx of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or Depositary therefor or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution of the Securities. If the form of Securities of any series is
established by action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities.
The Trustee's certificates of authentication shall be in substantially
the form set forth in this Article.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
In certain cases described elsewhere herein, the legends set forth in
Section 204 may be omitted from Securities issued hereunder.
(b) (i) Securities of a series offered and sold in their initial
distribution in reliance on Regulation S shall be initially issued in the form
of one or more temporary Global Securities, in fully registered form without
interest coupons, substantially in the form of Security set forth in Sections
202 and 203, as the case may be, with such applicable legends as are provided
for in Section 202 and Section 204, as the case may be. Such Global Securities
shall be registered in the name of the Depositary or its nominee, and deposited
with the Trustee, at its New York
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offices, as custodian for the Depositary, duly executed by the Company and
authenticated by the Trustee as hereinafter provided, for credit to the
respective accounts at the Depositary of the depositories for Euroclear and for
Clearstream, for credit to the respective accounts of owners of beneficial
interests in such Securities or to such other accounts as they may direct. Until
such time as the Restricted Period in respect of securities of a series shall
have terminated, such temporary Global Securities shall be referred to herein as
"Temporary Regulation S Global Securities". On or after the termination of the
Restricted Period, interests in any Temporary Regulation S Global Security of a
series shall be exchangeable for corresponding interests in an unrestricted
Regulation S Global Security of the same series (each a "Regulation S Global
Security") in fully registered form without interest coupons, substantially in
the form set forth in Sections 202 and 203, with such applicable legends as are
provided for in Section 202 and Section 204 and in accordance with the
immediately following paragraph.
(ii) Interests in a Temporary Regulation S Global Security of a series
may be exchanged for interests in a Regulation S Global Security of the same
series representing the same underlying indebtedness only on or after the
termination of the Restricted Period with respect to such securities after
delivery by a beneficial owner of an interest therein to Euroclear or
Clearstream of a written certification (an "Owner Securities Certification")
substantially in the form of Annex C-1 hereto, and upon delivery by Euroclear or
Clearstream to the Trustee of a written certification (a "Depository Securities
Certification") substantially in the form attached hereto as Annex C-2. Upon
receipt of such certification, the Trustee shall exchange the portion of the
Temporary Regulation S Global Security covered by such certification for
interests in a Regulation S Global Security representing the same underlying
indebtedness.
Upon:
(A) the expiration of the Restricted Period,
(B) receipt by Euroclear or Clearstream, as the case may be, and the
Paying Agent of the certificates described in the preceding
paragraph,
(C) receipt by the Depositary of
(i) written instructions given in accordance with the Applicable
Procedures from an Agent Member directing the Depositary to
credit or cause to be credited to a specified Agent Member's
account a beneficial interest in the Regulation S Global
Security in a principal amount equal to that of the
beneficial interest in the Temporary Regulation S Global
Security for which the necessary certificates have been
delivered, and
(ii) a written order given in accordance with the Applicable
Procedures containing information regarding the account of
the Agent Member, and the Euroclear or Clearstream account
for which such Agent Member's account is held, to be
credited with, and the account of the Agent Member to be
debited for, such beneficial interest, and
(D) receipt by the Trustee of notification from the Depositary of the
transactions described in (C) above,
the Trustee, as Security Registrar, shall instruct the Depositary to reduce the
principal amount of the Temporary Regulation S Global Security and to increase
the principal amount of the Regulation S Global Security, by the principal
amount of the beneficial interest in such Temporary Regulation S Global Security
to be so transferred, and to credit or cause to be credited to the account of
the Person specified in such instructions a beneficial interest in the
Regulation S
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Global Security having a principal amount equal to the amount by which the
principal amount of the Temporary Regulation S Global Security was reduced upon
such transfer. The aggregate principal amount of a Regulation S Global Security
of a series may be increased or decreased from time to time by adjustments made
on the records of the Trustee, as custodian for the Depositary, in connection
with a corresponding decrease or increase in the aggregate principal amount, as
hereinafter provided.
(iii) Until such time as the Restricted Period shall have terminated,
investors may hold interests in the Regulation S Temporary Global Security only
through Euroclear and Clearstream, unless delivery of such beneficial interest
upon transfer shall be made through a Restricted Global Security in accordance
with the certification requirements discussed below in Section 305(b)(v).
(c) Securities of a series offered and sold in their initial
distribution in reliance on Rule 144A shall be issued in the form of one or more
Global Securities (each, a "Restricted Global Security"), in definitive, fully
registered form without interest coupons, substantially in the form of Security
set forth in Sections 202 and 203 with such applicable legends as are provided
for in Section 202 and Section 204, except as otherwise permitted herein. Such
Global Securities shall be registered in the name of the Depositary or its
nominee and deposited with the Trustee, as custodian for the Depositary, duly
executed by the Company and authenticated by the Trustee as hereinafter provided
for credit to the respective accounts of owners of beneficial interests in such
Securities or to such other accounts as they may direct. The aggregate principal
amount of a Restricted Global Security of a series may be increased or decreased
from time to time by adjustments made on the records of the Trustee, as
custodian for the Depositary, in connection with a corresponding decrease or
increase in the aggregate principal amount, as hereinafter provided.
(d) Securities that are to be offered and sold to Institutional
Accredited Investors that are not Qualified Institutional Buyers, sold in each
case to an Institutional Accredited Investor that has executed and delivered to
the Trustee, as Security Registrar, a letter substantially in the form of Annex
E hereto (an "Accredited Investor Letter"), shall be issued in definitive, fully
registered form without interest coupons, substantially in the form set forth in
Section 202 and Section 203, with such applicable legends as are provided for in
Section 202 and Section 204. The Securities sold to Institutional Accredited
Investors in accordance with the foregoing sentence (individually, a
"Certificated Security" and collectively, the "Certificated Securities") shall
not be issued in the form of Global Securities. Certificated Securities acquired
from the initial purchasers named in the Purchase Agreement in respect of the
Securities of such series may be transferred initially only to Qualified
Institutional Buyers in accordance with Rule 144A, to a transferee who will
acquire such security in reliance on Regulation S or pursuant to Rule 144 under
the Securities Act, if available, and exchanged for interests in Global
Securities pursuant to Section 305(b)(vi)(1). Certificated Securities shall be
duly executed by the Company and authenticated by the Trustee as provided
herein, and shall be registered in the name of the Institutional Accredited
Investor purchasing such Security and shall bear the Restricted Securities
Legend.
Section 202. Form of Face of Security.
[Insert any legend as required by Section 204]
-17-
[Insert any legend required by the Internal Revenue Code and the Income
Tax Act (Canada) and the regulations thereunder.]
INCO LIMITED
[Insert title of Securities]
No. ......... $ ........
Inco Limited, a corporation duly organized and existing under the laws
of Canada (herein called the "Company", which term includes any successor
corporation under the Indenture hereinafter referred to), for value received,
hereby promises to pay to ..............................................., or
registered assigns, the principal sum of $__________ Dollars on
........................................................., [If this Security is
to bear interest prior to Maturity insert--and to pay interest thereon from
................. or from the most recent Interest Payment Date to which interest
has been paid or as duly provided for, semi-annually on ............ and
............. in each year, commencing ........., and at the Stated Maturity
thereof, at the rate of ....% per annum, until the principal amount hereof is
paid or made available for payment [if applicable, insert--; provided that any
overdue principal, if any, premium and any overdue installment of interest shall
bear interest at the rate of ....% per annum (to the extent that the payment of
such interest shall be legally enforceable), from the dates such amounts are due
until they are paid or made available for payment, and such interest shall be
payable on demand] [from the dates such amounts are due until they are paid or
made available for payment, and such interest shall be payable on demand], [If
Original Securities are not also Registered Securities, then insert, as
appropriate, --provided, however, that if (i) the Company has not filed a
registration statement (the "Exchange Registration Statement") under the
Securities Act of 1933, as amended (the "Securities Act"), to register a
security substantially identical to this Security (except that such Security
shall not contain terms with respect to the Special Interest payments described
below or transfer restrictions) pursuant to an exchange offer (the "Exchange
Offer") within __ days after the Issue Date of this Security (or, if required
pursuant to the Registration Rights Agreement, a registration statement
registering this Security for resale (a "Resale Registration Statement") within
__ days after the later of the Issue Date of this Security or the date of the
change in applicable law or interpretations of the staff of the Securities and
Exchange Commission, as set forth in the Registration Rights Agreement), or (ii)
the Exchange Registration Statement or, if applicable, the Resale Registration
Statement, is not declared effective on or prior to the date that is the later
of the date __ days after the Issue Date of this Security or, in the case of the
Resale Registration Statement, the date of the change in applicable law or
interpretations of the staff of the Securities and Exchange Commission, as set
forth in the Registration Rights Agreement, or (iii) the Exchange Offer has not
been completed on or prior to the date that is __ days after the Issue Date of
this Security, unless applicable law or interpretations of the staff of the
Securities and Exchange Commission do not permit the Company to effect the
Exchange Offer, in each case of clause (i), (ii) or (iii), upon the terms and
conditions set forth in the Registration Rights Agreement (each such event
referred to in clause (i), (ii) or (iii), a "Registration Default"), to the
extent required pursuant thereto, then Special Interest shall accrue (in
addition to the stated interest on the Securities) at an additional annual rate
of __% immediately following the Registration Default until the Registration
Default is cured by meeting the applicable requirement in clause (i), (ii) or
(iii), as the case may be. Notwithstanding the existence of more than one
Registration Default, in no event shall Special Interest accrue at an annual
rate in excess of __%. Interest accruing as a result of a Registration Default
is referred to herein as "Special Interest".
-18-
Whenever in this Security or in the Indenture there is a reference, in
any context, to the payment of the principal of, premium, if any, or interest
on, or in respect of, any Security, such mention shall be deemed to include
mention of the payment of Special Interest (if applicable) payable as described
in the preceding paragraph to the extent that, in such context, Special Interest
is, was or would be payable in respect of such Security and express mention of
the payment of Special Interest (if applicable) in any provisions of this
Security shall not be construed as excluding Special Interest in those
provisions of this Security where such express mention is not made.
Any accrued and unpaid interest (including Special Interest) on this
Security upon the issuance of an Exchange Security (as defined in the Indenture)
in exchange for this Security shall cease to be payable to the Holder hereof but
such accrued and unpaid interest (including Special Interest) shall be payable
on the next Interest Payment Date for such Exchange Security to the Holder
thereof on the related Regular Record Date.]
[If the Security is to bear interest prior to Maturity, insert - The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in such Indenture, be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, which shall be
the ....... or ....... (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date. Any such interest not so punctually paid
or duly provided for will forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to Holders of Securities
of this series not less than 10 days prior to such Special Record Date, or be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities of this series
may be listed, and upon such notice as may be required by such exchange, all as
more fully provided in said Indenture.]
[If the Security is not to bear interest prior to Maturity, insert --
The principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption, upon
repayment at the option of the Holder or at Stated Maturity and in such case the
overdue principal of this Security shall bear interest at the rate of ....% per
annum (to the extent that the payment of such interest shall be legally
enforceable), which shall accrue from the date of such default in payment to the
date payment of such principal has been made or duly provided for. Interest on
any overdue principal shall be payable on demand. [Any such interest on any
overdue principal that is not paid on demand shall bear interest at the rate of
.....% per annum (to the extent that the payment of such interest shall be
legally enforceable), which shall accrue from the date of such demand for
payment to the date payment of such interest has been made or duly provided for,
and such interest shall also be payable on demand.]]
[If applicable, insert--So long as no Event of Default has occurred and
is continuing, the Company shall have the right, at any time during the term of
this Security, from time to time to defer the payment of interest (other than
Special Interest, if any) on this Security for up to __ consecutive semi-annual
interest payment periods with respect to each deferral period (each an
"Extension Period") [if applicable, insert--, during which Extension Periods the
Company shall have the right to make partial payments of interest on any
Interest Payment Date, and] at the end of which the Company shall pay all
interest then accrued and unpaid including any Additional
-19-
Interest, as provided below; provided, however, that no Extension Period shall
extend beyond the Stated Maturity of the principal of this Security; and
provided, further, that during any such Extension Period, the Company shall not
declare or pay any dividend on, make any distributions with respect to, or
redeem, purchase, acquire or make a liquidation payment with respect to, any of
its capital stock or make any guarantee payment with respect thereto (other than
(i) repurchases, redemptions or other acquisitions of shares of capital stock of
the Company in connection with any employment contract, benefit plan or other
similar arrangement with or for the benefit of employees, officers, directors or
consultants, (ii) as a result of an exchange or conversion of any class or
series of the Company's capital stock for any other class or series of the
Company's capital stock, or (iii) the purchase of fractional interests in shares
of the Company's capital stock pursuant to the conversion or exchange provisions
of such capital stock or the security being converted or exchanged), and (b) the
Company shall not make any payment of interest on, principal of or premium, if
any, on, or repay, repurchase or redeem, any debt securities issued by the
Company which rank pari passu with or junior to the Securities of such series
(including the Securities of any other series); provided, however, the Company
may declare and pay a stock dividend where the stock dividend is the same stock
as that on which the dividend is being paid. Prior to the termination of any
such Extension Period, the Company may further defer the payment of interest,
provided that no Extension Period shall exceed ___ consecutive semi-annual
interest payment periods, extend beyond the Stated Maturity of the principal of
this Security. Upon the termination of any such Extension Period and upon the
payment of all accrued and unpaid interest and (to the extent permitted by
applicable law) any Additional Interest then due on any Interest Payment Date,
the Company may elect to begin a new Extension Period, subject to the above
conditions. No interest shall be due and payable during an Extension Period,
except at the end thereof, but each installment of interest that would otherwise
have been due and payable during such Extension shall bear Additional Interest
(to the extent that the payment of such interest shall be legally enforceable)
at the rate of ____% per annum, calculated as set forth in the first paragraph
of this Security, from the dates on which such amounts would otherwise have been
due and payable until paid or made available for payment. If the principal of
any Securities shall become due and payable on a day or if any Securities become
subject to Redemption on a Redemption Date that would otherwise occur during an
Extension Period, such Extension Period will automatically end on the
immediately preceding day (which will be the last day of the period). The
Company shall give the Holder of this Security and the Trustee notice of its
election to begin any Extension Period at least one Business Day prior to the
next succeeding Interest Payment Date on which interest on this Security would
be payable but for such deferral. The Company's written notice of its election
to begin an Extension Period shall set forth the first Interest Payment Date in
such period and, if known, the date on which payment of interest (and Additional
Interest, if any) on the Securities will be resumed, and shall be given in the
manner set forth in Section 106 of the Indenture. If such resumption date is not
known, the notice must state that the length of the Extension Period will be
indefinite.]
Payment of the principal of (and premium, if any) and interest
[(including any Additional Interest)] on this Security will be made at the
office or agency of the Company maintained for that purpose in the [insert Place
of Payment], in such coin or currency of the [United States of America] [other
country] as at the time of payment is legal tender for payment of public and
private debts [if other form of payment - insert other form of payment] [if
applicable, insert--; provided, however, that at the option of the Company
payment of interest may be made (i) by check mailed to the address of the Person
entitled thereto as such address shall appear in the Securities Register, or
(ii) by wire transfer in immediately available funds at such place and to
-20-
such account as may be designated by the Person entitled thereto as specified in
the Securities Register.
The indebtedness evidenced by this Security is, to the extent provided
in the Indenture, subordinate in right of payment to the prior payment in full
of all Senior Indebtedness, and this Security is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of this Security,
by accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee on his or her behalf to take such actions as
may be necessary or appropriate to effectuate the subordination so provided, and
(c) appoints the Trustee his or her attorney-in-fact for any and all such
purposes. Each Holder hereof, by his or her acceptance hereof, waives all notice
of the acceptance of the subordination provisions contained herein and in the
Indenture by each holder of Senior Indebtedness, whether now outstanding or
hereafter incurred, and waives reliance by each such holder upon said
provisions.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
[Insert a reference to any option of the Holders to require purchase or
repayment by the Company.]
[Insert a reference to any requirement for an adjustment to the
interest rate.]
Unless the certificate of authentication hereon has been duly executed
by the Trustee referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company, has caused this instrument to be duly
executed.
Dated:
INCO LIMITED
By:
-------------------------------
By:
-------------------------------
Section 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under a Subordinated Indenture, dated as of March 7, 2003 (herein called
the "Indenture", between the Company and The Bank of New York, as Trustee
(herein called the "Trustee", which term includes any successor trustee under
the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee, the
holders of Senior Indebtedness and the Holders of the Securities and of the
terms upon which the Securities are, and are to be,
-21-
authenticated and delivered. This Security is one of the series designated on
the face hereof[, limited in aggregate principal amount to $____________.]
[If applicable, insert-- At any time [on or after .........., 20..],
[or such later date as the Company may by notice in writing to the Holders
stipulate,] [if applicable, insert-- or on ........... in any year commencing
with the year ...... and ending with the year ...... through operation of the
sinking fund for this series at a Redemption Price equal to 100% of the
principal amount,] the Securities of this series will be subject to redemption
at the option of the Company as provided in the Indenture, in whole or in part,
at a "Redemption Price" equal to 100% of the principal amount of the Securities
of this series. In the event of redemption, the Company will also pay the
Holder, in addition to the Redemption Price, an amount equal to the accrued and
unpaid interest to the Redemption Date.
In the event of a redemption of less than all of the Securities of this
series, the Company shall not be required (a) to register the transfer or
exchange of the Securities of this series for a period of 15 days immediately
preceding the date notice is given identifying the serial numbers of the
Securities of this series called for such redemption or (b) to register the
transfer or exchange of any Securities of this series, or portion thereof,
called for redemption.]
[If applicable, insert-- The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, [if applicable, insert--
(1) on ........... in any year commencing with the year ...... and ending with
the year ...... through operation of the sinking fund for this series at a
Redemption Price equal to 100% of the principal amount, and (2)] at any time [on
or after .........., 20..], as a whole or in part, at the election of the
Company, at the following Redemption Prices (expressed as percentages of the
principal amount): If redeemed [on or before ..............., ...%, and if
redeemed] during the 12-month period beginning ............. of the years
indicated,
Redemption Redemption
Year Price Year Price
---------------- ----------------------- ----------------- ------------------
and thereafter at a Redemption Price equal to ......% of the principal
amount, together in the case of any such redemption [if applicable, insert --
(whether through operation of the sinking fund or otherwise)] with accrued
interest [if applicable, insert--, including any Additional Interest,] to the
Redemption Date, but installments of interest [(including any Additional
Interest)] whose Stated Maturity is on or prior to such Redemption Date will be
payable to the Holders of such Securities, or one or more Predecessor
Securities, of record at the close of business on the relevant Record Dates
referred to on the face hereof, all as provided in the Indenture.] (if
applicable, insert -- the securities of this series are also redeemable as set
forth hereinafter.]
[If applicable, insert-- The Securities of this series are subject to
redemption upon not less than 30 Business Days notice by mail, (1) on
............. in any year commencing with the year .... and ending with the year
..... through operation of the sinking fund for this series at the
-22-
Redemption Prices for redemption through operation of the sinking fund
(expressed as percentages of the principal amount) set forth in the table below,
and (2) at any time [on or after ............], as a whole or in part, at the
election of the Company, at the Redemption Prices for redemption otherwise than
through operation of the sinking fund (expressed as percentages of the principal
amount) set forth in the table below: If redeemed during the 12-month period
beginning ............ of the years indicated,
Redemption Price For
Redemption Price For Redemption Otherwise Than
Redemption Through Operation Through Operation of the
Year of the Sinking Fund Sinking Fund
------------------- ---------------------------- -------------------------
and thereafter at a Redemption Price equal to .....% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert-- Notwithstanding the foregoing, the Company may
not, prior to ............., redeem any Securities of this series as
contemplated by clause (2) of the preceding paragraph as a part of, or in
anticipation of, any refunding operation by the application, directly or
indirectly, of moneys borrowed having an interest cost to the Company
(calculated in accordance with generally accepted financial practice) of less
than .....% per annum.]
[The sinking fund for this series provides for the redemption on
............. in each year beginning with the year ....... and ending with the
year ...... of [not less than] $.......... [("mandatory sinking fund") and not
more than $.........] aggregate principal amount of Securities of this series.
[Securities of this series acquired or redeemed by the Company otherwise than
through [mandatory] sinking fund payments may be credited against subsequent
[mandatory] sinking fund payments otherwise required to be made in the inverse
order in which they become due.]
In the event of redemption of this Security in part only, a new
Security or Securities of this series and of like tenor for the unredeemed
portion hereof shall be issued in the name of the Holder hereof upon the
cancellation hereof.
[If applicable, insert reference to any other right of the Company to
redeem a Security of this Series.]
[If applicable, insert provisions with respect to the option of Holders
to require purchase or repayment of Securities of this series by the Company at
the option of the Holder and the issuance of Securities in lieu of Securities
purchased or repaid by the Company at the option of the Holder.]
-23-
[If applicable, insert provisions requiring an adjustment to the
interest rate in certain circumstances.]
[If the Security is not an Original Issue Discount Security, insert --
If an Event of Default with respect to Securities of this series shall occur and
be continuing, the principal of the Securities of this series may be declared
due and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert -- If
an Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to [insert formula for determining the
amount]. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal and overdue interest (in each case
to the extent that the payment of such interest shall be legally enforceable),
all of the Company's obligations in respect of the payment of the principal of
and interest, if any, on the Securities of this series shall terminate.]
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of 66 2/3 % in principal amount of the Securities at the
time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee
shall not have received from the Holders of a majority in principal amount of
Securities of this series at the time Outstanding a direction inconsistent with
such request, and the Trustee shall have failed to institute any such
proceeding, for 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall not apply to any suit instituted by the Holder of
this Security for the enforcement of any payment of principal hereof or any
premium or interest hereon on or after the respective due dates expressed
herein.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and premium, if any) and
interest (including any Additional Interest) on this Security at the times,
place and rate, and in the coin or currency, herein prescribed.
-24-
For disclosure purposes under the Interest Act (Canada), whenever in
the Securities of this series or the Indenture interest at a specified rate is
to be calculated on the basis of a period less than a calendar year, the yearly
rate of interest to which such rate is equivalent is such rate multiplied by the
actual number of days in the relevant calendar year and divided by the number of
days in such period.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registerable in the Securities
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of (and
premium, if any) and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
This Security is a Global Security and is subject to the provisions of
the Indenture relating to Global Securities, including the limitations in
Section 305 thereof on transfers and exchanges of Global Securities.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
Section 204. Form of Legend for Securities.
Unless otherwise specified as contemplated by Section 301 for the
Securities evidenced thereby, every Security that is a Global Security, a
Restricted Security or a Regulation S Security authenticated and delivered
hereunder shall bear one or more of the appropriate legends in substantially the
following forms, as appropriate:
[IF THE SECURITY IS A RESTRICTED SECURITY OR A TEMPORARY REGULATION S SECURITY,
THEN INSERT -
-25-
THIS SECURITY [AND THE COMMON SHARES AND ASSOCIATED COMMON SHARE PURCHASE RIGHTS
ISSUABLE UPON CONVERSION] REDEMPTION, PURCHASE OR PAYMENT OF THIS SECURITY HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION.
NEITHER THIS SECURITY [NOR SUCH COMMON SHARES AND ASSOCIATED COMMON SHARE
PURCHASE RIGHTS] MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH SECURITY ONLY (1) (A) TO THE COMPANY, (B) PURSUANT TO A
REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, (C) AS LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A
UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON WHOM THE SELLER REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" WITHIN THE MEANING OF RULE 144A
THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (D) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR
904 OF REGULATION S, (E) IN THE CASE OF AN INITIAL HOLDER THAT ACQUIRED THIS
SECURITY IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT PURSUANT TO RULE 144A OR RULE 904 THEREUNDER AND IN THE CASE OF
SUBSEQUENT HOLDERS, IN A PRINCIPAL AMOUNT OF NOT LESS THAN $250,000 INSIDE THE
UNITED STATES TO "AN INSTITUTIONAL ACCREDITED INVESTOR" WITHIN THE MEANING OF
RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT THAT,
PRIOR TO THE TRANSFER, FURNISHES TO THE TRUSTEE A SIGNED LETTER CONTAINING
CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFERS
OF THE SECURITIES (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE),
(F) PURSUANT TO THE EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT
PROVIDED BY RULE 144 (IF AVAILABLE) OR (G) PURSUANT TO ANY OTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND (2) IN
ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED
STATES AND OTHER JURISDICTIONS.]
[INCLUDE IF SECURITY IS A TEMPORARY REGULATION S GLOBAL SECURITY - THIS
SECURITY IS A TEMPORARY REGULATION S GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE REFERRED TO HEREINAFTER. EXCEPT IN THE CIRCUMSTANCES DESCRIBED IN
SECTION 305(b) OF THE INDENTURE, NO TRANSFER OR EXCHANGE OF AN INTEREST IN THIS
TEMPORARY GLOBAL SECURITY MAY BE MADE FOR AN INTEREST IN THE RESTRICTED GLOBAL
SECURITY. NO EXCHANGE OF AN INTEREST IN THIS TEMPORARY GLOBAL SECURITY MAY BE
MADE FOR AN INTEREST IN THE REGULATION S GLOBAL SECURITY EXCEPT ON OR AFTER THE
TERMINATION OF THE DISTRIBUTION COMPLIANCE PERIOD AND UPON DELIVERY OF THE OWNER
SECURITIES
-26-
CERTIFICATION AND THE DEPOSITORY SECURITIES CERTIFICATION RELATING TO SUCH
INTEREST IN ACCORDANCE WITH THE TERMS OF THE INDENTURE.]
[IF THE SECURITY IS A REGULATION S SECURITY, THEN INSERT - THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE OFFERED, SOLD, OR DELIVERED IN
THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, ANY U.S. PERSON,
UNLESS THIS SECURITY IS REGISTERED UNDER THE SECURITIES ACT OR AN EXEMPTION FROM
THE REGISTRATION REQUIREMENTS THEREOF IS AVAILABLE.]
[IF THE SECURITY IS A GLOBAL SECURITY, THEN INSERT - THIS SECURITY IS A
GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND
IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY
MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO
TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF
ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.]
[IF THE SECURITY IS A GLOBAL SECURITY AND DTC IS TO BE THE DEPOSITARY
THEREFOR, THEN INSERT - UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
[IF CERTIFICATED SECURITIES, THEN INSERT - THIS SECURITY WILL NOT BE
ACCEPTED IN EXCHANGE FOR A BENEFICIAL INTEREST IN A GLOBAL SECURITY UNLESS THE
HOLDER OF THIS SECURITY, SUBSEQUENT TO SUCH EXCHANGE, WILL HOLD A MINIMUM OF
AGGREGATE BENEFICIAL INTEREST IN SUCH GLOBAL SECURITY OF AT LEAST TWO HUNDRED
AND FIFTY THOUSAND DOLLARS ($250,000).]
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Section 205. Form of Trustee's Certificate of Authentication.
Subject to Section 614, each of the Trustee's certificates of
authentication shall be in substantially the following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
Dated: The Bank of New York,
As Trustee
By........................
Authorized Signatory
ARTICLE THREE
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant a Board Resolution and, subject to Section 303, set
forth, or determined in the manner provided, in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series,
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from all other securities);
(2) any limit upon the aggregate principal amount of the Securities of
the series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 304, 305, 306, 906, 1107 or 1205 and except for
any Securities which, pursuant to Section 303, are deemed never to have
been authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the series shall
be payable, if other than the Person in whose name that Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest;
(4) the date or dates on which the principal of any Securities of the
series is payable;
(5) the rate or rates (which may be fixed or variable) at which the
Securities of the series shall bear interest, if any, the rate or rates and
extent to which Additional
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Interest, if any, shall be payable in respect of any Securities of the
series, the date or dates from which any such interest or Additional
Interest shall accrue, the Interest Payment Dates on which any such
interest shall be payable, the right, pursuant to Section 311 or as
otherwise set forth herein, of the Company to defer or extend an Interest
Payment Date and the Regular Record Date for the interest payable on any
Interest Payment Date or the method by which any of the foregoing shall be
determined;
(6) the place or places where the principal of (and premium, if any)
and interest (including any Additional Interest) on any Securities of the
series shall be payable, the place or places where the Securities of such
series may be presented for registration of transfer or exchange, any
restrictions that may be applicable to any such transfer or exchange in
addition to or in lieu of those set forth herein, and the place or places
where notices and demands to or upon the Company in respect of the
Securities of such series may be made;
(7) the period or periods if any, within which, the price or prices at
which and the terms and conditions upon which any Securities of the series
may be redeemed, in whole or in part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the date or dates on
which, the period or periods within which, the price or prices at which and
the terms and conditions upon which Securities of the series shall be
redeemed or purchased, in whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which any such Securities of the series shall
be issuable;
(10) if the amount of principal of or any premium or interest on any
Securities of the series may be determined with reference to an index or
pursuant to a formula, the manner in which such amounts shall be
determined;
(11) if other than the currency of the United States of America, the
currency, currencies, composite currency, composite currencies or currency
units in which the principal of or any premium or interest (including any
Additional Interest) on any Securities of the series shall be payable and
the manner of determining the equivalent thereof in the currency of the
United States of America for any purpose, including for the purposes of
making payment in the currency of the United States of America and applying
the definition of "Outstanding" in Section 101;
(12) if other than cash, the form of payment in which the principal of
or any premium or interest (including any Additional Interest) on any
Securities of the series shall be payable and the manner of determining the
equivalent value thereof in the currency of the United States of America
for any purpose, including for the purposes of making payment in the
currency of the United States of America and applying the definition of
"Outstanding" in Section 101;
(13) if the principal of or any premium or interest on any Securities
of the series is to be payable, at the election of the Company or the
Holder thereof, in one or
-29-
more currencies, composite currencies or currency units other than that or
those in which such Securities are stated to be payable, the currency,
currencies, composite currency, composite currencies or currency units in
which the principal of or any premium or interest on such Securities as to
which such election is made shall be payable, the periods within which and
the terms and conditions upon which such election is to be made and the
amount so payable (or the manner in which such amount shall be determined);
(14) if other than the entire principal amount thereof, the portion of
the principal amount of any Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 502;
(15) if the principal amount payable at the Stated Maturity of any
Securities of the series will not be determinable as of any one or more
dates prior to the Stated Maturity, the amount which shall be deemed to be
the principal amount of such Securities as of any such date for any purpose
thereunder or hereunder, including the principal amount thereof which shall
be due and payable upon any Maturity other than the Stated Maturity or
which shall be deemed to be Outstanding as of any date prior to the Stated
Maturity (or, in any such case, the manner in which such amount deemed to
be the principal amount shall be determined);
(16) if applicable, that any Securities of the series shall be
issuable in whole or in part in the form of one or more Global Securities
and, in such case, the respective Depositaries for such Global Securities,
the form of any legend or legends which shall be borne by any such Global
Security in addition to or in lieu of that set forth in Section 204, any
addition to, elimination of or other change in the circumstances set forth
in Clause (2) of the last paragraph of Section 305(a) in which any such
Global Security may be exchanged in whole or in part for Securities
registered, and any transfer of such Global Security in whole or in part
may be registered, in the name or names of Persons other than the
Depositary for such Global Security or a nominee thereof and any other
provisions governing exchanges or transfers of any such Global Security;
(17) any addition to, elimination of or other change in the Events of
Default which applies to any Securities of the series and any change in the
right of the Trustee or the requisite Holders of such Securities to declare
the principal amount thereof due and payable pursuant to Section 502;
(18) any addition to, elimination of or other change in the covenants
set forth in Article Ten which applies to Securities of the series;
(19) any provisions necessary to permit or facilitate the issuance,
payment or conversion of any Securities of the series that may be converted
into securities or other property other than Securities of the same series
and of like tenor, whether in addition to, or in lieu of, any payment of
principal or other amount and whether at the option of the Company or
otherwise, and the terms and conditions upon which such conversion or
exchange shall be effected (including, without limitation, the initial
conversion or exchange price or rate, the conversion or exchange period and
any other provisions in addition to or in lieu of those set forth in this
Indenture relative to such obligations; and
-30-
(20) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
Section 901(5)).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to the Board Resolution referred to above and (subject to Section 303) set forth
in the Officers' Certificate referred to above or in any such indenture
supplemental hereto. Not all Securities of any one series need be issued at the
same time and, unless otherwise provided, a series may be reopened for
additional issuance of Securities of such series.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
The Securities shall be subordinated in right of payment to all Senior
Indebtedness as provided in Article Sixteen.
Section 302. Denominations.
The Securities of each series shall be issuable only in registered form
without coupons in such denominations as shall be specified as contemplated by
Section 301. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
Section 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by any one of
its Chairman, Vice Chairman, President, any Executive Vice or any Vice
President, together with any one of the Treasurer, any Assistant Treasurer, the
Secretary or any Assistant Secretary of the Company. The signature of any of
these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities. If not
all the Securities of any series are to be issued at one time and if the Board
Resolution or supplemental indenture establishing such series shall so permit,
such Company Order may set forth procedures acceptable to the Trustee for the
issuance of such Securities and determining terms of particular Securities of
such series such as interest rate, stated maturity, date of issuance and date
from which interest shall accrue. If the form or terms of the Securities of the
series have been established in or pursuant to one or more Board Resolutions as
permitted by Sections 201 and 301, in authenticating such Securities, and
accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to
-31-
receive, and (subject to Section 601) shall be fully protected in relying upon,
an Opinion of Counsel stating,
(1) if the form of such Securities has been established by or pursuant
to Board Resolution as permitted by Section 201, that such form has been
established in conformity with the provisions of this Indenture;
(2) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 301, that such terms
have been established in conformity with the provisions of this Indenture;
and
(3) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company, enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
If such form or terms have been so established, the Trustee shall not
be required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will materially and adversely affect the Trustee's
own rights, duties or immunities under the Securities and this Indenture or
otherwise in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph 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 to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder and is entitled to the
benefits of this Indenture. Notwithstanding the foregoing, if any Security shall
have been authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 309 together with a written statement (which
need not comply with Section 102 and need not be accompanied by an Opinion of
Counsel) stating that such Security has never been issued and sold by the
Company, for all purposes of this Indenture such Security shall be deemed never
to have been authenticated and delivered hereunder and shall never be entitled
to the benefits of this Indenture.
-32-
Section 304. Temporary Securities.
Pending the preparation of definitive Securities of any Series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities, which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities of any series, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a like principal
amount of definitive Securities of the same series, of any authorized
denominations and of like tenor and aggregate principal amount. Until so
exchanged, the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
such series and tenor.
Section 305. Registration, Registration of Transfer and Exchange; Certain
Transfers and Exchanges.
(a) Registration, Registration of Transfer and Exchange Generally. The
Company shall cause to be kept at the Corporate Trust Office of the Trustee a
register (the register maintained in such office and in any other office or
agency of the Company in a Place of Payment being herein sometimes collectively
referred to as the "Securities Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
of Securities and of transfers of Securities. The Trustee is hereby appointed
"Security Registrar" for the purpose of registering Securities and transfers of
Securities as herein provided.
Upon surrender for registration of transfer of any Security of any
series at the office or agency in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series, of any authorized denominations and of a like aggregate
principal amount and tenor.
Subject to this Section 305(a) and to Section 305(b), at the option of
the Holder, Securities of any series may be exchanged for other Securities of
the same series, of any authorized denominations and of a like aggregate
principal amount and tenor, upon surrender of the Securities to be exchanged at
such office or agency. Whenever any Securities are so surrendered for exchange,
the Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
-33-
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
If the Securities of any series (or of any series and specified tenor)
are to be redeemed in part, the Company shall not be required (i) to issue,
register the transfer of or exchange Securities of any series during a period
beginning at the opening of business 15 days before the day of the mailing of a
notice of redemption of Securities of that series selected for redemption under
Section 1103 and ending at the close of business on the day of such mailing, or
(ii) to register the transfer of or exchange any Security so selected for
redemption in whole or in part, except the unredeemed portion of any Security
being redeemed in part.
The provisions of Clauses (1), (2), (3) and (4) below shall apply only
to Global Securities:
(1) Each Global Security authenticated under this Indenture shall be
registered in the name of the Depositary designated for such Global
Security or a nominee thereof and delivered to such Depositary or a nominee
thereof or custodian therefor, and each such Global Security shall
constitute a single Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture or the
Securities, no Global Security of any series may be exchanged in whole or
in part for Securities of that series registered, and no transfer of a
Global Security of a series in whole or in part may be registered, in the
name of any Person other than the Depositary for such Global Security or a
nominee thereof unless (A) the Depositary (i) has notified the Company that
it is unwilling or unable to continue as Depositary for the Global Security
and a successor Depositary has not been appointed by the Company within 90
days of receipt by the Company of such notification or (ii) has ceased to
be a clearing agency registered under the Exchange Act and a successor
Depositary has not been appointed by the Company within 90 days after the
Company became aware of such cessation, (B) the Company, at its option,
notifies the Trustee in writing that it elects to cause the issuance of
Certificated Securities, (C) there shall have occurred and be continuing an
Event of Default with respect to such Global Security or (D) there shall
exist such circumstances, if any, in addition to or in lieu of the
foregoing as have been specified for this purpose as contemplated by
Section 301. Any Global Security of a series exchanged pursuant to clause
(A) above shall be so exchanged in whole and not in part and any Global
Security of a series exchanged pursuant to clause (B), (C) or (D) above may
be exchanged in whole or from time to time in part as directed by the
Company or the Trustee.
(3) Securities issued in exchange for a Global Security of a series or
any portion thereof pursuant to clause (2) above shall be issued in
definitive, fully registered form without interest coupons, shall have an
aggregate principal amount equal to that of
-34-
such Global Security or portion thereof to be so exchanged, shall be
registered in such names and be in such authorized denominations as the
Depositary shall designate and shall bear any legends required hereunder.
Any Global Security of a series to be exchanged in whole shall be
surrendered by the Depositary to the Trustee, as Security Registrar. With
regard to any Global Security of a series to be exchanged in part, either
such Global Security shall be so surrendered for exchange or, if the
Trustee is acting as custodian for the Depositary or its nominee with
respect to such Global Security, the principal amount thereof shall be
reduced by an amount equal to the portion thereof to be so exchanged by
means of an appropriate adjustment made on the records of the Trustee. Upon
any such surrender or adjustment, the Trustee shall authenticate and make
available for delivery a Security of such series issuable on such exchange
to or upon the written order of the Depositary or an authorized
representative thereof.
(4) In the event of the occurrence of any of the events specified in
clause (2) above, the Company shall promptly make available to the Trustee
a reasonable supply of Certificated Securities in definitive, registered
form without interest coupons.
(5) No Agent Members nor any other Persons on whose behalf Agent
Members may act (including Euroclear and Clearstream and account holders
and participants therein and any holder or owner of any beneficial interest
in any Global Security) shall have any rights under the Indenture with
respect to any Global Security, or under any Global Security, and the
Depositary or such nominee, as the case may be, may be treated by the
Company, the Trustee and any agent of the Company or the Trustee as the
absolute owner and holder of such Global Security for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the
Company, the Trustee or any agent of the Company or the Trustee from giving
effect to any written certification, proxy or other authorization furnished
by the Depositary or such nominee, as the case may be, or impair, as
between the Depositary, its Agent Members and any other person on whose
behalf an Agent Member may act, the operation of customary practices of
such Persons governing the exercise of the rights of a holder of any
Security. Neither the Company, the Trustee nor the Securities Registrar
shall have any liability in respect of any transfers effected by the
Depositary or by any Agent Member or any other Person that acquires a
beneficial interest in a Security. Neither the Trustee nor the Depositary
shall have any duty or obligation to monitor compliance with any
restrictions on transfer with respect to the transfer of any interest in
the Securities (including transfers between Agent Members or any such other
Persons that acquire a beneficial interest in a Security) other than to
require delivery of any documents or certificates specifically required by
this Indenture.
(b) Certain Transfers and Exchanges. Notwithstanding any other
provision of this Indenture or the Securities, transfers and exchanges of
Securities and beneficial interests in a Global Security of the kinds specified
in this Section 305(b) shall be made only in accordance with this Section
305(b).
(i) Limitation on Transfers of a Global Security. A Global Security of
a series may not be transferred, in whole or in part, to any Person other
than DTC or a nominee thereof, and no such transfer to any such other
Person may be registered; provided that this clause (i) shall not prohibit
any transfer of a Security of a series that is issued in exchange for a
Global Security of that series but is not itself a Global Security
-35-
pursuant to Section 305(a). No transfer of a Security of a series to any
Person shall be effective under this Indenture or the Securities unless and
until such Security has been registered in the name of such Person. Nothing
in this Section 305(b)(i) shall prohibit or render ineffective any transfer
of a beneficial interest in a Global Security effected in accordance with
the other provisions of this Section 305(b).
(ii) Temporary Regulation S Global Security. If the owner of a
beneficial interest in a Temporary Regulation S Global Security of a series
wishes at any time to transfer such interest to a Person who wishes to take
delivery thereof in the form of a beneficial interest in such Temporary
Regulation S Global Security, such transfer may be effected, subject to the
rules and procedures of the Depositary, Euroclear and Clearstream, in each
case to the extent applicable and as in effect from time to time (the
"Applicable Procedures"), only in accordance with this Section 305(b)(ii).
Upon delivery (A) by a beneficial owner of an interest in a Temporary
Regulation S Global Security to Euroclear or Clearstream, as the case may
be, of an Owner Securities Certification substantially in the form of Annex
C-1 hereto, (B) by the transferee of such beneficial interest in the
Temporary Regulation S Global Security to Euroclear or Clearstream, as the
case may be, of a written certification (a "Transferee Securities
Certification") substantially in the form of Annex C-3 hereto and (C) by
Euroclear or Clearstream, as the case may be, to the Trustee, as Security
Registrar, of a Depository Securities Certification substantially in the
form of Annex C-2 hereto, the Trustee may direct either Euroclear or
Clearstream, as the case may be, to reflect on its records the transfer of
a beneficial interest in the Temporary Regulation S Global Security from
the beneficial owner providing the Owner Securities Certification to the
Person providing the Transferee Securities Certification.
(iii) Restricted Global Security to Temporary Regulation S Global
Security. If the holder of a beneficial interest in the Restricted Global
Security wishes at any time to transfer such interest to a Person who
wishes to take delivery thereof in the form of a beneficial interest in the
Temporary Regulation S Global Security, such transfer may be effected,
subject to the Applicable Procedures, only in accordance with the
provisions of this Section 305(b)(iii). Upon receipt by the Trustee, as
Security Registrar, of (A) written instructions given in accordance with
the Applicable Procedures from a Agent Member directing the Trustee to
credit or cause to be credited to a specified Agent Member's account a
beneficial interest in the Temporary Regulation S Global Security in a
principal amount equal to that of the beneficial interest in the Restricted
Global Security to be so transferred, (B) a written order given in
accordance with the Applicable Procedures containing information regarding
the account of the Agent Member (and the Euroclear or Clearstream account,
as the case may be) to be credited with, and the account of the Agent
Member to be debited for, such beneficial interest and (C) a certificate in
substantially the form set forth in Annex A-1 given by the holder of such
beneficial interest, the Trustee, as Security Registrar, shall instruct
the Depositary to reduce the principal amount of the applicable Restricted
Global Security, and to increase the principal amount of the Temporary
Regulation S Global Security, by the principal amount of the beneficial
interest in the Restricted Global Security to be so transferred, and to
credit or cause to be credited to the account of the Person specified
in such instructions (which shall be the Agent Member for Euroclear or
Clearstream or both , as the case may be) a beneficial interest in the
Temporary Regulation S Global Security
-36-
having a principal amount equal to the amount by which the principal amount
of the Restricted Global Security was reduced upon such transfer.
(iv) Restricted Global Security to Regulation S Global Security. If
the holder of a beneficial interest in a Restricted Global Security wishes
at any time to transfer such interest to a Person who wishes to take
delivery thereof in the form of a beneficial interest in the Regulation S
Global Security, such transfer may be effected, subject to the Applicable
Procedures, only in accordance with this Section 305(b)(iv). Upon receipt
by the Trustee, as Security Registrar, of (A) written instructions given in
accordance with the Applicable Procedures from an Agent Member directing
the Trustee to credit or cause to be credited to a specified Agent Member's
account a beneficial interest in a Regulation S Global Security in a
principal amount equal to that of the beneficial interest in the Restricted
Global Security to be so transferred, (B) a written order given in
accordance with the Applicable Procedures containing information regarding
the account of the Agent Member (and, if applicable, the Euroclear or
Clearstream account, as the case may be) to be credited with, and the
account of the Agent Member to be debited for, such beneficial interest and
(C) a certificate in substantially the form set forth in Annex A-2 given by
the holder of such beneficial interest, the Trustee, as Security Registrar,
shall instruct the Depositary to reduce the principal amount of the
applicable Restricted Global Security, and to increase the principal amount
of the Regulation S Global Security, by the principal amount of the
beneficial interest in the Restricted Global Security to be so transferred,
and to credit or cause to be credited to the account of the Person
specified in such instructions a beneficial interest in the Regulation S
Global Security having a principal amount equal to the amount by which the
principal amount of the Restricted Global Security was reduced upon such
transfer.
(v) Temporary Regulation S Global Security or Regulation S Global
Security to Restricted Global Security. If the holder of a beneficial
interest in a Temporary Regulation S Global Security or a Regulation S
Global Security wishes at any time to transfer such interest to a Person
who wishes to take delivery thereof in the form of a beneficial interest in
the Restricted Global Security, such transfer may be effected, subject to
the Applicable Procedures, only in accordance with this Section 305(b)(v).
Upon receipt by the Trustee, as Security Registrar, of (A) written
instructions given in accordance with the Applicable Procedures from an
Agent Member directing the Trustee to credit or cause to be credited to a
specified Agent Member's account a beneficial interest in a Restricted
Global Security in a principal amount equal to that of the beneficial
interest in the Temporary Regulation S Global Security or the Regulation S
Global Security to be so transferred, (B) a written order given in
accordance with the Applicable Procedures containing information regarding
the account of the Agent Member to be credited with, and the account of the
Agent Member (and, if applicable, the Euroclear or Clearstream account, as
the case may be) to be debited for, such beneficial interest and (C) a
certificate in substantially the form set forth in Annex B given by the
owner of such beneficial interest, the Trustee, as Security Registrar,
shall instruct the Depositary to reduce the principal amount of the
applicable Temporary Regulation S Global Security or the Regulation S
Global Security, as the case may be, and to increase the principal amount
of the Restricted Global Security, by the principal amount of the
beneficial interest in the Temporary Regulation S Global Security or the
Regulation S Global Security to be so transferred, and to credit or cause
to be credited to the account of the Person specified in such instructions
a beneficial interest in the Restricted Global
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Security having a principal amount equal to the amount by which the
principal amount of the Temporary Regulation S Global Security or the
Regulation S Global Security, as the case may be, was reduced upon such
transfer.
(vi) Non-Global Restricted Security to Global Security. If the Holder
of a Restricted Security (other than a Global Security) wishes at any time
to transfer all or a portion of such Security to a Person who wishes to
take delivery thereof in the form of a beneficial interest in the
Restricted Global Security, the Temporary Regulation S Global Security or
the Regulation S Global Security, in each case, such transfer may be
effected, subject to the Applicable Procedures, only in accordance with
this Section 305(b)(vi). Upon receipt by (1) the Depositary of (A) written
instructions given in accordance with the Applicable Procedures from an
Agent Member directing the Depositary to credit or cause to be credited to
a specified Agent Member's account a beneficial interest in the Restricted
Global Security, the Temporary Regulation S Global Security or the
Regulation S Global Security, as the case may be, in a specified principal
amount equal to the principal amount of the Restricted Security (or portion
thereof) to be so transferred, (B) a written order given in accordance with
the Applicable Procedures containing information regarding the account of
the Agent Member (and, in the case of any transfer pursuant to Regulation
S, the Euroclear and Clearstream account for which such Agent Member's
account is held, or if such account is held for Euroclear or Clearstream,
the Euroclear or Clearstream account, as the case may be) to be credited
with such beneficial interest, and (C) an appropriately completed
certificate substantially in the form set forth in Annex D-1 hereto, if the
specified account is to be credited with a beneficial interest in a
Restricted Global Security, or Annex D-2 hereto, if the specified account
is to be credited with a beneficial interest in the Temporary Regulation S
Global Security or the Regulation S Global Security, given by the holder of
such beneficial interest, and (2) the Trustee of (A) the Restricted
Security to be so transferred, (B) the notification from the Depositary of
the transaction described in (1) above and (C) the certificate described in
(1)(C) above, the Trustee, as Security Registrar, shall cancel such
Restricted Security (and issue a new Security in respect of any
untransferred portion thereof) as provided in Section 305(a) and increase
the principal amount of the Restricted Global Security, Temporary
Regulation S Global Security or Regulation S Global Security, as the case
may be, by the specified principal amount as provided in Section
305(b)(iii).
The Trustee shall not be required to accept for such registration of
transfer or exchange any Restricted Security unless the Trustee and the
Company are satisfied that such transfer or exchange is being effected in
compliance with the restrictions on transfer as set forth in this Indenture
and in such Security. In addition, in connection with a transfer of a
Certificated Security by an Institutional Accredited Investor, such
Institutional Accredited Investor shall be required, prior to such
transfer, to furnish to the Company and the Trustee such certifications,
legal opinions or other information as they or either of them may
reasonably require to confirm that such transfer is being made pursuant to
an exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act.
(vii) Other Exchanges. (1) In the event that a Global Security or any
portion thereof is exchanged for Securities other than Global Securities,
such other Securities may in turn be exchanged (on transfer or otherwise)
for Securities that are not Global
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Securities or for beneficial interests in a Global Security (if any is then
outstanding) only in accordance with such procedures, which shall be
substantially consistent with the provisions of clauses (i) through (vi)
above and (viii) below (including the certification requirements intended
to insure that transfers and exchanges of beneficial interests in a Global
Security comply with Rule 144A, Rule 144 (if available) or Regulation S, as
the case may be) and any Applicable Procedures, as may be from time to time
adopted by the Company and the Trustee; provided that except as permitted
in (3) hereof, no beneficial interest in a Temporary Regulation S Global
Security shall be exchangeable for a definitive Security until the
expiration of the Restricted Period and then only if the certifications
described in Section 201 shall have been provided in respect of such
interest.
(2) Subject to Section 201(d), in connection with a transfer of a
Restricted Security or of an interest therein to an Institutional
Accredited Investor, such Institutional Accredited Investor shall be
required, prior to such transfer, to furnish to the Company and the
Trustee, an appropriately completed certificate substantially in the form
of Annex E and such other certifications, legal opinions or other
information as they or either of them may reasonably require to confirm
that such transfer is being made pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the Securities
Act; provided, however, that the purchaser of a Certificated Security
directly from the initial purchaser thereof named as such in the Purchase
Agreement in respect of the securities of such series may, so long as such
security is a Restricted Security, transfer such security only in
accordance with clause (vi) above.
(3) Notwithstanding any other provision of this Section 305, an
initial purchaser named as such in the Purchase Agreement in respect of the
Securities of a series may exchange beneficial interests in the Temporary
Regulation S Global Securities of that series held by it for one or more
Restricted Securities of that series (including an interest in the
Restricted Global Security of that series) upon delivery by such initial
purchaser of instructions for such exchange substantially in the form of
Annex F. Upon receipt of the instruction described in the preceding
sentence, the Trustee shall instruct the Depositary to reduce the principal
amount of a Temporary Regulation S Global Security by the principal amount
of the beneficial interest in such Temporary Regulation S Global Security
to be so transferred and either (A) the Trustee shall instruct the
Depositary to increase the principal amount of the Restricted Global
Security and credit or cause to be credited to the account of such initial
purchaser a beneficial interest in such Restricted Global Security having a
principal amount equal to the amount by which the principal amount of the
Temporary Regulation S Global Security was reduced upon such transfer or
(B) authenticate and deliver one or more Restricted Securities in
definitive form and in the aggregate principal amount of the beneficial
interest in the Temporary Regulation S Global Security to be so
transferred, pursuant to the instructions described in the first sentence
of this paragraph.
(viii) Interests in Temporary Regulation S Global Security to be Held
Through Euroclear or Clearstream. Until the termination of the Restricted
Period, interests in the Temporary Regulation S Global Securities may be
held only through Agent Members acting for and on behalf of Euroclear and
Clearstream, provided that this clause (viii) shall not prohibit any
transfer in accordance with Section 305(b)(v) hereof.
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(ix) In addition to the foregoing, the Trustee, as Security Registrar,
shall effect and register, upon receipt of a written request from the
Company to do so, a transfer not otherwise permitted by this Section
305(b), such registration to be done in accordance with the otherwise
applicable provisions of this Section 305, upon the furnishing by the
proposed transferor or transferee of a written opinion of counsel (which
opinion and counsel are satisfactory to the Company and the Trustee) to the
effect that, and such other certifications or information as the Company or
the Trustee may require to confirm that, the proposed transfer is being
made pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act. The Company may require
such transfer to be effected by the issuance of Certificated Securities.
(c) Securities Act Legends. Restricted Securities and their Successor
Securities shall bear the legends required by Section 202 and Section 204,
subject to the following:
(i) subject to the following Clauses of this Section 305(c), a
Security of a series or any portion thereof which is exchanged, upon
transfer or otherwise, for a Global Security of that series or any portion
thereof shall bear the Securities Act Legend borne by such Global Security
while represented thereby;
(ii) subject to the following Clauses of this Section 305(c), a new
Security of a series which is not a Global Security and is issued in
exchange for another Security of that series (including a Global Security)
or any portion thereof, upon transfer or otherwise, shall bear the
Securities Act Legend borne by such other Security, provided that, if such
new Security is required pursuant to Section 305(b)(v) to be issued in the
form of a Restricted Security, it shall bear a Restricted Securities Legend
and, if such new Security is so required to be issued in the form of a
Regulation S Security, it shall bear a Regulation S Legend;
(iii) Registered Securities and Regulation S Securities that are not
Temporary Regulations S Securities shall not bear a Securities Act Legend;
(iv) at any time after the Securities of a series may be freely
transferred without registration under the Securities Act or without being
subject to transfer restrictions pursuant to the Securities Act, a new
Security of that series which does not bear a Securities Act Legend may be
issued in exchange for or in lieu of a Security of that series (other than
a Global Security) or any portion thereof which bears such a legend if the
Trustee has received an Unrestricted Securities Certificate, satisfactory
to the Trustee and duly executed by the Holder of such legended Security or
his attorney duly authorized in writing, and after such date and receipt of
such certificate, the Trustee shall authenticate and deliver such a new
Security in exchange for or in lieu of such other Security as provided in
this Article Three;
(v) a new Security of a series which does not bear a Securities Act
Legend may be issued in exchange for or in lieu of a Security of that
series (other than a Global Security) or any portion thereof which bears
such a legend if, in the Company's judgment, placing such a legend upon
such new Security is not necessary to ensure compliance with the
registration requirements of the Securities Act, and the Trustee, at
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the direction of the Company, shall authenticate and deliver such a new
Security as provided in this Article Three; and
(vi) notwithstanding the foregoing provisions of this Section 305(c),
a Successor Security of a Security of a series that does not bear a
particular form of Securities Act Legend shall not bear such form of legend
unless the Company has reasonable cause to believe that such Successor
Security is a "restricted security" within the meaning of Rule 144 under
the Securities Act, in which case the Trustee, at the direction of the
Company, shall authenticate and deliver a new Security of that series
bearing a Restricted Securities Legend in exchange for such Successor
Security as provided in this Article Three.
The Trustee shall have no obligation or duty to monitor, determine or
inquire as to compliance with any restrictions on transfer imposed under this
Indenture or under applicable law with respect to any transfer of any interest
in any Security (including any transfers between or among Agent Members or
beneficial owners of interests in any Global Security) other than to require
delivery of such certificates and other documentation or evidence as are
expressly required by, and to do so if and when expressly required by the terms
of, this Indenture, and to examine the same to determine substantial compliance
as to form with the express requirements hereof. The Trustee shall not have any
responsibility for any actions taken or not taken by the Depositary.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by
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anyone, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series duly issued
hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
Section 307. Payment of Interest and Additional Interest; Interest Rights
Preserved.
Unless otherwise provided as contemplated by Section 301 with respect
to any series of Securities, interest and Additional Interest on any Security
which is payable, and is punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the Person in whose name that Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest at the office or agency of the Company
maintained for such purpose pursuant to Section 1002; provided, however, that
each installment of interest, if any, on any Security may at the Company's
option be paid by (i) mailing a check for such interest, payable to or upon the
written order of the Person entitled thereto pursuant to Section 309, to the
address of such Person as it appears on the Securities Register or (ii) wire
transfer in immediately in available funds at such place and to such account as
may be designated by the Person entitled thereto as specified in the Securities
Register.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date, other than
any interest the payment of which the Company has duly deferred pursuant to
Section 311 (herein called "Defaulted Interest"), shall forthwith cease to be
payable to the Holder on the relevant Regular Record Date by virtue of having
been such Holder, and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner ("the Special Record Date"): The
Company shall, not less than 30 days prior to the date of any proposed
payment of Defaulted Interest, notify the Trustee in writing of the amount
of Defaulted Interest proposed to be paid on each Security of such series
and the date of the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or shall
make arrangements satisfactory to the Trustee for such deposit prior to the
date of the proposed payment, such money when deposited to be held in trust
for the benefit of the Persons entitled to such Defaulted Interest as in
this Clause provided. Thereupon the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest which shall be not more than 15
days and not less than 10 days prior to the date of the proposed payment
and not less than 10 days after the receipt by the Trustee of the notice of
the proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor to be mailed, first class postage prepaid,
to each Holder of Securities of such series, at his address as it appears
in the Securities Register, not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such
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Defaulted Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons in whose names
the Securities of such series (or their respective Predecessor Securities)
are registered at the close of business on such Special Record Date and
shall no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant
to this Clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
In the case of any Security which is converted after any Regular Record
Date and on or prior to the next succeeding Interest Payment Date (other than
any Security whose Maturity is prior to such Interest Payment Date), interest
whose Stated Maturity is on such Interest Payment Date shall be payable on such
Interest Payment Date notwithstanding such conversion, and such interest
(whether or not punctually paid or duly provided for) shall be paid to the
Person in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on such Regular Record Date. Except as
otherwise expressly provided in the immediately preceding sentence, in the case
of any Security which is converted, interest whose Stated Maturity is after the
date of conversion of such Security shall not be payable. Notwithstanding the
foregoing, the terms of any Security that may be converted may provide that the
provisions of this paragraph do not apply, or apply with such additions, changes
or omissions as may be provided thereby, to such Security.
Section 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee, any Paying Agent, the Security Registrar and any agent
of the Company or the Trustee hereunder may treat the Person in whose name such
Security is registered upon the Securities Register as the owner of such
Security for the purpose of receiving payment of principal of (and premium, if
any) and (subject to Section 307) any interest on such Security and for all
other purposes whatsoever, whether or not such Security be overdue, and neither
the Company, nor the Trustee, nor any Paying Agent, nor the Security Registrar
nor any agent of the Company or the Trustee shall be affected by notice to the
contrary. All such payments so made to any Holder for the time being, or upon
his order shall be valid, and, to the extent of the sum or sums so paid,
effectual to satisfy and discharge the liability for moneys payable upon any
such Security.
Section 309. Cancellation.
All Securities surrendered for payment, redemption, purchase or
repayment by the Company at the option of Holders, registration of transfer or
exchange or conversion or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be
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delivered to the Trustee and shall be promptly cancelled by it. The Company may
at any time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in any
manner whatsoever, and may deliver to the Trustee (or to any other Person for
delivery to the Trustee) for cancellation any Securities previously
authenticated hereunder which the Company has not issued and sold, and all
Securities so delivered shall be promptly cancelled by the Trustee. If the
Company shall so acquire any of the Securities, however, such acquisition shall
not operate as a redemption or satisfaction of the indebtedness represented by
such Securities unless and until the same are surrendered to the Trustee for
cancellation. No Securities shall be authenticated in lieu of or in exchange for
any Securities cancelled as provided in this Section, except as expressly
permitted by this Indenture. All cancelled Securities held by the Trustee shall
be disposed of as directed by a Company Order (provided that in no event shall
the Trustee be directed to destroy any such cancelled Securities) and, as
directed by Company Order from time to time, the Trustee shall furnish to the
Company a certificate evidencing the cancellation of cancelled Securities.
Section 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months. For disclosure
purposes under the Interest Act (Canada), whenever in this Indenture or any
Securities issued hereunder interest at a specified rate is to be calculated on
the basis of a period less than a calendar year, the yearly rate of interest to
which such rate is equivalent is such rate multiplied by the actual number of
days in the relevant calendar year and divided by the number of days in such
period.
Section 311. Deferrals of Interest Payment Dates.
If specified as contemplated by Section 201 or Section 301 with respect
to the Securities of a particular series, so long as no Event of Default has
occurred and is continuing, the Company shall have the right, at any time during
the term of such series, from time to time to defer the payment of interest
(other than Special Interest, if any) on such Securities for such period or
periods as may be specified as contemplated by Section 301 (each, an "Extension
Period"), during which Extension Periods the Company shall, if so specified as
contemplated by Section 301, have the right to make partial payments of interest
on any Interest Payment Date.
At the end of any such Extension Period the Company shall pay all
interest then accrued and unpaid on the Securities (together with Additional
Interest thereon, if any, at the rate specified for the Securities of such
series to the extent permitted by applicable law); provided, however, that no
Extension Period shall extend beyond the Stated Maturity of the principal of the
Securities of such series; and provided, further, that during any such Extension
Period, (a) the Company shall not declare or pay any dividend on, make any
distributions with respect to, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of its capital stock or make any
guarantee payment with respect thereto (other than (i) repurchases, redemptions
or other acquisitions of shares of capital stock of the Company in connection
with any employment contract, benefit plan or other similar arrangement with or
for the benefit of employees, officers, directors or consultants, (ii) as a
result of an exchange or conversion of any class or series of the Company's
capital stock for any other class or series of the Company's capital stock, or
(iii) the purchase of fractional interests in shares of the Company's capital
stock pursuant to the conversion or exchange provisions of such capital stock or
the security being converted or
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exchanged), and (b) the Company shall not make any payment of interest on,
principal of or premium, if any, on, or repay, repurchase or redeem, any debt
securities issued by the Company which rank pari passu with or junior to the
Securities of such series (including the Securities of any other series);
provided, however, the Company may declare and pay a stock dividend where the
dividend stock is the same stock as that on which the dividend is being paid.
Prior to the termination of any such Extension Period, the Company may
further defer the payment of interest, provided that no Extension Period shall
exceed the period or periods specified in such Securities, extend beyond the
Stated Maturity of the principal of such Securities. Upon the termination of any
such Extension Period and upon the payment of all accrued and unpaid interest
and (to the extent permitted by applicable law) any Additional Interest then due
on any Interest Payment Date, the Company may elect to begin a new Extension
Period, subject to the above conditions. No interest or Additional Interest
shall be due and payable during an Extension Period, but shall be due and
payable on the day after such Extension Period ends. Each installment of
interest that would otherwise have been due and payable during an Extension
Period shall bear Additional Interest as and to the extent as may be specified
as contemplated by Section 301. If the principal of any Securities shall become
due and payable on a day or if any Securities become subject to redemption on a
Redemption Date that would otherwise occur during an Extension Period, such
Extension Period will automatically end on the immediately preceding day (which
will be the last day of the period).
The Company shall give the Holders of the Securities of such series and
the Trustee written notice of its election to begin any such Extension Period at
least five Business Day prior to the Regular Record Date for the next succeeding
Interest Payment Date on which interest on Securities of such series would be
payable but for such deferral. The Company's written notice of its election to
begin an Extension Period shall set forth the first Interest Payment Date in
such period and, if known, the date on which payment of interest (and Additional
Interest, if any) on the Securities will be resumed (and if such date is an
Interest Payment Date, the Regular Record Date), and shall be given in the
manner set forth in Section 106. If such resumption date is not known, the
notice must state that the length of the Extension Period will be indefinite.
The Trustee shall promptly give notice of the Company's election to
begin any such Extension Period to the Holders of the Outstanding Securities of
such series.
Section 312. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Company will promptly notify
the Trustee of any change in the "CUSIP" numbers.
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ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
with respect to any series of Securities specified in such Company Request
(except as to any surviving rights of conversion, registration of transfer or
exchange of Securities herein expressly provided for), and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities of such series theretofore authenticated and
delivered (other than (i) Securities of such series which have been
destroyed, lost or stolen and which have been replaced or paid as
provided in Section 306 and (ii) Securities for whose payment money
has theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(B) all such Securities of such series not theretofore delivered
to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) if redeemable at the option of the Company, are to be
called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the Trustee as
funds (or such other form of payment as may be permitted for payments
with respect to Securities of such series) in trust for the purpose
and in an amount sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the
Trustee for cancellation, for principal (and premium, if any) and
interest (including any Additional Interest) to the date of such
deposit (in the case of Securities which have become due and payable)
or to the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
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(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of clause (1) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
Section 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium and
interest (including any Additional Interest) for whose payment such money has
been deposited with the Trustee. All moneys deposited with the Trustee pursuant
to Section 401 (and held by it or any Paying Agent) for the payment of
Securities subsequently converted shall be returned to the Company upon Company
Request.
ARTICLE FIVE
REMEDIES
Section 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest (including Special Interest
and Additional Interest) upon any Security of that series when it becomes
due and payable, and continuance of such default for a period of 30 days
(subject to the deferral of any due date in the case of an Extension
Period); or
(2) default in the payment of the principal of (or premium, if any,
on) any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as
due by the terms of a Security of that series, and continuance of such
default for a period of 30 days; or
(4) default in the performance, or breach, of any covenant or warranty
of the Company in this Indenture (other than a covenant or warranty a
default in whose performance or whose breach is elsewhere in this Section
specifically dealt with or which has expressly been included in this
Indenture solely for the benefit of series of Securities
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other than that series), and continuance of such default or breach for a
period of 90 days after there has been given, by registered or certified
mail, to the Company by the Trustee or to the Company and the Trustee by
the Holders of at least 25% in principal amount of the Outstanding
Securities of that series a written notice specifying such default or
breach and requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder; or
(5) a default under any bond, debenture, note or other evidence of
indebtedness for money borrowed by the Company (including a default with
respect to Securities of any series other than that series) or under any
mortgage, indenture or instrument under which there may be issued or by
which there may be secured or evidenced any indebtedness for money borrowed
by the Company including this Indenture, whether such indebtedness now
exists or shall hereafter be created, which default shall have resulted in
such indebtedness becoming or being declared due and payable prior to the
date on which it would otherwise have become due and payable, if such
indebtedness shall not have been discharged or such acceleration shall not
have been rescinded or annulled within a period of 10 days after there
shall have been given, by registered or certified mail, to the Company by
the Trustee or to the Company and the Trustee by the Holders of at least
25% in principal amount of the Outstanding Securities of that series a
written notice specifying such default and requiring the Company to cause
such acceleration to be rescinded or annulled and stating that such notice
is a "Notice of Default" hereunder; provided, however ,that if such event
of default under such bond, debenture, note or other evidence of
indebtedness for money borrowed by the Company or mortgage, indenture or
instrument shall be remedied or cured by the Company or waived by the
holder of such indebtedness, then the Event of Default hereunder by reason
thereof shall be deemed likewise to have been thereupon remedied, cured, or
waived without further action upon the part of either the Trustee or any of
the Holders of Outstanding Securities; and provided, further, that, subject
to the provisions of Sections 601 and 602, the Trustee shall not be deemed
to have knowledge of such default unless either (A) a Responsible Officer
of the Trustee assigned to its Corporate Trust Department shall have actual
knowledge of such default or (B) the Trustee shall have received at its
principal Corporate Trust Office written notice thereof from the Company,
from any Holder, from the holder of any such indebtedness or from the
trustee under any such mortgage, indenture or other instrument; or
(6) the entry of a decree or order by a court having jurisdiction in
the premises adjudging the Company a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization or winding-up of the
Company under the Companies' Creditors Arrangement Act (Canada), the
Bankruptcy and Insolvency Act (Canada) or the Winding-Up Act (Canada) or
any other bankruptcy, insolvency or analogous laws, or the issuing of a
sequestration order or process of execution against the Company or any
substantial part of its property, or appointing a receiver of the Company
or of any substantial part of its property, or ordering the winding-up or
liquidation of its affairs, and the continuance of any such decree or order
or appointment unstayed, undischarged and in effect for a period of 60 days
from the date thereof; or
(7) the institution by the Company of proceedings to be adjudicated
bankrupt or insolvent, or the consent by it to the institution of
bankruptcy or insolvency proceedings against it, or the filing by it of a
petition or answer or consent seeking
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reorganization or relief under the Companies' Creditors Arrangement Act
(Canada), the Bankruptcy and Insolvency Act (Canada) or the Winding-Up Act
(Canada) or any other bankruptcy, insolvency or analogous laws, or the
consent by it to the filing of any such petition or to the appointment of a
receiver or similar official of the Company or of any substantial part of
its property, or the making by it of a general assignment for the benefit
of creditors, or the Company's admitting in writing its inability to pay
its debts generally as they become due or taking corporate action in
furtherance of any of the aforesaid purposes; or
(8) any other Event of Default provided with respect to Securities of
that series.
Section 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in
Section 501(6) or 501(7)) with respect to Securities of any series at the time
Outstanding occurs and is continuing, then in every such case the Trustee or the
Holders of not less than 25% in principal amount of the Outstanding Securities
of that series may declare the principal amount (or, if any of the Securities of
that series are Original Issue Discount Securities, such portion of the
principal amount of such Securities as may be specified in the terms thereof)
of, and accrued interest and any Additional Interest on, all of the Securities
of that series to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by Holders), and upon any such declaration
such principal amount (or specified amount) shall become immediately due and
payable. If an Event of Default specified in Section 501(6) or 501(7) with
respect to Securities of any series at the time Outstanding occurs, the
principal amount of (together with accrued interest and any Additional Interest
thereon) all the Securities of that series (or, if any Securities of that series
are Original Issue Discount Securities, such portion of the principal amount of
such Securities as may be specified by the terms thereof) shall automatically,
and without any declaration or other action on the part of the Trustee or any
Holder, become immediately due and payable. Payment of principal and interest
(including any Additional Interest) on such Securities shall remain subordinated
to all Senior Indebtedness to the extent provided in Article Sixteen
notwithstanding that such amount shall become immediately due and payable as
herein provided.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum (or such
other form of payment as may be permitted for payments with respect to
Securities of such series) sufficient to pay:
(A) all overdue interest on all Outstanding Securities of that
series,
(B) any accrued Additional Interest (to the extent that payment
thereof is lawful) on all Outstanding Securities of that series,
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(C) the principal of (and premium, if any, on) any Outstanding
Securities of that series which have become due otherwise than by such
declaration of acceleration and any interest and Additional Interest
thereon at the rate or rates prescribed therefor in such Outstanding
Securities,
(D) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Securities, and
(E) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that series,
other than the non-payment of the principal of (or premium, if any, on) or
interest on the Securities of that series which have become due solely by
such declaration of acceleration, have been cured or waived as provided in
Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if:
(1) default is made in the payment of any interest (including any
Additional Interest) on any Security when such interest becomes due and
payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to the Trustee (in cash or in
such other form of payment as may be permitted for payments with respect to
Securities of such series), for the benefit of the Holders of such Securities,
the whole amount then due and payable on such Securities for principal and any
premium and interest and, to the extent that payment of such interest shall be
legally enforceable, interest on any overdue principal (and premium, if any) and
on any overdue interest, at the rate or rates prescribed therefor in such
Securities, and, in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
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If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or any
other obligor upon the Securities), its property or its creditors, the Trustee
shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such Judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 607.
Nothing herein shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
Section 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
Section 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (and premium
if any) or interest (including any Additional Interest), upon presentation of
the Securities and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
607; and
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest (including any Additional
Interest) on the Securities in
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respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal and any (and
premium, if any) and interest (including any Additional Interest),
respectively.
Section 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless:
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceeding in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holder shall have
any right in any manner whatever by virtue of, or by availing themselves of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other of such Holders, or to obtain or to seek to obtain priority or preference
over any other of such Holders or to enforce any right under this Indenture,
except in the manner herein provided and for the equal and ratable benefit of
all of such Holders.
Section 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest and to Convert.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any,) and (subject to
Sections 307 and 311) interest (including any Additional Interest) on such
Security on the Stated Maturity or Maturities expressed in such Security (or, in
the case of redemption, on the Redemption Date or, in the case of purchase or
repayment by the Company at the option of the Holder, on the Repayment Date),
and, if the terms of such Security so provide, to convert such Security in
accordance with its terms, and to institute suit for the enforcement of any such
payment and, if applicable, any such right to convert, and such rights shall not
be impaired without the consent of such Holder.
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Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
Section 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved to the Trustee
or to the Holders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
Section 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture, and
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
Section 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default:
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(1) in the payment of the principal of (or premium, if any) or
interest (including any Additional Interest) on any Security of such
series, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
Section 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by
his or her acceptance thereof shall be deemed to have agreed, that any court may
in its discretion require, in any suit for the enforcement of any right or
remedy under this Indenture, or in any suit against the Trustee for any action
taken, suffered or omitted by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including reasonable attorneys'
fees, against any party litigant in such suit, having due regard to the merits
and good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 25% in principal
amount of the Outstanding Securities of any series, or to any suit instituted by
any Holder for the enforcement of the payment of the principal of (or premium,
if any) or interest (including any Additional Interest) on any Security on or
after the Stated Maturity or Maturities expressed in such Security (or, in the
case of redemption, on or after the Redemption Date or, in the case of purchase
or repayment by the Company at the option of the Holder, on or after the
Repayment Date).
Section 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time plead or in any manner whatsoever claim or take the
benefit or advantage of any stay or extension law wherever enacted, now or at
any time hereafter in force, which may affect the covenants or the performance
of this Indenture; and the Company (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law and covenants
that it will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
Section 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
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(1) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture, and no implied covenants
or obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; but in
the case of any such certificates or opinions which by any provision hereof
are specifically required to be furnished to the Trustee, the Trustee shall
be under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture (but need not confirm or
investigate the accuracy of mathematical calculations or other facts stated
therein).
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that:
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction
of the Holders of a majority in principal amount of the Outstanding
Securities of any series relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Indenture with respect to the Securities. of such series; and
(4) no provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
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Section 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall transmit by mail to
all Holders of Securities of such series, as their names and addresses appear in
the Securities Register, notice of such default hereunder known to the Trustee,
unless such default shall have been cured or waived; provided, however, that,
except in the case of a default in the payment of the principal of (or premium,
if any) or interest (including any Additional Interest) on any Security of such
series or in the payment of any sinking fund installment with respect to
Securities of such series, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee or a
trust committee of directors or Responsible Officers of the Trustee in good
faith determine that the withholding of such notice is in the interest of the
Holders of Securities of such series; and provided, further, that in the case of
any default of the character specified in Section 501(4) with respect to
Securities of such series, no such notice to Holders shall be given until at
least 30 days after the occurrence thereof. For the purpose of this Section, the
term "default" means any event which is, or after notice or lapse of time or
both would become, an Event of Default with respect to Securities of such
series.
Section 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(1) the Trustee may conclusively rely and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order or as
otherwise expressly provided herein, and any resolution of the Board of
Directors may be sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities (including the reasonable compensation and
the expenses and disbursements of its agents and counsel) which might be
incurred by it in compliance with such request or direction;
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(6) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder;
(8) the Trustee shall not be liable for any action taken, suffered, or
omitted to be taken by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it
by this Indenture;
(9) the Trustee shall not be deemed to have notice of any Default or
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact
such a default is received by the Trustee at the Corporate Trust Office of
the Trustee, and such notice references the Securities and this Indenture;
(10) the rights, privileges, protections, immunities and benefits
given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in
each of its capacities hereunder, and each agent, custodian and other
Person employed to act hereunder; and
(11) the Trustee may request that the Company deliver an Officers'
Certificate setting forth the names of individuals and/or titles of
officers authorized at such time to take specified actions pursuant to this
Indenture, which Officers' Certificate may be signed by any person
authorized to sign an Officers' Certificate, including any person specified
as so authorized in any such certificate previously delivered and not
superseded.
Section 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities. Neither the
Trustee nor any Authenticating Agent shall not be accountable for the use or
application by the Company of Securities or the proceeds thereof.
Section 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or
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pledgee of Securities and, subject to Sections 608 and 613, may otherwise deal
with the Company with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other agent.
Section 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. Neither the Trustee nor
any Paying Agent shall be under any liability for interest on any money received
by it hereunder except such as it may agree with the Company to pay thereon. So
long as no Event of Default shall have occurred and be continuing, all interest
allowed on any such money shall be paid from time to time upon receipt by the
Trustee of a Company Order.
Section 607. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time such compensation as the
Company and the Trustee shall from time to time agree in writing for all
services rendered by it hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a trustee of an
express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation agreed to in
writing by the parties from time to time and the expenses and disbursements
of its agents and counsel), except any such expense, disbursement or
advance as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense, including taxes (other than taxes based upon,
measured by or determined by the income, capital, profit or assets of the
Trustee), incurred without negligence or bad faith on its part, arising out
of or in connection with the acceptance or administration of the trust or
trusts hereunder, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder. Such indemnification
shall survive the resignation or removal of the Trustee, the termination of
this Agreement and the satisfaction and discharge of the trust.
The Trustee shall have a lien prior to the Securities as to all
property and funds held by it hereunder for any amount owing it or any
predecessor Trustee pursuant to this Section 607, except with respect to funds
held in trust for the benefit of the Holders of particular Securities.
When the Trustee incurs expenses or renders services in connection with
an Event of Default specified in Section 501(6) or Section 501(7), the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or State bankruptcy, insolvency or
other similar law.
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Section 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by such Act, the Trustee shall not be deemed to have a conflicting
interest by virtue of being a trustee under this Indenture with respect to
Securities of more than one series or a trustee under the indentures relating to
the Company's 5 3/4% Convertible Debentures due 2004, the Company's 7 3/4%
Convertible Debentures due 2016, the Company's 9 7/8% Sinking Fund Debentures
due 2019, the Company's 9.60% Debentures due 2022, the Company's 7.20%
Debentures due 2032, the Company's 7 3/4% Notes due 2012, the Company's Liquid
Yield Option Notes due 2021 and the Company's Convertible Debentures due 2023.
Section 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia, authorized under such
laws to exercise corporate trust power, having a combined capital and surplus of
at least $50,000,000 subject to supervision or examination by Federal or State
authority and having its Corporate Trust Office in the Borough of Manhattan, The
City of New York. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee cease to be eligible in accordance with the provisions of
this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
Section 610. Resignation and Removal; Appointment of Successor.
No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company.
If at any time:
(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months, or
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(2) the Trustee shall cease to be eligible under Section 609 and shall
fail to resign after written request therefor by the Company or by any such
Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all securities, or (ii) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, with respect
to the Securities of one or more series, the Company, by a Board Resolution,
shall promptly appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all of
such series and that at any time there shall be only one Trustee with respect to
the Securities of any particular series) and shall comply with the applicable
requirements of Section 611. If, within one year after such resignation, removal
or incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any Series shall be appointed by Act of the Holders
of a majority in principal amount of the Outstanding Securities of such series
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment in accordance
with the applicable requirements of Section 611, become the successor Trustee
with respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with respect
to the Securities of any Series shall have been so appointed by the Company or
the Holders and accepted appointment in the manner required by Section 611, any
Holder who has been a bona fide Holder of a Security of such series for at least
six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series by mailing
written notice of such event by first-class mail, postage prepaid, to all
Holders of Securities of such series as their names and addresses appear in the
Securities Register. Each notice shall include the name of the successor Trustee
with respect to the Securities of such series and the address of its Corporate
Trust Office.
Section 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the
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successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees as co-trustees of
the same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in Subsections (a) and (b) of this section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
Section 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
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authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
Section 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
Section 614. Appointment of Authenticating Agent
The Trustee may appoint an Authenticating Agent or Agents with respect
to one or more series of Securities which shall be authorized to act on behalf
of the Trustee to authenticate Securities of such series issued upon original
issue and upon exchange, registration of transfer or partial redemption thereof
or pursuant to Section 306, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent (including the
authenticating agency contemplated by this Indenture), shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give notice of such
appointment in the manner provided in Section 106
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to all Holders of Securities of the series with respect to which such
Authenticating Agent will serve. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all the rights,
powers and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. No successor Authenticating Agent
shall be appointed unless eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 607.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
Dated:
The Bank of New York,
As Trustee
By......................,
As Authenticating Agent
By.......................
Authorized Officer
Section 615. Appointment of Additional Trustees.
At any time or times, for the purpose of conforming to any legal
requirements, restrictions or conditions in any jurisdiction, or if the Trustee
shall deem it necessary or prudent in the interest of the Holders of Outstanding
Securities so to do, the Company and the Trustee shall have the power to appoint
and, upon the request of the Trustee, the Company shall for such purpose join
with the Trustee in the execution, delivery and performance of an indenture
supplemental hereto and all other instruments and agreements necessary or proper
(i) to appoint one or more Persons (in this Indenture called "Additional
Trustees") approved by the Trustee , either to act as co-trustee or co-trustees
jointly with the Trustee or to act as separate trustee or trustees for the
purpose of exercising such right. and powers as may be provided in such
supplemental indenture and (ii) to vest in any Additional Trustee any right or
power of the Trustee hereunder, subject to the remaining provisions of this
Section 615. Any such supplemental indenture shall include all provisions
required to be included by the Trust Indenture Act as then in effect with
respect to the eligibility, qualification, rights, power, duties, obligations,
liabilities and immunities of such Additional Trustee. The rights, powers,
duties and obligations conferred or imposed upon the trustees or any of them
shall be conferred or imposed upon and exercised or performed by the Trustee and
any Additional Trustee jointly, as provided in such supplemental indenture or
any such instrument and agreement, except to the extent that, under
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any law of any jurisdiction in which any particular act or acts are to be
performed, the Trustee shall be incompetent or unqualified to perform such act
or acts, in which event such rights, powers, duties and obligations shall be
exercised and performed by the Additional Trustee. No Additional Trustee shall
be given the power to authenticate Securities. In case the Company shall not
have joined in the execution of such supplemental indenture or any such
instruments or agreements within 15 days after the receipt by it of a written
request so to do, or in case any Event of Default shall have occurred and be
continuing, the Trustee along shall have power to make such appointment.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually not later than 15 days after the Regular Record Date
for interest for each series of Securities, a list, in such form as the Trustee
may reasonably require, of the names and addresses of the Holders of Securities
of such series as of such Regular Record Date or if there is no Regular Record
Date for interest for such series of Securities, semi-annually, upon such dates
as are set forth in the Board Resolution or indenture supplemental hereto
authorizing such series, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
Section 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
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Section 703. Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto. If
required by Section 313(a) of the Trust Indenture Act, the Trustee shall, within
sixty days after each May 15 following the date of the initial issuance of
Securities under this Indenture deliver to Holders a brief report, dated as of
such May 15, which complies with the provisions of such Section 313(a).
(b) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when any Securities are listed on any stock exchange.
Section 704. Reports by Company.
The Company shall file with the Trustee and the Commission, and
transmit to Holders such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to such Act; provided that any such
information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the
Trustee within 15 days after the same is so required to be filed with the
Commission. Delivery of such reports, information and documents to the Trustee
is for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801. Company May Consolidate, Etc., Only on Certain Terms.
Nothing contained in this Indenture or in any of the Securities shall
prevent any consolidation, amalgamation, merger or statutory arrangement of the
Company with or into any other corporation or corporations (whether or not an
Affiliate), or successive consolidations, amalgamations, mergers or statutory
arrangements in which the Company or its successor or successors shall be a
party or parties, or shall prevent any sale, conveyance or lease of all or
substantially all the property of the Company, to any other corporation (whether
or not an Affiliate) authorized to acquire and operate the same; provided,
however, and the Company hereby covenants and agrees, that any such
consolidation, amalgamation, merger, statutory arrangement, sale, conveyance or
lease shall be upon the condition that (i) immediately after such consolidation,
amalgamation, merger, statutory arrangement, sale, conveyance or lease the
corporation (whether the Company or such other corporation) formed by or
surviving any such consolidation, amalgamation or merger, or to which such sale,
conveyance or lease shall have been made (the "Successor Corporation"), shall
not be in default in the performance or observance of any of the term, covenants
and conditions of this Indenture to be kept or performed by the Company; and
(ii) the due and punctual payment of the principal of (and premium, if any)
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and interest (including any Additional Interest) on all of the Securities,
according to their tenor, and the due and punctual performance and observance of
all of the covenants and conditions of this Indenture to be performed or
observed by the Company, and, for each Security that by its terms provides for
conversion, shall have provided for the right to convert such Security in
accordance with its terms, shall be expressly assumed, by supplemental indenture
satisfactory in form to the Trustee, executed and delivered to the Trustee, by
the Successor Corporation (if other than the Company).
Section 802. Taxing Jurisdiction.
If (i) the Company enters into (A) a consolidation, amalgamation, or
merger with or into any other corporation, or statutory arrangement in which the
Company participates or (B) any sale, conveyance or lease of all or
substantially all of its property and (ii) the corporation (whether the Company
or another corporation) formed by or surviving any such consolidation,
amalgamation, merger or statutory arrangement, or to which such sale, conveyance
or lease will have been made, is organized under the laws of a jurisdiction
other than Canada or the United States or any province, territory, state or
district thereof (each, a "Relevant Taxing Jurisdiction"), then the Company or
successor corporation, as the case may be, will enter into a supplemental
indenture, satisfactory in form to the Trustee, obligating it to make all
payments on account of any series of Securities without withholding of or
deduction for, or on account of, any present or future taxes or governmental
charges ("Specified Taxes") imposed or levied by a Relevant Taxing Jurisdiction,
unless the Company (or successor corporation) is required by law, or the
interpretation or administration thereof, to withhold or deduct such Specified
Taxes. In that event, the Company (or successor corporation) will pay as
additional interest such additional amounts ("Other Additional Amounts") as may
be necessary in order that the net amounts received by each Holder of such
series of Securities after such withholding or deduction, including any
withholding or deduction with respect to such Other Additional Amounts, shall
equal the respective amounts of principal and interest which would have been
receivable in respect of the Securities of such series in the absence of such
withholding or deduction, except that no such Other Additional Amounts shall be
payable with respect to payments made to a Holder:
(1) if such Holder is liable for such taxes by reason of such Holder
or the beneficial owner of the Security of such series having a present or
former direct or indirect connection with the Relevant Taxing Jurisdiction
other than the mere holding of the Security of such series or the receipt
of payment in respect thereof;
(2) for any taxes imposed as a result of the failure of such Holder or
beneficial owner to comply with certification, identification, declaration
or similar reporting requirements, if such compliance is required by
statute or by regulation, administrative practice or any applicable treaty,
as a precondition to relief or exemption from such tax;
(3) for any estate, inheritance, gift, sales, transfer, personal
property or similar tax, duty or fine, assessment or other governmental
charge;
(4) for any tax which is payable otherwise than by withholding or
deduction from payment by us of principal of, or interest on, the Security
of such series;
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(5) if the payment of Other Additional Amounts would be for any
withholding or deduction imposed on a payment to an individual which is
required to be made pursuant to an European Union directive on the taxation
of savings implementing the conclusions of ECOFIN Council meeting of
November 26-27, 2000 or any law implementing or complying with or
introduced in order to conform to such directive; or
(6) any combination of items (1) - (5) above;
nor will such Other Additional Amounts be paid with respect to a payment on the
Security to a Holder who is a fiduciary or partnership or other than the sole
beneficial owner of such Security to the extent that a beneficiary or settlor
with respect to such fiduciary, or a member of such partnership or a beneficial
owner thereof, would not have been entitled to receive a payment of such Other
Additional Amounts had such beneficiary, settlor, member or beneficial owner
received directly its beneficial or distributive share of such payment.
The Company shall have the right reasonably to require a Holder as a
condition of payment of amounts on the Securities of such series to present at
such place as the Company shall reasonably designate a certificate in such form
as the Company may from time to time prescribe to enable the Company to
determine its duties and liabilities with respect to (i) any Specified Taxes
that the Company or any withholding agent may be required to deduct or withhold
from payments in respect of a Security under any present or future law of any
Relevant Taxing Jurisdiction or any regulation of any taxing authority thereof
and (ii) any reporting or other requirements under such laws or regulations. To
the extent not otherwise prohibited by applicable laws and regulations, the
Company shall be entitled to determine its duties and liabilities with respect
to such deduction, withholding, reporting or other requirements on the basis of
information contained in such certificate, or, if no certificate shall be
presented, on the basis of any presumption created by any such law or
regulation, and shall be entitled to act in accordance with such determination.
References to the "Company" in this Section 802 shall also be deemed to refer to
any successor thereof.
Section 803. Successor Corporation Substituted.
In case of any such consolidation, amalgamation, merger, statutory
arrangement, sale, conveyance or lease and upon the assumption by the Successor
Corporation, by supplemental indenture, executed and delivered to the Trustee
and satisfactory in form to the Trustee, of the due and punctual payment of the
principal of and interest on all of the Securities and the due and punctual
performance of all of the covenants and conditions of this Indenture to be
performed by the Company, and, for each Security that by its terms provides for
conversion, shall have provided for the right to convert such Security in
accordance with its terms, such Successor Corporation shall succeed to and be
substituted for the Company, with the same effect as if it had been the Company
and the Company shall thereupon be relieved of any further obligation or
liabilities hereunder or upon the Securities, and the Company as the predecessor
corporation may thereupon or at any time thereafter be dissolved, wound-up or
liquidated. Such Successor Corporation thereupon may cause to be signed, and may
issue either in its own name or in the name of the Company any or all the
Securities issuable hereunder which theretofore shall not have been signed by
the Company and delivered to the Trustee; and, upon the order of such Successor
Corporation instead of the Company and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Securities which previously shall have been signed and
delivered by the officers of the Company
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to the Trustee for authentication, and any Securities which such Successor
Corporation thereafter shall cause to be signed and delivered to the Trustee for
that purpose. All the Securities so issued shall in all respects have the same
legal rank and benefit under this Indenture as the Securities theretofore or
thereafter issued in accordance with the terms of this Indenture as though all
of such Securities had been issued at the date of this Indenture.
In case of any such consolidation, amalgamation, merger, statutory
arrangement, sale, conveyance or lease, or change in the name of the Company,
such changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may, in the opinion of the Trustee, be
appropriate.
The Trustee shall receive an Opinion of Counsel as conclusive evidence
that any such consolidation, amalgamation, merger, statutory arrangement, sale,
conveyance or lease and any such assumption complies with the provisions of this
Article 8.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by or
pursuant to a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company herein
and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Events of Default; or
(4) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal,
and with or without interest coupons, or to permit or facilitate the
issuance of Securities in uncertificated form; or
(5) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only
when there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the benefit
of such provision; or
(6) to secure the Securities; or
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(7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 611(b); or
(9) to add to or change any of the provisions of this Indenture with
respect to any Securities that by their terms may be converted into
securities or other property other than Securities of the same series and
of like tenor, in order to permit or facilitate the issuance, payment or
conversion of such Securities; or
(10) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture, provided such action shall not adversely affect the
interests of the Holders of Securities of any series in any material
respect.
Section 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than 66 2/3% in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any installment
of principal of or interest (including any Additional Interest) on, any
Security, or reduce the principal amount thereof or the rate of interest
(including any Additional Interest) thereon or any premium payable upon the
redemption thereof, or reduce the amount of the principal of an Original
Issue Discount Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502, or change any
Place of Payment where, or the coin or currency in which, any Security or
any premium or interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date or, in the case of purchase or repayment by the Company at
the option of the Holder, on or after the Repayment Date), or
(2) if any Security provides that the Holder may require the Company
to repurchase or convert such Security, impair such Holder's right to
require repurchase or conversion of such Security on the terms provided
therein, or
(3) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental
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indenture, or the consent of whose Holders is required for any waiver (of
compliance with certain provisions of this Indenture or certain defaults
hereunder and their consequences) provided for in this Indenture, or
(4) modify any of the provisions of this Section or Section 513,
except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected thereby;
provided, however, that this clause shall not be deemed to require the
consent of any Holder with respect to changes in the references to "the
Trustee" and concomitant changes in this Section, or the deletion of this
proviso, in accordance with the requirements of Sections 611(b) and 901(8);
or
(5) modify the obligations to deliver information as set forth in
Section 1007; or
(6) modify any of the provisions of Article 16 in a manner adverse to
the Holders of any Outstanding Securities.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
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Section 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
Section 907. Subordination Unimpaired.
This Indenture may not be amended at any time to alter the
subordination, as provided herein, of any of the Securities then Outstanding
without the written consent of each holder of Senior Indebtedness then
outstanding that would be adversely affected thereby.
Section 908. Notice of Supplemental Indentures.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of Section 902, the Company
shall give notice thereof to the Holders of each Outstanding Security affected,
in the manner provided for in Section 106, setting forth in general terms the
substance of such supplemental indenture.
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal; Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest (including any Additional Interest) on the Securities of
that series in accordance with the terms of the Securities and this Indenture.
Section 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange, where Securities may be surrendered
for conversion, redemption or purchase and where notices and demands to or upon
the Company in respect of the Securities of that series and this Indenture may
be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands.
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The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in each Place of Payment for Securities of any series for such
purposes. The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
Section 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest (including any Additional
Interest) on any of the Securities of that series, segregate and hold in trust
for the benefit of the Persons entitled thereto a sum sufficient to pay the
principal (and premium, if any) or interest (including any Additional Interest)
so becoming due until such sum shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, prior to each due date of the principal of (and
premium, if any) or interest (including any Additional Interest) on any
Securities of that series, deposit with a Paying Agent a sum sufficient to pay
the principal (and premium, if any) or interest (including any Additional
Interest) so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium or interest, and (unless such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of its action
or failure so to act. The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will:
(a) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest on Securities of that series in trust for the
benefit of the Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(b) give the Trustee notice of any default by the Company (or any other
obligor upon the Securities of that series) in the making of any payment of
principal (and premium, if any) or interest (including any Additional Interest)
on the Securities of that series; and
(c) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium, if
any) or interest (including
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any Additional Interest) on any Security of any series and remaining unclaimed
for one year after such principal (and premium, if any) or interest (including
any Additional Interest) has become due and payable shall be paid to the Company
on Company Request, or (if then held by the Company) shall be discharged from
such trust; and the Holder of such Security shall thereafter, as an unsecured
general creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of the Company cause to be
published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in The City of New
York, notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money then remaining will be repaid to the
Company.
Section 1004. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence, rights (charter and statutory) and franchises; provided, however,
that the Company shall not be required to preserve any such right or franchise
if the Board of Directors shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders.
Section 1005. Maintenance of Properties.
The Company will cause all properties used or useful in the conduct of
its business or the business of any Subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company may
be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided, however, that
nothing in this Section shall prevent the Company from discontinuing the
operation or maintenance of any of such properties if such discontinuance is, in
the judgment of the Company, desirable in the conduct of its business or the
business of any Subsidiary and not disadvantageous in any material respect to
the Holders.
Section 1006. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (l) all taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary, and (2)
all lawful claims for labor, materials and supplies which, if unpaid, might by
law become a lien upon the property of the Company or any Subsidiary; provided,
however, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
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Section 1007. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company ending after the date hereof, an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the terms,
provisions and conditions of Sections 1004 to 1006, inclusive, and if the
Company shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.
Section 1008. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 1004 to 1006, inclusive, with
respect to the Securities of any series if before the time for such compliance
the Holders of at least 66-2/3% in principal amount of the Outstanding
Securities of such series shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such term,
provision or condition, but no such waiver shall extend to or affect such term,
provision or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such term, provision or condition shall remain in
full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any series)
in accordance with this Article.
Section 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced
by a Board Resolution or in another manner specified as contemplated by Section
301 for such Securities. In case of any redemption at the election of the
Company of less than all the Securities of any series, the Company shall, at
least 45 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date and of the principal amount of Securities of such series to be
redeemed. In the case of any redemption of Securities prior to the expiration of
any restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
Section 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
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redemption of a portion of the principal amount of any Security of such series,
provided that the unredeemed portion of the principal amount of any Security
shall be in an authorized denomination (which shall not be less than the minimum
authorized denomination) for such Security. If less than all the Securities of
such series and of a specified tenor are to be redeemed (unless such redemption
affects only a single Security), the particular Securities to be redeemed shall
be selected not more than 60 days prior to the Redemption Date by the Trustee,
from the Outstanding Securities of such series and specified tenor not
previously called for redemption in accordance with the preceding sentence.
If any Security selected for partial redemption is converted in part
before termination of the conversion right with respect to the portion of the
Security so selected, the converted portion of such Security shall be deemed (so
far as may be) to be the portion selected for redemption. Securities which have
been converted during a selection of Securities to be redeemed shall be treated
by the Trustee as Outstanding for the purpose of such selection.
The provisions of the two preceding paragraphs shall not apply with
respect to any redemption affecting only a single Security, whether such
Security is to be redeemed in whole or in part. In the case of any such
redemption in part, the unredeemed portion of the principal amount of the
Security shall be in an authorized denomination (which shall not be less than
the minimum authorized denomination) for such Security.
The Trustee shall promptly notify the Company and each Security
Registrar in writing of the Securities selected for redemption as aforesaid and,
in the case of any Securities selected for partial redemption as aforesaid, 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 Securities 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 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 20 nor more than 60 Business Days prior to the
Redemption Date, to each Holder of Securities to be redeemed, at his address
appearing in the Securities Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series
consisting of more than a single Security are to be redeemed, the
identification (and, in the case of partial redemption of any such
Securities, the principal amounts) of the particular Securities to be
redeemed and, if less than all the Outstanding Securities of any
series consisting of a single Security are to be redeemed, the
principal amount of the particular Security to be redeemed,
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(4) that on the Redemption Date the Redemption Price will become
due and payable upon each such Security to be redeemed and, if
applicable, that interest (including any Additional Interest) thereon
shall cease to accrue on and after said date,
(5) the place or places where each such Security is to be
surrendered for payment of the Redemption Price,
(6) for any Securities that by their terms may be converted, the
terms of conversion, the date on which the right to convert the
Security to be redeemed will terminate and the place or places where
such Securities may be surrendered for conversion,
(7) that the redemption is for a sinking fund, if such is the
case, and
(8) the CUSIP numbers, if any.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request delivered
a reasonable time prior to the date such notice is to be given, by the Trustee
in the name and at the expense of the Company.
Section 1105. Deposit of Redemption Price.
One Business Day prior to any Redemption Date, the Company shall
deposit with the Trustee or with a Paying Agent (or, if the Company is acting as
its own Paying Agent, segregate and hold in trust as provided in Section 1003)
an amount of money sufficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) accrued interest (including
any Additional Interest) on, all the Securities which are to be redeemed on that
date, other than any Securities called for redemption on that date which have
been converted prior to the date of such deposit.
If any Security called for redemption is converted, any money deposited
with the Trustee or with any Paying Agent or so segregated and held in trust for
the redemption of such Security shall (subject to any right of the Holder of
such Security or any Predecessor Security to receive interest as provided in the
second penultimate paragraph of Section 307 or in the terms of such Security) be
paid to the Company upon Company Request or, if then held by the Company, shall
be discharged from such trust.
Section 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued and
unpaid interest (including any Additional Interest)) such Securities shall cease
to bear interest. Upon surrender of any such Security for redemption in
accordance with said notice, such Security shall be paid by the Company at the
Redemption Price, together with accrued and unpaid interest (including any
Additional Interest) to the Redemption Date; provided, however, that
installments of interest (including any Additional Interest) whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the Holders
of such Securities, or one or more Predecessor Securities, registered as such at
the close
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of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
Section 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered
at a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities of the same series and of like tenor, of
any authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
Section 1108. Purchase of Securities.
The Company shall have the right at any time and from time to time to
purchase Securities in the open market or otherwise at any price.
ARTICLE TWELVE
PURCHASE OR REPAYMENT OF SECURITIES BY THE COMPANY AT OPTION OF HOLDERS
Section 1201. Applicability of Article.
Securities of any series the terms of which provide to each Holder the
option to require the Company to purchase or repay such Securities in certain
circumstances shall, upon exercise of such option, be repayable in accordance
with their terms and (except as otherwise specified as contemplated by Section
301 for Securities of any series) in accordance with this Article.
Section 1202. Notice of Repayment Date.
Notice of any Repayment Date with respect to Securities of any series
shall, unless otherwise specified by the terms of the Securities of such series,
be given by the Company not less than 30 nor more than 90 days prior to such
Repayment Date to each Holder of Securities of such series in accordance with
Section 106.
Such notice shall state:
(a) the Repayment Date;
(b) the Repayment Price;
(c) the place or places where, and the date by which, such Securities
are to be surrendered for payment of the Repayment Price;
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(d) a description of the procedure which a Holder must follow to
exercise the purchase or repayment option;
(e) that exercise of the purchase or repayment option to elect
repayment is irrevocable; and
(f) such other information as the Company may consider appropriate for
inclusion.
No failure of the Company to give the foregoing notice shall limit any
Holder's right to exercise a repayment right.
Section 1203. Deposit of Repayment Price.
One Business Day prior to the Repayment Date, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 1003) an amount
of money sufficient to pay the Repayment Price of and (unless the Repayment Date
shall be an Interest Payment Date) accrued and unpaid interest and Additional
Interest, if any, on all of the Securities of such series which are to be repaid
on that date.
Section 1204. Securities Payable on Repayment Date.
Holders having duly exercised the option to require purchase or
repayment by the Company on any Repayment Date as specified in the form of
Security for such series as provided in Section 203, the Securities of such
series so to be purchased or repaid shall, on the Repayment Date, become due and
payable at the Repayment Price applicable thereto and from and after such date
(unless the Company shall default in the payment of the Repayment Price and
accrued interest (including any Additional Interest)) such Securities shall
cease to bear interest. Upon surrender of any such Security for purchase or
repayment in accordance with the terms of such Security, provided the option has
been duly exercised and the Security duly surrendered as specified in the form
of such Security, such Security shall be paid by the Company at the Repayment
Price together with accrued interest (including any Additional Interest) to the
Repayment Date; provided, however, that installments of interest (including any
Additional Interest) whose Stated Maturity is on or prior to such Repayment Date
shall be payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 307.
If any Security shall not be paid upon due exercise of the option and
surrender thereof for purchase or repayment, the principal (and premium, if any)
shall, until paid, bear interest from the Repayment Date at the rate prescribed
therefor in such Security.
Section 1205. Securities Repaid in Part.
Any Security which by its terms may be purchased or repaid by the
Company in part at the option of the Holder and which is to be purchased or
repaid only in part by the Company shall be surrendered at any office or agency
of the Company designated for that purpose pursuant to Section 1002 (with, if
the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly
executed by, the
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Holder thereof or his attorney duly authorized in writing), and the Company
shall execute, and the Trustee shall authenticate and deliver to the Holder of
such Security without service charge, a new Security or Securities of the same
series, of any authorized denomination as requested by such Holder, in aggregate
principal amount equal to and in exchange for the unpurchased or unrepaid
portion of the principal of the Security so surrendered.
ARTICLE THIRTEEN
SINKING FUNDS
Section 1301. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of any series except as otherwise specified as
contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of any Securities, the cash
amount of any sinking fund payment may be subject to reduction as provided in
Section 1302. Each sinking fund payment shall be applied to the redemption of
Securities of any series as provided for by the terms of such Securities of any
series.
Section 1302. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been converted in accordance with their terms
or which have been redeemed either at the election of the Company (a) pursuant
to the terms of such Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Securities, in each case in
satisfaction of all or any part of any sinking fund payment with respect to any
Securities of such series required to be made pursuant to the terms of such
Securities as provided for by the terms of such series or (b) have been
purchased or repaid by the Company through the exercise of an option by the
Holder as provided for in the terms of such Securities; provided that such
Securities have not been previously so credited. Such Securities to be so
credited shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
Section 1303. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
Securities, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities of that series pursuant to
Section 1302 and will also deliver to the Trustee any Securities to be so
delivered. Not less than 30 days before each such sinking fund payment date, the
Trustee shall select the Securities to be redeemed upon
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such sinking fund payment date in the manner specified in Section 1103 and cause
notice of the redemption thereof to be given in the name of and at the expense
of the Company in the manner provided in Section 1104. Such notice having been
duly given, the redemption of such Securities shall be made upon the terms and
in the manner stated in Sections 1106 and 1107.
ARTICLE FOURTEEN
CONCERNING THE HOLDERS
Section 1401. Action by Holders.
Whenever in this Indenture it is provided that the Holders of a
specified percentage in aggregate principal amount of Securities of any series
may take any action (including the making of any demand or request, the giving
of any notice, consent or waiver or the taking of any other action) the fact
that at the time of taking any such action the Holders of such specified
percentage have joined therein may be evidenced (a) by an instrument or a number
of instruments as provided in Section 104, or (b) by the record of the Holders
voting in favor thereof at any meeting of Holders duly called and held in
accordance with the provisions of Article Fifteen, or (c) by a combination of
such instrument or instruments and any such record of such a meeting of Holders.
Section 1402. Proof of Record of Holders' Meeting.
Subject to the provisions of Sections 601 and 1505, the record of any
Holders' meeting shall be proved in the manner provided in Section 1506.
Section 1403. Identification of Company-Owned Securities.
Upon request of the Trustee, the Company shall furnish to the Trustee
promptly an Officers' Certificate listing and identifying all Securities, if
any, known by the Company to be owned or held by or for the account of the
Company or any other obligor on the Securities or by any Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company or any other obligor on the Securities; and, subject to
the provisions of Section 601, the Trustee shall be entitled to accept such
Officers' Certificate as conclusive evidence of the facts therein set forth and
of the fact that all Securities not listed therein are Outstanding for the
purpose of any such determination.
Section 1404. Revocation of Consents; Future Holders Bound.
At any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 1401, of the taking of any action by the Holders of the
percentage in aggregate principal amount of the Securities specified in this
Indenture in connection with such action, any holder of a Security the serial
number of which is shown by the evidence to be included in the Securities the
Holders of which have consented to or are bound by consents to such action may,
by filing written notice with the Trustee at its principal office and upon proof
of holding as provided in Section 1402, revoke such action so far as concerns
such Security. Except as aforesaid any such action taken by the Holder of any
Security shall be conclusive and binding upon such Holder and upon all future
holders and owners of such Security and of any Security issued on registration
of transfer thereof or in exchange or substitution therefor, irrespective of
whether or not any notation in regard thereto is made upon any such Security or
such other Security.
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ARTICLE FIFTEEN
HOLDERS' MEETINGS
Section 1501. Purposes of Meetings.
A meeting of Holders of any or all series of Securities may be called
at any time and from time to time pursuant to the provisions of this Article
Fifteen for any of the following purposes:
(1) to give any notice to the Company or to the Trustee, or to
give any directions to the Trustee, or to consent to the waving of any
default hereunder and its consequences, or to take any other action
authorized to be taken by Holders of any or all series of Securities
pursuant to any of the provisions of Article Five;
(2) to remove the Trustee and nominate a successor trustee with
respect to the Securities of such series pursuant to the provisions of
Article Six;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 902; or
(4) to take any other action authorized to be taken by or on
behalf of the Holders of any specified aggregate principal amount of
the Securities of such series under any other provision of this
Indenture or under applicable law.
Section 1502. Call of Meetings By Trustee.
The Trustee may at any time call a meeting of Holders of any or all
series of Securities to take any action specified in Section 1501, to be held at
such time and at such place in the Borough of Manhattan, The City of New York,
as the Trustee shall determine. Notice of every meeting of the Holders of any
series of Securities, setting forth the time and the place of such meeting and
in general terms the action proposed to be taken at such meeting, shall be
mailed to all Holders of Securities of such series at their addresses as they
shall appear on the Securities Register. Such notice shall be mailed not less
than 20 nor more than 180 days prior to the date fixed for the meeting.
Section 1503. Call of Meetings By Company or Holders.
In case at any time the Company, pursuant to a resolution of its Board
of Directors, or the Holders of at least 25% in aggregate principal amount of
the Outstanding Securities of any series, shall have requested the Trustee to
call a meeting of the Holders of such series, by written request setting forth
in reasonable detail the action proposed to be taken at the meeting and the
Trustee shall not have mailed the notice of such meeting within 20 days after
receipt of such request, then the Company or such Holders may determine the time
and the place in said Borough of Manhattan for such meeting and may call such
meeting to take any action authorized in Section 1501, by mailing notice thereof
as provided in Section 1502.
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Section 1504. Qualifications for Voting.
To be entitled to vote at any meeting of Holders a Person shall (a) be
a Holder of one or more Securities or (b) be a Person appointed by an instrument
in writing as proxy by a Holder of one or more Securities. The only Persons who
shall be entitled to be present or to speak at any meeting of Holders shall be
the Persons entitled to vote at such meeting and their counsel and any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
Section 1505. Regulations.
Notwithstanding any other provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of
Holders, in regard to proof of the holding of Securities and of the appointment
of proxies, and in regard to the appointment and duties of inspectors of votes,
the submission and examination of proxies, certificates and other evidence of
the right to vote, and such other matters concerning the conduct of the meeting
as it shall think fit. Except as otherwise permitted or required by any such
regulation, the holding of Securities shall be proved in the manner specified in
Section 1402 and the appointment of any proxy shall be proved in the manner
specified in said Section 1402 or by having the signature of the Person
executing the proxy witnessed or guaranteed by any bank, broker or trust
company.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman and a temporary secretary of the meeting, unless the meeting shall have
been called by the Company or by Holders as provided in Section 1503, in which
case the Company or the Holders calling the meeting, as the case may be, shall
in like manner appoint a temporary chairman and a temporary secretary. A
permanent chairman and a permanent secretary of the meeting shall be elected by
the Persons holding or representing a majority of the Securities represented at
the meeting.
Subject to the provisions of Section 1404, at any meeting each Holder
or proxy shall be entitled to one vote for each $1,000 principal amount of
Securities held or represented by him; provided, however, that no vote shall be
cast or counted at any meeting in respect of any Security challenged as not
Outstanding and ruled by the permanent chairman (or the temporary chairman, if
no permanent chairman shall have been elected pursuant to this Section) of the
meeting to be not Outstanding. Neither the temporary chairman nor the permanent
chairman of the meeting shall have a right to vote other than by virtue of
Securities held by him or instruments in writing as aforesaid duly designating
him as the Person to vote on behalf of other Holders. Any meeting of Holders
duly called pursuant to the provisions of Section 1502 or 1503 may be adjourned
from time to time by the Persons holding or representing a majority of the
Securities represented at the meeting, whether or not constituting a quorum, and
the meeting may be held as so adjourned without further notice.
At any meeting of Holders, the presence of Persons holding or
representing Securities in an aggregate principal amount sufficient to take
action upon the business for the transaction of which such meeting was called
shall be necessary to constitute a quorum; but, if less than a quorum be
present, the Persons holding or representing a majority of the Securities
represented at the meeting may adjourn such meeting with the same effect for all
intents and purposes, as though a quorum had been present.
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Section 1506. Voting.
The vote upon any resolutions submitted to any meeting of Holders shall
be by written ballots on which shall be subscribed the signatures of the Holders
of Securities or of their representatives by proxy and the serial number or
numbers of the Securities held or represented by them. The permanent chairman
(or the temporary chairman, if no permanent chairman shall have been elected
pursuant to Section 1505) of the meeting shall appoint two inspectors of votes
who shall count all votes cast at the meeting for or against any resolution and
who shall make and file with the permanent secretary (or the temporary
secretary, if no permanent secretary shall have been elected pursuant to Section
1505) of the meeting their verified written reports in duplicate of all votes
cast at the meeting. A record in duplicate of the proceedings of each meeting of
Holders shall be prepared by the permanent secretary (or the temporary
secretary, if no permanent secretary shall have been elected pursuant to Section
1505) of the meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken thereat and
affidavits by one or more persons having knowledge of the facts setting forth a
copy of the notice of the meeting and showing that said notice was mailed as
provided in Section 1502. The record shall show the serial numbers of the
Securities voting in favor of or against any resolution. The record shall be
signed and verified by the affidavits of the permanent chairman and the
permanent secretary of the meeting (or if no permanent chairman and/or permanent
secretary shall have been elected pursuant to Section 1505, then the temporary
chairman and/or the temporary secretary, as the case may be, shall take such
action) and one of the duplicates shall be delivered to the Company and the
other to the Trustee to be preserved by the Trustee, the latter to have attached
thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
Section 1507. No Delay of Rights by Meeting.
Nothing in this Article Fifteen contained shall be deemed or construed
to authorize or permit, by reason of any call of a meeting of Holders or any
rights expressly or impliedly conferred hereunder to make such call, any
hindrance or delay in the exercise of any right or rights conferred upon or
reserved to the Trustee or to the Holders under any of the provisions of this
Indenture or of the Securities.
ARTICLE SIXTEEN
SUBORDINATION OF SECURITIES
Section 1601. Securities Subordinate to Senior Indebtedness.
The Company covenants and agrees, and each Holder of a Security, by his
or her acceptance thereof, likewise covenants and agrees, that, to the extent
and in the manner hereinafter set forth in this Article, the indebtedness
represented by the Securities and the payment of the principal of (and premium,
if any) and interest (including any Additional Interest) on each and all of the
Securities of each and every series are hereby expressly made subordinate and
subject in right of payment as provided in this Article to the prior payment in
full of all Senior Indebtedness.
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Section 1602. No Payment When Senior Indebtedness in Default; Payment Over of
Proceeds Upon Dissolution, Etc.
If the Company shall default in the payment of any principal of (or
premium, if any), interest on or other amounts payable in respect of any Senior
Indebtedness when the same becomes due and payable, whether at maturity or at a
date fixed for prepayment or by declaration of acceleration or otherwise, then,
upon written notice of such default to the Company by the holders of Senior
Indebtedness or any trustee therefor, and unless and until such default shall
have been cured or waived or shall have ceased to exist or all amounts then due
and payable in respect of such Senior Indebtedness shall have been paid in full,
no direct or indirect payment (in cash, property, securities (other than newly
issued equity or securities of the Company subordinated to Senior Indebtedness),
by set-off or otherwise) shall be made or agreed to be made on account of the
principal of (or premium, if any) or interest (including any Additional
Interest) on any of the Securities, or in respect of any redemption, repayment,
retirement, purchase or other acquisition of any of the Securities.
In the event of (a) the entry of a decree or order by a court having
jurisdiction in the premises adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization or winding-up of
the Company under the Companies' Creditors Arrangement Act (Canada), the
Bankruptcy and Insolvency Act (Canada) or the Winding-Up Act (Canada) or any
other bankruptcy, insolvency or analogous laws, or issuing sequestration or
process of execution against the Company or any substantial part of its
property, or appointing a receiver of the Company or of any substantial part of
its property, or ordering the winding-up or liquidation of its affairs, and the
continuance of any such decree or order or appointment unstayed, undischarged
and in effect for a period of 60 days from the date thereof; or (b) the
institution by the Company of proceedings to be adjudicated bankrupt or
insolvent, or the consent by it to the institution of bankruptcy or insolvency
proceedings against it, or the filing by it of a petition or answer or consent
seeking reorganization or relief under the Companies' Creditors Arrangement Act
(Canada), the Bankruptcy and Insolvency Act (Canada) or the Winding-Up Act
(Canada) or any other bankruptcy, insolvency or analogous laws, or the consent
by it to the filing of any such petition or to the appointment of a receiver of
the Company or of any substantial part of its property, or the making by it of a
general assignment for the benefit of creditors, or the Company's admitting in
writing its inability to pay its debts generally as they become due or taking
corporate action in furtherance of any of the aforesaid purposes, (each such
event in (a) or (b), if any, herein sometimes referred to as a "Proceeding"),
all Senior Indebtedness (including any interest thereon accruing after the
commencement of any such proceedings) shall first be paid in full before any
payment or distribution, whether in cash, securities or other property, shall be
made to any Holder of any of the Securities on account thereof. Any payment or
distribution, whether in cash, securities or other property (other than equity
or subordinated securities of the Company or any other corporation provided for
by a plan of reorganization or readjustment the payment of which are
subordinate, at least to the extent provided in this Article with respect to the
indebtedness evidenced by the Securities, to the payment of all Senior
Indebtedness at the time outstanding and to any securities issued in respect
thereof under any such plan of reorganization or readjustment), which would
otherwise (but for these subordination provisions) be payable or deliverable in
respect of the Securities of any series shall be paid or delivered directly to
the holders of Senior Indebtedness in accordance with the priorities then
existing among such holders until all Senior Indebtedness (including any
interest thereon accruing after the commencement of any Proceeding) shall have
been paid in full.
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In the event of any Proceeding, after payment in full of all sums owing
with respect to Senior Indebtedness, the Holders of the Securities, together
with the holders of any obligations of the Company ranking on a parity with the
Securities, shall be entitled to be paid from the remaining assets of the
Company the amounts at the time due and owing on account of unpaid principal of
(and premium, if any) and interest (including Additional Interest) on the
Securities and such other obligations before any payment or other distribution,
whether in cash, securities or other property, shall be made on account of any
capital stock or any obligations of the Company ranking junior to the Securities
and such other obligations.
If, notwithstanding the foregoing, any payment or distribution of any
character or any security, whether in cash, securities or other property (other
than equity or subordinated securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment the payment of which
are subordinate, at least to the extent provided in this Article with respect to
the indebtedness evidenced by the Securities, to the payment of all Senior
Indebtedness at the time outstanding and to any securities issued in respect
thereof under any such plan of reorganization or readjustment), shall be (or
payment thereof provided for) received by the Trustee or any Holder before all
Senior Indebtedness shall have been paid in full or otherwise in contravention
of any of the terms hereof, such payment or distribution or security shall be
received in trust for the benefit of, and shall be paid over or delivered and
transferred to, the holders of the Senior Indebtedness at the time outstanding
in accordance with the priorities then existing among such holders for
application to the payment of all Senior Indebtedness remaining unpaid, to the
extent necessary to pay all such Senior Indebtedness in full, after giving
effect to any concurrent payment or distribution to or for the holders of Senior
Indebtedness. In the event of the failure of the Trustee or any Holder to
endorse or assign any such payment, distribution or security, each holder of
Senior Indebtedness is hereby irrevocably authorized to endorse or assign the
same.
The Trustee and the Holders shall take such action (including, without
limitation, the delivery of this Indenture to an agent for the holders of Senior
Indebtedness or consent to the filing of a financing statement with respect
hereto) as may, in the opinion of counsel designated by the holders of a
majority in principal amount of the Senior Indebtedness at the time outstanding,
be necessary or appropriate to assure the effectiveness of the subordination
effected by these provisions.
The provisions of this Section shall not impair any rights, interests,
remedies or powers of any secured creditor of the Company in respect of any
security interest the creation of which is not prohibited by the provisions of
this Indenture.
The securing of any obligations of the Company, otherwise ranking on a
parity with the Securities or ranking junior to the Securities, shall not be
deemed to prevent such obligations from constituting, respectively, obligations
ranking on a parity with the Securities or ranking junior to the Securities.
Section 1603. Payment Permitted If No Default.
Nothing contained in this Article or elsewhere in this Indenture or in
any of the Securities shall prevent (a) the Company, at any time, except during
the pendency of the conditions described in the first paragraph of Section 1602
or of any Proceeding referred to in Section 1602, from making payments at any
time of principal of (and premium, if any) or interest (including
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any Additional Interest) on the Securities, or (b) the application by the
Trustee of any moneys deposited with it hereunder to the payment of or on
account of the principal of (and premium, if any) or interest (including any
Additional Interest) on the Securities or the retention of such payment by the
Holders, if, at the time of such application by the Trustee, it did not have
knowledge that such payment would have been prohibited by the provisions of this
Article.
Section 1604. Subrogation to Rights of Holders of Senior Indebtedness.
Subject to the payment in full of all amounts due or to become due on
all Senior Indebtedness, or the provision for such payment in cash or cash
equivalents or otherwise in a manner satisfactory to the holders of Senior
Indebtedness, the Holders of the Securities shall be subrogated to the extent of
the payments or distributions made to the holders of such Senior Indebtedness
pursuant to the provisions of this Article (equally and ratably with the holders
of all indebtedness of the Company that by its express terms is subordinated to
Senior Indebtedness of the Company to substantially the same extent as the
Securities are subordinated to the Senior Indebtedness and is entitled to like
rights of subrogation by reason of any payments or distributions made to holders
of such Senior Indebtedness) to the rights of the holders of such Senior
Indebtedness to receive payments and distributions of cash, securities and other
property applicable to the Senior Indebtedness until the principal of (and
premium, if any) and interest (including any Additional Interest) on the
Securities shall be paid in full. For purposes of such subrogation, no payments
or distributions to the holders of the Senior Indebtedness of any cash,
securities or other property to which the Holders of the Securities or the
Trustee would be entitled except for the provisions of this Article, and no
payments pursuant to the provisions of this Article to the holders of Senior
Indebtedness by Holders of the Securities or the Trustee, shall, as among the
Company, its creditors other than holders of Senior Indebtedness, and the
Holders of the Securities, be deemed to be a payment or distribution by the
Company to or on account of the Senior Indebtedness.
Section 1605. Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely for the
purpose of defining the relative rights of the Holders of the Securities on the
one hand and the holders of Senior Indebtedness on the other hand. Nothing
contained in this Article or elsewhere in this Indenture or in the Securities is
intended to or shall (a) impair, as between the Company and the Holders of the
Securities, the obligations of the Company, which are absolute and
unconditional, to pay to the Holders of the Securities the principal of (and
premium, if any) and interest (including any Additional Interest) on the
Securities as and when the same shall become due and payable in accordance with
their terms; or (b) affect the relative rights against the Company of the
Holders of the Securities and creditors of the Company other than their rights
in relation to the holders of Senior Indebtedness; or (c) prevent the Trustee or
the Holder of any Security from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, including filing and voting
claims in any Proceeding, subject to the rights, if any, under this Article of
the holders of Senior Indebtedness to receive cash, securities and other
property otherwise payable or deliverable to the Trustee or such Holder.
Section 1606. Trustee to Effectuate Subordination.
Each Holder of a Security by his or her acceptance thereof authorizes
and directs the Trustee on his or her behalf to take such action as may be
necessary or appropriate to effectuate
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the subordination provided in this Article and appoints the Trustee his or her
attorney-in-fact for any and all such purposes.
Section 1607. No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
non-compliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder may have or be
otherwise charged with.
Without in any way limiting the generality of the immediately preceding
paragraph, the holders of Senior Indebtedness may, at any time and from time to
time, without the consent of or notice to the Trustee or the Holders of the
Securities of any series, without incurring responsibility to such Holders of
the Securities and without impairing or releasing the subordination provided in
this Article or the obligations hereunder of such Holders of the Securities to
the holders of Senior Indebtedness, do any one or more of the following: (i)
change the manner, place or terms of payment or extend the time of payment of,
or renew or alter, Senior Indebtedness or otherwise amend or supplement in any
manner Senior Indebtedness or any instrument evidencing the same or any
agreement under which Senior Indebtedness is outstanding; (ii) sell, exchange,
release or otherwise deal with any property pledged, mortgaged or otherwise
securing Senior Indebtedness; (iii) release any Person liable in any manner for
the collection of Senior Indebtedness; and (iv) exercise or refrain from
exercising any rights against the Company and any other Person.
Section 1608. Notice to Trustee.
The Company shall give prompt written notice to a Responsible Officer
of the Trustee of any fact known to the Company which would prohibit the making
of any payment to or by the Trustee in respect of the Securities.
Notwithstanding the provisions of this Article or any other provision of this
Indenture, the Trustee shall not be charged with knowledge of the existence of
any facts which would prohibit the making of any payment to or by the Trustee in
respect of the Securities, unless and until the Trustee shall have received
written notice thereof from the Company or a holder of Senior Indebtedness or
from any trustee, agent or representative therefor; and, prior to the receipt of
any such written notice, the Trustee, subject to the provisions of Section 601,
shall be entitled in all respects to assume that no such facts exist; provided,
however, that if a Responsible Officer of the Trustee shall not have received,
at least two Business Days prior to the date upon which by the terms hereof any
such money may become payable for any purpose (including the payment of the
principal of (and premium, if any, on) or interest (including any Additional
Interest on any Security), then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to receive such
money and to apply the same to the purpose for which such money was received and
shall not be affected by any notice to the contrary which may be received by it
within two Business Days prior to such date.
Subject to the provisions of Section 601, the Trustee shall be entitled
to conclusively rely on the delivery to it of a written notice by a Person
representing himself or herself to be a holder of Senior Indebtedness (or a
trustee or attorney-in-fact therefor) to establish that such notice has
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been given by a holder of Senior Indebtedness (or a trustee or attorney-in-fact
therefor). In the event that the Trustee determines in good faith that further
evidence is required with respect to the right of any Person as a holder of
Senior Indebtedness to participate in any payment or distribution pursuant to
this Article, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such Person under this Article, and if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.
Section 1609. Reliance on Judicial Order or Certificate of Liquidating Agent.
Upon any payment or distribution of assets of the Company referred to
in this Article, the Trustee, subject to the provisions of Section 601, and the
Holders of the Securities shall be entitled to conclusively rely upon any order
or decree entered by any court of competent jurisdiction in which such
insolvency, bankruptcy, receivership, liquidation, reorganization, dissolution,
winding up or similar case or proceeding is pending, or a certificate of the
trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee for
the benefit of creditors, agent or other Person making such payment or
distribution, delivered to the Trustee or to the Holders of Securities, for the
purpose of ascertaining the Persons entitled to participate in such payment or
distribution, the holders of Senior Indebtedness and other indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article.
Section 1610. Trustee Not Fiduciary for Holders of Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness and shall not be liable to any such holders or
creditors if it shall in good faith pay over or distribute to Holders of
Securities or to the Company or to any other Person cash, property or securities
to which any holders of Senior Indebtedness shall be entitled by virtue of this
Article or otherwise. With respect to the holders of Senior Indebtedness, the
Trustee undertakes to perform or to observe only such of its covenants or
obligations as are specifically set forth in this Article and no implied
covenants or obligations with respect to holders of Senior Indebtedness shall be
read into this Indenture against the Trustee.
Section 1611. Rights of Trustee as Holder of Senior Indebtedness; Preservation
of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article with respect to any Senior Indebtedness which
may at any time be held by it, to the same extent as any other holder of Senior
Indebtedness and nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder.
Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 607.
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Section 1612. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article shall in such case (unless the context otherwise
requires) be construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article in addition to or in place of the Trustee; provided,
however, that Section 1611 shall not apply to the Company or any Affiliates of
the Company if it or such Affiliate acts as Paying Agent.
Section 1613. Effect on Events of Default.
The failure to make a payment on account of principal of (and premium,
if any) or interest (including any Additional Interest) on the Securities by
reason of any provision of this Article shall not be construed as preventing the
occurrence of an Event of Default as specified in clauses (1) or (2) of Section
501 (subject to the permitted deferral pursuant to Section 311 of any due date
in the case of an Extension Period).
Section 1614. Acceleration of Securities.
If payment on the Securities is accelerated because of an Event of
Default, the Company shall promptly notify holders of Senior Indebtedness of the
acceleration to the extent required to provide such notice pursuant to the
instruments governing such Senior Indebtedness.
ARTICLE SEVENTEEN
MISCELLANEOUS PROVISIONS
Section 1701. Consent to Jurisdiction and Service of Process.
The Company irrevocably submits to the jurisdiction of any New York
State or Federal court sitting in The City of New York over any suit, action or
proceeding arising out of or relating to this Indenture or any Security. The
Company irrevocably waives, to the fullest extent permitted by law, any
objection which it may have to the laying of the venue of any such suit, action
or proceeding brought in such a court and any claim that any such suit, action
or proceeding brought in such a court has been brought in any inconvenient
forum. The Company agrees that final judgment in any such suit, action or
proceeding brought in such a court shall be conclusive and binding upon the
Company and may be enforced in the courts of Canada (or any other courts to the
jurisdiction of which the Company is subject) by a suit upon such judgment,
provided that service of process is effected upon the Company in the manner
specified in the following paragraph or as otherwise permitted by law; provided,
however, that the Company does not waive, and the foregoing provisions of this
sentence shall not constitute or be deemed to constitute a waiver of, (i) any
right to appeal any such judgment, to seek any stay or otherwise to seek
reconsideration or review of any such judgment or (ii) any stay of execution or
levy pending an appeal from, or a suit, action or proceeding for reconsideration
or review of, any such judgment.
As long as any of the Securities remain outstanding, the Company will
at all times have an authorized agent in the Borough of Manhattan, The City of
New York upon whom process
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may be served in any legal action or proceeding arising out of or relating to
the Indenture or any Security. Service of process upon such agent and written
notice of such service mailed or delivered to the Company shall to the extent
permitted by law be deemed in every respect effective service of process upon
the Company in any such legal action or proceeding. The Company hereby appoints
CT Corporation System as its agent for such purpose, and covenants and agrees
that service of process in any such legal action or proceeding may be made upon
it at the office of such agent at 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(or at such other address in the Borough of Manhattan, The City of New York, as
the Company may designate by written notice to the Trustee).
The Company hereby consents to process being served in any suit, action
or proceeding of the nature referred to in the preceding paragraphs by service
upon such agent together with the mailing of a copy thereof by registered or
certified mail, postage prepaid, return receipt requested, to the address of the
Company set forth in the first paragraph of this instrument or to any other
address of which the Company shall have given written notice to the Trustee. The
Company irrevocably waives, to the fullest extent permitted by law, all claim of
error by reason of any such service (but does not waive any right to assert lack
of subject matter jurisdiction) and agrees that such service (i) shall be deemed
in every respect effective service of process upon the Company in any such suit,
action or proceeding and (ii) shall, to the fullest extent permitted by law, be
taken and held to be valid personal service upon and personal delivery to the
Company.
Nothing in this Section shall affect the right of the Trustee or any
Holder to serve process in any manner permitted by law or limit the right of the
Trustee to bring proceedings against the Company in the courts of any
jurisdiction or jurisdictions.
Section 1702. Indenture and Securities Solely Corporate Obligations.
No recourse under or upon any obligation, covenant or agreement of this
Indenture, any supplemental indenture, or of any Security, or for any claim
based thereon or otherwise in respect thereof, shall be had against any
incorporator, shareholder, officer or director, as such, past, present or
future, of the Company or of any successor corporation, either directly or
through the Company, whether by virtue of any constitution, statute or rule of
law, or by the enforcement of any assessment or penalty or otherwise; it being
expressly understood that this Indenture and the obligations issued hereunder
are solely corporate obligations, and that no such personal liability whatever
shall attach to, or is or shall be incurred by, the incorporators, shareholders,
officers or directors, as such, of the Company or of any successor corporation,
or any of them, because of the creation of the indebtedness hereby authorized,
or under or by reason of the obligations, covenants or agreements contained in
this Indenture or any of the Securities or implied therefrom; and that any and
all such personal liability, either at common law or in equity or by
constitution or statute, of, and any and all such rights and claims against,
every such incorporator, shareholder, officer or director, as such, because of
the creation of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any of
the Securities or implied therefrom, are hereby expressly waived and released as
a condition of, and as a consideration for, the execution of this Indenture and
the issue of such Securities.
-90-
Section 1703. Execution in Counterparts.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
-91-
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the day and year first above written.
INCO LIMITED
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President,
General Counsel and Secretary
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President and
Chief Financial Officer
THE BANK OF NEW YORK, as Trustee
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Assistant Treasurer
-00-
XXXXX X-0
FORM OF TRANSFER CERTIFICATE --
RESTRICTED GLOBAL SECURITY TO
TEMPORARY REGULATION S GLOBAL SECURITY
REGULATION S GLOBAL NOTE CERTIFICATE
(for transfers pursuant to Section 305(b)(iii)
of the Indenture)
THE BANK OF NEW YORK, as Trustee
Re: [title of series] Inco Limited (the "Securities")
-------------------------------------------------
Reference is hereby made to the Indenture, dated as of March 7, 2003
(the "Indenture"), between Inco Limited (the "Company") and The Bank of New
York, as Trustee. Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.
This certificate relates to U.S. $_____________ aggregate principal
amount of Securities which are evidenced by the Restricted Global Security
(CUSIP No. _________) and held with the Depositary in the name of [insert name
of transferor] (the "Transferor"). The Transferor has requested a transfer of
such beneficial interest in the Securities to a Person who will take delivery
thereof in the form of an equal aggregate principal amount of Securities
evidenced by the Temporary Regulation S Global Security (CUSIP No.
_____________), which amount, immediately after such transfer, is to be held
with the Depositary through Euroclear or Clearstream or both.
In connection with such request and in respect of such Securities, the
Transferor does hereby certify that such transfer has been effected pursuant to
and in accordance with Rule 903 or Rule 904 under the United States Securities
Act of 1933, as amended (the "Securities Act"), and accordingly the Transferor
does hereby further certify that:
(a) the offer of the Securities was not made to a person in the
United States;
(b) either:
(i) at the time the buy order was originated, the transferee
was outside the United States or the Transferor and any
person acting on its behalf reasonably believed that the
transferee was outside the United States,
(ii) in the case of Rule 903, the transaction was executed in,
on or through a physical trading floor of an established
foreign securities exchange that is located outside the
United States; or
(iii) in the case of Rule 904, the transaction was executed in,
on or through the facilities of a designated offshore
securities market and neither the Transferor nor any
person acting on its behalf knows that the transaction was
prearranged with a buyer in the United States;
A-1-1
(c) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or 904(a) of Regulation S, as
applicable;
(d) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
(e) upon completion of the transaction, the beneficial interest being
transferred as described above will be held with the Depositary
through Euroclear or Clearstream or both.
We understand that this certificate is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate to any interested party in such proceeding. This
certificate and the statements contained herein are made for your benefit and
the benefit of the Company and the Initial Purchasers of the Securities under
the Purchase Agreement, dated _______ with the Company relating to the
Securities. Terms used in this certificate and not otherwise defined in the
Indenture have the meanings set forth in Regulation S under the Securities Act.
Dated: [Insert Name of Transferor]
By:
------------------------------------
Name:
Title:
(If the Transferor is a corporation, partnership or fiduciary,
the title of the Person signing on behalf of such registered
owner must be stated.)
X-0-0
XXXXX X-0
FORM OF TRANSFER CERTIFICATE --
RESTRICTED GLOBAL SECURITY TO
REGULATION S GLOBAL SECURITY
REGULATION S GLOBAL NOTE CERTIFICATE
(for transfers pursuant to Section 305(b)(iv)
of the Indenture)
THE BANK OF NEW YORK, as Trustee
Re: [title of series] of Inco Limited (the "Securities")
----------------------------------------------------
Reference is hereby made to the Indenture, dated as of March 7, 2003
(the "Indenture"), between Inco Limited (the "Company") and The Bank of New
York, as Trustee. Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.
This certificate relates to U.S. $_____________ aggregate principal
amount of Securities which are evidenced by the Restricted Global Security
(CUSIP No. _________) and held with the Depositary in the name of [insert name
of transferor] (the "Transferor"). The Transferor has requested a transfer of
such beneficial interest in the Securities to a Person who will take delivery
thereof in the form of an equal aggregate principal amount of Securities
evidenced by the Regulation S Global Security (CUSIP No. _____________).
In connection with such request and in respect of such Securities, the
Transferor does hereby certify that:
(a) with respect to transfers made in reliance on Regulation S under the
Securities Act of 1933, as amended (the "Securities Act"):
(i) the offer of the Securities was not made to a person in the
United States;
(ii) either:
(1) at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any person
acting on its behalf reasonably believed that the transferee
was outside the United States,
(2) in the case of Rule 903, the transaction was executed in, on
or through a physical trading floor of an established
foreign securities exchange that is located outside the
United States; or
(3) in the case of Rule 904, the transaction was executed in, on
or through the facilities of a designated offshore
securities market and neither the Transferor nor any person
acting on its behalf knows that the transaction was
prearranged with a buyer in the United States;
A-2-1
(iii) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or 904(a) of Regulation S, as
applicable; and
(iv) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; or
(b) with respect to transfers made in reliance on Rule 144 under the
Securities Act, the Securities are being transferred in a transaction
permitted by Rule 144 under the Securities Act.
We understand that this certificate is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate to any interested party in such proceeding. This
certificate and the statements contained herein are made for your benefit and
the benefit of the Company and Initial Purchasers of the Securities under the
Purchase Agreement, dated _________ with the Company relating to the Securities.
Terms used in this certificate and not otherwise defined in the Indenture have
the meanings set forth in Regulation S under the Securities Act.
Dated: [Insert Name of Transferor]
By:
------------------------------------
Name:
Title:
(If the Transferor is a corporation,
partnership or fiduciary, the title of
the Person signing on behalf of such
registered owner must be stated.)
A-2-2
ANNEX B
FORM OF TRANSFER CERTIFICATE --
TEMPORARY REGULATION S GLOBAL SECURITY OR
REGULATION S GLOBAL SECURITY TO RESTRICTED
GLOBAL SECURITY
RESTRICTED GLOBAL NOTE CERTIFICATE
(for transfers pursuant to Section 305(b)(v)
of the Indenture)
THE BANK OF NEW YORK, as Trustee
Re: [title of series] of Inco Limited (the "Securities")
----------------------------------------------------
Reference is hereby made to the Indenture, dated as of March 7, 2003
(the "Indenture"), between Inco Limited (the "Company") and The Bank of New
York, as Trustee. Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.
This certificate relates to U.S. $_________________ aggregate principal
amount of Securities which are evidenced by the Temporary Regulation S Global
Security or the Regulation S Global Security (CUSIP No. _________) and held with
the Depositary through Euroclear or Clearstream or both in the name of [insert
name of transferor] (the "Transferor") during the Restricted Period. The
Transferor has requested a transfer of such beneficial interest in the
Securities to a Person that will take delivery thereof in the form of an equal
principal amount of Securities evidenced by the Restricted Global Security
(CUSIP No. _________).
In connection with such request and in respect of such Securities, the
Transferor does hereby certify that such transfer has been effected pursuant to
and in accordance with Rule 144A under the United States Securities Act of 1933,
as amended, and accordingly the Transferor does hereby further certify that the
Securities are being transferred to a person that the Transferor reasonably
believes is purchasing the Securities for its own account, or for one or more
accounts with respect to which such Person exercises sole investment discretion,
and such Person and each such account is a "qualified institutional buyer"
within the meaning of Rule 144A and the Securities have been transferred in a
transaction meeting the requirements of Rule 144A and in accordance with any
applicable securities laws of any state of the United States.
B-1
We understand that this certificate is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate to any interested party in such proceeding. This
certificate and the statements contained herein are made for your benefit and
the benefit of the Company and the Initial Purchasers of the Securities under
the Purchase Agreement, dated __________ with the Company relating to the
Securities.
Dated: [Insert Name of Transferor]
By:
------------------------------------
Name:
Title:
(If the Transferor is a corporation,
partnership or fiduciary, the title of
the Person signing on behalf of such
registered owner must be stated.)
B-2
ANNEX C-1
FORM OF CERTIFICATION TO BE GIVEN BY HOLDERS OF
BENEFICIAL INTEREST IN A TEMPORARY REGULATION S
GLOBAL SECURITY TO EUROCLEAR OR CLEARSTREAM
OWNER SECURITIES CERTIFICATION
[EUROCLEAR BANK S.A./N.V.,
as operator of the Euroclear
System] [or] [CLEARSTREAM BANKING,
SOCIETE ANONYME]
Re: [title of series] of Inco Limited (the "Securities")
----------------------------------------------------
Reference is hereby made to the Indenture, dated as of March 7, 2003
(the "Indenture"), between Inco Limited (the "Company") and The Bank of New
York, as Trustee. Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.
This certificate relates to U.S. $_________________ aggregate principal
amount of Securities which are evidenced by the Temporary Regulation S Global
Security (CUSIP No. _________) and held with the Depositary through Euroclear or
Clearstream or both in the name of [insert name of holder] (the "Holder").
In respect of such Securities, the Holder does hereby certify that as
of the date hereof, the above-captioned Securities are beneficially owned by
non-U.S. Persons and are not held for purposes of resale directly or indirectly
to a U.S. Person or to a person within the United States or its possessions.
As used herein, "United States" means the United States of America, its
territories and possessions, any state of the United States, and the District of
Columbia. As used herein, U.S. Person has the meaning assigned to it in Rule 902
under the Securities Act of 1933, as amended.
We undertake to advise you immediately by tested telex on or prior to
the date on which you intend to submit your certification relating to the
Securities held by you for our account in accordance with your operating
procedures if any applicable statement herein is not correct on such date, and
in the absence of any such notification it may be assumed that this
certification applies as of such date.
C-1-1
We understand that this certification is required in connection with
certain securities laws in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certification is or would be relevant, we irrevocably authorize you to produce
this certification or a copy thereof to any interested party in such
proceedings. This certificate and the statements contained herein are made for
your benefit and the benefit of the Company and the Initial Purchasers of the
Securities under the Purchase Agreement, dated ________ with the Company
relating to the Securities.
Date:______________, ____[1]
-------------------------------------
[Name of Person Making Certification]
---------------------------
[1] to be dated no earlier than 15 days prior to the transfer or exchange date
to which the certification relates.
C-1-2
ANNEX C-2
FORM OF CERTIFICATION TO BE GIVEN
BY EUROCLEAR BANK S.A./N.V., AS OPERATOR OF THE
EUROCLEAR SYSTEM, OR CLEARSTREAM BANKING,
SOCIETE ANONYME
DEPOSITARY SECURITIES CERTIFICATION
THE BANK OF NEW YORK., as Trustee
Re: [title of series] of Inco Limited (the "Securities")
----------------------------------------------------
Reference is hereby made to the Indenture, dated as of March 7, 2003
(the "Indenture"), between Inco Limited (the "Company") and The Bank of New
York, as Trustee. Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.
This is to certify that, based solely on certifications we have
received in writing, by tested telex or by electronic transmission from member
organizations appearing in our records as persons being entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
to the effect set forth in the Indenture, as of the date hereof, $__________
aggregate principal amount of the above-captioned Securities are beneficially
owned by non-U.S. Persons and are not held for purposes of resale directly or
indirectly to a U.S. Person or to a person within the United States or its
possessions.
As used herein, "United States" means the United States of America, its
territories and possessions, any state of the United States, and the District of
Columbia. As used herein, U.S. Person has the meaning assigned to it in Rule 902
under the Securities Act of 1933, as amended.
We further certify (i) that we are not making available herewith for
exchange any portion of the Temporary Regulation S Global Security excepted in
such certifications and (ii) that as of the date hereof we have not received any
notification from any of our Member Organizations to the effect that the
statements made by such Member Organizations with respect to any portion of the
part submitted herewith for exchange are no longer true and cannot be relied
upon as of the date hereof.
We understand that this certification is required in connection with
certain securities laws of the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certification is or would be relevant, we irrevocably authorize you to produce
this certification or a copy thereof to any interested party in such
proceedings. This certificate and the statements contained herein are made for
your benefit and the benefit of the Company and the Initial Purchasers of the
Securities under the Purchase Agreement, dated _________ with the Company
relating to the Securities.
C-2-1
Dated:
By:
------------------------------------
[EUROCLEAR BANK S.A./N.V.,
as operator of the Euroclear System]
[or] [CLEARSTREAM BANKING,
SOCIETE ANONYME]
C-2-2
ANNEX C-3
FORM OF CERTIFICATION TO BE GIVEN BY
TRANSFEREE OF BENEFICIAL INTEREST IN A
TEMPORARY REGULATION S GLOBAL SECURITY
AFTER THE RESTRICTED PERIOD
TRANSFEREE SECURITIES CERTIFICATION
[EUROCLEAR BANC S.A./N.V.,
as Operator of the Euroclear
Clearance system] [or] [CLEARSTREAM BANKING,
SOCIETE ANONYME, LUXEMBOURG]
Re: [title of series] of Inco Limited (the "Securities")
----------------------------------------------------
Reference is hereby made to the Indenture, dated as of March 7, 2003
(the "Indenture"), between Inco Limited (the "Company") and The Bank of New
York, as Trustee. Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.
For purposes of acquiring a beneficial interest in the Temporary
Regulation S Global Security, the undersigned certifies that it is not a U.S.
Person as defined by Regulation S under the Securities Act of 1933, as amended.
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the Securities
held by you in which we intend to acquire a beneficial interest in accordance
with your operating procedures if any applicable statement herein is not correct
on such date, and in the absence of any such notification it may be assumed that
this certification applies as of such date.
We understand that this certificate is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate to any interested party in such proceeding. This
certificate and the statements contained herein are made for your benefit and
the benefit of the Company and the Initial Purchasers of the Securities under
the Purchase Agreement, dated _________ with the Company relating to the
Securities.
Dated:
By:
------------------------------------
As, or as agent for, the beneficial
acquiror of the Securities to which
this certificate relates.
X-0-0
XXXXX X-0
FORM OF TRANSFER CERTIFICATE --
NON-GLOBAL RESTRICTED SECURITY TO
RESTRICTED GLOBAL SECURITY
RESTRICTED GLOBAL NOTE CERTIFICATE
(for transfers pursuant to Section 305(b)(vi)
of the Indenture)
THE BANK OF NEW YORK, as Trustee
Re: [title of series] of Inco Limited (the "Securities")
----------------------------------------------------
Reference is hereby made to the Indenture, dated as of March 7, 2003
(the "Indenture"), between Inco Limited (the "Company") and The Bank of New
York, as Trustee. Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.
This certificate relates to $_____________ aggregate principal amount
of Securities held in definitive form (CUSIP No. _______) by [insert name of
transferor] (the "Transferor"). The Transferor has requested a transfer of such
Securities to a Person that will take delivery in the form of an equal principal
amount of Securities evidenced by the Restricted Global Security (CUSIP No.
___________).
In connection with such request and in respect of such Securities, the
Transferor does hereby certify that such transfer has been effected pursuant to
and in accordance with Rule 144A under the United States Securities Act of 1933,
as amended, and accordingly the Transferor does hereby further certify that the
Securities are being transferred to a person that the Transferor reasonably
believes is purchasing the Securities for its own account, or for one or more
accounts with respect to which such Person exercises sole investment discretion,
and such Person and each such account is a "qualified institutional buyer"
within the meaning of Rule 144A and the Securities have been transferred in a
transaction meeting the requirements of Rule 144A and in accordance with any
applicable securities laws of any state of the United States.
We understand that this certificate is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate to any interested party in such proceeding. This
certificate and the statements contained herein are made for your benefit and
the benefit of the Company and the Initial Purchasers of the Securities under
the Purchase Agreement, dated ________ with the Company relating to the
Securities.
Dated: [Insert Name of Transferor]
By:
------------------------------------
Name:
Title:
X-0-0
XXXXX X-0
FORM OF CERTIFICATE -- NON-GLOBAL
RESTRICTED SECURITY TO REGULATION S GLOBAL
SECURITY OR TEMPORARY REGULATION S
GLOBAL SECURITY
REGULATION S GLOBAL NOTE CERTIFICATE
(for transfers pursuant to Section 305(b)(vi)
of the Indenture)
THE BANKOF NEW YORK, as Trustee
Re: [title of series] of Inco Limited (the "Securities")
----------------------------------------------------
Reference is hereby made to the Indenture, dated as of March 7, 2003
(the "Indenture"), between Inco Limited (the "Company") and The Bank of New
York, as Trustee. Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.
This certificate relates to $____________ aggregate principal amount of
Securities held in definitive form (CUSIP No. _____) by [insert name of
transferor] (the "Transferor"). The Transferor has requested an exchange or
transfer of such Securities to a Person that will take delivery in the form of
an equal principal amount of Securities evidenced by the Regulation S Global
Security or the Temporary Regulation S Global Security (CUSIP No. ___________).
In connection with such request and in respect of such Securities, the
Transferor does hereby certify that such transfer has been effected pursuant to
and in accordance with (A) Rule 903 or Rule 904 under the Securities Act of
1933, as amended (the "Act"), or (B) Rule 144 under the Act, if available, and
accordingly the Transferor does hereby further certify that:
(a) if the transfer has been effected pursuant to Rule 903 or Rule 904:
(i) the offer of the Securities was not made to a person in the
United States;
(ii) either:
(1) at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any person
acting on its behalf reasonably believed that the transferee
was outside the United States,
(2) in the case of Rule 903, the transaction was executed in, on
or through a physical trading floor of an established
foreign securities exchange that is located outside the
United States; or
(3) in the case of Rule 904, the transaction was executed in, on
or through the facilities of a designated offshore
securities market and neither the Transferor nor any person
acting on its behalf
D-2-1
knows that the transaction was prearranged with a buyer in
the United States;
(iii) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or 904(b) of Regulation S, as
applicable;
(iv) the transaction is not part of a plan or scheme to evade the
registration requirements of the Act; and
(v) if such transfer is to occur during the Restricted Period, upon
completion of the transaction, the beneficial interest being
transferred as described above was held with the Depositary
through [Euroclear] [Clearstream]; or
(b) if the transfer has been effected pursuant to Rule 144:
(i) more than two years has elapsed since the date of the closing
of the initial placement of the Securities pursuant to the
Purchase Agreement, dated ________, between the Company and the
representatives of the several purchasers named therein; and
(ii) the Securities have been transferred in a transaction permitted
by Rule 144 and made in accordance with any applicable
securities laws of any state of the United States.
We understand that this certificate is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate to any interested party in such proceeding. This
certificate and the statements contained herein are made for your benefit and
the benefit of the Company and the Initial Purchasers of the Securities under
the Purchase Agreement, dated _________ with the Company relating to the
Securities.
Dated: [Insert Name of Transferor]
By:
------------------------------------
Name:
Title:
D-2-2
ANNEX E
INSTITUTIONAL ACCREDITED INVESTOR LETTER
Inco Limited
000 Xxxx Xxxxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx X0X0X0
Xxxxxx
[Insert name and address of initial purchasers]
The Bank of New York
Ladies and Gentlemen:
In connection with our proposed purchase of [title of securities]
(collectively, the "Securities") of Inco Limited (the "Issuer"), we confirm
that:
1. We are an "accredited investor" (as defined in Rule 501(a) (1), (2),
(3) or (7) of Regulation D under the Securities Act of 1933, as amended (the
"Securities Act"), purchasing for our own account, and we have such knowledge
and experience in financial and business matters as to be capable of evaluating
the merits and risks of our investment in the Securities, and we are able to
bear the economic risk of our investment.
2. We understand and acknowledge that the Securities have not been
registered under the Securities Act or any other applicable securities law, and
that the Securities may not be offered or sold except as permitted in the
following paragraphs.
We agree that if we should sell any Securities, we will do so only (A)
to the Issuer or any subsidiary thereof, (B) pursuant to an effective
registration statement under the Securities Act, (C) in accordance with Rule
144A under the Securities Act to a "qualified institutional buyer" (as defined
therein), (D) outside the Untied States in accordance with Rule 904 of
Regulation S under the Securities Act, (E) to an institutional accredited
investor (as defined in the indenture governing the Securities (the
"Indenture")) that, prior to such transfer, furnishes to the trustee under the
Indenture a signed letter containing certain representations and agreements
relating to the restrictions on transfer of the Securities (the form of which
letter can be obtained from the trustee) and in a principal amount of at least
$250,000, or (F) pursuant to the exemption from registration provided by Rule
144 under the Securities Act (if available) or any other available exemption
from the registration requirements of the Securities Act, and we further agree
to provide to any person purchasing any of the Securities from us a notice
advising such purchaser that resales of the Securities are restricted as stated
herein.
3. We understand that, on any proposed resale of any Securities, we may
be required to furnish to the Issuer and the trustee a legal opinion
satisfactory to them and such certifications and other information as the Issuer
may reasonably require to confirm that the proposed sale complies with the
foregoing restrictions. We further understand that the Securities purchased by
us will bear a legend to the foregoing effect.
E-1
4. We are acquiring the Securities for investment purposes and not with
a view to distribution thereof or with any present intention of offering or
selling any Securities, except as permitted above.
You are entitled to rely upon this letter and you are irrevocably
authorized to produce this letter or a copy hereto to any interested party in
any administrative or legal proceeding or official inquiry with respect to the
matters covered hereby.
THIS LETTER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
Very truly yours,
By:
Name:
Title:
Date:
Securities to be Purchased:
$__________ principal amount of the $___Securities
E-2
ANNEX F
FORM OF INSTRUCTION FOR EXCHANGE
(For use prior to the exchange of a Temporary Regulation S
for one or more Restricted Securities.)
EXCHANGE INSTRUCTIONS
INCO LIMITED
[TITLE OF SERIES] (THE "SECURITIES")
Pursuant to Section 305(b)(vii)(2) of the Indenture, dated as
of March 7, 2003 (the "Indenture"), between Inco Limited and The Bank of New
York, as Trustee, [Name of Initial Purchaser] hereby requests that
U.S.$___________ aggregate principal amount of the above-captioned Securities
held by you for our account in the Temporary Regulation S Security (CUSIP No.
______) (as defined in the Indenture) be exchanged for one or more Restricted
[Global] Securities [(CUSIP No. _______)] in the denominations and registered in
the names of the holders requested as set forth below:
Denominations Registered Name
----------------------- ---------------------------------
----------------------- ---------------------------------
----------------------- ---------------------------------
----------------------- ---------------------------------
Dated: [Name of Initial Purchaser]
---------------------
By:
------------------------
