ACE LIMITED,
Issuer
To
BANK ONE TRUST COMPANY, N.A.,
Trustee
---------------------
INDENTURE
---------------------
Dated as of March 15, 2002
Senior Debt Securities
Reconciliation and tie between
Trust Indenture Act of 1939 (the "Trust Indenture Act")
and Indenture
Trust Indenture
Act Section Indenture Section
----------- -----------------
(S)310(a)(1).................................................................6.7
(a)(2)......................................................................6.7
(b).........................................................................6.8
(S)312(a)....................................................................7.1
(b).........................................................................7.2
(c).........................................................................7.2
(S)313(a)....................................................................7.3
(b)(2)......................................................................7.3
(c).........................................................................7.3
(d).........................................................................7.3
(S)314(a)....................................................................7.4
(c)(1).....................................................................10.2
(c)(2).....................................................................10.2
(e)........................................................................10.2
(f)........................................................................10.2
(S)316(a) (last sentence)...................................................10.1
(a)(1)(A).............................................................5.2, 5.12
(a)(1)(B)..................................................................5.13
(b).........................................................................5.8
(S)317(a)(1).................................................................5.3
(a)(2)......................................................................5.4
(b)........................................................................10.3
(S)318(a)...................................................................10.8
_________________
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture.
TABLE OF CONTENTS
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Page
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ARTICLE 1
Definitions and Other Provisions of General Application
SECTION 1.1 DEFINITIONS........................ 2
Act............................................... Error! Bookmark not defined.
Additional Amounts................................ Error! Bookmark not defined.
Affiliate......................................... Error! Bookmark not defined.
Authenticating Agent.............................. Error! Bookmark not defined.
Authorized Newspaper.............................. Error! Bookmark not defined.
Authorized Officer................................ Error! Bookmark not defined.
Bearer Security................................... Error! Bookmark not defined.
Board of Directors................................ Error! Bookmark not defined.
Board Resolution.................................. Error! Bookmark not defined.
Business Day...................................... Error! Bookmark not defined.
Capital Stock..................................... Error! Bookmark not defined.
Capitalized Lease Obligation...................... Error! Bookmark not defined.
Commission........................................ Error! Bookmark not defined.
Common Stock...................................... Error! Bookmark not defined.
Company........................................... Error! Bookmark not defined.
Company Request................................... Error! Bookmark not defined.
Consolidated Net Worth............................ Error! Bookmark not defined.
Conversion Event.................................. Error! Bookmark not defined.
Corporate Trust Office............................ Error! Bookmark not defined.
Corporation....................................... Error! Bookmark not defined.
Coupon............................................ Error! Bookmark not defined.
Currency.......................................... Error! Bookmark not defined.
CUSIP number...................................... Error! Bookmark not defined.
Defaulted Interest................................ Error! Bookmark not defined.
Designated Subsidiary............................. Error! Bookmark not defined.
Dollar............................................ Error! Bookmark not defined.
Event of Default.................................. Error! Bookmark not defined.
Foreign Currency.................................. Error! Bookmark not defined.
Government Obligations............................ Error! Bookmark not defined.
Holder............................................ Error! Bookmark not defined.
Indebtedne(S)..................................... Error! Bookmark not defined.
Indenture......................................... Error! Bookmark not defined.
Independent Public Accountants.................... Error! Bookmark not defined.
Indexed Security.................................. Error! Bookmark not defined.
Interest.......................................... Error! Bookmark not defined.
Interest Payment Date............................. Error! Bookmark not defined.
Judgment Currency................................. Error! Bookmark not defined.
Legal Holidays.................................... Error! Bookmark not defined.
Lien.............................................. Error! Bookmark not defined.
Maturity.......................................... Error! Bookmark not defined.
New York Banking Day.............................. Error! Bookmark not defined.
Office............................................ Error! Bookmark not defined.
Original Issue Discount Security.................. Error! Bookmark not defined.
Outstanding....................................... Error! Bookmark not defined.
Person............................................ Error! Bookmark not defined.
i
Place of Payment.................................. Error! Bookmark not defined.
Predecessor Security.............................. Error! Bookmark not defined.
Preferred Stock................................... Error! Bookmark not defined.
Redemption Date................................... Error! Bookmark not defined.
Redemption Price.................................. Error! Bookmark not defined.
Registered Security............................... Error! Bookmark not defined.
Regular Record Date............................... Error! Bookmark not defined.
Required Currency................................. Error! Bookmark not defined.
Responsible Officer............................... Error! Bookmark not defined.
Security.......................................... Error! Bookmark not defined.
Security Register................................. Error! Bookmark not defined.
Special Record Date............................... Error! Bookmark not defined.
Stated Maturity................................... Error! Bookmark not defined.
Subsidiary........................................ Error! Bookmark not defined.
Trust Indenture Act............................... Error! Bookmark not defined.
Trustee........................................... Error! Bookmark not defined.
United States..................................... Error! Bookmark not defined.
U.S. Depositor.................................... Error! Bookmark not defined.
Vice President.................................... Error! Bookmark not defined.
SECTION 1.2. COMPLIANCE CERTIFICATES AND OPINIONS..................... 12
SECTION 1.3. FORM OF DOCUMENTS DELIVERED TO TRUSTEE................... 12
SECTION 1.4. ACTS OF HOLDERS.......................................... 13
SECTION 1.5. NOTICES, ETC. TO TRUSTEE AND COMPANY..................... 15
SECTION 1.6. NOTICE TO HOLDERS OF SECURITIES; WAIVER.................. 15
SECTION 1.7. LANGUAGE OF NOTICES...................................... 16
SECTION 1.8. CONFLICT WITH TRUST INDENTURE ACT........................ 16
SECTION 1.9. EFFECT OF HEADINGS AND TABLE OF CONTENTS................. 16
SECTION 1.10. SUCCESSORS AND ASSIGNS................................... 17
SECTION 1.11. SEPARABILITY CLAUSE...................................... 17
SECTION 1.12. BENEFITS OF INDENTURE.................................... 17
SECTION 1.13. GOVERNING LAW............................................ 17
SECTION 1.14. LEGAL HOLIDAYS........................................... 17
SECTION 1.15. COUNTERPARTS............................................. 17
SECTION 1.16. JUDGMENT CURRENCY........................................ 18
SECTION 1.17. NO SECURITY INTEREST CREATED............................. 18
SECTION 1.18. LIMITATION ON INDIVIDUAL LIABILITY....................... 18
ARTICLE 2
Securities Forms
SECTION 2.1. FORMS GENERALLY.......................................... 19
SECTION 2.2. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.......... 20
ii
SECTION 2.3. SECURITIES IN GLOBAL FORM................................. 20
ARTICLE 3
The Securities
SECTION 3.1. AMOUNT UNLIMITED; ISSUABLE IN SERIES...................... 21
SECTION 3.2. CURRENCY; DENOMINATIONS................................... 25
SECTION 3.3. EXECUTION, AUTHENTICATION, DELIVERY AND DATING............ 25
SECTION 3.4. TEMPORARY SECURITIES...................................... 27
SECTION 3.5. REGISTRATION, TRANSFER AND EXCHANGE....................... 28
SECTION 3.6. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.......... 31
SECTION 3.7. PAYMENT OF INTEREST AND CERTAIN ADDITIONAL AMOUNTS;
RIGHTS TO INTEREST AND CERTAIN ADDITIONAL AMOUNTS
PRESERVED................................................. 32
SECTION 3.8. PERSONS DEEMED OWNERS..................................... 34
SECTION 3.9. CANCELLATION.............................................. 34
SECTION 3.10. COMPUTATION OF INTEREST................................... 34
ARTICLE 4
Satisfaction and Discharge of Indenture
SECTION 4.1. SATISFACTION AND DISCHARGE................................ 35
SECTION 4.2. DEFEASANCE AND COVENANT DEFEASANCE........................ 36
SECTION 4.3. APPLICATION OF TRUST MONEY................................ 40
ARTICLE 5
Remedies
SECTION 5.1. EVENTS OF DEFAULT......................................... 41
SECTION 5.2. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT........ 43
SECTION 5.3. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE................................................... 44
SECTION 5.4. TRUSTEE MAY FILE PROOFS OF CLAIM.......................... 45
SECTION 5.5. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES OR COUPONS..................................... 45
SECTION 5.6. APPLICATION OF MONEY COLLECTED............................ 46
SECTION 5.7. LIMITATIONS ON SUITS...................................... 46
SECTION 5.8. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL AND
ANY PREMIUM, INTEREST AND ADDITIONAL AMOUNTS.............. 47
SECTION 5.9. RESTORATION OF RIGHTS AND REMEDIES........................ 47
iii
SECTION 5.10. RIGHTS AND REMEDIES CUMULATIVE............................ 47
SECTION 5.11. DELAY OR OMISSION NOT WAIVER.............................. 47
SECTION 5.12. CONTROL BY HOLDERS OF SECURITIES.......................... 48
SECTION 5.13. WAIVER OF PAST DEFAULTS................................... 48
SECTION 5.14. WAIVER OF USURY, STAY OR EXTENSION LAWS................... 48
SECTION 5.15. UNDERTAKING FOR COSTS..................................... 49
ARTICLE 6
The Trustee
SECTION 6.1. CERTAIN RIGHTS OF TRUSTEE................................. 49
SECTION 6.2. NOTICE OF DEFAULTS........................................ 50
SECTION 6.3. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.... 51
SECTION 6.4. MAY HOLD SECURITIES....................................... 51
SECTION 6.5. MONEY HELD IN TRUST....................................... 51
SECTION 6.6. COMPENSATION AND REIMBURSEMENT............................ 51
SECTION 6.7. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY................... 52
SECTION 6.8. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR......... 52
SECTION 6.9. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.................... 54
SECTION 6.10. MERGER, CONVERSION, CONSOLIDATION OR
SUCCESSION TO BUSINE(S)................................... 55
SECTION 6.11. APPOINTMENT OF AUTHENTICATING AGENT....................... 56
ARTICLE 7
Holders Lists and Reports by Trustee and Company
SECTION 7.1. COMPANY TO FURNISH TRUSTEE NAMES AND
ADDRESSES OF HOLDERS...................................... 57
SECTION 7.2. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.... 58
SECTION 7.3. REPORTS BY TRUSTEE........................................ 58
SECTION 7.4. REPORTS BY COMPANY........................................ 58
ARTICLE 8
Consolidation, Amalgamations, Merger and Sales
SECTION 8.1. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS...... 59
SECTION 8.2. SUCCESSOR PERSON SUBSTITUTED FOR COMPANY.................. 60
iv
ARTICLE 9
Supplemental Indentures
SECTION 9.1. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS........ 60
SECTION 9.2. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS........... 61
SECTION 9.3. EXECUTION OF SUPPLEMENTAL INDENTURES...................... 63
SECTION 9.4. EFFECT OF SUPPLEMENTAL INDENTURES......................... 63
SECTION 9.5. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES........ 63
SECTION 9.6. CONFORMITY WITH TRUST INDENTURE ACT....................... 63
SECTION 9.7. NOTICE OF SUPPLEMENTAL INDENTURE.......................... 63
ARTICLE 10
Covenants
SECTION 10.1. PAYMENT OF PRINCIPAL, ANY PREMIUM, INTEREST
AND ADDITIONAL AMOUNTS.................................... 64
SECTION 10.2. MAINTENANCE OF OFFICE OR AGENCY........................... 64
SECTION 10.3. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST......... 65
SECTION 10.4. ADDITIONAL AMOUNTS........................................ 67
SECTION 10.5. LIMITATION ON LIENS ON STOCK OF DESIGNATED SUBSIDIARIES... 69
SECTION 10.6. LIMITATION ON DISPOSITION OF STOCK OF
DESIGNATED SUBSIDIARIES................................... 69
SECTION 10.7. CORPORATE EXISTENCE....................................... 69
SECTION 10.8. WAIVER OF CERTAIN COVENANTS............................... 70
SECTION 10.9. COMPANY STATEMENT AS TO COMPLIANCE; NOTICE OF
CERTAIN DEFAULTS.......................................... 70
ARTICLE 11
Redemption of Securities
SECTION 11.1. APPLICABILITY OF ARTICLE.................................. 70
SECTION 11.2. ELECTION TO REDEEM; NOTICE TO TRUSTEE..................... 71
SECTION 11.3. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED......... 71
SECTION 11.4. NOTICE OF REDEMPTION...................................... 71
SECTION 11.5. DEPOSIT OF REDEMPTION PRICE............................... 73
SECTION 11.6. SECURITIES PAYABLE ON REDEMPTION DATE..................... 73
SECTION 11.7. SECURITIES REDEEMED IN PART............................... 74
v
ARTICLE 12
Sinking Funds
SECTION 12.1. APPLICABILITY OF ARTICLE.................................. 74
SECTION 12.2. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES..... 75
SECTION 12.3. REDEMPTION OF SECURITIES FOR SINKING FUND................. 75
ARTICLE 13
Repayment at the Option of Holders
SECTION 13.1. APPLICABILITY OF ARTICLE.................................. 76
ARTICLE 14
Securities in Foreign Currencies
SECTION 14.1. APPLICABILITY OF ARTICLE.................................. 76
ARTICLE 15
Meetings of Holders of Securities
SECTION 15.1. PURPOSES FOR WHICH MEETINGS MAY BE CALLED................. 76
SECTION 15.2. CALL, NOTICE AND PLACE OF MEETINGS........................ 77
SECTION 15.3. PERSONS ENTITLED TO VOTE AT MEETINGS...................... 77
SECTION 15.4. QUORUM; ACTION............................................ 77
SECTION 15.5. DETERMINATION OF VOTING RIGHTS; CONDUCT AND
ADJOURNMENT OF MEETINGS................................... 78
SECTION 15.6. COUNTING VOTES AND RECORDING ACTION OF MEETINGS........... 79
vi
INDENTURE, dated as of March 15, 2002 (the "Indenture"), between ACE
LIMITED, a company duly organized and existing under the laws of the Cayman
Islands (hereinafter called the "Company"), having its principal executive
office located at ACE Global Headquarters, 00 Xxxxxxxxxx Xxxxxx, Xxxxxxxx XX 08,
Bermuda, and BANK ONE TRUST COMPANY, N.A., a national banking association duly
organized and existing under the laws of the United States of America
(hereinafter called the "Trustee"), having its Corporate Trust Office located at
000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
Recitals
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its senior unsecured
debentures, notes or other evidences of indebtedness (hereinafter called the
"Securities"), unlimited as to principal amount, to bear such rates of interest,
to mature at such time or times, to be issued in one or more series and to have
such other provisions as shall be fixed as hereinafter provided.
The Company has duly authorized the execution and delivery of this
Indenture. All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
This Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, and the rules and regulations of the Securities and
Exchange Commission promulgated thereunder that are required to be part of this
Indenture and, to the extent applicable, shall be governed by such provisions.
Now, Therefore, This Indenture Witnesseth:
For and in consideration of the premises and the purchase of the
Securities by the Holders (as herein defined) thereof, it is mutually covenanted
and agreed, for the equal and proportionate benefit of all Holders of the
Securities or of any series thereof and any Coupons (as herein defined) as
follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1. Definitions.
Except as otherwise expressly provided in or pursuant to this Indenture
or unless the context otherwise requires, for all purposes of this Indenture:
(1) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with generally
accepted accounting principles in the United States of America and,
except as otherwise herein expressly provided, the terms "generally
accepted accounting principles" or "GAAP" with respect to any
computation required or permitted hereunder shall mean such accounting
principles as are generally accepted in the United States of America at
the date or time of such computation;
(4) the words "herein," "hereof," "hereto" 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; and
(5) the word "or" is always used inclusively (for
example, the phrase "A or B" means "A or B or both," not "either A or B
but not both").
Certain terms used principally in certain Articles hereof are defined
in those Articles.
"Act," when used with respect to any Holders, has the
meaning specified in Section 1.4.
"Additional Amounts" means any additional amounts
which are required hereby or by any Security, under
circumstances specified herein or therein, to be paid
by the Company in respect of certain taxes,
assessments or other governmental charges imposed on
Holders specified therein and which 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 the
meanings correlative to the foregoing.
2
"Authenticating Agent" means any Person authorized by
the Trustee pursuant to Section 6.11 to act on behalf
of the Trustee to authenticate Securities of one or
more series.
"Authorized Newspaper" means a newspaper, in an
official language of the place of publication or in
the English language, customarily published on each
day that is a Business Day in the place of
publication, whether or not published on days that
are Legal Holidays in the place of publication, and
of general circulation in each place in connection
with which the term is used or in the financial
community of each 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 day that is a Business Day in the place
of publication.
"Authorized Officer" means, when used with respect to
the Company, the Chairman of the Board of Directors,
a Vice Chairman, the President, the Chief Financial
Officer, the Chief Investment Officer, the Chief
Accounting Officer, the General Counsel or the
Secretary, of the Company.
"Bearer Security" means any Security in the form
established pursuant to Section 2.1 which is payable
to bearer.
"Board of Directors" means the board of directors of
the Company or any committee of that board duly
authorized to act generally or in any particular
respect for the Company hereunder.
"Board Resolution" means a copy of one or more
resolutions, 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,
delivered to the Trustee.
"Business Day," with respect to any Place of Payment
or other location, means, unless otherwise specified
with respect to any Securities pursuant to Section
3.1, any day other than a Saturday, Sunday or other
day on which banking institutions in such Place of
Payment or other location are authorized or obligated
by law, regulation or executive order to close.
"Capital Stock" of any Person means any and all
shares, interests, rights to purchase, warrants,
options, participations or other equivalents of or
interests in (however designated) equity of such
Person, including Preferred Stock, but excluding any
debt securities convertible into such equity.
"Capitalized Lease Obligation" means an obligation
under a lease that is required to be capitalized for
financial reporting purposes in accordance
3
with generally accepted accounting principles, and
the amount of Indebtedness represented by such
obligation shall be the capitalized amount of such
obligation determined in accordance with such
principles.
"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 Indenture 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.
"Common Stock" in respect of any Corporation means
Capital Stock of any class or classes (however
designated) which has no preference as to the payment
of dividends, or as to the distribution of assets
upon any voluntary or involuntary liquidation or
dissolution of such Corporation, and which is not
subject to redemption by such Corporation.
"Company" means the Person named as the "Company" in
the first paragraph of this instrument until a
successor Person shall have become such pursuant to
the applicable provisions of this Indenture, and
thereafter "Company" shall mean such successor
Person, and any other obligor upon the Securities.
"Company Request" and "Company Order" mean,
respectively, a written request or order, as the case
may be, signed in the name of the Company by an
Authorized Officer, and delivered to the Trustee.
"Consolidated Net Worth" in respect of any Person
means the total of the amounts shown on the balance
sheet of such Person and its consolidated
Subsidiaries, determined on a consolidated basis in
accordance with GAAP, as of the end of the most
recent fiscal quarter of such Person ending at least
45 days prior to the taking of any action for the
purpose of which the determination is being made, as
(i) the par or stated value of all outstanding
Capital Stock of such Person plus (ii) paid-in
capital or capital surplus relating to such Capital
Stock plus (iii) any retained earnings or earned
surplus, less any accumulated deficit.
"Conversion Event" means the cessation of use of (i)
a Foreign Currency both by the government of the
country or the confederation which issued such
Foreign Currency and for the settlement of
transactions by a central bank or other public
institutions of or within the international banking
community or (ii) any currency unit or composite
currency for the purposes for which it was
established.
"Corporate Trust Office" means the principal
corporate trust office of the Trustee at which at any
particular time its corporate trust business shall be
4
administered, which office at the date of original
execution of this Indenture is located at 000 Xxxx
00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"Corporation" includes corporations and limited
liability companies and, except for purposes of
Article 8, associations, companies and business
trusts.
"Coupon" means any interest coupon appertaining to a
Bearer Security.
"Currency," with respect to any payment, deposit or
other transfer in respect of the principal of or any
premium or interest on or any Additional Amounts with
respect to any Security, means Dollars or the Foreign
Currency, as the case may be, in which such payment,
deposit or other transfer is required to be made by
or pursuant to the terms hereof or such Security and,
with respect to any other payment, deposit or
transfer pursuant to or contemplated by the terms
hereof or such Security, means Dollars.
"CUSIP number" means the alphanumeric designation
assigned to a Security by Standard & Poor's Ratings
Service, CUSIP Service Bureau.
"Defaulted Interest" has the meaning specified in
Section 3.7.
"Designated Subsidiary" means any present or future
consolidated Subsidiary of the Company, the
Consolidated Net Worth of which constitutes at least
5% of the Consolidated Net Worth of the Company.
"Dollars" or "$" means a dollar or other equivalent
unit of legal tender for payment of public or private
debts in the United States of America.
"Event of Default" has the meaning specified in
Section 5.1.
"Foreign Currency" means any currency, currency unit
or composite currency, including, without limitation,
the euro, issued by the government of one or more
countries other than the United States of America or
by any recognized confederation or association of
such governments.
"Government Obligations" means securities which are
(i) direct obligations of the United States of
America or the other government or governments which
issued the Foreign Currency in which the principal of
or any premium or interest on such Security or any
Additional Amounts in respect thereof shall be
payable, in each case where the payment or payments
thereunder are supported by the full faith and credit
of such government or governments or (ii) obligations
of a Person controlled or supervised by and acting as
an agency or instrumentality of the United States of
America or such other government or governments, in
each case where the timely payment or payments
thereunder are unconditionally guaranteed as a full
faith and credit obligation by the United States of
5
America or such other government or governments, and
which, in the case of (i) or (ii), are not callable
or redeemable at the option of the issuer or issuers
thereof, and shall also include a depository receipt
issued by a bank or trust company as custodian with
respect to any such Government Obligation or a
specific payment of interest on or principal of or
other amount with respect to any such Government
Obligation held by such custodian for the account of
the holder of a depository receipt, provided that
(except as required by law) such custodian is not
authorized to make any deduction from the amount
payable to the holder of such depository receipt from
any amount received by the custodian in respect of
the Government Obligation or the specific payment of
interest on or principal of or other amount with
respect to the Government Obligation evidenced by
such depository receipt.
"Holder," in the case of any Registered Security,
means the Person in whose name such Security is
registered in the Security Register and, in the case
of any Bearer Security, means the bearer thereof and,
in the case of any Coupon, means the bearer thereof.
"Indebtedness" means, with respect to any Person, (i)
the principal of and any premium and interest on (a)
indebtedness of such Person for money borrowed and
(b) indebtedness evidenced by notes, debentures,
bonds or other similar instruments for the payment of
which such Person is responsible or liable; (ii) all
Capitalized Lease Obligations of such Person; (iii)
all obligations of such Person issued or assumed as
the deferred purchase price of property, all
conditional sale obligations and all obligations
under any title retention agreement (but excluding
trade accounts payable arising in the ordinary course
of business); (iv) all obligations of such Person for
the reimbursement of any obligor on any letter of
credit, banker's acceptance or similar credit
transaction (other than obligations with respect to
letters of credit securing obligations (other than
obligations described in (i) through (iii) above)
entered into in the ordinary course of business of
such Person to the extent such letters of credit are
not drawn upon or, if and to the extent drawn upon,
such drawing is reimbursed no later than the third
Business Day following receipt by such Person of a
demand for reimbursement following payment on the
letter of credit); (v) all obligations of the type
referred to in clauses (i) through (iv) of other
Persons and all dividends of other Persons for the
payment of which, in either case, such Person is
responsible or liable as obligor, guarantor or
otherwise, (vi) all obligations of the type referred
to in clauses (i) through (v) of other Persons
secured by any Lien on any property or asset of such
Person (whether or not such obligation is assumed by
such Person), the amount of such obligation being
deemed to be the lesser of the value of such property
or assets or the amount of the obligation so secured;
and (vii) any amendments, modifications, refundings,
renewals or extensions of any indebtedness or
obligation described as Indebtedness in clauses (i)
through (vi) above.
6
"Indenture" means this instrument 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, with respect
to any Security, by the terms and provisions of such
Security and any Coupon appertaining thereto
established pursuant to Section 3.1 (as such terms
and provisions may be amended pursuant to the
applicable provisions hereof).
"Independent Public Accountants" means accountants or
a firm of accountants that, with respect to the
Company and any other obligor under the Securities or
the Coupons, are independent public accountants
within the meaning of the Securities Act of 1933, as
amended, and the rules and regulations promulgated by
the Commission thereunder, who may be the independent
public accountants regularly retained by the Company
or who may be other independent public accountants.
Such accountants or firm shall be entitled to rely
upon any Opinion of Counsel as to the interpretation
of any legal matters relating to this Indenture or
certificates required to be provided hereunder.
"Indexed Security" means a Security the terms of
which provide that the principal amount thereof
payable at Stated Maturity may be more or less than
the principal face amount thereof at original
issuance.
"Interest," with respect to any Original Issue
Discount Security which by its terms bears interest
only after Maturity, means interest payable after
Maturity and, when used with respect to a Security
which provides for the payment of Additional Amounts
pursuant to Section 10.4, includes such Additional
Amounts.
"Interest Payment Date," with respect to any
Security, means the Stated Maturity of an installment
of interest on such Security.
"Judgment Currency" has the meaning specified in
Section 1.16.
"Legal Holidays" has the meaning specified in Section
1.14.
"Lien" has the meaning specified in Section 10.5.
"Maturity," 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
provided in or pursuant to this Indenture, whether at
the Stated Maturity or by declaration of
acceleration, notice of redemption or repurchase,
notice of option to elect repayment or otherwise, and
includes the Redemption Date.
"New York Banking Day" has the meaning specified in
Section 1.16.
7
"Office" or "Agency," with respect to any Securities,
means an office or agency of the Company maintained
or designated in a Place of Payment for such
Securities pursuant to Section 10.2 or any other
office or agency of the Company maintained or
designated for such Securities pursuant to Section
10.2 or, to the extent designated or required by
Section 10.2 in lieu of such office or agency, the
Corporate Trust Office of the Trustee.
"Officer's Certificate" means a certificate signed by
an Authorized Officer that complies with the
requirements of Section 314(e) of the Trust Indenture
Act and is delivered to the Trustee.
"Opinion of Counsel" means a written opinion of
counsel, who may be an employee of or counsel for the
Company or other counsel who shall be reasonably
acceptable to the Trustee, that, if required by the
Trust Indenture Act, complies with the requirements
of Section 314(e) of the Trust Indenture Act.
"Original Issue Discount Security" means a Security
issued pursuant to this Indenture which provides for
declaration of an amount less than the principal face
amount thereof to be due and payable upon
acceleration pursuant to Section 5.2.
"Outstanding," when used with respect to any
Securities, means, as of the date of determination,
all such Securities theretofore authenticated and
delivered under this Indenture, except:
(a) any such Security theretofore cancelled by the
Trustee or the Security Registrar or delivered to the Trustee or the
Security Registrar for cancellation;
(b) any such Security for whose payment at the Maturity
thereof money in the necessary amount has been theretofore deposited
pursuant hereto (other than pursuant to Section 4.2) 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 and any Coupons
appertaining thereto, provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee has
been made;
(c) any such Security with respect to which the Company
has effected defeasance pursuant to the terms hereof, except to the
extent provided in Section 4.2;
(d) any such Security which has been paid pursuant to
Section 3.6 or in exchange for or in lieu of which other Securities
have been authenticated and delivered pursuant to this Indenture,
unless there shall have been presented to the Trustee proof
satisfactory to it that such Security is held by a bona fide purchaser
in whose hands such Security is a valid obligation of the Company; and
8
(e) any such Security converted or exchanged as
contemplated by this Indenture into Common Stock of the Company or
other securities, if the terms of such Security provide for such
conversion or exchange pursuant to Section 3.1;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders of Securities for quorum purposes, (i) the principal amount
of an Original Issue Discount Security that may be counted in making such
determination and that shall be deemed to be Outstanding for such purposes shall
be equal to the amount of the principal thereof that pursuant to the terms of
such Original Issue Discount Security would be declared (or shall have been
declared to be) due and payable upon a declaration of acceleration thereof
pursuant to Section 5.2 at the time of such determination, and (ii) the
principal amount of any Indexed Security that may be counted in making such
determination and that shall be deemed Outstanding for such purposes shall be
equal to the principal face amount of such Indexed Security at original
issuance, unless otherwise provided in or pursuant to this Indenture, and (iii)
the principal amount of a Security denominated in a Foreign Currency shall be
the Dollar equivalent, determined on the date of original issuance of such
Security, of the principal amount (or, in the case of an Original Issue Discount
Security, the Dollar equivalent on the date of original issuance of such
Security of the amount determined as provided in (i) above) of such Security,
and (iv) Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or such other obligor, shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in making any such determination or
relying upon any such request, demand, authorization, direction, notice, consent
or waiver, only Securities which a Responsible Officer of the Trustee actually
knows to be so owned shall be so disregarded. Securities so owned which shall
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee (A) the pledgee's right so to act
with respect to such Securities and (B) that the pledgee is not the Company or
any other obligor upon the Securities or any Coupons appertaining thereto or an
Affiliate of the Company or such other obligor.
"Paying Agent" means any Person authorized by the
Company to pay the principal of, or any premium or
interest on, or any Additional Amounts with respect
to, any Security or any Coupon on behalf of the
Company.
"Person" means any individual, Corporation,
partnership, joint venture, joint-stock company,
trust, unincorporated organization or government or
any agency or political subdivision thereof.
"Place of Payment," with respect to any Security,
means the place or places where the principal of, or
any premium or interest on, or any Additional Amounts
with respect to such Security are payable as provided
in or pursuant to this Indenture or such Security.
"Predecessor Security" of any particular Security
means every previous Security evidencing all or a
portion of the same Indebtedness as that evidenced by
such particular Security; and, for the purposes of
this definition, any Security authenticated and
delivered under Section 3.6 in
9
exchange for or in lieu of a lost, destroyed,
mutilated or stolen Security or any Security to which
a mutilated, destroyed, lost or stolen Coupon
appertains shall be deemed to evidence the same
Indebtedness as the lost, destroyed, mutilated or
stolen Security or the Security to which a mutilated,
destroyed, lost or stolen Coupon appertains.
"Preferred Stock" in respect of any Corporation means
Capital Stock of any class or classes (however
designated) which is preferred as to the payment of
dividends, or as to the distribution of assets upon
any voluntary or involuntary liquidation or
dissolution of such Corporation, over shares of
Capital Stock of any other class of such Corporation.
"Redemption Date," with respect to any Security or
portion thereof to be redeemed, means the date fixed
for such redemption by or pursuant to this Indenture
or such Security.
"Redemption Price," with respect to any Security or
portion thereof to be redeemed, means the price at
which it is to be redeemed as determined by or
pursuant to this Indenture or such Security.
"Registered Security" means any Security established
pursuant to Section 2.1 which is registered in a
Security Register.
"Regular Record Date" for the interest payable on any
Registered Security on any Interest Payment Date
therefor means the date, if any, specified in or
pursuant to this Indenture or such Security as the
"Regular Record Date".
"Required Currency" has the meaning specified in
Section 1.16.
"Responsible Officer" means any officer assigned by
the Trustee to administer corporate trust matters and
also means, with respect to a particular corporate
trust matter, any other officer to whom such matter
is referred because of his or her knowledge of and
familiarity with the particular subject.
"Security" or "Securities" means any note or notes,
bond or bonds, debenture or debentures, or any other
evidences of Indebtedness, as the case may be,
authenticated and delivered under this Indenture;
provided, however, that, if at any time there is more
than one Person acting as Trustee under this
Indenture, "Securities," with respect to any such
Person, shall mean Securities authenticated and
delivered under this Indenture, exclusive, however,
of Securities of any series as to which such Person
is not Trustee.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 3.5.
10
"Special Record Date" for the payment of any
Defaulted Interest on any Registered Security means a
date fixed by the Company pursuant to Section 3.7.
"Stated Maturity," with respect to any Security or
any installment of principal thereof or interest
thereon or any Additional Amounts with respect
thereto, means the date established by or pursuant to
this Indenture or such Security as the fixed date on
which the principal of such Security or such
installment of principal or interest is, or such
Additional Amounts are, due and payable.
"Subsidiary" means, in respect of any Person, any
Corporation, limited or general partnership or other
business entity of which at the time of determination
more than 50% of the voting power of the shares of
its Capital Stock or other interests (including
partnership interests) entitled (without regard to
the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereof
is owned or controlled, directly or indirectly, by
(i) such Person, (ii) such Person and one or more
Subsidiaries of such Person or (iii) one or more
Subsidiaries of such Person.
"Trust Indenture Act" means the Trust Indenture Act
of 1939, as amended, and any reference herein to the
Trust Indenture Act or a particular provision thereof
shall mean such Act or provision, as the case may be,
as amended or replaced from time to time or as
supplemented from time to time by rules or
regulations adopted by the Commission under or in
furtherance of the purposes of such Act or provision,
as the case may be.
"Trustee" means the Person named as the "Trustee" in
the first paragraph of this instrument until a
successor Trustee shall have become such with respect
to one or more series of Securities pursuant to the
applicable provisions of this Indenture, and
thereafter "Trustee" shall mean each Person who is
then a Trustee hereunder; provided, however, that if
at any time there is more than one such Person,
"Trustee" shall mean each such Person and as used
with respect to the Securities of any series shall
mean the Trustee with respect to the Securities of
such series.
"United States," except as otherwise provided in or
pursuant to this Indenture or any Security, means the
United States of America (including the states
thereof and the District of Columbia), its
territories and possessions and other areas subject
to its jurisdiction.
"U.S. Depository" or "Depository" means, with respect
to any Security issuable or issued in the form of one
or more global Securities, the Person designated as
U.S. Depository or Depository by the Company in or
pursuant to this Indenture, which Person must be, to
the extent required by
11
applicable law or regulation, a clearing agency
registered under the Securities Exchange Act of 1934,
as amended, and, if so provided with respect to any
Security, any successor to such Person. If at any
time there is more than one such Person, "U.S.
Depository" or "Depository" shall mean, with respect
to any Securities, the qualifying entity which has
been appointed with respect to such Securities.
"Vice President," when used with respect to the
Trustee, means any vice president, whether or not
designated by a number or a word or words added
before or after the title "Vice President".
Section 1.2. Compliance Certificates and Opinions.
Except as otherwise expressly provided in 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
Officer's Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that, in the opinion of such counsel, all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
or any of them 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 the individual signing such
certificate or opinion has read such condition or covenant and the
definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such condition
or covenant has been complied with; and
(4) a statement as to whether, in the opinion of such
individual, such condition or covenant has been complied with.
Section 1.3. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
12
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon an Opinion of Counsel, provided
that such officer, after reasonable inquiry, has no reason to believe and does
not believe that the Opinion of Counsel with respect to the matters upon which
his certificate or opinion is based is erroneous. Any such 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, provided that such counsel, after reasonable inquiry, has no
reason to believe and does not believe 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 or any Security, they may, but need not, be
consolidated and form one instrument.
Section 1.4. Acts of Holders.
(1) Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by or pursuant to this
Indenture to be given or taken by Holders may be embodied in and
evidenced by one or more instruments of substantially similar tenor
signed by such Holders in person or by an agent duly appointed in
writing. If, but only if, Securities of a series are issuable as Bearer
Securities, any request, demand, authorization, direction, notice,
consent, waiver or other action provided in or pursuant to this
Indenture to be given or taken by Holders of Securities of such series
may, alternatively, be embodied in and evidenced by the record of
Holders of Securities of such series voting in favor thereof, either in
person or by proxies duly appointed in writing, at any meeting of
Holders of Securities of such series duly called and held in accordance
with the provisions of Article 15, or a combination of such instruments
and any such record. Except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments
or record or both are delivered to the Trustee and, where it is hereby
expressly required, to the Company. 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 or so voting at any such meeting. Proof
of execution of any such instrument or of a writing appointing any such
agent, or of the holding by any Person of a Security, shall be
sufficient for any purpose of this Indenture and (subject to Section
315 of the Trust Indenture Act) conclusive in favor of the Trustee and
the Company and any agent of the Trustee or the Company, if made in the
manner provided in this Section. The record of any meeting of Holders
of Securities shall be proved in the manner provided in Section 15.6.
Without limiting the generality of this Section 1.4, unless otherwise
provided in or pursuant to this Indenture, a Holder, including a U.S. Depository
that is a Holder of a global Security, may make, give or take, by a proxy or
proxies duly appointed in writing, any request, demand, authorization,
direction, notice, consent, waiver or other Act provided in or pursuant to this
Indenture to be made, given or taken by Holders, and a U.S. Depository that is a
Holder of a global Security may provide its proxy or proxies to the beneficial
owners of interests in any such global Security through such U.S. Depository's
standing instructions and customary practices.
13
The Company shall fix a record date for the purpose of determining the
Persons who are beneficial owners of interest in any permanent global Security
held by a U.S. Depository entitled under the procedures of such U.S. Depository
to make, give or take, by a proxy or proxies duly appointed in writing, any
request, demand, authorization, direction, notice, consent, waiver or other Act
provided in or pursuant to this Indenture to be made, given or taken by Holders.
If such a record date is fixed, the Holders on such record date or their duly
appointed proxy or proxies, and only such Persons, shall be entitled to make,
give or take such request, demand, authorization, direction, notice, consent,
waiver or other Act, whether or not such Holders remain Holders after such
record date. No such request, demand, authorization, direction, notice, consent,
waiver or other Act shall be valid or effective if made, given or taken more
than 90 days after such record date.
(2) The fact and date of the execution by any Person of
any such instrument or writing referred to in this Section 1.4 may be
proved in any reasonable manner; and the Trustee may in any instance
require further proof with respect to any of the matters referred to in
this Section.
(3) The ownership, principal amount and serial numbers of
Registered Securities held by any Person, and the date of the
commencement and the date of the termination of holding the same, shall
be proved by the Security Register.
(4) The ownership, principal amount and serial numbers of
Bearer Securities held by any Person, and the date of the commencement
and the date of the termination of holding the same, may be proved by
the production of such Bearer Securities or by a certificate executed,
as depositary, by any trust company, bank, banker or other depositary
reasonably acceptable to the Company, wherever situated, if such
certificate shall be deemed by the Company and the Trustee to be
satisfactory, showing that at the date therein mentioned such Person
had on deposit with such depositary, or exhibited to it, the Bearer
Securities therein described; or such facts may be proved by the
certificate or affidavit of the Person holding such Bearer Securities,
if such certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Company may assume that such
ownership of any Bearer Security continues until (i) another
certificate or affidavit bearing a later date issued in respect of the
same Bearer Security is produced, or (ii) such Bearer Security is
produced to the Trustee by some other Person, or (iii) such Bearer
Security is surrendered in exchange for a Registered Security, or (iv)
such Bearer Security is no longer Outstanding. The ownership, principal
amount and serial numbers of Bearer Securities held by the Person so
executing such instrument or writing and the date of the commencement
and the date of the termination of holding the same may also be proved
in any other manner which the Company and the Trustee deem sufficient.
(5) If the Company shall solicit from the Holders of any
Registered Securities any request, demand, authorization, direction,
notice, consent, waiver or other Act, the Company may at its option
(but is not obligated to), by Board Resolution, fix in advance a record
date for the determination of Holders of Registered Securities entitled
to give such request, demand, authorization, direction, notice,
consent, waiver or other Act. If such a record date is fixed, such
request, demand, authorization, direction, notice, consent, waiver or
other Act may be given before or after such record date, but only the
14
Holders of Registered Securities of record at the close of business on
such record date shall be deemed to be Holders for the purpose of
determining whether Holders of the requisite proportion of Outstanding
Securities have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other Act,
and for that purpose the Outstanding Securities shall be computed as of
such record date; provided that no such authorization, agreement or
consent by the Holders of Registered Securities shall be deemed
effective unless it shall become effective pursuant to the provisions
of this Indenture not later than six months after the record date.
(6) Any request, demand, authorization, direction,
notice, consent, waiver or other Act by 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 or
suffered to be done by the Trustee, any Security Registrar, any Paying
Agent or the Company in reliance thereon, whether or not notation of
such Act is made upon such Security.
Section 1.5. Notices, etc. to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or 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,
or
(2) the Company by the Trustee or 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 the attention of its Treasurer,
with a copy to the attention of its General Counsel, at the address of
its principal office specified in the first paragraph of this
instrument or at any other address previously furnished in writing to
the Trustee by the Company.
Section 1.6. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided in or pursuant to this
Indenture, where this Indenture provides for notice to Holders of Securities of
any event,
(1) such notice shall be sufficiently given to Holders of
Registered Securities if in writing and mailed, first-class postage
prepaid, to each Holder of a Registered Security affected by such
event, at his address 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; and
(2) such notice shall be sufficiently given to Holders of
Bearer Securities, if any, if published in an Authorized Newspaper in
The City of New York and, if such Securities are then listed on any
stock exchange outside the United States, in an Authorized Newspaper in
such city as the Company shall advise the Trustee that such
15
stock exchange so requires, on a Business Day at least twice, the first
such publication to be not earlier than the earliest date and the
second such publication not later than the latest date prescribed for
the giving of such notice.
In any case where notice to Holders of Registered Securities is given
by mail, neither the failure to mail such notice, nor any defect in any notice
so mailed, to any particular Holder of a Registered Security shall affect the
sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice to Holders of Bearer Securities
given as provided herein. Any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given or provided. In
the case by reason of the suspension of regular mail service or by reason of any
other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearers Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of any notice mailed to
Holders of Registered Securities as provided above.
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 of Securities 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 1.7. Language of Notices.
Any request, demand, authorization, direction, notice, consent,
election or waiver required or permitted under this Indenture shall be in the
English language, except that, if the Company so elects, any published notice
may be in an official language of the country of publication.
Section 1.8. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with any duties
under any required provision of the Trust Indenture Act imposed hereon by
Section 318(c) thereof, such required provision shall control.
Section 1.9. 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.
16
Section 1.10. 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 1.11. Separability Clause.
In case any provision in this Indenture, any Security or any Coupon
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 1.12. Benefits of Indenture.
Nothing in this Indenture, any Security or any Coupon, express or
implied, shall give to any Person, other than the parties hereto, any Security
Registrar, any Paying Agent, any Authenticating Agent and their successors
hereunder and the Holders of Securities or Coupons, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
Section 1.13. Governing Law.
This Indenture, the Securities and any Coupons shall be governed by and
construed in accordance with the laws of the State of New York applicable to
agreements made or instruments entered into and, in each case, performed in said
state.
Section 1.14. Legal Holidays.
Unless otherwise specified in or pursuant to this Indenture or any
Securities, in any case where any Interest Payment Date, Stated Maturity or
Maturity of any Security, or the last date on which a Holder has the right to
convert or exchange Securities of a series that are convertible or exchangeable,
shall be a Legal Holiday at any Place of Payment, then (notwithstanding any
other provision of this Indenture, any Security or any Coupon other than a
provision in any Security or Coupon that specifically states that such provision
shall apply in lieu hereof) payment need not be made at such Place of Payment on
such date, and such Securities need not be converted or exchanged on such date
but such payment may be made, and such Securities may be converted or exchanged,
on the next succeeding day that is a Business Day at such Place of Payment with
the same force and effect as if made on the Interest Payment Date or at the
Stated Maturity or Maturity or on such last day for conversion or exchange, and
no interest shall accrue on the amount payable on such date or at such time for
the period from and after such Interest Payment Date, Stated Maturity, Maturity
or last day for conversion or exchange, as the case may be, to such next
succeeding Business Day.
Section 1.15. Counterparts.
This Indenture may be executed in several counterparts, each of which
shall be an original and all of which shall constitute but one and the same
instrument.
17
Section 1.16. Judgment Currency.
The Company agrees, to the fullest extent that it may effectively do so
under applicable law, that (a) if for the purpose of obtaining judgment in any
court it is necessary to convert the sum due in respect of the principal of, or
premium or interest, if any, or Additional Amounts on 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 requisite amount of the Required Currency with the
Judgment Currency on the New York Banking Day preceding the day on which a final
unappealable judgment is given and (b) its obligations under this Indenture to
make payments in the Required Currency (i) shall not be discharged or satisfied
by any tender, or any recovery pursuant to any judgment (whether or not entered
in accordance with clause (a)), in any currency other than the Required
Currency, except to the extent that such tender or recovery shall result in the
actual receipt, by the payee, of the full amount of the Required Currency
expressed to be payable in respect of such payments, (ii) shall be enforceable
as an alternative or additional cause of action for the purpose of recovering in
the Required Currency the amount, if any, by which such actual receipt shall
fall short of the full amount of the Required Currency so expressed to be
payable and (iii) shall not be affected by judgment being obtained for any other
sum due under this Indenture. For purposes of the foregoing, "New York Banking
Day" means any day except a Saturday, Sunday or a legal holiday in The City of
New York or a day on which banking institutions in The City of New York are
authorized or obligated by law, regulation or executive order to be closed.
Section 1.17. No Security Interest Created.
Subject to the provisions of Section 10.5, nothing in this Indenture or
in any Securities, express or implied, shall be construed to constitute a
security interest under the Uniform Commercial Code or similar legislation, as
now or hereafter enacted and in effect in any jurisdiction where property of the
Company or its Subsidiaries is or may be located.
Section 1.18. Limitation on Individual Liability.
No recourse under or upon any obligation, covenant or agreement
contained in this Indenture or in any Security, or for any claim based thereon
or otherwise in respect thereof, shall be had against any incorporator,
shareholder, officer or director, as such, past, present or future, of the
Company, either directly or through the Company, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly understood that this Indenture and the
obligations issued hereunder are solely corporate obligations, and that no such
personal liability whatever shall attach to, or is or shall be incurred by, the
incorporators, shareholders, officers or directors, as such, of the Company, or
any of them, because of the creation of the indebtedness hereby authorized, or
under or by reason of the obligations, covenants or agreements contained in this
Indenture or in any Security or implied therefrom; and that any and all such
personal liability of every name and nature, either at common law or in equity
or by constitution or statute, of, and any and all such rights and claims
against, every such incorporator, shareholder, officer or director, as such,
because of the creation of the indebtedness hereby authorized, or under or by
reason of the obligations, covenants or agreements contained in this Indenture
or in any Security or implied therefrom, are hereby
18
expressly waived and released as a condition of, and as a consideration for, the
execution of this Indenture and the issuance of such Security.
Section 1.19. Submission to Jurisdiction.
The Company agrees that any judicial proceedings instituted in relation
to any matter arising under this Indenture, the Securities or any Coupons
appertaining thereto may be brought in any United States Federal or New York
State court sitting in the Borough of Manhattan, The City of New York, New York
to the extent that such court has subject matter jurisdiction over the
controversy, and, by execution and delivery of this Indenture, the Company
hereby irrevocably accepts, generally and unconditionally, the jurisdiction of
the aforesaid courts, acknowledges their competence and irrevocably agrees to be
bound by any judgement rendered in such proceeding. The Company also irrevocably
and unconditionally waives for the benefit of the Trustee and the Holders of the
Securities and Coupons any immunity from jurisdiction and any immunity from
legal process (whether through service or notice, attachment prior to judgement,
attachment in the aid of execution, execution or otherwise) in respect of this
Indenture. The Company hereby irrevocably designates and appoints for the
benefit of the Trustee and the Holders of the Securities and Coupons for the
term of this Indenture ACE USA, Inc., 1133 Avenue of the Xxxxxxxx, 00/xx/ Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, as its agent to receive on its behalf service of all
process (with a copy of all such service of process to be delivered to Xxxxx X.
Xxxx, General Counsel and Secretary, ACE Limited, ACE Global Headquarters, 00
Xxxxxxxxxx Xxxxxx, Xxxxxxxx XX 00, Xxxxxxx) brought against it with respect to
any such proceeding in any such court in The City of New York, such service
being hereby acknowledged by the Company to be effective and binding service on
it in every respect whether or not the Company shall then be doing or shall have
at any time done business in New York. Such appointment shall be irrevocable so
long as any of the Securities or Coupons or the obligations of the Company
hereunder remain outstanding until the appointment of a successor by the Company
and such successor's acceptance of such appointment. Upon such acceptance, the
Company shall notify the Trustee of the name and address of such successor. The
Company further agrees for the benefit of the Trustee and the Holders of the
Securities and the Coupons to take any and all action, including the execution
and filing of any and all such documents and instruments, as may be necessary to
continue such designation and appointment of said ACE USA, Inc. full force and
effect so long as any of the Securities or Coupons or the obligations of the
Company hereunder shall be outstanding. The Trustee shall not be obligated and
shall have no responsibility with respect to any failure by the Company to take
any such action. Nothing herein shall affect the right to serve process in any
other manner permitted by any law or limit the right of the Trustee or any
Holder to institute proceedings against the Company in the courts of any other
jurisdiction or jurisdictions.
ARTICLE 2
SECURITIES FORMS
Section 2.1. Forms Generally.
Each Registered Security, Bearer Security, Coupon and temporary or
permanent global Security issued pursuant to this Indenture shall be in the form
established by or pursuant to a Board Resolution or in one or more indentures
supplemental hereto, shall have such appropriate
19
insertions, omissions, substitutions and other variations as are required or
permitted by or pursuant to this Indenture or any indenture supplemental hereto
and may have such letters, numbers or other marks of identification and such
legends or endorsements placed thereon as may, consistently herewith, be
determined by the officers executing such Security or Coupon as evidenced by
their execution of such Security or Coupon.
Unless otherwise provided in or pursuant to this Indenture or any
Securities, the Securities shall be issuable in registered form without Coupons
and shall not be issuable upon the exercise of warrants.
Definitive Securities and definitive Coupons shall be printed,
lithographed or engraved or produced by any combination of these methods on a
steel engraved border or steel engraved borders or may be produced in any other
manner, all as determined by the officers of the Company executing such
Securities or Coupons, as evidenced by their execution of such Securities or
Coupons.
Section 2.2. Form of Trustee's Certificate of Authentication.
Subject to Section 6.11, 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.
BANK ONE TRUST COMPANY, N.A.,
as Trustee
By:_________________________________
Section 2.3. Securities in Global Form.
Unless otherwise provided in or pursuant to this Indenture or any
Securities, the Securities shall not be issuable in temporary or permanent
global form. If Securities of a series shall be issuable in global form, any
such Security may provide that it or any number of such Securities shall
represent the aggregate amount of all Outstanding Securities of such series (or
such lesser amount as is permitted by the terms thereof) from time to time
endorsed thereon and may also provide that the aggregate amount of Outstanding
Securities represented thereby may from time to time be increased or reduced to
reflect exchanges. Any endorsement of any Security in global form to reflect the
amount, or any increase or decrease in the amount, or changes in the rights of
Holders, of Outstanding Securities represented thereby shall be made in such
manner and by such Person or Persons as shall be specified therein or in the
Company Order to be delivered pursuant to Section 3.3 or 3.4 with respect
thereto. Subject to the provisions of Section 3.3 and, if applicable, Section
3.4, the Trustee shall deliver and redeliver, in each case at the Company's
expense, any Security in permanent global form in the manner and upon
instructions given by the Person or Persons specified therein or in the
applicable Company Order. If a Company Order pursuant to Section 3.3 or 3.4 has
been, or simultaneously
20
is, delivered, any instructions by the Company with respect to a Security in
global form shall be in writing but need not be accompanied by or contained in
an Officer's Certificate and need not be accompanied by an Opinion of Counsel.
Notwithstanding the provisions of Section 3.7, unless otherwise
specified in or pursuant to this Indenture or any Securities, payment of
principal of, any premium and interest on, and any Additional Amounts in respect
of, any Security in temporary or permanent global form shall be made to the
Person or Persons specified therein.
Notwithstanding the provisions of Section 3.8 and except as provided in
the preceding paragraph, the Company, the Trustee and any agent of the Company
or the Trustee shall treat as the Holder of such principal amount of Outstanding
Securities represented by a global Security (i) in the case of a global Security
in registered form, the Holder of such global Security in registered form, or
(ii) in the case of a global Security in bearer form, the Person or Persons
specified pursuant to Section 3.1.
ARTICLE 3
THE SECURITIES
Section 3.1. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited. The Securities may be issued in
one or more series.
With respect to any Securities to be authenticated and delivered
hereunder, there shall be established in or pursuant to a Board Resolution and
set forth in an Officer's Certificate, or established in one or more indentures
supplemental hereto,
(1) the title of such Securities and the series in which
such Securities shall be included;
(2) any limit upon the aggregate principal amount of the
Securities of such title or the Securities of such 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 such series pursuant
to Section 3.4, 3.5, 3.6, 9.5 or 11.7, upon repayment in part of any
Registered Security of such series pursuant to Article 13, upon
surrender in part of any Registered Security for conversion into other
securities of the Company or exchange for other securities pursuant to
its terms, or pursuant to or as contemplated by the terms of such
Securities);
(3) if such Securities are to be issuable as Registered
Securities, as Bearer Securities or alternatively as Bearer Securities
and Registered Securities, and whether the Bearer Securities are to be
issuable with Coupons, without Coupons or both, and any restrictions
applicable to the offer, sale or delivery of the Bearer Securities and
the terms, if any, upon which Bearer Securities may be exchanged for
Registered Securities and vice versa;
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(4) if any of such Securities are to be issuable in
global form, when any of such Securities are to be issuable in global
form and (i) whether such Securities are to be issued in temporary or
permanent global form or both, (ii) whether beneficial owners of
interests in any such global Security may exchange such interests for
Securities of the same series and of like tenor and of any authorized
form and denomination, and the circumstances under which any such
exchanges may occur, if other than in the manner specified in Section
3.5, and (iii) the name of the Depository or the U.S. Depository, as
the case may be, with respect to any such global Security;
(5) if any of such Securities are to be issuable as
Bearer Securities or in global form, the date as of which any such
Bearer Security or global Security shall be dated (if other than the
date of original issuance of the first of such Securities to be
issued);
(6) if any of such Securities are to be issuable as
Bearer Securities, whether interest in respect of any portion of a
temporary Bearer Security in global form payable in respect of an
Interest Payment Date therefor prior to the exchange, if any, of such
temporary Bearer Security for definitive Securities shall be paid to
any clearing organization with respect to the portion of such temporary
Bearer Security held for its account and, in such event, the terms and
conditions (including any certification requirements) upon which any
such interest payment received by a clearing organization will be
credited to the Persons entitled to interest payable on such Interest
Payment Date;
(7) the date or dates, or the method or methods, if any,
by which such date or dates shall be determined, on which the principal
of such Securities is payable;
(8) the rate or rates at which such Securities shall bear
interest, if any, or the method or methods, if any, by which such rate
or rates are to be determined, the date or dates, if any, from which
such interest shall accrue or the method or methods, if any, by which
such date or dates are to be determined, the Interest Payment Dates, if
any, on which such interest shall be payable and the Regular Record
Date, if any, for the interest payable on Registered Securities on any
Interest Payment Date, whether and under what circumstances Additional
Amounts on such Securities or any of them shall be payable, the notice,
if any, to Holders regarding the determination of interest on a
floating rate Security and the manner of giving such notice, and the
basis upon which interest shall be calculated if other than that of a
360-day year of twelve 30-day months;
(9) if in addition to or other than the Borough of
Manhattan, The City of New York, the place or places where the
principal of, any premium and interest on or any Additional Amounts
with respect to such Securities shall be payable, any of such
Securities that are Registered Securities may be surrendered for
registration of transfer or exchange, any of such Securities may be
surrendered for conversion or exchange and notices or demands to or
upon the Company in respect of such Securities and this Indenture may
be served, the extent to which, or the manner in which, any interest
payment or Additional Amounts on a global Security on an Interest
Payment Date, will be paid and the manner in which any principal of or
premium, if any, on any global Security will be paid;
22
(10) whether any of such Securities are to be redeemable
at the option of the Company and, if so, the date or dates on which,
the period or periods within which, the price or prices at which and
the other terms and conditions upon which such Securities may be
redeemed, in whole or in part, at the option of the Company;
(11) whether the Company is obligated to redeem or
purchase any of such Securities pursuant to any sinking fund or
analogous provision or at the option of any Holder thereof and, if so,
the date or dates on which, the period or periods within which, the
price or prices at which and the other terms and conditions upon which
such Securities shall be redeemed or purchased, in whole or in part,
pursuant to such obligation, and any provisions for the remarketing of
such Securities so redeemed or purchased;
(12) the denominations in which any of such Securities
that are Registered Securities shall be issuable if other than
denominations of $1,000 and any integral multiple thereof, and the
denominations in which any of such Securities that are Bearer
Securities shall be issuable if other than the denomination of $5,000;
(13) whether the Securities of the series will be
convertible into other securities of the Company and/or exchangeable
for other securities, whether or not issued by the Company, and, if so,
the terms and conditions upon which such Securities will be so
convertible or exchangeable, and any deletions from or modifications or
additions to this Indenture to permit or to facilitate the issuance of
such convertible or exchangeable Securities or the administration
thereof;
(14) if other than the principal amount thereof, the
portion of the principal amount of any of such Securities that shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 5.2 or the method by which such portion is to be
determined;
(15) if other than Dollars, the Foreign Currency in which
payment of the principal of, any premium or interest on or any
Additional Amounts with respect to any of such Securities shall be
payable;
(16) if the principal of, any premium or interest on or
any Additional Amounts with respect to any of such Securities are to be
payable, at the election of the Company or a Holder thereof or
otherwise, in Dollars or in a Foreign Currency other than that in which
such Securities are stated to be payable, the date or dates on which,
the period or periods within which, and the other terms and conditions
upon which, such election may be made, and the time and manner of
determining the exchange rate between the Currency in which such
Securities are stated to be payable and the Currency in which such
Securities or any of them are to be paid pursuant to such election, and
any deletions from or modifications of or additions to the terms of
this Indenture to provide for or to facilitate the issuance of
Securities denominated or payable, at the election of the Company or a
Holder thereof or otherwise, in a Foreign Currency;
23
(17) whether the amount of payments of principal of, any
premium or interest on or any Additional Amounts with respect to such
Securities may be determined with reference to an index, formula or
other method or methods (which index, formula or method or methods may
be based, without limitation, on one or more Currencies, commodities,
equity securities, equity indices or other indices), and, if so, the
terms and conditions upon which and the manner in which such amounts
shall be determined and paid or payable;
(18) any deletions from, modifications of or additions to
the Events of Default or covenants of the Company with respect to any
of such Securities, whether or not such Events of Default or covenants
are consistent with the Events of Default or covenants set forth
herein;
(19) whether either or both of Section 4.2(2) relating to
defeasance or Section 4.2(3) relating to covenant defeasance shall not
be applicable to the Securities of such series, or any covenants in
addition to those specified in Section 4.2(3) relating to the
Securities of such series which shall be subject to covenant
defeasance, and any deletions from, or modifications or additions to,
the provisions of Article 4 in respect of the Securities of such
series;
(20) whether any of such Securities are to be issuable
upon the exercise of warrants, and the time, manner and place for such
Securities to be authenticated and delivered;
(21) if any of such Securities are to be issuable in
global form and are to be issuable in definitive form (whether upon
original issue or upon exchange of a temporary Security) only upon
receipt of certain certificates or other documents or satisfaction of
other conditions, then the form and terms of such certificates,
documents or conditions;
(22) if there is more than one Trustee, the identity of
the Trustee and, if not the Trustee, the identity of each Security
Registrar, Paying Agent or Authenticating Agent with respect to such
Securities; and
(23) any other terms of such Securities and any other
deletions from or modifications or additions to this Indenture in
respect of such Securities.
All Securities of any one series and all Coupons, if any, appertaining
to Bearer Securities of such series shall be substantially identical except as
to Currency of payments due thereunder, denomination and the rate of interest
thereon, or method of determining the rate of interest, if any, Maturity, and
the date from which interest, if any, shall accrue and except as may otherwise
be provided by the Company in or pursuant to the Board Resolution and set forth
in the Officer's Certificate or in any indenture or indentures supplemental
hereto pertaining to such series of Securities. The terms of the Securities of
any series may provide, without limitation, that the Securities shall be
authenticated and delivered by the Trustee on original issue from time to time
upon written order of persons designated in the Officer's Certificate or
supplemental indenture and that such persons are authorized to determine,
consistent with such Officer's Certificate or any applicable supplemental
indenture, such terms and conditions of the Securities of such series
24
as are specified in such Officer's Certificate or supplemental indenture. All
Securities of any one series need not be issued at the same time and, unless
otherwise so provided, a series may be reopened for issuances of additional
Securities of such series or to establish additional terms of such series of
Securities.
If any of the terms of the Securities of any series shall be
established by action taken by or pursuant to a Board Resolution, the Board
Resolution shall be delivered to the Trustee at or prior to the delivery of the
Officer's Certificate setting forth the terms of such series.
Section 3.2. Currency; Denominations.
Unless otherwise provided in or pursuant to this Indenture, the
principal of, any premium and interest on and any Additional Amounts with
respect to the Securities shall be payable in Dollars. Unless otherwise provided
in or pursuant to this Indenture, Registered Securities denominated in Dollars
shall be issuable in registered form without Coupons in denominations of $1,000
and any integral multiple thereof, and the Bearer Securities denominated in
Dollars shall be issuable in the denomination of $5,000. Securities not
denominated in Dollars shall be issuable in such denominations as are
established with respect to such Securities in or pursuant to this Indenture.
Section 3.3. Execution, Authentication, Delivery and Dating.
Securities shall be executed on behalf of the Company by its Chairman
of the Board, a Vice Chairman, its President, Chief Financial Officer, Chief
Investment Officer or Chief Accounting Officer under its corporate seal
reproduced thereon and attested by its Secretary or an Assistant Secretary.
Coupons shall be executed on behalf of the Company by the Chief Financial
Officer or Chief Accounting Officer of the Company. The signature of any of
these officers on the Securities or any Coupons appertaining thereto may be
manual or facsimile.
Securities and any Coupons appertaining thereto bearing the manual or
facsimile signatures of individuals who were at any time the proper officers of
the Company shall bind the Company, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the authentication and
delivery of such Securities and Coupons or did not hold such offices at the date
of original issuance of such Securities or Coupons.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities, together with any Coupons
appertaining thereto, executed by the Company, to the Trustee for authentication
and, provided that the Board Resolution and Officer's Certificate or
supplemental indenture or indentures with respect to such Securities referred to
in Section 3.1 and a Company Order for the authentication and delivery of such
Securities have been delivered to the Trustee, the Trustee in accordance with
the Company Order and subject to the provisions hereof and of such Securities
shall authenticate and deliver such Securities. In authenticating such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities and any Coupons appertaining thereto, the Trustee
shall be entitled to receive, and (subject to Sections 315(a) through 315(d) of
the Trust Indenture Act) shall be fully protected in relying upon,
25
(1) an Opinion of Counsel to the effect that:
(a) the form or forms and terms of such
Securities and Coupons, if any, have been established in
conformity with the provisions of this Indenture;
(b) all conditions precedent to the
authentication and delivery of such Securities and Coupons, if
any, appertaining thereto, have been complied with and that
such Securities and Coupons, when completed by appropriate
insertions, executed under the Company's corporate seal and
attested by duly authorized officers of the Company, delivered
by duly authorized officers of the Company to the Trustee for
authentication pursuant to this Indenture, and 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 legally valid and binding
obligations of the Company, enforceable against the Company in
accordance with their terms, except as enforcement thereof may
be subject to or limited by bankruptcy, insolvency,
reorganization, moratorium, arrangement, fraudulent
conveyance, fraudulent transfer or other similar laws relating
to or affecting creditors' rights generally, and subject to
general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law) and
will entitle the Holders thereof to the benefits of this
Indenture; such Opinion of Counsel need express no opinion as
to the availability of equitable remedies;
(c) all laws and requirements in respect of the
execution and delivery by the Company of such Securities and
Coupons, if any, have been complied with; and
(d) this Indenture has been qualified under the
Trust Indenture Act; and
(2) an Officer's Certificate stating that all conditions
precedent to the execution, authentication and delivery of such
Securities and Coupons, if any, appertaining thereto, have been
complied with and that, to the best knowledge of the Persons executing
such certificate, no event which is, or after notice or lapse of time
would become, an Event of Default with respect to any of the Securities
shall have occurred and be continuing.
If all the Securities of any series are not to be issued at one time,
it shall not be necessary to deliver an Opinion of Counsel and an Officer's
Certificate at the time of issuance of each Security, but such opinion and
certificate, with appropriate modifications, shall be delivered at or before the
time of issuance of the first Security of such series. After any such first
delivery, any separate written request by an Authorized Officer of the Company
or any person designated in writing by an Authorized Officer that the Trustee
authenticate and deliver Securities of such series for original issue will be
deemed to be a certification by the Company that all conditions precedent
provided for in this Indenture relating to authentication and delivery of such
Securities continue to have been complied with and that no Event of Default with
respect to any of the Securities has occurred or is continuing.
The Trustee shall not be required to authenticate or to cause an
Authenticating Agent to authenticate any Securities if the issue of such
Securities pursuant to this Indenture will affect the
26
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 or if the Trustee, being advised by counsel, determines that such action
may not lawfully be taken.
Each Registered Security shall be dated the date of its authentication.
Each Bearer Security and any Bearer Security in global form shall be dated as of
the date specified in or pursuant to this Indenture.
No Security or Coupon appertaining thereto 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 in Section 2.2 or 6.11 executed by or on behalf of the
Trustee or by the Authenticating Agent by the manual signature of one of its
authorized officers. Such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly authenticated
and delivered hereunder. Except as permitted by Section 3.6 or 3.7, the Trustee
shall not authenticate and deliver any Bearer Security unless all Coupons
appertaining thereto then matured have been detached and cancelled.
Section 3.4. Temporary Securities.
Pending the preparation of definitive Securities, the Company may
execute and deliver to the Trustee and, upon Company Order, the Trustee shall
authenticate and deliver, in the manner provided in Section 3.3, temporary
Securities in lieu thereof which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued, in registered form or, if authorized in or pursuant to this
Indenture, in bearer form with one or more Coupons or without Coupons and with
such appropriate insertions, omissions, substitutions and other variations as
the officers of the Company executing such Securities may determine, as
conclusively evidenced by their execution of such Securities. Such temporary
Securities may be in global form.
Except in the case of temporary Securities in global form, which shall
be exchanged in accordance with the provisions thereof, if temporary Securities
are issued, the Company shall cause definitive Securities to be prepared without
unreasonable delay. After the preparation of definitive Securities of the same
series and containing terms and provisions that are identical to those of any
temporary Securities, such temporary Securities shall be exchangeable for such
definitive Securities upon surrender of such temporary Securities at an Office
or Agency for such Securities, without charge to any Holder thereof. Upon
surrender for cancellation of any one or more temporary Securities (accompanied
by any unmatured Coupons appertaining thereto), the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a like principal
amount of definitive Securities of authorized denominations of the same series
and containing identical terms and provisions; provided, however, that no
definitive Bearer Security, except as provided in or pursuant to this Indenture,
shall be delivered in exchange for a temporary Registered Security; and
provided, further, that a definitive Bearer Security shall be delivered in
exchange for a temporary Bearer Security only in compliance with the conditions
set forth in or pursuant to this Indenture. Unless otherwise provided in or
pursuant to this Indenture with respect to a temporary global Security, 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.
27
Section 3.5. Registration, Transfer and Exchange.
With respect to the Registered Securities of each series, if any, the
Company shall cause to be kept a register (each such register being herein
sometimes referred to as the "Security Register") at an Office or Agency for
such series in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of the Registered
Securities of such series and of transfers of the Registered Securities of such
series. Such Office or Agency shall be the "Security Registrar" for that series
of Securities. Unless otherwise specified in or pursuant to this Indenture or
the Securities, the Trustee shall be the initial Security Registrar for each
series of Securities. The Company shall have the right to remove and replace
from time to time the Security Registrar for any series of Securities; provided
that no such removal or replacement shall be effective until a successor
Security Registrar with respect to such series of Securities shall have been
appointed by the Company and shall have accepted such appointment by the
Company. In the event that the Trustee shall not be or shall cease to be
Security Registrar with respect to a series of Securities, it shall have the
right to examine the Security Register for such series at all reasonable times.
There shall be only one Security Register for each series of Securities.
Upon surrender for registration of transfer of any Registered Security
of any series at any Office or Agency for such 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 Registered Securities of
the same series denominated as authorized in or pursuant to this Indenture, of a
like aggregate principal amount bearing a number not contemporaneously
outstanding and containing identical terms and provisions.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series containing
identical terms and provisions, in any authorized denominations, and of a like
aggregate principal amount, upon surrender of the Securities to be exchanged at
any Office or Agency for such series. Whenever any Registered Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Registered Securities which the Holder making the
exchange is entitled to receive.
If provided in or pursuant to this Indenture, with respect to
Securities of any series, at the option of the Holder, Bearer Securities of such
series may be exchanged for Registered Securities of such series containing
identical terms, denominated as authorized in or pursuant to this Indenture and
in the same aggregate principal amount, upon surrender of the Bearer Securities
to be exchanged at any Office or Agency for such series, with all unmatured
Coupons and all matured Coupons in default thereto appertaining. If the Holder
of a Bearer Security is unable to produce any such unmatured Coupon or Coupons
or matured Coupon or Coupons in default, such exchange may be effected if the
Bearer Securities are accompanied by payment in funds acceptable to the Company
and the Trustee in an amount equal to the face amount of such missing Coupon or
Coupons, or the surrender of such missing Coupon or Coupons may be waived by the
Company and the Trustee if there is furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Bearer Security shall surrender to any Paying
Agent any such missing Coupon in respect of which such a payment shall have been
made, such Holder shall be entitled to receive
28
the amount of such payment; provided, however, that, except as otherwise
provided in Section 10.2, interest represented by Coupons shall be payable only
upon presentation and surrender of those Coupons at an Office or Agency for such
series located outside the United States. Notwithstanding the foregoing, in case
a Bearer Security of any series is surrendered at any such Office or Agency for
such series in exchange for a Registered Security of such series and like tenor
after the close of business at such Office or Agency on (i) any Regular Record
Date and before the opening of business at such Office or Agency on the next
succeeding Interest Payment Date, or (ii) any Special Record Date and before the
opening of business at such Office or Agency on the related date for payment of
Defaulted Interest, such Bearer Security shall be surrendered without the Coupon
relating to such Interest Payment Date or proposed date of payment, as the case
may be (or, if such Coupon is so surrendered with such Bearer Security, such
Coupon shall be returned to the Person so surrendering the Bearer Security), and
interest or Defaulted Interest, as the case may be, shall not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in
respect of the Registered Security issued in exchange for such Bearer Security,
but shall be payable only to the Holder of such Coupon when due in accordance
with the provisions of this Indenture.
If provided in or pursuant to this Indenture with respect to Securities
of any series, at the option of the Holder, Registered Securities of such series
may be exchanged for Bearer Securities upon such terms and conditions as may be
provided in or pursuant to this Indenture with respect to such series.
Whenever any Securities are surrendered for exchange as contemplated by
the immediately preceding two paragraphs, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise provided in or
pursuant to this Indenture, any global Security shall be exchangeable for
definitive Securities only if (i) the Depository is at any time unwilling,
unable or ineligible to continue as depository and a successor depository is not
appointed by the Company within 90 days of the date the Company is so informed
in writing, (ii) the Company executes and delivers to the Trustee a Company
Order to the effect that such global Security shall be so exchangeable, or (iii)
an Event of Default has occurred and is continuing with respect to the
Securities. If the beneficial owners of interests in a global Security are
entitled to exchange such interests for definitive Securities as the result of
an event described in clause (i), (ii) or (iii) of the preceding sentence, then
without unnecessary delay but in any event not later than the earliest date on
which such interests may be so exchanged, the Company shall deliver to the
Trustee definitive Securities in such form and denominations as are required by
or pursuant to this Indenture, and of the same series, containing identical
terms and in aggregate principal amount equal to the principal amount of such
global Security, executed by the Company. On or after the earliest date on which
such interests may be so exchanged, such global Security shall be surrendered
from time to time by the U.S. Depository or such other Depository as shall be
specified in the Company Order with respect thereto, and in accordance with
instructions given to the Trustee and the U.S. Depository or such other
Depository, as the case may be (which instructions shall be in writing but need
not be contained in or accompanied by an Officer's Certificate or be accompanied
by an Opinion of Counsel), as shall be specified in the Company Order with
respect thereto to the Trustee, as the
29
Company's agent for such purpose, to be exchanged, in whole or in part, for
definitive Securities as described above without charge. The Trustee shall
authenticate and make available for delivery, in exchange for each portion of
such surrendered global Security, a like aggregate principal amount of
definitive Securities of the same series of authorized denominations and of like
tenor as the portion of such global Security to be exchanged, which (unless such
Securities are not issuable both as Bearer Securities and as Registered
Securities, in which case the definitive Securities exchanged for the global
Security shall be issuable only in the form in which the Securities are
issuable, as provided in or pursuant to this Indenture) shall be in the form of
Bearer Securities or Registered Securities, or any combination thereof, as shall
be specified by the beneficial owner thereof, but subject to the satisfaction of
any certification or other requirements to the issuance of Bearer Securities;
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 the same
series to be redeemed and ending on the relevant Redemption Date; and provided,
further, that (unless otherwise provided in or pursuant to this Indenture) no
Bearer Security delivered in exchange for a portion of a global Security shall
be mailed or otherwise delivered to any location in the United States. Promptly
following any such exchange in part, such global Security shall be returned by
the Trustee to such Depository or the U.S. Depository, as the case may be, or
such other Depository or U.S. Depository referred to above in accordance with
the instructions of the Company referred to above. If a Registered Security is
issued in exchange for any portion of a global Security after the close of
business at the Office or Agency for such Security where such exchange occurs on
or after (i) any Regular Record Date for such Security and before the opening of
business at such Office or Agency on the next succeeding Interest Payment Date,
or (ii) any Special Record Date for such Security and before the opening of
business at such Office or Agency on the related proposed date for payment of
interest or Defaulted Interest, as the case may be, interest shall not be
payable on such Interest Payment Date or proposed date for payment, as the case
may be, in respect of such Registered Security, but shall be payable on such
Interest Payment Date or proposed date for payment, as the case may be, only to
the Person to whom interest in respect of such portion of such global Security
shall be payable in accordance with the provisions of this Indenture.
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 entitling the Holders thereof to the same benefits under this Indenture
as the Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange or redemption shall (if so required by the Company or
the Security Registrar for such Security) be duly endorsed, or be accompanied by
a written instrument of transfer in form satisfactory to the Company and the
Security Registrar for such Security 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, or redemption of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge and any other
expenses (including fees and expenses of the Trustee) that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 3.4, 9.5 or 11.7 not involving any transfer.
30
Except as otherwise provided in or pursuant to this Indenture, the
Company shall not be required (i) to issue, register the transfer of or exchange
any Securities during a period beginning at the opening of business 15 days
before the day of mailing of a notice of redemption of Securities of like tenor
and the same series under Section 11.3 and ending at the close of business on
the day of such mailing, or (ii) to register the transfer of or exchange any
Registered Security selected for redemption in whole or in part, except in the
case of any Security to be redeemed in part, the portion thereof not to be
redeemed, or (iii) to exchange any Bearer Security selected for redemption
except, to the extent provided with respect to such Bearer Security, that such
Bearer Security may be exchanged for a Registered Security of like tenor and the
same series, provided that such Registered Security shall be immediately
surrendered for redemption with written instruction for payment consistent with
the provisions of this Indenture or (iv) to issue, register the transfer of or
exchange any Security which, in accordance with its terms, has been surrendered
for repayment at the option of the Holder, except the portion, if any, of such
Security not to be so repaid.
Section 3.6. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security or a Security with a mutilated Coupon
appertaining to it is surrendered to the Trustee, subject to the provisions of
this Section 3.6, the Company shall execute and the Trustee shall authenticate
and deliver in exchange therefor a new Security of the same series containing
identical terms and of like principal amount and bearing a number not
contemporaneously outstanding, with Coupons appertaining thereto corresponding
to the Coupons, if any, appertaining to the surrendered Security.
If there be delivered to the Company and to the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security or Coupon,
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security or Coupon has been acquired by a
bona fide purchaser, the Company shall execute and, upon the Company's request
the Trustee shall authenticate and deliver, in exchange for or in lieu of any
such mutilated, destroyed, lost or stolen Security or in exchange for the
Security to which a destroyed, lost or stolen Coupon appertains with all
appurtenant Coupons not destroyed, lost or stolen, a new Security of the same
series containing identical terms and of like principal amount and bearing a
number not contemporaneously outstanding, with Coupons appertaining thereto
corresponding to the Coupons, if any, appertaining to such destroyed, lost or
stolen Security or to the Security to which such destroyed, lost or stolen
Coupon appertains.
Notwithstanding the foregoing provisions of this Section 3.6, in case
any mutilated, destroyed, lost or stolen Security or Coupon has become or is
about to become due and payable, the Company in its discretion may, instead of
issuing a new Security, pay such Security or Coupon; provided, however, that
payment of principal of, any premium or interest on or any Additional Amounts
with respect to any Bearer Securities shall, except as otherwise provided in
Section 10.2, be payable only at an Office or Agency for such Securities located
outside the United States and, unless otherwise provided in or pursuant to this
Indenture, any interest on Bearer Securities and any Additional Amounts with
respect to such interest shall be payable only upon presentation and surrender
of the Coupons appertaining thereto.
31
Upon the issuance of any new Security under this Section 3.6, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security, with any Coupons appertaining thereto issued
pursuant to this Section 3.6 in lieu of any destroyed, lost or stolen Security,
or in exchange for a Security to which a destroyed, lost or stolen Coupon
appertains shall constitute a separate obligation of the Company, whether or not
the destroyed, lost or stolen Security and Coupons appertaining thereto or the
destroyed, lost or stolen Coupon 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 such series and any
Coupons, if any, duly issued hereunder.
The provisions of this Section 3.6, as amended or supplemented pursuant
to this Indenture with respect to particular Securities or generally, shall be
exclusive and shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities or Coupons.
Section 3.7. Payment of Interest and Certain Additional Amounts;
Rights to Interest and Certain Additional Amounts Preserved.
Unless otherwise provided in or pursuant to this Indenture, any
interest on and any Additional Amounts with respect to any Registered Security
which shall be payable, and are punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name such Security
(or one or more Predecessor Securities) is registered as of the close of
business on the Regular Record Date for such interest.
Unless otherwise provided in or pursuant to this Indenture, any
interest on and any Additional Amounts with respect to any Registered Security
which shall be payable, but shall not be punctually paid or duly provided for,
on any Interest Payment Date for such Registered Security (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holder thereof
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 Person in whose name such Registered Security
(or a Predecessor Security thereof) shall be registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed by the Company in the following manner.
The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on such Registered Security, the
Special Record Date therefor and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an amount
of money equal to the aggregate amount proposed to be paid in respect
of such Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit on or prior to the date of the proposed
payment, such money when so deposited to be held in trust for the
benefit of the Person entitled to such Defaulted Interest as in this
Clause provided. The Special Record Date for the payment of such
Defaulted Interest shall be
32
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 notification to
the Trustee of the proposed payment. The Trustee shall, in the name and
at the expense of the Company, cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to the Holder of such Registered
Security (or a Predecessor Security thereof) 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 of general
circulation in the Borough of Manhattan, The City of New York, 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
mailed as aforesaid, such Defaulted Interest shall be paid to the
Person in whose name such Registered Security (or a Predecessor
Security thereof) shall be 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 in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Security may be
listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed
payment pursuant to this Clause, such payment shall be deemed
practicable by the Trustee.
Unless otherwise provided in or pursuant to this Indenture or the
Securities of any particular series pursuant to the provisions of this
Indenture, at the option of the Company, interest on Registered Securities that
bear interest may be paid by mailing a check to the address of the Person
entitled thereto as such address shall appear in the Security Register or by
transfer to an account maintained by the payee with a bank located in the United
States.
Subject to the foregoing provisions of this Section and Section 3.5,
each Security delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
In the case of any Registered Security of any series that is
convertible into shares of Common Stock of the Company or exchangeable for other
securities, which Registered Security is converted or exchanged after any
Regular Record Date and on or prior to the next succeeding Interest Payment Date
(other than any Registered Security with respect to which the Stated Maturity is
prior to such Interest Payment Date), interest with respect to which the Stated
Maturity is on such Interest Payment Date shall be payable on such Interest
Payment Date notwithstanding such conversion or exchange, and such interest
(whether or not punctually paid or duly provided for) shall be paid to the
Person in whose name that Registered Security (or one or more predecessor
Registered Securities) is registered at the close of business on such Regular
Record Date. Except as otherwise expressly provided in the immediately preceding
sentence, in the case of any Registered Security which is converted or
exchanged, interest with respect to which the Stated Maturity is after the date
of conversion or exchange of such Registered Security shall not be payable.
33
Section 3.8. Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Registered Security is registered in the
Security Register as the owner of such Registered Security for the purpose of
receiving payment of principal of, any premium and (subject to Sections 3.5 and
3.7) interest on and any Additional Amounts with respect to such Registered
Security and for all other purposes whatsoever, whether or not any payment with
respect to such Registered Security shall be overdue, and none of the Company,
the Trustee or any agent of the Company or the Trustee shall be affected by
notice to the contrary.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the bearer of any Bearer Security or the bearer of any Coupon as the
absolute owner of such Security or Coupon for the purpose of receiving payment
thereof or on account thereof and for all other purposes whatsoever, whether or
not any payment with respect to such Security or Coupon shall be overdue, and
none of the Company, the Trustee or any agent of the Company or the Trustee
shall be affected by notice to the contrary.
No Holder of any beneficial interest in any global Security held on its
behalf by a Depository shall have any rights under this Indenture with respect
to such global Security, and such Depository may be treated by the Company, the
Trustee, and any agent of the Company or the Trustee as the owner of such global
Security for all purposes whatsoever. None of the Company, the Trustee, any
Paying Agent or the Security Registrar will have any responsibility or liability
for any aspect of the records relating to or payments made on account of
beneficial ownership interests of a global Security or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
Section 3.9. Cancellation.
All Securities and Coupons surrendered for payment, redemption,
registration of transfer, exchange or conversion or for credit against any
sinking fund payment shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee, and any such Securities and Coupons, as well as
Securities and Coupons surrendered directly to the Trustee for any such purpose,
shall be cancelled promptly 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 cancelled promptly by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section, except as expressly permitted
by or pursuant to this Indenture. All cancelled Securities and Coupons held by
the Trustee shall be destroyed by the Trustee, unless by a Company Order the
Company directs their return to it.
Section 3.10. Computation of Interest.
Except as otherwise provided in or pursuant to this Indenture or in any
Security, interest on the Securities shall be computed on the basis of a 360-day
year of twelve 30-day months.
34
ARTICLE 4
Satisfaction and Discharge of Indenture
Section 4.1. Satisfaction and Discharge.
Upon the direction of the Company by a Company Order, this Indenture
shall cease to be of further effect with respect to any series of Securities
specified in such Company Order and any Coupons appertaining thereto, and the
Trustee, on receipt of a Company Order, at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture as to such series, when
(1) either
(a) all Securities of such series theretofore
authenticated and delivered and all Coupons appertaining
thereto (other than (i) Coupons appertaining to Bearer
Securities of such series surrendered in exchange for
Registered Securities of such series and maturing after such
exchange whose surrender is not required or has been waived as
provided in Section 3.5, (ii) Securities and Coupons of such
series which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 3.6, (iii)
Coupons appertaining to Securities of such series called for
redemption and maturing after the relevant Redemption Date
whose surrender has been waived as provided in Section 11.7,
and (iv) Securities and Coupons of such series for whose
payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as
provided in Section 10.3) have been delivered to the Trustee
for cancellation; or
(b) all Securities of such series and, in the
case of (i) or (ii) below, any Coupons appertaining thereto
not theretofore delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at
their Stated Maturity within one year, or
(iii) if redeemable at the option of the
Company, are to be called for redemption within one
year under arrangements satisfactory to the Trustee
for the giving of notice of redemption by the Trustee
in the name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for such
purpose, money in the Currency in which such Securities are payable in an amount
sufficient to pay and discharge the entire indebtedness on such Securities and
any Coupons appertaining thereto not theretofore delivered to the Trustee for
cancellation, including the principal of, any premium and interest on, and any
Additional Amounts with respect to such Securities and any Coupons appertaining
thereto, to the date of
35
such deposit (in the case of Securities which have become due and payable) or to
the Maturity thereof, as the case may be;
(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 and any Coupons appertaining thereto; and
(3) the Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture as to such series have been complied with.
In the event there are Securities of two or more series hereunder, the
Trustee shall be required to execute an instrument acknowledging satisfaction
and discharge of this Indenture only if requested to do so with respect to
Securities of such series as to which it is Trustee and if the other conditions
thereto are met.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to any series of Securities, the obligations of the Company to the
Trustee under Section 6.6 and, if money shall have been deposited with the
Trustee pursuant to subclause (b) of clause (1) of this Section, the obligations
of the Company and the Trustee with respect to the Securities of such series
under Sections 3.5, 3.6, 4.3, 10.2 and 10.3, with respect to the payment of
Additional Amounts, if any, with respect to such Securities as contemplated by
Section 10.4 (but only to the extent that the Additional Amounts payable with
respect to such Securities exceed the amount deposited in respect of such
Additional Amounts pursuant to Section 4.1(1)(b)), and with respect to any
rights to convert or exchange such Securities into Common Stock of the Company
or other securities shall survive.
Section 4.2. Defeasance and Covenant Defeasance.
(1) Unless pursuant to Section 3.1, either or both of (i)
defeasance of the Securities of or within a series under clause (2) of
this Section 4.2 shall not be applicable with respect to the Securities
of such series or (ii) covenant defeasance of the Securities of or
within a series under clause (3) of this Section 4.2 shall not be
applicable with respect to the Securities of such series, then such
provisions, together with the other provisions of this Section 4.2
(with such modifications thereto as may be specified pursuant to
Section 3.1 with respect to any Securities), shall be applicable to
such Securities and any Coupons appertaining thereto, and the Company
may at its option by Board Resolution, at any time, with respect to
such Securities and any Coupons appertaining thereto, elect to have
Section 4.2(2) or Section 4.2(3) be applied to such Outstanding
Securities and any Coupons appertaining thereto upon compliance with
the conditions set forth below in this Section 4.2.
(2) Upon the Company's exercise of the above option
applicable to this Section 4.2(2) with respect to any Securities of or
within a series, the Company shall be deemed to have been discharged
from its obligations with respect to such Outstanding Securities and
any Coupons appertaining thereto on the date the conditions set forth
in
36
clause (4) of this Section 4.2 are satisfied (hereinafter,
"defeasance"). For this purpose, such defeasance means that the Company
shall be deemed to have paid and discharged the entire Indebtedness
represented by such Outstanding Securities and any Coupons appertaining
thereto, which shall thereafter be deemed to be "Outstanding" only for
the purposes of clause (5) of this Section 4.2 and the other Sections
of this Indenture referred to in clauses (i) and (ii) below, and to
have satisfied all of its other obligations under such Securities and
any Coupons appertaining thereto and this Indenture insofar as such
Securities and any Coupons appertaining thereto are concerned (and the
Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), except for the following which
shall survive until otherwise terminated or discharged hereunder: (i)
the rights of Holders of such Outstanding Securities and any Coupons
appertaining thereto to receive, solely from the trust fund described
in clause (4) of this Section 4.2 and as more fully set forth in such
clause, payments in respect of the principal of (and premium, if any)
and interest, if any, on, and Additional Amounts, if any, with respect
to, such Securities and any Coupons appertaining thereto when such
payments are due, and any rights of such Holder to convert such
Securities into Common Stock of the Company or exchange such Securities
for other securities, (ii) the obligations of the Company and the
Trustee with respect to such Securities under Sections 3.5, 3.6, 10.2
and 10.3 and with respect to the payment of Additional Amounts, if any,
on such Securities as contemplated by Section 10.4 (but only to the
extent that the Additional Amounts payable with respect to such
Securities exceed the amount deposited in respect of such Additional
Amounts pursuant to Section 4.2(4)(a) below), and with respect to any
rights to convert such Securities into Common Stock of the Company or
exchange such Securities for other securities, (iii) the rights,
powers, trusts, duties and immunities of the Trustee hereunder and (iv)
this Section 4.2. The Company may exercise its option under this
Section 4.2(2) notwithstanding the prior exercise of its option under
clause (3) of this Section 4.2 with respect to such Securities and any
Coupons appertaining thereto.
(3) Upon the Company's exercise of the option to have
this Section 4.2(3) apply with respect to any Securities of or within a
series, the Company shall be released from its obligations under
Sections 10.5 and 10.6, and, to the extent specified pursuant to
Section 3.1(19), any other covenant applicable to such Securities, with
respect to such Outstanding Securities and any Coupons appertaining
thereto on and after the date the conditions set forth in clause (4) of
this Section 4.2 are satisfied (hereinafter, "covenant defeasance"),
and such Securities and any Coupons appertaining thereto shall
thereafter be deemed to be not "Outstanding" for the purposes of any
direction, waiver, consent or declaration or Act of Holders (and the
consequences of any thereof) in connection with any such covenant, but
shall continue to be deemed "Outstanding" for all other purposes
hereunder. For this purpose, such covenant defeasance means that, with
respect to such Outstanding Securities and any Coupons appertaining
thereto, 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 Section 5.1(4) or 5.1(9) or
otherwise, as the case
37
may be, but, except as specified above, the remainder of this Indenture
and such Securities and Coupons appertaining thereto shall be
unaffected thereby.
(4) The following shall be the conditions to application
of clause (2) or (3) of this Section 4.2 to any Outstanding Securities
of or within a series and any Coupons appertaining thereto:
(a) The Company shall irrevocably have deposited
or caused to be deposited with the Trustee (or another trustee
satisfying the requirements of Section 6.7 who shall agree to
comply with the provisions of this Section 4.2 applicable to
it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such
Securities and any Coupons appertaining thereto, (1) an amount
in Dollars or in such Foreign Currency in which such
Securities and any Coupons appertaining thereto are then
specified as payable at Stated Maturity, or (2) Government
Obligations applicable to such Securities and Coupons
appertaining thereto (determined on the basis of the Currency
in which such Securities and Coupons appertaining thereto are
then specified as payable at Stated Maturity) which through
the scheduled payment of principal and interest in respect
thereof in accordance with their terms will provide, not later
than one day before the due date of any payment of principal
of (and premium, if any) and interest, if any, on such
Securities and any Coupons appertaining thereto, money in an
amount, or (3) a combination thereof, in any case, in an
amount, sufficient, without consideration of any reinvestment
of such principal and interest, in the opinion of a nationally
recognized firm of independent public accountants expressed in
a written certification thereof delivered to the Trustee, to
pay and discharge, and which shall be applied by the Trustee
(or other qualifying trustee) to pay and discharge, (y) the
principal of (and premium, if any) and interest, if any, on
such Outstanding Securities and any Coupons appertaining
thereto at the Stated Maturity of such principal or
installment of principal or premium or interest and (z) any
mandatory sinking fund payments or analogous payments
applicable to such Outstanding Securities and any Coupons
appertaining thereto on the days on which such payments are
due and payable in accordance with the terms of this Indenture
and of such Securities and any Coupons appertaining thereto.
(b) Such defeasance or covenant defeasance shall
not result in a breach or violation of, or constitute a
default under, this Indenture or any other material agreement
or instrument to which the Company is a party or by which it
is bound.
(c) No Event of Default or event which with
notice or lapse of time or both would become an Event of
Default with respect to such Securities and any Coupons
appertaining thereto shall have occurred and be continuing on
the date of such deposit and, with respect to defeasance only,
at any time during the period ending on the 123rd day after
the date of such deposit (it being understood that this
condition shall not be deemed satisfied until the expiration
of such period).
38
(d) In the case of an election under clause (2)
of this Section 4.2, the Company shall have delivered to the
Trustee an Opinion of Counsel stating that (i) the Company has
received from the Internal Revenue Service a letter ruling, or
there has been published by the Internal Revenue Service a
Revenue Ruling, or (ii) since the date of execution of this
Indenture, there has been a change in the applicable Federal
income tax law, in either case to the effect that, and based
thereon such opinion shall confirm that, the Holders of such
Outstanding Securities and any Coupons appertaining thereto
will not recognize income, gain or loss for Federal income tax
purposes as a result of such defeasance and will be subject to
Federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such
defeasance had not occurred.
(e) In the case of an election under clause (3)
of this Section 4.2, the Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that the Holders
of such Outstanding Securities and any Coupons appertaining
thereto will not recognize income, gain or loss for Federal
income tax purposes as a result of such covenant defeasance
and will be subject to Federal income tax on the same amounts,
in the same manner and at the same times as would have been
the case if such covenant defeasance had not occurred.
(f) The Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that, after the
123rd day after the date of deposit, all money and Government
Obligations (or other property as may be provided pursuant to
Section 3.1) (including the proceeds thereof) deposited or
caused to be deposited with the Trustee (or other qualifying
trustee) pursuant to this clause (4) to be held in trust will
not be subject to any case or proceeding (whether voluntary or
involuntary) in respect of the Company under any Federal or
State bankruptcy, insolvency, reorganization or other similar
law, or any decree or order for relief in respect of the
Company issued in connection therewith.
(g) The Company shall have delivered to the
Trustee an Officer's Certificate and an Opinion of Counsel,
each stating that all conditions precedent to the defeasance
or covenant defeasance under clause (2) or (3) of this Section
4.2 (as the case may be) have been complied with.
(h) Notwithstanding any other provisions of this
Section 4.2(4), 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 pursuant to Section 3.1.
(5) Unless otherwise specified in or pursuant to this
Indenture or any Security, if, after a deposit referred to in Section
4.2(4)(a) has been made, (a) the Holder of a Security in respect of
which such deposit was made is entitled to, and does, elect pursuant to
Section 3.1 or the terms of such Security to receive payment in a
Currency other than that in which the deposit pursuant to Section
4.2(4)(a) has been made in respect of such Security, or (b) a
Conversion Event occurs in respect of the Foreign Currency in which the
deposit pursuant to Section 4.2(4)(a) has been made, the indebtedness
represented by
39
such Security and any Coupons appertaining thereto shall be deemed to
have been, and will be, fully discharged and satisfied through the
payment of the principal of (and premium, if any), and interest, if
any, on, and Additional Amounts, if any, with respect to, such Security
as the same becomes due out of the proceeds yielded by converting (from
time to time as specified below in the case of any such election) the
amount or other property deposited in respect of such Security into the
Currency in which such Security becomes payable as a result of such
election or Conversion Event based on (x) in the case of payments made
pursuant to clause (a) above, the applicable market exchange rate for
such Currency in effect on the second Business Day prior to each
payment date, or (y) with respect to a Conversion Event, the applicable
market exchange rate for such Foreign Currency in effect (as nearly as
feasible) at the time of the Conversion Event.
The Company shall pay and indemnify the Trustee (or other qualifying
trustee, collectively for purposes of this Section 4.2(5) and Section 4.3, the
"Trustee") against any tax, fee or other charge, imposed on or assessed against
the Government Obligations deposited pursuant to this Section 4.2 or the
principal or interest received in respect thereof other than any such tax, fee
or other charge which by law is for the account of the Holders of such
Outstanding Securities and any Coupons appertaining thereto.
Anything in this Section 4.2 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or Government Obligations (or other property and any proceeds
therefrom) held by it as provided in clause (4) of this Section 4.2 which, in
the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect a defeasance or covenant defeasance, as applicable, in accordance with
this Section 4.2.
Section 4.3. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.3, all
money and Government Obligations (or other property as may be provided pursuant
to Section 3.1) (including the proceeds thereof) deposited with the Trustee
pursuant to Section 4.1 or 4.2 in respect of any Outstanding Securities of any
series and any Coupons appertaining thereto shall be held in trust and applied
by the Trustee, in accordance with the provisions of such Securities and any
Coupons appertaining thereto 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 and any
Coupons appertaining thereto of all sums due and to become due thereon in
respect of principal (and premium, if any) and interest and Additional Amounts,
if any; but such money and Government Obligations need not be segregated from
other funds except to the extent required by law.
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ARTICLE 5
Remedies
Section 5.1. 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 such event is specifically deleted or modified in or pursuant to the
supplemental indenture, Board Resolution or Officer's Certificate establishing
the terms of such Series pursuant to this Indenture:
(1) default in the payment of any interest on any
Security of such series, or any Additional Amounts payable with respect
thereto, when such interest becomes or such 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 any
premium on any Security of such series, or any Additional Amounts
payable with respect thereto, when such principal or premium becomes or
such Additional Amounts become due and payable at their Maturity; or
(3) default in the deposit of any sinking fund payment
when and as due by the terms of a Security of such series; or
(4) default in the performance, or breach, of any
covenant or warranty of the Company in this Indenture or the Securities
(other than a covenant or warranty a default in the performance or the
breach of which is elsewhere in this Section specifically dealt with or
which has been expressly included in this Indenture solely for the
benefit of a series of Securities other than such series), and
continuance of such default or breach for a period of 60 days after
there has been given, by registered or certified mail, to the Company
by the Trustee or to the Company and the Trustee by the Holders of at
least 25% in principal amount of the Outstanding Securities of such
series, a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice
of Default" hereunder; or
(5) if any event of default as defined in any mortgage,
indenture or instrument under which there may be issued, or by which
there may be secured or evidenced, any Indebtedness of the Company
(including an Event of Default under any other series of Securities),
whether such Indebtedness now exists or shall hereafter be created or
incurred, shall happen and shall consist of default in the payment of
more than $50,000,000 in principal amount of such Indebtedness at the
maturity thereof (after giving effect to any applicable grace period)
or shall result in such Indebtedness in principal amount in excess of
$50,000,000 becoming or being declared due and payable prior to the
date on which it would otherwise become due and payable, and such
default shall not be cured or such acceleration shall not be rescinded
or annulled within a period
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of 30 days after there shall have been given, by registered or
certified mail, to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities of such series, a written notice specifying such
event of default and requiring the Company to cause such default to be
cured or to cause such acceleration to be rescinded or annulled or to
cause such Indebtedness to be discharged and stating that such notice
is a "Notice of Default" hereunder; or
(6) the Company shall fail within 60 days to pay, bond
or otherwise discharge any uninsured judgment or court order for the
payment of money in excess of $50,000,000, which is not stayed on
appeal or is not otherwise being appropriately contested in good faith;
or
(7) the entry by a court having competent jurisdiction
of:
(a) a decree or order for relief in respect of
the Company in an involuntary proceeding under any applicable
bankruptcy, insolvency, reorganization (other than a
reorganization under a foreign law that does not relate to
insolvency) or other similar law and such decree or order
shall remain unstayed and in effect for a period of 60
consecutive days; or
(b) a decree or order adjudging the Company to
be insolvent, or approving a petition seeking reorganization
(other than a reorganization under a foreign law that does not
relate to insolvency), arrangement, adjustment or composition
of the Company and such decree or order shall remain unstayed
and in effect for a period of 60 consecutive days; or
(c) a final and non-appealable order appointing
a custodian, receiver, liquidator, assignee, trustee or other
similar official of the Company or of any substantial part of
the property of the Company, or ordering the winding up or
liquidation of the affairs of the Company; or
(8) the commencement by the Company of a voluntary
proceeding under any applicable bankruptcy, insolvency, reorganization
(other than a reorganization under a foreign law that does not relate
to insolvency) or other similar law or of a voluntary proceeding
seeking to be adjudicated insolvent or the consent by the Company to
the entry of a decree or order for relief in an involuntary proceeding
under any applicable bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any insolvency proceedings
against it, or the filing by the Company of a petition or answer or
consent seeking reorganization, arrangement, adjustment or composition
of the Company or relief under any applicable law, or the consent by
the Company to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee,
trustee or similar official of the Company or any substantial part of
the property of the Company or the making by the Company of an
assignment for the benefit of creditors, or the taking of corporate
action by the Company in furtherance of any such action; or
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(9) any other Event of Default provided in or pursuant
to this Indenture with respect to Securities of such series.
Section 5.2. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the
time Outstanding (other than an Event of Default specified in clause (7) or (8)
of Section 5.1) occurs and is continuing, then the Trustee or the Holders of not
less than 25% in principal amount of the Outstanding Securities of such series
may declare the principal of all the Securities of such series, or such lesser
amount as may be provided for in the Securities of such series, to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee
if given by the Holders), and upon any such declaration such principal or such
lesser amount shall become immediately due and payable.
If an Event of Default specified in clause (7) or (8) of Section 5.1
occurs, all unpaid principal of and accrued interest on the Outstanding
Securities of that series (or such lesser amount as may be provided for in the
Securities of such series) shall ipso facto become and be immediately due and
payable without any declaration or other act on the part of the Trustee or any
Holder of any Security of that series.
At any time after a declaration of acceleration with respect to the
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of not less than a majority in principal amount of
the Outstanding Securities of such series, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a
sum of money sufficient to pay
(a) all overdue installments of any interest on
and Additional Amounts with respect to all Securities of such
series and any Coupon appertaining thereto,
(b) the principal of and any premium on any
Securities of such series which have become due otherwise than
by such declaration of acceleration and interest thereon and
any Additional Amounts with respect thereto at the rate or
rates borne by or provided for in such Securities,
(c) to the extent that payment of such interest
or Additional Amounts is lawful, interest upon overdue
installments of any interest and Additional Amounts at the
rate or rates borne by or provided for in such Securities, 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 all other amounts due the Trustee under Section
6.6; and
(2) all Events of Default with respect to Securities of
such series, other than the non-payment of the principal of, any
premium and interest on, and any Additional Amounts with respect to
Securities of such series which shall have become due solely
43
by such declaration of acceleration, shall have been cured or waived as
provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
Section 5.3. Collection of Indebtedness and Suits for Enforcement
by Trustee.
The Company covenants that if
(1) default is made in the payment of any installment of
interest on or any Additional Amounts with respect to any Security or
any Coupon appertaining thereto 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 any premium on any Security or any Additional Amounts with respect
thereto at their Maturity,
the Company shall, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities and any Coupons appertaining thereto,
the whole amount of money then due and payable with respect to such Securities
and any Coupons appertaining thereto, with interest upon the overdue principal,
any premium and, to the extent that payment of such interest shall be legally
enforceable, upon any overdue installments of interest and Additional Amounts at
the rate or rates borne by or provided for in such Securities, and, in addition
thereto, such further amount of money 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 and all other
amounts due to the Trustee under Section 6.6.
If the Company fails to pay the money it is required to pay the Trustee
pursuant to the preceding paragraph forthwith upon the demand of the Trustee,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the money so due and unpaid, and 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 any Coupons
appertaining thereto and collect the monies 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 and any Coupons appertaining thereto, wherever
situated.
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
and any Coupons appertaining thereto 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 such Securities or in aid of the exercise of any power granted
herein or therein, or to enforce any other proper remedy.
44
Section 5.4. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities of any series or the property of the Company or such other obligor or
their creditors, the Trustee (irrespective of whether the principal of the
Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand
on the Company for the payment of any overdue principal, premium, interest or
Additional Amounts) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
(1) to file and prove a claim for the whole amount, or
such lesser amount as may be provided for in the Securities of any
applicable series, of the principal and any premium, interest and
Additional Amounts owing and unpaid in respect of the Securities and
any Coupons appertaining thereto 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 or
counsel) and of the Holders of Securities or any Coupons appertaining
thereto allowed in such judicial proceeding, and
(2) 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 of Securities or any Coupons to make such payments to the Trustee
and, in the event that the Trustee shall consent to the making of such payments
directly to the Holders of Securities or any Coupons, to pay to the Trustee any
amount due to 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 6.6.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
or any Coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or Coupons or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder of a
Security or any Coupon in any such proceeding.
Section 5.5. Trustee May Enforce Claims without Possession of
Securities or Coupons.
All rights of action and claims under this Indenture or any of the
Securities or Coupons may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or Coupons 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 or judgment, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, shall be for the ratable benefit of each and every Holder of the
Securities or Coupons in respect of which such judgment has been recovered.
45
Section 5.6. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal, or any
premium, interest or Additional Amounts, upon presentation of the Securities or
Coupons, or both, as the case may be, and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 6.6;
SECOND: To the payment of the amounts then due and unpaid upon the
Securities and any Coupons for principal and any premium, interest and
Additional Amounts 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 aggregate amounts due and payable on such Securities and
Coupons for principal and any premium, interest and Additional Amounts,
respectively;
THIRD: The balance, if any, to the Person or Persons entitled thereto.
Section 5.7. Limitations on Suits.
No Holder of any Security of any series or any Coupons appertaining
thereto shall have any right to institute any proceeding, judicial or otherwise,
with respect to this Indenture, or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to
the Trustee of a continuing Event of Default with respect to the
Securities of such series;
(2) the Holders of not less than 25% in principal amount
of the Outstanding Securities of such 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
such indemnity as is reasonably satisfactory to it 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 such
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 or any Security to affect, disturb or prejudice the rights of
any other such Holders or Holders of Securities of any other series, or to
obtain or to seek to obtain priority or preference over any other Holders or to
46
enforce any right under this Indenture, except in the manner herein provided and
for the equal and ratable benefit of all such Holders.
Section 5.8. Unconditional Right of Holders to Receive Principal
and any Premium, Interest and Additional Amounts.
Notwithstanding any other provision in this Indenture, the Holder of
any Security or Coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of, any premium and (subject
to Sections 3.5 and 3.7) interest on, and any Additional Amounts with respect to
such Security or payment of such Coupon, as the case may be, on the respective
Stated Maturity or Maturities therefor specified in such Security or Coupon (or,
in the case of redemption, on the Redemption Date or, in the case of repayment
at the option of such Holder if provided in or pursuant to this Indenture, on
the date such repayment is due) and to institute suit for the enforcement of any
such payment, and such right shall not be impaired without the consent of such
Holder.
Section 5.9. Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security or a Coupon has instituted
any proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case the Company, the Trustee and each such Holder 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 each such Holder shall continue as though no such proceeding had
been instituted.
Section 5.10. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities or Coupons in the last
paragraph of Section 3.6, no right or remedy herein conferred upon or reserved
to the Trustee or to each and every Holder of a Security or a Coupon is intended
to be exclusive of any other right or remedy, and every right and remedy, to the
extent permitted by law, shall 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, to the extent permitted by law, prevent the
concurrent assertion or employment of any other appropriate right or remedy.
Section 5.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security or
Coupon to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by this Article
or by law to the Trustee or to any Holder of a Security or a Coupon may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by such Holder, as the case may be.
47
Section 5.12. Control by Holders of Securities.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee with respect to the
Securities of such series and any Coupons appertaining thereto, provided that
(1) such direction shall not be in conflict with any
rule of law or with this Indenture or with the Securities of such
series,
(2) the Trustee may take any other action deemed proper
by the Trustee which is not inconsistent with such direction, and
(3) such direction is not unduly prejudicial to the
rights of the other Holders of Securities of such series not joining in
such action.
Section 5.13. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series on behalf of the Holders of all the
Securities of such series and any Coupons appertaining thereto may waive any
past default hereunder with respect to such series and its consequences, except
a default
(1) in the payment of the principal of, any premium or
interest on, or any Additional Amounts with respect to, any Security of
such series or any Coupons appertaining thereto, or
(2) in respect of a covenant or provision hereof which
under Article 9 cannot be modified or amended without the consent of
the Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
Section 5.14. Waiver of Usury, Stay or Extension Laws.
The Company covenants that (to the extent that it may lawfully do so)
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any usury, 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 expressly waives (to the
extent that it may lawfully do so) 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.
48
Section 5.15. 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 any
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 5.15 shall not apply 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 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, if any, on or Additional Amounts,
if any, with respect to any Security on or after the respective Stated
Maturities expressed in such Security (or, in the case of redemption, on or
after the Redemption Date, and, in the case of repayment, on or after the date
for repayment) or for the enforcement of the right, if any, to convert or
exchange any Security into Common Stock or other securities in accordance with
its terms.
ARTICLE 6
The Trustee
Section 6.1. Certain Rights of Trustee.
Subject to Sections 315(a) through 315(d) of the Trust Indenture Act:
(1) the Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, coupon or other paper
or document reasonably believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(2) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or a
Company Order (in each case, other than delivery of any Security,
together with any Coupons appertaining thereto, to the Trustee for
authentication and delivery pursuant to Section 3.3 which shall be
sufficiently evidenced as provided therein) and any resolution of the
Board of Directors may be sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence shall be herein specifically prescribed)
may, in the absence of bad faith on its part, rely upon an Officer's
Certificate;
(4) 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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(5) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by or pursuant to this
Indenture at the request or direction of any of the Holders of
Securities of any series or any Coupons appertaining thereto pursuant
to this Indenture, unless such Holders shall have offered to the
Trustee such security or indemnity as is reasonably satisfactory to it
against the costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction;
(6) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, coupon or other paper or
document, but the Trustee, in its discretion, may but shall not be
obligated to 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, during business hours and upon reasonable notice, the books,
records and premises of the Company, personally or by agent or
attorney;
(7) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder;
(8) the Trustee shall not be liable for any action taken
or error of judgment made in good faith by a Responsible Officer or
Responsible Officers of the Trustee, unless it shall be proved that the
Trustee was negligent, acted in bad faith or engaged in willful
misconduct;
(9) the Authenticating Agent, Paying Agent, and Security
Registrar shall have the same protections as the Trustee set forth
hereunder; and
(10) the Trustee shall not be liable with respect to any
action taken, suffered or omitted to be taken by it in good faith in
accordance with an Act of the Holders hereunder, and, to the extent not
so provided herein, with respect to any act requiring the Trustee to
exercise its own discretion, 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 or any Securities, unless it shall be proved that, in
connection with any such action taken, suffered or omitted or any such
act, the Trustee was negligent, acted in bad faith or engaged in
willful misconduct.
Section 6.2. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall transmit by mail to
all Holders of Securities of such series entitled to receive reports pursuant to
Section 7.3(3), notice of such default hereunder actually known to a Responsible
Officer of the Trustee, unless such default shall have been cured or waived;
provided, however, that, except in the case of a default in the payment of the
principal of (or premium, if any), or interest, if any, on, or Additional
Amounts or any sinking fund or purchase fund installment with respect to, any
Security of such series, the Trustee shall be
50
protected in withholding such notice if and so long as the board of directors,
the executive committee or a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determine that the withholding of such
notice is in the best interest of the Holders of Securities and Coupons of such
series; and provided, further, that in the case of any default of the character
specified in Section 5.1(5) with respect to Securities of such series, no such
notice to Holders shall be given until at least 30 days after the occurrence
thereof. For the purpose of this Section, the term "default" means any event
which is, or after notice or lapse of time or both would become, an Event of
Default with respect to Securities of such series.
Section 6.3. Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificate of authentication, and in any Coupons shall be taken as
the statements of the Company and neither the Trustee nor any Authenticating
Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or the Coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder and that the statements made by it in a
Statement of Eligibility on Form T-1 supplied to the Company are true and
accurate, subject to the qualifications set forth therein. Neither the Trustee
nor any Authenticating Agent shall be accountable for the use or application by
the Company of the Securities or the proceeds thereof.
Section 6.4. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other Person that may be an agent of the Trustee or the
Company, in its individual or any other capacity, may become the owner or
pledgee of Securities or Coupons and, subject to Sections 310(b) and 311 of the
Trust Indenture Act, may otherwise deal with the Company with the same rights it
would have if it were not the Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other Person.
Section 6.5. Money Held in Trust.
Except as provided in Section 4.3 and Section 10.3, money held by the
Trustee in trust hereunder need not be segregated from other funds except to the
extent required by law and shall be held uninvested. The Trustee shall be under
no liability for interest on any money received by it hereunder except as
otherwise agreed to in writing with the Company.
Section 6.6. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by the Trustee 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
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made by the Trustee in accordance with any provision of this Indenture
or arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to the Trustee's negligence or bad faith; and
(3) to indemnify the Trustee and its agents, officers,
directors and employees for, and to hold them harmless against, any
loss, liability or expense incurred without negligence or bad faith on
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 their powers or
duties hereunder, except to the extent that any such loss, liability or
expense was due to the Trustee's negligence or bad faith.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a lien prior to the Securities of any
series upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of, and premium or
interest on or any Additional Amounts with respect to Securities or any Coupons
appertaining thereto.
To the extent permitted by law, any compensation or expense incurred by
the Trustee after a default specified in or pursuant to Section 5.1 is intended
to constitute an expense of administration under any then applicable bankruptcy
or insolvency law. "Trustee" for purposes of this Section 6.6 shall include any
predecessor Trustee but the negligence or bad faith of any Trustee shall not
affect the rights of any other Trustee under this Section 6.6.
The provisions of this Section 6.6 shall survive the satisfaction and
discharge of this Indenture or the earlier resignation or removal of the Trustee
and shall apply with equal force and effect to the Trustee in its capacity as
Authenticating Agent, Paying Agent or Security Registrar.
Section 6.7. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder that is a Corporation
organized and doing business under the laws of the United States of America, any
state thereof or the District of Columbia, that is eligible under Section
310(a)(1) of the Trust Indenture Act to act as trustee under an indenture
qualified under the Trust Indenture Act and that has a combined capital and
surplus (computed in accordance with Section 310(a)(2) of the Trust Indenture
Act) of at least $50,000,000, and that is subject to supervision or examination
by Federal or state authority. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
Section 6.8. Resignation and Removal; Appointment of Successor.
(1) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the successor
Trustee pursuant to Section 6.9.
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(2) 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 6.9 shall not have been delivered to the Trustee
within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to such series.
(3) 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 the Company.
(4) If at any time:
(a) the Trustee shall fail to comply with the
obligations imposed upon it under Section 310(b) of the Trust
Indenture Act with respect to Securities of any series after
written request therefor by the Company or any Holder of a
Security of such series who has been a bona fide Holder of a
Security of such series for at least six months, or
(b) the Trustee shall cease to be eligible under
Section 6.7 and shall fail to resign after written request
therefor by the Company or any such Holder, or
(c) 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 or pursuant to a Board Resolution,
may remove the Trustee with respect to all Securities or the Securities of such
series, or (ii) subject to Section 315(e) of the Trust Indenture Act, any Holder
of a Security 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 removal of the Trustee with
respect to all Securities of such series and the appointment of a successor
Trustee or Trustees.
(5) 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 or pursuant to a Board Resolution, shall
promptly appoint a successor Trustee or Trustees with respect to the
Securities of such series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one
Trustee with respect to the Securities of any particular series) and
shall comply with the applicable requirements of Section 6.9. If,
within one year after such resignation, removal or incapacity, or the
occurrence of such vacancy, a successor Trustee with respect to the
Securities of any series shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Securities of such
series delivered to the Company and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such
appointment in accordance with the applicable requirements
53
of Section 6.9, become the successor Trustee with respect to the
Securities of such series and to that extent supersede the successor
Trustee appointed by the Company. If no successor Trustee with respect
to the Securities of any series shall have been so appointed by the
Company or the Holders of Securities and accepted appointment in the
manner required by Section 6.9, any Holder of a Security 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.
(6) 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 the Holders of Registered
Securities, if any, of such series as their names and addresses appear
in the Security Register and, if Securities of such series are issued
as Bearer Securities, by publishing notice of such event once in an
Authorized Newspaper in each Place of Payment located outside the
United States. 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.
(7) In no event shall any retiring Trustee be liable for
the acts or omissions of any successor Trustee hereunder.
Section 6.9. Acceptance of Appointment by Successor.
(1) Upon the appointment hereunder of any successor
Trustee with respect to all Securities, such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and 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 hereunder of the retiring Trustee; but, on the
request of the Company or such successor Trustee, such retiring
Trustee, upon payment of its charges, shall execute and deliver an
instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and, subject to Section 10.3,
shall duly assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder, subject
nevertheless to its claim, if any, provided for in Section 6.6.
(2) Upon the appointment hereunder of any successor
Trustee with respect to the Securities of one or more (but not all)
series, the Company, the retiring Trustee and such successor Trustee
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, such successor Trustee all the rights,
powers, trusts and duties of the retiring Trustee with respect to
54
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, 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
that no Trustee shall be responsible for any notice given to, or
received by, or any act or failure to act on the part of any other
Trustee hereunder, 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, such
retiring Trustee shall have no further responsibility for the exercise
of rights and powers or for the performance of the duties and
obligations vested in the Trustee under this Indenture with respect to
the Securities of that or those series to which the appointment of such
successor Trustee relates other than as hereinafter expressly set
forth, 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 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 such successor Trustee, such
retiring Trustee, upon payment of its charges with respect to the
Securities of that or those series to which the appointment of such
successor Trustee relates and subject to Section 10.3 shall duly
assign, transfer and deliver to such successor Trustee, to the extent
contemplated by such supplemental indenture, the property and money
held by such retiring Trustee hereunder with respect to the Securities
of that or those series to which the appointment of such successor
Trustee relates, subject to its claim, if any, provided for in Section
6.6.
(3) Upon request of any Person appointed hereunder as a
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 (1) or (2) of this Section, as the case may be.
(4) No Person shall accept its appointment hereunder as
a successor Trustee unless at the time of such acceptance such
successor Person shall be qualified and eligible under this Article.
Section 6.10. 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, shall be the
successor of the Trustee hereunder, 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.
55
Section 6.11. Appointment of Authenticating Agent.
The Trustee may appoint one or more Authenticating Agents acceptable to
the Company with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of that or
those series issued upon original issue, exchange, registration of transfer,
partial redemption or partial repayment or pursuant to Section 3.6, 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 must be acceptable to the Company and, except
as provided in or pursuant to this Indenture, shall at all times be a
corporation that would be permitted by the Trust Indenture Act to act as trustee
under an indenture qualified under the Trust Indenture Act, is authorized under
applicable law and by its charter to act as an Authenticating Agent and has a
combined capital and surplus (computed in accordance with Section 310(a)(2) of
the Trust Indenture Act) of at least $50,000,000. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect specified in this Section.
Any Corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any Corporation succeeding to all or substantially all of
the corporate agency or corporate trust business of an Authenticating Agent,
shall be the successor of such Authenticating Agent hereunder, provided such
Corporation shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and 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 the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall (i) mail written notice
of such appointment by first-class mail, postage prepaid, to all Holders of
Registered Securities, if any, of the series with respect to which such
Authenticating Agent shall serve, as their names and addresses appear in the
Security Register, and (ii) if Securities of the series are issued as Bearer
Securities, publish notice of such appointment at least once in an Authorized
Newspaper in the place where such successor Authenticating Agent has its
principal office if such office is located outside the United States. 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.
56
The Company agrees to pay each Authenticating Agent from time to time
reasonable compensation for its services under this Section. If the Trustee
makes such payments, it shall be entitled to be reimbursed for such payments,
subject to the provisions of Section 6.6.
The provisions of Sections 3.8, 6.3 and 6.4 shall be applicable to each
Authenticating Agent.
If an Authenticating Agent is appointed with respect to one or more
series of Securities pursuant to this Section, the Securities of such series may
have endorsed thereon, in addition to or in lieu of the Trustee's certificate of
authentication, an alternate certificate of authentication in substantially the
following form:
This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
BANK ONE TRUST COMPANY, N.A.,
as Trustee
By:________________________________________
as Authenticating Agent
By:________________________________________
Authorized Officer
If all of the Securities of any series may not be originally issued at
one time, and if the Trustee does not have an office capable of authenticating
Securities upon original issuance located in a Place of Payment where the
Company wishes to have Securities of such series authenticated upon original
issuance, the Trustee, if so requested in writing (which writing need not be
accompanied by or contained in an Officer's Certificate by the Company), shall
appoint in accordance with this Section an Authenticating Agent having an office
in a Place of Payment designated by the Company with respect to such series of
Securities.
ARTICLE 7
Holders Lists and Reports by Trustee and Company
Section 7.1. Company to Furnish Trustee Names and Addresses of
Holders.
In accordance with Section 312(a) of the Trust Indenture Act, the
Company shall furnish or cause to be furnished to the Trustee
(1) semi-annually with respect to Securities of each
series not later than May 1 and November 1 of the year or upon such
other dates as are set forth in or pursuant to the Board Resolution or
indenture supplemental hereto authorizing such series, a list, in each
case in such form as the Trustee may reasonably require, of the names
and addresses of Holders as of the applicable date, and
57
(2) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company of any such
request, a list of similar form and content as of a date not more than
15 days prior to the time such list is furnished,
provided, however, that so long as the Trustee is the Security Registrar no such
list shall be required to be furnished.
Section 7.2. Preservation of Information; Communications to
Holders.
The Trustee shall comply with the obligations imposed upon it pursuant
to Section 312 of the Trust Indenture Act.
Every Holder of Securities or Coupons, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company, the
Trustee, any Paying Agent or any Security Registrar shall be held accountable by
reason of the disclosure of any such information as to the names and addresses
of the Holders of Securities in accordance with Section 312(c) of the Trust
Indenture Act, 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 312(b) of the Trust Indenture
Act.
Section 7.3. Reports by Trustee.
(1) Within 60 days after May 15 of each year commencing
with the first May 15 following the first issuance of Securities
pursuant to Section 3.1, if required by Section 313(a) of the Trust
Indenture Act, the Trustee shall transmit, pursuant to Section 313(c)
of the Trust Indenture Act, a brief report dated as of such May 15 with
respect to any of the events specified in said Section 313(a) which may
have occurred since the later of the immediately preceding May 15 and
the date of this Indenture.
(2) The Trustee shall transmit the reports required by
Section 313(a) of the Trust Indenture Act at the times specified
therein.
(3) Reports pursuant to this Section shall be
transmitted in the manner and to the Persons required by Sections
313(c) and 313(d) of the Trust Indenture Act.
Section 7.4. Reports by Company.
The Company, pursuant to Section 314(a) of the Trust Indenture Act,
shall:
(1) 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; or,
if the Company is not required to file information, documents or
reports pursuant to either of said Sections, then it shall file with
the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such of the
supplementary
58
and periodic information, documents and reports which may be required
pursuant to Section 13 of the Securities Exchange Act of 1934, as
amended, in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such
rules and regulations;
(2) file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by
the Commission, such additional information, documents and reports with
respect to compliance by the Company, with the conditions and covenants
of this Indenture as may be required from time to time by such rules
and regulations; and
(3) transmit within 30 days after the filing thereof
with the Trustee, in the manner and to the extent provided in Section
313(c) of the Trust Indenture Act, such summaries of any information,
documents and reports required to be filed by the Company pursuant to
paragraphs (1) and (2) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
ARTICLE 8
CONSOLIDATION, AMALGAMATIONS, MERGER AND SALES
Section 8.1. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate or amalgamate with or merge into any
other Person (whether or not affiliated with the Company), or convey, transfer
or lease its properties and assets as an entirety or substantially as an
entirety to any other Person (whether or not affiliated with the Company), and
the Company shall not permit any other Person (whether or not affiliated with
the Company) to consolidate or amalgamate with or merge into the Company or
convey, transfer or lease its properties and assets as an entirety or
substantially as an entirety to the Company; unless:
(1) in case the Company shall consolidate or amalgamate
with or merge into another Person or convey, transfer or lease its
properties and assets as an entirety or substantially as an entirety to
any Person, the Person formed by such consolidation or amalgamation 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 as an entirety or substantially as an entirety shall be a
Corporation organized and existing under the laws of the United States
of America, any state thereof or the District of Columbia, Bermuda or
the Cayman Islands, or any other country which is on the date of this
Indenture a member of the Organization for Economic Cooperation and
Development, and shall expressly assume, by an indenture (or
indentures, if at such time there is more than one Trustee)
supplemental hereto, executed by the successor Person and delivered to
the Trustee the due and punctual payment of the principal of, any
premium and interest on and any Additional Amounts with respect to all
the Securities and the performance of every obligation in this
Indenture and the Outstanding Securities on the part of the Company to
be performed or observed and shall provide for conversion or exchange
rights in accordance with the provisions of the Securities of any
series that are convertible or exchangeable into Common Stock or other
securities;
59
(2) immediately after giving effect to such transaction
and treating any indebtedness which becomes an obligation of the
Company or a Subsidiary as a result of such transaction as having been
incurred by the Company or such Subsidiary at the time of such
transaction, no Event of Default or event which, after notice or lapse
of time, or both, would become an Event of Default, shall have occurred
and be continuing; and
(3) either the Company or the successor Person shall
have delivered to the Trustee an Officer's 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 and that all conditions precedent herein provided for
relating to such transaction have been complied with.
Section 8.2. Successor Person Substituted for Company.
Upon any consolidation or amalgamation by the Company with or merger of
the Company into any other Person or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety to any Person
in accordance with Section 8.1, the successor Person formed by such
consolidation or amalgamation 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 a lease, the predecessor Person
shall be released from all obligations and covenants under this Indenture, the
Securities and the Coupons.
ARTICLE 9
Supplemental Indentures
Section 9.1. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders of Securities or Coupons, the
Company (when authorized by or pursuant to a Board Resolution) and the Trustee,
at any time and from time to time, may enter into one or more indentures
supplemental hereto, 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 contained 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 (as shall be
specified in such supplemental indenture or indentures) or to surrender
any right or power herein conferred upon the Company; or
(3) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the payment of
principal of, any premium or interest on or any Additional Amounts with
respect to Securities, to permit Bearer Securities to be issued in
exchange for Registered Securities, to permit Bearer Securities to be
exchanged for Bearer
60
Securities of other authorized denominations or to permit or facilitate
the issuance of Securities in uncertificated form, provided any such
action shall not adversely affect the interests of the Holders of
Outstanding Securities of any series or any Coupons appertaining
thereto in any material respect; or
(4) to establish the form or terms of Securities of any
series and any Coupons appertaining thereto as permitted by Sections
2.1 and 3.1; or
(5) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Securities of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 6.9; or
(6) to cure any ambiguity or 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 which shall not
adversely affect the interests of the Holders of Securities of any
series then Outstanding or any Coupons appertaining thereto in any
material respect; or
(7) to add to, delete from or revise the conditions,
limitations and restrictions on the authorized amount, terms or
purposes of issue, authentication and delivery of Securities, as herein
set forth; or
(8) to add any additional Events of Default with respect
to all or any series of Securities (as shall be specified in such
supplemental indenture); or
(9) 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
Article 4, provided that any such action shall not adversely affect the
interests of any Holder of an Outstanding Security of such series and
any Coupons appertaining thereto or any other Outstanding Security or
Coupon in any material respect; or
(10) to secure the Securities pursuant to Section 10.5 or
otherwise; or
(11) to make provisions with respect to conversion or
exchange rights of Holders of Securities of any series; or
(12) to amend or supplement any provision contained
herein or in any supplemental indenture, provided that no such
amendment or supplement shall materially adversely affect the interests
of the Holders of any Securities then Outstanding.
Section 9.2. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company (when authorized by or
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pursuant to a Company's 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 or of the Securities of such
series; provided, however, that no such supplemental indenture, without the
consent of the Holder of each Outstanding Security affected thereby, shall
(1) change the Stated Maturity of the principal of, or
any premium or installment of interest on or any Additional Amounts
with respect to, any Security, or reduce the principal amount thereof
or the rate (or modify the calculation of such rate) of interest
thereon or any Additional Amounts with respect thereto, or any premium
payable upon the redemption thereof or otherwise, or change the
obligation of the Company to pay Additional Amounts pursuant to Section
10.4 (except as contemplated by Section 8.1(1) and permitted by Section
9.1(1)), 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 5.2 or the
amount thereof provable in bankruptcy pursuant to Section 5.4, change
the redemption provisions or adversely affect the right of repayment at
the option of any Holder as contemplated by Article 13, or change the
Place of Payment, Currency in which the principal of, any premium or
interest on, or any Additional Amounts with respect to any Security is
payable, or impair the right to institute suit for the enforcement of
any such payment on or after the Stated Maturity thereof (or, in the
case of redemption, on or after the Redemption Date or, in the case of
repayment at the option of the Holder, on or after the date for
repayment), or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, 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 reduce the
requirements of Section 15.4 for quorum or voting, or
(3) modify any of the provisions of this Section,
Section 5.13 or Section 10.8, except to increase any such percentage or
to provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each
Outstanding Security affected thereby, or
(4) make any change that adversely affects the right to
convert or exchange any Security into or for Common Stock of the
Company or other securities (whether or not issued by the Company),
cash or property in accordance with its terms.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which shall have been included expressly and
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.
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It shall not be necessary for any Act of Holders of Securities under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
Section 9.3. Execution of Supplemental Indentures.
As a condition to executing, or accepting the additional trusts created
by, any supplemental indenture permitted by this Article or the modifications
thereby of the trust created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 315 of the Trust Indenture Act) 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 and an
Officer's Certificate stating that all conditions precedent to the execution of
such supplemental indenture have been fulfilled. The Trustee may, but shall not
be obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Section 9.4. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of a Security theretofore or thereafter authenticated and delivered hereunder
and of any Coupon appertaining thereto shall be bound thereby.
Section 9.5. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
Section 9.6. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
Section 9.7. Notice of Supplemental Indenture.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to Section 9.2, the Company shall transmit to
the Holders of Outstanding Securities of any series affected thereby a notice
setting forth the substance of such supplemental indenture.
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ARTICLE 10
Covenants
Section 10.1. Payment of Principal, any Premium, Interest and
Additional Amounts.
The Company covenants and agrees for the benefit of the Holders of the
Securities of each series that it will duly and punctually pay the principal of,
any premium and interest on and any Additional Amounts with respect to the
Securities of such series in accordance with the terms thereof, any Coupons
appertaining thereto and this Indenture. Any interest due on any Bearer Security
on or before the Maturity thereof, and any Additional Amounts payable with
respect to such interest, shall be payable only upon presentation and surrender
of the Coupons appertaining thereto for such interest as they severally mature.
Section 10.2. Maintenance of Office or Agency.
The Company shall maintain in each Place of Payment for any series of
Securities an Office or Agency where Securities of such series (but not Bearer
Securities, except as otherwise provided below, unless such Place of Payment is
located outside the United States) may be presented or surrendered for payment,
where Securities of such series may be surrendered for registration of transfer
or exchange, where Securities of such series that are convertible or
exchangeable may be surrendered for conversion or exchange, and where notices
and demands to or upon the Company in respect of the Securities of such series
relating thereto and this Indenture may be served. If Securities of a series are
issuable as Bearer Securities, the Company shall maintain, subject to any laws
or regulations applicable thereto, an Office or Agency in a Place of Payment for
such series which is located outside the United States where Securities of such
series and any Coupons appertaining thereto may be presented and surrendered for
payment; provided, however, that if the Securities of such series are listed on
The Stock Exchange of the United Kingdom and the Republic of Ireland or the
Luxembourg Stock Exchange or any other stock exchange located outside the United
States and such stock exchange shall so require, the Company shall maintain a
Paying Agent in London, Luxembourg or any other required city located outside
the United States, as the case may be, so long as the Securities of such series
are listed on such exchange. 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, except that Bearer Securities of such
series and any Coupons appertaining thereto may be presented and surrendered for
payment at the place specified for the purpose with respect to such Securities
as provided in or pursuant to this Indenture, and the Company hereby appoints
the Trustee as its agent to receive all such presentations, surrenders, notices
and demands.
Except as otherwise provided in or pursuant to this Indenture, no
payment of principal, premium, interest or Additional Amounts with respect to
Bearer Securities shall be made at any Office or Agency in the United States or
by check mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States; provided, however, if
amounts owing with respect to any Bearer Securities shall be payable in Dollars,
payment of principal of, any premium or interest on and any Additional Amounts
with respect to any such
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Security may be made at the Corporate Trust Office of the Trustee or any Office
or Agency designated by the Company in the Borough of Manhattan, The City of New
York, if (but only if) payment of the full amount of such principal, premium,
interest or Additional Amounts at all offices outside the United States
maintained for such purpose by the Company in accordance with this Indenture is
illegal or effectively precluded by exchange controls or other similar
restrictions.
The Company may also from time to time designate one or more other
Offices or Agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an Office
or Agency in each Place of Payment for Securities of any series for such
purposes. The Company shall 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. Unless otherwise provided in or pursuant to this
Indenture, the Company hereby designates as the Place of Payment for each series
of Securities the Borough of Manhattan, The City of New York, and initially
appoints the Corporate Trust Office of the Trustee as the Office or Agency of
the Company in the Borough of Manhattan, The City of New York for such purpose.
The Company may subsequently appoint a different Office or Agency in the Borough
of Manhattan, The City of New York for the Securities of any series.
Unless otherwise specified with respect to any Securities pursuant to
Section 3.1, if and so long as the Securities of any series (i) are denominated
in a Foreign Currency or (ii) may be payable in a Foreign Currency, or so long
as it is required under any other provision of this Indenture, then the Company
will maintain with respect to each such series of Securities, or as so required,
at least one exchange rate agent.
Section 10.3. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it shall, on or before each due date of the
principal of, any premium or interest on or Additional Amounts with respect to
any of the Securities of such series, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum in the currency or currencies,
currency unit or units or composite currency or currencies in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 3.1 for the Securities of such series) sufficient to pay the principal
or any premium, interest or Additional Amounts so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided, and
shall promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it shall, on or prior to each due date of the principal
of, any premium or interest on or any Additional Amounts with respect to any
Securities of such series, deposit with any Paying Agent a sum (in the currency
or currencies, currency unit or units or composite currency or currencies
described in the preceding paragraph) sufficient to pay the principal or any
premium, interest or Additional Amounts so becoming due, such sum to be held in
trust for the benefit of the Persons entitled thereto, and (unless such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of its action
or failure so to act.
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The Company shall cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent shall:
(1) hold all sums held by it for the payment of the
principal of, any premium or interest on or any Additional Amounts with
respect to Securities of such 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 provided in or pursuant to this Indenture;
(2) give the Trustee notice of any default by the
Company (or any other obligor upon the Securities of such series) in
the making of any payment of principal, any premium or interest on or
any Additional Amounts with respect to the Securities of such 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 terms as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such sums.
Except as otherwise provided herein or pursuant hereto, 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, any premium or interest on or any
Additional Amounts with respect to any Security of any series or any Coupon
appertaining thereto and remaining unclaimed for two years after such principal
or any such premium or interest or any such Additional Amounts shall have become
due and payable shall be paid to the Company on Company Request, or (if then
held by the Company) shall be discharged from such trust; and the Holder of such
Security or any Coupon appertaining thereto shall thereafter, as an unsecured
general creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of the Company cause to be
published once, in an Authorized Newspaper in each Place of Payment for such
series or to be mailed to Holders of Registered Securities of such series, or
both, notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication
or mailing nor shall it be later than two years after such principal and any
premium or interest or Additional Amounts shall have become due and payable, any
unclaimed balance of such money then remaining will be repaid to the Company.
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Section 10.4. Additional Amounts.
All payments of principal of and premium, if any, interest and any
other amounts on, or in respect of, the Securities of any series or any Coupon
appertaining thereto shall be made without withholding or deduction at source
for, or on account of, any present or future taxes, fees, duties, assessments or
governmental charges of whatever nature imposed or levied by or on behalf of the
Cayman Islands or Bermuda (each, a "taxing jurisdiction") or any political
subdivision or taxing authority thereof or therein, unless such taxes, fees,
duties, assessments or governmental charges are required to be withheld or
deducted by (i) the laws (or any regulations or ruling promulgated thereunder)
of a taxing jurisdiction or any political subdivision or taxing authority
thereof or therein or (ii) an official position regarding the application,
administration, interpretation or enforcement of any such laws, regulations or
rulings (including, without limitation, a holding by a court of competent
jurisdiction or by a taxing authority in a taxing jurisdiction or any political
subdivision thereof). If a withholding or deduction at source is required, the
Company shall, subject to certain limitations and exceptions set forth below,
pay to the Holder of any such Security or any Coupon appertaining thereto such
Additional Amounts as may be necessary so that every net payment of principal,
premium, if any, interest or any other amount made to such Holder, after such
withholding or deduction, shall not be less than the amount provided for in such
Security, any Coupons appertaining thereto and this Indenture to be then due and
payable; provided, however, that the Company shall not be required to make
payment of such Additional Amounts for or on account of:
(1) any tax, fee, duty, assessment or governmental
charge of whatever nature which would not have been imposed but for the
fact that such Holder: (A) was a resident, domiciliary or national of,
or engaged in business or maintained a permanent establishment or was
physically present in, the relevant taxing jurisdiction or any
political subdivision thereof or otherwise had some connection with the
relevant taxing jurisdiction other than by reason of the mere ownership
of, or receipt of payment under, such Security; (B) presented such
Security for payment in the relevant taxing jurisdiction or any
political subdivision thereof, unless such Security could not have been
presented for payment elsewhere; or (C) presented such Security more
than thirty (30) days after the date on which the payment in respect of
such Security first became due and payable or provided for, whichever
is later, except to the extent that the Holder would have been entitled
to such Additional Amounts if it had presented such Security for
payment on any day within such period of thirty (30) days;
(2) any estate, inheritance, gift, sale, transfer,
personal property or similar tax, assessment or other governmental
charge;
(3) any tax, assessment or other governmental charge
that is imposed or withheld by reason of the failure by the Holder or
the beneficial owner of such Security to comply with any reasonable
request by the Company addressed to the Holder within 90 days of such
request (A) to provide information concerning the nationality,
residence or identity of the Holder or such beneficial owner or (B) to
make any declaration or other similar claim or satisfy any information
or reporting requirement, which, in the case of (A) or (B), is required
or imposed by statute, treaty, regulation or administrative practice
67
of the relevant taxing jurisdiction or any political subdivision
thereof as a precondition to exemption from all or part of such tax,
assessment or other governmental charge; or
(4) any combination of items (1), (2) and (3);
nor shall Additional Amounts be paid with respect to any payment of the
principal of, or premium, if any, interest or any other amounts on, any such
Security to any Holder who is a fiduciary or partnership or other than the sole
beneficial owner of such Security to the extent such payment would be required
by the laws of the relevant taxing jurisdiction (or any political subdivision or
relevant taxing authority thereof or therein) to be included in the income for
tax purposes of a beneficiary or partner or settlor with respect to such
fiduciary or a member of such partnership or a beneficial owner who would not
have been entitled to such Additional Amounts had it been the Holder of the
Security.
Whenever in this Indenture there is mentioned, in any context, the
payment of the principal of or any premium, interest or any other amounts on, or
in respect of, any Security of any series or any Coupon or the net proceeds
received on 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
by the terms of such series established hereby or pursuant hereto to the extent
that, in such context, Additional Amounts are, were or would be payable in
respect thereof pursuant to such terms, and express mention of the payment of
Additional Amounts (if applicable) in any provision hereof shall not be
construed as excluding the payment of Additional Amounts in those provisions
hereof where such express mention is not made.
Except as otherwise provided in or pursuant to this Indenture or the
Securities of the applicable series, at least 10 days prior to the first
Interest Payment Date with respect to a series of Securities (or if the
Securities of such series shall not bear interest prior to Maturity, the first
day on which a payment of principal is made), and at least 10 days prior to each
date of payment of principal or interest if there has been any change with
respect to the matters set forth in the below-mentioned Officer's Certificate,
the Company shall furnish to the Trustee and the principal Paying Agent or
Paying Agents, if other than the Trustee, an Officer's Certificate instructing
the Trustee and such Paying Agent or Paying Agents whether such payment of
principal of and premium, if any, interest or any other amounts on the
Securities of such series shall be made to Holders of Securities of such series
or the Coupons appertaining thereto without withholding for or on account of any
tax, fee, duty, assessment or other governmental charge described in this
Section 10.4. If any such withholding shall be required, then such Officer's
Certificate shall specify by taxing jurisdiction the amount, if any, required to
be withheld on such payments to such Holders of Securities or Coupons, and the
Company agrees to pay to the Trustee or such Paying Agent the Additional Amounts
required by this Section 10.4. 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 Officer's Certificate furnished pursuant to this Section 10.4.
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Section 10.5. Limitation on Liens on Stock of Designated
Subsidiaries.
So long as any Securities are Outstanding, the Company will not, nor
will it permit any Subsidiary to, create, assume, incur, guarantee or otherwise
permit to exist any Indebtedness secured by any mortgage, pledge, lien, security
interest or other encumbrance (a "Lien") upon any shares of Capital Stock of any
Designated Subsidiary (whether such shares of stock are now owned or hereafter
acquired) without effectively providing concurrently that the Securities (and,
if the Company so elects, any other Indebtedness of the Company that is not
subordinate to the Securities and with respect to which the governing
instruments require, or pursuant to which the Company is otherwise obligated, to
provide such security) shall be secured equally and ratably with such
Indebtedness for at least the time period such other Indebtedness is so secured.
Section 10.6. Limitation on Disposition of Stock of Designated
Subsidiaries.
So long as any Securities are outstanding and except in a transaction
otherwise governed by this Indenture, the Company will not issue, sell, assign,
transfer or otherwise dispose of any shares of, securities convertible into, or
warrants, rights or options to subscribe for or purchase shares of, Capital
Stock (other than Preferred Stock having no voting rights of any kind) of any
Designated Subsidiary, and will not permit any Designated Subsidiary to issue
(other than to the Company) any shares (other than the director's qualifying
shares) of, or securities convertible into, or warrants, rights or options to
subscribe for or purchase shares of, Capital Stock (other than Preferred Stock
having no voting rights of any kind) of any Designated Subsidiary, if, after
giving effect to any such transaction and the issuance of the maximum number of
shares issuable upon the conversion or exercise of all such convertible
securities, warrants, rights or options, the Company would own, directly or
indirectly, less than 80% of the shares of Capital Stock of such Designated
Subsidiary (other than Preferred Stock having no voting rights of any kind);
provided, however, that (i) any issuance, sale, assignment, transfer or other
disposition permitted by the Company may only be made for at least a fair market
value consideration as determined by the Board of Directors pursuant to a Board
Resolution adopted in good faith and (ii) the foregoing shall not prohibit any
such issuance or disposition of securities if required by any law or any
regulation or order of any governmental or insurance regulatory authority.
Notwithstanding the foregoing, (i) the Company may merge or consolidate any
Designated Subsidiary into or with another direct or indirect Subsidiary of the
Company the shares of Capital Stock of which the Company owns at least 80% and
(ii) the Company may, subject to the provisions of Article 8, sell, assign,
transfer or otherwise dispose of the entire Capital Stock of any Designated
Subsidiary at one time for at least a fair market value consideration as
determined by the Board of Directors pursuant to a Board Resolution adopted in
good faith.
Section 10.7. Corporate Existence.
Subject to Article 8, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and that of each of its Subsidiaries and their respective rights
(charter and statutory) and franchises; provided, however, that the foregoing
shall not obligate the Company or any of its Subsidiaries to preserve any such
right or franchise if the Company or any such Subsidiary shall determine that
the preservation thereof is no longer desirable in the conduct of its business
or the business of such Subsidiary and that the loss thereof is not
disadvantageous in any material respect to any Holder.
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Section 10.8. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 10.5, 10.6 or 10.7 with
respect to the Securities of any series if before the time for such compliance
the Holders of at least a majority in principal amount of the Outstanding
Securities of such series, by Act of such Holders, either shall waive such
compliance in such instance or generally shall have waived compliance with such
term, provision or condition, but no such waiver shall extend to or affect such
term, provision or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision or condition shall
remain in full force and effect.
Section 10.9. Company Statement as to Compliance; Notice of Certain
Defaults.
(1) The Company shall deliver to the Trustee, within 120
days after the end of each fiscal year, a written statement (which need
not be contained in or accompanied by an Officer's Certificate) signed
by the principal executive officer, the principal financial officer or
the principal accounting officer of the Company, stating that
(a) a review of the activities of the Company
during such year and of its performance under this Indenture
has been made under his or her supervision, and
(b) to the best of his or her knowledge, based
on such review, (a) the Company has complied with all the
conditions and covenants imposed on it under this Indenture
throughout such year, or, if there has been a default in the
fulfillment of any such condition or covenant, specifying each
such default known to him or her and the nature and status
thereof, and (b) no event has occurred and is continuing which
is, or after notice or lapse of time or both would become, an
Event of Default, or, if such an event has occurred and is
continuing, specifying each such event known to him and the
nature and status thereof.
(2) The Company shall deliver to the Trustee, within
five days after the occurrence thereof, written notice of any Event of
Default or any event which after notice or lapse of time or both would
become an Event of Default pursuant to clause (4) of Section 5.1.
(3) The Trustee shall have no duty to monitor the
Company's compliance with the covenants contained in this Article 10
other than as specifically set forth in this Section 10.9.
ARTICLE 11
Redemption of Securities
Section 11.1. Applicability of Article.
Redemption of Securities of any series at the option of the Company as
permitted or required by the terms of such Securities shall be made in
accordance with the terms of such Securities and (except as otherwise provided
herein or pursuant hereto) this Article.
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Section 11.2. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced
by or pursuant to a Board Resolution. In case of any redemption at the election
of the Company of (a) less than all of the Securities of any series or (b) all
of the Securities of any series, with the same issue date, interest rate or
formula, Stated Maturity and other terms, the Company shall, at least 60 days
prior to the Redemption Date fixed by the Company (unless a shorter notice shall
be satisfactory to the Trustee), notify the Trustee of such Redemption Date and
of the principal amount of Securities of such series to be redeemed.
Section 11.3. Selection by Trustee of Securities to be Redeemed.
If less than all of the Securities of any series with the same issue
date, interest rate or formula, Stated Maturity and other terms 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 of the principal amount of Registered
Securities of such series; provided, however, that no such partial redemption
shall reduce the portion of the principal amount of a Registered Security of
such series not redeemed to less than the minimum denomination for a Security of
such series established herein or pursuant hereto.
The Trustee shall promptly notify the Company and the Security
Registrar (if other than itself) 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 of such Securities which has been or is to be redeemed.
Unless otherwise specified in or pursuant to this Indenture or the
Securities of any series, if any Security selected for partial redemption is
converted into Common Stock of the Company or exchanged for other securities in
part before termination of the conversion or exchange right with respect to the
portion of the Security so selected, the converted portion of such Security
shall be deemed (so far as may be) to be the portion selected for redemption.
Securities which have been converted or exchanged during a selection of
Securities to be redeemed shall be treated by the Trustee as Outstanding for the
purpose of such selection.
Section 11.4. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section
1.6, not less than 30 nor more than 60 days prior to the Redemption Date, unless
a shorter period is specified in the Securities to be redeemed, to the Holders
of Securities to be redeemed. Failure to give notice by mailing in the manner
herein provided to the Holder of any Registered Securities designated for
redemption as a whole or in part, or any defect in the notice to any such
Holder, shall not affect the validity of the proceedings for the redemption of
any other Securities or portion thereof.
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Any notice that is mailed to the Holder of any Registered Securities in
the manner herein provided shall be conclusively presumed to have been duly
given, whether or not such Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Securities of any
series are to be redeemed, the identification (and, in the case of
partial redemption, the principal amount) of the particular Security or
Securities to be redeemed,
(4) in case any Security is to be redeemed in part only,
the notice which relates to such Security shall state that on and after
the Redemption Date, upon surrender of such Security, the Holder of
such Security will receive, without charge, a new Security or
Securities of authorized denominations for the principal amount thereof
remaining unredeemed,
(5) that, on the Redemption Date, the Redemption Price
shall become due and payable upon each such Security or portion thereof
to be redeemed, and, if applicable, that interest thereon shall cease
to accrue on and after said date,
(6) the place or places where such Securities, together
(in the case of Bearer Securities) with all Coupons appertaining
thereto, if any, maturing after the Redemption Date, are to be
surrendered for payment of the Redemption Price and any accrued
interest and Additional Amounts pertaining thereto,
(7) that the redemption is for a sinking fund, if such
is the case,
(8) that, unless otherwise specified in such notice,
Bearer Securities of any series, if any, surrendered for redemption
must be accompanied by all Coupons maturing subsequent to the date
fixed for redemption or the amount of any such missing Coupon or
Coupons will be deducted from the Redemption Price, unless security or
indemnity satisfactory to the Company, the Trustee and any Paying Agent
is furnished,
(9) if Bearer Securities of any series are to be
redeemed and no Registered Securities of such series are to be
redeemed, and if such Bearer Securities may be exchanged for Registered
Securities not subject to redemption on the Redemption Date pursuant to
Section 3.5 or otherwise, the last date, as determined by the Company,
on which such exchanges may be made,
(10) in the case of Securities of any series that are
convertible into Common Stock of the Company or exchangeable for other
securities, the conversion or exchange price or rate, the date or dates
on which the right to convert or exchange the principal of the
Securities of such series to be redeemed will commence or terminate and
the place or places where such Securities may be surrendered for
conversion or exchange, and
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(11) the CUSIP number or the Euroclear or the Cedel
reference numbers of such Securities, if any (or any other numbers used
by a Depository to identify such Securities).
A notice of redemption published as contemplated by Section 1.6 need
not identify particular Registered 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 11.5. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit, with
respect to the Securities of any series called for redemption pursuant to
Section 11.4, with the Trustee or with a Paying Agent (or, if the Company is
acting as its own Paying Agent, segregate and hold in trust as provided in
Section 10.3) an amount of money in the applicable Currency sufficient to pay
the Redemption Price of, and (except if the Redemption Date shall be an Interest
Payment Date, unless otherwise specified pursuant to Section 3.1 or in the
Securities of such series) any accrued interest on and Additional Amounts with
respect thereto, all such Securities or portions thereof which are to be
redeemed on that date.
Section 11.6. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest and the Coupons for such
interest appertaining to any Bearer Securities so to be redeemed, except to the
extent provided below, shall be void. Upon surrender of any such Security for
redemption in accordance with said notice, together with all Coupons, if any,
appertaining thereto maturing after the Redemption Date, such Security shall be
paid by the Company at the Redemption Price, together with any accrued interest
and Additional Amounts to the Redemption Date; provided, however, that, except
as otherwise provided in or pursuant to this Indenture or the Bearer Securities
of such series, installments of interest on Bearer Securities whose Stated
Maturity is on or prior to the Redemption Date shall be payable only upon
presentation and surrender of Coupons for such interest (at an Office or Agency
located outside the United States except as otherwise provided in Section 10.2),
and provided, further, that, except as otherwise specified in or pursuant to
this Indenture or the Registered Securities of such series, installments of
interest on Registered Securities whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders of such Securities, or one or
more Predecessor Securities, registered as such at the close of business on the
Regular Record Dates therefor according to their terms and the provisions of
Section 3.7.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant Coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing
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Coupons, or the surrender of such missing Coupon or Coupons may be waived by the
Company and the Trustee if there be furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to the Trustee or any
Paying Agent any such missing Coupon in respect of which a deduction shall have
been made from the Redemption Price, such Holder shall be entitled to receive
the amount so deducted; provided, however, that any interest or Additional
Amounts represented by Coupons shall be payable only upon presentation and
surrender of those Coupons at an Office or Agency for such Security located
outside of the United States except as otherwise provided in Section 10.2.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium, until paid,
shall bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
Section 11.7. Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part shall be
surrendered at any Office or Agency for such Security (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 Registered Security or Securities of the
same series, containing identical terms and provisions, 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. If a Security in global form is so surrendered, the Company shall
execute, and the Trustee shall authenticate and deliver to the U.S. Depository
or other Depository for such Security in global form as shall be specified in
the Company Order with respect thereto to the Trustee, without service charge, a
new Security in global form in a denomination equal to and in exchange for the
unredeemed portion of the principal of the Security in global form so
surrendered.
ARTICLE 12
Sinking Funds
Section 12.1. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series, except as otherwise permitted or
required in or pursuant to this Indenture or any Security of such series issued
pursuant to this Indenture.
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 such series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any series,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 12.2. Each sinking fund payment shall be applied to the
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redemption of Securities of any series as provided for by the terms of
Securities of such series and this Indenture.
Section 12.2. Satisfaction of Sinking Fund Payments with
Securities.
The Company may, in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of any series to be made pursuant to the
terms of such Securities (1) deliver Outstanding Securities of such series
(other than any of such Securities previously called for redemption or any of
such Securities in respect of which cash shall have been released to the
Company), together in the case of any Bearer Securities of such series with all
unmatured Coupons appertaining thereto, and (2) apply as a credit Securities of
such series which have been redeemed either at the election of the Company
pursuant to the terms of such series of Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, provided that such series of Securities have not been previously so
credited. Such Securities shall be received and credited for such purpose by the
Trustee at the Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such sinking fund
payment shall be reduced accordingly. If, as a result of the delivery or credit
of Securities of any series in lieu of cash payments pursuant to this Section
12.2, the principal amount of Securities of such series to be redeemed in order
to satisfy the remaining sinking fund payment shall be less than $100,000, the
Trustee need not call Securities of such series for redemption, except upon
Company Request, and such cash payment shall be held by the Trustee or a Paying
Agent and applied to the next succeeding sinking fund payment, provided,
however, that the Trustee or such Paying Agent shall at the request of the
Company from time to time pay over and deliver to the Company any cash payment
so being held by the Trustee or such Paying Agent upon delivery by the Company
to the Trustee of Securities of that series purchased by the Company having an
unpaid principal amount equal to the cash payment requested to be released to
the Company.
Section 12.3. Redemption of Securities for Sinking Fund.
Not less than 75 days prior to each sinking fund payment date for any
series of Securities, the Company shall deliver to the Trustee an Officer's
Certificate specifying the amount of the next ensuing mandatory sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting of
Securities of that series pursuant to Section 12.2, and the optional amount, if
any, to be added in cash to the next ensuing mandatory sinking fund payment, and
will also deliver to the Trustee any Securities to be so credited and not
theretofore delivered. If such Officer's Certificate shall specify an optional
amount to be added in cash to the next ensuing mandatory sinking fund payment,
the Company shall thereupon be obligated to pay the amount therein specified.
Not less than 60 days before each such sinking fund payment date the Trustee
shall select the Securities to be redeemed upon such sinking fund payment date
in the manner specified in Section 11.3 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Company in the
manner provided in Section 11.4. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 11.6 and 11.7.
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ARTICLE 13
Repayment at the Option of Holders
Section 13.1. Applicability of Article.
Securities of any series which are repayable at the option of the
Holders thereof before their Stated Maturity shall be repaid in accordance with
the terms of the Securities of such series. The repayment of any principal
amount of Securities pursuant to such option of the Holder to require repayment
of Securities before their Stated Maturity, for purposes of Section 3.9, shall
not operate as a payment, redemption or satisfaction of the Indebtedness
represented by such Securities unless and until the Company, at its option,
shall deliver or surrender the same to the Trustee with a directive that such
Securities be cancelled. Notwithstanding anything to the contrary contained in
this Section 13.1, in connection with any repayment of Securities, the Company
may arrange for the purchase of any Securities by an agreement with one or more
investment bankers or other purchasers to purchase such Securities by paying to
the Holders of such Securities on or before the close of business on the
repayment date an amount not less than the repayment price payable by the
Company on repayment of such Securities, and the obligation of the Company to
pay the repayment price of such Securities shall be satisfied and discharged to
the extent such payment is so paid by such purchasers.
ARTICLE 14
Securities in Foreign Currencies
Section 14.1. Applicability of Article.
Whenever this Indenture provides for (i) any action by, or the
determination of any of the rights of, Holders of Securities of any series in
which not all of such Securities are denominated in the same Currency, or (ii)
any distribution to Holders of Securities, in the absence of any provision to
the contrary in the form of Security of any particular series or pursuant to
this Indenture or the Securities, any amount in respect of any Security
denominated in a Currency other than Dollars shall be treated for any such
action or distribution as that amount of Dollars that could be obtained for such
amount on such reasonable basis of exchange and as of the record date with
respect to Registered Securities of such series (if any) for such action,
determination of rights or distribution (or, if there shall be no applicable
record date, such other date reasonably proximate to the date of such action,
determination of rights or distribution) as the Company may specify in a written
notice to the Trustee.
ARTICLE 15
Meetings of Holders of Securities
Section 15.1. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of any series may be called at any
time and from time to time pursuant to this Article to make, give or take any
request, demand, authorization, direction, notice, consent, waiver or other Act
provided by this Indenture to be made, given or taken by Holders of Securities
of such series.
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Section 15.2. Call, Notice and Place of Meetings.
(1) The Trustee may at any time call a meeting of
Holders of Securities of any series for any purpose specified in
Section 15.1, to be held at such time and at such place in the Borough
of Manhattan, The City of New York, or, if Securities of such series
have been issued in whole or in part as Bearer Securities, in London or
in such place outside the United States 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 1.6, not less than 21 nor more than 180 days
prior to the date fixed for the meeting.
(2) In case at any time the Company (by or pursuant to a
Board Resolution) or the Holders of at least 10% in principal amount of
the Outstanding Securities of any series shall have requested the
Trustee to call a meeting of the Holders of Securities of such series
for any purpose specified in Section 15.1, by written request setting
forth in reasonable detail the action proposed to be taken at the
meeting, and the Trustee shall not have mailed notice of or made the
first publication of the notice of such meeting within 21 days after
receipt of such request (whichever shall be required pursuant to
Section 1.6) or shall not thereafter proceed to cause the meeting to be
held as provided herein, then the Company or the Holders of Securities
of such series in the amount above specified, as the case may be, may
determine the time and the place in the Borough of Manhattan, The City
of New York, or, if Securities of such series are to be issued as
Bearer Securities, in London for such meeting and may call such meeting
for such purposes by giving notice thereof as provided in clause (1) of
this Section.
Section 15.3. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding Securities of
such series, or (2) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more Outstanding Securities of such series by such
Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Persons
entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its counsel.
Section 15.4. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for any meeting of
Holders of Securities of such series. In the absence of a quorum within 30
minutes after 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 reconvened meeting, such
reconvened 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 reconvened meeting. Notice of the reconvening of any adjourned meeting
shall be given as provided in Section 15.2(1), 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
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shall state expressly the percentage, as provided above, of the principal amount
of the Outstanding Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 9.2, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted only by the affirmative vote of the Holders
of a majority in principal amount of the Outstanding Securities of that series;
provided, however, that, except as limited by the proviso to Section 9.2, any
resolution with respect to any request, demand, authorization, direction,
notice, consent, waiver or other Act which this Indenture expressly provides may
be made, given or taken by the Holders of a specified percentage, which is less
than a majority, in principal amount of the Outstanding Securities of a series
may be adopted at a meeting or an adjourned meeting duly reconvened and at which
a quorum is present as aforesaid by the affirmative vote of the Holders of such
specified percentage in principal amount of the Outstanding Securities of such
series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the Coupons
appertaining thereto, whether or not such Holders were present or represented at
the meeting.
Section 15.5. Determination of Voting Rights; Conduct and
Adjournment of Meetings.
(1) Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as it may
deem advisable for any meeting of Holders of Securities of such series
in regard to proof of the holding of Securities of such series and of
the appointment of proxies and in regard to the appointment and duties
of inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such
regulations, the holding of Securities shall be proved in the manner
specified in Section 1.4 and the appointment of any proxy shall be
proved in the manner specified in Section 1.4 or by having the
signature of the person executing the proxy witnessed or guaranteed by
any trust company, bank or banker authorized by Section 1.4 to certify
to the holding of Bearer Securities. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be
presumed valid and genuine without the proof specified in Section 1.4
or other proof.
(2) 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 15.2(2), in which case the Company or the Holders of
Securities of the series calling the meeting, as the case may be, shall
in like manner appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by vote of the
Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
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(3) At any meeting, each Holder of a Security of such
series or proxy shall be entitled to one vote for each $1,000 principal
amount of 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 proxy.
(4) Any meeting of Holders of Securities of any series
duly called pursuant to Section 15.2 at which a quorum is present may
be adjourned from time to time by Persons entitled to vote a majority
in principal amount of the Outstanding Securities of such series
represented at the meeting; and the meeting may be held as so adjourned
without further notice.
Section 15.6. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed 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 triplicate of all votes cast at the meeting. A record, at least in
triplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 15.2 and, if
applicable, Section 15.4. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed, all
as of the day and year first above written.
[SEAL] ACE LIMITED
By:______________________________________
Name:
Title:
[SEAL] BANK ONE TRUST COMPANY, N.A.,
as Trustee
By:______________________________________
Name:
Title:
