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EXHIBIT 4.1
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GREY WOLF, INC.
AND
[TRUSTEE],
TRUSTEE
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INDENTURE
DATED AS OF
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DEBT SECURITIES
(SENIOR DEBT)
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GREY WOLF, INC.
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939
AND INDENTURE DATED AS OF _________________
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Section of
Trust Indenture Section(s) of
Act of 1939 Indenture
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Section 310 (a)(1).......................................... 609
(a)(2).......................................... 609
(a)(3).......................................... Not Applicable
(a)(4).......................................... Not Applicable
(b)............................................. 608, 610
Section 311 (a)............................................. 613
(b)............................................. 613
(c)............................................. Not Applicable
Section 312 (a)............................................. 701, 702(a)
(b)............................................. 702(b)
(c)............................................. 702(c)
Section 313 (a)............................................. 703(a)
(b)............................................. 703(b)
(c)............................................. 703(c)
(d)............................................. 703(d)
Section 314 (a)............................................. 704, 1005
(b)............................................. Not Applicable
(c)(1).......................................... 103
(c)(2).......................................... 103
(c)(3).......................................... Not Applicable
(d)............................................. Not Applicable
(e)............................................. 103
Section 315 (a)............................................. 601(a)
(b)............................................. 602
(c)............................................. 601(b)
(d)............................................. 601(c)
(d)(1).......................................... 601(a)(1)
(d)(2).......................................... 601(c)(2)
(d)(3).......................................... 601(c)(3)
(e)............................................. 513
Section 316 (a)(1)(A)....................................... 502, 511
(a)(1)(B)....................................... 512
(a)(2).......................................... Not Applicable
(a)(last sentence).............................. 101
(b)............................................. 508
Section 317 (a)(1).......................................... 503
(a)(2).......................................... 504
(b)............................................. 1003
Section 318 (a)............................................. 108
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Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
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TABLE OF CONTENTS
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RECITALS OF THE COMPANY..............................................1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions............................................1
Act.........................................................2
Additional Amounts..........................................2
Affiliate...................................................2
Agent Members...............................................2
Authenticating Agent........................................2
Authorized Newspaper........................................2
Board of Directors..........................................2
Board Resolution............................................2
Business Day................................................2
Commission..................................................3
Company.....................................................3
Company Request and Company Order...........................3
Conversion Event............................................3
Corporate Trust Office......................................3
Defaulted Interest..........................................3
Depositary..................................................3
Dollar......................................................3
Event of Default............................................3
Exchange Rate...............................................3
Holder......................................................3
Indenture...................................................3
interest....................................................4
Interest Payment Date.......................................4
Judgment Currency...........................................4
Maturity....................................................4
Officers' Certificate.......................................4
Opinion of Counsel..........................................4
Original Issue Discount Security............................4
Outstanding.................................................4
Paying Agent................................................5
Person......................................................5
Place of Payment............................................5
Predecessor Security........................................5
Redemption Date.............................................6
Redemption Price............................................6
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Regular Record Date.............................................6
Required Currency...............................................6
Responsible Officer.............................................6
Securities......................................................6
Security Custodian..............................................6
Security Register...............................................6
Special Record Date.............................................6
Stated Maturity.................................................6
Subsidiary......................................................7
Trustee.........................................................7
Trust Indenture Act.............................................7
U.S.............................................................7
U.S. Alien......................................................7
U.S. Government Obligations.....................................7
Vice President..................................................7
Wholly-Owned Subsidiary.........................................7
Yield to Maturity...............................................7
SECTION 102. Incorporation by Reference of Trust Indenture Act..........8
SECTION 103. Compliance Certificates and Opinions.......................8
SECTION 104. Form of Documents Delivered to Trustee.....................9
SECTION 105. Acts of Holders; Record Dates..............................9
SECTION 106. Notices, Etc., to Trustee and Company.....................10
SECTION 107. Notice to Holders; Waiver.................................11
SECTION 108. Conflict With Trust Indenture Act.........................11
SECTION 109. Effect of Headings and Table of Contents..................12
SECTION 110. Successors and Assigns....................................12
SECTION 111. Separability Clause.......................................12
SECTION 112. Benefits of Indenture.....................................12
SECTION 113. Governing Law.............................................12
SECTION 114. Legal Holidays............................................12
SECTION 115. Corporate Obligation......................................12
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally...........................................13
SECTION 202. Form of Trustee's Certificate of Authentication...........13
SECTION 203. Securities in Global Form.................................13
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series......................16
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SECTION 302. Denominations.............................................................................19
SECTION 303. Execution, Authentication, Delivery and Dating............................................19
SECTION 304. Temporary Securities......................................................................21
SECTION 305. Registration, Registration of Transfer and Exchange.......................................21
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities..........................................22
SECTION 307. Payment of Interest; Interest Rights Preserved............................................23
SECTION 308. Persons Deemed Owners.....................................................................24
SECTION 309. Cancellation..............................................................................25
SECTION 310. Computation of Interest...................................................................25
SECTION 311. CUSIP Numbers.............................................................................25
ARTICLE FOUR
SATISFACTION, DISCHARGE AND DEFEASANCE
SECTION 401. Satisfaction and Discharge of Indenture...................................................25
SECTION 402. Application of Trust Money................................................................27
SECTION 403. Discharge of Liability on Securities of Any Series........................................27
SECTION 404. Applicability of Defeasance Provisions; Company's Option to Effect Defeasance
or Covenant Defeasance................................................................28
SECTION 405. Defeasance and Discharge..................................................................28
SECTION 406. Covenant Defeasance.......................................................................29
SECTION 407. Conditions to Defeasance or Covenant Defeasance...........................................29
SECTION 408. Deposited Money and Government Obligations to be Held in Trust............................31
SECTION 409. Repayment to Company......................................................................31
SECTION 410. Indemnity for Government Obligations......................................................31
SECTION 411. Reinstatement.............................................................................31
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.........................................................................32
SECTION 502. Acceleration of Maturity; Rescission and Annulment........................................34
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee...........................35
SECTION 504. Trustee May File Proofs of Claim..........................................................36
SECTION 505. Trustee May Enforce Claims Without Possession of Securities or Coupons....................37
SECTION 506. Application of Money Collected............................................................37
SECTION 507. Limitation on Suits.......................................................................38
SECTION 508. Unconditional Right of Holders to Receive Principal Premium and Interest..................38
SECTION 509. Restoration of Rights and Remedies........................................................38
SECTION 510. Rights and Remedies Cumulative............................................................39
SECTION 511. Delay or Omission Not Waiver..............................................................39
SECTION 512. Control by Holders........................................................................39
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SECTION 513. Waiver of Past Defaults.....................................................39
SECTION 514. Undertaking for Costs.......................................................40
SECTION 515. Waiver of Stay or Extension Laws............................................40
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.........................................40
SECTION 602. Notice of Defaults..........................................................42
SECTION 603. Certain Rights of Trustee...................................................42
SECTION 604. Not Responsible for Recitals or Issuance of Securities......................43
SECTION 605. May Hold Securities.........................................................43
SECTION 606. Money Held in Trust.........................................................43
SECTION 607. Compensation and Reimbursement..............................................43
SECTION 608. Disqualification; Conflicting Interests.....................................44
SECTION 609. Corporate Trustee Required; Eligibility.....................................45
SECTION 610. Resignation and Removal; Appointment of Successor...........................45
SECTION 611. Acceptance of Appointment by Successor......................................47
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.................48
SECTION 613. Preferential Collection of Claims Against Company...........................48
SECTION 614. Appointment of Authenticating Agent.........................................48
ARTICLE SEVEN
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders...................50
SECTION 702. Preservation of Information; Communications to Holders......................50
SECTION 703. Reports by Trustee..........................................................51
SECTION 704. Reports by Company..........................................................51
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms........................52
SECTION 802. Successor Person Substituted................................................52
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders..........................52
SECTION 902. Supplemental Indentures With Consent of Holders.............................53
SECTION 903. Execution of Supplemental Indentures........................................55
SECTION 904. Effect of Supplemental Indentures...........................................55
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SECTION 905. Conformity With Trust Indenture Act...................................................55
SECTION 906. Reference in Securities to Supplemental Indentures....................................55
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest............................................56
SECTION 1002. Maintenance of Office or Agency.......................................................56
SECTION 1003. Money for Securities Payments to be Held in Trust.....................................56
SECTION 1004. Existence.............................................................................58
SECTION 1005. Statement by Officers as to Default...................................................58
SECTION 1006. Waiver of Certain Covenants...........................................................58
SECTION 1007. Additional Amounts....................................................................59
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article..............................................................59
SECTION 1102. Election to Redeem; Notice to Trustee.................................................59
SECTION 1103. Selection by Trustee of Securities to be Redeemed.....................................60
SECTION 1104. Notice of Redemption..................................................................60
SECTION 1105. Deposit of Redemption Price...........................................................61
SECTION 1106. Securities Payable on Redemption Date.................................................61
SECTION 1107. Securities Redeemed in Part...........................................................62
SECTION 1108. Purchase of Securities................................................................62
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article..............................................................62
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.................................62
SECTION 1203. Redemption of Securities for Sinking Fund.............................................63
ARTICLE THIRTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1301. Purposes for Which Meetings May Be Called.............................................63
SECTION 1302. Call, Notice and Place of Meetings....................................................63
SECTION 1303. Persons Entitled to Vote at Meetings..................................................64
SECTION 1304. Quorum; Action........................................................................64
SECTION 1305. Determination of Voting Rights; Conduct and Adjournment of Meetings...................65
SECTION 1306. Counting Votes and Recording Action of Meetings.......................................65
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INDENTURE, dated as of _______________, between GREY WOLF,
INC., a corporation duly organized and existing under the laws of the State of
Texas (herein called the "COMPANY"), having its principal office at 00000
Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000, and [TRUSTEE], a
______________________, as Trustee (herein called the "TRUSTEE"), the office of
the Trustee at which at the date hereof its corporate trust business is
principally administered being [TRUSTEE'S ADDRESS].
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its debentures,
notes or other evidences of indebtedness (herein called the "SECURITIES"), to be
issued in one or more series as in this Indenture provided.
This Indenture is subject to the provisions of the Trust
Indenture Act and the rules and regulations of the Commission promulgated
thereunder that are required to be part of this Indenture and, to the extent
applicable, shall be governed by such provisions.
All things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities or of
series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this ARTICLE ONE have the meanings
assigned to them in this ARTICLE ONE and include the plural as well as
the singular;
(2) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles in the United States, and, except as otherwise
herein expressly provided, the term "GENERALLY ACCEPTED ACCOUNTING
PRINCIPLES" with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally
accepted in the United States at the date of such computation; and
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(3) the words "HEREIN," "HEREOF" and "HEREUNDER" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
Certain terms, used principally in ARTICLE SIX, are defined in
SECTION 102.
"ACT," when used with respect to any Holder, has the meaning
specified in SECTION 105.
"ADDITIONAL AMOUNTS" means any additional amounts that are
required by the express terms of a Security or by or pursuant to a Board
Resolution, under circumstances specified therein or pursuant thereto, to be
paid by the Company with respect to certain taxes, assessments or other
governmental charges imposed on certain Holders and that are owing to such
Holders.
"AFFILIATE" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"CONTROL" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "CONTROLLING" and "CONTROLLED" have meanings correlative to the
foregoing.
"AGENT MEMBERS" is defined in SECTION 203.
"AUTHENTICATING AGENT" means any Person, which may include the
Company, authorized by the Trustee to act on behalf of the Trustee pursuant to
Section 614 to authenticate Securities of one or more series.
"AUTHORIZED NEWSPAPER" means a newspaper, in the English
language or in an official language of the country of publication, customarily
published on each Business Day, whether or not published on Saturdays, Sundays
or holidays, and of general circulation in the place in connection with which
the term is used or in the financial community of such place. Where successive
publications are required to be made in Authorized Newspapers, the successive
publications may be made in the same or in different newspapers in the same city
meeting the foregoing requirements and in each case on any Business Day.
"BOARD OF DIRECTORS" means either the board of directors of
the Company or any duly authorized committee of that board.
"BOARD RESOLUTION" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"BUSINESS DAY" means each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which banking institutions are authorized or
obligated by law or executive
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order or regulation to close in New York, New York, and Houston, Texas, and when
used with respect to any Place of Payment, in that Place of Payment.
"COMMISSION" means 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, then the body performing such duties at such time.
"COMPANY" means the Person named as the "COMPANY" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"COMPANY" shall mean such successor Person.
"COMPANY REQUEST" and "COMPANY ORDER" mean, respectively, a
written request or order signed in the name of the Company by its Chairman of
the Board, its 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.
"CONVERSION EVENT" is defined in SECTION 501.
"CORPORATE TRUST OFFICE" means the principal office of the
Trustee in [TRUSTEE'S CITY AND STATE] at which at any particular time its
corporate trust business shall be principally administered, which office at the
date hereof is that indicated in the introductory paragraph of this Indenture.
"DEFAULTED INTEREST" is defined in SECTION 307.
"DEPOSITARY" means, with respect to the Securities of any
series issuable or issued in whole or in part in global form, the Person
designated as Depositary by the Company pursuant to SECTION 301 with respect to
the Securities of such series until a successor Depositary shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"DEPOSITARY" shall mean or include each Person who is then a Depositary
hereunder, and if at any time there is more than one such Person, "DEPOSITARY"
as used with respect to the Securities of any series shall mean the Depositary
with respect to the Securities of that series.
"DOLLAR" or "$" means a dollar or other equivalent unit in
such coin or currency of the United States as at the time shall be legal tender
for the payment of public and private debts.
"EVENT OF DEFAULT" is defined in SECTION 501.
"EXCHANGE RATE" is defined in SECTION 501.
"HOLDER," when used with respect to any Security, means the
Person in whose name the Security is registered in the Security Register.
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"INDENTURE" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities established as
contemplated by SECTION 301 and the provisions of the Trust Indenture Act that
are deemed to be a part of and govern this instrument.
"INTEREST," when used with respect to an Original Issue
Discount Security which by its terms bears interest only after Maturity, means
interest payable after Maturity.
"INTEREST PAYMENT DATE," when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
"JUDGMENT CURRENCY" is defined in SECTION 506.
"MATURITY," when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption or otherwise.
"OFFICERS' CERTIFICATE" means a certificate signed by (a) the
Chairman of the Board, a Vice Chairman of the Board, the Chief Executive
Officer, the President, the Chief Operating Officer or a Vice President, and (b)
the Chief Financial Officer, the Chief Accounting Officer, the Treasurer, the
Controller, the Secretary or an Assistant Treasurer, Assistant Controller or
Assistant Secretary, of the Company (each an "OFFICER"), and delivered to the
Trustee, which certificate shall comply with SECTION 103.
"OPINION OF COUNSEL" means a written opinion of counsel, who
may be counsel for or an employee of the Company, rendered, if applicable, in
accordance with Section 314(c) of the Trust Indenture Act, which opinion shall
comply with SECTION 103.
"ORIGINAL ISSUE DISCOUNT SECURITY" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502.
"OUTSTANDING," when used with respect to Securities of a
series, means, as of the date of determination, all Securities of such series
theretofore authenticated and delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore irrevocably 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
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Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to
the Trustee has been made; and
(iii) Securities which have been paid pursuant to SECTION 306
or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, or whether a
quorum is present at a meeting of Holders of Securities, (a) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding for such purposes shall be the principal amount thereof that would
be due and payable as of the date of such determination if the Maturity thereof
were accelerated on such date pursuant to SECTION 502, (b) the principal amount
of a Security denominated in a foreign currency shall be the U.S. dollar
equivalent, determined by the Company 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, determined on the date of original
issuance of such Security, of the amount determined as provided in clause (a)
above), of such Security and (c) Securities owned by the Company or any other
obligor upon the Securities or any Affiliate of the Company or of such other
obligor shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver or upon any
such determination as to the presence of a quorum, only Securities which the
Trustee knows to be so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
"PAYING AGENT" means any Person, which may include the
Company, authorized by the Company to pay the principal of (and premium, if any)
and interest on or Additional Amounts with respect to any one or more series of
Securities on behalf of the Company.
"PERSON" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock company,
trust, unincorporated organization or government or any agency or political
subdivision thereof, or any other entity of any kind.
"PLACE OF PAYMENT," when used with respect to the Securities
of any series, means the place or places where the principal of (and premium, if
any) and interest on and any Additional Amounts with respect to the Securities
of that series are payable as specified in accordance with SECTION 301, subject
to the provisions of SECTION 1002.
"PREDECESSOR SECURITY" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under SECTION 306 in
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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.
"REDEMPTION DATE," when used with respect to any Security to
be redeemed, means the date fixed for such redemption by or pursuant to the
terms of such Security and this Indenture.
"REDEMPTION PRICE," when used with respect to any Security to
be redeemed, means the price at which it is to be redeemed pursuant to the terms
of such Security and this Indenture.
"REGULAR RECORD DATE" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified for that
purpose as contemplated by SECTION 301, or, if not so specified, the last day of
the calendar month preceding such Interest Payment Date if such Interest Payment
Date is the fifteenth day of the calendar month or the fifteenth day of the
calendar month preceding such Interest Payment Date if such Interest Payment
Date is the first day of a calendar month, whether or not such day shall be a
Business Day.
"REQUIRED CURRENCY" is defined in SECTION 506.
"RESPONSIBLE OFFICER," when used with respect to the Trustee,
means the Chairman or any Vice Chairman of the Board of Directors, the Chairman
or any Vice Chairman of the Executive Committee of the Board of Directors, the
Chairman of the Trust Committee, the President, any Vice President, the
Secretary, any Assistant Secretary, the Treasurer, any Assistant Treasurer, the
Cashier, any Assistant Cashier, any Trust Officer or Assistant Trust Officer,
the Controller or any Assistant Controller or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"SECURITIES" is defined in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture.
"SECURITY CUSTODIAN" means, with respect to Securities of a
series issued in global form, the Trustee for Securities of such series, acting
in its capacity as custodian with respect to the Securities of such series, or
any successor entity thereto, or any other Person designated by such Trustee, or
such successor entity, to act as custodian with respect to the Securities of
such series.
"SECURITY REGISTER" and "SECURITY REGISTRAR" are defined in
SECTION 305.
"SPECIAL RECORD DATE" for the payment of any Defaulted
Interest on the Securities of any series means a date fixed by the Trustee
pursuant to SECTION 307.
"STATED MATURITY," when used with respect to any Security or
any installment of principal thereof or interest thereon, means the date
specified in such Security as the fixed date on which the principal of such
Security or such installment of principal or interest is due and payable.
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"SUBSIDIARY" means (a) a corporation more than 50% of the
outstanding voting stock of which is owned, directly or indirectly, by the
Company, or by one or more other Subsidiaries, or by the Company and one or more
other Subsidiaries, (b) a general partnership, joint venture or similar entity,
more than 50% of the outstanding partnership or similar interests of which is
owned, directly or indirectly, by the Company, or by one or more other
Subsidiaries, or by the Company and one or more other Subsidiaries, or (c) a
limited partnership of which the Company or another Subsidiary is a general
partner. For the purposes of this definition, "VOTING STOCK" means stock which
ordinarily has voting power for the election of directors, whether at all times
or only so long as no senior class of stock has such voting power by reason of
any contingency.
"TRUSTEE" means the Person named as the "TRUSTEE" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"TRUSTEE" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "TRUSTEE" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939 as
in force at the date as of which this instrument was executed, except as
provided in SECTION 905.
"U.S." means the United States of America (including the
States and the District of Columbia) and its "possessions," which include Puerto
Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
"U.S. ALIEN" means any Person who, for U.S. federal income tax
purposes, is a foreign corporation, a non-resident alien individual, a
non-resident alien or foreign fiduciary of an estate or trust, or a foreign
partnership.
"U.S. GOVERNMENT OBLIGATIONS" is defined in SECTION 401.
"VICE PRESIDENT" means any vice president, whether or not
designated by a number or a word or words added before or after the title "vice
president."
"WHOLLY-OWNED SUBSIDIARY" means (a) a corporation all the
outstanding voting stock (other than any directors' qualifying shares) of which
is owned, directly or indirectly, by the Company, or by one or more other
Wholly-Owned Subsidiaries, or by the Company and one or more other Wholly-Owned
Subsidiaries, or (b) a general partnership, limited partnership, joint venture
or similar entity, all of the outstanding partnership or similar interests of
which is owned, directly or indirectly, by the Company, or by one or more other
Wholly-Owned Subsidiaries, or by the Company and one or more other Wholly-Owned
Subsidiaries. For the purposes of this definition, "VOTING STOCK" means stock
which ordinarily has voting power for the election of directors, whether at all
times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"YIELD TO MATURITY," when used with respect to any Original
Issue Discount Security, means the yield to maturity, if any, set forth on the
face thereof.
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SECTION 102. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the Trust
Indenture Act, the provision is incorporated by reference in and made a part of
this Indenture. The following Trust Indenture Act terms used in this Indenture
have the following meanings:
"BANKRUPTCY ACT" means the Bankruptcy Act or Title 11 of the
U.S. Code.
"INDENTURE SECURITIES" means the Securities.
"INDENTURE SECURITY HOLDER" means a Holder.
"INDENTURE TO BE QUALIFIED" means this Indenture.
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the
Trustee.
"OBLIGOR" on the indenture securities means the Company or any
other obligor on the Securities.
All terms used in this Indenture that are defined by the Trust
Indenture Act, defined by Trust Indenture Act reference to another statute or
defined by Commission rule under the Trust Indenture Act and not otherwise
defined herein have the meanings assigned to them therein.
SECTION 103. Compliance Certificates and Opinions.
Except as otherwise expressly provided by this Indenture, upon
any application or request by the Company to the Trustee to take any action
under any provision of this Indenture, the Company shall furnish to the Trustee
an Officers' Certificate stating that all conditions precedent, if any
(including any covenants the compliance with which constitutes a condition
precedent 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 (including any covenants the
compliance with which constitutes a condition precedent) have been complied
with, except that in the case of any such application or request as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
(1) a statement that each Person signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
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(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such Person, such
Person has made such examination or investigation as is necessary to
enable such Person to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
Person, such condition or covenant has been complied with.
SECTION 104. 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 knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 105. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing. Except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments or record thereof or
both are delivered to the Trustee and, where it is hereby expressly required, to
the Company. Such instrument or instruments and any such record (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"ACT" of the Holders signing such instrument or instruments and so voting at any
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such meeting. Proof of execution of any such instrument or of a writing
appointing any such agent, or the holding of any Person of a Security, shall be
sufficient for any purpose of this Indenture and (subject to SECTION 601)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this SECTION 105. The record of any meeting of Holders of Securities
shall be proved in the manner provided in SECTION 1306.
The Company may set in advance a record date for purposes of
determining the identity of Holders of Securities entitled to vote or consent to
any action by vote or consent authorized or permitted under this Indenture. If a
record date is fixed, those Persons who were Holders of Outstanding Securities
at such record date (or their duly designated proxies), and only those Persons,
shall be entitled with respect to such Securities to take such action by vote or
consent or to revoke any vote or consent previously given, whether or not such
Persons continue to be Holders after such record date. Promptly after any record
date is set pursuant to this paragraph, the Company, at its own expense, shall
cause notice thereof to be given to the Trustee in writing in the manner
provided in SECTION 106 and to the relevant Holders as set forth in SECTION 107.
(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.
(c) The principal amount and serial numbers of Securities held
by any Person, and the date of holding the same, shall be proved by the Security
Register.
(d) 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. Any Holder or subsequent Holder may revoke the request,
demand, authorization, direction, notice, consent or other Act as to his
Security or portion of his Security; provided, however, that such revocation
shall be effective only if the Trustee receives the notice of revocation before
the date the Act becomes effective.
SECTION 106. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with,
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(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Administration, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its principal
office specified in the first paragraph of this Indenture or at any
other address previously furnished in writing to the Trustee by the
Company, Attention: Chief Financial Officer.
SECTION 107. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of
Securities of any event, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each Holder affected by such event, at the address of such
Holder as it appears in the Security Register, not later than the latest date,
and not earlier than the earliest date, prescribed for the giving of such
notice.
In case by reason of the suspension of regular mail service,
or by reason of any other cause it shall be impracticable to give such notice to
Holders of Securities by mail, then such notification as shall be made with the
approval of the Trustee shall constitute a sufficient notification for every
purpose hereunder. In any case in which notice to Holders of Securities is given
by mail, neither the failure to mail such notice, nor any defect in any notice
so mailed, to any particular Holder of a Security, shall affect the sufficiency
of such notice with respect to other Holders of Securities.
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.
SECTION 108. Conflict With Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with
any provision of the Trust Indenture Act or another provision hereof which is
required to be included in this Indenture by any of the provisions of the Trust
Indenture Act, such provision of the Trust Indenture Act or such other provision
hereof which is required to be included by any provision of the Trust Indenture
Act shall control. If any provision of this Indenture modifies or excludes any
provision of the Trust Indenture Act which may be so modified or excluded, the
former provision shall be deemed to apply to this Indenture as so modified or to
be excluded.
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SECTION 109. 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 110. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
SECTION 111. Separability Clause.
In case any provision in this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 112. 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, any Authenticating Agent, Paying Agent, Security
Registrar, Security Custodian and the Holders, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 113. Governing Law.
This Indenture and the Securities shall be governed by and
construed in accordance with the laws of the State of New York, but without
giving effect to applicable principles of conflicts of law to the extent the
application of the laws of another jurisdiction would be required thereby.
SECTION 114. 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 principal and interest (and premium and Additional
Amounts, 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 with
respect to such payment for the period from and after such Interest Payment
Date, Redemption Date or Stated Maturity, as the case may be.
SECTION 115. Corporate Obligation.
No recourse may be taken, directly or indirectly, against any
incorporator, subscriber to the capital stock, stockholder, officer, director or
employee of the Company or the Trustee or of any predecessor or successor of the
Company or the Trustee with respect to the Company's obligations on the
Securities or the obligations of the Company or the Trustee under this Indenture
or any certificate or other writing delivered in connection herewith.
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ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities of each series shall be in fully registered
form and in substantially such form or forms (including temporary or permanent
global form) as shall be established by or pursuant to a Board Resolution or in
one or more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture and may have such letters, numbers or other 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 temporary Securities of
any series are issued in global form as permitted by SECTION 304, the form
thereof shall be established as provided in the preceding sentence. A copy of
the Board Resolution establishing the form or forms of Securities of any series
(or any such temporary global Security) shall be certified by the Secretary or
an Assistant Secretary of the Company and delivered to the Trustee at or prior
to the delivery of the Company Order contemplated by SECTION 303 for the
authentication and delivery of such Securities (or any such temporary global
Security).
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 thereof.
SECTION 202. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in
substantially the following form:
"This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
[ ],
------------------------------------
as Trustee
By
----------------------------
Authorized Signatory."
SECTION 203. Securities in Global Form.
If Securities of a series are issuable in global form, as
contemplated by SECTION 301, then, notwithstanding SECTIONS 301(10) and 302, any
such Security shall represent such of the Outstanding Securities of such series
as shall be specified therein and may provide that it shall represent the
aggregate amount of Outstanding Securities from time to time endorsed thereon
and that the aggregate amount of Outstanding Securities represented thereby may
from time to time be
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reduced to reflect exchanges. Any endorsement of a Security in global form to
reflect the amount, or any increase or decrease in the amount, of Outstanding
Securities represented thereby shall be made by the Trustee in such manner and
upon instructions given by such Person or Persons as shall be specified in such
Security or in a Company Order to be delivered to the Trustee pursuant to
SECTION 303 or SECTION 304. Subject to SECTION 303 and, if applicable, SECTION
304, the Trustee shall deliver and redeliver any Security in permanent global
form in the manner and upon instructions given by the Person or Persons
specified in such Security or in the applicable Company Order. With respect to
the Securities of any series that are represented by a Security in global form,
the Company authorizes the execution and delivery by the Trustee of a letter of
representations or other similar agreement or instrument in the form customarily
provided for by the Depositary appointed with respect to such global Security.
Any Security in global form may be deposited with the Depositary or its nominee,
or may remain in the custody of the Security Custodian therefor pursuant to a
FAST Balance Certificate Agreement or similar agreement between the Trustee and
the Depositary. If a Company Order pursuant to SECTION 303 or 304 has been, or
simultaneously is, delivered, any instructions by the Company with respect to
endorsement or delivery or redelivery of a Security in global form shall be in
writing but need not comply with SECTION 103 nor be accompanied by an Opinion of
Counsel.
Members of, or participants in, the Depositary ("AGENT
MEMBERS") shall have no rights under this Indenture with respect to any Security
issued in global form held on their behalf by the Depositary, or the Security
Custodian as its custodian, or under such global Security, and the Depositary
may be treated by the Company, the Security Custodian and any agent of the
Company or the Trustee as the absolute owner of such global Security for all
purposes whatsoever. Notwithstanding the foregoing, (i) the registered holder of
a Security of any series issued in global form may grant proxies and otherwise
authorize any Person, including Agent Members and Persons that may hold
interests through Agent Members, to take any action that a Holder of such series
is entitled to take under this Indenture or the Securities of such series, and
(ii) nothing herein shall prevent the Company, the Security Custodian or any
agent of the Company or the Security Custodian, from giving effect to any
written certification, proxy or other authorization furnished by the Depositary
or shall impair, as between the Depositary and its Agent Members, the operation
of customary practices governing the exercise of the rights of a beneficial
owner of any Security.
Notwithstanding SECTION 305, except as otherwise specified as
contemplated by SECTION 301, any permanent global Security shall be exchangeable
only as provided in this paragraph. If the beneficial owners of interests in a
permanent global Security are entitled to exchange such interest for Securities
of such series and of like tenor and principal amount of another authorized form
and denomination, as specified as contemplated by SECTION 301, then without
unnecessary delay but in any event not later than the earliest date on which
such interests may be so exchanged, the Company shall deliver to the Trustee
definitive Securities of that series in an aggregate principal amount equal to
the principal amount of such permanent global Security, executed by the Company.
On or after the earliest date on which such interests may be so exchanged, such
permanent global Security shall be surrendered from time to time in accordance
with instructions given to the Trustee and the Depositary (which instructions
shall be in writing but need not comply with SECTION 103 nor be accompanied by
an Opinion of Counsel) by the Depositary or such other depositary as shall be
specified in the Company Order with respect thereto to the
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Trustee, as the Company's agent for such purpose, to be exchanged, in whole or
in part, for definitive Securities of the same series without charge and the
Trustee shall authenticate and deliver, in exchange for each portion of such
permanent global Security, a like aggregate principal amount of other definitive
Securities of the same series of authorized denominations and of like tenor as
the portion of such permanent global Security to be exchanged; provided,
however, that no such exchanges may occur during a period beginning at the
opening of business 15 days before any selection of Securities of that series is
to be redeemed and ending on the relevant Redemption Date. Promptly following
any such exchange in part, such permanent global Security marked to evidence the
partial exchange shall be returned by the Trustee to the Depositary or such
other depositary referred to above in accordance with the instructions of the
Company referred to above. If a definitive Security is issued in exchange for
any portion of a permanent global Security after the close of business at the
office or agency where such exchange occurs on (i) any Regular Record Date and
before the opening of business at such office or agency on the relevant Interest
Payment Date, or (ii) any Special Record Date and before the opening of business
at such office or agency on the related proposed date for payment of Defaulted
Interest, interest or Defaulted Interest, as the case may be, will not be
payable on such Interest Payment Date or proposed date for payment, as the case
may be, in respect of such Security, but will be payable on such Interest
Payment Date or proposed for payment, as the case may be, only to the Person to
whom interest in respect of such portion of such permanent global Security is
payable in accordance with the provisions of this Indenture.
Notwithstanding SECTION 305, except as otherwise specified as
contemplated by SECTION 301, transfers of a Security issued in global form shall
be limited to transfers of such global Security in whole, but not in part, to
the Depositary, its successors or their respective nominees. Interests of
beneficial owners in a Security issued in global form may be transferred in
accordance with the rules and procedures of the Depositary. Securities of any
series shall be transferred to all beneficial owners of a global Security of
such series in exchange for their beneficial interests in that global Security
if, and only if, either (1) the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary for the global Security of such
series and a successor Depositary is not appointed by the Company within 90 days
of such notice, (2) an Event of Default has occurred with respect to such series
and is continuing and the Security Registrar has received a request from the
Depositary or the Trustee to issue Securities of such series in lieu of all or a
portion of that global Security (in which case the Company shall deliver
Securities of such series within 30 days of such request), or (3) the Company
determines not to have the Securities of such series represented by a global
Security.
In connection with any transfer of a portion of the beneficial
interest in a global Security of any series to beneficial owners pursuant to
this SECTION 203, the Security Registrar shall reflect on its books and records
the date and a decrease in the principal amount of the global Security of that
series in an amount equal to the principal amount of the beneficial interest in
the global Security of that series to be transferred, and the Company shall
execute, and the Trustee upon receipt of a Company Order for the authentication
and delivery of Securities of that series shall authenticate and deliver, one or
more Securities of the same series of like tenor and amount.
In connection with the transfer of all the beneficial
interests in a global Security of any series to beneficial owners pursuant to
this SECTION 203, the global Security shall be deemed to
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be surrendered to the Trustee for cancellation, and the Company shall execute,
and the Trustee shall authenticate and deliver, to each beneficial owner
identified by the Depositary in exchange for its beneficial interest in the
global Security, an equal aggregate principal amount of Securities of that
series of authorized denominations.
Neither the Company nor the Trustee will have any
responsibility or liability for any aspect of the records relating to, or
payments made on account of, Securities of any series by the Depositary, or for
maintaining, supervising or reviewing any records of the Depositary relating to
such Securities. Neither the Company nor the Trustee shall be liable for any
delay by the related global Security Holder or the Depositary in identifying the
beneficial owners, and each such Person may conclusively rely on, and shall be
protected in relying on, instructions from such global Security Holder or the
Depositary for all purposes (including with respect to the registration and
delivery, and the respective principal amounts, of the Securities to be issued).
The provisions of the last sentence of SECTION 303 shall apply
to any Security in global form if such Security was never issued and sold by the
Company and the Company delivers to the Trustee the Security in global form
together with written instructions (which need not comply with SECTION 103 nor
be accompanied by an Opinion of Counsel) with regard to the reduction in the
principal amount of Securities represented thereby, together with the written
statement contemplated by the last sentence of SECTION 303.
Notwithstanding SECTIONS 201 and 307, unless otherwise
specified as contemplated by SECTION 301, payment of principal of (and premium,
if any) and interest on and any Additional Amounts with respect to any Security
in permanent global form shall be made to the Person or Persons specified
therein.
Notwithstanding SECTION 308 and except as provided in the
preceding paragraph, the Company, the Trustee and any agent of the Company or of
the Trustee shall treat a Person as the Holder of such principal amount of
Outstanding Securities represented by a global Security as shall be specified in
a written statement, if any, of the Holder of such global Security, which is
produced to the Security Registrar by such Holder.
Global Securities may be issued in either temporary or
permanent form. Permanent global Securities will be issued in definitive form.
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
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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,
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to SECTION 304, 305, 306, 906 or
1107);
(3) whether any Securities of the series are to be issuable
initially in temporary global form and whether any Securities of the
series are to be issuable in permanent global form, and, if so, whether
beneficial owners of interests in any such global Security may exchange
such interests for Securities of such series and of like tenor of any
authorized form and denomination and the circumstances under which any
such exchanges may occur, if other than in the manner provided in
SECTION 203, and the Depositary for any global Security or Securities
of such series;
(4) the manner in which any interest payable on a temporary
global Security on any Interest Payment Date will be paid if other than
in the manner provided in SECTION 304;
(5) the date or dates on which the principal of (and premium,
if any, on) the Securities of the series is payable or the method of
determination thereof;
(6) the rate or rates, or the method of determination thereof,
at which the Securities of the series shall bear interest, if any,
whether and under what circumstances Additional Amounts with respect to
such Securities shall be payable, the date or dates from which such
interest shall accrue, the Interest Payment Dates on which such
interest shall be payable and, if other than as set forth in SECTION
101, the Regular Record Date for the interest payable on any Securities
on any Interest Payment Date;
(7) the place or places where, subject to the provisions of
SECTION 1002, the principal of (and premium, if any), any interest on
and any Additional Amounts with respect to the Securities of the series
shall be payable;
(8) the period or periods within which, the price or prices
(whether denominated in cash, securities or otherwise) at which and the
terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Company, if the
Company is to have that option, and the manner in which the Company
must exercise any such option, if different from those set forth
herein;
(9) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder
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thereof and the period or periods within which, the price or prices
(whether denominated in cash, securities or otherwise) at which and the
terms and conditions upon which Securities of the series shall be
redeemed or purchased in whole or in part pursuant to such obligation;
(10) the denomination in which any Securities of that series
shall be issuable, if other than denominations of $1,000 and any
integral multiple thereof;
(11) the currency or currencies (including composite
currencies) if other than Dollars, or the form, including equity
securities, other debt securities (including Securities), warrants or
any other securities or property of the Company or any other Person, in
which payment of the principal of (and premium, if any), any interest
on and any Additional Amounts with respect to the Securities of the
series shall be payable;
(12) if the principal of (and premium, if any) or interest on
or any Additional Amounts with respect to the Securities of the series
are to be payable, at the election of the Company or a Holder thereof,
in a currency or currencies (including composite currencies) other than
that in which the Securities are stated to be payable, the currency or
currencies (including composite currencies) in which payment of the
principal of (and premium, if any) and interest on, and any Additional
Amounts with respect to, Securities of such series as to which such
election is made shall be payable, and the periods within which and the
terms and conditions upon which such election is to be made;
(13) if the amount of payments of principal of (and premium,
if any), any interest on and any Additional Amounts with respect to the
Securities of the series may be determined with reference to any
commodities, currencies or indices, values, rates or prices or any
other index or formula, the manner in which such amounts shall be
determined;
(14) if other than the entire 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 502;
(15) any additional means of satisfaction and discharge of
this Indenture with respect to Securities of the series pursuant to
SECTION 401, any additional conditions to discharge pursuant to SECTION
401 or 403 and the application, if any, of SECTION 403;
(16) any deletions or modifications of or additions to the
definitions set forth in Section 101, the Events of Default set forth
in SECTION 501 or covenants of the Company set forth in ARTICLE TEN
pertaining to the Securities of the series;
(17) if the Securities of the series are to be convertible
into or exchangeable for equity securities, other debt securities
(including Securities), warrants or any other securities or property of
the Company or any other Person, at the option of the Company or the
Holder or upon the occurrence of any condition or event, the terms and
conditions for such conversion or exchange;
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(18) whether the Securities of the series are to be secured or
guaranteed;
(19) any restriction of condition on the transferability of
the Securities of the series;
(20) any Paying Agents, Security Registrars (if other than the
Trustee), conversion agents or other agents to be appointed by the
Company with respect to the Securities of the series; and
(21) any other terms of 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 the Board Resolution referred to above and (subject to SECTION
303) set forth, or determined in the manner provided, in the Officers'
Certificate referred to above or in any such indenture supplemental hereto.
At the option of the Company, interest on the Securities of
any series that bears interest may be paid by mailing a check to the address of
any Holder as such address shall appear in the Security Register.
If any of the terms of the series are established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action together with such Board Resolution shall be certified by the Secretary
or an Assistant Secretary of the Company and delivered to the Trustee at or
prior to the delivery of the Officers' Certificate setting forth the terms of
the series.
SECTION 302. Denominations.
The Securities of each series shall be issuable in such
denominations as shall be specified as contemplated by SECTION 301. In the
absence of any such provisions with respect to the Securities of any series, the
Securities of such series denominated in Dollars shall be issuable in
denominations of $1,000 and any integral multiple thereof. Unless otherwise
provided as contemplated by SECTION 301 with respect to any series of
Securities, any Securities of a series denominated in a currency other than
Dollars shall be issuable in denominations that are the equivalent, as
determined by the Company by reference to the noon buying rate in The City of
New York for cable transfers for such currency, as such rate is reported or
otherwise made available by the Federal Reserve Bank of New York, on the
applicable issue date for such Securities, of $1,000 and any integral multiple
thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
One Officer shall sign the Securities for the Company by
manual or facsimile signature.
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Securities bearing the manual or facsimile signatures of an
individual who was at any time an Officer shall bind the Company,
notwithstanding that such individual has ceased to hold such office prior to the
authentication and delivery of such Securities or did not hold such office 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 as in this Indenture provided and not otherwise.
If the form or terms of the Securities of the series have been
established in or pursuant to one or more Board Resolutions or any other method
permitted by SECTIONS 201 and 301, in authenticating such Securities, and
accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive, and (subject to
SECTION 601) shall be fully protected in relying upon, an Opinion of Counsel
stating,
(a) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by SECTION 201, that such
form has been established in conformity with the provisions of this
Indenture;
(b) if the terms of such Securities have been established by
or pursuant to Board Resolution as permitted by SECTION 301, that such
terms have been established in conformity with the provisions of this
Indenture; and
(c) that such Securities, when authenticated and delivered by
the Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute legal,
valid and binding obligations of the Company, enforceable in accordance
with their terms, except as such enforcement is subject to the effect
of (i) bankruptcy, insolvency, fraudulent conveyance, reorganization or
other laws relating to or affecting creditors' rights and (ii) general
principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law).
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
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. Notwithstanding
the foregoing, if any Security
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shall have been authenticated and delivered hereunder but never issued and sold
by the Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in SECTION 309 together with a written statement (which
need not comply with SECTION 103 and need not be accompanied by an Opinion of
Counsel) stating that such Security has never been issued and sold by the
Company, for all purposes of this Indenture such Security shall be deemed never
to have been authenticated and delivered hereunder and shall never be entitled
to the benefits of this Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any
series, the Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued, in registered form and with such appropriate insertions, omissions,
substitutions and other variations as the officers of the Company executing such
Securities may determine, as evidenced by their execution of such Securities.
Except in the case of temporary Securities in global form
(which shall be exchanged in accordance with the provisions of the following
paragraphs), 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 shall in all respects
be entitled to the same benefits under this Indenture as definitive Securities
of such series.
All Outstanding temporary Securities of any series shall in
all respects be entitled to the same benefits under this Indenture as definitive
Securities of the same series and of like tenor authenticated and delivered
hereunder.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept for each series of
Securities at one of the offices or agencies maintained pursuant to SECTION 1002
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 provide for the registration
of Securities and of transfers of Securities of such series. The Trustee is
hereby initially appointed "SECURITY REGISTRAR" for the purpose of registering
Securities and transfers of Securities as herein provided.
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Except as set forth in SECTION 203 or as may be provided
pursuant to SECTION 301, upon surrender for registration of transfer of any
Security of any series at the office or agency in a Place of Payment for that
series, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Securities of the same series and of like tenor, of any authorized
denominations and of a like aggregate principal amount.
At the option of the Holder, Securities of any series may be
exchanged for other Securities of the same series and of like tenor, of any
authorized denominations and of a like aggregate principal amount, upon
surrender of the Securities to be exchanged at such office or agency. Whenever
any Securities are so surrendered for exchange, the Company shall execute, and
the Trustee shall authenticate and deliver, the Securities which the Holder
making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchange pursuant to SECTION 304, 906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange Securities of any series during a period beginning at
the opening of business 15 days before the day of the mailing of a notice of
redemption of Securities of such series selected for redemption and ending at
the close of business on the day of the mailing of the relevant notice of
redemption or (ii) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the
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absence of notice to the Company or the Trustee that such Security has been
acquired by a bona fide purchaser, the Company shall execute and upon its
request the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security, a new Security of the same series and of
like tenor and principal amount and bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this SECTION 306,
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 fee and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this
SECTION 306 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.
The provisions of this SECTION 306 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; 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. Unless otherwise provided with respect to the Securities of any
series, payment of interest may be made at the option of the Company by check
mailed or delivered to the address of any Person entitled thereto as such
address shall appear in 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
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Company shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for
such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this clause (1) 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. The Trustee may, in its discretion, in the
name and at the expense of the Company, cause a similar notice to be
published at least once in an Authorized Newspaper, but such
publication shall not be a condition precedent to the establishment of
such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons in whose
names the Securities 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 (2), such manner of
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this SECTION 307, each
Security delivered under this Indenture, upon registration of transfer of, 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 308. 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) and (subject to SECTIONS 305 and 307) 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.
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SECTION 309. Cancellation.
All Securities surrendered for payment, redemption,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be delivered
to the Trustee. All Securities so delivered shall be promptly cancelled by the
Trustee. 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 cancelled by the Trustee. No Securities shall be authenticated
in lieu of or in exchange for any Securities cancelled as provided in this
SECTION 309, except as expressly permitted by this Indenture. All cancelled
Securities held by the Trustee shall be disposed of as directed by a Company
Order; provided that the Trustee shall not be required to destroy such
Securities.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by SECTION 301
for Securities of any series, interest on the Securities of each series shall be
computed on the basis of a year of twelve 30-day months.
SECTION 311. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers
(if then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in
notices of redemption as a convenience to Holders; provided that any such notice
may state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers.
ARTICLE FOUR
SATISFACTION, DISCHARGE AND DEFEASANCE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of
further effect with respect to Securities of a series, and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture with respect to Securities of such
series, when
(1) either
(A) all Securities of such series 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 306, and (ii)
Securities for whose
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payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as
provided in SECTION 1003) have been delivered to the Trustee
for cancellation; or
(B) with respect to all Outstanding Securities of such
series not theretofore delivered to the Trustee for
cancellation, the Company has deposited or caused to be
deposited with the Trustee as trust funds, under the terms of
an irrevocable trust agreement in form and substance
satisfactory to the Trustee, money or U.S. Government
Obligations maturing as to principal and interest in such
amounts and at such times as will (together with the income to
accrue thereon and without consideration of any reinvestment
thereof) be sufficient to pay and discharge (with such
delivery in trust to be for the stated purpose of paying and
discharging) the entire indebtedness on all Outstanding
Securities of such series not theretofore delivered to the
Trustee for cancellation for principal (and premium and
Additional Amounts, if any) and interest to the Stated
Maturity or any Redemption Date contemplated by the
penultimate paragraph of this SECTION 401, as the case may be;
or
(C) the Company has properly fulfilled such other means of
satisfaction and discharge as is specified, as contemplated by
SECTION 301, to be applicable to the Securities of such
series;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company with respect to the Outstanding
Securities of such series;
(3) the Company has complied with any other conditions
specified pursuant to SECTION 301 to be applicable to the discharge of
Securities of such series pursuant to this SECTION 401;
(4) 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 with respect to the Outstanding Securities
of such series have been complied with;
(5) if the conditions set forth in SECTION 401(1)(A) have not
been satisfied, and unless otherwise specified pursuant to SECTION 301
for the Securities of such series, the Company has delivered to the
Trustee an Opinion of Counsel to the effect that the Holders of
Securities of such series will not recognize income, gain or loss for
U.S. federal income tax purposes as a result of such deposit,
satisfaction and discharge and will be subject to U.S. federal income
tax on the same amount and in the same manner and at the same time as
would have been the case if such deposit, satisfaction and discharge
had not occurred; and
(6) no Default or Event of Default with respect to the
Securities of such issue shall have occurred and be continuing on the
date of such deposit or, insofar as clauses (5) or (6) of SECTION 501
are concerned, at any time in the period ending on the 91st day after
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the date of such deposit (it being understood that this condition shall
not be deemed satisfied until the expiration of such period).
For the purposes of this Indenture, "U.S. GOVERNMENT
OBLIGATIONS" means direct non-callable obligations of, or non-callable
obligations the payment of principal of and interest on which is guaranteed by,
the U.S., or to the payment of which obligations or guarantees the full faith
and credit of the U.S. is pledged, or beneficial interests in a trust the corpus
of which consists exclusively of money or such obligations or a combination
thereof.
If any Outstanding Securities of such series are to be
redeemed prior to their Stated Maturity, whether pursuant to any optional
redemption provisions or in accordance with any mandatory sinking fund
requirement, the trust agreement referred to in subclause (B) of clause (1) of
this SECTION 401 shall provide therefor and the Company shall make such
arrangements as are satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Company.
Notwithstanding the satisfaction and discharge of this
Indenture with respect to the Outstanding Securities of such series pursuant to
this SECTION 401, the obligations of the Company to the Trustee under SECTION
607, the obligations to any Authenticating Agent under SECTION 614 and, except
for a discharge pursuant to subclause (A) of clause (1) of this SECTION 401, the
obligations of the Company under SECTIONS 305, 306, 404, 610(e), 701, 1001 and
1002 and the obligations of the Trustee under SECTION 402 and the last paragraph
of SECTION 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of SECTION
1003, all money deposited with the Trustee pursuant to SECTION 401 shall be held
in trust and applied by it, in accordance with the provisions of the Securities
and this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest and Additional Amounts for the payment of which such money has
been deposited with the Trustee.
SECTION 403. Discharge of Liability on Securities of Any Series.
If this SECTION 403 is specified, as contemplated by SECTION
301, to be applicable to Securities of any series, the Company shall be deemed
to have paid and discharged the entire indebtedness on all the Outstanding
Securities of such series, the obligation of the Company under this Indenture
and the Securities of such series to pay the principal of (and premium, if any)
and interest on and any Additional Amounts with respect to Securities of such
series, shall cease, terminate and be completely discharged and the Trustee, at
the expense of the Company, shall execute proper instruments acknowledging such
satisfaction and discharge, when
(1) the Company has complied with the provisions of SECTION
401 (other than any additional conditions specified pursuant to
SECTIONS 301 and 401(3) and except that the Opinion of Counsel referred
to in SECTION 401(5) shall state that it is based on a ruling by the
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Internal Revenue Service or other change since the date hereof under
applicable Federal income tax law) with respect to all Outstanding
Securities of such series,
(2) the Company has delivered to the Trustee a Company Request
requesting such satisfaction and discharge,
(3) the Company has complied with any other conditions
specified pursuant to SECTION 301 to be applicable to the discharge of
Securities of such series pursuant to this SECTION 403, and
(4) 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 discharge of the
indebtedness on the Outstanding Securities of such series have been
complied with.
Upon the satisfaction of the conditions set forth in this
SECTION 403 with respect to all the Outstanding Securities of any series, the
terms and conditions of such series, including the terms and conditions with
respect thereto set forth in this Indenture, shall no longer be binding upon, or
applicable to, the Company; provided that the Company shall not be discharged
from any payment obligations in respect of Securities of such series which are
deemed not to be Outstanding under clause (iii) of the definition thereof if
such obligations continue to be valid obligations of the Company under
applicable law or pursuant to SECTION 305 or 306.
SECTION 404. Applicability of Defeasance Provisions; Company's Option to Effect
Defeasance or Covenant Defeasance.
Except as otherwise specified as contemplated by SECTION 301
for the Securities of any series, the provisions of SECTIONS 404 through 410
inclusive, with such modifications thereto as may be specified pursuant to
SECTION 301 with respect to any series of Securities, shall be applicable to the
Securities.
SECTION 405. Defeasance and Discharge.
On and after the date on which the conditions set forth in
SECTION 407 are satisfied with respect to the Securities of any series, the
Company shall be deemed to have paid and been discharged from its obligations
with respect to such Securities (hereinafter "DEFEASANCE"). For this purpose,
such defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by such Securities which shall
thereafter be deemed to be "OUTSTANDING" only for the purposes of SECTION 408
and the other Sections of this Indenture referred to in clause (ii) of this
SECTION 405, and to have satisfied all its other obligations under such
Securities and this Indenture insofar as such Securities are concerned (and the
Trustee, upon payment of all amounts due it under SECTION 607, at the expense of
the Company, shall on a Company Order execute proper instruments acknowledging
the same), except the following which shall survive until otherwise terminated
or discharged hereunder: (i) the rights of Holders of such Securities to
receive, solely from the trust funds described in SECTION 407(a) and as more
fully set forth in such
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SECTION 407(a), payments in respect of the principal of, premium, if any, and
interest, if any, on such Securities when such payments are due; (ii) the
Company's obligations with respect to such Securities under SECTIONS 305, 309,
1002 and 1003 and with respect to the payment of Additional Amounts, if any,
payable with respect to such Securities as specified pursuant to clause (13) of
SECTION 301; (iii) the Company's obligations with respect to a conversion or
exchange of such Securities; (iv) the rights, powers, trusts, duties and
immunities of the Trustee hereunder; and (v) this ARTICLE FOUR. Subject to
compliance with this ARTICLE FOUR, the Company may defease the Securities of any
series under this SECTION 405 notwithstanding a prior covenant defeasance (as
defined herein) under SECTION 406 with respect to such Securities. Following a
defeasance, payment of such Securities may not be accelerated because of an
Event of Default.
SECTION 406. Covenant Defeasance.
On and after the date on which the conditions set forth in
SECTION 407 (other than SECTION 407(c)) are satisfied with respect to the
Securities of or within any series, (i) the Company shall be released from its
obligations under SECTIONS 801 and 1004 and, if specified pursuant to SECTION
301, its obligations under any other covenant, with respect to such Securities
and (ii) the occurrence of any event specified in clauses (4) and (7) of SECTION
501 (with respect to any of the obligations described in clause (i) above) shall
be deemed not to be or result in an Event of Default (hereinafter, "COVENANT
DEFEASANCE"), and such Securities shall thereafter be deemed to be not
"OUTSTANDING" for the purposes of any request, demand, authorization, direction,
notice, waiver, consent or declaration or Act of Holders (and the consequences
of any thereof) in connection with SECTION 801 or SECTION 1004, such other
covenant specified pursuant to SECTION 301, but shall continue to be deemed
"OUTSTANDING" for all other purposes hereunder. For this purpose, such covenant
defeasance means that, with respect to such Securities, the Company may omit to
comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such Section or such other covenant, whether
directly or indirectly, by reason of any reference elsewhere herein to any such
Section or such other covenant or by reason of reference in any such Section or
such other covenant to any other provision herein or in any other document and
such omission to comply shall not constitute a Default or an Event of Default
under clauses (4) and (7) of SECTION 501 or otherwise, as the case may be, but,
except as specified above the remainder of this Indenture and such Securities
and any interest coupons appertaining thereto shall be unaffected thereby.
SECTION 407. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of
SECTION 405 or SECTION 406 to any Securities of any series:
(a) the Company shall have deposited or caused to be deposited
irrevocably with the Trustee (or another trustee satisfying the requirements of
SECTION 609 who shall agree to comply with, and shall be entitled to the
benefits of, the provisions of SECTIONS 404 through 410 inclusive and the last
paragraph of SECTION 1003 applicable to the Trustee, for purposes of such
Sections also a "TRUSTEE") as trust funds in trust for the purpose of making the
payments referred to in clauses (x) and (y) of this SECTION 407(a), specifically
pledged as security for, and dedicated solely to, the benefit of the Holders of
such Securities, with written instructions to the Trustee as to the application
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thereof, (A) money in an amount (in such currency, currencies or currency unit
or units in which such Securities are then specified as payable at Stated
Maturity), or (B) if Securities of such series are not subject to repayment at
the option of Holders, Government Obligations which through the payment of
interest and principal in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment referred to
in clause (x) or (y) of this SECTION 407(A), money in an amount or (C) a
combination thereof in an amount, sufficient, in the opinion of a nationally
recognized firm of independent certified public accountants or a nationally
recognized investment banking firm expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and which shall be applied by
the Trustee to pay and discharge, (x) the principal of, premium, if any, and
interest, if any, on such Securities on the Stated Maturity of such principal or
installment of principal or interest and (y) any mandatory sinking fund payments
applicable to such Securities on the date on which such payments are due and
payable in accordance with the terms of this Indenture and such Securities.
Before such a deposit the Company may make arrangements satisfactory to the
Trustee for the redemption of Securities at a future date or dates in accordance
with ARTICLE ELEVEN which shall be given effect in applying the foregoing.
(b) No Default or Event of Default with respect to the
Securities of that series shall have occurred or be continuing on the date of
such a deposit or shall occur as a result of such a deposit or, insofar as
clauses (5) and (6) of SECTION 501 are concerned, shall occur at any time during
the period ending on the 91st day after the date of such deposit.
(c) In the case of an election under SECTION 405, the Company
shall have delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel to the effect that (i) the Company has received from or there has been
published by, the Internal Revenue Service a ruling, or (ii) since the date of
execution of this Indenture, there has been a change in the applicable U.S.
Federal income tax law, in either case to the effect that, and based thereon
such opinion shall confirm that, the Holders of such Securities and any interest
coupons appertaining thereto will not recognize income, gain or loss for U.S.
Federal income tax purposes as a result of such defeasance and will be subject
to U.S. Federal income tax on the same amount and in the same manner and at the
same times, as would have been the case if such deposit, defeasance and
discharge had not occurred.
(d) In the case of an election under SECTION 406, the Company
shall have delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel to the effect that the Holders of such Securities and any interest
coupons appertaining thereto will not recognize income, gain or loss for U.S.
Federal income tax purposes as a result of such covenant defeasance and will b
subject to U.S. Federal income tax on the same amount and in the same manner and
at the same times, as would have been the case if such deposit and covenant
defeasance had not occurred.
(e) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent to the defeasance under SECTION 405 or the covenant
defeasance under SECTION 406 (as the case may be) have been complied with.
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(f) Such defeasance or covenant defeasance shall be effected
in compliance with any additional or substitute terms, conditions or limitations
which may be imposed on the Company in connection therewith as contemplated by
SECTION 301.
(g) At the time of such deposit: (A) no Default in the payment
of principal of (or premium, if any) or interest on any Senior Debt shall have
occurred and be continuing or (B) no other Event of Default with respect to any
Senior Debt shall have occurred and be continuing and shall have resulted in
such Senior Debt becoming or being declared due and payable prior to the date on
which it would otherwise have become due and payable, or, in the case of either
clause (A) or clause (B) above, each such Default or Event of Default shall have
been cured or waived or shall have ceased to exist.
SECTION 408. Deposited Money and Government Obligations to be Held in Trust.
Subject to the provisions of the last paragraph of SECTION
1003, all money and Government Obligations (or other property as may be provided
pursuant to SECTION 301) (including the proceeds thereof) deposited with the
Trustee pursuant to SECTION 407 in respect of any Securities of any series shall
be held in trust and applied by the Trustee, in accordance with the provisions
of such 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 Holders of such Securities of all sums due
and to become due thereon in respect of principal, premium, if any, and
interest, if any, but such money need not be segregated from other funds except
as provided herein and except to the extent required by law.
SECTION 409. Repayment to Company.
The Trustee (and any Paying Agent) shall promptly pay to the
Company upon Company Request any excess money or securities held by them at any
time.
The provisions of the last paragraph of SECTION 1003 shall
apply to any money or securities held by the Trustee or any Paying Agent under
this ARTICLE FOUR that remain unclaimed for two years after the Maturity of any
series of Securities for which money or securities have been deposited pursuant
to SECTION 407(a).
SECTION 410. Indemnity for Government Obligations.
The Company shall pay, and shall indemnify the Trustee
against, any tax, fee or other charge imposed on or assessed against Government
Obligations deposited pursuant to this ARTICLE FOUR or the principal and
interest and any other amount received on such Government Obligations.
SECTION 411. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or
U.S. Government Obligations deposited with respect to Securities of any series
in accordance with SECTION 401 or
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SECTION 407 by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Company's obligations under this
Indenture with respect to the Securities of such series and the Securities of
such series shall be revived and reinstated as though no deposit had occurred
pursuant to SECTION 401 or SECTION 407 until such time as the Trustee or Paying
Agent is permitted to apply all such money or U.S. Government Obligations in
accordance with SECTION 401 or SECTION 407; provided, however, that if the
Company has made any payment of principal of (or premium, if any), or interest
on or any Additional Amounts with respect to any Securities because of the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Securities to receive such payment from the money or U.S.
Government Obligations held by the Trustee or Paying Agent.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"EVENT OF DEFAULT," wherever used herein with respect to
Securities of any series, means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body), unless it is either inapplicable to a
particular series or it is specifically deleted or modified in or pursuant to
the supplemental indenture or Board Resolution establishing such series of
Securities or in the form of Security for such series:
(1) default in the payment of any interest on or any
Additional Amounts with respect to any Security of that series when
such interest or Additional Amounts become 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 mandatory sinking fund
payment, when and as due by the terms of a Security of that series and
continuance of such default for a period of 30 days; or
(4) default in the performance or breach of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this SECTION 501 specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of one or more series
of Securities other than that series), and continuance of such default
or breach for a period of 90 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal
amount of all Outstanding Securities a written notice specifying such
default or breach and
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requiring it to be remedied and stating that such notice is a "NOTICE
OF DEFAULT" hereunder; or
(5) 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 any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar 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 90 consecutive
days; or
(6) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar 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 any applicable
Federal or State bankruptcy, insolvency, reorganization or other
similar 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 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 the taking of corporate action by the Company in
furtherance of any such action; or
(7) any other Event of Default provided with respect to
Securities of that series.
Notwithstanding the foregoing provisions of this SECTION 501,
if the principal of (and premium, if any) or any interest on, or Additional
Amounts with respect to, any Security is payable in a currency or currencies
(including a composite currency) other than Dollars and such currency (or
currencies) is (or are) not available to the Company for making payment thereof
due to the imposition of exchange controls or other circumstances beyond the
control of the Company (a "CONVERSION EVENT"), the Company will be entitled to
satisfy its obligations to Holders of the Securities by making such payment in
Dollars in an amount equal to the Dollar equivalent of the amount payable in
such other currency, as determined by the Company by reference to the noon
buying rate in The City of New York for cable transfers for such currency
("EXCHANGE RATE"), as such Exchange Rate is certified for customs purposes by
the Federal Reserve Bank of New York on the date of such payment, or, if such
rate is not then available, on the basis of the most recently available Exchange
Rate. Notwithstanding the foregoing provisions of this SECTION 501, any payment
made under such circumstances in Dollars where the required payment is in a
currency other than Dollars will not constitute an Event of Default under this
Indenture.
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Promptly after the occurrence of a Conversion Event with
respect to Securities of any series, the Company shall give written notice
thereof to the Trustee; and the Trustee, promptly after receipt of such notice,
shall give notice thereof in the manner provided in SECTION 107 to the Holders
of such series. Promptly after the making of any payment in Dollars as a result
of a Conversion Event with respect to Securities of any series, the Company
shall give notice in the manner provided in SECTION 107 to the Holders of such
series, setting forth the applicable Exchange Rate and describing the
calculation of such payments.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to any 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 (i) the series affected by such default (in the case
of an Event of Default described in clause (1), (2), (3) or (7) of SECTION 501)
or (ii) all series of Securities (subject to the immediately following sentence,
in the case of an Event of Default described in clause (4) of SECTION 501) may
declare the principal amount (or, if any such Securities 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 the series affected by
such default or all series, as the case may be, to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such principal amount (or specified
amount) shall become immediately due and payable. If an Event of Default
described in clause (5) or (6) of SECTION 501 shall occur, the principal amount
of the Outstanding Securities of all series ipso facto shall become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holder.
At any time after such a declaration of acceleration with
respect to Securities of any series (or of all series, as the case may be) 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 FIVE provided, the
Holders of a majority in principal amount of the Outstanding Securities of that
series (or of all series, as the case may be), 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, and any Additional Amounts
with respect to, all Securities of that series (or of all
series, as the case may be),
(B) the principal of (and premium, if any, on) any
Securities of that series (or of all series, as the case may
be) which have become due otherwise than by such declaration
of acceleration and interest thereon at the rate or rates
prescribed therefor in such Securities (in the case of
Original Issue Discount Securities, the Securities' Yield to
Maturity),
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest and any Additional Amounts at
the rate or rates prescribed therefor
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in such Securities (in the case of Original Issue Discount
Securities, the Securities' Yield to Maturity), and
(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 (or of all series, as the case may be), other than the
non-payment of the principal of Securities of that series (or of all
series, as the case may be) which have become due solely by such
declaration of acceleration, have been cured or waived as provided in
SECTION 512.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any installment of
interest on, or any Additional Amounts with respect to, any Security of
any series when such interest or Additional Amounts shall have become
due and payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest and Additional
Amounts and, to the extent that payment of such interest shall be legally
enforceable, interest on any overdue principal (and premium, if any) and on any
overdue interest and Additional Amounts, at the rate or rates prescribed
therefor in such Securities (or in the case of Original Issue Discount
Securities, the Securities' Yield to Maturity), and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon such Securities
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon such
Securities, wherever situated.
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If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities of
such series by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal (or lesser amount
in the case of Original Issue Discount Securities) 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 (and premium, if any), interest or any
Additional Amounts) 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 (or lesser amount in the case of Original Issue Discount
Securities) (and premium, if any) and interest and any Additional
Amounts 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 monies or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under SECTION 607.
Nothing herein 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 proceedings; provided,
however, that the Trustee may, on behalf of the Holders, vote for the election
of a trustee in bankruptcy or similar official.
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SECTION 505. Trustee May Enforce Claims Without Possession of Securities or
Coupons.
All rights of action and claim under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without possession of
any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this ARTICLE
FIVE 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), interest or any Additional Amounts, upon presentation of
the Securities, and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
SECTION 607;
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on and any Additional
Amounts with respect to 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),
interest and Additional Amounts, respectively; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
To the fullest extent allowed under applicable law, if for the
purpose of obtaining judgment against the Company in any court it is necessary
to convert the sum due in respect of the principal of (or premium, if any) or
interest on or any Additional Amounts with respect to the Securities of any
series (the "REQUIRED CURRENCY") into a currency in which a judgment will be
rendered (the "JUDGMENT CURRENCY"), the rate of exchange used shall be the rate
at which in accordance with normal banking procedures the Trustee could purchase
in The City of New York the Required Currency with the Judgment Currency on the
New York Business Day next preceding that on which final judgment is given.
Neither the Company nor the Trustee shall be liable for any shortfall nor shall
it benefit from any windfall in payments to Holders of Securities under this
SECTION 506 caused by a change in exchange rates between the time the amount of
a judgment against it is calculated as above and the time the Trustee converts
the Judgment Currency into the Required Currency to make payments under this
SECTION 506 to Holders of Securities, but payment of such judgment shall
discharge all amounts owed by the Company on the claim or claims underlying such
judgment.
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SECTION 507. Limitation on Suits.
Subject to SECTION 508, 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) an Event of Default with respect to Securities of such
series shall have occurred and be continuing and such Holder has
previously given written notice to the Trustee of such continuing Event
of Default;
(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 in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal Premium and
Interest.
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if any) and
(subject to SECTION 307) interest on and any Additional Amounts with respect to
such Security on the Stated Maturity or Maturities expressed in such Security
(or, in the case of redemption, on the Redemption Date) and to institute suit
for the enforcement of any such payment, and such rights shall not be impaired
or affected without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder of any Security has instituted
any proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, then and in every
such case the Company, the Trustee and the Holders shall, subject to any
determination in such proceeding, 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.
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SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of SECTION 306, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Securities to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
ARTICLE FIVE or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
SECTION 512. Control by Holders.
With respect to Securities of any series, the Holders of a
majority in principal amount of the Outstanding Securities of such 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, relating to or arising under an Event of Default
described in clause (1), (2), (3) or (7) of SECTION 501, and with respect to all
Securities the Holders of a majority in principal amount of all Outstanding
Securities shall have the right to direct the time, method and place of
conducting any remedy available to the Trustee, or exercising any trust or power
conferred on the Trustee, not relating to or arising under such an Event of
Default, provided that in each such case
(1) such direction shall not be in conflict with any rule of
law or with this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
The Holders of a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, and the Holders of a majority in principal amount
of all Outstanding Securities may on behalf of the Holders of all Securities
waive any other past default hereunder and its consequences, except in each case
a default
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(1) in the payment of the principal of (or premium, if any) or
interest on, or any Additional Amounts with respect to, any Security,
or
(2) in respect of a covenant or provision hereof which under
ARTICLE NINE cannot be modified or amended without the consent of the
Holder of each Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
All parties to this Indenture agree, and each 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 or omitted by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including reasonable attorneys'
fees, against any party litigant in such suit, having due regard to the merits
and good faith of the claims or defenses made by such party litigant; but the
provisions of this SECTION 514 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) or interest on, or any Additional Amounts with respect to, 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 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time 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.
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ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default with
respect to the Securities of any series,
(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
with respect to the Securities of any series, the Trustee shall
exercise such of the rights and powers vested in it by this Indenture,
and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the
conduct of his or her own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its
own negligent failure to act or its own willful misconduct, except that
(1) this subsection shall not be construed to limit the
effect of subsection (a) of this SECTION 601;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless
it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a majority in
principal amount of the Outstanding Securities of any series
or of all series, determined as provided in SECTION 511,
relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee,
under this Indenture with respect to the Securities of such
series; and
(4) no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers,
if it shall have reasonable grounds for believing that
repayment of such funds or indemnity satisfactory to it
against such risk or liability is not assured to it.
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(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 601.
SECTION 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder
with respect to the Securities of any series, the Trustee shall give notice of
such default hereunder known to the Trustee to all Holders of Securities of such
series in the manner provided in SECTION 107, unless such default shall have
been cured or waived; provided, however, that, except in the case of a default
in the payment of the principal of (or premium, if any) or interest on, or any
Additional Amounts with respect to, any Security of such series or in the
payment of any sinking fund installment with respect to Securities of such
series, the Trustee shall be protected in withholding such notice if and so long
as the board of directors, the executive committee or a trust committee of
directors or Responsible Officers of the Trustee in good faith determines that
the withholding of such notice is in the interest of the Holders of Securities
of such series; and provided, further, that in the case of any default of the
character specified in SECTION 501(4) with respect to Securities of such series,
no such notice to Holders shall be given until at least 30 days after the
occurrence thereof. For the purpose of this SECTION 602, the term "DEFAULT"
means any event, act or condition which is, or after notice or lapse of time or
both would become, an Event of Default with respect to Securities of such
series.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of SECTION 601:
(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, coupon, other evidence of indebtedness or
other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(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 of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
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(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 security or indemnity
satisfactory to it against the costs, expenses and liabilities which
might be incurred by it in compliance with such request or direction;
(f) 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, coupon, other evidence of
indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Trustee shall determine
to make such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company, personally or
by agent or attorney; 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, except for any Affiliates of the
Trustee, 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 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except
the Trustee's certificates of authentication, shall be taken as the statements
of the Company, and 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. The Trustee shall not be accountable for the use
or application by the Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Securities and, subject to
SECTIONS 608 and 613, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees
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(1) to pay to the Trustee from time to time compensation for
all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
compensation and the reasonable expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee and each of its directors,
officers, employees, agents and/or representatives for, and to hold
each of them harmless against, any loss, liability or expense incurred
without negligence or bad faith on each of their part, arising out of
or in connection with the acceptance or administration of the trust or
trusts hereunder, including the costs and expenses of defending
themselves against any claim or liability in connection with the
exercise or performance of any of the Trustee's powers or duties
hereunder.
As security for the performance of the obligations of the
Company under this SECTION 607, the Trustee shall have a lien prior to the
Securities upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of, premium, if any, or
interest, if any, on, or any Additional Amounts with respect to, particular
Securities.
Any expenses and compensation for any services rendered by the
Trustee after the occurrence of an Event of Default specified in clause (5) or
(6) of SECTION 501 shall constitute expenses and compensation for services of
administration under all applicable federal or state bankruptcy, insolvency,
reorganization or other similar laws.
The provisions of this SECTION 607 shall survive the
termination of this Indenture.
SECTION 608. Disqualification; Conflicting Interests.
(a) If the Trustee has or shall acquire any conflicting
interest, as defined in this SECTION 608, with respect to the
Securities of any series, it shall, within 90 days after ascertaining
that it has such conflicting interest, either eliminate such
conflicting interest or resign with respect to the Securities of that
series in the manner and with the effect hereinafter specified in this
ARTICLE SIX.
(b) In the event that the Trustee shall fail to comply with
the provisions of subsection (a) of this SECTION 608 with respect to
the Securities of any series, the Trustee shall, within 10 days after
the expiration of such 90-day period, transmit by mail to all Holders
of Securities of that series, as their names and addresses appear in
the Security Register, notice of such failure.
(c) For the purposes of this SECTION 608, the term
"CONFLICTING INTEREST" shall have the meaning specified in Section
310(b) of the Trust Indenture Act and the Trustee shall
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comply with Section 310(b) of the Trust Indenture Act; provided that
there shall be excluded from the operation of Section 310(b)(1) of the
Trust Indenture Act with respect to the Securities of any series any
indenture or indentures under which other securities, or certificates
of interest or participation in other securities, of the Company are
outstanding, if the requirements for such exclusion set forth in
Section 310(b)(1) of the Trust Indenture Act are met. For purposes of
the preceding sentence, the optional provision permitted by the second
sentence of Section 310(b)(9) of the Trust Indenture Act shall be
applicable.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be
a corporation organized and doing business under the laws of the U.S., any State
thereof or the District of Columbia, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least
$50,000,000 and subject to supervision or examination by Federal or 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 examining authority, then for the purposes of this SECTION 609,
the combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this SECTION 609, it shall resign immediately
in the manner and with the effect hereinafter specified in this ARTICLE SIX.
The Indenture shall always have a Trustee who satisfies the
requirements of Sections 310(a)(1), 310(a)(2) and 310(a)(5) of the Trust
Indenture Act.
SECTION 610. 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 SIX shall
become effective until the acceptance of appointment by the successor
Trustee in accordance with the applicable requirements of SECTION 611.
(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. If the instrument of acceptance by a successor Trustee
required by SECTION 611 shall not have been delivered to the resigning
Trustee within 30 days after the giving of such notice of resignation,
the resigning Trustee may petition any court of competent jurisdiction
for the appointment of a successor Trustee with respect to the
Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series,
delivered to the Trustee and to the Company.
(d) If at any time:
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(1) the Trustee shall fail to comply with SECTION 608(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
609 and shall fail to resign after written request therefor by
the Company or by any such Holder of Securities, or
(3) the Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent or a receiver of the
Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may
remove the Trustee with respect to all Securities, or (ii) subject to
SECTION 513, any Holder who has been a bona fide Holder of a Security
for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee with respect to all Securities and the
appointment of a successor Trustee or Trustees.
(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 such successor
Trustee or Trustees shall comply with the applicable requirements of
SECTION 611. If no successor Trustee with respect to the Securities of
any series shall have been so appointed by the Company and accepted
appointment in the manner required by SECTION 611, any Holder who has
been a bona fide Holder of a Security of such series for at least six
months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities
of any series by mailing written notice of such event by first-class
mail, postage prepaid, to all Holders of Securities of such series as
their names and addresses appear in the Security Register. Each notice
shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust
Office.
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SECTION 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor
Trustee with respect to all Securities, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and to
the retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee shall
become effective and such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee; but, on the request of the
Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring
to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee
hereunder.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all)
series, the Company, the retiring Trustee and each successor Trustee
with respect to the Securities of one or more series shall execute and
deliver an indenture supplemental hereto wherein each successor Trustee
shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm
to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring
with respect to all Securities, shall contain such provisions as shall
be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series as to which the retiring Trustee is
not retiring shall continue to be vested in the retiring Trustee and
(3) shall add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such
Trustees co-trustees of the same trust and that each such Trustee shall
be trustee of a trust or trusts hereunder separate and apart from any
trust or trusts hereunder administered by any other such Trustee; and
upon the execution and delivery of such supplemental indenture, the
resignation or removal of the retiring Trustee shall become effective
to the extent provided therein and each such successor Trustee, without
any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of
such successor Trustee relates; but, on request of the Company or any
successor Trustee, such retiring Trustee shall duly assign, transfer
and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that
or those series to which the appointment of such successor Trustee
relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights,
powers and trusts referred to in paragraph (a) or (b) of this SECTION
611, as the case may be.
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(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 SIX.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
ARTICLE SIX, 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.
SECTION 613. Preferential Collection of Claims Against Company.
The Trustee shall comply with Section 311(a) of the Trust
Indenture Act, excluding any creditor relationship described in Section 311(b)
of the Trust Indenture Act. A Trustee who has resigned or been removed shall be
subject to Section 311(a) of the Trust Indenture Act to the extent indicated
therein.
SECTION 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents
which shall be authorized to act on behalf of the Trustee to authenticate
Securities issued upon original issue and upon exchange, registration of
transfer or partial redemption or pursuant to SECTION 306, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the authentication
and delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall at all
times be a corporation organized and doing business under the laws of the U.S.,
any State thereof or the District of Columbia having a combined capital and
surplus of not less than $50,000,000 or equivalent amount expressed in a foreign
currency and subject to supervision or examination by Federal or State or
District of Columbia authority or authority of such country. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this SECTION 614, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this SECTION 614, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this SECTION 614.
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Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this SECTION 614, without the execution or filing of
any paper or any further act on the part of the Trustee or the Authenticating
Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this SECTION 614, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall mail
written notice of such appointment by first-class mail, postage prepaid, to all
Holders as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this SECTION 614.
The Trustee agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this SECTION 614,
and the Trustee shall be entitled to be reimbursed for such payments, subject to
the provisions of SECTION 607.
If an appointment is made pursuant to this SECTION 614, the
Securities may have endorsed thereon, in addition to the Trustee's certificate
of authentication, an alternate certificate of authentication in the following
form:
"This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
[TRUSTEE],
as Trustee
By
------------------------------------------
as Authenticating Agent
By
------------------------------------------
Authorized Signatory."
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Notwithstanding any provision of this SECTION 614 to the
contrary, if at any time any Authenticating Agent appointed hereunder with
respect to any series of Securities shall not also be acting as the Security
Registrar hereunder with respect to any series of Securities, then, in addition
to all other duties of an Authenticating Agent hereunder, such Authenticating
Agent shall also be obligated: (i) to furnish to the Security Registrar promptly
all information necessary to enable the Security Registrar to maintain at all
times an accurate and current Security Register; and (ii) prior to
authenticating any Security denominated in a foreign currency, to ascertain from
the Company the units of such foreign currency that are required to be
determined by the Company pursuant to SECTION 302.
ARTICLE SEVEN
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
With respect to each series of Securities, the Company will
furnish or cause to be furnished to the Trustee:
(a) semi-annually, not more than 15 days after each Regular
Record Date relating to that series (or, if there is no Regular Record
Date relating to that series, on January 1 and July 1), a list, in such
form as the Trustee may reasonably require, of the names and addresses
of the Holders of that series as of such dates, 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, such list to be dated as of a date
not more than 15 days prior to the time such list is furnished;
provided that so long as the Trustee is the Security Registrar, the Company
shall not be required to furnish or cause to be furnished such a list to the
Trustee. The Company shall otherwise comply with Section 310(a) of the Trust
Indenture Act.
SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders of each
series contained in the most recent list furnished to the Trustee as
provided in SECTION 701 and the names and addresses of Holders of each
series received by the Trustee in its capacity as Security Registrar,
if applicable. The Trustee may destroy any list furnished to it as
provided in SECTION 701 upon receipt of a new list so furnished. The
Trustee shall otherwise comply with Section 310(a) of the Trust
Indenture Act.
(b) Holders of Securities may communicate pursuant to Section
312(b) the Trust Indenture Act with other Holders with respect to their
rights under this Indenture or under the Securities.
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(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company
nor the Trustee nor any agent of either of them shall be held
accountable by reason of the disclosure of any such information as to
the names and addresses of the Holders in accordance with SECTION
702(b), regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason
of mailing any material pursuant to a request made under SECTION
702(b). The Company, the Trustee, the Security Registrar and any other
Person shall have the protection of Section 312(c) of the Trust
Indenture Act.
SECTION 703. Reports by Trustee.
(a) Within 60 days after May 15 of each year after the
execution of this Indenture, the Trustee shall transmit by mail to
Holders a brief report dated as of such May 15 that complies with
Section 313(a) of the Trust Indenture Act.
(b) The Trustee shall comply with Section 313(b) of the Trust
Indenture Act.
(c) Reports pursuant to this SECTION 703 shall be transmitted
by mail as required by Sections 313(c) and 313(d) of the Trust
Indenture Act:
(1) to all Holders of Securities, as the names and
addresses of such Holders appear in the Security Register;
(2) to such Holders of Securities as have, within the two
years preceding such transmissions, filed their names and
addresses with the Trustee for that purpose; and
(3) except in the case of reports pursuant to subsection
(b) of this SECTION 703, to each Holder of a Security whose
name and address is preserved at the time by the Trustee, as
provided in SECTION 702(a).
(d) A copy of each report pursuant to subsection (a) or (b) of
this SECTION 703 shall, at the time of its transmission to Holders, be
filed by the Trustee with each stock exchange upon which any Securities
are listed, with the Commission and with the Company. The Company will
notify the Trustee when any Securities are listed on any stock
exchange.
SECTION 704. Reports by Company.
The Company shall file with the Trustee, 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 the Commission may from time to time by
rules and regulations prescribe) which the Company may be required to file with
the Commission pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934, as amended, and shall otherwise comply with Section 314(a)
of the Trust Indenture Act.
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ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
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, unless:
(1) 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 be a corporation, partnership or
trust and shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory to the
Trustee, the due and punctual payment of the principal of (and premium,
if any) and interest on and any Additional Amounts with respect to all
the Securities and the performance of every covenant of this Indenture
on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no
Event of Default, and no event, act or condition which, after notice or
lapse of time or both, would become an Event of Default, shall have
happened and be continuing; and
(3) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction,
such supplemental indenture comply with this ARTICLE EIGHT and that all
conditions precedent herein provided for relating to such transaction
have been complied with.
SECTION 802. Successor Person Substituted.
Upon any consolidation by the Company with or merger by 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 801, 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 had been named as the Company herein, and thereafter, except in
the case of such lease, the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the Securities.
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ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such covenants
are to be for the benefit of less than all series of Securities,
stating that such covenants are expressly being included solely for the
benefit of such series), to convey, transfer, assign, mortgage or
pledge any property to or with the Trustee or otherwise secure any
series of the Securities or to surrender any right or power herein
conferred upon the Company; or
(3) to add any additional Events of Default with respect to
all or any series of the Securities (and, if such Event of Default is
applicable to less than all series of Securities, specifying the series
to which such Event of Default is applicable); or
(4) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become
effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture which is
adversely affected by such change in or elimination of such provision;
or
(5) to establish the form or terms of Securities of any series
as permitted by SECTIONS 201 and 301; or
(6) to supplement any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the
defeasance and discharge of any series of Securities pursuant to
SECTION 401; provided, however, that any such action shall not
adversely affect the interest of the Holders of Securities of such
series or any other series of Securities in any material respect; or
(7) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of SECTION 611(b); or
(8) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture, provided such other
provisions as may be made shall not adversely affect the interests of
the Holders of Securities of any series in any material respect; or
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(9) to modify or amend any of the provisions of this Indenture
to permit or facilitate the qualification of this Indenture or any
indenture supplemental hereto under the Trust Indenture Act; or
(10) to comply with any of the provisions of ARTICLE EIGHT of
this Indenture relating to the consolidation or merger of the Company
or any conveyance, transfer or lease of the Company's properties and
assets as an entirety; or
(11) to add guarantees with respect to the Securities of one
or more series or to secure the Securities of one or more series; or
(12) to provide for uncertificated Securities in addition to,
or in place of, certificated Securities.
SECTION 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of a majority in principal
amount of the Outstanding Securities of all series affected by such supplemental
indenture (acting as one class), by Act of said Holders delivered to the Company
and the Trustee, the Company, when authorized by a Board Resolution, and the
Trustee may enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Indenture or of modifying in any manner the rights of
the Holders of Securities of such series under this Indenture; provided,
however, that no such supplemental indenture shall, without the consent of the
Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium
payable upon the redemption thereof, or reduce the amount of the
principal of an Original Issue Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof
pursuant to SECTION 502, or change any Place of Payment where, or the
coin or currency or currencies (including composite currencies) in
which, any Security or any premium or any interest thereon or
Additional Amounts with respect thereto is payable, or impair the right
to institute suit for the enforcement of any such payment on or after
the Stated Maturity thereof (or, in the case of redemption, on or after
the Redemption Date), or
(2) reduce the percentage in principal amount of Outstanding
Securities, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for
any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this SECTION 902, SECTION
512 or SECTION 1006, except to increase any such percentage or to
provide with respect to any particular series the right to condition
the effectiveness of any supplemental indenture as to
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that series on the consent of the Holders of a specified percentage of
the aggregate principal amount of Outstanding Securities of such series
(which provision may be made pursuant to SECTION 301 without the
consent of any Holder) or to provide that certain other provisions of
this Indenture cannot be modified or waived without the consent of the
Holder of each Outstanding Security affected thereby; provided,
however, that this clause (3) shall not be deemed to require the
consent of any Holder with respect to changes in the references to "the
Trustee" and concomitant changes in this SECTION 902 and SECTION 1006,
or the deletion of this proviso, in accordance with the requirements of
SECTIONS 611(b) and 901(7).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this
SECTION 902 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this ARTICLE NINE or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and (subject to SECTION 601) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee may, but
shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties, immunities or liabilities under this
Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
ARTICLE NINE, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
SECTION 905. Conformity With Trust Indenture Act.
Every supplemental indenture executed pursuant to this ARTICLE
NINE shall conform to the requirements of the Trust Indenture Act as then in
effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this ARTICLE NINE may, and
shall if required by the Trustee, bear
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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 TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each
series of Securities that it will duly and punctually pay the principal of (and
premium, if any), interest on and any Additional Amounts with respect to the
Securities of that series in accordance with the terms of the Securities and
this Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any
series of Securities an office or agency where Securities of that series may be
presented or surrendered for payment, where Securities of that series may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain
an office or agency in each Place of Payment for Securities of any series for
such purposes. The Company will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency.
SECTION 1003. Money for Securities Payments to be Held in Trust.
If the Company shall at any time act as its own Paying Agent
with respect to any series of Securities, it will, on or before each due date of
the principal of (and premium, if any) or interest on or any Additional Amounts
with respect to any of the Securities of that series, segregate and hold in
trust for the benefit of the Persons entitled thereto a sum sufficient to pay
the principal (and premium, if any) or interest or any Additional Amounts so
becoming due until such sums shall
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be paid to such Persons or otherwise disposed of as herein provided and will
promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for
any series of Securities, the Company will, on or before each due date of the
principal of (and premium, if any) or interest on any Securities of that series,
deposit with a Paying Agent a sum sufficient to pay the principal (and premium,
if any) or interest so becoming due, such sum to be held in trust for the
benefit of the Persons entitled to such principal, premium or interest, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this SECTION 1003, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal
of (and premium, if any), interest on or any Additional Amounts with
respect to Securities of that series in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons
or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of that series) in the making of
any payment of principal (and premium, if any), interest on or any
Additional Amounts with respect to the Securities of that series; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of (and
premium, if any) or interest on or any Additional Amounts with respect to any
Security of any series and remaining unclaimed for three years after such
principal (and premium, if any) or interest or Additional Amounts have become
due and payable shall, unless otherwise required by mandatory provisions of
applicable escheat, or abandoned or unclaimed property law, be paid to the
Company on Company Request, or (if then held by the Company) shall be discharged
from such trust; and the Holder of such Security shall thereafter, as an
unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such
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Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in an Authorized Newspaper in
The Borough of Manhattan, The City of New York and in such other Authorized
Newspapers as the Trustee shall deem appropriate, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such publication, any unclaimed balance of such money
then remaining will, unless otherwise required by mandatory provisions of
applicable escheat, or abandoned or unclaimed property law, be repaid to the
Company.
SECTION 1004. Existence.
Subject to ARTICLE EIGHT, the Company will do or cause to be
done all things necessary to preserve and keep in full force and effect its
corporate existence.
SECTION 1005. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after
the end of each fiscal year of the Company ending after the date hereof so long
as any Security is outstanding hereunder, an Officers' Certificate complying
with Section 314(a) of the Trust Indenture Act, stating that a review of the
activities of the Company during such year and of performance under this
Indenture has been made under the supervision of the signers thereof and whether
or not to the best of their knowledge, based upon such review, the Company is in
default in the performance, observance or fulfillment of any of its covenants
and other obligations under this Indenture, and if the Company shall be in
default, specifying each such default known to them and the nature and status
thereof. One of the officers signing the Officers' Certificate delivered
pursuant to this SECTION 1005 shall be the principal executive, financial or
accounting officer of the Company.
For purposes of this SECTION 1005, such compliance shall be
determined without regard to any period of grace or requirement of notice
provided under this Indenture.
SECTION 1006. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with
any covenant or condition set forth in SECTION 1004, or any covenant added for
the benefit of any series of Securities as contemplated by SECTION 301 (unless
otherwise specified pursuant to SECTION 301) if before or after the time for
such compliance the Holders of a majority in principal amount of the Outstanding
Securities of all series affected by such omission (acting as one class) shall,
by Act of such Holders, either waive such compliance in such instance or
generally waive compliance with such covenant or condition, but no such waiver
shall extend to or affect such covenant or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the obligations
of the Company and the duties of the Trustee in respect of any such covenant or
condition shall remain in full force and effect.
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SECTION 1007. Additional Amounts.
If the Securities of a series expressly provide for the
payment of Additional Amounts, the Company will pay to the Holder of any
Security of such series Additional Amounts as expressly provided therein.
Whenever in this Indenture there is mentioned, in any context, the payment of
the principal of or any premium or interest on, or in respect of, any Security
of any series or the net proceeds received from the sale or exchange of any
Security of any series, such mention shall be deemed to include mention of the
payment of Additional Amounts provided for in this SECTION 1007 to the extent
that, in such context, Additional Amounts are, were or would be payable in
respect thereof pursuant to the provisions of this SECTION 1007 and express
mention of the payment of Additional Amounts (if applicable) in any provisions
hereof shall not be construed as excluding Additional Amounts in those
provisions hereof where such express mention is not made.
If the Securities of a series provide for the payment of
Additional Amounts, at least 10 days prior to the first Interest Payment Date
with respect to that series of Securities (or if the Securities of that series
will not bear interest prior to Maturity, the first day on which a payment of
principal and any premium is made), and at least 10 days prior to each date of
payment of principal and any premium or interest if there has been any change
with respect to the matters set forth in the below-mentioned Officers'
Certificate, the Company shall furnish the Trustee and the Company's principal
Paying Agent or Paying Agents, if other than the Trustee, with an Officers'
Certificate instructing the Trustee and such Paying Agent or Paying Agents
whether such payment of principal of and any premium or interest on the
Securities of that series shall be made to Holders of Securities of that series
who are U.S. Aliens without withholding for or on account of any tax, assessment
or other governmental charge described in the Securities of that series. If any
such withholding shall be required, then such Officers' Certificate shall
specify by country the amount, if any, required to be withheld on such payments
to such Holders of Securities and the Company will pay to such Paying Agent the
Additional Amounts required by this SECTION 1007. The Company covenants to
indemnify the Trustee and any Paying Agent for, and to hold them harmless
against any loss, liability or expense reasonably incurred without negligence or
bad faith on their part arising out of or in connection with actions taken or
omitted by any of them in reliance on any Officers' Certificate furnished
pursuant to this SECTION 1007.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their
Stated Maturity shall be redeemable in accordance with their terms and (except
as otherwise specified as contemplated by SECTION 301 for Securities of any
series) in accordance with this ARTICLE ELEVEN.
SECTION 1102. Election to Redeem; Notice to Trustee.
Unless otherwise provided with respect to the Securities of a
series as contemplated by SECTION 301, the election of the Company to redeem any
Securities shall be evidenced by a Board Resolution. In case of any redemption
at the election of the Company of less than all the Securities
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of any series, the Company shall, a reasonable period prior to the Redemption
Date fixed by the Company (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee of such Redemption Date and of the principal amount
of Securities of such series to be redeemed. In the case of any redemption of
Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, the
Company shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction.
SECTION 1103. Selection by Trustee of Securities to be Redeemed.
If less than all the Securities of any series are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series not previously called for redemption, by such method
as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof) of
the principal amount of Securities of such series of a denomination larger than
the minimum authorized denomination for Securities of that series or of the
principal amount of global Securities of such series.
The Trustee shall promptly notify the Company and the Security
Registrar 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 redeemed only in
part, to the portion of the principal amount of such Securities which has been
or is to be redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in
SECTION 107 to each Holder of Securities to be redeemed not less than 30 nor
more than 60 days prior to the Redemption Date.
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;
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(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and, if
applicable, that interest 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;
(6) that the redemption is for a sinking fund, if such is the
case; and
(7) the "CUSIP" number, if applicable.
A notice of redemption as contemplated by SECTION 107 need not
identify particular Securities to be redeemed. Notice of redemption of
Securities to be redeemed at the election of the Company shall be given by the
Company or, at the Company's request, by the Trustee in the name and at the
expense of the Company.
SECTION 1105. Deposit of Redemption Price.
On or before [TIME], [CITY, STATE], time, on any Redemption
Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if
the Company is acting as its own Paying Agent, segregate and hold in trust as
provided in SECTION 1003) an amount of money sufficient to pay the Redemption
Price of, and (except if the Redemption Date shall be an Interest Payment Date)
accrued interest on, and any Additional Amounts with respect to, all the
Securities which are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued 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 (and any Additional Amounts) to the Redemption Date; provided,
however, that 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 Record Dates according to their terms and the provisions of SECTION
307.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security or, in the case of Original Issue Discount Securities,
the Securities' Yield to Maturity.
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SECTION 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof
or his attorney duly authorized in writing), and the Company shall execute, and
the Trustee shall authenticate and deliver to the Holder of such Security
without service charge, a new Security or Securities of the same series and
Stated Maturity, of any authorized denomination as requested by such Holder, in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security so surrendered.
SECTION 1108. Purchase of Securities.
Unless otherwise specified as contemplated by SECTION 301, the
Company and any Affiliate of the Company may at any time purchase or otherwise
acquire Securities in the open market or by private agreement. Such acquisition
shall not operate as or be deemed for any purpose to be a redemption of the
indebtedness represented by such Securities. Any Securities purchased or
acquired by the Company may be delivered to the Trustee and, upon such delivery,
the indebtedness represented thereby shall be deemed to be satisfied. SECTION
309 shall apply to all Securities so delivered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this ARTICLE TWELVE shall be applicable to
any sinking fund for the retirement of Securities of a series except as
otherwise specified as contemplated by SECTION 301 for Securities of such
series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "MANDATORY
SINKING FUND PAYMENT," and any payment in excess of such minimum amount provided
for by the terms of Securities of any series is herein referred to as an
"OPTIONAL SINKING FUND PAYMENT." Unless otherwise provided 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 1202. 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 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series
(other than any previously called for redemption), and (2) may apply as a credit
Securities of a series which have been 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
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Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such 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 payment shall be reduced
accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 45 days prior (unless a shorter period shall be
satisfactory to the Trustee) 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 delivery of or by crediting Securities of that series pursuant to
SECTION 1202 and will also deliver to the Trustee any Securities to be so
delivered. Not less than 30 days before each such sinking fund payment date the
Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in SECTION 1103 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company
in the manner provided in SECTION 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in SECTIONS 1106 and 1107.
ARTICLE THIRTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1301. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of any or all series may be
called at any time and from time to time pursuant to this ARTICLE THIRTEEN to
make, give or take any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be made, given or
taken by Holders of Securities of such series.
SECTION 1302. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in SECTION 1301, to be held
at such time and at such place in [CITY, STATE], or in any other location, as
the Trustee shall determine. Notice of every meeting of Holders of Securities of
any series, setting forth the time and the place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be given, in the
manner provided in SECTION 107, not less than 20 nor more than 180 days prior to
the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 10% in aggregate principal amount of the
Outstanding Securities of any series, shall have requested the Trustee for any
such series to call a meeting of the Holders of Securities of
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such series for any purpose specified in SECTION 1301, by written request
setting forth in reasonable detail the action proposed to be taken at the
meeting, and the Trustee shall not have made the first publication of the notice
of such meeting within 30 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as provided herein, then the
Company or the Holders of Securities of such series in the amount above
specified, as the case may be, may determine the time and the place in [CITY,
STATE], for such meeting and may call such meeting for such purposes by giving
notice thereof as provided in subsection (a) of this SECTION 1302.
SECTION 1303. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities
of any series, a Person shall be (1) a Holder of one or more Outstanding
Securities of such series, or (2) a Person appointed by an instrument in writing
as proxy for a Holder or Holders of one or more Outstanding Securities of such
series by such Holder or Holders. The only Persons who shall be entitled to be
present or to speak at any meeting of Holders of Securities of any series shall
be the Persons entitled to vote at such meeting and their counsel, any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
SECTION 1304. Quorum; Action.
The Persons entitled to vote a majority in aggregate principal
amount of the Outstanding Securities of a series shall constitute a quorum for a
meeting of Holders of Securities of such series. In the absence of a quorum
within 30 minutes of the time appointed for any such meeting, the meeting shall,
if convened at the request of Holders of Securities of such series, be
dissolved. In any other case, the meeting may be adjourned for a period of not
less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such meeting. In the absence of a quorum at any such adjourned
meeting, such adjourned meeting may be further adjourned for a period of not
less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such adjourned meeting. Subject to SECTION 1305(d), notice of the
reconvening of any adjourned meeting shall be given as provided in SECTION
1302(a), except that such notice need be given only once not less than five days
prior to the date on which the meeting is scheduled to be reconvened. Notice of
the reconvening of an adjourned meeting shall state expressly that Persons
entitled to vote a majority in principal amount of the Outstanding Securities of
such series shall constitute a quorum.
Except as limited by the first proviso to SECTION 902, any
resolution presented to a meeting or adjourned meeting duly reconvened at which
a quorum is present as aforesaid may be adopted by the affirmative vote of the
Holders of a majority in aggregate principal amount of the Outstanding
Securities of that series; provided, however, that, except as limited by the
first proviso to SECTION 902, any resolution with respect to any request,
demand, authorization, direction, notice, consent or waiver which this Indenture
expressly provides may be made, given or taken by the Holders of a specified
percentage that is less than a majority in aggregate principal amount of the
Outstanding Securities of a series may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of such specified percentage in aggregate
principal amount of the Outstanding Securities of that series.
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Except as limited by the first proviso to SECTION 902, any
resolution passed or decision taken at any meeting of Holders of Securities of
any series duly held in accordance with this Section shall be binding on all the
Holders of Securities of such series, whether or not present or represented at
the meeting.
SECTION 1305. Determination of Voting Rights; Conduct and Adjournment of
Meetings.
(a) The holding of Securities shall be proved in the manner
specified in SECTION 105 and the appointment of any proxy shall be
proved in the manner specified in SECTION 105. Such regulations may
provide that written instruments appointing proxies, regular on their
face, may be presumed valid and genuine without the proof specified in
SECTION 105 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been
called by the Company or by Holders of Securities as provided in
SECTION 1302(b), in which case the Company or the Holders of Securities
of the series calling the meeting, as the case may be, shall appoint a
temporary chairman. A permanent chairman and a permanent secretary of
the meeting shall be elected by vote of the Persons entitled to vote a
majority in aggregate principal amount of the Outstanding Securities of
such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series
and each proxy shall be entitled to one vote for each $1,000 principal
amount of the Outstanding Securities of such series held or represented
by him; provided, however, that no vote shall be cast or counted at any
meeting in respect of any Security challenged as not Outstanding and
ruled by the chairman of the meeting to be not Outstanding. The
chairman of the meeting shall have no right to vote, except as a Holder
of a Security of such series or as a proxy.
(d) Any meeting of Holders of Securities of any series duly
called pursuant to SECTION 1302 at which a quorum is present may be
adjourned from time to time by Persons entitled to vote a majority in
aggregate principal amount of the Outstanding Securities of such series
represented at the meeting; and the meeting may be held as so adjourned
without further notice.
SECTION 1306. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of
Holders of Securities of any series shall be by written ballots on which shall
be subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to such record the original reports of the
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inspectors of votes on any vote by ballot taken thereat and affidavits by one or
more persons having knowledge of the facts setting forth a copy of the notice of
the meeting and showing that such notice was given as provided in SECTION 1302
and, if applicable, SECTION 1304. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
* * *
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the day and year first above written.
GREY WOLF, INC.
By:
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Name:
Title:
[TRUSTEE], Trustee
By:
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Name:
Title:
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