Exhibit 4.2
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CARNIVAL CORPORATION
AND
[ ],
Trustee
___________________
INDENTURE
Dated as of [ ]
____________________
UNSECURED AND SUBORDINATED DEBT SECURITIES
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CARNIVAL CORPORATION
CROSS REFERENCE SHEET*
This Cross Reference Sheet shows the location in the Indenture of the
provisions inserted pursuant to Section 310-318(a), inclusive, of the Trust
Indenture Act of 1939.
TRUST INDENTURE ACT SECTIONS OF INDENTURE
310(a)(1)(2). . . . . . . . . . . . . . . . .6.9
(3)(4) . . . . . . . . . . . . . . . . .Inapplicable
(5). . . . . . . . . . . . . . . . . . .6.9
310(b). . . . . . . . . . . . . . . . . . . .6.8 and 6.10
(b)(1)(A)(C). . . . . . . . . . . . . . . .Inapplicable
310(c). . . . . . . . . . . . . . . . . . . .Inapplicable
311(a)(b) . . . . . . . . . . . . . . . . . .6.13 and 7.3
(c) . . . . . . . . . . . . . . . . . . . .Inapplicable
312(a). . . . . . . . . . . . . . . . . . . .7.1 and 7.2
(b)(c). . . . . . . . . . . . . . . . . . .7.2
313(a)(1)(2)(3)(4)(5)(7). . . . . . . . . . .7.3
(6) . . . . . . . . . . . . . . . . . . . .Inapplicable
(b)(1). . . . . . . . . . . . . . . . . . .Inapplicable
(2). . . . . . . . . . . . . . . . . . .7.3
(c)(d). . . . . . . . . . . . . . . . . . .7.3
314(a). . . . . . . . . . . . . . . . . . . .7.4
(b) . . . . . . . . . . . . . . . . . . . .Inapplicable
(c)(1)(2) . . . . . . . . . . . . . . . . .1.2
(3). . . . . . . . . . . . . . . . . . .Inapplicable
(d) . . . . . . . . . . . . . . . . . . . .Inapplicable
(e) . . . . . . . . . . . . . . . . . . . .1.2
315(a)(c)(d). . . . . . . . . . . . . . . . .6.1
(b) . . . . . . . . . . . . . . . . . . . .6.2
(e) . . . . . . . . . . . . . . . . . . . .5.14
316(a)(1) . . . . . . . . . . . . . . . . . .5.12 and 5.13
(2). . . . . . . . . . . . . . . . . . .Inapplicable
(b) . . . . . . . . . . . . . . . . . . . .5.8
(c) . . . . . . . . . . . . . . . . . . . .5.15
317(a). . . . . . . . . . . . . . . . . . . .5.3 and 5.4
(b) . . . . . . . . . . . . . . . . . . . .10.3
318(a)(c) . . . . . . . . . . . . . . . . . .1.5
(b) . . . . . . . . . . . . . . . . . . . .Inapplicable
____________________
* The Cross Reference Sheet is not part of the Indenture.
TABLE OF CONTENTS*
PAGE
ARTICLE 1 DEFINITIONS AND OTHER PROVISIONS . . . . . . . . . . . . . . . . . . . .1
Section 1.1 Certain Terms Defined. . . . . . . . . . . . . . . . . . . . . . .1
Section 1.2 Compliance Certificates and Opinions . . . . . . . . . . . . . . .8
Section 1.3 Form of Documents Delivered to Trustee . . . . . . . . . . . . . .9
Section 1.4 Acts of Holders. . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 1.5 Conflict with Trust Indenture Act of 1939. . . . . . . . . . . . 11
Section 1.6 Effect of Headings and Table of Contents . . . . . . . . . . . . 11
Section 1.7 Separability Clause. . . . . . . . . . . . . . . . . . . . . . . 11
Section 1.8 Benefits of Indenture. . . . . . . . . . . . . . . . . . . . . . 11
Section 1.9 Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE 2 SECURITY FORMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2.1 Forms Generally. . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2.2 Form of Face of Security. . . . . . . . . . . . . . . . . . . 12
Section 2.3 Form of Reverse of Security. . . . . . . . . . . . . . . . . 15
Section 2.4 Form of Trustee's Certificate of Authentication. . . . . . . 21
Section 2.5 Securities Issuable in the Form of a Global Security. . . . . 21
ARTICLE 3 THE SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 3.1 Amount Unlimited; Issuable in Series. . . . . . . . . . . . . 22
Section 3.2 Denominations. . . . . . . . . . . . . . . . . . . . . . . . 24
Section 3.3 Execution, Authentication, Delivery and Dating. . . . . . . . 25
Section 3.4 Temporary Securities . . . . . . . . . . . . . . . . . . . . . 26
Section 3.5 Registration; Registration of Transfer and Exchange. . . . . . 27
Section 3.6 Mutilated, Destroyed Lost or Stolen Securities . . . . . . . . 28
Section 3.7 Payment of Interest; Interest Rights Preserved . . . . . . . . 29
Section 3.8 Persons Deemed Owners. . . . . . . . . . . . . . . . . . . . . 30
Section 3.9 Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 3.10 Computation of Interest. . . . . . . . . . . . . . . . . . . . 30
ARTICLE 4 SATISFACTION AND DISCHARGE . . . . . . . . . . . . . . . . . . . . . . 31
Section 4.1 Satisfaction and Discharge of Indenture. . . . . . . . . . . . 31
Section 4.2 Application of Trust Money . . . . . . . . . . . . . . . . . . 32
Section 4.3 Repayment of Moneys Held by Paying Agent . . . . . . . . . . . 32
Section 4.4 Repayment of Moneys Held by Trustee. . . . . . . . . . . . . . 32
ARTICLE 5 REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 5.1 Events of Default. . . . . . . . . . . . . . . . . . . . . . . 33
____________________
* The table of contents, comprising pages i to iv, is not part of this
Indenture.
i
PAGE
Section 5.2 Acceleration of Maturity; Rescission and Annulment . . . . . . 35
Section 5.3 Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . . . . . . . . . . . . 36
Section 5.4 Trustee May File Proofs of Claim . . . . . . . . . . . . . . . 36
Section 5.5 Trustee May Enforce Without Possession of Securities . . . . . 37
Section 5.6 Application of Money Collected . . . . . . . . . . . . . . . . 37
Section 5.7 Limitation on Suits. . . . . . . . . . . . . . . . . . . . . . 38
Section 5.8 Unconditional Right of Holders to Receive
Principal, Premium and Interest. . . . . . . . . . . . . . . . 39
Section 5.9 Restoration of Rights and Remedies . . . . . . . . . . . . . . 39
Section 5.10 Rights and Remedies Cumulative . . . . . . . . . . . . . . . . 39
Section 5.11 Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . 39
Section 5.12 Control by Holders . . . . . . . . . . . . . . . . . . . . . . 40
Section 5.13 Waiver of Past Defaults. . . . . . . . . . . . . . . . . . . . 40
Section 5.14 Undertaking for Costs. . . . . . . . . . . . . . . . . . . . . 40
Section 5.15 Waiver of Stay or Extension Laws . . . . . . . . . . . . . . . 41
ARTICLE 6 THE TRUSTEE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 6.1 Certain Duties and Responsibilities. . . . . . . . . . . . . . 41
Section 6.2 Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . 42
Section 6.3 Certain Rights of Trustee. . . . . . . . . . . . . . . . . . . 43
Section 6.4 Trustee Not Responsible for Recitals in
Indenture or in Securities . . . . . . . . . . . . . . . . . . 44
Section 6.5 May Hold Securities. . . . . . . . . . . . . . . . . . . . . . 44
Section 6.6 Money Held in Trust. . . . . . . . . . . . . . . . . . . . . . 44
Section 6.7 Compensation and Reimbursement . . . . . . . . . . . . . . . . 44
Section 6.8 Disqualification; Conflicting Interest . . . . . . . . . . . . 45
Section 6.9 Corporate Trustee Required; Eligibility. . . . . . . . . . . . 51
Section 6.10 Resignation and Removal; Appointment of Successor. . . . . . . 52
Section 6.11 Acceptance of Appointment by Successor . . . . . . . . . . . . 54
Section 6.12 Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . . . . . . . . . . . . . 55
Section 6.13 Preferential Collection of Claims Against Company. . . . . . . 55
ARTICLE 7 HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY. . . . . . . . . . . 60
Section 7.1 Company to Furnish Trustee Information as to
Names and Addresses of Holders . . . . . . . . . . . . . . . . 60
Section 7.2 Preservation of Information; Communications to Holders . . . . 60
Section 7.3 Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . 61
Section 7.4 Reports by Company . . . . . . . . . . . . . . . . . . . . . . 63
ii
PAGE
ARTICLE 8 CONSOLIDATION, MERGER, SALE OR CONVEYANCE. . . . . . . . . . . . . . . 64
Section 8.1 Consolidations and Mergers of Company
Permitted Subject to Certain Conditions. . . . . . . . . . . . . 64
Section 8.2 Rights and Duties of Successor Corporation . . . . . . . . . . . 65
ARTICLE 9 SUPPLEMENTAL INDENTURES. . . . . . . . . . . . . . . . . . . . . . . . 65
Section 9.1 Supplemental Indentures Without Consent of Holders . . . . . . . 65
Section 9.2 Supplemental Indentures with Consent of Holders. . . . . . . . . 67
Section 9.3 Execution of Supplemental Indentures . . . . . . . . . . . . . . 68
Section 9.4 Effect of Supplemental Indentures. . . . . . . . . . . . . . . 68
Section 9.5 Reference in Securities to Supplemental Indentures . . . . . . 68
ARTICLE 10 PARTICULAR COVENANTS OF THE COMPANY. . . . . . . . . . . . . . . . . 68
Section 10.1 Payment of Principal, Premium and Interest. . . . . . . . . . . 68
Section 10.2 Maintenance of Office or Agency . . . . . . . . . . . . . . . . 69
Section 10.3 Money for Securities Payments To Be Held in Trust . . . . . . . 69
Section 10.4 Statement by Officers as to Default . . . . . . . . . . . . . . 70
Section 10.5 Additional Amounts. . . . . . . . . . . . . . . . . . . . . . . 70
ARTICLE 11 REDEMPTION OF SECURITIES . . . . . . . . . . . . . . . . . . . . . . 72
Section 11.1 Applicability of Article. . . . . . . . . . . . . . . . . . . . 72
Section 11.2 Election to Redeem; Notice to Trustee . . . . . . . . . . . . . 73
Section 11.3 Selection by Trustee of Securities to Be Redeemed . . . . . . . 73
Section 11.4 Notice of Redemption. . . . . . . . . . . . . . . . . . . . . . 73
Section 11.5 Deposit of Redemption Price . . . . . . . . . . . . . . . . . . 74
Section 11.6 Securities Payable on Redemption Date . . . . . . . . . . . . . 74
Section 11.7 Securities Redeemed in Part . . . . . . . . . . . . . . . . . . 75
Section 11.8 Optional Redemption or Assumption of
Securities under Certain Circumstances . . . . . . . . . . . . 75
ARTICLE 12 REPAYMENT AT OPTION OR HOLDERS . . . . . . . . . . . . . . . . . . . 76
Section 12.1 Applicability of Article. . . . . . . . . . . . . . . . . . . . 76
Section 12.2 Repayment of Securities . . . . . . . . . . . . . . . . . . . . 76
Section 12.3 Exercise of Option. . . . . . . . . . . . . . . . . . . . . . . 76
Section 12.4 When Securities Presented for Repayment
Become Due and Payable . . . . . . . . . . . . . . . . . . . . 77
Section 12.5 Securities Repaid in Part . . . . . . . . . . . . . . . . . . . 77
ARTICLE 13 SINKING FUNDS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Section 13.1 Applicability of Article. . . . . . . . . . . . . . . . . . . . 77
Section 13.2 Satisfaction of Sinking Fund Payments with Securities . . . . . 78
iii
PAGE
Section 13.3 Redemption of Securities for Sinking Fund . . . . . . . . . . . 78
ARTICLE 14 IMMUNITY OF INCORPORATORS, SHAREHOLDERS,
OFFICERS, DIRECTORS AND EMPLOYEES. . . . . . . . . . . . . . . . . . 79
Section 14.1 Exemption from Individual Liability . . . . . . . . . . . . . . 79
ARTICLE 15 SUBORDINATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Section 15.1 Agreement to Subordinate . . . . . . . . . . . . . . . . . . . 80
Section 15.2 Liquidation; Dissolution; Bankruptcy . . . . . . . . . . . . . 80
Section 15.3 Default on Senior Debt . . . . . . . . . . . . . . . . . . . . 80
Section 15.4 Acceleration of Securities . . . . . . . . . . . . . . . . . . 81
Section 15.5 When Distribution Must Be Paid Over. . . . . . . . . . . . . . 81
Section 15.6 Notice by Company. . . . . . . . . . . . . . . . . . . . . . . 81
Section 15.7 Subrogation. . . . . . . . . . . . . . . . . . . . . . . . . . 81
Section 15.8 Relative Rights. . . . . . . . . . . . . . . . . . . . . . . . 81
Section 15.9 Subordination May Not Be Impaired by Trust . . . . . . . . . . 82
Section 15.10 Distribution or Notice to Representative . . . . . . . . . . . 82
Section 15.11 Rights of Trustee and Paying Agent . . . . . . . . . . . . . . 82
ARTICLE 16 MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . . . . . . . . 82
Section 16.1 Successors and Assigns of Company Bound by Indenture. . . . . . 82
Section 16.2 Acts of Board, Committee or Officer of
Successor Corporation Valid. . . . . . . . . . . . . . . . . . 82
Section 16.3 Required Notices or Demands . . . . . . . . . . . . . . . . . . 82
Section 16.4 Indenture and Securities To Be Construed In
Accordance With the Laws of the State of New York. . . . . . . 83
Section 16.5 Indenture May Be Executed in Counterparts . . . . . . . . . . . 83
iv
INDENTURE, dated as of ________________, between CARNIVAL CORPORATION,
a corporation duly organized and existing under the laws of the Republic of
Panama (hereinafter sometimes called the "Company"), party of the first part,
and ______________________________, a national banking association organized and
existing under the laws of the United States of America (hereinafter sometimes
called the "Trustee"), party of the second part.
WHEREAS, for its lawful corporate purposes, the Company deems it
necessary to issue its securities and has duly authorized the execution and
delivery of this Indenture to provide for the issuance from time to time of its
unsecured and subordinated debentures, notes or other evidences of indebtedness
(herein called the "Securities"), to be issued in one or more series as in this
Indenture provided.
WHEREAS, all things necessary to constitute these presents a valid
indenture and agreement according to its terms have been done and performed by
the Company, and the execution of this Indenture has in all respects been duly
authorized by the Company, and the Company, in the exercise of legal right and
power in it vested, executes this Indenture.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which the
Securities are made, executed, authenticated, issued and delivered, and in
consideration of the premises, of the purchase and acceptance of Securities by
the Holders thereof and of the sum of One Dollar to it duly paid by the Trustee
at the execution of these presents the receipt whereof is hereby acknowledged,
the Company and the Trustee covenant and agree with each other, for the equal
and proportionate benefit of the respective Holders from time to time of the
Securities or of series thereof, as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 1.1 CERTAIN TERMS DEFINED. The terms defined in this
Section 1.1 (except as herein otherwise expressly provided or unless the context
otherwise requires) for all purposes of this Indenture and of any indenture
supplemental hereto shall have the respective meanings specified in this Section
1.1. All other terms used in this Indenture which are defined in the Trust
Indenture Act of 1939 or which are by reference therein defined in the
Securities Act of 1933, as amended (except as herein otherwise expressly
provided or unless the context otherwise requires), shall have the meanings
assigned to such terms in said Trust
2
Indenture Act and in said Securities Act as in force at the date of this
Indenture as originally executed.
Certain terms, used principally in Article 6, are defined in that
Article.
ACT. The term "Act," when used with respect to any Holder, shall have
the meaning specified in Section 1.4.
AFFILIATE; CONTROL. The Term "Affiliate" of any specified Person
shall mean 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 shall mean 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" shall have the meanings correlative to the foregoing.
AUTHORIZED NEWSPAPER. The term "Authorized Newspaper" shall mean a
newspaper printed in the English language and customarily published at least
once a day on each business day in each calendar week and of general circulation
in the Borough of Manhattan, the City and State of New York, whether or not such
newspaper is published on Saturdays, Sundays and legal holidays.
BOARD OF DIRECTORS. The term "Board of Directors" or "Board," when
used with reference to the Company, shall mean the Board of Directors of the
Company or any duly authorized committee of such Board.
BOARD RESOLUTION. The term "Board Resolution" shall mean a copy of a
resolution certified by the Secretary or an Assistant Secretary of the Company
to have been duly adopted by the Board of Directors and to be in full force and
effect on the date of such certification, and delivered to the Trustee.
BUSINESS DAY. The term "business day," when used with respect to any
Place of Payment, shall mean any day other than a Saturday or a day on which
banking institutions in the Place of Payment are authorized or obligated by law
or regulation to close.
COMMISSION. The term "Commission" shall mean the Securities and
Exchange Commission, as from time to time constituted, created under the
Securities Exchange Act of 1934, as amended, 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 of 1939, then the body
performing such duties at such time.
3
COMMON STOCK. The term "Common Stock" shall mean, with respect to any
Person, capital stock issued by such Person other than Preferred Stock.
COMPANY. The term "Company" shall mean Carnival Corporation, a Panama
corporation, and, subject to the provisions of Article 8, shall also include its
successors and assigns.
COMPANY REQUEST; COMPANY ORDER. The term "Company Request" or Company
Order" shall mean a written request or order signed in the name of the Company
by its Chairman of the Board, its President, an Executive Vice President or a
Vice President, and by its Treasurer, an Assistant Treasurer, its Controller, an
Assistant Controller, its Secretary or an Assistant Secretary, and delivered to
the Trustee.
CORPORATE TRUST OFFICE. The term "Corporate Trust Office" or other
similar term shall mean the principal office of the Trustee in
____________________, at which any particular time its corporate trust business
shall be administered, which office at the date of this Indenture is located at
____________________________ _______________________________________.
CORPORATION. The term "corporation" includes corporations,
associations, companies and business trusts.
DEFAULTED INTEREST. The term "Defaulted Interest" shall have the
meaning specified in Section 3.7.
DEPOSITORY. The term "Depository" shall mean, with respect to
Securities of any series for which the Company shall determine that such
Securities will be issued as a Global Security, the Depositary Trust Company,
another clearing agency or any successor registered under the Securities and
Exchange Act of 1934, as amended, or other applicable statute or regulation,
which, in each case, shall be designated by the Company pursuant to either
Section 2.5 or 3.1.
EVENT OF DEFAULT. The term "Event of Default" shall have the meaning
specified in Section 5.1.
GLOBAL SECURITY. The term "Global Security" shall mean, with respect
to any series of Securities, a Security executed by the Company and
authenticated and delivered by the Trustee to the Depository or pursuant to the
Depository's instruction, all in accordance with this Indenture and pursuant to
a Company Order, which (i) shall be registered in the name of the Depository or
its nominee and (ii) shall represent, and shall be denominated in an amount
equal to the aggregate principal amount of, all of the Outstanding Securities of
such series.
4
HOLDER. The term "Holder" shall mean a Person in whose name a
Security is registered in the Security Register.
INDENTURE. The term "Indenture" shall mean 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 and shall include the terms of the or those
particular series of Securities established as contemplated by Section 3.1;
provided, however, that if at any time more than one Person is acting as Trustee
under this instrument, "Indenture" shall mean, with respect to any one or more
series of Securities for which one Person is Trustee, 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 and shall include the terms of the or those
particular series of Securities for which such Person is Trustee established as
contemplated by Section 3.1, exclusive, however, of any provisions or terms
which relate solely to other series of Securities for which such Person is not
Trustee, regardless of when such terms or provisions were adopted, and exclusive
of any provisions or terms adopted by means of one or more indentures
supplemental hereto executed and delivered after such Person had become such
Trustee but to which such Person, as such Trustee, was not a party.
INTEREST. The term "interest," when used with respect to an Original
Issue Discount Security which by its terms bears only after Maturity, shall mean
interest payable after Maturity.
INTEREST PAYMENT DATE. The term "Interest Payment Date," when used
with respect to any Security, shall mean the Stated Maturity of an instalment of
interest on such Security.
MATURITY. The term "Maturity," when used with respect to any
Security, shall mean the date on which the principal of such Security or an
instalment of principal becomes due and payable as therein or herein provided,
whether at the Stated Maturity or by declaration of acceleration, call for
redemption or otherwise.
NATIONAL BANKRUPTCY ACT. The term "National Bankruptcy Act" shall
mean the Bankruptcy Act or title 11 of the United States Code.
OFFICERS' CERTIFICATE. The term "Officers' Certificate" shall mean a
certificate signed by the Chairman of the Board, the President, an Executive
Vice President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Controller, an Assistant Controller, the Secretary or an
Assistant Secretary, of the Company, and delivered to the Trustee. Each such
certificate shall include (except as otherwise provided in this Indenture) the
statements provided for in Section 1.2, if and to the extent required by the
provisions thereof.
5
OPINION OF COUNSEL. The term "Opinion of Counsel" shall mean an
opinion in writing signed by legal counsel, who may be an employee of or of
counsel to the Company, and delivered to the Trustee. Each such opinion shall
include the statements provided for in Section 1.2, if and to the extent
required by the provisions thereof.
ORIGINAL ISSUE DISCOUNT SECURITY. The term "Original Issue Discount
Security" shall mean any Security which provides for an amount less than the
principal amount thereof and to be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 5.2.
OUTSTANDING. The term "Outstanding," when used with respect to
Securities, shall mean, as of the date of determination, all Securities
theretofore authenticated and delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities or portions thereof for whose payment,
redemption or repayment at the option of the Holder 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 or portions thereof 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; and
(iii) Securities which have been paid pursuant to Section 3.6
or in exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture;
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 under this Indenture, (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 5.2, (ii) the principal amount of a
Security denominated in one or more foreign currencies or currency units shall
be the U.S. dollar equivalent, determined in the manner provided as contemplated
by Section 3.1 on the date of 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 on the Securities or any
6
Affiliate of the Company or such other obligor shall be disregarded and deemed
not to be Outstanding for the purposes of such determination, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee knows are 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 on the Securities or any Affiliate of
the Company or of such other obligor.
PAYING AGENT. The term "Paying Agent" shall mean any Person
authorized by the Company to pay the principal of (and premium, if any, on) or
interest on any Securities on behalf of the Company.
PERSON. The term "Person" shall mean any individual, corporation,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
PLACE OF PAYMENT. The term "Place of Payment," when used with respect
to the Securities of any series, shall mean the place or places where the
principal of (and premium, if any, on) and interest on the Securities of that
series are payable as specified as contemplated by Section 3.1.
PREDECESSOR SECURITY. The term "Predecessor Security" of any
particular Security shall mean every previous Security evidencing all or a
portion of the same debt as that evidenced by such particular Security; and, for
the purposes of this definition, any Security authenticated and delivered under
Section 3.6 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.
PREFERRED STOCK. The term "Preferred Stock" shall mean, with respect
to any Person, capital shares issued by such Person that are entitled to a
preference or priority over any other capital shares issued by such Person upon
any distribution of such Person's assets, whether by dividend or upon
liquidation.
REDEMPTION DATE. The term "Redemption Date" shall mean, when used
with respect to any Security to be redeemed, in whole or in part, the date fixed
for such redemption by or pursuant to this Indenture.
REDEMPTION PRICE. The term "Redemption Price" shall mean, when used
with respect to any Security to be redeemed, the price at which it is to be
redeemed by or pursuant to this Indenture.
7
REGULAR RECORD DATE. The term "Regular Record Date" for the interest
payable on any Interest Payment Date on the Securities of any series shall mean
the date specified for that purpose as contemplated by Section 3.1.
REPAYMENT DATE. The term "Repayment Date" shall mean, when used with
respect to any Security to be repaid at the option of the Holder, the date fixed
for such repayment by or pursuant to this Indenture.
REPAYMENT PRICE. The term "Repayment Price" shall mean, when used
with respect to any Security to be repaid at the option of the Holder, the price
at which it is to be repaid by or pursuant to this Indenture.
REPRESENTATIVE. The term "Representative" shall mean the indenture
trustee or other trustee, agent or representative for an issue of Senior Debt.
RESPONSIBLE OFFICER. The term "responsible officer" when used with
respect to the Trustee shall mean the Chairman or Vice Chairman of the Board of
Directors, the Chairman or Vice Chairman of the Executive Committee of the Board
of Directors, the President, any Vice President, any Second Vice President, the
Cashier, the Secretary, any Assistant Secretary, the Treasurer, any Assistant
Treasurer, any Corporate Trust Officer, any Assistant Trust Officer, or any
other officer or assistant officer of the Trustee customarily performing
functions similar to those performed by the persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred
because of his knowledge of and familiarity with the particular subject.
SECURITIES. The term "Securities" shall have the meaning stated in
the first recital of this Indenture and more particularly means any Securities
authenticated and delivered under this Indenture; PROVIDED, HOWEVER, that if at
any time there is more than one Person acting as Trustee under this Indenture,
"Securities" with respect to the series as to which such Person is Trustee shall
have the meaning stated in the first recital of this Indenture and shall more
particularly mean Securities authenticated and delivered under this Indenture,
exclusive, however, of Securities of any series as to which such Person is not
Trustee.
SECURITY REGISTER; SECURITY REGISTRAR. The terms "Security Register"
and "Security Registrar" shall have the respective meanings set forth in Section
3.5.
SENIOR DEBT. The term "Senior Debt" shall mean any obligation of the
Company to its creditors whether now outstanding or subsequently incurred other
than (i) any obligation as to which, in the instrument creating or evidencing
the same or pursuant to which the same is outstanding, it is provided that such
obligation is not Senior Debt, and (ii) obligations evidenced by the Securities.
8
SPECIAL RECORD DATE. The term "Special Record Date" for the payment
of any Defaulted Interest shall mean a date fixed by the Trustee pursuant to
Section 3.7.
STATED MATURITY. The term "Stated Maturity," when used with respect
to any Security or any instalment of principal thereof or interest thereon,
shall mean the date specified in such Security as the fixed date on which the
principal of such Security or such instalment of principal or interest is due
and payable.
SUBSIDIARY OF THE COMPANY. The term "subsidiary of the Company" shall
mean a corporation a majority of the outstanding voting stock of which is owned,
directly or indirectly, by the Company or by one or more subsidiaries of the
Company, or by the Company and one or more subsidiaries of the Company.
As used under this heading, the term "voting stock" means stock having
ordinary voting power to elect a majority of the directors irrespective of
whether or not stock of any other class or classes shall have or might have
voting power by reason of the happening of any contingency.
TRUSTEE. The term "Trustee" shall mean ________________ and, subject
to the provisions of Article 6, shall also include its successors and assigns,
and, if at any time there is more than one Person acting as Trustee hereunder,
"Trustee" as used with respect to the Securities of any series shall mean the
Trustee with respect to Securities of that series.
TRUST INDENTURE ACT OF 1939. The term "Trust Indenture Act of 1939"
(except as herein otherwise expressly provided) shall mean the Trust Indenture
Act of 1939, as amended, as in force at the date of this Indenture as originally
executed.
Section 1.2 COMPLIANCE CERTIFICATES AND OPINIONS. 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 (other than certificates
provided pursuant to Section 7.4(d)) shall include:
9
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein relating
thereto;
(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 or not, in the opinion of each
such individual, such condition or covenant has been complied with.
Section 1.3 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 an 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 actually knows 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 (but without having made an investigation specifically for
the purpose of rendering such opinion) 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.
10
Section 1.4 ACTS OF HOLDERS. (a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders of the Outstanding Securities of all series or one
or more series, as the case may be, may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such Holders in person
or by an agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is hereby expressly
required, to the 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 6.1)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section 1.4
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
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 and in accordance with
such reasonable rules as the Trustee may determine.
(c) The Company may, in the circumstances permitted by the Trust
Indenture Act of 1939, fix any date as the record date for the purpose of
determining the Holders of Securities of any series entitled to give or take any
request, demand, authorization, direction, notice, consent, waiver or other
action, or to vote on any action, authorized or permitted to be given or taken
by Holders of Securities of such series. If not set by the Company prior to the
first solicitation of a Holder of Securities of such series made by any person
with respect of any such action, or, in the case of any such vote, prior to such
vote, the record date for any such action or vote shall be the 30th day (or, if
later, the date of the most recent list of Holders required to be provided
pursuant to Section 7.1) prior to such first solicitation or vote, as the case
may be. With regard to any record date, only the Holders of Securities of such
series on such date (or their duly designated proxies) shall be entitled to give
or take, or vote on, the relevant action.
(d) The ownership of Securities shall be proved by the Security
Register.
11
(e) 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.
Section 1.5 CONFLICT WITH TRUST INDENTURE ACT OF 1939. If any
provision hereof limits, qualifies or conflicts with a provision of the Trust
Indenture Act of 1939 that is required under such Act to be part of and govern
this Indenture, the latter provision shall control. If any provision of this
Indenture modifies or excludes any provision of the Trust Indenture Act of 1939
that may be so modified or excluded, the latter provision shall be deemed either
to apply to this Indenture so modified or to be excluded, as the case may be.
Section 1.6 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 1.7 SEPARABILITY CLAUSE. In case any provision in this
Indenture or in any Security shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 1.8 BENEFITS OF INDENTURE. Nothing in this Indenture or in
the Securities, express or implied, shall give to any Person, other than the
parties hereto and their successors hereunder and the Holders, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
Section 1.9 LEGAL HOLIDAYS. In any case where any Interest Payment
Date, Redemption Date or Stated Maturity of any Security shall not be a Business
Day at any Place of Payment, then (notwithstanding any other provision of this
Indenture or of the Securities) payment of interest or principal (and premium,
if any) 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, as the
case may be.
12
ARTICLE 2
SECURITY FORMS
Section 2.1 FORMS GENERALLY. The Securities of each series shall be
in substantially the form set forth in this Article, or in such other form or
forms 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 marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution of the Securities. If the form or forms of
Securities of any 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 Company Order contemplated by Section
3.3 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.
Section 2.2 FORM OF FACE OF SECURITY. [Insert any legend required
by the Internal Revenue Code and the regulations thereunder.]*
CARNIVAL CORPORATION
____________________
$ No.
CARNIVAL CORPORATION, a corporation duly organized and existing under
the laws of the Republic of Panama (herein called the "Company," which term
includes any successor corporation under the Indenture hereinafter
__________________
* All legends should be reviewed by a tax lawyer.
13
referred to), for value received, hereby promise to pay to
, or registered assigns, the principal sum of Dollars on
[IF THE SECURITY IS TO BEAR INTEREST PRIOR TO MATURITY,
INSERT --, and to pay interest thereon from or
from the most recent Interest Payment Date to which interest has been paid or
duly provided for, semi-annually on and
in each year, commencing , at the rate of %
per annum, until the principal hereof is paid or made available for payment [IF
APPLICABLE, INSERT -- and (to the extent that the payment of such interest shall
be legally enforceable) at the rate of % per annum on any overdue principal
and premium and on any overdue instalment of interest]. The interest so
payable, and punctually paid or duly provided for, on any Interest Payment Date
will, as provided in such Indenture, be paid to the 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 of 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 so paid on demand shall bear interest at the rate
of ____% per annum (to the extent that such 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.]
Payment of the principal of (and premium, if any, on) and [IF
APPLICABLE, INSERT -- any such] interest on this Security will be made at the
office or agency of the Company maintained for that purpose in either the City
of ____________, the State of ____________, or _______________________, in such
14
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts [IF APPLICABLE, INSERT --;
PROVIDED, HOWEVER, that at the option of the Company payment of interest may be
made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register].
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been 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.
15
IN WITNESS WHEREOF, Carnival Corporation has caused this Instrument to
be duly executed under its corporate seal.
Dated:
[CORPORATE SEAL]
CARNIVAL CORPORATION
By:
Attest:
Section 2.3 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 an Indenture,
dated as of _____________ (herein called the "Indenture"), between the Company
and _________________, as Trustee (herein called the "Trustee," which term
includes any successor trustee under the Indenture with respect to the series of
which this Security is a part), 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 and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is
one of the series designated on the face hereof [, limited in aggregate
principal amount to $_________].
[The Company will pay to the Holders such Additional Amounts in
respect of Panamanian taxes as may become payable under Section 10.5 of the
Indenture.]
[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 _____ at a Redemption Price equal to ____% of the principal amount, and
(2)] at any time [on or after ____________, 19__], 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,
16
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 with accrued interest to the
Redemption Date, but interest instalments 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 Regular Record Dates referred to on the face hereof, all as provided in
the Indenture.]
[The Securities will also be subject to redemption as a whole, but not
in part, at the option of the Company at any time at 100% of the principal
amount, together with accrued interest thereon to the Redemption Date, in the
event the Company has become or would become obligated to pay, on the next date
on which any amount would be payable with respect to the Securities, any
Additional Amounts as a result of certain changes affecting Panamanian
withholding taxes which are specified in the Indenture.]
[IF APPLICABLE, INSERT -- The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, (1) on _____________ in
any year commencing with the year _____ and ending with the year _____ through
operation of the sinking fund for this series at the Redemption Prices for
redemption through operation of the sinking fund (expressed as percentages of
the principal amount) set forth in the table below, and (2) at any time [on or
after _____________], as a whole or in part, at the election of the Company, at
the Redemption Prices for redemption otherwise than through operation of the
sinking fund (expressed as percentages of the principal amount) set froth in the
table below: If redeemed during the 12-month period beginning _____________ of
the years indicated,
17
REDEMPTION PRICE REDEMPTION PRICE
FOR REDEMPTION FOR REDEMPTION
THROUGH OPERATION OTHERWISE THAN
OF THE THROUGH OPERATION
YEAR SINKING FUND OF THE SINKING FUND
and thereafter at a Redemption Price equal to ____% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest instalments 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
Regular Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[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 [describe
order] order in which they become due.]
[In the event of redemption or repayment of this Security in part
only, a new Security or Securities of this series for the unredeemed portion
hereof will be issued in the name of the Holder hereof upon the cancellation
hereof.]
[IF APPLICABLE, INSERT -- The Securities of this series are subject to
repayment in whole [or in part] [but not in part], in integral multiples of
$_________, on _________ [and ___________] at the option of the Holder hereof at
a Repayment
18
Price equal to ____% of the principal amount thereof [to be repaid], together
with interest thereon accrued to the Repayment Date, all as provided in the
Indenture [; PROVIDED, HOWEVER, that the principal amount of this Security may
not be repaid in part if, following such repayment, the unpaid principal amount
of this Security would be less than [$_________] [the minimum authorized
denomination for Securities of this series]]. To be repaid at the option of the
Holder, this Security, with the "Option to Elect Repayment" form duly completed
by the Holder hereof, must be received by the Company at its office or agency
maintained for that purpose in either the City of ____________, the State of
__________, or ________________________[, which will be located initially at the
office of the Trustee at _________________________], not earlier than 30 days
nor later than 15 days prior to the Repayment Date. Exercise of such option by
the Holder of this Security shall be irrevocable unless waived by the Company.]
[IF THE SECURITY IS NOT AN ORIGINAL ISSUE DISCOUNT SECURITY -- If an
Event of Default with respect to Securities of this series shall occur and be
continuing, the principal of the Securities of this series may be declared due
and payable in the manner and with the effect provided in the Indenture.]
[IF THE SECURITY IS AN ORIGINAL ISSUE DISCOUNT SECURITY -- If an Event
of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to -- INSERT FORMULA FOR DETERMINING THE
AMOUNT. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal and overdue interest (in each case
to the extent that the payment of such interest shall be legally enforceable),
all of the 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 662/3% in principal amount of the Outstanding
Securities of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Outstanding Securities of each series, on behalf of the Holders of all
Outstanding 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 or in lieu hereof, whether or not notation of
such consent or waiver is made upon this Security.
19
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 amount of principal (and premium, if
any, on) and interest on this Security herein provided, and at the times, place
and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of (and
premium, if any, on) 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 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 $ 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 of like tenor of different authorized
denominations 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.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
[IF APPLICABLE, INSERT --
20
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Company
to repay the within Security [(or the portion thereof specified below)],
pursuant to its terms, on the "Repayment Date" first occurring after the date of
receipt of the within Security as specified below, at a Repayment Price equal to
% of the principal amount thereof, together with interest thereon accrued to
the Repayment Date, to the undersigned at:
________________________________________________________________________
________________________________________________________________________
(Please Print or Type Name and Address of the Undersigned.)
FOR THIS OPTION TO ELECT REPAYMENT TO BE EFFECTIVE, THIS SECURITY WITH
THE OPTION TO ELECT REPAYMENT DULY COMPLETED MUST BE RECEIVED NOT EARLIER THAN
30 DAYS PRIOR TO THE REPAYMENT DATE AND NOT LATER THAN 15 DAYS PRIOR TO THE
REPAYMENT DATE BY THE COMPANY AT ITS OFFICE OR AGENCY EITHER IN THE CITY OF
____________, THE STATE OF _____________, OR __________________________________
[, WHICH WILL BE LOCATED INITIALLY AT THE OFFICE OF THE TRUSTEE AT
___________________ ].
[If less than the entire principal amount of the within Security is to
be repaid, specify the portion thereof (which shall be $ or an integral
multiple thereof) which is to be repaid: $ . The principal amount of this
Security may not be repaid in part if, following such repayment, the unpaid
principal amount of this Security would be less than [$ [the
minimum authorized denomination for Securities of this series].]
[If less than the entire principal amount of the within Security is to
be repaid, specify the denomination(s) of the Security(ies) to be issued for the
unpaid amount: ($ or any integral multiple of $ ): $
.]
Dated:
__________________________________________
Note: The signature to this Option to Elect Repayment
must correspond with the name as written upon the face
of the within Security in every particular without
alterations or enlargement or any change whatsoever.
21
Section 2.4 FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION. This
is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
_________________________________
,
As Trustee
By_______________________________
Authorized Officer
Section 2.5 SECURITIES ISSUABLE IN THE FORM OF A GLOBAL SECURITY.
(a) If the Company shall establish pursuant to Section 3.1 that the Securities
of a particular series are to be issued as a Global Security, then the Company
shall execute and the Trustee shall, in accordance with Section 3.3 and the
Company Order delivered to the Trustee thereunder, authenticate and deliver, a
Global Security which (i) shall represent, and shall be denominated in an amount
equal to the aggregate principal amount of, all of the Outstanding Securities of
such series, (ii) shall be registered in the name of the Depository or its
nominee, (iii) shall be delivered by the Trustee to the Depository or pursuant
to the Depository's instruction and (iv) shall bear a legend substantially to
the following effect: "Except as otherwise provided in Section 2.5 of the
Indenture, this Security may be transferred, in whole but not in part, only to
another nominee of the Depository or to a successor Depository or to a nominee
of such successor Depository."
(b) Notwithstanding any other provision of this Section 2.5 or
of Section 3.5, but subject to the provisions of paragraph (c) below, the Global
Security of a series may be transferred, in whole but not in part and in the
manner provided in Section 3.5, only to another nominee of the Depository for
such series, or to a successor Depository for such series selected or approved
by the Company or to a nominee of such successor Depository.
(c) If at any time the Depository for a series of Securities
notifies the Company that it is unwilling or unable to continue as Depository
for such series or if at any time the Depository for such series shall no longer
be registered or in good standing under the Securities Exchange Act of 1934, as
amended, or other applicable statute or regulatory and a successor Depository
for such series is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such condition, as the case may be,
this Section 2.5 shall no longer be applicable to the Securities of such series
and the Company will execute, and the Trustee will authenticate and deliver
securities of such series in definitive registered form without coupons, in
authorized denominations, and in an aggregate principal
22
amount equal to the principal amount of the Global Security of such series in
exchange for such Global Security. In addition, the Company may at any time
determine that the Securities of any series shall no longer be represented by a
Global Security and that the provisions of this Section 2.5 shall no longer
apply to the Securities of such series. In such event the Company will execute
and the Trustee, upon receipt of an Officers' Certificate evidencing such
determination by the Company, will authenticate and deliver Securities of such
series in definitive registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to the principal
amount of the Global Security of such series in exchange for such Global
Security. Upon the exchange of the Global Security for such Securities in
definitive registered form without coupons, in authorized denominations, the
Global Security shall be canceled by the Trustee. Such Securities in definitive
registered form issued in exchange for the Global Security pursuant to this
Section 2.5(c) shall be registered in such names and in such authorized
denominations as the Depository, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Securities to the Persons in whose names such Securities are
so registered, but without any liability on the part of the Company or the
Trustee for the accuracy of the Depository's instructions.
ARTICLE 3
THE SECURITIES
Section 3.1 AMOUNT UNLIMITED; ISSUABLE IN SERIES. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is not limited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and set forth in an Officers'
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series, any or all of the following as
applicable:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) the limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Sections 2.5, 3.4, 3.5, 3.6, 9.5, 11.7 or 12.5, and except
for any Securities which, pursuant to Section 3.3, are deemed never to have been
authenticated and delivered hereunder);
23
(3) the date or dates on which the principal of the Securities
of the series is payable or the manner in which such dates are determined;
(4) the rate or rates at which the Securities of the series
shall bear interest, or the manner in which such rates are determined, the date
or dates from which such interest shall accrue, or the manner in which such
dates are determined, the Interest Payment Dates on which such interest shall be
payable and the Regular Record Dates, if any, for the interest payable on any
Interest Payment Date;
(5) the place or places where the principal of (and premium, if
any, on) and any interest on Securities of the series shall be payable;
(6) the obligation or option, if any, of the Company to
redeem, purchase or repay Securities of the series pursuant to any sinking
fund or analogous provisions or at the option of a Holder thereof;
(7) the period or periods, if any, within which the price or
prices at which and the terms and conditions upon which Securities of the
series may be redeemed, purchased or repaid, in whole or in part, at the
option or obligation of the Company;
(8) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the series shall be
issuable;
(9) if other than the Trustee, the identity of the Security
Registrar and/or Paying Agent;
(10) if other than the principal amount thereof, the portion of
the principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 5.2;
(11) if other than such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public or
private debts, the coin or currency unit in which payment of the principal (and
premium, if any) or interest on the Securities of the series shall be payable;
(12) if the amount of payment of principal of (and premium, if
any) or interest on the Securities of the series may be determined with
reference to an index, formula or other method based on a coin currency or
currency unit other than that in which the Securities are stated to be payable,
the manner in which such amounts shall be determined;
24
(13) if the principal of (and premium, if any) or interest on the
Securities of the series are to be payable, at the election of the Company or a
Holder thereof, in a coin or currency or currency unit other than that in which
the Securities are stated to be payable, the period or periods within which, and
the terms and conditions upon which, such election may be made;
(14) whether the Securities of the series are issuable as a
Global Security and, in such case, the identity of the Depository for such
series;
(15) the obligation, if any, of the Company to permit the
conversion of the Securities of the series into the Company's Common Stock or
Preferred Stock, as the case may be, and the terms and conditions upon which
such conversion shall be effected (including, without limitation, the initial
conversion price or rate, the conversion period, any adjustment of the
applicable conversion price and any requirements relative to the reservation of
such shares for purposes of conversion);
(16) the provisions necessary to permit or facilitate the
defeasance and discharge or covenant defeasance of the Securities of or within
the series; and
(17) any other terms, conditions, rights and preferences (or
limitations on such rights and preferences) relating to the series (which terms
shall not be inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to such Board Resolution and set forth in such Officers' Certificate or in any
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 issuances of additional Securities of such series.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution and the Officers's Certificate setting forth the
terms of the series shall be delivered to the Trustee at or prior to the
delivery of the Company Order for authentication and delivery of Securities of
such series.
Section 3.2 DENOMINATIONS. The Securities of each series shall be
issuable in definitive registered form without coupons and, except for such
Global Security, in such denominations as shall be specified as contemplated by
Section 3.1. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series, other than a Global
Security, shall be issuable in denominations of $1,000 and any integral multiple
thereof.
25
Section 3.3 EXECUTION, AUTHENTICATION, DELIVERY AND DATING. The
Securities shall be signed on behalf of the Company by its Chairman of the
Board, its President or one of its Vice Presidents, under its corporate seal
reproduced thereon attested by its Secretary or one of its Assistant
Secretaries. Such signatures upon the Securities may be the manual or facsimile
signatures of the present or any future such authorized officers and may be
imprinted or otherwise reproduced on the Securities.
Securities bearing the manual or facsimile signatures of individuals
who were at the time they signed such Securities the proper officers of the
Company shall bind the Company, notwithstanding that such individuals or any of
them have ceased to hold such officers 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, maturity date, date of issuance and date from
which interest shall accrue. In authenticating such Securities, and accepting
the additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive, and (subject to Section
6.1) shall be fully protected in relying upon, an Opinion of Counsel stating:
(a) that the form or forms and terms of such Securities have been
established in conformity with the provisions of this Indenture;
(b) that all conditions precedent of the Indenture to the
authentication and delivery of such Securities have been complied with and that
such Securities, when completed by appropriate insertions and executed and
delivered by the Company to the Trustee for authentication in accordance with
this Indenture, authenticated and delivered by the Trustee in accordance with
this Indenture and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute the legal,
valid and binding obligations of the Company, enforceable in accordance with
their terms, subject to applicable bankruptcy, insolvency, reorganization and
other similar laws of general applicability relating to or affecting the
enforcement of creditors' rights, to general equitable principles and to such
other qualifications as such counsel shall conclude do not materially affect the
rights of Holders of such Securities; and
26
(c) that all laws and requirements of the federal government of the
United States, the State of New York and the Republic of Panama in respect of
the execution and delivery by the Company of such Securities have been complied
with.
Notwithstanding the provisions of Section 3.1 and of the preceding
paragraph, if not all the Securities of any series are to be issued at one time,
it shall not be necessary to deliver an Opinion of Counsel at the time of
issuance of each Security but such opinion with appropriate modifications shall
be delivered at or before the time of issuance of the first Security of such
series.
The Trustee shall not be required to authenticate and deliver any such
Securities if the Trustee, being advised by counsel, determines that such action
(i) may not lawfully be taken or (ii) would expose the Trustee to personal
liability to existing Holders of Securities.
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.
Section 3.4 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 authorized denominations.
Until so exchanged the temporary Securities of any series
27
shall in all respects be entitled to the same benefits under this Indenture as
the definitive Securities of such series.
Section 3.5 REGISTRATION; REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept at the office or agency of the Company
maintained pursuant to Section 10.2 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 "Security Register") in
which, subject to such reasonable regulations as it may prescribe, the Company
shall, subject to the provisions of Section 2.5, provide for the registration of
Securities and transfers of Securities. The Trustee is hereby appointed
"Security Registrar" for the purpose of registering Securities and transfers of
Securities as herein provided.
Subject to the provisions of Section 2.5, upon surrender for
registration of transfer of any definitive 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 definitive Securities of the same
series of any authorized denominations and of a like aggregate principal amount.
Subject to the provisions of Section 2.5, at the option of the Holder,
definitive Securities of any series may be exchanged for other definitive
Securities of the same series, of any authorized denominations and of a like
aggregate principal amount, upon surrender of the definitive Securities to be
exchanged at such office or agency. Whenever any definitive Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the definitive 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.
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 relation
thereto.
28
The Company shall not be required (i) to issue or 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 selection for redemption
of Securities of that series under Section 11.3 and ending at the close of
business on the day of the mailing of notice of redemption, (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, or
(iii) to issue or register the transfer of or exchange any Security which has
been surrendered for repayment at the option of the Holder, except the portion,
if any, of such Security not to be so repaid.
Section 3.6 MUTILATED, DESTROYED LOST OR 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, or, in case any such mutilated Security has
become or is about due and payable, the Company in its discretion may, instead
of issuing a new Security, pay such Security.
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 or, in case any
such 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 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.
29
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
Section 3.7 PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
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 10.2;
PROVIDED, HOWEVER, that each instalment of interest on any Security may at the
Company's option be paid by mailing a check for such interest, payable to or
upon the written order of the Person entitled thereto pursuant to Section 3.8,
to the address of such Person as it appears on the Security 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 (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 Company shall notify the Trustee in writing
of the amount of Defaulted Interest proposed to be paid on each Security of such
series and the date of the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Default Interest or shall make
arrangements satisfactory to the Trustee for such deposit on or 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 Security Register, not less than 10 days
prior to such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so mailed,
such Defaulted
30
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.
Section 3.8 PERSONS DEEMED OWNERS. Prior to due presentment of a
Security for registration of transfer, the Company, the Trustee and any agent of
the Company or the Trustee may treat the Person in whose name such Security is
registered as the owner of such Security for the purpose of receiving payment of
principal of (and premium, if any, on) and (subject to Section 3.7) interest on
such Security and for all other purposes whatsoever, whether or not such
Security be overdue, and neither the Company, the Trustee nor any agent of the
Company or the Trustee shall be affected by notice to the contrary.
Section 3.9 CANCELLATION. All Securities surrendered for payment,
redemption, repayment at the option of the Holder, registration of transfer or
exchange or for credit against any sinking fund payment shall, if surrendered to
any Person other than the Trustee, be delivered to the Trustee and shall be
promptly canceled 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 all Securities
so delivered shall be promptly canceled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided
in this Section, except as expressly permitted by this Indenture. All canceled
Securities held by the Trustee shall be destroyed by it and the Trustee shall
deliver its certificate of such destruction to the Company, unless by a Company
Order the Company directs their return to it.
Section 3.10 COMPUTATION OF INTEREST. Except as otherwise specified
as contemplated by Section 3.1 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.
31
ARTICLE 4
SATISFACTION AND DISCHARGE
Section 4.1 SATISFACTION AND DISCHARGE OF INDENTURE. This
Indenture shall upon Company Request cease to be of further effect (except as to
any surviving rights of 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 theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 3.6 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 10.3)
have been delivered to the Trustee for cancellation; or
(B) all such Securities 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) 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 deposited or
caused to be deposited with the Trustee as trust funds in trust for the purpose
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 to the date of such deposit (in the
case of Securities which have become due and payable) or to the Stated Maturity
or Redemption, as the case may be;
(2) the Company has paid or cause to be paid all other sums
payable hereunder by the Company; and
32
(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.
In the event there are Securities of two or more series hereunder, the Trustee
shall be required to execute an instrument acknowledging satisfaction and
discharge of this Indenture only if requested to do so with respect to
Securities of all series as to which it is Trustee and if the other conditions
thereto are met. In the event there are two or more Trustees hereunder, then
the effectiveness of any such instrument shall be conditioned upon receipt of
such instruments from all Trustees hereunder.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.7 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 4.2 and the last
paragraph of Section 10.3 shall survive.
Section 4.2 APPLICATION OF TRUST MONEY. Subject to the provisions
of the last paragraph of Section 10.3, all money deposited with the Trustee
pursuant to Section 4.1 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 premium, if any) and interest for whose payment such money
has been deposited with the Trustee; but such money need not be segregated from
other funds except to the extent required by law.
Section 4.3 REPAYMENT OF MONEYS HELD BY PAYING AGENT. In
connection with the satisfaction and discharge of this Indenture all moneys then
held by any Paying Agent (other than the Trustee, if the Trustee be a Paying
Agent) under the provisions of this Indenture shall, upon demand of the Company,
be repaid to it or paid to the Trustee and thereupon such Paying Agent shall be
released from all further liability with respect to such moneys.
Section 4.4 REPAYMENT OF MONEYS HELD BY TRUSTEE. Any moneys
deposited with the Trustee or any Paying Agent for the payment of the principal
of (or premium, if any, on) or interest on any Security of any series and not
applied but remaining unclaimed by the Holders for two years after the date upon
which the principal of (or premium, if any, on) or interest on such Security
shall have become due and payable, shall be repaid to the Company by the Trustee
or such Paying Agent on demand; and the Holder of any of the Securities entitled
to receive such payment shall thereafter look only to the Company for the
payment thereof and all liability of the Trustee or such Paying Agent with
respect to such moneys shall thereupon cease;
33
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 mailed
to each such Holder or published once a week for two successive weeks (in each
case on any day of the week) in an Authorized Newspaper, or both, a notice that
said moneys have not been so applied and that after a date named therein any
unclaimed balance of said moneys then remaining will be returned to the Company.
It shall not be necessary for more than one such publication to be made in the
same newspaper.
ARTICLE 5
REMEDIES
Section 5.1 EVENTS OF DEFAULT. "Event of Default," wherever used
herein with respect to Securities of any series, shall mean 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 upon any Security of
that series when it becomes due and payable, and continuance of such default for
a period of 30 days; 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 five business 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 other than that series), and
continuance of such default or breach for a period of 60 days after there has
been given, by registered or certified mail, to 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 or under any
34
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, whether such indebtedness now exists or shall hereafter be created,
which default shall constitute a failure to pay the principal of indebtedness in
excess of $20,000,000 when due and payable after the expiration of any
applicable grace period with respect thereto or shall have resulted in
indebtedness in excess of $20,000,000 becoming or being declared due and payable
prior to the date on which it would otherwise have become due and payable,
without such indebtedness having been discharged, or such acceleration having
been rescinded or annulled, within a period of 30 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 a written notice specifying such default and
requiring the Company to cause such indebtedness to be discharged or cause such
acceleration to be rescinded or annulled and stating that such notice is a
"Notice of Default" hereunder; PROVIDED, HOWEVER, that, subject to the
provisions of Sections 6.1 and 6.2, the Trustee shall not be deemed to have
knowledge of such default unless either (A) a Responsible Officer of the Trustee
shall have actual knowledge of such default or (B) the Trustee shall have
received 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 by a court having jurisdiction in the premises of
(A) a decree or order for relief in respect of the Company in an involuntary
case or proceeding under the National Bankruptcy Act or any other similar
Federal or State law or (B) a decree or order adjudging the Company a bankrupt
or insolvent, or approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company under any
applicable Federal or State law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official of the
Company or of any substantial part of its property, or ordering the winding up
or liquidation of its affairs, and the continuance of any such decree or order
for relief or any such other decree or order unstayed and in effect for a period
of 60 consecutive days; or
(7) the commencement of the Company of a voluntary case or
proceeding under the National Bankruptcy Act or any other similar Federal or
State law or of any other case or proceeding to be adjudicated a bankrupt or
insolvent, or the consent by it to the entry of a decree or order for relief in
respect of the Company in an involuntary case or proceeding under the National
Bankruptcy Act or any other similar Federal or State law or to the commencement
of any bankruptcy or insolvency case or proceeding against it, or the filing by
it of a petition or answer or consent seeking reorganization or relief under any
applicable Federal or State law, or the consent by it to the filing of such
petition or to the appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or similar official of the Company
or of any substantial part of its property, or the
35
making by it of an assignment for the benefit of creditors, or the admission by
it in writing of its inability to pay its debts generally as they become due; or
(8) any other Event of Default provided with respect to
Securities to that series.
Section 5.2 ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT. If
an Event of Default 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 the Securities of that
series are Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of that series) of 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.
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
sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) and any
sinking fund payments with respect to any Securities of that series which
have become due otherwise than by such declaration of acceleration and
interest thereon at the rate or rates prescribed therefor in such
Securities,
(C) to the extent that payment of such interest is
enforceable under applicable law, interest upon overdue interest to the
date of such payment or deposit at the rate or rates prescribed therefor in
such Securities or, if no such rate or rates are so prescribed, at the rate
borne by the Securities during the period of such default, and
36
(D) 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 Securities of that series
which have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 5.13.
No such waiver or rescission and annulment shall effect any subsequent default
or impair any right consequent thereon.
Section 5.3 COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE. The Company covenants that (1) in case default shall be made in the
payment of any instalment of interest on any Security of any series, as and when
the same shall become due and payable, and such defaults shall have continued
for a period of 30 days, or (2) in case default shall be made in the payment of
the principal of (and premium, if any, on) any Security of any series on its
Maturity and such default shall have continued for a period of five business
days--then, upon demand of the Trustee, the Company will pay to the Trustee, for
the benefit of the Holders of such Security of such series, the whole amount
that then shall have become due and payable on all such Securities for principal
(and premium, if any) or interest, or both, as the case may be, with interest
upon the overdue principal and (to the extent that payment of such interest is
enforceable under applicable law) upon overdue instalments of interest at the
rate borne by the Securities during the period of such default; and, in addition
thereto, such further amount as shall be sufficient to cover reasonable
compensation to the Trustee, its agents, attorneys and counsel, and all other
expenses and liabilities incurred, and all advances made, by the Trustee except
as a result of its negligence or bad faith.
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 5.4 TRUSTEE MAY FILE PROOFS OF CLAIM. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities or
the property of the Company or
37
of such other obligor or their creditors, the Trustee, irrespective of whether
the principal of the Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee
shall have made any demand on the Company for the payment of overdue principal
or interest, shall be entitled and empowered, by intervention in such proceeding
or otherwise,
(i) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and unpaid in respect of the
Securities and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Holders allowed in such judicial
proceeding and
(ii) 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 advance of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 6.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
Section 5.5 TRUSTEE MAY ENFORCE 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 related 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 5.6 APPLICATION OF MONEY COLLECTED. Any money collected by
the Trustee pursuant to this Article shall be applied in the following order, at
the date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal (or premium, if any) or interest, upon
presentation of the
38
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 6.7;
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any, on) and interest on the Securities in respect
of which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts due and
payable on such Securities for principal (and premium, if any) and interest,
respectively; and
THIRD: To the payment of the remainder, if any, to the Company, its
successors or assigns or to whosoever may be lawfully entitled to receive the
same, or as a court of competent jurisdiction may direct.
Section 5.7 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 shall have 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 proceedings of such Event of Default in its own name as
Trustee hereunder;
(3) such Holder or Holders shall have offered to the Trustee
reasonable indemnity as it may require 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 shall have failed to institute any such
proceeding;
(5) no direction inconsistent with such written request shall
have been given to the Trustee pursuant to Section 5.12 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 Holders shall have
been given any right in any manner whatever by virtue of, or by availing of, any
provision
39
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 and common benefit of
all of such Holders.
Section 5.8 UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST. Notwithstanding any other provision in this Indenture,
the Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if any, on)
and (subject to Section 3.7) interest on such Security on the Stated Maturity or
Maturities expressed in such Security (or, in the case of redemption or
repayment at the option of the Holder, on the Redemption Date or Repayment Date,
as the case may be) and to institute suit for the enforcement of any such
payment, and such rights shall not be impaired without the consent of such
Holder.
Section 5.9 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 5.10 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 3.6, 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 5.11 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.
40
Section 5.12 CONTROL BY HOLDERS. The Holders of a majority in
aggregate 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, HOWEVER, that
(1) such direction shall not be in conflict with any rule of law
or with this Indenture,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction,
(3) such direction is not unduly prejudicial to the rights of
Holders not taking part in such direction, and
(4) such direction would not involve the Trustee in personal
liability, as the Trustee, upon being advised by counsel, shall reasonably
determine.
Section 5.13 WAIVER OF PAST DEFAULTS. The Holders of not less than
a majority in aggregate 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
(1) in the payment of the principal of (or premium, if any, on)
or interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which under
Article 9 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, and the Company, the Trustee and Holders shall be
restored to their former positions and rights hereunder, respectively; but no
such waiver shall extend to any subsequent or other default or impair any right
consequent thereon.
Section 5.14 UNDERTAKING FOR COSTS. All parties to this Indenture
agree, and Holder of any Security by his acceptance thereof shall be deemed to
have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken, suffered or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to pay the costs of
such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the
41
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 10% 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, on)
or 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).
Section 5.15 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 insist upon, or 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 6
THE TRUSTEE
Section 6.1 CERTAIN DUTIES AND RESPONSIBILITIES. (a) Except
during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, 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.
(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
42
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 wilful 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 not less than a majority in principal
amount of the Outstanding Securities of any series, determined as provided
in Section 5.12, relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred upon the Trustee, under this Indenture with respect to
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 there shall be reasonable
grounds for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of
this Section.
Section 6.2 NOTICE OF DEFAULTS. Within 90 days after the
occurrence of any default hereunder with respect to the Securities of any
series, the Trustee shall transmit by mail to all Holders of Securities of such
series, as their names and addresses appear in the Security Register, unless
such default hereunder known to the Trustee, unless such default shall have be
cured or waived; PROVIDED, HOWEVER, that, except in the case of a default in the
payment of the principal of (or premium, if any, on) or interest on any Security
of such series or in the payment of any sinking fund instalment 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 and/or Responsible Officers of the
43
Trustee in good faith determine 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 5.1(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 (not including periods
of grace, if any) with to Securities of such series.
Section 6.3 CERTAIN RIGHTS OF TRUSTEE. Subject to the provisions
of Section 6.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness, approval or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice
of such counsel or any Opinion 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 and in accordance therewith;
(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction;
(f) except during the continuance of an Event of Default, the
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or
44
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
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys 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.
Section 6.4 TRUSTEE NOT RESPONSIBLE FOR RECITALS IN INDENTURE OR IN
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 the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities, except that the Trustee represents that it is
duly authorized to execute and deliver this Indenture, authenticate the
Securities and perform its obligations hereunder and that the statements made by
it in a Statement of Eligibility on Form T-1 supplied to the Company are true
and accurate, subject to the qualifications set forth therein. The Trustee
shall not be accountable for the use or application by the Company of Securities
or the proceeds thereof.
Section 6.5 MAY HOLD SECURITIES. The Trustee, 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 pledgee of Securities and, subject
to Sections 6.8 and 6.13, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Paying Agent, Security Registrar or
such other agent.
Section 6.6 MONEY HELD IN TRUST. Subject to the provisions of
Section 4.4, all moneys received by the Trustee shall, until used or applied as
herein provided, be held in trust for the purposes for which they were received,
but need not be segregated from other funds except to the extent required by
law. The Trustee shall pay such interest on any moneys received by it hereunder
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 moneys
shall be paid from time to time upon the receipt of a Company Order with respect
thereto.
Section 6.7 COMPENSATION AND REIMBURSEMENT. The Company covenants
and agrees to pay to the Trustee from time to time, and the Trustee shall be
entitled to, reasonable compensation for all services rendered by it hereunder
(which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust), and, except as otherwise
expressly provided, the Company will pay or reimburse the Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or made
by the Trustee in accordance with any of the provisions of this Indenture
(including the reasonable compensation and the
45
expenses and disbursements of its agents, attorneys and counsel and of all
persons not regularly in its employ) except any such expense, disbursement or
advance as may arise from its negligence or bad faith. The Company also
covenants to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on the part
of the Trustee, arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses of defending
itself any claim or liability in connection with the exercise or performance of
any of its powers or duties hereunder.
Section 6.8 DISQUALIFICATION; CONFLICTING INTEREST. (a) If the
Trustee has or shall acquire any conflicting interest, as defined in this
Section, with respect to the Securities of any series:
(i) then, within 90 days after ascertaining that it has such
conflicting interest, and if the Event of Default to which such conflicting
interest relates has not been cured or duly waived or otherwise eliminated
before the end of such 90-day period, the Trustee shall either eliminate
such conflicting interest or, except as otherwise provided below in this
Section, resign, and the Company shall take prompt steps to have a
successor appointed in the manner provided in Section 6.10;
(ii) in the event that the Trustee shall fail to comply with
the provisions of clause (i) of this Subsection, the Trustee shall, within
10 days after the expiration of such 90-by period, transmit notice of such
failure to the Holders of the Securities of the applicable series in the
manner and to the extent provided in Section 7.3(c); and
(iii) subject to the provisions of Section 5.14, unless the
Trustee's duty to resign is stayed as provided below in this Section, any
Holders of the Securities of the applicable series who has been a bona fide
Holder of such Securities 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, and the appointment of a
successor, if the Trustee fails, after written request thereof by such
Holder to comply with the provisions of clause (i) of this Subsection.
(b) For the purposes of this Section, a Trustee shall be
deemed to have a conflicting interest if an Event of Default exists with respect
to the Securities of the applicable series and:
(1) the Trustee is trustee under this Indenture with
respect to the Outstanding Securities of any series other than the
applicable series or is trustee under another indenture under which any
other securities, or certificates of interest or participation in any other
securities, of the
46
Company are outstanding, unless such other indenture is a collateral trust
indenture under which the only collateral consists of Securities issued
under this Indenture; PROVIDED, HOWEVER, that there shall be excluded from
the operation of this paragraph this Indenture with respect to the
Securities of any series other than the applicable series and any indenture
or indentures under which other securities, or certificates of interest or
participation in other securities, of the Company are outstanding, if
(i) this Indenture and such other indenture or
indentures are wholly unsecured and ranks equally, and such other
indenture or indentures are hereafter qualified under the Trust
Indenture Act of 1939, unless the Commission shall have found and
declared by order pursuant to Section 305(b) or Section 307(c) of the
Trust Indenture Act of 1939 that differences exist between the
provisions of this Indenture with respect to Securities of the
applicable series and one or more other series or the provisions of
such other indenture or indentures which are so likely to involve a
material conflict of interest as to make it in the public interest or
for the protection of investors to disqualify the Trustee from acting
as such under this Indenture with respect to the Securities of the
applicable series and such other series or under such other indenture
or indentures, or
(ii) the Company shall have sustained the burden of
proving, on application to the Commission and after opportunity for
hearing thereon, that trusteeship under this Indenture with respect to
the Securities of the applicable series and such other series or such
other indenture or indentures is not so likely to involve a material
conflict of interest as to make it necessary in the public interest or
for the protection of investors to disqualify the Trustee from acting
as such under this Indenture with respect to the Securities of that
series and such other series or under such other indenture or
indentures;
(2) the Trustee or any of its directors or executive officers is
an underwriter for the Company;
(3) the Trustee directly or indirectly controls or is directly
or indirectly controlled by or is direct or indirect common control with an
underwriter for the Company;
(4) the Trustee or any of its directors or executive officers is
a director, officer, partner, employee, appointee or representative of the
Company, or of an underwriter (other than the Trustee itself) for the
Company who is currently engaged in the business of underwriting, except
that (i) one
47
individual may be a director or an executive officer, or both, of the
Trustee and a director or an executive officer, or both, of the Company,
but may not be at the same time an executive officer of both the Trustee
and the Company; (ii) if and so long as the number of directors of the
Trustee in office is more than nine, one additional individual may be a
director or an executive officer, or both, of the Trustee and a director of
the Company; and (iii) the Trustee may be designated by the Company or by
any underwriter for the Company to act in the capacity of transfer agent,
registrar, custodian, paying agent, fiscal agent, escrow agent or
depositary, or in any other similar capacity, or, subject to the provisions
of paragraph (1) of the Subsection, to act as trustee, whether under an
indenture or otherwise;
(5) 10% or more of the voting securities of the Trustee is
beneficially owned either by the Company or by any director, partner or
executive officer thereof, or 20% or more of such voting securities is
beneficially owned, collectively, by any two or more of such persons; or
10% or more of the voting securities of the Trustee is beneficially owned
either by an underwriter for the Company or by any director, partner or
executive officer thereof, or is beneficially owned, collectively, by any
two or more such persons;
(6) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as hereinafter
in this Subsection defined), (i) 5% or more of the voting securities, or
10% or more of any other class of security, of the Company not including
the Securities issued under this Indenture and securities issued under any
other indenture under which the Trustee is also trustee, or (ii) 10% or
more of any class of security of an underwriter for the Company;
(7) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as hereinafter
in this Subsection defined), 5% or more of the voting securities of any
person who, to the knowledge of the Trustee, owns 10% or more of the voting
securities of, or controls directly or indirectly or is under direct or
indirect common control with, the Company;
(8) the Trustee is the beneficial owner of, or holds as
collateral for an obligation which is in default (as hereinafter in this
Subsection defined), 10% or more of any class of security of any person
who, to the knowledge of the Trustee, owns 50% or more of the voting
securities of the Company;
(9) the Trustee owns, on the date of an Event of Default with
respect to the Securities of the applicable series or any anniversary of
48
such Event of Default while such Event of Default remains outstanding, in
the capacity of executor, administrator, testamentary or inter vivos
trustee, guardian, committee or conservator, or in any other similar
capacity, an aggregate of 25% or more of the voting securities, or of any
class of security, of any person, the beneficial ownership of a specified
percentage of which would have constituted a conflicting interest under
paragraph (6), (7) or (8) of this Subsection. As to any such securities of
which the Trustee acquired ownership through becoming executor,
administrator or testamentary trustee of an estate which included them, the
provisions of the preceding sentence shall not apply, for a period of two
years from the date of such acquisition, to the extent that such securities
included in such estate do not exceed 25% of such voting securities or 25%
of any such class security. Promptly after the dates of any such Event of
Default with respect to the Securities of the applicable series and
annually in each succeeding year that such Event of Default remains
outstanding, the Trustee shall make a check of its holdings of such
securities in any the above-mentioned capacities as of such dates. If the
Company fails to make payment in full of the principal of (or premium, if
any, on) or interest on any of the Securities when and as the same becomes
due and payable, and such failure continues for 30 days thereafter, the
Trustee shall make a prompt check of its holding of such securities in any
of the above-mentioned capacities as of the date of the expiration of such
30-day period, and after such date, notwithstanding the foregoing
provisions of this paragraph, all such securities so held by the Trustee,
with sole or joint control over such securities vested in it, shall, but
only so long as such failure shall continue, be considered as though
beneficially owned by the Trustee for the purposes of paragraphs (6), (7)
and (8) of this Subsection; or
(10) except under the circumstances described in paragraphs (1),
(3), (4), (5) or (6) of Section 6.13(b), the Trustee shall become a
creditor of the Company.
For the purposes of paragraph (1) of this Subsection, and of Section
5.12 and 5.13, the term "series of securities" and "series" means a series,
class or group of securities issuable under an indenture pursuant to whose terms
holders of one such series may vote to direct the indenture trustee, or
otherwise take action pursuant to a vote of such holders, separately from
holders of another such series; PROVIDED, HOWEVER, that "series of securities"
or "series" shall not include any series of securities issuable under an
indenture if all such series rank equally and are wholly unsecured.
The specification of percentages in paragraphs (5) to (9), inclusive,
of this Subsection shall not be construed as indicating that the ownership of
such percentages of the securities of a person is or is not necessary or
sufficient to
49
constitute direct or indirect control for the purposes of paragraph (3) or (7)
of this Subsection.
For the purposes of paragraphs (6), (7), (8) and (9) of this
Subsection only, (i) the terms "security" and "securities" shall include only
such securities as are generally known as corporate securities, but shall not
include any note or other evidence of indebtedness issued to evidence an
obligation to repay moneys lent to a person by one or more banks, trust
companies or banking firms, or any certificate of interest or participation in
any such note or evidence of indebtedness; (ii) except as expressly provided in
paragraph (9) of this Subsection, an obligation shall be deemed to be "in
default" when a default in payment of principal shall have continued for 30 days
or more and shall not have been cured; (iii) the Trustee shall not be deemed to
be the owner or holder of (A) any security which it holds as collateral
security, as trustee or otherwise, for an obligation which is not in default as
defined in clause (ii) above, or (B) any security which it holds as collateral
security under this Indenture, irrespective of any default hereunder, or (C) any
security which it holds as agent for collection, or as custodian, escrow agent
or depositary, or in any similar representative capacity.
Except as provided in the next preceding paragraph, the word
"security" or "securities" as used in this Indenture shall mean any note, stock,
treasury stock, bond, debenture, evidence of indebtedness, certificate of
interest or participation in any profit-sharing agreement, collateral-trust
certificate, pre-organization certificate or subscription, transferable share,
investment contract, voting-trust certificate, certificate of deposit for a
security, fractional undivided interest in oil, gas or other mineral rights, or,
in general, any interest or instrument commonly known as a "security", or any
certificate of interest or participation in, temporary or interim certificate
for, receipt for, guarantee of, or warrant or right to subscribe to or purchase,
any of the foregoing.
(c) For the purposes of this Section:
(1) The term "underwriter", when used with reference to the
Company, shall mean every person who, within one year prior to the time as
of which the determination is made, has purchased from the Company with a
view to, or has offered or sold for the Company in connection with, the
distribution of any security of the Company outstanding at such time, or
has participated or has had a direct or indirect participation in any such
undertaking, or has participated or has had a participation in the direct
or indirect underwriting of any such undertaking, but such term shall not
include a person whose interest was limited to a commission from an
underwriter or dealer not in excess of the usual and customary
distributors' or sellers' commission.
50
(2) The term "director" shall mean any director of a
corporation or any individual performing similar functions with respect to
any organization, whether incorporated or unincorporated.
(3) The term "person" shall mean an individual, a
corporation, a partnership, an association, a joint-stock company, a trust,
an unincorporated organization or a government or political subdivision
thereof. As used in this paragraph, the term "trust" shall include only a
trust where the interest or interests of the beneficiary or beneficiaries
are evidenced by a security.
(4) The term "voting security" shall mean any security
presently entitling the owner or holder thereof to vote in the direction or
management of the affairs of a person, or any security issued under or
pursuant to any trust, agreement or arrangement whereby a trustee or
trustees or agent or agents for the owner or holder of such security are
presently entitled to vote in the direction or management of the affairs of
a person.
(5) The term "Company" shall mean any obligor upon the
Securities.
(6) The term "Event of Default" shall mean an Event of
Default to Section 5.1, but exclusive of any period of grace or requirement
of notice.
(7) The term "executive officer" shall mean the president,
every vice president, every trust officer, the cashier, the secretary and
the treasurer of a corporation, and any individual customarily performing
similar functions with respect to any organization whether incorporated or
unincorporated, but shall not include the chairman of the board of
directors.
(d) The percentages of voting securities and other securities
specified in this Section shall be calculated in accordance with the following
provisions:
(1) A specified percentage of the voting securities of the
Trustee, the Company or any other person referred to in this Section (each
of whom is referred to as a "person" in this paragraph) means such amount
of the outstanding voting securities of such person as entitles the holder
or holders thereof to cast such specified percentage of the aggregate votes
which the holders of all the outstanding voting securities of such person
are entitled to cast in the direction or management of the affairs of such
person.
51
(2) A specified percentage of a class of securities of a
person means such percentage of the aggregate amount of securities of the
class outstanding.
(3) The term "amount", when used in regard to securities,
means the principal amount if relating to evidences of indebtedness, the
number of shares if relating to capital shares and the number of units if
relating to any other kind of security.
(4) The term "outstanding" means issued and not held by or
for the account of the issuer. The following securities shall not be
deemed outstanding within the meaning of this definition:
(i) securities of an issuer held in a sinking
fund relating to securities of the issuer of the same class;
(ii) securities of an issuer held in a sinking
fund relating to another class of securities of the issuer, if the
obligation evidenced by such other class of securities is not in
default as to principal or interest or otherwise;
(iii) securities pledged by the issuer thereof as
security for an obligation of the issuer not in default as to
principal or interest or otherwise; and
(iv) securities held in escrow if placed in escrow
by the issuer thereof;
PROVIDED, HOWEVER, that any voting securities of an issuer shall be deemed
outstanding if any person other than the issuer is entitled to exercise the
voting rights thereof.
(5) A security shall be deemed to be of the same class as
another security if both securities confer upon the holder or holders
thereof substantially the same rights and privileges; PROVIDED, HOWEVER,
that, in the case of secured evidences of indebtedness, all of which are
issued under a single indenture, differences in the interest rates or
maturity dates of various series thereof shall not be deemed sufficient to
constitute such series different classes; and PROVIDED, FURTHER, that, in
the case of unsecured evidences or indebtedness, differences in the
interest rates or maturity dates thereof shall not be deemed sufficient to
constitute them securities of different classes, whether or not they are
issued under single indenture.
Section 6.9 CORPORATE TRUSTEE REQUIRED; ELIGIBILITY. There shall
at all times be a Trustee hereunder which shall be a corporation organized and
doing
52
business under the laws of the United States of America, any State there or the
District of Columbia or a corporation or other person permitted to act as
Trustee by the Commission, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least $5,000,000, and
subject to supervision or examination by Federal, State or District of Columbia
authority. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. No
obligor upon the Securities or Person directly or indirectly controlling by, or
under common control with such obligor shall serve as Trustee hereunder. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereafter specified in Section 6.10.
Section 6.10 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 6.11.
(b) 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
and by mailing notice thereof to the Holders of Securities of such one or more
series, as their names and addresses appear in the Security Register. If the
instrument of acceptance by a successor Trustee required by Section 6.11 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 one or more series or any Holder who has been a bona fide
holder of a Security or Securities of such one or more series for at least six
months may, subject to the provisions of Section 5.14, on behalf of himself and
all others similarly situated, petition any such court for the appointment of a
successor Trustee. Such court may thereupon, after such notice, if any, as it
may deem proper and prescribe, appoint a successor Trustee.
(c) The Trustee may be removed and a successor Trustee appointed
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 so removed, to the successor Trustee and to the
Company.
(d) If at any time:
53
(1) the Trustee shall fail to comply with Section 6.8(a)
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
(2) the Trustee shall cease to be eligible under Section
6.9 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 and appoint a successor Trustee with respect to all Securities, one copy
of which Board Resolution shall be delivered to the Trustee so removed and one
copy to the successor Trustee, or (ii) subject to Section 5.14, any Holder who
has 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. Such court may thereupon,
after such notice, if any, as it may deem proper and prescribe, remove the
Trustee and appoint a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of Trustee for any cause,
with respect to the Securities of 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 6.11. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series 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
6.11, 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 6.11, 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,
54
petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
Section 6.11 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. (a) In case
of the appointment hereunder of a successor Trustee with respect to all
Securities, every such successor Trustee 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
successor Trustee, such retiring Trustee shall, upon payment of its charges
pursuant to Section 6.7, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall 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 and execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts and
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the 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.
55
(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 paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
(e) Upon acceptance of appointment by a successor Trustee as
provided in this Section, the Company shall mail notice of the succession of
such Trustee hereunder to the Holders of the Securities of one or more or all
series, as the case may be, to which the appointment of such successor Trustee
relates as their names and addresses appear on the Security Register. If the
Company fails to mail such notice within 10 days after acceptance of appointment
by the successor Trustee, the successor Trustee shall cause such notice to be
mailed at the expense of the Company.
Section 6.12 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS. Any corporation into which the Trustee may be merged or converted or
with which it may be or 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 authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities;
and in case at that time any of the Securities shall not have been
authenticated, any successor Trustee may authenticate such Securities either in
the name of any predecessor hereunder or in the name of the successor Trustee;
and in all such cases such certificates shall have the full force which it is
anywhere in the Securities or in this Indenture provided that the certificate of
the Trustee shall have; PROVIDED, HOWEVER, that the right to adopt the
certificate of authentication of any predecessor Trustee or to authenticate
Securities in the name of any predecessor Trustee shall apply only to its
successor or successors by merger, conversion or consolidation.
Section 6.13 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
(a) Subject to Subsection (b) of this Section, if the Trustee shall be or shall
become a creditor, directly or indirectly, secured or unsecured, of the Company
within three months prior to a default, as defined in Subsection (c) of this
Section, or subsequent to such a default, then, unless and until such default
shall be cured, the Trustee shall
56
set apart and hold in a special account for the benefit of the Trustee
individually, the Holders and the holders of other indenture securities, as
defined in Subsection (c) of this Section:
(1) an amount equal to any and all reductions in the amount
due and owing upon any such creditor in respect of principal or interest,
effected after the beginning of such three months' period and valid as
against the Company and its other creditors, except any such reduction
resulting from the receipt or disposition of any property described in
paragraph (2) of this Subsection, or from the exercise of any right of
set-off which the Trustee could have exercised if a petition in bankruptcy
had been filed by or against the Company upon the date of such default; and
(2) all property received by the Trustee in respect of any
claims as such creditor, either as security therefor, or in satisfaction or
composition thereof, or otherwise, after the beginning of such three
months' period, or an amount equal to the proceeds of any such property, if
disposed of, SUBJECT, HOWEVER, to the rights, if any, of the Company and
its other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee:
(A) to retain for its account (i) payments made on account of
any such claim by any Person (other than the Company) who is liable thereon, and
(ii) the proceeds of the bona fide sale of any such claim by the Trustee to a
third Person, and (iii) distributions made in cash, securities or other property
in respect of claims filed against the Company in bankruptcy or receivership or
in proceedings for reorganization pursuant to the National Bankruptcy Act or any
other similar applicable Federal or State law;
(B) to realize, for its own account, upon any property held by
it as security for any such claim, if such property was so held prior to the
beginning of such three months' period;
(C) to realize, for its own account, but only to the extent of
the claim hereinafter mentioned, upon any property held by it as security for
any such claim, if such claim was created after the beginning of such three
months' period and such property was received as security therefor
simultaneously with the creation thereof, and if the Trustee shall sustain the
burden of proving that at the time such property was so received the Trustee had
no reasonable cause to believe that a default, as defined in Subsection (c) of
this Section, would occur within three months; or
57
(D) to receive payment on any claim referred to in paragraph (B)
or (C), against the release of any property held as security for such claim as
provided in paragraph (B) or (C), as the case may be, to the extent of the fair
value of such property.
For the purposes of paragraphs (B), (C) and (D), property substituted
after the beginning of such three months' period for property held as security
at the time of such substitution shall, to the extent of the fair value of the
property released, have the same status as the property released, and, to the
extent that any claim referred to in any of such paragraphs is created in
renewal of or in substitution for or for the purpose of repaying or refunding
any pre-existing claim of the Trustee as such creditor, such claim shall have
the same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and property
held in such special account the proceeds thereof shall be apportioned among the
Trustee, the Holders and the holders of other indenture securities in such
manner that the Trustee, the Holders and the holders of other indenture
securities realize, as a result of payments from such special account and
payments of dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the National
Bankruptcy Act or any other similar applicable Federal or State law, the same
percentage of their reserve claims, figured before crediting to the claim of the
Trustee anything on account of the receipt by it from the Company of the funds
and property in such special account, and before crediting to the respective
claims of the Trustee, the Holders and the holders of other indenture securities
dividends on claims filed against the Company in bankruptcy or receivership or
in proceedings for reorganization pursuant to the National Bankruptcy Act or any
other similar applicable Federal or State law, but after crediting thereon
receipts on account of the indebtedness represented by their respective claims
from all sources other than from such dividends and from the funds and property
so held in such special account. As used in this paragraph, with respect to any
claim, the term "dividends" shall include any distribution with respect to such
claim, in bankruptcy or receivership or proceedings for reorganization pursuant
to the National Bankruptcy Act or any other similar applicable Federal or State
law, whether such distribution is made in cash, securities or other property,
but shall not include any such distribution with respect to the secured portion,
if any, of such claim. The court in which such bankruptcy, receivership or
proceedings for reorganization is pending shall have jurisdiction (i) to
apportion among the Trustee, the Holders and the holders of other indenture
securities, in accordance with the provisions of this paragraph, the funds and
property held in such special accounts and proceeds thereof, or (ii) in lieu of
such apportionment, in whole or in part, to give to the provisions of this
paragraph due consideration in determining the fairness of the distributions to
be made to the Trustee, the Holders and the holders of other indenture
securities with respect to their respective claims, in which event it shall not
be necessary to liquidate or to appraise the value of any securities or other
property held in such special account or as
58
security for any such claim, or to make a specific allocation of such
distributions as between the secured and unsecured portions of such claims, or
otherwise to apply the provisions of this paragraph as a mathematical formula.
Any Trustee which has resigned or been removed after the beginning of
such three months' period shall be subject to the provisions of this Subsection
as though such resignation or removal had not occurred. If any Trustee has
resigned or been removed prior to the beginning of such three months' period, it
shall be subject to the provisions of this Subsection if and only if the
following conditions exist:
(i) the receipt of property or reduction of claim which
would have given rise to the obligation to account, if such Trustee had
continued as Trustee, occurred after the beginning of such three months' period;
and
(ii) such receipt of property or reduction of claim occurred
within three months after such resignation or removal.
(b) There shall be excluded from the operation of Subsection (a)
of this Section a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under
any indenture, or any security or securities having a maturity of one year
or more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy
court of competent jurisdiction or by this Indenture, for the purpose of
preserving any property which shall at any time be subject to the lien of
this Indenture or of discharging tax liens or other prior liens or
encumbrances thereon, if notice of such advances and of the circumstances
surrounding the making thereof is given to the Holders at the time and in
the manner provided in Section 7.3 of this Indenture;
(3) disbursements made in the ordinary course of business
in the capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depositary, or other similar
capacity;
(4) an indebtedness created as a result of services
rendered or premises rented; or an indebtedness created as a result of
goods or securities sold in a cash transaction, as defined in Subsection
(c) of this Section;
(5) the ownership of stock or of other securities of a
corporation organized under the provisions of Section 25(a) of the Federal
59
Reserve Act, as amended, which is directly or indirectly a creditor of the
Company; or
(6) the acquisition, ownership, acceptance or negotiation
of any drafts, bills of exchange, acceptances or obligations which fall
within the classification of self-liquidating paper, as defined in
Subsection (c) of this Section.
(c) For the purposes of this Section only:
(1) the term "default" shall mean any failure to make
payment in full of the principal of or interest on any of the Securities or
upon the other indenture securities when and as such principal or interest
becomes due and payable;
(2) the term "other indenture securities" shall mean
securities upon which the Company is an obligor (as defined in the Trust
Indenture Act of 1939) outstanding under any other indenture (i) under
which the Trustee is also trustee, (ii) which contains provisions
substantially similar to the provisions of Subsection (a) of this Section,
and (iii) under which a default exists at the time of the apportionment of
the funds and property held in such special account;
(3) the term "cash transaction" shall mean any transaction
in which full payment for goods or securities sold is made within seven
days after delivery of the goods or securities in currency or in checks or
other orders drawn upon banks or bankers and payable upon demand;
(4) the term "self-liquidating paper" shall mean any draft,
xxxx of exchange, acceptance or obligation which is made, drawn, negotiated
or incurred by the Company for the purpose of financing the purchase
processing, manufacturing shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to,
possession of, or, a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security is
received by the Trustee simultaneously with the creation of the creditor
relationship with the Company arising from the making, drawing, negotiating
or incurring of the draft, xxxx of exchange, acceptance or obligation; and
(5) the term "Company" shall mean any obligor upon the
Securities.
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ARTICLE 7
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.1 COMPANY TO FURNISH TRUSTEE INFORMATION AS TO NAMES AND
ADDRESSES OF HOLDERS. The Company covenants and agrees that it will furnish or
cause to be furnished to the Trustee:
(a) Semi-annually, not later than November 1 and May 1 in each
year, commencing November 1, 1992, a list, in such form as the Trustee may
reasonably require, of the name and addresses of the Holders as of a date not
more than 15 days prior to the time such list is furnished 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 the 15 days prior to the time
such list is furnished;
PROVIDED, HOWEVER, that so long as the Trustee is the Security Registrar, no
such list shall be required to be furnished.
Section 7.2 PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(a) The Trust shall preserve, in as current a form as is reasonably practicable,
all information as to the names and addresses of the Holders of Securities (1)
contained in the most recent list furnished to it as provided in Section 7.1 and
(2) received by it in the capacity of Paying Agent or Security Registrar (if so
acting) hereunder.
The Trustee may destroy any list furnished to it as provided in
Section 7.1 upon receipt of a new list so furnished.
(b) In case three or more Holders of Securities of any series
(hereinafter called "applicants") apply in writing to the Trustee, and furnish
to the Trustee reasonable proof that each such applicant has owned a Security of
such series for a period of at least six months preceding the date of such
application, and such application states that the applicants desire to
communicate with other Holders of Securities of the same series or of all
series, as the case may be, with respect to their rights under this Indenture or
under the Securities of such series or of all series, as the case may be, and is
accompanied by a copy of the form of proxy or other communication which such
applicants propose to transmit, then the Trustee shall, within five business
days after the receipt of such application, at its election, either
(1) afford such applicants access to the information
preserved at the time by the Trustee in accordance with the provisions of
Subsection (a) of this Section 7.2, or
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(2) inform such applicants as to the approximate number of
Holders of Securities of such series or of all series, as the case may be,
whose names and addresses appear in the information preserved at the time
by the Trustee in accordance with the provisions of Subsection (a) of this
Section 7.2, and as to the approximate cost of mailing to such Holders the
form of proxy or other communication, if any, specified in such
application.
If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder of Securities of such series or of all series,
as the case may be, whose name and address appear in the information preserved
at the time by the Trustee in accordance with the provisions of Subsection (a)
of this Section 7.2, a copy of the form of proxy or other communication which is
specified in such request, with reasonable promptness after a tender to the
Trustee of the material to be mailed and of payment, or provision for the
payment, of the reasonable expenses of mailing, unless within five days after
such tender the Trustee shall mail to such applicants and file with the
Commission, together with a copy of the material to be mailed, a written
statement to the effect that, in the opinion of the Trustee, such mailing would
be contrary to the best interests of the Holders of Securities of such series or
of all series, as the case may be, or would be in violation of applicable law.
Such written statement shall specify the basis of such opinion. If said
Commission, after opportunity for a hearing upon the objections specified in the
written statement so filed, shall enter an order refusing to sustain any of such
objections or if, after the entry of an order sustaining one or more of such
objections, said Commission shall find, after notice and opportunity for
hearing, that all the objections so sustained have been met and shall enter an
order so declaring, the Trustee shall mail copies of such material to all such
Holders with reasonable promptness after the entry of such order and the renewal
of such tender; otherwise the Trustee shall be relieved of any obligation or
duty to such applicants respecting their application.
(c) Each and 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 Security Registrar nor any Paying Agent shall be
held accountable by reason of the disclosure of any such information as to the
names and addresses of the Holders in accordance with the provisions of
Subsection (b) of this Section 7.2, regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason by mailing any material pursuant to a request made under said
Subsection (b).
Section 7.3 REPORTS BY TRUSTEE. (a) On or before November 1, 1992,
and on or before November 1 in every year thereafter, so long as required by the
Trust Indenture Act of 1939, as then amended, and so long as any Securities are
Outstanding hereunder, the Trustee shall transmit to the Holders as hereinafter
in this Section 7.3 provided and to the Company a brief report, dated as of the
preceding
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April 1, with respect to any of the following events which may have occurred
within the 12 months prior to the date of such report (but if no such event has
occurred within such period no report need be transmitted):
(1) any change to its eligibility under Section 6.9, and
its qualification under Section 6.8;
(2) the creation of or any material change to a
relationship specified in paragraphs (1) through (10) of Section 6.8;
(3) the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the making
thereof) made by the Trustee (as such) which remain unpaid on the date of
such report, and for the reimbursement of which it claims or may claim a
lien or charge, prior to that of the Securities, on any property or funds
held or collected by it as Trustee, except the Trustee shall not be
required (but may elect) to report such advances if such advances so
remaining unpaid aggregate not more than one-half of one per cent of the
aggregate principal amount of the Outstanding Securities on the date of
such report;
(4) the amount, interest rate, and maturity date of all
other indebtedness owing by the Company (or by any other obligor on the
Securities) to the Trustee in its individual capacity, on the date of such
report, with a brief description of any property held as collateral
security therefor, except an indebtedness based upon a creditor
relationship arising in any manner described in paragraph (2), (3), (4) or
(6) of Subsection (b) of Section 6.13;
(5) any change to the property and funds, if any,
physically in the possession of the Trustee (as such) on the date of such
report;
(6) any additional issue of Securities which it has not
previously reported; and
(7) any action taken by the Trustee in the performance of
its duties under this Indenture which it has not previously reported and
which in its opinion materially affects the Securities, except action in
respect of a default, notice of which has been or is to be withheld by it
in accordance with the provisions of Section 6.2.
(b) The Trustee shall transmit to the Holders, as hereinafter
provided, and to the Company a brief report with respect to the character and
amount of any advances (and if the Trustee elects so to state, the circumstances
surrounding the making thereof) made by the Trustee (as such) since the date of
the last report
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transmitted pursuant to the provisions of Subsection (a) of this Section 7.3 (or
if no such report has yet been so transmitted, since the date of execution of
this Indenture for the reimbursement of which it claims or may claim a lien or
charge prior to that of the Securities on property or funds held or collected by
it as Trustee and which it has not previously reported pursuant to this
Subsection, except that the Trustee shall not be required (but may elect) to
report such advances if such advances remaining unpaid at any time aggregate ten
per cent or less of the aggregate principal amount of the Outstanding Securities
at such time, such report to be transmitted within 90 days after such time.
(c) Reports pursuant to this Section 7.3 shall be transmitted by
mail to all Holders, as the names and addresses of such Holders appear upon the
Security Register.
(d) 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 of the Securities are listed and also with the Commission. The
Company agrees to notify the Trustee when and as any of the Securities become
listed on any stock exchange.
Section 7.4 REPORTS BY COMPANY. (a) The Company covenants and
agrees to file with the Trustee, within 15 days after the Company is required to
file the same with the Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as said Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file with said Commission
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934;
or, if the Company is not required to file information, documents or reports
pursuant to either of such Sections, then to file with the Trustee and said
Commission, in accordance with rules and regulations prescribed from time to
time by said Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of the
Securities Exchange Act of 1934 in respect of a security listed and registered
on a national securities exchange as may be prescribed from time to time in such
rules and regulations.
(b) The Company covenants and agrees to file with the Trustee
and the Commission, in accordance with the rules and regulations prescribed from
time to time by said Commission, such additional information, documents, and
reports with respect to compliance by the Company with the conditions and
covenants provided for in this Indenture as may be required from time to time by
such rules and regulations.
(c) The Company covenants and agrees to transmit to the Holders
within 30 days after the filing thereof with the Trustee, in the manner and to
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the extent provided in Subsection (c) of Section 7.3, such summaries of any
information, documents and reports required to be filed by the Company pursuant
to Subsections (a) and (b) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
(d) The Company covenants and agrees to furnish to the Trustee,
on or within 15 days before November 1, 1992, and on or within 15 days before
November 1 in every year thereafter, a brief certificate from the chief
executive officer, the chief financial officer or the chief accounting officer
as to his or her knowledge of the Company's compliance with all conditions and
covenants under this Indenture. For purposes of this Subsection, such
compliance shall be determined without regard to any period of grace or
requirement of notice provided under this Indenture.
ARTICLE 8
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 8.1 CONSOLIDATIONS AND MERGERS OF COMPANY PERMITTED SUBJECT TO
CERTAIN CONDITIONS. The Company shall not consolidate with or merge into any
other Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, and the Company shall not permit any
Person to consolidate with or merge into the Company or convey, transfer or
lease its properties and assets substantially as an entirety to the Company,
unless:
(a) in case the Company shall consolidate with or merge into
another Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, the Person formed by such
consolidation or into which the Company is merged or the Person which acquires
by conveyance or transfer, or which leases, the properties and assets of the
Company substantially as an entirety shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form reasonably
satisfactory to the Trustee, the due and punctual payment of the principal of
(and premium, if any) and interest on all the Securities and the performance or
observance of every covenant of this Indenture on the part of the Company to be
performed or observed and shall have provided for conversion rights in
accordance with Section 1311;
(b) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time or both,
would become an Event of Default, shall have happened and be continuing; and
(c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger,
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conveyance, transfer or lease and, if a supplemental indenture is required in
connection with such transaction, such supplemental indenture comply with this
Article and that all conditions precedent herein provided for relating to such
transaction have been complied with.
Section 8.2 RIGHTS AND DUTIES OF SUCCESSOR CORPORATION. Upon any
consolidation of the Company with, or merger of the Company into, any other
Person or any conveyance, transfer or lease of the properties and assets of the
Company substantially as an entirety in accordance with Section 8.1, the
successor Person formed by such consolidation or into which the Company is
merged or to which such conveyance, transfer or lease is made shall succeed to,
and be substituted for, and may exercise every right and power of, the Company
under this Indenture with the same effect as if such successor Person has been
named as the Company herein, and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under this
Indenture and the Securities.
ARTICLE 9
SUPPLEMENTAL INDENTURES
Section 9.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS. The
Company, when authorized by a Board Resolution, and the Trustee may from time to
time and at any time enter into an indenture or indentures supplemental hereto
(which shall conform to the provisions of the Trust Indenture Act of 1939 as in
force at the date of the execution thereof) for one or more of the following
purposes:
(1) to evidence the succession of another corporation to the
Company, or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of the Company pursuant
to Article Eight hereof;
(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;
(3) to add any additional Events of Default for the benefit of
the Holders of all or any series of Securities (and if such Events of Default
are to be for the benefit of less than all series of Securities, stating that
such Events of Default are expressly being included solely for the benefit of
such series); PROVIDED, HOWEVER, that in respect of any such additional Events
of Default such supplemental indenture may provide for a particular period of
grace after default (which period may be
66
shorter or longer than that allowed in the case of other defaults) or may
provide for an immediate enforcement upon such default or may limit the remedies
available to the Trustee upon such default or may limit the right of the Holders
of a majority in aggregate principal amount of that or those series of
Securities to which such additional Events of Default apply to waive such
default;
(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 coupon form, registrable or not registrable as to principal, and
to provide for exchangeability of such Securities with Securities issued
hereunder in fully registered form;
(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 Outstanding Security of any series created prior to the
execution of such supplemental indenture which is entitled to the benefit of
such provision;
(6) to secure the Securities;
(7) to establish the form or terms of Securities of any series
as permitted by Sections 2.1 and 3.1;
(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 6.11(b);
(9) to cure any ambiguity, to correct or supplement any
provision herein or in any supplemental indenture which may be defective or
inconsistent with any other provision herein or in any supplemental indenture,
or to make such other provisions with respect to matters or questions arising
under this Indenture, provided such action shall not adversely affect the
interest of the Holders of Securities of any series in any material respect; or
(10) to comply with any requirement of the Commission in
connection with the qualification of the Indenture under the Trust Indenture Act
of 1939.
The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer assignment, mortgage or pledge of any property thereunder.
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Any supplemental indenture authorized by the provisions of this
Section 9.1 may be executed by the Company and the Trustee without the consent
of the Holders of any of the Outstanding Securities, notwithstanding any of the
provisions of Section 9.2.
Section 9.2 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 from time to time and
at any time enter into an indenture or indentures supplemental hereto (which
shall conform to the provisions of the Trust Indenture Act of 1939 as in force
at the date of execution thereof) for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
of any supplemental 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 (i) change the Stated Maturity of the
principal of (or premium, if any, on), or any installment of principal of or
interest on, any Security, or reduce the principal amount thereof or the rate of
interest thereon, or reduce the amount of principal of an Original Issue
Discount Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof 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 or repayment at the option of the Holder, on or after
the Redemption Date or Repayment Date, as the case may be), without the consent
of the Holder of each Outstanding Security so affected, or (ii) reduce the
aforesaid percentage in principal amount of the Outstanding Securities of any
series, the consent of whose Holders is required for any such supplemental
indenture, without the consent of the Holders of all the Outstanding Securities
of such series.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
Upon the request of the Company accompanied by a copy of a Board
Resolution authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee of evidence of the consent of Holders as
aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
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Section 9.3 EXECUTION OF SUPPLEMENTAL INDENTURES. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and (subject to
Section 6.1) 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 9.4 EFFECT OF SUPPLEMENTAL INDENTURES. Upon the execution
of any supplemental indenture pursuant to the provisions of this Article, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith, and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Company and the Holders
shall thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
Section 9.5 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.
ARTICLE 10
PARTICULAR COVENANTS OF THE COMPANY
Section 10.1 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 or cause to be paid the principal of (and premium, if
any, on) and interest on the Securities of that series in accordance with the
terms of the Securities and this Indenture. Each installment of interest on any
Security may at the Company's option be paid by mailing a check for such
interest, payable to or upon the written order of the Person entitled thereto
pursuant to Section 3.7, to the address of such Person as it appears on the
Security Register. At the option of the Company,
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all payments of principal may be paid by official bank check to the registered
Holder of the Security or other person entitled thereto against surrender of
such Security.
Section 10.2 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 as in this Indenture provided 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 notice to the Trustee of the
location, and any change in the location of each such office or agency. In case
the Company shall fail to maintain any such required office or agency or shall
fail to give notice of the location or of any change thereof, presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee. The Company hereby initially appoints the Trustee as its
office or agency for such purpose.
The Company may also from time to time designate one or more other
offices or agencies in any location 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 so such designation
or rescission shall in any manner relieve the Company of its obligations 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 10.3 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
(or premium, if any, on) or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal (or premium, if any) or interest so becoming
due until such sums shall be paid to such Persons or otherwise disposed of as
herein provided. The Company will promptly notify the Trustee of any failure by
the Company to take such action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, on or prior to each due date of the principal of
(or premium, if any, on) or interest on any Securities of that series, deposit
with a Paying Agent a sum sufficient to pay the principal (or premium, if any)
or interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium or interest, and (unless such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of its action
or failure so to act.
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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:
(1) hold all sums held by it for the payment of the principal of
(or premium, if any, on) or interest on Securities of that series (whether such
sums have been paid to it by the Company or by any other obligor on the
Securities) in trust for the benefit of the Persons entitled thereto;
(2) give the Trustee notice of any failure by the Company (or
any other obligor upon the Securities of that series) to make any payment of
principal of (or premium, if any, on) or interest on the Securities of that
series when the same shall be due and payable; and
(3) at any time during the continuance of any Event of Default,
upon the written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such Paying Agent.
Anything in this Section to the contrary notwithstanding, the Company
may, at any time, for the purpose of obtaining satisfaction and discharge of
this Indenture, or for any other reason, 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.
Section 10.4 STATEMENT BY OFFICERS AS TO DEFAULT. The Company will
deliver to the Trustee, on or before a date not more than 120 days after the end
of each fiscal year of the Company ending after the date hereof, an Officers'
Certificate stating, as to each officer signing such certificate, whether or not
to the best of his knowledge the Company is in default in the performance and
observance of any of the terms, provisions and conditions hereof, and, if the
Company shall be in default, specifying all such defaults and the nature thereof
of which he may have knowledge.
Section 10.5 ADDITIONAL AMOUNTS. The Company hereby agrees that any
amounts to be paid by the Company with respect to each Security shall be paid
without deduction or withholding for any and all present and future taxes,
levies, imposts or other governmental charges whatsoever imposed, assessed,
levied or collected by or for the account of the Republic of Panama (or by or
for the account of the jurisdiction of incorporation (other than the United
States) of a successor corporation to the Company pursuant to Section 8.1, to
the extent that such taxes first become applicable as a result of the successor
corporation becoming the obligor on
71
the Debt Securities) or any political subdivision or taxing authority thereof or
therein ("Panamanian Taxes") or, if deduction or withholding of any Panamanian
Taxes shall at any time be required by the Republic of Panama (or the
jurisdiction of incorporation (other than the United States) of a successor
corporation to the Company pursuant to Section 8.1) or any such subdivision or
authority, the Company shall (subject to compliance by the Holder or beneficial
owner of the Security with any relevant administrative requirements) pay such
additional amounts ("Additional Amounts") in respect of principal, premium, if
any, interest, if any, and sinking fund or analogous payments, if any, as may be
necessary in order that the net amount paid to the Holder of such Security or
the Trustee under this Indenture, as the case may be, after such deduction or
withholding, shall equal the respective amounts of principal, premium, if any,
interest, if any, and sinking fund or analogous payments, if any, as specified
in the Security to which such Holder or the Trustee is entitled; provided,
however, that the foregoing shall not apply to (i) any present or future
Panamanian Taxes which would not have been so imposed, assessed, levied or
collected but for the fact that the Holder or beneficial owner of such Security
being or having been a domiciliary, national or resident of, or engaging or
having been engaged in business or maintaining or having maintained a permanent
establishment or being or having been physically present in, the Republic of
Panama (or the jurisdiction of incorporation of a successor corporation to the
Company pursuant to Section 8.1) or such political subdivision or otherwise
having or having had some connection with the Republic of Panama (or the
jurisdiction of incorporation of a successor corporation to the Company pursuant
to Section 8.1) or such political subdivision other than the holding or
ownership of a Security, or the collection of principal of and interest, if any,
on, or the enforcement of, a Security, (ii) any present or future Panamanian
Taxes with would not have been so imposed, assessed, levied or collected but for
the fact that, where presentation is required, such Security was presented more
than thirty days after the date such payment became due or was provided for,
whichever is later, or (iii) any present or future Panamanian Taxes which would
not have been so imposed, assessed, levied or collected but for the failure to
comply with any certification, identification or other reporting requirements
concerning the nationality, residence, identity or connection with the Republic
of Panama (or the jurisdiction of incorporation of a successor corporation to
the Company pursuant to Section 8.1) or any political subdivision thereof of the
Holder or beneficial owner of such Security, if compliance is required by
statute or by rules or regulations of the Republic of Panama (or the
jurisdiction of incorporation of a successor corporation to the Company pursuant
to Section 8.1) or such political subdivision as a condition to relief or
exemption from Panamanian Taxes. The provisions described in (i) through
(iii) above are referred to herein as "Excluded Taxes." The Company or any
successor to the Company, as the case may be, shall indemnify and hold harmless
each Holder of the Securities and upon written request reimburse each Holder for
the Securities and upon written request reimburse each Holder for the amount of
(i) any Panamanian Taxes levied or imposed and paid by such Holder of the
Securities (other than Excluded Taxes) as a result of payments
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made with respect to the Securities, (ii) any liability (including penalties,
interest and expenses) arising therefrom or with respect thereto, and (iii) any
Panamanian Taxes with respect to payment of Additional Amounts or any
reimbursement pursuant to this sentence. The Company or any successor to the
Company, as the case may be, shall also (1) make such withholding or deduction
and (2) remit the full amount deducted or withheld to the relevant authority in
accordance with applicable law. The Company or any successor to the Company, as
the case may be, shall furnish the Trustee within 30 days after the date the
payment of any Panamanian Taxes is due pursuant to applicable law, certified
copies of tax receipts evidencing such payment by the Company or any successor
to the Company, as the case may be, which the Trustee shall forward to the
Holders of the Securities.
At least 30 days prior to each date on which any payment under or with
respect to the Securities is due and payable, if the Company will be obligated
to pay Additional Amounts with respect to such payments, the Company will
deliver to the Trustee an Officers' Certificate stating the fact that such
Additional Amounts will be payable, and setting forth such other information as
may be necessary to enable the Trustee to pay such Additional Amounts to Holders
of the Securities on the payment date.
Whenever in this Indenture or any Security there is mentioned, in any
context, the payment of the principal, premium, if any, or interest, or sinking
fund or analogous payment, if any, in respect of such Security or overdue
principal or overdue interest or overdue sinking fund or analogous payment, such
mention shall be deemed to include mention of the payment of Additional Amounts
provided for herein to the extent that, in such context, Additional Amounts,
were or would be payable in respect thereof pursuant to the provisions of this
Section and express mention thereof in any provisions hereof shall not be
construed as excluding Additional Amounts in those provisions hereof where such
express mention is mot made (if applicable).
The obligations of the Company (and any successor corporation to the
Company pursuant to Section 8.1) under this Section 10.5 shall survive the
termination of this Indenture and the payment of all amounts under or with
respect to the Securities.
ARTICLE 11
REDEMPTION OF SECURITIES
Section 11.1 APPLICABILITY OF ARTICLE. Securities of any series which
are redeemable before their Stated Maturity shall be redeemable in accordance
with their terms and (except as otherwise specified as contemplated by
Section 3.1 for Securities of any series) in accordance with this Article.
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Section 11.2 ELECTION TO REDEEM; NOTICE TO TRUSTEE. The right of the
Company to elect to redeem any Securities of any series shall be set forth in
the terms of such Securities of such series established in accordance with
Section 3.1. The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution. In the 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 and shall deliver to the Trustee such documentation and records as
shall enable the Trustee to select the Securities to be redeemed pursuant to
Section 11.3. 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 11.3 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 45 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 may be specified by the
terms of such Securities or, if no such method is so specified, by such method
as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions of the principal amount of Securities of
such series; PROVIDED, HOWEVER, that no such partial redemption shall reduce the
portion of the principal amount of such Security not redeemed to less than the
minimum authorized denomination for Securities of that series.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
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 redeem only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
Section 11.4 NOTICE OF REDEMPTION. Notice of redemption shall be
given by the Company or, at the Company's request, by the Trustee, in the name
and at the expense of the Company, to the Holders of the Securities to be
redeemed, by first-class mail, postage prepaid, mailed not less than 30 nor more
than 60 days prior to the Redemption Date, to each Holder of Securities to be
redeemed, at his address appearing in the Security Register.
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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
are to be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Securities to be redeemed,
(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 thereon will cease to accrue on and after said date,
(5) the place or places where such Securities are to be
surrendered for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the
case.
Section 11.5 DEPOSIT OF REDEMPTION PRICE. On or before 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 10.3) 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 on, all the Securities which are to be redeemed on that date.
Section 11.6 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 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 interest to the
Redemption Date; PROVIDED, HOWEVER, that unless otherwise specified as
contemplated by Section 3.1, installments of interest whose Stated Maturity is
on or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Regular Record Dates according to their terms
and the provisions of Section 3.7.
If any Security called for redemption shall not be so paid upon
surrender therefor, the principal and any premium shall, until paid, bear
interest from the Redemption Date at the rate prescribed therefor in the
Security.
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Section 11.7 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, 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 11.8 OPTIONAL REDEMPTION OR ASSUMPTION OF SECURITIES UNDER
CERTAIN CIRCUMSTANCES. (a) Unless otherwise specified with respect to the
Securities of any series, if as the result of any change in or any amendment to
the laws, including any regulations thereunder and any applicable double
taxation treaty or convention, of the Republic of Panama (or the jurisdiction of
incorporation (other than the United States) of a successor corporation to the
Company pursuant to Section 8.1), or of any political subdivision or taxing
authority thereof or therein affecting taxation, or any change in an application
or interpretation of such laws, including any applicable double taxation treaty
or convention, which change, amendment, application or interpretation ("Change")
become effective on or after the original issuance date of such series (or, if
such Change is imposed with respect to tax imposed with respect to payments from
the jurisdiction in which a successor corporation to the Company pursuant to
Section 8.1 is incorporated, such later date on which such successor corporation
becomes a successor corporation to the Company pursuant to Section 8.1), it is
determined by the Company based upon an opinion of independent counsel of
recognized standing that (i) the Company would be required to pay Additional
Amounts (as defined in Section 10.5 herein) in respect of principal, premium, if
any, interest, if any, or sinking fund or analogous payments, if any, on the
next succeeding date for the payment thereof, or (ii) any taxes would be imposed
(whether by way of deduction, withholding or otherwise) by the Republic of
Panama (or the jurisdiction of incorporation (other than the United States) of a
successor corporation to the Company pursuant to Section 8.1) or by any
political subdivision or taxing authority thereof or therein, upon or with
respect to any principal, premium, if any, interest, if any, or sinking fund or
analogous payments, if any, then the Company may, at its option, on giving not
less than 30 nor more than 60 days' notice (which shall be irrevocable) redeem
such series of Securities in whole, but not in part, at any time (except in the
case of Securities of a series having a variable rate of interest, which may be
redeemed only on an Interest Payment Date) at a Redemption Price equal to 100
percent of the principal amount thereof plus accrued interest to the Redemption
Date (except in the case of outstanding Original Issue Discount Securities which
may be redeemed at the Redemption Price specified by the terms of each series of
such Securities); provided, however, that (i) no notice of redemption may be
given more than 90 days prior to the earliest date on which the Company would be
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obligated to pay such Additional Amounts or such tax would be imposed, as the
case may be, and (ii) at the time that such notice of redemption is given, such
obligation to pay Additional Amounts or such tax, as the case may be, remains in
effect.
(b) Prior to any redemption of a series of Securities pursuant
to paragraph (a) above, the Company shall provide the Trustee with an opinion of
independent counsel of recognized standing which states that the conditions
precedent to the right of the Company to redeem such Securities pursuant to this
Section shall have occurred. Each such opinion of independent counsel of
recognized standing shall be based on the laws in effect on the date of such
opinion or to become effective on or before the next succeeding date of payment
of principal, premium, if any, interest, if any, and sinking fund or analogous
payments, if any. For purposes of this Section, all references to the Company
in this paragraph shall include any successor corporation thereto pursuant to
Section 8.1.
ARTICLE 12
REPAYMENT AT OPTION OR HOLDERS
Section 12.1 APPLICABILITY OF ARTICLE. Repayment of Securities of any
series before their Stated Maturity at the option of Holders thereof shall be
made in accordance with the terms of such Securities and (except as otherwise
specified as contemplated by Section 3.1 for Securities of any series) in
accordance with this Article.
Section 12.2 REPAYMENT OF SECURITIES. Securities of any series subject
to repayment in whole or in part at the option of the Holders thereof will,
unless otherwise provided in the terms of such Securities, be repaid at a price
equal to the principal amount thereof, together with interest thereon accrued to
the Repayment Date specified in the terms of such Securities. The Company
covenants that on or before the Repayment Date it will 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 10.3) an amount of money
sufficient to pay the principal (or, if so provided by the terms of the
Securities of any series, a percentage of the principal) of, and (except if the
Repayment Date shall be an Interest Payment Date) accrued interest on, all the
Securities or portions thereof, as the case may be, to be repaid on such date.
Section 12.3 EXERCISE OF OPTION. Securities of any series subject to
repayment at the option of the Holders thereof will contain an "Option to Elect
Repayment" form on the reverse of such Securities. To be repaid at the option
of the Holder, any Security so providing for such repayment, with the "Option to
Elect Repayment" form on the reverse of such Security duly completed by the
Holder, must
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be received by the Company at the Place of Payment therefor specified in the
terms of such Security (or at such other place or places of which the Company
shall from time to time notify the Holders of such Securities) not earlier than
30 days nor later than 15 days prior to the Repayment Date. If less than the
entire principal amount of such Security is to be repaid in accordance with the
terms of such Security, the principal amount of such Security to be repaid, in
increments of $1,000 unless otherwise specified in the terms of such Security,
and the denomination or denominations of the Security or Securities to be issued
to the Holder for the portion of the principal amount of such Security
surrendered that is not to be repaid must be specified. The principal amount of
any Security providing for repayment at the option of the Holder thereof may not
be repaid in part if, following such repayment, the unpaid principal amount of
such Security would be less than the minimum authorized denomination of
Securities of the series of which such Security to be repaid is a part. Except
as otherwise may be provided by the terms of any Security providing for
repayment at the option of the Holder thereof, exercise of the repayment option
by the Holder shall be irrevocable unless waived by the Company.
Section 12.4 WHEN SECURITIES PRESENTED FOR REPAYMENT BECOME DUE AND
PAYABLE. If Securities of any series providing for repayment at the option of
the Holders thereof shall have been surrendered as provided in this Article and
as provided by the terms of such Securities, such Securities or the portions
thereof, as the case may be, to be repaid shall become due and payable and shall
be paid by the Company on the Repayment Date therein specified, and on and after
such Repayment Date (unless the Company shall default in the payment of such
Securities on such Repayment Date) interest on such Securities or the portions
thereof, as the case may be, shall cease to accrue.
Section 12.5 SECURITIES REPAID IN PART. Upon surrender of any
Security which is to be repaid in part only, the Company shall execute and the
Trustee shall authenticate and deliver to the Holder of such Security, without
service charge and at the expense of the Company, a new Security or Securities
of the same series, of any authorized denomination specified by the Holder, in
an aggregate principal amount equal to and in exchange for the portion of the
principal of such Security so surrendered which is not to be repaid.
ARTICLE 13
SINKING FUNDS
Section 13.1 APPLICABILITY OF ARTICLE. The provisions of this Article
shall be applicable to any sinking fund for the retirement of Securities of a
series except as otherwise specified as contemplated by Section 3.1 for
Securities of such series.
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The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment," and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment." If provided for by the terms of Securities of any
series, the cash amount of any sinking fund payment may be subject to reduction
as provided in Section 13.2. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
Section 13.2 SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company may (1) deliver to the Trustee Outstanding Securities of a series
(other than any previously called for redemption) theretofore purchased or
otherwise acquired by the Company and (2) receive credit for Securities of a
series which have been previously delivered to the Trustee by the Company or for
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of the same series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
Series, provided that such Securities have not been previously so credited.
Such Securities shall be received and credited for such purpose by the Trustee
at the Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.
Section 13.3 REDEMPTION OF SECURITIES FOR SINKING FUND. Not less than
60 days prior to each sinking fund payment date for any series of Securities,
the Company will deliver to the Trustee an Officers' Certificate specifying the
amount of the next ensuing sinking fund payment for that series pursuant to the
terms of that series, the portion thereof, if any, which is to be satisfied by
payment of cash and the portion thereof, if any, which is to be satisfied by
delivering or crediting Securities of that series pursuant to Section 13.2
(which Securities will, if not previously delivered, accompany such certificate)
and whether the Company intends to exercise its right to make a permitted
optional sinking fund payment with respect to such series. Such certificate
shall be irrevocable and upon its delivery the Company shall be obligated to
make the cash payment or payments therein referred to, if any, on or before the
next succeeding sinking fund payment date. In the case of the failure of the
Company to deliver such certificate, the sinking fund payment due on the next
succeeding sinking fund payment date for that series shall be paid entirely in
cash and shall be sufficient to redeem the principal amount of such Securities
subject to a mandatory sinking fund payment without the option to deliver or
credit Securities as provided in Section 13.2 and without the right to make any
optional sinking fund payment, if any, with respect to such series.
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Not more than 60 days before each such sinking fund payment date, the
Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 11.3 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 11.4. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 11.6 and 11.7.
Prior to any sinking fund payment date, the Company shall pay to the
Trustee in cash a sum equal to any interest accrued to the date fixed for
redemption of Securities or portions thereof to be redeemed on such sinking fund
payment date pursuant to this Section 13.3.
ARTICLE 14
IMMUNITY OF INCORPORATORS, SHAREHOLDERS,
OFFICERS, DIRECTORS AND EMPLOYEES
Section 14.1 EXEMPTION FROM INDIVIDUAL LIABILITY. No recourse under
or upon any obligation, covenant or agreement of this Indenture, or of any
Security, or for any claim based thereon or otherwise in respect thereof, shall
be had against any incorporator, shareholder, officer, director or employee, 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 of the Company, and that no
such personal liability whatever shall attach to, or is or shall be incurred by,
the incorporators, shareholders, officers, directors or employees, 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 in 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, director or employee, 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.
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ARTICLE 15
SUBORDINATION
Section 15.1 AGREEMENT TO SUBORDINATE. The Company agrees, and each
Holder of Securities by accepting a Security agrees, that the indebtedness
evidenced by the Securities is subordinated in right of payment, to the extent
and in the manner provided in this Article, to the prior payment in full of all
Senior Debt and that the subordination is for the benefit of the holders of
Senior Debt.
Section 15.2 LIQUIDATION; DISSOLUTION; BANKRUPTCY. Upon any
distribution to creditors of the Company in a liquidation or dissolution of the
Company or in a bankruptcy, reorganization, insolvency, receivership or similar
proceeding relating to the Company or its property:
(1) holders of Senior Debt shall be entitled to receive payment
in full in cash of the principal of and interest (including interest
accruing after the commencement of any such proceeding) to the date of
payment on the Senior Debt before Holders of Securities shall be entitled
to receive any payment of principal of or interest on Securities; and
(2) until the Senior Debt is paid in full in cash, any
distribution to which Holders of Securities would be entitled but for this
Article shall be made to holders of Senior Debt as their interests may
appear, except that Holders of Securities may receive securities that are
subordinated to Senior Debt to at least the same extent as the Securities.
Section 15.3 DEFAULT ON SENIOR DEBT. The Company may not pay
principal of or interest on the Securities and may not acquire any Securities
for cash or property other than capital stock of the Company if:
(1) a default on Senior Debt occurs and is continuing that
permits holders of such Senior Debt to accelerate its maturity, and
(2) the default is the subject of judicial proceedings or the
Company receives a notice of the default from a person who may give it
pursuant to Section 15.11. If the Company receives any such notice, a
similar notice received within nine months thereafter relating to the same
default on the same issue of Senior Debt shall not be effective for
purposes of this Section.
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The Company may resume payments on the Securities and may acquire them
when:
(a) the default is cured or waived, or
(b) 120 days pass after the notice is given if the default is not
the subject of judicial proceedings,
if this Article otherwise permits the payment or acquisition at that time.
Section 15.4 ACCELERATION OF SECURITIES. If payment of the
Securities is accelerated because of an Event of Default, the Company shall
promptly notify holders of Senior Debt of the acceleration. The Company may pay
the Securities when 120 days pass after the acceleration occurs if this Article
permits the payment at that time.
Section 15.5 WHEN DISTRIBUTION MUST BE PAID OVER. If a distribution
is made to Holders of Securities that because of this Article should not have
been made to them, the Holders of Securities who receive the distribution shall
hold it in trust for holders of Senior Debt and pay it over to them as their
interests may appear.
Section 15.6 NOTICE BY COMPANY. The Company shall promptly notify
the Trustee and any Paying Agent of any facts known to the Company that would
cause a payment of principal of or interest on Securities to violate this
Article.
Section 15.7 SUBROGATION. After all Senior Debt is paid in full and
until the Securities are paid in full, Holders of Securities shall be subrogated
to the rights of holders of Senior Debt to receive distributions applicable to
Senior Debt to the extent that distributions otherwise payable to the Holders of
Securities have been applied to the payment of Senior Debt. A distribution made
under this Article to holders of Senior Debt which otherwise would have been
made to Holders of Securities is not, as between the Company and Holders of
Securities, a payment by the Company on Senior Debt.
Section 15.8 RELATIVE RIGHTS. This Article defines the relative
rights of Holders of Securities and holders of Senior Debt. Nothing in this
Indenture shall:
(1) impair, as between the Company and Holders of Securities,
the obligation of the Company, which is absolute and unconditional, to pay
principal of and interest on the Securities in accordance with their terms;
(2) affect the relative rights of Holders of Securities and
creditors of the Company other than holders of Senior Debt; or
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(3) prevent the Trustee or any Holders of Securities from
exercising its available remedies upon an Event of Default, subject to the
rights of holders of Senior Debt to receive distributions otherwise payable
to Holders of Securities.
If the Company fails because of this Article to pay principal of or
interest on a Security on the due date, the failure is still an Event of Default
as provided elsewhere herein.
Section 15.9 SUBORDINATION MAY NOT BE IMPAIRED BY TRUST. No right
of any holder of Senior Debt to enforce the subordination of the indebtedness
evidenced by the Securities shall be impaired by any act or failure to act by
the Company or by its failure to comply with this Indenture.
Section 15.10 DISTRIBUTION OR NOTICE TO REPRESENTATIVE. Whenever a
distribution is to be made or a notice given to holders of Senior Debt, the
distribution may be made and the notice given to their Representative.
Section 15.11 RIGHTS OF TRUSTEE AND PAYING AGENT. The Trustee or any
Paying Agent may continue to make payments on the Securities until it receives
notice of facts that would cause a payment of principal of or interest on the
Securities to violate this Article. Only the Company, a Representative or a
holder of an issue of Senior Debt that has no Representative may give the
notice.
ARTICLE 16
MISCELLANEOUS PROVISIONS
Section 16.1 SUCCESSORS AND ASSIGNS OF COMPANY BOUND BY INDENTURE.
All the covenants, stipulations, promises and agreements in this Indenture
contained by or in behalf of the Company shall bind its successors and assigns,
whether so expressed or not.
Section 16.2 ACTS OF BOARD, COMMITTEE OR OFFICER OF SUCCESSOR
CORPORATION VALID. Any act or proceeding by any provision of this Indenture
authorized or required to be done or performed by any board, committee or
officer of the Company shall and may be done and performed with like force and
effect by the like board, committee or officer of any corporation that shall at
that time be the successor of the Company.
Section 16.3 REQUIRED NOTICES OR DEMANDS. Any notice or demand which
by any provision of this Indenture is required or permitted to be given or
served by the Trustee or by the Holders to or on the Company may, except as
83
otherwise provided in Sections 5.1(4), be given or served by being deposited
postage prepaid in a post office letter box in the United States addressed
(until another address is filed by the Company with the Trustee), as follows:
Carnival Corporation, 0000 X.X. 00xx Xxxxxx, Xxxxx, Xxxxxxx 00000-0000,
Attention: Treasurer. Any notice, direction, request or demand by the Company
or by any Holder to or upon the Trustee may be given or made, for all purpose,
by being deposited postage prepaid in a post office letter box in the United
States addressed to the Corporate Trust Office of the Trustee. Any notice
required or permitted to be mailed to a Holder by the Company or the Trustee
pursuant to the provisions of this Indenture shall be deemed to be properly
mailed by being deposited postage prepaid in a post office letter box in the
United States addressed to such Holder at the address of such Holder as shown on
the Security Register. 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 or irregularities in regular
mail service, it shall be impractical to mail notice of any event to Holders
when such notice is required to be given pursuant to any provision of this
Indenture, then any manner of giving such notice as shall be satisfactory to the
Trustee shall be deemed to be a sufficient giving of such notice.
Section 16.4 INDENTURE AND SECURITIES TO BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK. THIS INDENTURE AND EACH SECURITY SHALL
BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR
ALL PURPOSES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
SAID STATE.
Section 16.5 INDENTURE MAY BE EXECUTED IN COUNTERPARTS. This
Indenture may be executed in any number of counterparts, each of which shall be
an original, but all of which shall together constitute one and the same
instrument.
84
______________________, the party of the second part, hereby accepts
the trusts in this Indenture declared and provided, upon the terms and
conditions hereinabove set forth.
IN WITNESS WHEREOF, CARNIVAL CORPORATION, the party of the first part,
has caused this Indenture to be duly signed and acknowledged by its Chairman of
the Board or its President or an Executive Vice President or a Vice President or
its Treasurer or its Secretary or its Assistant Secretary thereunto duly
authorized, and its corporate seal to be affixed hereunto, and the same to be
attested by its Secretary or an Assistant Secretary; and ______________________,
the party of the second part, has caused this Indenture to be duly signed and
acknowledged by one of its Vice Presidents or Assistant Vice Presidents
thereunto duly authorized, and its corporate seal to be affixed hereunto, and
the same to be attested by one of its Trust Officers.
CARNIVAL CORPORATION
By:___________________________________
Name:
Title:
Attest:___________________
Name:
Title:
[CORPORATE SEAL]
[ ]
By:___________________________________
Name: ____________________
Title: Vice President
Attest:___________________
Name: ____________
Title: Trust Officer
[CORPORATE SEAL]
85
________________________________, the party of the second part, hereby
accepts the trusts in this Indenture declared and provided, upon the terms and
conditions hereinabove set forth.
IN WITNESS WHEREOF, CARNIVAL CORPORATION, the party of the first part,
has caused this Indenture to be duly signed and acknowledged by its Chairman of
the Board or its President or an Executive Vice President or a Vice President or
its Treasurer or its Secretary or its Assistant Secretary thereunto duly
authorized, and its corporate seal to be affixed hereunto, and the same to be
attested by its Secretary or an Assistant Secretary; and
______________________________, the party of the second part, has caused this
Indenture to be duly signed and acknowledged by one of its Vice Presidents or
Assistant Vice Presidents thereunto duly authorized, and its corporate seal to
be affixed hereunto, and the same to be attested by one of its Trust Officers.
CARNIVAL CORPORATION
By:___________________________________
Name: XXXXXX X. XXXXX
Title: Executive Vice President
Attest:_______________________
Name: XXXX X. XXXXXX
Title: Secretary
[CORPORATE SEAL]
[ ]
By:___________________________________
Name:____________________
Title: Assistant Vice President
Attest:_______________________
Name:_________________
Title: Assistant Xxxxxxxxx
00
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF QUEENS )
On this 10th day of March, 1993, before me personally came Xxxxxx
Xxxxxxx to me known, who, being by me duly sworn, did depose and say that he
resides at 0000 XX 00xx Xxxxx, Xxxxx, XX 00000, that he is Vice President &
Treasurer of CARNIVAL CORPORATION, one of the corporations described in and
which executed the above instrument; that he knows the corporate seal of said
corporation; that the seal affixed to the said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
_______________________________
Notary Public
