EXHIBIT 4A1
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FORTUNE BRANDS, INC.
and
THE CHASE MANHATTAN BANK,
Trustee
____________________________
INDENTURE
Dated as of April 15, 1999
____________________________
Debt Securities
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TABLE OF CONTENTS
Page
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Parties.................................................................................................1
Recitals................................................................................................1
ARTICLE ONE.............................................................................................1
Definitions and Other Provisions of General Application.................................................1
Section 1.01. Definitions.........................................................................1
"this Indenture", "Articles" and "Sections" ........................................1
"Act" ..............................................................................2
"Affiliate" ........................................................................2
"Authorized Newspaper" .............................................................2
"Bearer Security" ..................................................................2
"Board of Directors" ...............................................................3
"Board Resolution" .................................................................3
"Business Day" .....................................................................3
"CEDEL" ............................................................................3
"Commission" .......................................................................3
"Common Depositary" ................................................................3
"Common Stock" .....................................................................3
"Company" ..........................................................................3
"Company Request", "Company Order" and "Company Consent" ...........................4
"Consolidated Net Tangible Assets" .................................................4
Conversion Agent\.......................................................................................4
----------------
"Coupon" ...........................................................................4
"Defaulted interest" ...............................................................4
"Depositary" .......................................................................4
"Dollars", "$", "U.S. Dollars" and "U.S.$" .........................................4
"Euro-clear" .......................................................................4
"European Communities" .............................................................4
"Event of Default" .................................................................5
"Exchange Date" ....................................................................5
"Foreign Currency" .................................................................5
"Funded Debt" ......................................................................5
"generally accepted accounting principles" .........................................5
i
"Global Security" ..................................................................5
"Government Obligations" ...........................................................5
"Holder" or "Securityholder" .......................................................6
"Independent" ......................................................................6
"interest" .........................................................................6
"Interest Payment Date" ............................................................6
"mandatory sinking fund payment" ...................................................6
"Maturity" .........................................................................6
"mortgage" .........................................................................6
"Officers' Certificate" ............................................................7
"Opinion of Counsel" ...............................................................7
"optional sinking fund payment" ....................................................7
"Original Issue Discount Security" .................................................7
"Outstanding" ......................................................................7
"Paying Agent" .....................................................................8
"Permanent Global Security" ........................................................8
"Person" ...........................................................................8
"Place of Payment" .................................................................8
"Predecessor Securities" ...........................................................8
"Qualified Account Holder" .........................................................9
"Redemption Date" ..................................................................9
"Redemption Price" .................................................................9
"Registered Security" ..............................................................9
"Regular Record Date" ..............................................................9
"Responsible Officer" ..............................................................9
"Restricted Subsidiary" ............................................................9
"Secured Debt" ....................................................................10
"Security" or "Securities" ........................................................10
"Security Register" and "Security Registrar" ......................................10
"Special Record Date" .............................................................10
"Stated Maturity" .................................................................11
"Subsidiary" ......................................................................11
"Temporary Global Security" .......................................................11
"Trustee" .........................................................................11
"Trust Indenture Act" or "TIA" ....................................................11
"United States" ...................................................................11
"Value" ...........................................................................11
"Yield to Maturity" ...............................................................11
Section 1.02. Compliance Certificates and Opinions...............................................12
Section 1.03. Form of Documents Delivered to Trustee.............................................12
ii
Section 1.04. Acts of Securityholders............................................................13
Section 1.05. Notices, etc., to Trustee and Company..............................................15
Section 1.06. Notices to Securityholders; Waiver.................................................15
Section 1.07. Conflict with Trust Indenture Act..................................................16
Section 1.08. Effect of Headings and Table of Contents...........................................16
Section 1.09. Successors and Assigns.............................................................16
Section 1.10. Separability Clause................................................................16
Section 1.11. Benefits of Indenture..............................................................17
Section 1.12. Governing Law......................................................................17
Section 1.13. Payments Due on Non-Business Days..................................................17
ARTICLE TWO............................................................................................17
Forms of Securities....................................................................................17
Section 2.01. Forms Generally....................................................................17
Section 2.02. Form of Trustee's Certificate of Authentication....................................18
Section 2.03. Global Securities..................................................................19
ARTICLE THREE..........................................................................................19
The Securities.........................................................................................19
Section 3.01. Amount Unlimited; Issuable in Series...............................................19
Section 3.02. Denominations......................................................................23
Section 3.03. Execution, Authentication, Delivery and Dating.....................................23
Section 3.04. Temporary Securities; Exchange of Temporary Global Securities......................26
Section 3.05. Registration, Registration of Transfer and Exchange................................30
Section 3.06. Mutilated, Destroyed, Lost and Stolen Securities and Coupons.......................35
Section 3.07. Payment of Interest; Interest Rights Preserved.....................................36
Section 3.08. Persons Deemed Owners..............................................................38
Section 3.09. Cancellation.......................................................................39
ARTICLE FOUR...........................................................................................40
Satisfaction and Discharge.............................................................................40
Section 4.01. Satisfaction and Discharge of Indenture............................................40
Section 4.02. Application of Trust Money.........................................................42
Section 4.03. Defeasance and Discharge of Securities of any Series...............................43
iii
ARTICLE FIVE..........................................................................................45
Remedies..............................................................................................45
Section 5.01. Events of Default.................................................................45
Section 5.02. Acceleration of Maturity; Rescission and Annulment................................46
Section 5.03. Collection of Indebtedness and Suits for Enforcement by Trustee...................48
Section 5.04. Trustee May File Proofs of Claim..................................................49
Section 5.05. Trustee May Enforce Claims Without Possession of Securities.......................50
Section 5.06. Application of Money Collected....................................................50
Section 5.07. Limitation on Suits...............................................................51
Section 5.08. Unconditional Right of Securityholders to Receive Principal, Premium and
Interest and to Convert Securities............................................52
Section 5.09. Restoration of Rights and Remedies................................................52
Section 5.10. Rights and Remedies Cumulative....................................................52
Section 5.11. Delay or Omission Not Waiver......................................................52
Section 5.12. Control by Securityholders........................................................53
Section 5.13. Waiver of Past Defaults...........................................................53
Section 5.14. Undertaking for Costs.............................................................54
Section 5.15. Waiver of Stay or Extension Laws..................................................54
Section 5.16. Judgment Currency.................................................................54
ARTICLE SIX...........................................................................................55
The Trustee...........................................................................................55
Section 6.01. Certain Duties and Responsibilities...............................................55
Section 6.02. Notice of Default.................................................................56
Section 6.03. Certain Rights of Trustee.........................................................57
Section 6.04. Not Responsible for Recitals or Issuance of Securities............................58
Section 6.05. May Hold Securities...............................................................58
Section 6.06. Money Held in Trust...............................................................59
Section 6.07. Compensation and Reimbursement....................................................59
Section 6.08. Disqualification; Conflicting Interests...........................................60
Section 6.09. Corporate Trustee Required; Eligibility...........................................60
Section 6.10. Resignation and Removal; Appointment of Successor.................................60
Section 6.11. Acceptance of Appointment by Successor............................................62
Section 6.12. Merger, Conversion, Consolidation or Succession to Business of Trustee............63
iv
Section 6.13. Preferential Collection of Claims Against Company...............................63
ARTICLE SEVEN.......................................................................................64
Securityholders' Lists and Reports by Trustee and Company...........................................64
Section 7.01. Company to Furnish Trustee Names and Addresses of Securityholders...............64
Section 7.02. Preservation of Information; Communications to Securityholders..................64
Section 7.03. Reports by Trustee..............................................................66
Section 7.04. Reports by Company..............................................................66
ARTICLE EIGHT.......................................................................................67
Consolidation, Merger, Conveyance or Transfer.......................................................67
Section 8.01. Company May Consolidate, etc., Only on Certain Terms............................67
Section 8.02. Successor Corporation Substituted...............................................68
Section 8.03. Securities to be Secured in Certain Events......................................68
ARTICLE NINE........................................................................................69
Supplemental Indentures.............................................................................69
Section 9.01. Supplemental Indentures Without Consent of Securityholders......................69
Section 9.02. Supplemental Indentures With Consent of Securityholders.........................71
Section 9.03. Execution of Supplemental Indentures............................................72
Section 9.04. Effect of Supplemental Indentures...............................................72
Section 9.05. Conformity with Trust Indenture Act.............................................72
Section 9.06. Reference in Securities to Supplemental Indentures..............................73
ARTICLE TEN.........................................................................................73
Covenants...........................................................................................73
Section 10.01. Payment of Principal, Premium and Interest.....................................73
Section 10.02. Maintenance of Office or Agency................................................73
Section 10.03. Money for Securities Payments to be Held in Trust..............................76
Section 10.04. Statement as to Compliance.....................................................77
Section 10.05. Restrictions on Borrowing by Restricted Subsidiaries...........................78
Section 10.06. Restrictions on Secured Debt...................................................78
Section 10.07. Restrictions on Sale and Lease Back Transactions...............................80
Section 10.08. Restrictions on Transfers of Property..........................................81
v
Section 10.09. Assumption of Obligations in Connection with Mergers and Acquisitions..........81
Section 10.10. Defeasance of Certain Obligations..............................................82
Section 10.11. Additional Amounts.............................................................83
ARTICLE ELEVEN......................................................................................85
Redemption of Securities............................................................................85
Section 11.01. Applicability of Article.......................................................85
Section 11.02. Election to Redeem; Notice to Trustee..........................................85
Section 11.03. Selection by Trustee of Securities to be Redeemed..............................85
Section 11.04. Notice of Redemption...........................................................86
Section 11.05. Deposit of Redemption Price....................................................86
Section 11.06. Securities Payable on Redemption Date..........................................87
Section 11.07. Securities Redeemed in Part....................................................88
ARTICLE TWELVE......................................................................................89
Sinking Funds.......................................................................................89
Section 12.01. Applicability of Article.......................................................89
Section 12.02. Satisfaction of Sinking Fund Payments with Securities..........................89
Section 12.03. Redemption of Securities for Sinking Fund......................................89
ARTICLE THIRTEEN....................................................................................90
Meetings of Holders of Securities...................................................................90
Section 13.01. Purposes for Which Meetings May Be Called.....................................90
Section 13.02. Call, Notice and Place of Meetings............................................90
Section 13.03. Persons Entitled to Vote at Meetings..........................................91
Section 13.04. Quorum; Action....................................................................91
Section 13.05. Determination of Voting Rights; Conduct and Adjournment of Meetings...............92
Section 13.06. Counting Votes and Recording Action of Meetings...................................93
ARTICLE FOURTEEN........................................................................................94
Immunity of Incorporators, Stockholders, Officers and Directors.........................................94
Section 14.01. Exemption from Individual Liability...............................................94
vi
ARTICLE FIFTEEN.........................................................................................95
Conversion..............................................................................................95
Section 15.01. Conversion of Securities..........................................................95
vii
TABLE SHOWING REFLECTION IN THE INDENTURE OF CERTAIN PROVISIONS OF TRUST
INDENTURE ACT OF 1939* *
TIA Section Page
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ss.310(a)(1)....................................... 6.09......................... 60
(a)(2)............................................. 6.09......................... 60
(a)(3)............................................. Not Applicable
(a)(4)............................................. Not Applicable
(b)................................................ 6.08......................... 60
ss. 311(a)......................................... 6.13......................... 63
(b)................................................ 6.13......................... 63
(b)(2)............................................. 6.13......................... 63
ss. 312(a)......................................... 7.01......................... 64
7.02(a)...................... 64
(b)................................................ 7.02(b)...................... 64
(c)................................................ 7.02(c)...................... 64
ss. 313(a)......................................... 7.03......................... 66
(b)................................................ 7.03......................... 66
(c)................................................ 7.03......................... 66
(d)................................................ 7.03......................... 66
ss. 314(a)......................................... 7.04......................... 66
(b)................................................ Not Applicable
(c)(1)............................................. 1.02......................... 12
(c)(2)............................................. 1.02......................... 12
(c)(3)............................................. Not Applicable
(d)................................................ Not Applicable
(e)................................................ 1.02......................... 12
______________________________
* This table is not part of the Indenture
viii
TABLE SHOWING REFLECTION OF TIA
TIA Section Page
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ss. 315(a)......................................... 6.01(a)...................... 55
6.01(c)...................... 55
(b)................................................ 6.02......................... 56
7.03......................... 66
(c)................................................ 6.01(b)...................... 55
(d)................................................ 6.01......................... 55
(d)(1)............................................. 6.01(a)...................... 55
(d)(2)............................................. 6.01(c)(2)................... 55
(d)(3)............................................. 6.01(c)(3)................... 55
(e)................................................ 5.14......................... 54
ss. 316(a)......................................... 1.01......................... 1
(a)(1)(A).......................................... 5.02......................... 46
5.12......................... 53
(a)(1)(B).......................................... 5.13......................... 53
(a)(2)............................................. Not Applicable
(b)................................................ 5.08......................... 52
ss. 317(a)(1)...................................... 5.03......................... 48
(a)(2)............................................. 5.04......................... 49
(b)................................................ 10.03........................ 76
ss. 318(a)......................................... 1.07......................... 16
ix
INDENTURE dated as of April 15, 1999 between FORTUNE BRANDS, INC., a
Delaware corporation (hereinafter called the "Company") having its principal
office at 0000 Xxxx Xxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxxx 00000, and THE
CHASE MANHATTAN BANK, a New York banking corporation (hereinafter called the
"Trustee") having its principal corporate trust office in the Borough of
Manhattan, The City of New York.
WHEREAS, the Company has duly authorized the issuance from time to
time of its unsecured debentures, notes or other evidences of indebtedness to be
issued in one or more series (hereinafter called the "Securities") up to such
principal amount or amounts as may from time to time be authorized in accordance
with the terms of this Indenture, and to provide therefor the Company has duly
authorized the execution and delivery of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
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SECTION 1.01. Definitions.
-----------
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the term "this Indenture" means this instrument as originally
executed or as it may from time to time be supplemented or amended by one
or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof and shall include the forms and terms of
particular series of Securities established as contemplated hereunder;
(2) all references in this instrument to designated "Articles",
"Sections" and other subdivisions are to the designated Articles, Sections
and other subdivisions of this instrument as originally executed. The
words "herein",
"hereof" and "hereunder" and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other
subdivision;
(3) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(4) 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; and
(5) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles.
"Act" when used with respect to any Securityholder has the meaning
---
specified in Section 1.04.
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"Affiliate" of any specified Person means any other Person directly
---------
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authorized Newspaper", when used with respect to Securities of any
--------------------
series, means a newspaper (which will be, if practicable, The Wall Street
---------------
Journal (Eastern Edition), the Financial Times (London Edition) and the
------- ---------------
Luxemburger Wort in the case of, respectively, The City of New York, London and
----------------
Luxembourg) of general circulation published in an official language of the
country of publication customarily published at least once a day for at least
five days in each calendar week (i) in the place specified pursuant to the
provisions hereof or (ii) if no place is so specified, in The City of New York
and in London and, so long as the Securities of such series are listed on the
Luxembourg Stock Exchange or any other stock exchange located outside the United
States and the Luxembourg Stock Exchange or such other stock exchange so
requires, in Luxembourg or in any city required by such other stock exchange
(or, if it shall be impracticable in the opinion of the Trustee to make such
publication in Luxembourg or such other city, elsewhere in Europe).
"Bearer Security" means any Security that is not a Registered
---------------
Security.
2
"Board of Directors" means the Board of Directors of the Company, the
------------------
Executive Committee of such Board of Directors or any other committee of such
Board of Directors duly authorized to act for it hereunder.
"Board Resolution" means a copy of a resolution delivered to the
----------------
Trustee and certified by the Secretary or an Assistant Secretary of the Company
as having been duly adopted by the Board of Directors of the Company, or by the
Secretary or an Assistant Secretary of the Company or the Secretary of the
Executive Committee of such Board of Directors as having been duly adopted by
such Executive Committee, or by the Secretary or an Assistant Secretary of the
Company or the Secretary of any other committee of such Board of Directors duly
authorized to act for it hereunder as having been duly adopted by such other
committee.
"Business Day" , when used with respect to the Securities of any
------------
series, has the meaning specified with respect to the Securities of such series
as contemplated by Section 3.01; except that, if no such meaning is so
------------
specified, (i) when used with respect to any of the Places of Payment as to any
Security of such series or with respect to any payment in respect of such
Security, means a day that in each of the Places of Payment as to such Security
is neither a Saturday or Sunday nor a day on which banking institutions are
authorized or required by law or regulation to remain closed and (ii) otherwise
means a day that in the place where any specified act pursuant to this Indenture
is to occur is neither a Saturday or Sunday nor a day on which banking
institutions are authorized or required by law or regulation to remain closed.
"CEDEL" means Centrale de Livraison de Valeurs Mobilieres S.A., or
-----
its successor
"Commission" means the Securities and Exchange Commission, as from
----------
time to time constituted, created under the Securities Exchange Act of 1934, or
if at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties on such date.
"Common Depositary" has the meaning set forth in Section 3.04(b).
----------------- ---------------
"Common Stock" means the Common Stock of the Company.
------------
"Company" means the corporation named as the "Company" in the first
-------
paragraph of this instrument until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
3
"Company Request", "Company Order" and "Company Consent" mean,
--------------- ------------- ---------------
respectively, a written request, order or consent signed in the name of the
Company by the Chairman of the Board, any Vice Chairman, the President, the
principal financial officer, the general counsel, a Vice President, the
Treasurer or an Assistant Treasurer of the Company, and by the principal
accounting officer, the Controller, an Assistant Controller, the Secretary or an
Assistant Secretary of the Company, and delivered to the Trustee.
"Consolidated Net Tangible Assets" means the excess over current
--------------------------------
liabilities of all assets as determined by the Company and set forth in a
consolidated balance sheet of the Company and its consolidated Subsidiaries
prepared in accordance with generally accepted accounting principles as of a
date within 90 days of the date of such determination, after deducting goodwill,
trademarks, patents, other like intangibles and the minority interest of others.
"Conversion Agent" has the meaning set forth in Section 15.01(b).
---------------- ----------------
"Coupon" means any interest coupon appertaining to a Security.
------
"Defaulted Interest" has the meaning set forth in Section 3.07.
------------------ ------------
"Depositary" means, with respect to the Securities of any series
----------
issuable or issued in the form of a Global Security, the Person designated
pursuant to Section 3.01(19) as the Common Depositary or other depositary with
---------------
respect to any Securities of such series until a successor person shall have
become such as provided pursuant to Section 3.01(19) of the Indenture, and
---------------
thereafter 'Depositary' shall mean or include each Person which is then a
Depositary hereunder with respect to any Securities of such series. If at any
time there is more than one such Person which is then a Depositary with respect
to the Securities of any series, "Depositary" as used with respect to any
Securities of such series shall mean each Person which is then a Depositary with
respect to such Securities.
"Dollars", "$", "U.S. Dollars" and "U.S.$" mean the coin or currency
------- - ------------ -----
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
"Euro-clear" means Xxxxxx Guaranty Trust Company of New York,
----------
Brussels office, as operator of the Euro-clear System, or any successor to
Xxxxxx Guaranty Trust Company of New York, Brussels office, as operator thereof.
"European Communities" means the European Economic Community, the
--------------------
European Coal and Steel Community and the European Atomic Energy Community.
4
"Event of Default" has the meaning specified in Article Five.
---------------- ------------
"Exchange Date" has the meaning set forth in Section 3.04(b).
------------- ---------------
"Foreign Currency" means a currency other than Dollars or a composite
----------------
currency (including, without limitation, the European Currency Unit, as defined
and revised from time to time by the Council of European Communities).
"Funded Debt" of any corporation means (i) all indebtedness for money
-----------
borrowed which by its terms matures more than 12 months from the creation,
extension or renewal thereof or which is extendible or renewable at the option
of the obligor on such indebtedness to a time more than 12 months after its
creation, extension or renewal and (ii) all guarantees, direct or indirect, of
such indebtedness of others or of dividends; provided, however, that Funded Debt
-------- -------
shall not include endorsements of negotiable instruments for collection, deposit
or negotiation and guarantees by the Company or a Restricted Subsidiary arising
in connection with the sale, discount, guarantee or pledge of notes, chattel
mortgages, leases, accounts receivable, trade acceptances and other paper
arising, in the ordinary course of business, out of installment or conditional
sales to or by, or transactions involving title retention with, distributors,
dealers or other customers, of merchandise, equipment or services. The Company
or a Restricted Subsidiary shall be deemed to have assumed any Funded Debt
secured by any mortgage upon any of its property or assets whether or not it has
actually done so.
"generally accepted accounting principles" with respect to any
----------------------------------------
computation required or permitted hereunder means such accounting principles
which are generally accepted at the date or time of such computation.
"Global Security" means, with respect to any series of Securities
---------------
issued hereunder, a Security, which may be a Registered Security or a Bearer
Security, executed by the Company and authenticated and delivered by the Trustee
pursuant to Section 3.03, which shall represent, and shall be denominated in an
------------
amount equal to the aggregate principal amount of, all of the outstanding
Securities of such series or a portion thereof having the same terms, including,
without limitation, the same date or dates on which principal is due, the same
interest rate or method of determining interest and, in the case of Original
Issue Discount Securities, the same issue price (except that such outstanding
Securities of such series or portion thereof need not have the same issue date),
and which shall be a Temporary Global Security or a Permanent Global Security.
"Government Obligations" means obligations which are (i) direct
----------------------
obligations of the sovereign government in the currency of which Securities of
the relevant series are payable or (ii) obligations of any Person controlled or
supervised by
5
and acting as an instrumentality of such sovereign government the payment of
which is unconditionally guaranteed by such sovereign government, and which, in
the case of either (i) or (ii), are full faith and credit obligations of such
sovereign government, are payable in such currency and are not, by their terms,
callable or redeemable.
"Holder" or "Securityholder" , when used with respect to any Security
------ --------------
(including a Global Security), means, in the case of a Registered Security, the
Person in whose name such Security is registered on the Security Register and,
in the case of a Bearer Security, the bearer thereof and, when used with respect
to any Coupon, means the bearer thereof.
"Independent" when used with respect to any specified Person means
-----------
such a Person who (1) is in fact independent, (2) does not have any direct
financial interest or any material indirect financial interest in the Company or
in any other obligor upon the Securities or in any Affiliate of the Company or
of such other obligor, and (3) is not connected with the Company or such other
obligor or any Affiliate of the Company or of such other obligor, as an officer,
employee, promoter, underwriter, trustee, partner, director or person performing
similar functions. Whenever it is herein provided that any Independent Person's
opinion or certificate shall be furnished to the Trustee, such Person shall be
appointed by a Company Order and approved by the Trustee in the exercise of
reasonable care, and such opinion or certificate shall state that the signer has
read this definition and that the signer is Independent within the meaning
hereof.
"interest", when used with respect to non-interest bearing
--------
Securities, means interest payable after Maturity.
"Interest Payment Date", when used with respect to any Security,
---------------------
means the Stated Maturity of an installment of interest on such Security.
"mandatory sinking fund payment" has the meaning set forth in Section
------------------------------ -------
12.01.
-----
"Maturity" when used with respect to any Security, means the date on
--------
which the principal of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption, repayment at the option of the Holder or
otherwise.
"mortgage" means any mortgage, pledge or security interest.
--------
6
"Officers' Certificate" means a certificate signed by the Chairman of
---------------------
the Board, any Vice Chairman, the President, the principal financial officer,
the general counsel, a Vice President, the Treasurer or an Assistant Treasurer
of the Company, and by the principal accounting officer, the Controller, an
Assistant Controller, the Secretary or an Assistant Secretary of the Company,
and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may
------------------
(except as otherwise expressly provided in this Indenture) be counsel for the
Company and who shall be acceptable to the Trustee.
"optional sinking fund payment" has the meaning set forth in Section
----------------------------- -------
12.01.
-----
"Original Issue Discount Security" means any Security that provides
--------------------------------
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 5.02.
------------
"Outstanding", when used with respect to the Securities of any
-----------
series, means, as of the date of determination, all Securities of such series
theretofore authenticated and delivered under this Indenture, except:
------
(i) Securities of such series theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities of such series for whose payment or redemption money
in the necessary amount and in the required currency or composite currency
has been theretofore deposited with the Trustee or any Paying Agent in
trust for the Holders of such Securities, provided that, if such Securities
--------
are to be redeemed, notice of such redemption has been duly given pursuant
to this Indenture or provision therefor satisfactory to the Trustee has
been made; and
(iii) Securities of such series which have been paid pursuant to
Section 3.06 or in exchange for or in lieu of which other Securities of the
------------
same series have been authenticated and delivered pursuant to this
Indenture other than any such Securities in respect of which there shall
have been presented to the Trustee proof satisfactory to it that such
Securities are held by a bona fide purchaser in whose hands such Securities
are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
-------- -------
principal amount of Outstanding Securities of any series have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, (a) the
principal amount of
7
an Original Issue Discount Security that shall be deemed to be Outstanding for
such purposes shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon acceleration of the Maturity
thereof pursuant to Section 5.02, (b) the principal amount of a Security
------------
denominated in a Foreign Currency or Currencies that shall be deemed to be
Outstanding for such purposes shall be the U.S. Dollar equivalent of the
principal amount (or, in the case such a Security which is an Original Issue
Discount Security, the principal amount deemed to be Outstanding pursuant to
clause (a) of this proviso) of such Security (or, as the case may be, any
Predecessor Security) determined upon original issuance thereof as provided
pursuant to Section 3.01(3) with respect to the Securities of such series and
--------------
(c) Securities of such series owned by the Company or any other obligor upon
such 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 relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities of such
series which the Trustee knows to be so owned shall be so disregarded.
Securities of such series so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon such Securities or any
Affiliate of the Company or such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
------------
principal of (or premium, if any) or interest, if any, on Securities of any
series on behalf of the Company.
"Permanent Global Security" shall mean a permanent Global Security
-------------------------
representing Securities of a series or a portion thereof.
"Person" means any individual, corporation, partnership, joint
------
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment" , when used with respect to Securities of any
----------------
series and the Coupons, if any, appertaining thereto, means the place or places
established as such with respect to the Securities of such series pursuant to
Section 3.01.
------------
"Predecessor Securities" of any particular Security means every
----------------------
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security, and, for the purposes of this definition, any
Security authenticated and delivered under Section 3.06 in lieu of a lost,
------------
destroyed or stolen Security or a Security to which a
8
lost, stolen or destroyed Coupon appertains shall be deemed to evidence the same
debt as the lost, destroyed or stolen Security or the Security to which the
lost, stolen or destroyed Coupon appertains, as the case may be.
"Qualified Account Holder" means any Person which is shown in the
------------------------
records of Euro-clear or CEDEL as being entitled to Securities represented by
all or any portion of a Temporary Global Security.
"Redemption Date" when used with respect to any Security to be
---------------
redeemed means the date fixed for such redemption pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be
----------------
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Security" means any Security registered on the Security
-------------------
Register.
"Regular Record Date" for the interest payable on any Interest
-------------------
Payment Date on the Registered Securities of any series means the date specified
as provided in Section 3.01.
------------
"Responsible Officer" when used with respect to the Trustee means the
-------------------
Chairman or Vice Chairman of the board of directors, the Chairman or Vice
Chairman of the executive committee of the board of directors, the Chairman of
the trust committee, the President, any Vice President (however titled), the
Secretary, any Assistant Secretary or any Trust Officer, or any other officer or
assistant officer of the Trustee customarily performing functions similar to
those performed by any of the above designated officers and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of his knowledge of and familiarity with the
particular subject.
"Restricted Subsidiary" means any Subsidiary other than (i) each
---------------------
Subsidiary organized and existing under laws other than the laws of the United
States or a state thereof, (ii) each Subsidiary substantially all of the
physical properties of which are located, or substantially all of the business
of which is carried on, outside of the United States, (iii) each Subsidiary the
primary business of which consists of finance, banking, credit, leasing,
insurance, financial services, or similar operations or any combination thereof,
(iv) each Subsidiary the primary business of which consists of the ownership,
construction, management, operation, sale or leasing of real property or
improvements thereon, or similar operations or any combination thereof, (v) each
Subsidiary the primary business of which consists of the exploration for, or the
extraction, production,
9
transporting, or marketing of, petroleum or gas or other extracted substances,
or similar operations or any combination thereof, (vi) each Subsidiary the
primary business of which consists of the ownership or operation of one or more
transportation businesses or facilities or equipment related thereto or similar
operations or any combination thereof, (vii) each Subsidiary the primary
business of which consists of obtaining funds with which to make investments
outside of the United States, (viii) each Subsidiary substantially all of the
assets of which consist of the ownership directly or indirectly of the capital
stock of one or more Subsidiaries covered by the preceding clauses (i) through
(vii), (ix) each Subsidiary which the Company or any Subsidiary is, by the terms
of the final order of any court of competent jurisdiction from which no further
appeal may be taken, required to dispose of and which shall by Board Resolution
be determined not to be a Restricted Subsidiary, effective as of the date
specified in such resolution and (x) any corporation a majority of the voting
shares of which shall at the time be owned directly or indirectly by one or more
corporations specified in the preceding clauses (i) through (ix); provided,
--------
however, that the Board of Directors may by Board Resolution declare any such
-------
Subsidiary to be a Restricted Subsidiary, effective as of the date such
resolution is adopted.
"Secured Debt" means indebtedness for money borrowed if such
------------
indebtedness is secured by a mortgage upon any assets of the Company or a
Restricted Subsidiary, including in such assets, without limitation, shares of
stock or indebtedness of any Restricted Subsidiary owned by the Company or
another Restricted Subsidiary. Indebtedness secured by mortgages on property
existing at the time it is acquired and mortgages securing any part of the
purchase price of property purchased, constructed or improved shall be deemed to
be indebtedness for money borrowed. The Company or a Restricted Subsidiary
shall be deemed to have assumed any indebtedness secured by any mortgage upon
any of its property or assets whether or not it has actually done so.
"Security" or "Securities" has the meaning stated in the first
-------- ----------
recital of this Indenture and more particularly any Securities authenticated and
delivered under this Indenture.
"Security Register" and "Security Registrar" have the respective
----------------- ------------------
meanings specified in Section 3.05.
------------
"Special Record Date" for the payment of any Defaulted Interest on
-------------------
the Registered Securities of any series means the date fixed by the Trustee
pursuant to Section 3.07.
------------
10
"Stated Maturity" , when used with respect to any Security or any
---------------
installment of principal thereof or interest thereon, means the date specified
in such Security or a Coupon representing such installment of interest as the
fixed date on which the principal of such Security or such installment of
principal or interest is due and payable.
"Subsidiary" means any corporation of which the Company, or the
----------
Company and one or more Subsidiaries, or any one or more Subsidiaries, directly
or indirectly own outstanding shares of capital stock having voting power
sufficient to elect, under ordinary circumstances (not dependent upon the
happening of a contingency), a majority of the directors.
"Temporary Global Security" has the meaning set forth in Section
------------------------- -------
3.04(b).
-------
"Trustee" means the Person named as the "Trustee" in the first
-------
paragraph of this instrument and, subject to the provisions of Article Six,
-----------
shall also include its successors and assigns.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of
------------------- ---
1939, as amended, as in force at the date as of which this instrument was
executed, except as otherwise provided in Section 9.05.
------------
"United States" means the United States of America, its territories
-------------
and possessions and areas subject to its jurisdiction and the Commonwealth of
Puerto Rico.
"Value" means, as to any sale and lease back transaction to which
-----
Section 10.07 applies, the product of (a) the net proceeds from any such sale
-------------
(less the amount applied in connection with such sale to the retirement of
outstanding Funded Debt in accordance with Section 10.07(c)) and (b) a fraction,
----------------
the numerator of which is the number of full years of the term of the lease
relating to such property (without regard to any options to renew or extend such
term) remaining at the time of the determination of such value and the
denominator of which is the number of full years of such term at the time of
such sale.
"Yield to Maturity" when used with respect to an Original Issue
-----------------
Discount Security, means the yield to Maturity on such Security calculated at
the time of issuance thereof, or, if applicable, at the most recent
redetermination of interest on such Security, and calculated in accordance with
either the constant interest method or such other accepted financial practice as
is specified in the terms of such Security established pursuant to Section 3.01.
------------
11
SECTION 1.02. Compliance Certificates and Opinions.
------------------------------------
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 1.03. 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 a certificate or opinion of, or
representations by, counsel, or, insofar as it relates to accounting matters,
upon a certificate or opinion of, or representations by, independent public
accountants, unless such officer knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
the matters upon which his certificate or opinion is based are erroneous. Any
such certificate or Opinion of Counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an
officer or officers of the Company stating that the information with respect to
such factual matters is in the possession of the Company, unless such Counsel
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.04. Acts of Securityholders.
-----------------------
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be made, given or taken by
the Holders of Securities of any series may be embodied in and evidenced by (i)
one or more instruments of substantially similar tenor signed by such Holders in
person or by agent duly appointed in writing, or (ii) in the event the
Securities of such series are issuable in whole or in part as Bearer Securities,
the record of Holders of such series voting in favor thereof, either in person
or by proxies duly appointed in writing, at any meeting of Holders of such
series duly called and held in accordance with the provisions of Article
-------
Thirteen, or (iii) a combination of such instrument or instruments and any such
--------
record; and, except as herein otherwise expressly provided, such action shall
become effective with respect to such series 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 of such series 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 of any Security of such series, shall be sufficient for any purpose of
this Indenture and (subject to Section 6.01) conclusive with respect to such
------------
series in favor of the Trustee and the Company, and any agent of the Trustee and
the Company, if made in the manner provided in this Section.
13
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any manner which the Trustee deems
sufficient.
(c) The holding of Registered Securities of any series by any Person
shall be proved by the Security Register or by a certificate of the Security
Registrar.
(d) The holding of Bearer Securities of any series by any Person, and
the date 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, wherever situated, if such certificate shall
be deemed by 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 principal amount and serial numbers of
Bearer Securities of any series held by any Person, and the date of holding the
same, may also be proved in any other manner which the Company and the Trustee
deem sufficient.
(e) The Trustee may require such additional proof of any matter
referred to in this Section as it shall deem necessary.
(f) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Security shall bind every subsequent
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 or omitted to be done by the Trustee, the
Security Registrar, any Paying Agent or the Company in reliance thereon, whether
or not notation of such action is made upon such Security.
14
SECTION 1.05. Notices, etc., to Trustee and Company.
-------------------------------------
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Securityholders 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 Securityholder or by the Company shall be
sufficient for every purpose hereunder only if made, given, furnished or
filed in writing to or with the Trustee at its principal corporate trust
office, or
(2) the Company by the Trustee or by any Securityholder shall be
sufficient for every purpose hereunder if in writing and mailed, first-
class, postage prepaid, to the Company addressed to it at the address of
its principal office specified in the first paragraph of this instrument or
at any other address previously furnished in writing to the Trustee by the
Company.
SECTION 1.06. Notices to Securityholders; Waiver.
----------------------------------
Where this Indenture provides for notice to Securityholders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) (a) 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 on the Security Register,
not later than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice and (b) to Holders of Bearer
Securities, if published in an Authorized Newspaper on a Business Day at least
twice, the first such publication to be not earlier than the earliest date, and
not later than the latest date, prescribed herein 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 by publication to Holders of Bearer
Securities given as provided herein. Any notice mailed to Holders in the manner
prescribed herein shall be deemed to have been given whether or not received by
any particular Holder. In case, by reason of the suspension of regular mail
service, or by reason of any other cause, it shall be impossible or
impracticable to give any notice to Holders of Registered Securities by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute notification for every purpose hereunder.
15
In case, by reason of the suspension of publication of any Authorized
Newspaper, or by reason of any other cause, it shall be impossible or
impracticable to make publication of any notice to Holders of Bearer Securities
in an Authorized Newspaper or Authorized Newspapers as provided by this
Indenture, then such method of publication or notification to Holders of Bearer
Securities as shall be made with the approval of the Trustee shall constitute a
sufficient publication of such notice for every purpose hereunder. Neither the
failure to give notice by publication, nor any defect in any notice so given, to
any particular Holder of a Bearer Security as provided herein shall affect the
sufficiency of such notice with respect to other Holders of Bearer Securities or
the sufficiency of any notice to Holders of Registered Securities as provided
herein.
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 Securityholders 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 1.07. Conflict with Trust Indenture Act.
---------------------------------
If any provision of this Indenture limits, qualifies or conflicts with
another provision hereof which is required to be included in this Indenture by
any of the provisions of TIA, such required provision shall control.
SECTION 1.08. Effect of Headings and Table of Contents.
----------------------------------------
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 1.09. 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 1.10. Separability Clause.
-------------------
In case any provision in this Indenture or in the Securities of any
series or in any Coupons appertaining thereto 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.
16
SECTION 1.11. Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Securities or in any Coupons
appertaining thereto, express or implied, shall give to any Person, other than
the parties hereto, the Security Registrar and any Paying Agent, and their
successors hereunder, and the Holders of Securities and Coupons, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
SECTION 1.12. Governing Law.
-------------
This Indenture and the Securities and any Coupons appertaining thereto
shall be deemed to be contracts made under the laws of the State of New York and
for all purposes shall be construed in accordance with and governed by the laws
of said State.
SECTION 1.13. Payments Due on Non-Business Days.
---------------------------------
If any Stated Maturity, Redemption Date, Interest Payment Date or
other day on which payment of any principal, premium or interest is required to
be made in respect of a Security of any series shall not be a Business Day with
respect to the Securities of such series, then (notwithstanding any other
provision of this Indenture or of such Security or any Coupon appertaining
thereto) payment of the principal (and premium, if any) and interest otherwise
due in respect of such Security need not be made at such Stated Maturity or on
such Redemption Date, Interest Payment Date or other day, as the case may be,
but may be made on the next succeeding Business Day with the same force and
effect as if made at such Stated Maturity or on such Redemption Date, Interest
Payment Date or other day, as the case may be, and no interest shall accrue for
the period from and after such Stated Maturity, Redemption Date, Interest
Payment Date or other day, as the case may be.
ARTICLE TWO
FORMS OF SECURITIES
SECTION 2.01. Forms Generally.
---------------
The Registered Securities, if any, of each series and the Bearer
Securities, if any, of each series and the Coupons, if any, appertaining
thereto, shall be substantially in such form or forms (not inconsistent with
this Indenture) as shall be established in or pursuant to a Board Resolution
(and set forth in a Board Resolution or, to the extent established pursuant to
rather than set forth in such Board Resolution, in an Officers' Certificate as
to such establishment) or in one or more indentures supplemental hereto, in
17
each case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by 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 be
required to comply with any law or with any rules or regulations pursuant
thereto, or with the rules of any securities exchange or to conform to usage, as
may, consistently herewith, be determined by the officers executing such
Securities or Coupons, as evidenced by their execution of such Securities or
Coupons. The form of any Registered Security or Bearer Security which is a
Global Security shall be as provided in the preceding sentence.
The Securities of each series shall be issuable as Registered
Securities without Coupons or as Bearer Securities with or without Coupons.
Unless otherwise specified with respect to the Securities of a series as
contemplated by Section 3.01, Bearer Securities (other than Global Securities)
------------
will have Coupons attached and Bearer Securities that are Global Securities will
not have Coupons attached. Registered Securities and Bearer Securities of a
series may, to the extent specified with respect to the Securities of such
series, as contemplated by Section 3.01, be issued as Global Securities.
------------
The definitive Securities and Coupons, if any, shall be printed,
lithographed or engraved or produced by any combination of these methods on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities and Coupons, as evidenced by their
execution of such Securities and Coupons.
SECTION 2.02. Form of Trustee's Certificate of Authentication.
-----------------------------------------------
The Trustee's Certificate of Authentication on all Securities shall be
in substantially the following form:
"This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By _____________________________
Authorized Officer"
18
SECTION 2.03. Global Securities.
-----------------
If the Securities of a series are issuable as a Global Security, such
Global Security may provide that it shall represent the aggregate amount of
Outstanding Securities 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 reduced to reflect exchanges. Any endorsement of a Global
Security to reflect the amount, or any increase or decrease in the amount, of
Outstanding Securities represented thereby shall be made by the Trustee and in
such manner as shall be specified in such Global Security. Any instructions by
the Company with respect to a Global Security, after its initial issuance, shall
be in writing but need not comply with Section 1.02.
------------
Unless otherwise provided with respect to the Securities of any series
in accordance with Section 3.01, payment of principal of (and premium, if any,
------------
on) a Permanent Global Security of such series shall be made to each of Euro-
clear and CEDEL with respect to the portion of such Permanent Global Security
held for its account by the Depositary. Each of Euro-clear and CEDEL will in
such circumstances credit the payment or principal (or premium, if any) received
by it in respect of such Permanent Global Security to the accounts of the
beneficial owners thereof. Payment of interest, if any, on such Permanent
Global Security shall be made as provided in Section 3.07.
------------
ARTICLE THREE
THE SECURITIES
SECTION 3.01. Amount Unlimited; Issuable in Series.
------------------------------------
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution, and set forth in an Officers'
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series:
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture
(except
19
for Securities authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities of the series
pursuant to Section 3.04, 3.05, 3.06, 9.06 or 11.07);
------------ ---- ---- ---- -----
(3) if the Securities of the series are not denominated in Dollars,
the Foreign Currency or Foreign Currencies in which such Securities are
denominated, the manner in which the U.S. Dollar equivalent of the
principal amount of each such Security is to be determined upon original
issuance and, if any payment of principal of (or premium, if any) or
interest on or any other amount in respect of the Securities of the series
is not payable in Dollars, the Foreign Currency or Foreign Currencies in
which such payment shall be payable and the particular provisions
applicable thereto;
(4) the date or dates (or the manner of determining the same) on which
the principal of the Securities of the series is payable (which, if so
provided in or pursuant to such Board Resolution or in such an indenture
supplemental hereto, may be determined by the Company from time to time and
set forth in the Securities of the series issued from time to time);
(5) the rate or rates (or the method of determining the same) at which
the Securities of the series shall bear interest, if any, and the date or
dates from which such interest shall accrue (which, in the case of either
or both, if so provided in or pursuant to such Board Resolution or in such
an indenture supplemental hereto, may be determined by the Company from
time to time and set forth in the Securities of the series issued from time
to time), the Interest Payment Dates (or the manner of determining the
same) on which such interest, if any, shall be payable, the Regular Record
Dates (or the manner of determining the same), if any, for the
determination of Holders to whom interest on Registered Securities is
payable on any Interest Payment Date and the extent to which, or the manner
in which, any interest payable on a Global Security will be paid if other
than as provided in Section 3.07;
------------
(6) the place or places where, subject to Section 10.02, the principal
-------------
of (and premium, if any) and interest, if any, on Securities of the series
shall be payable, any Registered Securities of the series may be
surrendered for registration of transfer and Securities of the series may
be surrendered for exchange;
(7) the period or periods within which, the price or prices at which,
the Foreign Currency or Foreign Currencies, if any, in which and the terms
and
20
conditions upon which Securities of the series may be redeemed, in whole or
in part, at the option of the Company, pursuant to any sinking fund or
otherwise;
(8) the obligation, if any, of the Company to redeem, repay or
purchase Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods
within which, the price or prices at which, the Foreign Currency or Foreign
Currencies, if any, in which and the terms and conditions upon which
Securities of the series shall be redeemed, repaid or purchased, in whole
or in part, pursuant to such obligation;
(9) if other than denominations of U.S. $1,000 and any integral
multiple thereof, in the case of Registered Securities, or U.S. $1,000 and
U.S. $10,000 in the case of Bearer Securities, the denominations in which
Securities of the series shall be issuable;
(10) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section
-------
5.02;
----
(11) if the amount of payments of principal of (or any premium) or any
interest on the Securities of the series may be determined with reference
to an index, the manner in which such amounts shall be determined;
(12) whether the Securities of the series will be issuable as
Registered Securities or Bearer Securities, or both, and, if applicable,
whether any Bearer Securities of the series (other than Global Securities)
will be issuable without Coupons attached or any Bearer Securities of the
series that are Global Securities will be issuable with Coupons attached,
whether any Securities of the series are to be issued initially as a
Temporary Global Security and whether any Securities of the series are to
be issued as a Permanent Global Security, and the terms and conditions upon
which any such Global Security or any Bearer Securities of the series may
be issued, delivered or exchanged or any Registered Security of the series
may be exchanged for Bearer Securities of the series, if other than as
provided herein and the form of any certificates or documents to be
delivered in connection with (i) the exchange of an interest in a Temporary
Global Security for an interest in a Permanent Global Security or a
definitive Bearer Security as required by Section 1.163-5(c)(2)(i)(D) of
the United States Treasury Regulations or (ii) the payment of principal (or
premium, if any) or interest, if any, in respect
21
of a Temporary Global Security as required by Section 1.163-5(c)(2)(i)(D)
of the United States Treasury Regulations;
(13) whether and under what circumstances, and the terms and
conditions on which, the Company will pay additional amounts on the
Securities of the series in respect of any tax, assessment or governmental
charge withheld or deducted and whether the Company will have the option to
redeem such Securities rather than pay such additional amounts or to redeem
such Securities in the event of the imposition of any certification,
documentation, information or other reporting requirement and, if so, under
what circumstances and the terms and conditions on which the Company may
exercise such option;
(14) the date as of which any Bearer Security of the series (including
any Global Security) shall be dated if other than as of the date of
original issuance of the first Security of the series to be issued;
(15) any Events of Default or covenants other than as set forth herein
with respect to the Securities of the series;
(16) the application, if any, of Section 4.03 or Section 10.10
------------ -------------
(including the application, if any, of the condition specified in
subparagraph (4) of Section 4.03 or subparagraph (5) of Section 10.10, or
---------------- ------------ ---------------- -------------
both, and, in the case of the application of subparagraph (4) of Section
---------------- -------
4.03, the application, if any, of clause (B) in lieu of clause (A) thereof)
---- ---------- ----------
to the Securities of the series;
(17) any percentage greater than a majority in principal amount of the
Outstanding Securities of the series as shall apply to Sections 9.02 and
-------------
13.04;
-----
(18) the obligation, if any, of the Company to convert Securities of
the series pursuant to the terms thereof, at the option of the Holders
thereof, into shares of Common Stock issued by the Company, and the terms
and conditions upon which such Securities shall be converted, in whole or
in part, pursuant to such obligation;
(19) any trustees, authenticating or paying agents, warrant agents,
transfer agents or registrars with respect to the Securities of the series
(if different from those named herein) and, if applicable, the Person which
shall be the Common Depositary or other depositary for the Securities of
such series or any portion thereof and any provisions for the appointment
of a successor Common Depositary or other depositary, as the case may be;
and
22
(20) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and the Coupons, if any, appertaining
to any Bearer Securities of such series shall be substantially identical except
that such Securities and Coupons may differ as to denomination, date of issue,
Stated Maturity, rate of interest, if any, and the date from which interest, if
any, shall accrue and as may otherwise be provided in or pursuant to such Board
Resolution or in such an indenture supplemental hereto. The terms of such
Securities, as set forth above, may be determined by the Company from time to
time if so provided in or pursuant to such Board Resolution or in such an
indenture supplemental hereto. All Securities of any one series need not, but
may, be issued at the same time.
If any terms of the series are established by action taken pursuant to
a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
SECTION 3.02. Denominations.
-------------
Unless otherwise specified with respect to Securities of a series as
contemplated by Section 3.01, any Registered Securities of such series shall be
------------
issuable in the denominations of U.S. $1,000 and any integral multiple thereof
and any Bearer Securities of such series shall be issuable in denominations of
U.S. $1,000 and U.S. $10,000.
SECTION 3.03. Execution, Authentication, Delivery and Dating.
----------------------------------------------
The Securities and the Coupons, if any, shall be executed on behalf of
the Company by its Chairman of the Board of Directors (or its Chairman of the
Executive Committee of such Board of Directors), any Vice Chairman, its
President, its principal financial officer, its principal accounting officer,
its general counsel, any Vice President or its Treasurer, in each case (except
in the case of Coupons) under its corporate seal, which may, but need not, be
attested. The signature of any of these officers on the Securities or the
Coupons may be manual or facsimile and may be imprinted or otherwise reproduced
thereon. The corporate seal of the Company may be in the form of a facsimile
thereof and may be impressed, affixed, imprinted or otherwise reproduced on the
Securities or the Coupons. Notwithstanding the foregoing, any Temporary Global
Security may be executed on behalf of the Company as provided herein without any
necessity of being under its corporate seal as aforesaid.
23
Securities and 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 or did not hold such offices at the date of such
Securities; and any Security or Coupon appertaining thereto may be executed on
behalf of the Company by such person or persons as, at the actual date of
execution of such Security or Coupon, shall be the proper officers of the
Company, although at the date of the execution and delivery hereof such person
or persons were not such officers.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities (including Global Securities)
of any series, together with any Coupons appertaining thereto, executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities; provided,
--------
however, that, in connection with its original issuance, no Bearer Security
-------
shall be mailed or otherwise delivered to any location in the United States; and
provided, further, that a Bearer Security may be delivered in connection with
-------- -------
its original issuance only if the person entitled to receive such Bearer
Security shall have furnished a certificate referred to in the third sentence of
the second paragraph of Section 3.04(b), dated no earlier than 15 days prior to
---------------
the earlier of the date on which such Bearer Security is delivered and the date
on which any Temporary Global Security or any Permanent Global Security first
becomes exchangeable for such Bearer Security in accordance with the terms of
such Temporary Global Security or Permanent Global Security and this Indenture.
Except as permitted by Section 3.06, the Trustee shall not authenticate and
------------
deliver any Bearer Security unless all appurtenant Coupons then matured (other
than matured Coupons in default) have been detached and canceled. If all the
Securities of any one series are not to be issued at one time and if a Board
Resolution or indenture supplemental hereto relating to the Securities of such
series shall so permit, such Company Order may set forth procedures acceptable
to the Trustee for the issuance of such Securities, including, without
limitation, procedures with respect to date of issue, Stated Maturity, rate of
interest, if any, and date from which interest, if any, shall accrue as
determined by the Company as contemplated by Section 3.01. In authenticating
------------
and delivering such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to Section 6.01) shall be fully protected in
------------
relying upon, an Opinion of Counsel stating,
(a) that the form or forms of such Securities has been established in
conformity with the provisions of this Indenture;
24
(b) that the terms of such Securities have been established in
conformity with the provisions of this Indenture;
(c) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company, enforceable in accordance with
their terms, subject to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting the enforcement of
creditors' rights and to general equity principles; and
(d) that all laws and requirements in respect of the execution and
delivery by the Company of such Securities have been complied with.
The Trustee shall not be required to authenticate such Securities if (i) the
Trustee, being advised by counsel, determines that such action may not be
lawfully taken, (ii) the Trustee in good faith by its Board of Directors,
executive committee or a trust committee of directors and/or Responsible
Officers determines that such action would expose the Trustee to personal
liability to Holders of any Outstanding Securities or (iii) the issue of such
Securities pursuant to this Indenture will affect the Trustee's own rights,
duties or immunities under the Securities and this Indenture or otherwise in a
manner which is not reasonably acceptable to the Trustee. The Trustee shall
authenticate and deliver each Security of any such series in accordance with the
procedures, if any, specified by the Company in the Company Order delivered
pursuant to the preceding paragraph.
Notwithstanding the provisions of Section 3.01 and of the preceding
------------
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver any Board Resolution, Officers'
Certificate or Opinion of Counsel otherwise required pursuant to Section 3.01,
------------
such preceding paragraph or Section 1.02 at or prior to the time of
------------
authentication of each Security of such series if such documents are delivered
at or prior to the authentication upon original issuance of the first Security
of such series to be issued.
Each Registered Security (including a Global Security) shall be dated
the date of its authentication. Each Bearer Security of a series (including a
Global Security) shall be dated as of the date of original issuance of the first
Security of such series to be issued except as otherwise established in or
pursuant to the Board Resolution or indenture supplemental hereto referred to in
Section 3.01 relating to the Securities of such series.
------------
25
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 herein executed by the Trustee by manual signature, and
such certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder.
If the Company shall establish pursuant to Section 3.01(12) that the
----------------
Securities of all or part of a series are to be issued in whole or in part in
the form of a Global Security which is a Registered Security, such Global
Security shall be registered in the name of the Depositary for such Global
Security or the nominee of such Depositary and shall be delivered by the Trustee
to such Depositary or pursuant to such Depositary's instructions.
Unless otherwise specified with respect to the Securities of a series
as contemplated by Section 3.01, each Person designated pursuant to Section
------------ -------
3.01(19) as a Depositary for a Global Security which is a Registered Security of
-------
such series, at the time of its designation and at all times while it serves as
Depositary, shall be a clearing agency registered under the Securities Exchange
Act of 1934, as amended, and any other applicable statute or regulation.
SECTION 3.04. Temporary Securities; Exchange of Temporary Global
--------------------------------------------------
Securities.
----------
(a) Pending the preparation of definitive Securities of any series,
the Company may execute, and upon Company Order the Trustee shall authenticate
and deliver, in the manner specified in Section 3.03, temporary Securities of
------------
such series 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 either as
Registered Securities without Coupons or, if authorized, Bearer Securities with
or without Coupons and with such appropriate insertions, omissions,
substitutions and other variations as the officer executing such Securities may
determine, as evidenced by his execution of such Securities. In the case of any
series of Securities, such temporary Securities may be issued as a Temporary
Global Security representing such of the Outstanding Securities of such series
as shall be specified therein.
If temporary Securities of any series are issued, the Company will
cause definitive Securities of such series to be prepared without unreasonable
delay but, in the case of Securities initially represented by a Temporary Global
Security, in any event not
26
later than the applicable Exchange Date. Except in the case of Temporary Global
Securities (which shall, except as otherwise specified with respect to the
Securities of such series pursuant to Section 3.01, be exchanged in accordance
------------
with the provisions of Subsection (b)), after the preparation of definitive
--------------
Securities of such series, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series upon surrender of the
temporary Securities of such series at the office or agency of the Company
maintained pursuant to Section 10.02 at a Place of Payment with respect to
-------------
Securities of such series, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities of any series (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 such series of authorized denominations and
of a like Stated Maturity, with like terms and provisions, and, in the case of
Bearer Securities, having attached thereto any appropriate Coupons; provided,
--------
however, that, unless otherwise specified with respect to the Securities of such
-------
series pursuant to Section 3.01, no definitive Bearer Security 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
Section 3.03. Until so exchanged the temporary Securities of any series shall in
------------
all respects be entitled to the same benefits under this Indenture as definitive
Securities of such series and with like terms and conditions authenticated and
delivered hereunder, except as otherwise specified with respect to the
Securities of such series pursuant to Section 3.01 or as provided in Subsection
------------ ----------
(b) as to payment of interest, if any.
---
(b) Unless otherwise specified by the applicable Board Resolution or
indenture supplemental hereto pursuant to Section 3.01, the Securities of any
------------
series issuable as Bearer Securities shall initially be represented by one or
more temporary Global Securities without Coupons (each, a "Temporary Global
----------------
Security"). Any Temporary Global Security shall, unless otherwise provided
--------
therein, be delivered to the London office of a depositary or common depositary
(the "Common Depositary") for the benefit of Euro-clear and CEDEL for credit to
-----------------
the respective accounts of the Qualified Account Holders.
Unless otherwise specified in a Temporary Global Security, on or after
the date which is 40 days after the date of payment for and delivery of such
Temporary Global Security (the "Exchange Date"), any Qualified Account Holder
-------------
shall be entitled to delivery of the aggregate principal amount of definitive
Securities of such series, without charge (except as set forth in this
Subsection) in exchange for the portion of such Temporary Global Security with
respect to which it is a Qualified Account Holder, of authorized denominations
and with like terms and provisions as the portion of such
27
Temporary Global Security to be exchanged. The definitive Securities to be
delivered in exchange for such portion shall be definitive Registered
Securities, definitive Bearer Securities or all or a portion of a Permanent
Global Security without Coupons, or any combination thereof, as specified with
respect to the Securities of such series pursuant to Section 3.01, and, if any
------------
combination thereof is so specified, as requested on behalf of the Qualified
Account Holder by Euro-clear or CEDEL, as the case may be. A Qualified Account
Holder of Euro-clear or CEDEL, as the case may be, desiring to effect the
exchange of the portion of such Temporary Global Security with respect to which
it is a Qualified Account Holder for such definitive Securities or one or more
Permanent Global Securities shall instruct Euro-clear or CEDEL, as the case may
be, to request such exchange on its behalf and shall deliver to Euro-clear or
CEDEL, as the case may be, a certificate substantially in such form as shall be
specified with respect to the Securities of such series pursuant to Section 3.01
------------
and dated no earlier than 15 days prior to the Exchange Date. On or after the
Exchange Date, upon request of the Common Depositary, acting on behalf of Euro-
clear and CEDEL, acting on behalf of the respective Qualified Account Holders,
the Trustee, as the Company's agent for such purpose, but only upon surrender of
such Temporary Global Security by the Common Depositary to the Trustee and
delivery to the Trustee of a certificate of Euro-clear or CEDEL, as the case may
be, substantially in such form as shall be specified with respect to the
Securities of such series pursuant to Section 3.01, to the effect that it has
-------------
received in writing, by tested telex or by electronic transmission a certificate
or certificates substantially in the form referred to in the preceding sentence
dated no earlier than 15 days prior to the Exchange Date and signed by the
Qualified Account Holders in respect of such Temporary Global Security or
portions thereof being exchanged, shall, on the date of such certificate of
Euro-clear or CEDEL, as the case may be, (1) endorse such Temporary Global
Security to reflect the reduction of its principal amount by an amount equal to
the aggregate principal amount of such definitive Securities or Permanent Global
Security, as the case may be, (2) cause the applicable terms of such Securities
to be entered on any definitive Security or Securities to be exchanged therefor
and the Coupons, if any, appertaining thereto or, as the case may be, endorse
any applicable Permanent Global Security to reflect the initial amount, or an
increase in the amount, of Securities represented thereby, (3) manually
authenticate such definitive Securities or such Permanent Global Security, as
the case may be, (4) subject to and in compliance with the requirements of
Section 3.03, deliver such definitive Securities to the Holder thereof or, as
------------
the case may be, deliver such Permanent Global Security to the Common Depositary
to be held outside the United States for the accounts of Euro-clear and CEDEL
for credit to the respective accounts at Euro-clear and CEDEL of the Qualified
Account Holders and (5) redeliver such Temporary Global Security to the Common
Depositary, unless such Temporary Global Security shall have been canceled in
accordance with Section 3.09.
------------
28
Unless otherwise specified in such Temporary Global Security, any
exchange thereof or of a portion thereof shall be made free of charge to the
beneficial owners of such Temporary Global Security, except that a Person
receiving definitive Securities must bear the cost of insurance, postage,
transportation and the like in the event that such Person does not take delivery
of such definitive Securities in person at the offices of Euro-clear or CEDEL.
Until exchanged in full as hereinabove provided, any Temporary Global
Security of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of such series and with like terms
and conditions authenticated and delivered hereunder, except that, unless
otherwise specified with respect to the Securities of such series as
contemplated by Section 3.01, (i) interest payable on such Temporary Global
------------
Security on an Interest Payment Date for Securities of such series occurring
prior to the applicable Exchange Date shall be payable on such Interest Payment
Date to Euro-clear and CEDEL for credit without further interest on or after
such Interest Payment Date to the respective accounts of the Qualified Account
Holders in respect of such Temporary Global Security on such Interest Payment
Date who have each delivered to Euro-clear or CEDEL, as the case may be, a
certificate as provided in this clause (i); provided, however, that such
------ --- -------- -------
interest shall be so payable to Euro-clear and CEDEL only upon delivery to the
Trustee of a certificate of Euro-clear or CEDEL, as the case may be, and on the
date of such certificate and that such certificate shall be substantially in
such form as specified with respect to the Securities of such series pursuant to
Section 3.01 and to the effect that Euro-clear or CEDEL, as the case may be, has
------------
received in writing, by tested telex or electronic transmission a certificate or
certificates substantially in such form as shall also be so specified dated no
earlier than 15 days prior to such Interest Payment Date and signed by such
Qualified Account Holders; and (ii) interest payable on such Temporary Global
Security on an Interest Payment Date for Securities of such series occurring on
or after the applicable Exchange Date shall be payable to Euro-clear and CEDEL
on such Interest Payment Date but shall not be credited by Euro-clear or CEDEL
to the account of any Qualified Account Holder or other Person who is a
beneficial owner of such Temporary Global Security on such Interest Payment Date
until such Qualified Account Holder or other Person shall exchange its interest
in such Temporary Global Security in full as hereinabove provided. Any interest
so received by Euro-clear and CEDEL and not credited as provided in clause (ii)
of the preceding sentence shall be returned to the Trustee immediately prior to
the expiration of two years after such Interest Payment Date, to be repaid to
the Company in accordance with Section 10.03.
-------------
The delivery to the Trustee by Euro-clear or CEDEL of any certificate
of Euro-clear or CEDEL, as the case may be, referred to in this Subsection (b)
--------------
may be relied
29
upon by the Company and the Trustee as conclusive evidence that a corresponding
certificate of Qualified Account Holders of Euro-clear or CEDEL, as the case may
be, referred to in this Subsection (b) has or have been delivered to Euro-clear
--------------
or to CEDEL, as the case may be, pursuant to the terms of this Indenture.
Any definitive Bearer Security authenticated and delivered by the
Trustee in exchange for a portion of a Temporary Global Security shall not bear
a Coupon in respect of any interest which shall theretofore have been duly paid
by the Trustee to Euro-clear or CEDEL or by the Company to the Trustee in
accordance with the provisions of this Subsection, and any Coupon in respect
thereof shall be canceled by the Trustee and destroyed in accordance with
Section 3.09.
------------
SECTION 3.05. Registration, Registration of Transfer and Exchange.
---------------------------------------------------
The Company shall cause to be kept at one of its offices or agencies
maintained pursuant to Section 10.02 a register or registers in respect of each
-------------
series of Securities issuable as Registered Securities (herein sometimes
referred to as the "Security Register") in which, subject to such reasonable
-----------------
regulations as it may prescribe, the Company shall provide for the registration
of Registered Securities of such series and the registration of transfers of
Registered Securities of such series. Said office or agency is hereby initially
appointed "Security Registrar" in respect of each series of Securities issuable
------------------
as Registered Securities for the purpose of registering Registered Securities of
such series and transfers of Registered Securities of such series as herein
provided.
Upon surrender for registration of transfer of any Registered Security
of any series at the office or agency of the Company in a Place of Payment in
respect of such series, but subject to any restrictions thereon, 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 such series of any authorized denominations, of a like Stated Maturity and
aggregate principal amount and with like terms and conditions.
At the option of the Holder, Registered Securities (including
Registered Securities which are Global Securities) of any series may be
exchanged for one or more other Registered Securities of such series of any
authorized denominations, of a like Stated Maturity and aggregate principal
amount and with like terms and conditions, upon surrender of the Registered
Securities to be exchanged at any such office or agency. Except as otherwise
specified pursuant to Section 3.01, Registered Securities may not be exchanged
------------
for Bearer Securities.
30
At the option of the Holder, Bearer Securities of any series may be
exchanged for Registered Securities of the same series of any authorized
denominations, of a like Stated Maturity and aggregate principal amount and with
like terms and conditions upon surrender of the Bearer Securities to be
exchanged at any such office or agency, with all unmatured Coupons and all
matured Coupons in default appertaining thereto. 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 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 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 the amount of such payment; provided, however,
-------- -------
that, except as otherwise provided in Section 10.02, interest represented by
-------------
Coupons shall be payable only upon presentation and surrender of such Coupons at
an office or agency located outside the United States. Notwithstanding the
foregoing, in case a Bearer Security of any series is surrendered at the office
or agency of the Company in a Place of Payment in respect of such series in
exchange for a Registered Security of the same series and with like terms and
conditions after the close of business at such office or agency on or after (i)
any Regular Record Date and before the opening of business at such office or
agency on the relevant Interest Payment Date, or (ii) any Special Record Date
and before the opening of business at such office or agency on the related
proposed date for payment of Defaulted Interest, such Bearer Security shall be
surrendered without the Coupon relating to such Interest Payment Date or
proposed date for 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, will 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 will be payable only
to the Holder of such Coupon when due in accordance with the provisions of this
Indenture.
Whenever any Registered Securities or Bearer Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
Notwithstanding the foregoing, except as otherwise specified with
respect to the Securities of any series pursuant to Section 3.01, any Permanent
------------
Global Security representing Securities of such series shall be exchangeable
only as provided in this
31
paragraph. If the beneficial owners of interests in such Permanent Global
Security are entitled to exchange such interests for definitive Securities of
such series, as specified with respect to the Securities of such series pursuant
to Section 3.01, 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 aggregate principal amount equal
to the principal amount of such Permanent Global Security, executed by the
Company. On or after such date, any such beneficial owner shall be entitled to
delivery, without charge (except as set forth in this paragraph), of the
aggregate principal amount of definitive Securities of such series in exchange
for the portion of the Permanent Global Security with respect to which it is
such beneficial owner, of authorized denominations and with like terms and
provisions as the portion of such Permanent Global Security to be exchanged. The
definitive Securities to be delivered in exchange for such portion shall, unless
the Securities of such series are not issuable as both Registered Securities and
Bearer Securities, be definitive Registered Securities or definitive Bearer
Securities, or any combination thereof, as requested on behalf of such
beneficial owner, or shall, if the Securities of such series are issuable only
as Registered Securities or only as Bearer Securities, be definitive Registered
Securities or definitive Bearer Securities, as the case may be. On or after the
earliest date on which interests in such Permanent Global Security may be so
exchanged, upon 30 days' notice to the Trustee by Euro-clear or CEDEL, as the
case may be, and upon surrender of such Permanent Global Security by the
Depositary to the Trustee, as the Company's agent for such purpose, for exchange
in whole or from time to time in part, the Trustee shall (1) endorse such
Permanent Global Security to reflect the reduction of its principal amount by an
amount equal to the aggregate principal amount of such definitive Securities,
(2) cause the terms of such Securities to be entered on the definitive Security
or Securities to be exchanged therefor and the Coupons, if any, appertaining
thereto, (3) manually authenticate such definitive Securities, (4) subject to
and in compliance with the requirements of Section 3.03, deliver such definitive
------------
Securities to the Holder thereof and (5) unless such Permanent Global Security
shall have been canceled in accordance with Section 3.09, redeliver such
------------
Permanent Global Security to the Depositary, as the case may be; 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 such series to
be redeemed and ending on the relevant Redemption Date. If a Registered Security
is issued in exchange for any portion of a Permanent Global Security after the
close of business at the office or agency where such exchange occurs on (i) any
Regular Record Date and before the opening of business at such office or agency
on the relevant Interest Payment Date, or (ii) any Special Record Date and
before the opening of business at such office or agency on the related proposed
date for payment of Defaulted Interest, interest or Defaulted Interest, as the
case may be, will not be payable on such Interest Payment Date or proposed date
for payment, as the case may be, in respect of such
32
Registered Security, but will 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 Permanent Global Security is payable
in accordance with the provisions of this Indenture. Unless otherwise specified
in such Permanent Global Security, any exchange thereof or of a portion thereof
shall be made free of charge to the beneficial owners of such Permanent Global
Security, except that a Person receiving definitive Securities must bear the
cost of insurance, postage, transportation and the like in the event that such
Person does not take delivery of such definitive Securities in person at the
offices of Euro-clear or CEDEL. Until exchanged in full as hereinabove provided,
any Permanent Global Security of any series shall in all respects be entitled to
the same benefits under this Indenture as definitive Securities of such series
and with like terms and conditions authenticated and delivered hereunder. Any
definitive Bearer Security authenticated and delivered by the Trustee in
exchange for a portion of a Permanent Global Security shall not bear a Coupon in
respect of any interest which shall theretofore have been duly paid to Euro-
clear or CEDEL as provided in Section 3.07, and any Coupon in respect thereof
------------
shall be canceled by the Trustee and destroyed in accordance with Section 3.09.
------------
All Securities issued upon registration of transfer of or in exchange
for Securities shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered for such exchange or registration of transfer.
Unless otherwise specified with respect to the Securities of a series
as contemplated by Section 3.01, if at any time a Depositary for any Securities
------------
of such series represented by a Global Security which is a Registered Security
notifies the Company that it is unwilling or unable to continue as Depositary
for such Securities or if at any time a Depositary for any Securities of such
series represented by a Global Security which is a Registered Security shall no
longer be eligible under the last paragraph of Section 3.03 or if an Event of
------------
Default with respect to such Securities has occurred and is continuing, the
Company shall appoint a successor Depositary with respect to the Securities of
such series. If a successor Depositary for such Securities is not appointed by
the Company within 90 calendar days after the Company receives such notice or
becomes aware of such ineligibility or if such Event of Default shall be
continuing, such Securities shall, notwithstanding the terms of the Securities
of such series established pursuant to Section 3.01, no longer be represented by
------------
a Global Security and the Company will execute, and the Trustee, upon receipt of
a Company Order for the authentication and delivery of definitive Registered
Securities of such series, will authenticate and deliver, in exchange for such
Global Security, Registered Securities of such series in definitive form in
authorized denominations, in an aggregate principal amount equal to the
principal
33
amount of each Global Security previously delivered to such Depositary and
having like terms and conditions.
The Company may at any time and in its sole discretion determine that
the Securities of any series issued in the form of a Global Security which is a
Registered Security shall no longer be represented by such Global Security. In
such event the Company will execute, and the Trustee, upon receipt of a Company
Order for the authentication and delivery of definitive Registered Securities of
such series, will authenticate and deliver, in exchange for such Global
Security, Registered Securities of such series in definitive form in authorized
denominations, in an aggregate principal amount equal to the principal amount of
the Securities no longer to be represented by such Global Security and having
like terms and conditions.
If specified by the Company with respect to a series of Securities
pursuant to Section 3.01, the Depositary for any Securities of such series
------------
represented by a Global Security which is a Registered Security may surrender
such Global Security in exchange in whole or in part for Registered Securities
of such series of like terms and conditions and in definitive form on such terms
as are acceptable to the Company and such Depositary. At such Depositary's
request, the Company shall thereupon execute, and the Trustee shall authenticate
and deliver, (i) to each Person specified by such Depositary a new Registered
Security or Securities of the same series, of like terms and conditions and of
any authorized denomination as requested by such Person in aggregate principal
amount equal to and in exchange for such Person's beneficial interest in the
Global Security so surrendered and (ii) to such Depositary a new Global Security
which is a Registered Security of like terms and conditions and in a
denomination equal to the difference, if any, between the principal amount of
the surrendered Global Security and the aggregate principal amount of Registered
Securities delivered to each such Person as provided in clause (i).
Every Registered Security of a series presented or surrendered for
registration of transfer or exchange shall (if so required by the Company or the
Trustee) be duly endorsed, or be accompanied by a written instrument of transfer
in form satisfactory to the Company, the Trustee and the Security Registrar in
respect of such series duly executed, by the Holder thereof or his attorney duly
authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities (except as otherwise set forth in Section 3.04 with
------------
respect to exchanges of Temporary Global Securities or portions thereof or in
this Section with respect to exchanges of Permanent Global Securities or
portions thereof) but the Company may require payment of a sum sufficient to
cover any tax or other
34
governmental charge that may be imposed in connection with any registration of
transfer or exchange of Securities, other than exchanges pursuant to Sections
--------
3.04, 9.06 and 11.07 or conversions pursuant to Section 15.01 not involving any
---- ---- ----- -------------
transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange any Security of any series during a period beginning at the
opening of business 15 days before (A) if Securities of such series are issuable
only as Registered Securities, the day of the mailing of a notice of redemption
of Securities of such series selected for redemption hereunder and ending at the
close of business on the day of such mailing and (B) if Securities of such
series are issuable as Bearer Securities, the day of the first publication of
the relevant notice of redemption or, if earlier, and if Securities of such
series are also issuable as Registered Securities and there is no publication,
the day of the mailing of the relevant notice of redemption and in either case
ending at the close of business on the day of such publication or mailing, or
(ii) to register the transfer of or exchange any Registered Security of such
series so selected for redemption in whole or in part, except the unredeemed
portion of any Registered Security being redeemed in part, or (iii) to exchange
any Bearer Security of such series so selected for redemption except that such a
Bearer Security may be exchanged for a Registered Security of such series and
like tenor, provided that such Registered Security shall be simultaneously
--------
surrendered for redemption.
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities and
----------------------------------------------------
Coupons.
-------
If any mutilated Security or a Security with a mutilated Coupon is
surrendered to the Trustee, or if the Company and the Trustee receive evidence
to their satisfaction of the destruction, loss or theft of any Security or
Coupon, and there is delivered to the Company and the Trustee such security or
indemnity as may be required by them to save each of them and any agent 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 its request the Trustee shall authenticate and deliver, in
exchange for any such mutilated Security or in lieu of any such destroyed, lost
or stolen Security, or in exchange for the Security to which a mutilated,
destroyed, lost or stolen Coupon appertains (with all appurtenant Coupons not
mutilated, destroyed, lost or stolen), a new Security of the same series, in a
like principal amount, of a like Stated Maturity and with like terms and
conditions and bearing a number not contemporaneously outstanding with Coupons
corresponding to the Coupons, if any, appertaining to such mutilated, destroyed,
lost or stolen Security or to the Security to which such mutilated, destroyed,
lost or stolen Coupon appertains.
35
In case any such 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
(without surrender thereof except in the case of a mutilated Security or Coupon)
if the applicant for such payment shall furnish to the Company and the Trustee
such security or indemnity as may be required by them to save each of them and
any agent of them harmless, and in case of destruction, loss or theft, evidence
satisfactory to the Company and such Trustee and any agent of either of them of
the destruction, loss or theft of such Security and the ownership thereof;
provided, however, that the principal of (and premium, if any) and interest, if
-------- -------
any, on Bearer Securities shall, except as otherwise provided in Section 10.02,
-------------
be payable only at an office or agency located outside the United States and,
unless otherwise specified as contemplated by Section 3.01, any interest on
------------
Bearer Securities shall be payable only upon presentation and surrender of the
Coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series, with its Coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security of
such series or in exchange for any mutilated Security of such series, or in
exchange for a Security to which a mutilated, destroyed, lost or stolen Coupon
appertains, shall constitute an original additional contractual obligation of
the Company, whether or not the destroyed, lost or stolen Security and its
Coupons, if any, 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 the Coupons, if any, appertaining thereto duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities or Coupons.
SECTION 3.07. Payment of Interest; Interest Rights Preserved.
----------------------------------------------
Interest, if any, on any Registered Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name such Registered Security (or one or more Predecessor
Securities) is registered on the Regular Record Date for such interest specified
as provided in Section 3.01.
------------
36
Except as otherwise specified with respect to the Securities of a
series as contemplated by Section 3.01, interest, if any, on the Securities of
------------
each series shall be computed on the basis of a 360-day year of twelve thirty-
day months.
Unless otherwise provided with respect to the Securities of any series
in accordance with Section 3.01, and subject to Sections 3.04(b) and 3.05 and
------------ ---------------- ----
the next following paragraph, payment of interest may be made (i) by check
mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register in respect of Securities of such series, or (ii)
at the option of the Company, (1) in the case of a Bearer Security, by transfer
to an account maintained by the payee with a bank located outside the United
States, or (2) in the case of a Registered Security, by transfer to an account
maintained by the payee with a bank located inside the United States.
Unless otherwise provided with respect to the Securities of any series
in accordance with Section 3.01, every Permanent Global Security of such series
------------
will provide that interest, if any, payable on any Interest Payment Date will be
paid to each of Euro-clear and CEDEL with respect to that portion of such
Permanent Global Security held for its account by the Depositary. Each of Euro-
clear and CEDEL will in such circumstances credit the interest, if any, received
by it in respect of such Permanent Global Security to the accounts of the
beneficial owners thereof.
Any interest on any Registered Security of any series which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall forthwith cease to be
------------------
payable to the Holder on the relevant Regular Record Date by virtue of having
been such Holder; and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in paragraph (1) or paragraph (2) below:
------------- --------------
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Registered Securities of such series (or
their respective Predecessor Securities of such series) are registered at
the close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Registered Security of such series and
the date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money in the currency or composite
currency in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 3.01 with respect to Securities of
------------
such series) equal to the aggregate amount proposed to be paid in respect
of such Defaulted Interest or shall make arrangements satisfactory to the
37
Trustee for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this paragraph provided.
Thereupon the Trustee shall fix a Special Record Date for the payment of
such Defaulted Interest which shall be not more than 15 nor less than 10
days prior to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date and,
in the name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class, postage prepaid, to each Holder of a
Registered Security of such series at the address of such Holder as it
appears in the Security Register in respect of the Securities of such
series 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 in each Place of Payment with respect to the Securities of such
series located in the United States, 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 Persons in whose names the Registered
Securities of such series (or their respective Predecessor Securities) are
registered on such Special Record Date and shall no longer be payable
pursuant to the following paragraph (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 the Registered Securities of such series 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 paragraph, such payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section and Section 3.05,
------------
each Security delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 3.08. Persons Deemed Owners.
---------------------
The Company, the Trustee and any Paying Agent, the Security Registrar
and any other agent of the Company or the Trustee in respect of the Securities
of any series may treat the Person in whose name any Registered Security of such
series is
38
registered as the owner of such Registered Security for the purpose of receiving
payment of principal of (and premium, if any) and (subject to Sections 3.05 and
-------------
3.07) interest, if any, on such Security and for all other purposes whatsoever,
----
whether or not such Security be overdue, and neither the Company nor the Trustee
nor any Paying Agent, Security Registrar or other agent of the Company or the
Trustee in respect of the Securities of such series shall be affected by notice
to the contrary. Title to any Bearer Security and any Coupons appertaining
thereto shall pass by delivery. The Company, the Trustee and any Paying Agent
and any other agent of the Company or the Trustee in respect of the Securities
of any such series may treat the Holder of any Bearer Security and the Holder of
any Coupon as the absolute owner of such Bearer Security or Coupon for the
purpose of receiving payment of principal of (and premium, if any) and (subject
to Section 3.07) interest, if any, on such Security and for all other purposes
------------
whatsoever, whether or not such Security or Coupon be overdue, and neither the
Company nor the Trustee nor any Paying Agent or other agent of the Company or
the Trustee in respect of the Securities of such series shall be affected by any
notice to the contrary. All such payments so made to any such Person or Holder,
as the case may be, shall be valid and, to the extent of the sum or sums so
paid, effectual to satisfy and discharge the liability for moneys payable upon
such Security or Coupon.
Notwithstanding the foregoing, except as otherwise specified with
respect to the Securities of a series as contemplated by Section 3.01, and
------------
except as provided in Sections 2.03 and 3.07 with respect to the payment of
------------- ----
principal of (or premium, if any) or interest, if any, on a Permanent Global
Security, the Company, the Trustee and any agent of the Company and the Trustee
shall treat a Person having a beneficial interest in a Permanent Global Security
as a Holder of such principal amount of Outstanding Securities represented by
such Permanent Global Security as shall be specified in a written statement of
such Holder or, in the case of a Permanent Global Security that is a Bearer
Security, of Euro-clear or CEDEL, which is produced to the Trustee by such
Holder or by Euro-clear or CEDEL, as the case may be.
None of the Company, the Trustee and any Paying Agent, the Security
Registrar and any other agent of the Company or the Trustee 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 3.09. Cancellation.
------------
All Securities and Coupons surrendered for payment, registration of
transfer, exchange, conversion, redemption or repayment, or delivered in
satisfaction of
39
any sinking fund payment or analogous payment, shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee for cancellation and
shall be promptly canceled by it. The Company may at any time deliver to the
Trustee for cancellation any Securities previously authenticated and delivered
hereunder or any Coupons previously delivered hereunder which the Company may
have acquired in any manner whatsoever and may deliver to the Trustee (or to any
other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold,
and all Securities and Coupons so delivered shall be promptly canceled by the
Trustee. No Security shall be authenticated in lieu of or in exchange for any
Securities canceled as provided in this Section, except as expressly permitted
by this Indenture. All canceled Securities and Coupons held by the Trustee shall
be destroyed by it and the Trustee shall deliver a certificate of such
destruction to the Company. In the case of any Temporary Global Security, which
shall be destroyed if the entire aggregate principal amount of the Securities
represented thereby has been exchanged, the certificate of such destruction
shall state that all certificates required pursuant to Section 3.04 hereof,
------------
substantially in the form of Exhibit B hereto, to be given by Euro-clear or
CEDEL, have been duly presented to the Trustee by Euro-clear or CEDEL, as the
case may be. Permanent Global Securities shall not be cancelled until exchanged
in full for other Permanent Global Securities or definitive Securities or until
payment thereof is made in full.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 4.01. Satisfaction and Discharge of Indenture.
---------------------------------------
This Indenture shall cease to be of further effect with respect to any
series of Securities, and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture with respect to such series, when
(1) any of the following shall occur:
(A) all Securities of such series theretofore authenticated and
delivered and all Coupons, if any, appertaining thereto (other than
(i) Coupons appertaining to Bearer Securities surrendered for exchange
for Registered Securities and maturing after such exchange, the
surrender of which is not required or has been waived as provided in
Section 3.05, (ii) any Securities or Coupons, if any, appertaining
------------
thereto which have been destroyed, lost or stolen and which have been
replaced or paid as provided
40
in Section 3.06, (iii) Coupons appertaining to Securities and called
------------
for redemption and maturing after the relevant Redemption Date, the
surrender of which is not required as provided in Section 11.06, and
-------------
(iv) Securities and Coupons money for the payment of which 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 10.03) have been delivered to the
-------------
Trustee for cancellation; or
(B) all Securities of such series and all unmatured Coupons, if
any, 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 1 year, or
(iii) are to be called for redemption within 1 year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited or
caused to be deposited with the Trustee, as trust funds in trust for the
purpose, an amount sufficient to pay and discharge the entire indebtedness
on such Securities of such series and all Coupons, if any, appertaining
thereto not theretofore delivered to the Trustee for cancellation, for
principal (and premium, if any) and interest, if any, to the date of such
deposit (in the case of Securities which have become due and payable), or
to the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company in respect of the Securities of such series and
the Coupons, if any, appertaining thereto; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture
in respect of such series have been complied with.
41
Notwithstanding the satisfaction and discharge of this Indenture with respect to
any series of Securities, so long as any Security of such series remains
Outstanding, the obligations of the Company to the Trustee under Section 6.07
------------
and, if money shall have been deposited with the Trustee pursuant to subclause
(B) of clause (1) of this Section or if money or Government Obligations shall
have been deposited with or received by the Trustee pursuant to Section 4.03 or
------------
10.10, the obligations of the Trustee under Section 4.02 and the last paragraph
----- ------------
of Section 10.03 with respect to such series shall survive and the remaining
-------------
rights of conversion of any Securities of such series, if convertible, shall
continue in full force and effect pursuant to the terms set forth in Article
-------
Fifteen herein.
-------
SECTION 4.02. Application of Trust Money.
--------------------------
(a) Subject to the provisions of Section 4.02(c) and the last
---------------
paragraph of Section 10.03, all money or Government Obligations deposited with
-------------
the Trustee pursuant to Section 4.01, 4.03 or 10.10 or the principal of or
------------ ---- -----
interest on such Government Obligations shall be held in trust and applied by
the Trustee, in accordance with the provisions of this Indenture and of the
Securities of the series to which such money or Government Obligations relate
and the Coupons, if any, appertaining thereto, to the payment, either directly
or through any Paying Agent (including the Company acting as its own Paying
Agent), as the Trustee may determine, to the Persons entitled thereto, of the
principal (and premium, if any) and interest, if any, for the payment of which
such money or Government Obligations have been deposited with the Trustee or to
make mandatory sinking fund payments or analogous payments as contemplated by
Section 4.03 or 10.10, but such money or proceeds need not be segregated from
------------ -----
other funds except to the extent required by law.
(b) The Company shall pay and shall indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against Government Obligations
deposited pursuant to Section 4.03 or 10.10 or the principal of or interest on
------------ -----
such Government Obligations other than any payable by or on behalf of the
Holders.
(c) The Trustee shall deliver or pay to the Company from time to time
upon Company Request any money or Government Obligations (or the principal of or
interest on such Government Obligations) held by it as provided in Section 4.01,
------------
4.03 or 10.10 which, in the opinion of a nationally recognized firm of
---- -----
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are then in excess of the amount thereof which then
would have been required to be deposited for the purpose for which such money or
Government Obligations were deposited or received. The principal of and
interest on the Government Obligations deposited in trust pursuant to Sections
--------
4.03(1) and 10.10(1), to the extent that such principal and interest
------- --------
42
are not required for a period of time for the payment of the principal of (and
premium, if any) and interest, if any, on the Securities with respect to which
such Government Obligations relate, shall, so far as practicable, be invested as
agreed with the Trustee in Government Obligations of such maturities (six months
or less) as necessary to ensure that funds are available to pay the principal of
(and premium, if any) and interest, if any, on such Securities and the Trustee,
upon receipt thereof, shall pay to the Company the income from such investments.
SECTION 4.03. Defeasance and Discharge of Securities of any Series.
----------------------------------------------------
If this Section 4.03 has been specified in accordance with Section
-------
3.01 to be applicable to Securities of any series, then notwithstanding Section
---- -------
4.01, the Company shall be deemed to have paid and discharged the entire
----
indebtedness on all the Outstanding Securities of such series and the Coupons,
if any, appertaining thereto, the provisions of this Indenture as it relates to
such Outstanding Securities and Coupons (except as to the rights of Holders of
Outstanding Securities of such series and Coupons, if any, appertaining thereto
to receive, from the trust funds described in subparagraph (1), payment of the
----------------
principal of (and premium, if any) and any installment of principal of (and
premium, if any) or interest, if any, on such Securities on the Stated Maturity
of such principal or installment of principal or interest or any mandatory
sinking fund payments or analogous payments applicable to the Securities of such
series on the day on which such payments are due and payable in accordance with
the terms of this Indenture and of such Securities, the Company's obligations
with respect to such Securities under Sections 3.05, 3.06, 10.02, 10.03 and
------------- ---- ----- -----
15.01 the rights, powers, trusts, duties and immunities of the Trustee
-----
hereunder) shall no longer be in effect, and the Trustee, at the expense of the
Company, shall, upon Company Request, execute proper instruments acknowledging
the same, provided that the following conditions have been satisfied:
(1) with reference to this Section 4.03, the Company has deposited or
caused to be deposited with the Trustee (or another trustee satisfying the
requirements of Section 6.09), irrevocably (irrespective of whether the
------------
conditions in subparagraphs (2), (3), (4) (if applicable) or (5) have been
----------------- --- --- ---
satisfied, but subject to the provisions of Section 4.02(c) and the last
---------------
paragraph of Section 10.03), as trust funds in trust, specifically pledged
-------------
as security for, and dedicated solely to, the benefit of the Holders of the
Securities of such series and the Coupons, if any, appertaining thereto,
(A) money in an amount in the currency or composite currency in which the
Securities of such series are payable (except as otherwise specified with
respect to the Securities of such series pursuant to Section 3.01), or (B)
------------
Government Obligations which through the payment of interest and principal
in respect thereof in accordance with their terms will provide not later
than the
43
opening of business on the due date of any payment referred to in clause
(i) or (ii) of this subparagraph (1) money in an amount, or (C) a
combination thereof, sufficient, 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 (i) the principal of
(and premium, if any) and each installment of principal (and premium, if
any) and interest, if any, on such Outstanding Securities and Coupons on
the Stated Maturity of such principal or installment of principal or
interest, (ii) any mandatory sinking fund payments or analogous payments
applicable to the Securities of such series on the day on which such
payments are due and payable in accordance with the terms of this Indenture
and of such Securities and (iii) any repayment of the Securities of such
series at the option of a Holder of any of such Securities on the date such
repayment is due and payable;
(2) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound;
(3) no Event of Default or event which with the giving of notice or
lapse of time, or both, would become an Event of Default with respect to
the Securities of such series shall have occurred and be continuing on the
date of such deposit and no Event of Default under Section 5.01(d) or
---------------
5.01(e) or event which with the giving of notice or lapse of time, or both,
-------
would become an Event of Default under Section 5.01(d) or 5.01(e) shall
--------------- -------
have occurred and be continuing on the 91st day after such date;
(4) if this subparagraph has been specified in accordance with
Section 3.01 to be applicable to the Securities of such series, the Company
------------
has delivered to the Trustee (A) an Opinion of Counsel to the effect that
the Company has received from, or there has been published by, the Internal
Revenue Service a ruling to the effect, or (B) in lieu thereof, but only if
this clause (B) is specified in accordance with Section 3.01 to be
------------
applicable to the Securities of such series, an Opinion of Counsel to the
effect, that Holders of the Securities of such series and the Coupons, if
any, appertaining thereto will not recognize income, gain or loss for
federal income tax purposes as a result of such deposit, defeasance and
discharge and will be subject to federal income tax on the same amount and
in the same manner and at the same times, as would have been the case if
such deposit, defeasance and discharge had not occurred; and
44
(5) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
provided for relating to the defeasance and discharge of the entire
indebtedness on all Outstanding Securities of such series as contemplated
by this Section have been complied with.
ARTICLE FIVE
REMEDIES
SECTION 5.01. 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):
(a) default in the due and punctual payment of any interest upon any
of the Securities of such series as and when the same shall become due and
payable, and continuance of such default for a period of 30 days; or
(b) default in the due and punctual payment of the principal of (and
premium, if any, on) any of the Securities of such series as and when the
same shall become due and payable either at Maturity, by declaration as
authorized by this Indenture, or otherwise; or
(c) failure on the part of the Company to duly observe or perform any
other of the covenants or agreements on the part of the Company in the
Securities of such series or in this Indenture contained (other than a
covenant or agreement a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with or which has expressly
been included in this Indenture solely for the benefit of a series of
Securities other than such series) for a period of 60 days after the date
on which written notice of such failure, requiring the same to be remedied,
shall have been given 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
Securities of such series at the time Outstanding; provided, however, that,
-------- -------
subject to the provisions of Subsections (a), (b) and (c) of Section 6.01
--------------- --- --- ------------
hereof, the Trustee shall not be charged with knowledge of such default
unless the Trustee, in the course of its administration of corporate
trusts, shall have actual knowledge of such default or unless written
notice thereof shall have been given to the Trustee
45
by the Company or by the Holders of not less than 25% in principal amount
of the Outstanding Securities of such series; or
(d) entry of a decree or order by a court having jurisdiction in the
premises for relief in respect of the Company in an involuntary case under
any applicable bankruptcy, insolvency or other similar law now or hereafter
in effect, or appointing a receiver, liquidator, assignee, trustee,
sequestrator (or similar official) of the Company or of any substantial
part of its property, or ordering the winding up or liquidation of its
affairs, and the continuance of any such decree or order unstayed and in
effect for a period of 60 consecutive days; or
(e) commencement by the Company of a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or the consent by the Company to the entry of an order for relief
in an involuntary case under any such law, or the consent by the Company to
the appointment of or taking possession by a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of the Company
or of any substantial part of its property, or the making by the Company of
a general assignment for the benefit of creditors, or the admission by the
Company in writing of its inability generally to pay its debts as they
become due, or the taking of corporate action by the Company in furtherance
of any such action; or
(f) any other Event of Default provided with respect to Securities of
such series.
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
If an Event of Default with respect to Securities of any series then
Outstanding occurs and is continuing, then and in every such case 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, in the case of Securities of such series that are Original
Issue Discount Securities, such portion of the principal of such Securities as
may be specified in the terms thereof) to be due and payable immediately, by a
notice in writing to the Company (and to the Trustee if given by
Securityholders), and upon any such declaration such principal (or, as the case
may be, such portion) shall become immediately due and payable.
At any time after such a declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter in this Article provided, the Holders of a majority
in principal
46
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
sufficient to pay in the currency or composite currency in which the
Securities of such series are payable (except as otherwise specified with
respect to the Securities of such series pursuant to Section 3.01)
------------
(A) all overdue installments of interest on all Securities of
such series,
(B) the principal of (and premium, if any, on) any securities of
such series which have become due otherwise than by such declaration
of acceleration and interest thereon at the rate borne by such
Securities (or, in the case of Securities of such series that are
Original Issue Discount Securities, the Yield to Maturity in respect
thereof),
(C) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest at the rate borne by
such Securities (or, in the case of Securities of such series that are
Original Issue Discount Securities, the Yield to Maturity in respect
thereof), and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of such series,
other than the non-payment of the principal of Securities of such series
which have become due solely by such acceleration, have been cured or
waived as provided in Section 5.13.
------------
No such recission shall affect any subsequent default or impair any
right consequent thereon.
47
SECTION 5.03. 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
any Security of any series when such interest becomes due and payable and
such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium,
if any, on) any Security of any series at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of the Securities of such series and the Coupons, if any, appertaining
thereto, the whole amount then due and payable on such Securities and Coupons
for principal (and premium, if any) and interest, if any, with interest upon the
overdue principal (and premium, if any) and, to the extent that payment of such
interest shall be legally enforceable, upon overdue installments of interest, at
the rate borne by such Securities (or in the case of Securities of such series
that are Original Issue Discount Securities, the Yield to Maturity in respect
thereof); and, in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, 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 Coupons and
collect the moneys adjudged or decreed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon such Securities
and Coupons, 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 the Securities of such
series and the Coupons, if any, 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 in aid of the exercise of any power granted
herein, or to enforce any other proper remedy.
48
SECTION 5.04. 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 and the Coupons, if any, appertaining thereto or the
property of the Company or of such other obligor or their creditors, the Trustee
(irrespective of whether the principal of the Securities of such series shall
then be due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the Company
for the payment of overdue principal or interest) shall be entitled and
empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal (or,
in the case of Securities of such series that are Original Issue Discount
Securities, such portion of the principal of such Securities as may be
specified in the terms thereof) (and premium, if any) and interest owing
and unpaid in respect of the Securities of such series and the Coupons, if
any, 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 and counsel) and of
the Holders of the Securities of such series and the Coupons, if any,
appertaining thereto allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, liquidator, sequestrator (or other similar
official) in any such judicial proceeding is hereby authorized by each such
Holder to make such payments to the Trustee, and in the event that the Trustee
shall consent to the making of such payments directly to such Holders, 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 6.07.
------------
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 Coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities of any series or the rights of any Holder thereof, or
to authorize the Trustee to vote in respect of the claim of any Holder in any
such proceeding.
49
SECTION 5.05. Trustee May Enforce Claims Without Possession of
------------------------------------------------
Securities.
----------
All rights of action and claims under this Indenture or the Securities
of any series or the Coupons, if any, appertaining thereto may be prosecuted and
enforced by the Trustee without the possession of any of the Securities of such
series or any of such 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 of
judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Holders of the Securities and Coupons in respect
of which such judgment has been recovered.
SECTION 5.06. Application of Money Collected.
------------------------------
Any money collected by the Trustee pursuant to this Article with
respect to the Securities of any series or the Coupons, if any, appertaining
thereto shall be applied in the following order, at the date or dates fixed by
the Trustee and, in case of the distribution of such money on account of
principal (or premium, if any) or interest, if any, upon presentation of the
Securities or Coupons, or both, as the case may be, in respect of which such
money was collected, and the notation thereon of the payment if only partially
paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
-------
6.07;
----
SECOND: To the payment of the amounts then due and unpaid upon the
Securities of such series and the Coupons, if any, appertaining thereto for the
principal (and premium, if any) and interest, if any, in respect of which or for
the benefit of which such money has been collected, ratably, without preference
or priority of any kind, according to the amounts due and payable on such
Securities and Coupons, for principal (and premium, if any) and interest, if
any, respectively; and
THIRD: To the payment of the remainder, if any, to the Company or to
whomsoever may be lawfully entitled to receive the same, or as a court of
competent jurisdiction may determine.
50
SECTION 5.07. Limitation on Suits.
-------------------
No Holder of any Security of any series or any Coupon 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 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 reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60 day period by the Holders of a majority
in principal amount of the Outstanding Securities of such series;
it being understood and intended that no one or more Holders of Securities of
any series or Coupons, if any, appertaining thereto shall have any right in any
manner whatever by virtue of, or by availing of, any provision of this Indenture
to affect, disturb or prejudice the rights of any other Holders of Securities of
such series or Coupons, if any, appertaining thereto or to obtain or to seek to
obtain priority or preference over any other such Holders or to enforce any
right under this Indenture, except in the manner herein provided and for the
equal and ratable benefit of all the Holders of Securities of such series and
Coupons, if any, appertaining thereto.
51
SECTION 5.08. Unconditional Right of Securityholders to Receive
-------------------------------------------------
Principal, Premium and Interest and to Convert
----------------------------------------------
Securities.
----------
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 (and premium, if any) and (subject to
Section 3.07) interest, if any, on such Security on the respective Stated
------------
Maturities expressed in such Security or Coupon (or, in the case of redemption,
on the Redemption Date), to require conversion of such Security, if convertible,
and to institute suit for the enforcement of any such payment and any such right
to convert and such right shall not be impaired without the consent of such
Holders.
SECTION 5.09. Restoration of Rights and Remedies.
----------------------------------
If the Trustee or the Holder of any Security or 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 the Holders of Securities and Coupons, if any,
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 such Holders shall continue as though no such
proceeding had been instituted.
SECTION 5.10. Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or Coupons in the
last paragraph of Section 3.06, no right or remedy herein conferred upon or
------------
reserved to the Trustee or to the Holders of Securities or Coupons is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereinafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 5.11. Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder of any Security
of any series or any Coupon appertaining thereto to exercise any right or remedy
accruing upon any Event of Default in respect of the Securities of such series
shall impair any such
52
right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders of Securities or Coupons may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or by such
Holders, as the case may be.
SECTION 5.12. Control by Securityholders.
--------------------------
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee with respect to the
Securities of such series, provided that
--------
(1) such direction shall not be in conflict with any rule of law or
this Indenture, expose the Trustee to personal liability or be unduly
prejudicial to Holders not joining therein, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
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 may on behalf of the Holders of all
Securities of such series and all Coupons, if any, appertaining thereto waive
any past default hereunder with respect to Securities of such series and its
consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest, if any, on any Security of such series, or
(2) in respect of a covenant or provision hereof which under Article
-------
Nine cannot be modified or amended without the consent of the Holder of
----
each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
53
SECTION 5.14. Undertaking for Costs.
---------------------
All parties to this Indenture agree, and each Holder of any Security
of any series or any Coupon appertaining thereto by his acceptance thereof shall
be deemed to have agreed, that any court may in its discretion require, in any
suit for the enforcement of any right or remedy under this Indenture, or in any
suit against the Trustee for any action taken or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to pay the costs of
such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section 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 the
Outstanding Securities of any series or to any suit instituted by any Holder of
a Security or Coupon for the enforcement of the payment of the principal of (or
premium, if any) or interest, if any, on any Security or the payment of any
Coupon on or after the respective Stated Maturities expressed in such Security
or Coupon (or, in the case of redemption, on or after the Redemption Date).
SECTION 5.15. Waiver of Stay or Extension Laws.
--------------------------------
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
SECTION 5.16. Judgment Currency.
-----------------
The Company agrees, to the extent that it may effectively do so under
applicable law, that (i) if for the purpose of obtaining judgment in any court
it is necessary to convert a sum due in respect of the principal of (or premium,
if any) or interest, if any, on the Securities of any series in a Foreign
Currency into Dollars, the rate of exchange used shall be the rate of exchange
stated as the New York selling rate for such Foreign Currency into Dollars in
The Wall Street Journal (Eastern Edition) for the Business Day preceding that on
-----------------------
which final unappealable judgment is given (or, if by reason of the temporary or
permanent suspension of publication of such newspaper or of such information in
such newspaper, such exchange rate is not given, then such rate of
54
exchange as is stated for such day in such comparable newspaper as the Trustee
shall select) and (ii) the Company's obligations under this Indenture to make
payments in respect of such Securities or the Coupons, if any, appertaining
thereto, in a Foreign Currency (A) shall not be discharged or satisfied by any
tender, or any recovery pursuant to any judgment, in any currency other than
such Foreign Currency, except to the extent that such tender or recovery shall
result in the payee being able to receive the full amount of such Foreign
Currency expressed to be payable in respect of such payments, and (B) shall be
enforceable as an alternative or additional cause of action for the purpose of
recovering in such Foreign Currency the amount, if any, by which such tender or
recovery shall fall short of the amount of such Foreign Currency so expressed to
be payable and shall not be affected by judgment being obtained for any other
sum due under this Indenture.
ARTICLE SIX
THE TRUSTEE
SECTION 6.01. Certain Duties and Responsibilities.
-----------------------------------
(a) Except during the continuance of an Event of Default in respect
of the Securities of any series,
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture; but in the case of any such certificates or
opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the requirements
of this Indenture.
(b) In case an Event of Default in respect of the Securities of any
series has occurred and is continuing, the Trustee shall with respect to
such Securities exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as
a prudent man would exercise or use under the circumstances in the conduct
of his own affairs.
55
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that
(1) this Subsection shall not be construed to limit the effect
of Subsection (a) of this Section;
--------------
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
and
(3) 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 the direction of the Holders of a majority in
principal amount (or such lesser principal amount as is provided for
by this Indenture) of the Outstanding Securities of any series
relating to the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee, under this Indenture, in respect of
the Securities of such series.
(d) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the exercise of any
of its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(e) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of
this Section.
SECTION 6.02. Notice of Default.
-----------------
Within 90 days after the occurrence of any default hereunder in
respect of the Securities of any series, the Trustee shall give or transmit, in
the manner and to the extent provided in Sections 1.06 and, if applicable,
-------------
7.03(c)(2), notice of such default hereunder known to the Trustee, unless such
----------
default shall have been cured or waived; provided, however, that, except in the
-------- -------
case of a default in the payment of the principal of (or premium, if any) or
interest, if any, on any Security of such series or the making of any sinking
fund payment in respect of the Securities of such series when due, the Trustee
shall be protected in withholding such notice if and so long as the board of
directors, the executive committee or a trust committee of directors and/or
Responsible Officers of the
56
Trustee in good faith determine that the withholding of such notice is in the
interests of the Holders of Securities of such series; and provided, further,
-------- -------
that in the case of any default of the character specified in Section 5.01(c) no
---------------
such notice to Holders of Securities of such series shall be given until at
least 60 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 6.03. Certain Rights of Trustee.
-------------------------
Subject to the provisions of Section 6.01:
------------
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture or other paper or document believed by it to be genuine and
to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Securityholders pursuant to this Indenture, unless such
Securityholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
57
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture or other paper or document but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall determine to make
such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or
attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder; and
(h) the Trustee shall not be liable for any action taken, suffered or
omitted to be taken by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it
by this Indenture.
SECTION 6.04. Not Responsible for Recitals or Issuance of Securities.
------------------------------------------------------
The recitals contained herein and in the Securities of any series,
except the certificates of authentication, and in any Coupons shall be taken as
the statements of the Company, and the Trustee assumes no responsibility for
their correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities of any series. The Trustee
shall not be accountable for the use or application by the Company of Securities
of any series or the proceeds thereof.
SECTION 6.05. May Hold Securities.
-------------------
The Trustee, any Paying Agent, any Security Registrar or any other
agent of the Company or the Trustee, in its individual or any other capacity,
may become the owner or pledgee of Securities of any series and, subject to
Sections 6.08 and 6.13, may otherwise deal with the Company with the same rights
------------- ----
it would have if it were not Trustee, Paying Agent, Security Registrar or such
other agent.
58
SECTION 6.06. Money Held in Trust.
-------------------
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
provided in Section 4.02 or as otherwise agreed with the Company.
------------
SECTION 6.07. Compensation and Reimbursement.
------------------------------
(a) The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or
bad faith on its part, arising out of or in connection with the
acceptance or administration of this trust or the performance of its
duties hereunder, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
(b) As security for the performance of the obligations of the Company
under this Section, the Trustee shall have a prior claim to the Securities
of a 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 or
interest on particular Securities.
59
SECTION 6.08. Disqualification; Conflicting Interests.
---------------------------------------
The Trustee shall comply with the provisions of Section 310(b) of the
Trust Indenture Act. The Indenture dated as of July 15, 1988, as amended,
between the Company and the Trustee (formerly known as Chemical Bank, as
successor by merger to Manufacturers Hanover Trust Company) shall be excluded
from the operation of such Section 310(b) of the Trust Indenture Act to the
extent permitted thereby.
SECTION 6.09. Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America or of any State, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $5,000,000, subject to
supervision or examination by Federal or State authority. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time the Trustee shall cease
to be eligible in accordance with the provisions of this Section, it shall
resign immediately in respect of the Securities of all series in the manner and
with the effect hereinafter specified in this Article.
SECTION 6.10. Resignation and Removal; Appointment of Successor.
-------------------------------------------------
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 6.11.
------------
(b) The Trustee may resign at any time in respect of the Securities
of one or more series by giving written notice thereof to the Company. If
an instrument of acceptance by a successor Trustee 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 in respect of the
Securities of such series.
(c) The Trustee may be removed at any time in respect of the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series, delivered to the
Trustee and to the Company.
60
(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.08 after
------------
written request therefor by the Company or by any Securityholder who
has been a bona fide Holder of a Security for at least 6 months, or
(2) the Trustee shall cease to be eligible under Section 6.09
------------
and shall fail to resign after written request therefor by the Company
or by any such Securityholder, or
(3) the Trustee shall become incapable of acting or shall have
entered against it a decree for relief under the Federal bankruptcy
laws or be adjudged a bankrupt or insolvent under applicable law or a
receiver of the Trustee or of its property shall be appointed or any
public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Company, by a Board Resolution, may remove
the Trustee in respect of all Securities or (ii) subject to Section 5.14,
------------
any Holder who has been a bona fide Holder of a Security for at least 6
months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee
in respect of all Securities and the appointment of a successor Trustee or
Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause,
in respect of the Securities of one or more series, the Company, by a Board
Resolution shall promptly appoint a successor Trustee or Trustees (it being
understood that any such successor Trustee may be appointed in respect of
the Securities of any one or more or all of such series and that at any
time there shall be only one Trustee in respect of the Securities of any
one series). If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee in
respect of 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, become the successor Trustee and supersede the successor
Trustee appointed by the Company. If no successor Trustee in respect of
the Securities of any series shall have been so appointed by the Company or
such Holders and accepted appointment in the manner hereinafter provided,
within 60 days after the
61
occurrence of the event as a result of which a successor Trustee may be
appointed, then the Trustee may, or any Holder who has been a bona fide
Holder of a Security of such series for at least 6 months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee in respect of the
Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee in respect of the Securities of any series and each
appointment of a successor Trustee in respect of the Securities of any
series in the manner and to the extent set forth in Section 1.06 and, if
------------
applicable, 7.03(c)(2). Each notice shall include the name of the successor
----------
Trustee in respect of the Securities of such series and the address of its
principal corporate trust office.
SECTION 6.11. Acceptance of Appointment by Successor.
--------------------------------------
In case of the appointment hereunder of a successor Trustee in respect
of all Securities, every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties, of the retiring Trustee; but, on request of the
Company or the successor Trustee, such retiring Trustee shall, upon payment of
its charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee, and shall
duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder. Upon request of any such
successor Trustee, the Company shall execute any and all instruments for more
fully and certainly vesting in and confirming to such successor Trustee all such
rights, powers and trusts.
In case a successor Trustee is appointed in respect of the Securities
of one or more (but not all) series, the Company, the retiring Trustee and each
successor Trustee in respect of the Securities of any such series shall execute
and deliver a supplemental indenture hereto which (1) shall contain such
provisions as shall be deemed necessary or desirable to transfer and confirm to,
and to vest in, each successor Trustee all the rights, powers and trusts of the
retiring Trustee in respect of the Securities of that or those series to which
the appointment of the successor Trustee relates, (2) to confirm that all the
rights, powers and trusts of the retiring Trustee in respect of the Securities
of any 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
62
than one Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees co-trustees of the same
Trust and that each such Trustee shall be Trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by any other
such Trustee; and upon the execution and delivery of such supplemental indenture
the resignation or removal of the retiring Trustee shall become effective to the
extent provided therein and each successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee in respect of the Securities of that or those
series to which the appointment of such successor Trustee relates; but, on
request of the Company or any successor Trustee, such retiring Trustee shall
duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder in respect of the Securities of
that or those series for which the appointment of such successor Trustee
relates.
No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 6.12. Merger, Conversion, Consolidation or Succession to
--------------------------------------------------
Business of Trustee.
-------------------
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
--------
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any of the Securities of any series
shall have been authenticated, but not delivered, by the Trustee then in office,
any successor by merger, conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver the Securities so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
SECTION 6.13. Preferential Collection of Claims Against Company.
-------------------------------------------------
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of Section 311(a) of the Trust Indenture Act regarding the collection
of claims against the Company (or any such other obligor), excluding any
creditor relationships described in Section 311(b) of the Trust Indenture Act.
A Trustee who resigned or has been removed
63
shall be subject to Section 311(a) of the Trust Indenture Act to the extent
indicated therein.
ARTICLE SEVEN
SECURITYHOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.01. Company to Furnish Trustee Names and Addresses of
-------------------------------------------------
Securityholders.
---------------
The Company will furnish or cause to be furnished to the Trustee, in
respect of each series of Securities:
(a) semi-annually, not more than 15 days after each Regular Record
Date in respect of the Securities of such series or, if there is no Regular
Record Date relating to the Securities of such series, on each June 30 and
December 31, a list in such form as the Trustee may reasonably require,
containing all the information in the possession or control of the Company
or any Paying Agent other than the Trustee as to the names and addresses of
the Holders of Securities of such series as of such Regular Record Date or
the preceding June 15 or December 15, as the case may be; and
(b) at such other times as the Trustee may request in writing, within
30 days after 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 in
-------- -------
respect of the Securities of such series, no such list shall be required to
be furnished in respect of Holders of Registered Securities of such series.
SECTION 7.02. Preservation of Information; Communications to
----------------------------------------------
Securityholders.
---------------
(a) The Trustee shall preserve, in respect of each series of
Securities, in as current a form as is reasonably practicable, (i) the
names and addresses of Holders of Securities of such series contained in
the most recent list furnished to it as provided in Section 7.01, (ii) the
------------
names and addresses of Holders of Registered Securities of such series
received by the Trustee in its capacity as Security Registrar or Paying
Agent in respect thereof, if so acting and (iii) the names and addresses of
Holders of Bearer Securities of such series received by the Trustee or
filed with it within the two preceding years pursuant to Section
-------
7.03(c)(2).
----------
64
The Trustee may destroy any list furnished to it as provided in
Section 7.01 upon receipt of a new list so furnished.
-------------
(b) If 3 or more Holders of Securities of any series (hereinafter
referred to as "applicants") apply in writing to the Trustee, and furnish
----------
to the Trustee reasonable proof that each such applicant has owned a
Security of such series for a period of at least 6 months preceding the
date of such application, and such application states that the applicants
desire to communicate with other Holders of such Securities with respect to
their rights under this Indenture or under such Securities and is
accompanied by a copy of the form of proxy or other communication which
such applicants propose to transmit, then the Trustee shall, within 5
Business Days after the receipt of such application, at its election,
either
(i) afford such applicants access to the information preserved
at the time by the Trustee in accordance with Subsection (a), or
(ii) inform such applicants as to the approximate number of
Holders of such Securities whose names and addresses appear in the
information preserved at the time by the Trustee in accordance with
Subsection (a), and as to the approximate cost of mailing to such
--------------
Holders the form of proxy or other communication, if any, specified in
such application.
If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder of Securities of such series whose name and
address appear in the information preserved at the time by the Trustee in
accordance with Subsection (a), a copy of the form of proxy or other
--------------
communication which is specified in such request, with reasonable
promptness after a tender to the Trustee of the material to be mailed and
of payment, or provision for the payment, of the reasonable expenses of
mailing, unless within 5 days after such tender, the Trustee shall mail to
such applicants and file with the Commission together with a copy of the
material to be mailed, a written statement to the effect that, in the
opinion of the Trustee, such mailing would be contrary to the best
interests of the Holders of the Securities of such series or would be in
violation of applicable law. Such written statement shall specify the
basis of such opinion. If the Commission, after opportunity for a hearing
upon the objections specified in the written statement so filed, shall
enter an order refusing to sustain any of such objections or if, after the
entry of an order sustaining one or more of such objections, the Commission
shall find, after notice and opportunity for hearing, that all the
objections so sustained
65
have been met and shall enter an order so declaring, the Trustee shall mail
copies of such material to all such Holders with reasonable promptness
after the entry of such order and the renewal of such tender; otherwise the
Trustee shall be relieved of any obligation or duty to such applicants
respecting their application.
(c) Every Holder of Securities or Coupons, by receiving and holding
the same, agrees with the Company and the Trustee that neither the Company
nor the Trustee, nor any agent of either of them, shall be held accountable
by reason of the disclosure of any such information as to the names and
addresses of the Holders of Securities in accordance with Subsection (b),
--------------
regardless of the source from which such information was derived, and that
the Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under Subsection (b).
--------------
SECTION 7.03. Reports by Trustee.
------------------
Within 60 days after May 15 in each year, commencing with the first
May 15 after the first issuance of Securities pursuant to this Indenture, the
Trustee shall transmit by mail to all Holders such reports concerning the
Trustee and its actions under this Indenture in accordance with and to the
extent required under Section 313 of the Trust Indenture Act.
A copy of each such report in respect of the Securities of any series
shall, at the time of such transmission to Holders of Securities of such series,
be filed by the Trustee with each stock exchange upon which the Securities of
such series are listed and also with the Commission and with the Company. The
Company will notify the Trustee when the Securities of any series are listed on
any stock exchange.
SECTION 7.04. Reports by Company.
------------------
The Company will
(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; or, if the Company is not required to file
information, documents or reports pursuant to either of said Sections, then
it will file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to
66
time by the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of the
Securities Exchange Act of 1934 in respect of a security listed and
registered on a National Securities Exchange as may be prescribed from time
to time in such rules and regulations;
(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 by mail to all Holders of Securities of any series, as
provided in Section 7.03(c), within 30 days after the filing thereof with
---------------
the Trustee, 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 EIGHT
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 8.01. Company May Consolidate, etc., Only on Certain Terms.
----------------------------------------------------
The Company shall not consolidate with or merge into any other
corporation or convey or transfer its properties and assets substantially as an
entirety to any Person, unless
(1) the corporation formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or transfer
the properties and assets of the Company substantially as an entirety shall
be a corporation organized and existing under the laws of the United States
of America or any State or the District of Columbia, and shall expressly
assume, by an indenture supplemental hereto, executed and delivered to the
Trustee, in form satisfactory to the Trustee, the due and punctual payment
of the principal of (and premium, if any) and interest, if any, on all
Securities of all series and the performance of every covenant of this
Indenture on the part of the Company to be performed or observed;
67
(2) immediately after giving effect to such transaction, no Event of
Default in respect of the Securities of any series, and no event which,
after notice or lapse of time, or both, would become an Event of Default in
respect of the Securities of any series, shall have happened and be
continuing;
(3) with respect to Securities of any series that, in connection with
their original issuance, were offered for sale outside the United States,
the corporation formed by such consolidation or into which the Company is
merged or the Person which acquires by conveyance or transfer the
properties and assets of the Company substantially as an entirety shall
have agreed, by an indenture supplemental hereto, to indemnify the
individuals liable therefor for the amount of United States federal estate
tax attributable to or paid in respect of any such Securities includable in
the gross estate of an individual who is not a citizen or resident of the
United States at the time of death; and
(4) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that such consolidation, merger,
conveyance or transfer and such indenture supplemental hereto comply with
the Article and that all conditions precedent herein provided for relating
to such transaction have been complied with.
SECTION 8.02. Successor Corporation Substituted.
---------------------------------
Upon any consolidation or merger, or any conveyance or transfer of the
properties and assets of the Company substantially as an entirety in accordance
with Section 8.01, the successor corporation formed by such consolidation or
------------
into which the Company is merged or to which such conveyance or transfer 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
corporation had been named as the Company herein. In the event of any such
conveyance or transfer (other than a transfer by way of lease) the predecessor
company shall be discharged from all obligations and covenants under this
Indenture, the Securities and any Coupons and may be liquidated and dissolved.
SECTION 8.03. Securities to be Secured in Certain Events.
------------------------------------------
If, upon any merger or consolidation of the Company with or into any
corporation, or upon the conveyance or transfer by the Company of its properties
and assets substantially as an entirety in accordance with Section 8.01 hereof
------------
to any Person, any of the property owned by the Company or a Restricted
Subsidiary immediately prior thereto would thereupon become subject to any
mortgage, the Company will,
68
simultaneously with or prior to such consolidation, merger, conveyance or
transfer, by an indenture supplemental hereto, make effective provision for the
securing of principal of (and premium, if any, on) and interest, if any, on all
Outstanding Securities of all series (equally and ratably with any other
indebtedness then entitled thereto) by a prior lien upon such property.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without Consent of
------------------------------------------
Securityholders.
----------------
Without the consent of the Holders of any Securities or Coupons, the
Company, when authorized by a Board Resolution, and the Trustee, at any time and
from time to time, may enter into one or more indentures supplemental hereto, in
form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the Company,
and the assumption by any such successor of the covenants of the Company
herein and in the Securities of all series contained; or
(2) to add to the covenants of the Company, for the benefit of the
Holders of all or any series of such Securities and any Coupons
appertaining thereto (and if such covenants are to be for the benefit of
less than all the Securities, stating that such covenants are being
included solely for the benefit of such series), or to surrender any right
or power herein conferred upon the Company, or
(3) to cure any ambiguity, to correct or supplement any provision
herein or in any supplemental indenture which may be defective or
inconsistent with any other provision herein or in any supplemental
indenture, or to make any other provisions with respect to matters or
questions arising under this Indenture or under any supplemental indenture,
in each case in such manner as 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 secure payment of Outstanding Securities of any series equally
and ratably with certain other liens as and to the extent required by this
Indenture; or
69
(5) to add any additional Events of Default with respect to any or
all series of Securities (and, if any such additional Event of Default
applies to fewer than all series of Securities, stating each series to
which such Event of Default applies); or
(6) 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 or any
premium or interest on Bearer Securities, to permit Bearer Securities to be
issued in exchange for Registered Securities, to permit Bearer Securities
to be issued in exchange for Bearer Securities of other authorized
denominations or to permit or facilitate the issuance of Securities in
uncertificated form, provided that 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
(7) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only
--------
when there is no Security Outstanding of any series created prior to the
execution of such indenture supplemental hereto which is entitled to the
benefit of such provision; or
(8) to add to such conditions, limitations and restrictions on the
authorized amount, form, terms or purposes of issue, authentication and
delivery of Securities as are herein set forth other conditions,
limitations and restrictions thereafter to be observed; or
(9) to add or change or eliminate any provisions of this Indenture as
shall be necessary or desirable in accordance with the Trust Indenture Act;
or
(10) to establish the forms or terms of Securities of any series and
Coupons, if any, appertaining thereto as permitted by Sections 2.01 and
-------------
3.01 or to amend such forms or terms (whether established by indenture
----
supplemental hereto or pursuant to Board Resolution) in any manner which
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
(11) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to Securities of one or more
series or to add or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of Section
-------
6.11.
----
70
SECTION 9.02. Supplemental Indentures With Consent of
---------------------------------------
Securityholders.
---------------
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected thereby
(or such greater percentage in such principal amount as may be specified with
respect to the Securities of such series pursuant to Section 3.01), by Act of
------------
said Holders delivered to the Company and the Trustee, the Company, when
authorized by a Board Resolution, and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
of modifying in any manner the rights of the Holders of Securities of such
series under this Indenture; provided, however, that no such supplemental
-------- -------
indenture shall, without consent of the Holder of each Outstanding Security of
each series affected thereby:
(1) change the Stated Maturity of the principal of, or any
installment of interest on, any Security of such series, or reduce the
principal amount thereof or the rate of any interest thereon or any premium
payable upon the redemption thereof, or reduce the amount of principal of
an Original Issue Discount Security that would be due and payable upon a
declaration of acceleration of Maturity thereof pursuant to Section 5.02,
------------
or change the coin or currency in which any Security of such series or any
premium or any interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or impair the right of repayment, if any, of the
Securities of such series at the option of the Holders thereof or the right
to institute suit for the enforcement of any such repayment on or after the
date such repayment is due and payable or impair the right of conversion,
if any, of any Security of such series at the option of the Holder thereof
or the right to institute suit for the enforcement of any such right of
conversion, or relieve the obligation of the Company to redeem, repay or
purchase any Security of such series pursuant to any sinking fund or
analogous provisions or otherwise; or
(2) reduce the percentage in principal amount of the Outstanding
Securities of such series, the consent of whose Holders is required for any
such indenture supplemental hereto 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
71
(3) modify any of the provisions of this Section or Section 5.13,
------------
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 Security affected thereby.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 9.03. Execution of Supplemental Indentures.
------------------------------------
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture the Trustee shall be entitled to receive,
and (subject to Section 6.01) shall be fully protected in relying upon, an
------------
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 9.04. 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 the Holders
of Securities of any series affected thereby theretofore or thereafter
authenticated and delivered hereunder and of any Coupons appertaining thereto
shall be bound thereby.
SECTION 9.05. Conformity with Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of TIA as then in effect.
72
SECTION 9.06. 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 indentures. If the Company shall
so determine, new Securities of any series and any Coupons appertaining thereto,
so modified as to conform, in the opinion of the Trustee and the Board of
Directors, 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 and any Coupons appertaining thereto.
ARTICLE TEN
COVENANTS
SECTION 10.01. Payment of Principal, Premium and Interest.
------------------------------------------
The Company covenants and agrees for the benefit of any series of
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest on Securities of such series in accordance with the terms
thereof, any Coupons appertaining thereto and this Indenture. Unless otherwise
specified as contemplated by Section 3.01 with respect to any series of
------------
Securities, any interest due on Bearer Securities on or before Maturity shall be
payable only upon presentation and surrender of the several Coupons for such
interest installments as are evidenced thereby as they severally mature. Except
as otherwise specified with respect to the Securities of a series as
contemplated by Section 3.01, the interest, if any, due in respect of any
------------
Temporary Global Security or any Permanent Global Security shall be payable only
upon presentation thereof to the Trustee for notation thereon of the payment of
such interest.
SECTION 10.02. Maintenance of Office or Agency.
-------------------------------
If the Securities of a series are issuable only as Registered
Securities, the Company will maintain one or more offices or agencies in each
Place of Payment for Securities of such series where the Securities of such
series may be presented or surrendered for payment, where the Securities of such
series may be surrendered for registration of transfer or exchange, where the
Securities of each series, if convertible, may be surrendered for conversion and
where notices and demands to or upon the Company in respect of the Securities of
such series and this Indenture may be served. The Trustee is hereby initially
appointed the Company's office or agency for each of said purposes with respect
to each such series issued hereunder. If the Securities of a series are
issuable as Bearer Securities, the Company will maintain (A) in a Place of
Payment
73
for Securities of such series which is located in the United States, an office
or agency where any Registered Securities of such series may be presented or
surrendered for payment, where any Registered Securities of such series may be
surrendered for registration of transfer, where any Registered Securities of
such series, if convertible, may be surrendered for conversion, where Securities
of such series may be surrendered for exchange, where notices and demands to or
upon the Company in respect of the Securities of such series and this Indenture
may be served and where Bearer Securities of such series and Coupons, if any,
appertaining thereto may be presented or surrendered for payment in the
circumstances described in the following paragraph (and not otherwise); (B)
subject to any laws or regulations applicable thereto, in a Place of Payment for
Securities of such series which is located outside the United States, an office
or agency where Securities of such series and Coupons, if any, appertaining
thereto may be presented and surrendered for payment and where Securities of
such series, if convertible, may be surrendered for conversion; provided,
--------
however, that if and so long as the Securities of such series are listed on the
-------
Luxembourg Stock Exchange or any other stock exchange located outside the United
States and the Luxembourg Stock Exchange or such other exchange shall so
require, the Company will maintain a Paying Agent for the Securities of such
series and an office or agency where Securities of such series, if convertible,
may be surrendered for conversion in Luxembourg or any other required city
located outside the United States, as the case may be; and (C) subject to any
laws or regulations applicable thereto, in a Place of Payment for the Securities
of such series which is located outside the United States, an office or agency
where any Registered Securities of such series may be surrendered for
registration of transfer, where Securities of such series may be surrendered for
exchange, where Securities of such series, if convertible, may be surrendered
for conversion and where notices and demands to or upon the Company in respect
of the Securities of such series and this Indenture may be served. The Company
will give prompt written notice to the Trustee for the Securities of such series
of the location, and of any change in the location, of any such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency in respect of any series of Securities or shall fail to furnish
the Trustee with the address thereof, such presentations (to the extent
permitted by law) and surrenders of Securities of such series and such notices
and demands may be made or served at the principal corporate trust office of the
Trustee, except that Bearer Securities of such series and the Coupons, if any,
appertaining thereto may be presented and surrendered for payment, and Bearer
Securities of such series, if convertible, may be surrendered for conversion at
the place established for the purpose pursuant to Section 3.01, and the Company
------------
hereby appoints the same as its agents to receive such respective presentations,
surrenders, notices and demands.
74
No payment of principal (and premium, if any) or interest, if any, on
Bearer Securities shall be made at any office or agency of the Company 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,
except as may be permitted by United States tax laws and regulations in effect
at the time of such payment without detriment to the Company. Payments will not
be made in respect of Bearer Securities or Coupons appertaining thereto pursuant
to presentation to the Company or its designated Paying Agents within the United
States. Notwithstanding the foregoing, (i) in the event that any payment in
respect of a Bearer Security of any series or a Coupon appertaining thereto
which is denominated and payable in Dollars may not be made at any office or
agency maintained by the Company in respect of such series outside the United
States for payment on such Bearer Security or Coupon because such payment would
be illegal or effectively precluded by exchange controls or other similar
restrictions, then the Company shall designate a paying agency in the United
States from which such payment shall be made; and (ii) in the event that any
payment in respect of a Bearer Security of any series or a Coupon appertaining
thereto which is denominated or payable in a Foreign Currency may not be made at
any office or agency maintained by the Company in respect of such series outside
the United States for payment on such Bearer Security or Coupon because such
payment would be illegal or effectively precluded by exchange controls or other
similar restrictions, then such payment shall be made at any such office or
agency in Dollars in an amount equal to the sum otherwise due in such Foreign
Currency as converted into Dollars at the rate of exchange stated as the New
York selling rate for such Foreign Currency into Dollars in The Wall Street
---------------
Journal (Eastern Edition) for the Business Day preceding that on which such
-------
payment becomes due (or, if by reason of the temporary or permanent suspension
of publication of such newspaper or of such information in such newspaper, such
exchange rate is not given, then such rate of exchange as is stated for such
Business Day in such comparable newspaper as the Trustee shall select), provided
--------
that if such payment in Dollars pursuant to this clause (ii) may not be so made
because such payment would be illegal or effectively precluded by exchange
controls or other similar restrictions, then the Company shall designate a
paying agency in the United States from which such payment shall be made in
Dollars in an amount as aforesaid.
The Company may also from time to time designate one or more other
offices or agencies (in or outside the Place of Payment) where the Securities of
one or more series may be presented or surrendered for any or all of the
purposes specified above in this Section 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 such
75
purpose. The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such office
or agency.
SECTION 10.03. Money for Securities Payments to be Held in Trust.
-------------------------------------------------
If the Company shall at any time act as its own Paying Agent in
respect of any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on, 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 composite currency in which the Securities of
such series are payable (except as otherwise specified with respect to the
Securities of such series pursuant to Section 3.01) sufficient to pay the
------------
principal (and premium, if any) or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided, and
will promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for the
Securities of any series, it will, prior to each due date of the principal of
(and premium, if any) or interest on, any of the Securities of such series,
deposit with a Paying Agent for the Securities of such series a sum in the
currency or composite currency in which the Securities of such series are
payable (except as otherwise specified with respect to the Securities of such
series pursuant to Section 3.01 or as otherwise provided by Section 10.02)
------------ -------------
sufficient to pay the principal (and premium, if any) or interest so becoming
due, such sum to be held in trust for the benefit of the Persons entitled to
such principal, premium or interest, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its action or failure
so to act.
The Company will cause each Paying Agent for the Securities of any
series other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of principal of (and
premium, if any) or interest on the 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 herein provided;
(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 such
payment of principal (and premium, if any) or interest; and
76
(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 in respect of the Securities of any
series 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 in respect of such series, such sums to be held by the Trustee upon
the same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by the Company or any Paying Agent to the
Trustee, the Company and such Paying Agent shall be released from all further
liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent or then held
by the Company in trust for the payment of the principal of (and premium, if
any) or interest on any Security and remaining unclaimed for two years after
such principal (and premium, if any) or interest has become due and payable
shall, unless otherwise required by mandatory provisions of applicable escheat
or abandoned or unclaimed property law, be paid to the Company on Company
Request, or (if then held by the Company) shall be discharged from such trust;
and the Holder of such Security shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease; provided, however,
-------- -------
that the Trustee or such 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 or mail to each such Holder or both with respect to
Securities of such series 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, any unclaimed balance of such money then
remaining will, unless otherwise required by mandatory provisions of applicable
escheat or abandoned or unclaimed property law, be repaid to the Company.
SECTION 10.04. Statement as to Compliance.
--------------------------
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year (which on the date hereof is the calendar year), a written
statement signed by the principal executive officer, the principal financial
officer or the principal accounting officer of the Company and by the President,
any Vice Chairman, any Vice President, the Treasurer, any Assistant Treasurer,
the Controller or any Assistant Controller of the Company, stating, as to each
signer thereof, that
77
(1) a review of the activities of the Company during such year and of
performance under this Indenture has been made under his supervision and
(2) to the best of his knowledge, based on such review, the Company
has fulfilled all its obligations under this Indenture throughout such
year, or, if there has been a default in the fulfillment of any such
obligation, specifying each such default known to him and the nature and
status thereof.
SECTION 10.05. Restrictions on Borrowing by Restricted Subsidiaries.
----------------------------------------------------
The Company will not permit any Restricted Subsidiary to issue,
assume, guarantee or incur any Funded Debt, except (i) Funded Debt owed to the
Company or to a Restricted Subsidiary, or (ii) Funded Debt which is Secured Debt
permitted by Section 10.06 without equally and ratably securing the Outstanding
-------------
Securities of all series, or (iii) unsecured Funded Debt issued, assumed,
guaranteed or incurred which represents an extension, renewal or refunding of
Secured Debt permitted by the first paragraph of Section 10.06 to the extent of
-------------
the principal amount of the Secured Debt so extended, renewed or refunded, or
(iv) unsecured Funded Debt in an amount which, if it were Secured Debt, would be
permitted by the second paragraph of Section 10.06 without equally and ratably
-------------
securing the Outstanding Securities of all series, or (v) unsecured Funded Debt
assumed by a Restricted Subsidiary in connection with its merger with, or
acquisition of all or a substantial part of the assets and business of, any
Person and which constitutes existing indebtedness or an existing guarantee of
such Person, or (vi) unsecured Funded Debt of a Person existing at the time it
becomes a Restricted Subsidiary, or (vii) Funded Debt created in connection with
any industrial revenue bond, pollution control bond or similar financing
arrangement between the Company or any Restricted Subsidiary and the United
States, any- State thereof or any municipal government or other governmental
body or agency or (viii) any extension, renewal or refunding (or successive
extensions, renewals or refundings), in whole or in part, of any Funded Debt
referred to in the foregoing clauses (i) through (vii).
----------- -----
SECTION 10.06. Restrictions on Secured Debt.
----------------------------
The Company will not, and will not permit any Restricted Subsidiary
to, issue, assume, guarantee or incur any Secured Debt, without effectively
providing that the Outstanding Securities of all series (together with, if the
Company shall so determine, any other indebtedness of the Company or such
Restricted Subsidiary then existing or thereafter created ranking equally with
such Outstanding Securities, including guarantees of indebtedness of others)
shall be secured equally and ratably with (or prior to) such
78
Secured Debt, so long as such Secured Debt shall be so secured, except that this
Section shall not apply to Secured Debt secured by:
(a) mortgages on property of any corporation existing at the time
such corporation becomes a Restricted Subsidiary;
(b) mortgages on property of any Person which is merged with, or all
or a substantial part of whose properties are acquired by, the Company or
any Restricted Subsidiary; provided, however, that any such mortgage shall
-------- -------
have existed prior to such merger or acquisition and shall not have applied
to any property owned by the Company or any Restricted Subsidiary
immediately prior to such merger or acquisition;
(c) mortgages upon or with respect to any property acquired,
constructed or improved by the Company or any Restricted Subsidiary after
the date hereof which are created, incurred or assumed contemporaneously
with, or within 90 days after, such acquisition, completion of construction
or completion of improvement to secure or provide for the payment of any
part of the purchase price of such property or the cost of such
construction or improvement, or mortgages upon or with respect to any
property existing at the time of acquisition thereof; provided, however,
that any such mortgage shall not apply to any property theretofore owned by
the Company or any Restricted Subsidiary other than any theretofore
unimproved real property on which the property so constructed, or the
improvement, is located;
(d) mortgages which secure indebtedness owing to the Company or to a
Restricted Subsidiary;
(e) the mortgage of any property of the Company or any Restricted
Subsidiary in favor of the United States, or any State thereof, or any
department, agency or instrumentality of either, to secure partial,
progress, advance or other payments to the Company or any Restricted
Subsidiary pursuant to the provisions of any contract or statute;
(f) the mortgage of any property of the Company or any Restricted
Subsidiary created, incurred or assumed in connection with any industrial
revenue bond, pollution control bond or similar financing arrangement
between the Company or any Restricted Subsidiary and the United States, any
state thereof or any municipal government or other governmental body or
agency; or
79
(g) any extension, renewal or refunding (or successive extensions,
renewals or refundings), in whole or in part, of any mortgage referred to
in the foregoing clauses (a) through (f), or of any indebtedness secured
----------- ---
thereby; provided, however, that such extension, renewal or refunding
-------- -------
mortgage shall be limited to all or any part of the same property that
secured the mortgage extended, renewed or refunded (plus improvements on
such property).
Notwithstanding the foregoing provisions of this Section 10.06, the
Company and any one or more Restricted Subsidiaries may issue, assume, guarantee
or incur Secured Debt, without equally and ratably securing the Outstanding
Securities of all series, if after giving effect thereto, the sum of (i) the
aggregate amount of all Secured Debt of the Company and its Restricted
Subsidiaries (except Secured Debt pursuant to clauses (a) through (g) of the
----------- ---
first paragraph of this Section 10.06), (ii) the aggregate Value of sale and
lease back transactions to which Section 10.07 applies and (iii) the aggregate
-------------
amount of all unsecured outstanding Funded Debt of all Restricted Subsidiaries
permitted under Section 10.05(iv) (or any extension, renewal or refunding
-----------------
thereof), does not exceed 10% of Consolidated Net Tangible Assets.
If the Company shall hereafter be required to secure the Outstanding
Securities equally and ratably with (or prior to) any other indebtedness
pursuant to this Section 10.06, (i) the Company will promptly deliver to the
Trustee an Officers' Certificate stating that such covenant has been complied
with, and an Opinion of Counsel stating that in the opinion of such counsel such
covenant has been complied with, that any instruments executed by the Company or
any Restricted Subsidiary in the performance of such covenant comply with the
requirements of such covenant and that all steps necessary to perfect such
security have been taken, and (ii) the Trustee is hereby authorized to enter
into such instruments and to take such action, if any, as it may deem advisable
to enable it to enforce the rights of Holders of such Outstanding Securities so
secured.
SECTION 10.07. Restrictions on Sale and Lease Back Transactions.
------------------------------------------------
The Company will not, and will not permit any Restricted Subsidiary
to, sell or transfer (other than to the Company or to a Restricted Subsidiary)
any property owned by the Company or any Restricted Subsidiary on the date
hereof, which (as determined by Board Resolution) constitutes a major facility
of the Company and its Restricted Subsidiaries, taken as a whole, with the
intention of the Company or any Restricted Subsidiary taking back a lease of
such property, except a lease for a temporary period (not exceeding five years)
by the end of which it is intended that the use of such property by the lessee
will be discontinued. Notwithstanding the foregoing, the Company
80
or any Restricted Subsidiary may so sell any such property and lease it back if
(a) the Company promptly gives notice of such sale to the Trustee; (b) the net
proceeds of such sale are at least equal to the fair value (as determined by
Board Resolution) of such property; and (c) the Company shall, and in any such
case the Company covenants that it will, within 120 days after such sale, apply,
or cause such Restricted Subsidiary to apply, not less than an amount equal to
the net proceeds of such sale to the retirement of outstanding Funded Debt of
the Company and/or any Restricted Subsidiary (other than any thereof which is
owed to the Company or any Restricted Subsidiary and other than any thereof
which is subordinate in right of payment to the Outstanding Securities);
provided, however, that the amount to be applied to the retirement of Funded
-------- -------
Debt of the Company or such Restricted Subsidiary shall be reduced by
(i) the amount of Secured Debt which the Company or such Restricted
Subsidiary could at that time issue, assume, guarantee or incur pursuant to
the second paragraph of Section 10.06 without equally and ratably securing
-------------
the Outstanding Securities of all series, and
(ii) the principal amount of any debentures, notes or other
instruments evidencing Funded Debt of the Company (which may include
Securities of any series) or of a Restricted Subsidiary delivered within
120 days after such sale to the applicable trustee for retirement and
cancellation, other than any debentures, notes or other instruments retired
by payment at maturity or pursuant to any mandatory sinking fund payment or
any mandatory prepayment provision.
SECTION 10.08. Restrictions on Transfers of Property.
-------------------------------------
The Company will not itself, and will not permit any Restricted
Subsidiary to, transfer or lease any assets which, in the opinion of the Board
of Directors, constitute a major facility of the Company and its Restricted
Subsidiaries, taken as a whole, to any Subsidiary which would be a Restricted
Subsidiary except for clauses (i) through (viii) of the definition of Restricted
----------- ------
Subsidiary contained in Section 1.01 and clause (x) of such definition insofar
------------ ----------
as it relates to the said clauses (i) through (viii).
----------- ------
SECTION 10.09. Assumption of Obligations in Connection with Mergers
----------------------------------------------------
and Acquisitions.
----------------
Nothing herein shall prevent the Company or any Subsidiary, in
connection with its merger with or acquisition of all or substantially all of
the assets of any Person, from assuming all obligations and liabilities of such
Person; provided, however, that no mortgage of such Person shall be so assumed
-------- -------
if, as a result thereof, the property of the Company or any of its Restricted
Subsidiaries immediately prior thereto
81
would thereupon become subject to the lien of such mortgage, unless either the
assumption by the Company or any Restricted Subsidiary of the obligations and
liabilities secured by such mortgage would be permitted by the second paragraph
of Section 10.06 without equally and ratably securing the Outstanding Securities
-------------
of all series or simultaneously therewith or prior thereto effective provision
shall be made for the securing of such Outstanding Securities by a prior lien on
such property.
SECTION 10.10. Defeasance of Certain Obligations.
---------------------------------
If this Section 10.10 has been specified in accordance with Section
-------
3.01 to be applicable to Securities of any series, the Company may omit to
----
comply with any term, provision or condition set forth in Sections 10.05, 10.06,
-------------- -----
10.07 and 10.08, and Section 5.01(c) with respect to Sections 10.05, 10.06,
----- ----- --------------- -------------- -----
10.07 and 10.08 shall be deemed not to be an Event of Default, in each case with
----- -----
respect to the Securities of that series, provided that the following conditions
have been satisfied:
(1) with reference to this Section 10.10, the Company has deposited
or caused to be deposited with the Trustee (or another trustee satisfying
the requirements of Section 6.09) irrevocably (irrespective of whether the
------------
conditions in subparagraphs (2), (3), (4), (5) (if applicable) and (6) have
----------------- --- --- --- ---
been satisfied, but subject to the provisions of Section 4.02(c) and the
---------------
last paragraph of Section 10.03), as trust funds in trust, specifically
-------------
pledged as security for, and dedicated solely to, the benefit of the
Holders of the Securities of that series and the Coupons, if any,
appertaining thereto, (A) money in an amount in the currency or composite
currency in which the Securities of such series are payable (except as
otherwise specified with respect to the Securities of such series pursuant
to Section 3.01), or (B) Government Obligations which through the payment
------------
of interest and principal in respect thereof in accordance with their terms
will provide not later than the opening of business on the due date of any
payment referred to in clause (i) or (ii) of this subparagraph (1) money in
an amount, or (C) a combination thereof, sufficient, 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 (i) the principal of (and premium, if any) and each installment
of principal (and premium, if any) and interest, if any, on such
Outstanding Securities and Coupons on the Stated Maturity of such principal
or installment of principal or interest, (ii) any mandatory sinking fund
payments or analogous payments applicable to the Securities of such series
on the day on which such payments are due and payable in accordance with
the terms of this Indenture and of such Securities and (iii) any repayment
of the Securities of
82
such series at the option of the Holder of any of such Securities on any
date such repayment is due and payable;
(2) such deposit shall not cause the Trustee with respect to the
Securities of that series to have a conflicting interest as defined in
Section 6.08 and for purposes of the Trust Indenture Act with respect to
------------
the Securities of any series;
(3) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound;
(4) no Event of Default or event which with the giving of notice or
lapse of time, or both, would become an Event of Default with respect to
the Securities of such series shall have occurred and be continuing on the
date of such deposit and no Event of Default under Section 5.01(d) or
---------------
Section 5.01(e) or event which with the giving of notice or lapse of time,
---------------
or both, would become an Event of Default under Section 5.01(d) or Section
--------------- -------
5.01(e) shall have occurred and be continuing on the 91st day after such
-------
date;
(5) if this subparagraph has been specified in accordance with
Section 3.01 to be applicable to the Securities of such series, the Company
------------
has delivered to the Trustee an Opinion of Counsel to the effect that
Holders of the Securities of such series and the Coupons, if any,
appertaining thereto will not recognize income, gain or loss for federal
income tax purposes as a result of such deposit and defeasance of certain
obligations and will be subject to federal income tax on the same amount
and in the same manner and at the same times, as would have been the case
if such deposit and defeasance had not occurred; and
(6) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the defeasance contemplated by this Section
have been complied with.
SECTION 10.11. Additional Amounts.
------------------
If the Securities of a series provide for the payment of additional
amounts as contemplated by clause (13) of Section 3.01, the Company will pay to
----------- ------------
the Holder of any Security of such series or any Coupon appertaining thereto
additional amounts upon the terms and subject to the conditions provided
therein. Whenever in this Indenture there is mentioned, in any context, the
payment of the principal of (or premium, if any) or
83
interest, if any, on, or in respect of, any Security of any series or the
payment of any Coupon appertaining thereto or the net proceeds received at
maturity or 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
for in this Section to the extent that, in such context, additional amounts are,
were or would be payable in respect thereof pursuant to the provisions of this
Section and express mention of the payment of additional amounts (if applicable)
in any provisions hereof shall not be construed as excluding additional amounts
in those provisions hereof where such express mention is not made.
If the Securities of a series provide for the payment of additional
amounts, at least 10 days prior to the first Interest Payment Date with respect
to such series (or if the Securities of such series will not bear interest prior
to Maturity, the first day on which a payment of principal (and premium, if any)
is made), and at least 10 days prior to each date of payment of principal (and
premium, if any) or interest if there has been any change with respect to the
matters set forth in the below-mentioned Officers' Certificate, the Company will
furnish the Trustee and the Company's principal Paying Agent or Paying Agents,
if other than the Trustee, with an Officers' Certificate instructing the Trustee
and such Paying Agent or Paying Agents whether such payment of principal of (or
premium, if any) or interest on the Securities of such series shall be made to
Holders of Securities of such series or any Coupons appertaining thereto who are
United States Aliens without withholding for or on account of any tax,
assessment or other governmental charge described in the Securities of that
series. If any such withholding shall be required, then such Officers'
Certificate shall specify by country the amount, if any, required to be withheld
on such payments to such Holders of Securities or Coupons and the Company will
pay to the Trustee or such Paying Agent the additional amounts, if any, required
by this Section. The Company covenants to indemnify the Trustee and any Paying
Agent for, and to hold them harmless against, any loss, liability or expense
reasonably incurred without negligence or bad faith on their part arising out of
or in connection with actions taken or omitted by any of them in reliance on any
Officers' Certificate furnished pursuant to this Section.
As used in this Section, the term "United States Alien" means any
-------------------
corporation, partnership, individual or fiduciary that, as to the United States,
and for United States tax purposes, is (i) a foreign corporation, (ii) a foreign
partnership one or more of the members of which is, as to the United States, a
foreign corporation, a nonresident alien individual or a nonresident alien
fiduciary of a foreign estate or trust, (iii) a nonresident alien individual or
(iv) a nonresident alien fiduciary of a foreign estate or trust.
84
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 11.01. Applicability of Article.
------------------------
Redemption of Securities of any series which are redeemable before
their Stated Maturity at the election of the Company or otherwise, as permitted
or required by their terms, shall be made in accordance with such terms and,
except as otherwise specified as contemplated by Section 3.01 for the Securities
------------
of such series, this Article.
SECTION 11.02. Election to Redeem; Notice to Trustee.
-------------------------------------
In case of any redemption at the election of the Company of less than
all the Securities of any series, the Company shall, at least 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,
if applicable, each portion of the Securities of such series having like terms
and conditions to be redeemed, the principal amount of the Securities of such
series or such portion thereof, as the case may be, to be redeemed and the
principal amount thereof to be redeemed.
SECTION 11.03. Selection by Trustee of Securities to be Redeemed.
-------------------------------------------------
If less than all the Securities of any series are to be redeemed, or
if less than all the Securities of such series having like terms and conditions
are to be redeemed, as the case may be, the particular Securities of such series
or portion thereof, as the case may be, 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 or portion thereof, as the case may be,
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 of such Securities of a denomination larger than the
minimum authorized denomination of Securities of such series. The portions of
the principal of such Securities so selected for partial redemption shall be
equal to the smallest authorized denomination of such Securities, or an integral
multiple thereof which is also an authorized denomination.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Security selected for
partial redemption, the principal amount thereof to be redeemed.
85
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal of such Security which has been or is to be redeemed.
SECTION 11.04. Notice of Redemption.
--------------------
Notice of redemption shall be given in the manner provided in Section
-------
1.06 not less than 30 nor more than 60 days prior to the Redemption Date, to
----
each Holder of Securities to be redeemed.
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
respective principal amounts) of the Securities of such series to be
redeemed,
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security, and that interest, if any, thereon
shall cease to accrue from and after said date,
(5) the place or places where such Securities, together in the case
of Bearer Securities with all Coupons, if any, appertaining thereto
maturing after the Redemption Date, are to be surrendered for payment of
the Redemption Price, each of which shall be the office or agency of the
Company in a Place of Payment, and
(6) that the redemption is for a sinking fund, if such is the case.
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 of and at the expense of the Company.
SECTION 11.05. Deposit of Redemption Price.
---------------------------
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent in respect of the Securities of any series which
are to be redeemed on that date (or, if the Company is acting as its own Paying
Agent in respect of such
86
Securities, segregate and hold in trust as provided in Section 10.03) an amount
-------------
of money in the currency or composite currency in which the Securities of such
series are payable (except as otherwise specified with respect to the Securities
of such series pursuant to Section 3.01) sufficient to pay the Redemption Price
------------
of and (except if the Redemption Date shall be an Interest Payment Date) accrued
interest, if any, on all the Securities which are to be redeemed on that date,
or, in the event of a defeasance and discharge of this Indenture, or defeasance
of certain covenants, with respect to such Securities pursuant to Section
-------
4.03(1) or 10.10(1), as the case may be, shall have deposited such money or
------- --------
Government Obligations required by such Section for purposes of the payment of
the Redemption Price of such Securities.
SECTION 11.06. Securities Payable on Redemption Date.
-------------------------------------
Notice of redemption having been given as aforesaid, the Securities of
any series so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified in the currency or composite
currency in which the Securities of such series are payable (except as otherwise
specified with respect to the Securities of such series pursuant to Section
-------
3.01), and from and after such date (unless the Company shall default in the
----
payment of the Redemption Price) 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
such Securities for redemption in accordance with said notice together with all
Coupons, if any, maturing after the Redemption Date, such Securities shall be
paid by the Company at the Redemption Price; provided, however, that
-------- -------
installments of any interest on Bearer Securities of such series the Stated
Maturity of which interest is on or prior to the Redemption Date shall be
payable (but without interest thereon, unless the Company shall default in the
payment thereof) only at an office or agency outside the United States (except
as otherwise provided in Section 10.02) and, unless otherwise specified with
-------------
respect to the Securities of such series pursuant to Section 3.01, only upon
------------
presentation and surrender of Coupons for such interest; and provided, further,
-------- -------
that, unless otherwise specified with respect to the Securities of such series
pursuant to Section 3.01, installments of any interest on Registered Securities
------------
of such series the Stated Maturity of which interest is on or prior to the
Redemption Date shall be payable (but without interest thereon, unless the
Company shall default in the payment thereof) to the Holders of such Registered
Securities or one or more Predecessor Securities, registered as such on the
relevant Regular Record Dates according to their terms and the provisions of
Section 3.07.
------------
87
If a Bearer Security of any series surrendered for redemption shall
not be accompanied by all Coupons, if any, appertaining thereto maturing after
the Redemption Date, such Bearer Security may be paid after deducting from the
Redemption Price an amount equal to the face amount of all such missing Coupons
or the surrender of such missing Coupon or Coupons may be waived by the Company
if there is furnished to the Company and the Trustee such security or indemnity
as they may require to save each of them and any agent of them harmless. If
thereafter the Holder of such Bearer Security shall surrender to the Trustee or
any Paying Agent in respect of such series 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
-------- -------
interest represented by Coupons shall be payable only at an office or agency
located outside the United States (except as otherwise provided in Section
-------
10.02) and, unless otherwise specified with respect to the Securities of such
-----
series pursuant to Section 3.01, only upon presentation and surrender of those
------------
Coupons.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate borne by the
Security (or, in the case of an Original Issue Discount Security, such
Security's Yield to Maturity).
SECTION 11.07. Securities Redeemed in Part.
---------------------------
Any Registered Security which is to be redeemed only in part shall be
surrendered at a Place of Payment (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 Registered Securities of the
same series, of any authorized denominations as requested by such Holder, of a
like Stated Maturity and with like terms and conditions, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Registered Security so surrendered. Any Permanent Global Security which is
to be redeemed only in part shall be so surrendered, and the Company shall
execute, and the Trustee shall authenticate and deliver to the Depositary for
such Permanent Global Security, without service charge, a new Permanent Global
Security in a denomination equal to and in exchange for the unredeemed portion
of the principal of the Permanent Global Security so surrendered.
88
ARTICLE TWELVE
SINKING FUNDS
SECTION 12.01. Applicability of Article.
------------------------
Redemption or retirement of Securities of any series through operation
of a sinking fund, as permitted or required by their terms, shall be made in
accordance with such terms and, except as otherwise specified as contemplated by
Section 3.01 for the Securities of such series, this Article.
------------
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
-----------------
fund payment", and any payment in excess of such minimum amount provided for by
------------
the terms of Securities of any series is herein referred to as an "optional
--------
sinking fund payment". If provided for by the terms of Securities of any
--------------------
series, the cash amount of any sinking fund payment may be subject to reduction
as provided in Section 12.02. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of the
Securities of such series.
SECTION 12.02. Satisfaction of Sinking Fund Payments with Securities.
-----------------------------------------------------
The Company (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption), together in the case of any Bearer
Securities of such series with all unmatured Coupons, if any, appertaining
thereto, and (2) may apply as a credit Securities of a series which have been
redeemed either at the election of the Company pursuant to the terms of such
Securities or through the application of permitted optional sinking fund
payments pursuant to the terms of such Securities, in each case in satisfaction
of all or any part of any sinking fund payment with respect to the Securities of
such series required to be made pursuant to the terms of such Securities as
provided for by the terms of such series; provided, however, that such
-------- -------
Securities have not been previously so credited. Such Securities shall be
received and credited for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly.
SECTION 12.03. Redemption of Securities for Sinking Fund.
-----------------------------------------
Not less than 60 days prior to each sinking fund payment date for any
series of Securities or such shorter period as shall be satisfactory to the
Trustee, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the
89
next ensuing sinking fund payment for Securities of such series pursuant to the
terms of such Securities, the portion thereof, if any, which is to be satisfied
by payment of cash, the portion thereof, if any, which is to be satisfied by
delivering and crediting Securities of such series pursuant to Section 12.02 and
-------------
the basis for such credit and stating that such Securities have not previously
been so credited and will also deliver to the Trustee any Securities to be so
delivered. The Trustee shall select the Securities to be redeemed upon such
sinking fund payment date in the manner specified in Section 11.03 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 11.04. Such notice having been
-------------
duly given, the redemption of such Securities shall be made upon the terms and
in the manner stated in Sections 11.06 and 11.07.
-------------- -----
ARTICLE THIRTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 13.01. Purposes for Which Meetings May Be Called.
-----------------------------------------
If Securities of a series are issuable in whole or in part as Bearer
Securities, a meeting of Holders of Securities of such 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
action provided by this Indenture to be made, given or taken by Holders of
Securities of such series.
SECTION 13.02. Call, Notice and Place of Meetings.
----------------------------------
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series issuable in whole or in part as Bearer Securities for
any purpose specified in Section 13.01, to be held at such time and at such
-------------
place in the Borough of Manhattan, The City of New York, or in London 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 1.06, not less than 21 nor more than 180 days prior
------------
to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board Resolution,
or the Holders of at least 10% in 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 13.01, by
-------------
written request setting forth in reasonable detail the action proposed to be
taken at such meeting, and the Trustee shall not have made the first publication
of the notice of such meeting within 21 days after
90
receipt of such request or shall not thereafter proceed to cause the meeting to
be held as provided herein, then the Company or the Holders of Securities of
such series in the amount above specified, as the case may be, may determine the
time and the place in the Borough of Manhattan, The City of New York, or in
London for such meeting and may call such meeting for such purposes by giving
notice thereof as provided in Subsection (a).
--------------
SECTION 13.03. 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 13.04. Quorum; Action.
--------------
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series; provided, however, that if any action is
-------- -------
to be taken at such meeting with respect to a consent or waiver which is
required to be given by the Holders of not less than a greater percentage in
such principal amount as shall have been specified with respect to the
Securities of such series pursuant to Section 3.01, the Persons entitled to vote
------------
such greater percentage in principal amount of the Outstanding Securities of
such series shall constitute a quorum. In the absence of a quorum within 30
minutes of the time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Securities of such series, be dissolved.
In the absence of a quorum in any other case the meeting may be adjourned for a
period of not less than 10 days as determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence of a quorum at any
such adjourned meeting, such adjourned meeting may be further adjourned for a
period of not less than 10 days as determined by the chairman of the meeting
prior to the adjournment of such adjourned meeting. Subject to Section 13.05,
-------------
notice of the reconvening of any adjourned meeting shall be given as provided in
Section 13.02(a), except that such notice need be given only once not less than
----------------
five days prior to the date on which the meeting is scheduled to be reconvened.
Notice of the reconvening of an adjourned meeting shall state expressly the
percentage, as provided
91
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 9.02, 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 9.02, any
-------- ------- ------------
resolution with respect to any consent or waiver which is required to be given
by the Holders of not less than a greater percentage in such principal amount as
shall have been specified with respect to the Securities of such series pursuant
to Section 3.01 may be adopted at a meeting or an adjourned meeting duly
------------
reconvened and at which a quorum is present as aforesaid only by the affirmative
vote of the Holders of such greater percentage in principal amount of the
Outstanding Securities of that series; and provided, further, that, except as
-------- -------
limited by the proviso to Section 9.02, any resolution with respect to any
------------
request, demand, authorization, direction, notice, consent, waiver or other
action 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 that 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, if any,
appertaining thereto, whether or not present or represented at the meeting.
SECTION 13.05. Determination of Voting Rights; Conduct and
-------------------------------------------
Adjournment of Meetings.
-----------------------
(a) 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
-------
1.04 and the appointment of any proxy shall be proved in the manner specified in
----
Section 1.04 or by having the signature of the person executing the proxy
------------
witnessed or
92
guaranteed by any trust company, bank or banker authorized by Section 1.04 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 1.04 or other proof.
------------
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by holders of Securities as provided in Section 13.02(b), 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.
(c) 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 (or, in case the
Securities of such series are denominated in a Foreign Currency, the equivalent
thereof) 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.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 13.02 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 13.06. 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
93
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 13.02 and, if applicable, Section 13.04. 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.
ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 14.01. Exemption from Individual Liability.
-----------------------------------
No recourse under or upon any obligation, covenant or agreement of
this Indenture, or of any Security of any series or any Coupon appertaining
thereto, or for any claim based thereon or otherwise in respect thereof, shall
be had against any incorporator, stockholder, officer or director, as such,
past, present or future, of the Company or of any successor corporation, either
directly or through the Company or any successor corporation, 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, stockholders, officers or directors, as such, of
the Company or of any successor corporation, or any of them, because of the
creation of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any
Securities of any series or any Coupon appertaining thereto or implied
therefrom; and that any and all such personal liability, either at common law or
in equity or by constitution or statute, of, and any and all such rights and
claims against, every such incorporator, stockholder, 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 such Securities or any Coupon appertaining thereto or
implied therefrom, are hereby expressly waived and released as a condition of,
and as a consideration for, the execution of this Indenture and the issue of
such Securities and Coupons.
94
ARTICLE FIFTEEN
CONVERSION
SECTION 15.01. Conversion of Securities.
------------------------
(a) If the terms of any series of Securities provide for any
Securities of such series to be convertible into shares of Common Stock issued
by the Company as contemplated by Section 3.01, then, subject to and upon
------------
compliance with (i) the provisions of this Section 15.01, if and to the extent
-------------
such provisions are specified as contemplated by Section 3.01 to be applicable
------------
to the Securities of such series, and (ii) such other provisions, if any, as
shall be so specified, the Holder of any Security or Securities of such series
shall have the right, at such Holder's option, to convert the principal amount
of such Security or Securities, or any portion of such principal amount which is
$1,000 or such other minimum amount (in Dollars or a Foreign Currency) as may be
specified with respect to the Securities of such series, or any integral
multiple thereof, into that number of fully paid and nonassessable shares of
Common Stock (as such shares shall then be constituted) obtained by dividing the
aggregate principal amount of the Security or Securities or portion thereof
surrendered for conversion by the conversion price in effect at such time, by
surrender of the Securities to be so converted in whole or in part in the manner
provided in Subsection (b) below or as otherwise provided with respect to the
---------- ---
Securities of such series as contemplated by Section 3.01. A Holder of
------------
Securities is not entitled to any rights of a holder of Common Stock until such
Holder has converted his Securities.
(b) In order to exercise a conversion privilege, the Holder of any
Security or Securities to be converted in whole or in part shall surrender such
Security or Securities at an office or agency maintained by the Company for such
purpose as provided in Section 10.02, together with, if such Securities are
------- -----
Bearer Securities, all unmatured Coupons and any matured Coupons in default
appertaining thereto or, if such Securities are Registered Securities, the
funds, if any, required by the last paragraph of this Subsection (b), and with
--------------
the conversion notice thereon (or such other notice which is acceptable to the
Company, the Trustee, any agent appointed by the Company as a conversion agent
in respect of such Securities (each, a "Conversion Agent") and, if such
----------------
Securities are Registered Securities, the Security Registrar) duly executed, to
the Company at the office or agency of any Conversion Agent maintained for such
purpose as provided in Section 10.02 at which the Holder elects to convert such
-------------
Security or Securities or the portion thereof specified in said notice;
provided, however, that any Bearer Securities may be surrendered for conversion
-------- -------
only at an office or agency of any Conversion Agent maintained by the Company
pursuant to Section 10.02 which is
-------------
95
outside of the United States, except that, if conversion thereof at each such
office or agency outside the United States is illegal or effectively precluded
by exchange controls or other similar restrictions, such Bearer Securities may
be surrendered for conversion at such an office or agency in The City of New
York. Such notice shall be accompanied by such transfer taxes and duties, or
funds therefor, as are required pursuant to Subsection (g) below. Convertible
--------------
Registered Securities surrendered for conversion shall, unless the shares of
Common Stock issuable on conversion are to be issued in the name of the Holder
of such Registered Securities, be duly endorsed by, or be accompanied by
instruments of transfer in form satisfactory to the Company, the Trustee and the
applicable Security Registrar duly executed by, the Holder or his duly
authorized attorney.
As promptly as practicable after the surrender for conversion of any
such Security or Securities as aforesaid and the receipt of such Coupons, if
any, and notice as aforesaid (accompanied by the funds, if any, required by the
penultimate paragraph of this Section), the Company shall deliver or cause to be
delivered at such office or agency to or upon written order of the Holder
thereof a certificate or certificates representing the number of full shares of
Common Stock issuable upon the conversion of such Security or Securities or
portion thereof issued in such name or names as such Holder may direct and a
check or cash in respect of any fractional share of Common Stock arising upon
such conversion, as provided in Subsection (c) below. In case any Security or
--------------
Securities of a denomination greater than the minimum amount for conversion
referred to in Subsection (a) above shall be surrendered for conversion in part
--------------
only, the Company shall execute and the Trustee shall authenticate and deliver
to or upon the written order of the Holder of such Security or Securities so
surrendered, without charge to such Holder, and at the expense of the Company,
if any, a new Security or Securities in authorized denominations in an aggregate
principal amount equal to the unconverted portion of the surrendered Security or
Securities.
Each conversion of a convertible Security or Securities as aforesaid
shall be deemed to have been effected at the close of business on the date such
Security or Securities, Coupons, if any, and notices shall have been surrendered
as aforesaid (accompanied by the funds, if any, required by the penultimate
paragraph of this Section), and at such time the rights of the Holder of such
Security or Securities as Holder of the principal amount thereof so surrendered
for conversion shall cease and the person or persons in whose name or names the
certificate or certificates for shares of Common Stock are to be issued upon
such conversion shall be treated for all purposes as having become the holder or
holders of record of the shares represented thereby at such time and such
conversion shall be at the conversion price in effect at such time; provided,
--------
however, that any such surrender and payment on any date when the stock transfer
-------
books of the
96
Company shall be closed shall constitute the person or persons in whose name or
names the certificates for such shares of Common Stock are to be issued as the
record holder or holders thereof for all purposes at the close of business on
the next succeeding day on which such stock transfer books are opened and such
conversion shall be at the conversion price in effect at such time on such
succeeding day.
If the conversion date in respect of any convertible Registered
Securities or portion thereof is during the period from the close of business on
any Regular Record Date to the opening of business on the next succeeding
Interest Payment Date, such Registered Securities shall (unless such Registered
Securities or portion thereof being converted shall have been called for
redemption on a date during such period) be accompanied by payment in funds
acceptable to the Company of an amount equal to the interest otherwise payable
on such Interest Payment Date to the Holder thereof at the Close of business on
the Regular Record Date for such Interest Payment Date with respect to the
principal amount being converted; provided, however, that no such payment need
-------- -------
be made if there shall exist at the time of conversion a default in the payment
of interest on the Securities of such series. An amount equal to such payment
shall be paid by the Company on such Interest Payment Date to the Holder of such
Registered Securities at the close of business on such Regular Record Date;
provided, however, that if the Company shall default in the payment of interest
-------- -------
on such Interest Payment Date, such amount shall be paid to the person who made
such required payment. Except as provided in this paragraph, no adjustment
shall be made for any interest accrued on any Security or Securities converted
or for dividends on any shares of Common Stock issued upon the conversion of
such Security or Securities as provided in this Section 15.01.
-------------
If any Bearer Securities surrendered for conversion shall not be
accompanied by all related Coupons maturing after the conversion date, such
Securities may be converted only if there be furnished to the Company and the
Conversion Agent such security or indemnity as may be required by them to
indemnify and hold harmless each of them and any other agent of the Company and
evidence to their satisfaction that such Coupons are missing and of the
ownership thereof.
(c) No fractional shares of Common Stock or scrip representing
fractional shares shall be issued upon the conversion of any convertible
Securities. If more than one Security shall be surrendered for conversion at
one time by the same Holder, the number of full shares which shall be issuable
upon the conversion of such Securities shall be computed on the basis of the
aggregate principal amount of the Securities (or specified portions thereof to
the extent permitted hereby) so surrendered. If any fractional share of Common
Stock would, absent the provisions of this Subsection (c), be issuable upon the
--------------
97
conversion of any Security or Securities, the Company shall, in lieu of
delivering the fractional share therefor, adjust such fractional interest by
payment to the Holder of such surrendered Security or Securities of an amount in
cash equal to the current market value of such fractional interest, computed on
the basis of the closing price of the Common Stock (determined as provided in
paragraph (4) of Subsection (e) below) on the date of conversion.
------------- --------------
(d) The conversion price in respect of a series of convertible
Securities shall be as specified with respect to the Securities of such series
as contemplated by Section 3.01, subject to adjustment as provided in Subsection
------------ ----------
15.01(e).
--------
(e) The conversion price shall be adjusted from time to time by the
Company as follows:
(1) In case the Company shall (A) pay a dividend on the Common
Stock, or make a distribution to all holders of the Common Stock of, shares
of its capital stock (whether shares of Common Stock or of capital stock of
any other class), (B) subdivide its outstanding shares of Common Stock into
a greater number of shares, (C) combine its outstanding shares of Common
Stock into a smaller number of shares or (D) issue by reclassification of
its shares of Common Stock any shares of capital stock of the Company, the
conversion price in effect immediately prior to such action shall be
adjusted so that the Holder of any Security or Securities thereafter
surrendered for conversion shall be entitled to receive the number of
shares of capital stock of the Company which such Holder would have owned
or have been entitled to receive immediately following such action had such
Security or Securities been converted immediately prior thereto. An
adjustment made pursuant to this subparagraph (1) shall become effective
----------------
retroactively immediately after the record date in the case of a dividend
or distribution and shall become effective immediately after the effective
date in the case of a subdivision, combination or reclassification. If, as
a result of an adjustment made pursuant to this subparagraph (1), the
----------------
Holder of any Security or Securities thereafter surrendered for conversion
shall become entitled to receive shares of two or more classes of capital
stock of the Company, the Company (whose determination shall be conclusive)
shall determine the allocation of the conversion price between or among
shares of such classes of capital stock.
(2) In case the Company shall issue rights (other than rights under
a periodic dividend reinvestment plan that are exercisable at a price per
share of Common Stock of not less than 85% of the current market price per
share (determined as provided in such plan) of Common Stock) or warrants to
all
98
holders of Common Stock entitling them (for a period expiring within 45
days after the record date mentioned below) to subscribe for or purchase
shares of Common Stock at a price per share less than the current market
price per share of Common Stock (as determined pursuant to subparagraph (4)
----------------
below) on the record date mentioned below, the conversion price shall be
adjusted so that the same shall equal the price determined by multiplying
the conversion price in effect immediately prior to the date of issuance of
such rights or warrants by a fraction of which the numerator shall be the
number of shares of Common Stock outstanding on such date of issuance plus
the number of shares of Common Stock which the aggregate offering price of
the total number of shares of Common Stock so offered would purchase at
such current market price, and of which the denominator shall be the number
of shares of Common Stock outstanding on such date of issuance plus the
number of additional shares of Common Stock offered for subscription or
purchase. Such adjustment shall become effective retroactively immediately
after the record date for the determination of stockholders entitled to
receive such rights or warrants, and in the event that more than 10% of
such rights or warrants are not so exercised, the conversion price shall
again be adjusted to be the conversion price which would then be in effect
if the rights or warrants so exercised had been the only rights or warrants
offered.
(3) In case the Company shall distribute to all holders of the Common
Stock evidences of its indebtedness or assets (excluding any cash dividend
paid from the surplus account of the Company (designated "Retained
earnings" on the books of the Company)) or rights or warrants to subscribe
for securities of the Company (excluding (y) those referred to in
subparagraph (2) above and (z) rights under a periodic dividend or interest
----------------
reinvestment plan that are exercisable at a price per share of Common Stock
of not less than 85% of the current market price per share (determined as
provided in such plan) of Common Stock), then in each such case the
conversion price shall be adjusted so that the same shall equal the price
determined by multiplying the conversion price in effect immediately prior
to the date of such distribution by a fraction of which the numerator shall
be the current market price per share (determined as provided in
subparagraph (4) below) of Common Stock less the then fair market value (as
----------------
determined by the Board of Directors, whose determination shall be
conclusive) per share of Common Stock of the assets or evidences of
indebtedness so distributed or of such subscription rights or warrants, and
of which the denominator shall be such current market price per share of
Common Stock on the record date mentioned below. Such adjustment shall
become effective retroactively immediately after the record date for the
determination of stockholders entitled to receive such distribution, and in
the event that more than 10% of the rights or warrants so distributed are
not so
99
exercised, the conversion price shall again be adjusted to be the
conversion price which would then be in effect if the rights or warrants so
exercised had been the only rights or warrants so distributed.
(4) For the purpose of any computation under subparagraphs (2) and
-----------------
(3) above, the current market price per share of Common Stock on any date
---
shall be deemed to be the average of the daily closing prices for 30
consecutive Business Days in The City of New York commencing 45 such
Business Days before the day in question; provided, however, that if an
-------- -------
issuance or distribution of the types described under subparagraphs (2) and
---
(3) above is to be made, and no public announcement of such issuance or
---
distribution is made by or on behalf of the Company more than 20 trading
days (as defined below) before the day in question, the current market
price per share of Common Stock on such date shall be deemed to be the
average of the daily closing prices for the five consecutive trading days
selected by the Company not more than 20 trading days before, and ending
not later than, the day in question. The closing price for each day shall
be the last reported sales price on the New York Stock Exchange Composite
Tape, or, if not so reported, or, in case no such reported sale takes place
on such day, the average of the reported closing bid and asked quotations
on the New York Stock Exchange, or, if the Common Stock is not at such time
listed on such Exchange or no such quotations are available, the average of
the closing bid and asked prices of the Common Stock on NASDAQ or any
comparable system, or if the Common Stock is not listed on NASDAQ or a
comparable system, the closing bid and asked prices as furnished by any
member of the National Association of Securities Dealers, Inc. selected
from time to time by the Company for that purpose. If on any trading day
the Common Stock is not quoted by any organization referred to in this
subparagraph (4), the fair value of the Common Stock on such day, as
----------------
determined by the Board of Directors (whose determination shall be
conclusive), shall be used. For purposes of this subparagraph (4), the
----------------
term "trading day" shall mean each Monday, Tuesday, Wednesday, Thursday and
Friday other than any day on which securities are not traded on any such
exchange or in any such market referred to in this subparagraph (4).
----------------
(5) In the case of either (A) any consolidation or merger to which
the Company is a party, other than a consolidation or a merger in which the
Company is a continuing corporation and which does not result in any
reclassification of, or change (other than a change in, from or to par
value, or as a result of a subdivision or combination) in, outstanding
shares of the Common Stock, or (B) any sale or conveyance to another
corporation of the property of the Company as an entirety or substantially
as an entirety, then the successor or purchasing corporation, as the
100
case may be, shall execute with the Trustee an indenture supplemental
hereto providing that the Holder of each convertible Security or Securities
then Outstanding shall have the right to convert such Security or
Securities into the kind and amount of shares of stock and other securities
and property (including cash) receivable upon such consolidation, merger,
sale or conveyance by a holder of the number of shares of Common Stock
issuable upon conversion of such Security or Securities immediately prior
to such consolidation, merger, sale or conveyance, subject to adjustments
equivalent as nearly as practicable to the adjustments provided for in this
Section 15.01 assuming, in the case of any consolidation, merger, sale or
-------------
conveyance, such holder of Common Stock of the Company (i) is not a person
with or into which the Company consolidated or merged or which merged into
the Company or to which such sale or conveyance was made, as the case may
be ("constituent person"), or an affiliate of a constituent person and (ii)
----------- ------
failed to exercise such holder's rights of election, if any, as to the kind
or amount of shares of stock and other securities and property (including
cash) receivable upon such consolidation, merger, sale or conveyance
(provided that if the kind or amount of shares of stock and other
securities and property (including cash) receivable upon such
consolidation, merger, sale or conveyance is not the same for each share of
Common Stock held immediately prior to such consolidation, merger, sale or
conveyance by others than a constituent person or an affiliate thereof and
in respect of which such rights of election shall not have been exercised
("non-electing share"), then for the purpose of this Section 15.01 the kind
------------------ -------------
and amount of shares of stock and other securities and property (including
cash) receivable upon such consolidation, merger, sale or conveyance with
respect to each non-electing share shall be deemed to be the kind and
amount so receivable per share with respect to a plurality of the non-
electing shares). The provisions of this subparagraph (5) shall similarly
----------------
apply to successive consolidations, mergers, sales or conveyances.
(6) No adjustment in the conversion price shall be required unless
such adjustment would require an increase or decrease of at least 1% in
such price; provided, however, that any adjustments which by reason of this
-------- -------
subparagraph (6) are not required to be made shall be carried forward and
----------------
taken into account in any subsequent adjustment; and provided, further,
-------- -------
that adjustment shall be required and made in accordance with the
provisions of this Section 15.01 (other than this subparagraph (6)) not
------------- ----------------
later than the earlier of (A) three years after the date of the particular
event involved, (B) the date as to which the aggregate adjustments not
previously made would require a total increase or decrease of 1% in the
conversion price and (C) such other time as may be required in order to
preserve the tax-free nature of a distribution to the holders of shares of
Common Stock.
101
All calculations under this Section 15.01 shall be made by the Company and
-------------
shall be made to the nearest cent (or, in the case of Securities of a
series denominated in a Foreign Currency or Foreign Currencies, such other
nearest currency unit as may be specified with respect to the Securities of
such series as contemplated by Section 3.01) or to the nearest one-
------------
hundredth of a share, as the case may be. Anything in this Section 15.01
-------------
to the contrary notwithstanding, (i) the Company shall be permitted to make
such adjustments in the conversion price, in addition to those required by
this Section 15.01, as it in its discretion shall consider to be advisable
-------------
in order that any stock dividends, subdivision of shares, distribution of
rights to purchase stock or securities or distribution of securities
convertible into or exchangeable for stock hereafter made by the Company to
its stockholders shall not be taxable to the holders of the Common Stock
and (ii) the Company may at any time decrease the conversion price by any
amount.
(7) Whenever the conversion price with respect to any convertible
Securities is adjusted as herein provided, the Company shall promptly file
with the Trustee and any Conversion Agent other than the Trustee an
Officers' Certificate setting forth the conversion price after such
adjustment, a brief statement of the facts requiring such adjustment and,
in the event the conversion price is adjusted other than pursuant to clause
------
(ii) of the last sentence of subparagraph (6) above, the method of
---- ----------------
calculation thereof. In lieu of delivering such Officers' Certificate, the
Company may deliver to the Trustee and any Conversion Agent, a certificate
of any firm of independent public accountants selected by the Company (who
may be the regular accountants employed by the Company) setting forth the
conversion price and the method of calculation thereof. Any such Officers'
Certificate or certificate of any firm of independent public accountants
shall be evidence of the correctness of any adjustment of the conversion
price made pursuant to this Subsection (e). Neither the Trustee nor any
--------------
Conversion Agent shall bear any responsibility with respect to any such
Officers' Certificate or certificate. Promptly after delivery of such
certificate, the Company shall, if any of such Securities are Bearer
Securities, cause a notice stating that the conversion price has been
adjusted and setting forth the adjusted conversion price to be published at
least once in an Authorized Newspaper and, if any of such Securities are
Registered Securities, to be mailed to each Holder at such Holder's address
as it appears on the Security Register; provided, however, that if it shall
-------- -------
be impractical to make publication of such notice as provided herein, then
such publication or other notice in lieu thereof as shall be made to the
Trustee shall constitute sufficient publication of such notice; and
provided, further, that if within ten days after the publishing and mailing
-------- -------
of such a notice an event occurs which would require the publishing and
mailing of an additional
102
notice, such additional notice shall be published and mailed as aforesaid
promptly but in no event earlier than the tenth day after the publishing
and mailing of the immediately prior notice.
(8) In any case in which this Subsection (e) shall require that an
--------------
adjustment be made retroactively immediately following a record date, the
Company may elect to defer (but only until five Business Days following the
filing of the Officers' Certificate as provided in subparagraph (7) above)
----------------
(y) issuing to the holder of any share of Common Stock obtained upon
conversion of Securities after such record date the shares of Common Stock
and other capital stock of the Company issuable upon such conversion only
on the basis of the conversion price prior to adjustment and (z) paying to
such Holder any amount in cash in lieu of any fraction pursuant to
Subsection (c).
--------------
(f) In case of any consolidation or merger of the Company with or
into any other corporation (other than a consolidation or merger in which the
Company is the continuing corporation), or in case of any sale or transfer of
all or substantially all the assets of the Company, the corporation formed by
such consolidation or the corporation into which the Company shall have been
merged or the corporation which shall have acquired such assets, as the case may
be, execute with the Trustee an indenture supplemental hereto providing that the
Holder of each convertible Security or Securities then Outstanding shall
thereafter have the right to convert such Security or Securities pursuant to
Subsection (e)(5) above subject to adjustment for events after the grant
-----------------
subsequent to the effective date thereof equivalent as nearly as practicable to
the adjustment provided for in Subsection (f) above. The provisions of this
--------------
Subsection (f) shall similarly apply to successive consolidations, mergers,
--------------
sales or transfers.
(g) The issuance of certificates for shares of Common Stock on
conversion of Securities pursuant hereto shall be made at the expense of the
Company and without charge to the Holder converting a Security or Securities for
any stamp or other similar tax or duty in respect of the issue thereof;
provided, however, that if any such certificate is to be issued in a name other
-------- -------
than that of the Holder of the Security or Securities to be converted, the
person or persons requesting the issuance thereof shall pay to the Company the
amount of any tax or duty which may be payable in respect of any transfer
involved in such issuance or delivery or shall establish to the satisfaction of
the Company that such tax or duty has been paid. Certificates representing
shares of Common Stock will not be issued or delivered unless all taxes and
duties, if any, payable by such Holder have been paid.
103
(h) The Company covenants that it will at all times reserve and keep
available, solely for the purpose of issue upon conversion of Securities, such
number of shares of Common Stock as shall be issuable upon the conversion of all
outstanding Securities; provided, however, that nothing contained herein shall
-------- -------
be construed to preclude the Company from satisfying its obligations in respect
of the conversion of the Securities by delivery of purchased shares of Common
Stock which are held in the treasury of the Company. For the purposes of this
Subsection (h), the full number of shares of Common Stock issuable upon the
--------------
conversion of all outstanding Securities shall be computed as if at the time of
computation of such number of shares of Common Stock all outstanding Securities
were held by a single holder. Unless otherwise provided with respect to the
convertible Securities of any series as provided in Section 3.01, the Company
------------
covenants that if any shares of Common Stock required to be reserved for
issuance upon conversions of such Securities hereunder require registration with
or approval of any governmental authority under any federal or state law before
such shares may be issued upon such conversions, the Company will cause such
shares to be duly registered or approved, as the case may be. Unless otherwise
provided with respect to the convertible Securities of any series as provided in
Section 3.01, the Company will endeavor to list the shares of Common Stock
------------
required to be delivered upon conversion of such Securities hereunder prior to
such delivery on the New York Stock Exchange and any other securities exchange
on which the outstanding Common Stock is listed at the time of such delivery.
Before taking any action which would cause an adjustment reducing the then
conversion price of any convertible Securities below the then par value, if any,
of the Common Stock, the Company will take all corporate action which may, in
the opinion of its counsel, be necessary in order that the Company may validly
and legally issue shares of such Common Stock at such adjusted conversion price.
The Company covenants that all authorized but unissued shares of Common Stock
which may at any time be reserved pursuant to this Subsection (h) for issuance
--------------
upon conversions of any convertible Securities will be free from preemptive
rights and duly and validly authorized for issuance upon such conversions and
that all shares of Common Stock which may at any time be issued upon conversions
of such Securities in accordance with the terms hereof and thereof will upon
such issuance, be free from preemptive rights, duly and validly authorized and
issued, fully paid and nonassessable.
(i) Neither the Trustee nor any Conversion Agent shall at any time be
under any duty or responsibility to any Holder of convertible Securities to
determine whether any facts exist which may require any adjustment of the
conversion price thereof, or with respect to the nature or extent of any such
adjustment when made or with respect to the method employed, herein provided to
be employed, in making the same. Neither the Trustee nor any Conversion Agent
shall be accountable with respect to the validity or value (or the kind or
amount) of any shares of Common Stock, or of any securities or
104
property (including cash) which may at any time be issued or delivered upon the
conversion of any such Security or Securities; and neither the Trustee nor any
Conversion Agent makes any representations with respect thereto. Subject to
Section 6.01, neither the Trustee nor any Conversion Agent shall be responsible
------------
for any failure of the Company to issue, transfer or deliver any shares of
Common Stock or stock certificates or other securities or property (including
cash) upon the surrender of any convertible Security for the purpose of
conversion or to comply with any of the duties, responsibilities or covenants of
the Company contained in this Section 15.01.
-------------
(j) In case:
(1) the Company shall take any action which would require an
adjustment in the conversion price with respect to any convertible
Securities of a series pursuant to Subsection (e) above; or
--------------
(2) the Company shall authorize the granting to the holders of the
Common Stock of rights or warrants to subscribe for or purchase any shares
of stock of any class or any other rights or warrants and notice thereof
shall be given to holders of Common Stock; or
(3) there shall be any capital reorganization or reclassification
of the Common Stock (other than a subdivision or combination of the
outstanding Common Stock and other than a change in, from or to par value
of the Common Stock), or any consolidation or merger to which the Company
is a party and for which approval of any stockholders of the Company is
required, or any sale or transfer of all or substantially all of the assets
of the Company; or
(4) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company;
then the Company shall cause to be filed with the Trustee and any Conversion
Agent and, with respect to Registered Securities of such series, to be mailed to
each Holder and, with respect to Bearer Securities of such series, published as
provided in Subsection (e)(7), at least 10 days prior to the applicable date
-----------------
hereinafter specified, a notice setting forth (x) the date on which a record is
to be taken for the purpose of any distribution or grant to holders of Common
Stock, or, if a record is not to be taken, the date as of which the holders of
Common Stock of record to be entitled to such distribution or grant are to be
determined or (y) the date on which such reorganization, reclassification,
consolidation, merger, sale, transfer, dissolution, liquidation or winding up is
expected to become effective, and the date as of which it is expected that
holders of Common Stock of record shall be entitled to exchange their shares of
Common Stock for securities or other
105
property deliverable upon such reorganization, reclassification, consolidation,
merger, sale, transfer, dissolution, liquidation or winding up. Failure to give
such notice, or any defect therein, shall not affect the legality or validity of
the proceedings described in paragraphs (1) through (4) of this Subsection (j).
--- --- --------------
(k) Notwithstanding anything else in this Section 15.01, any funds
-------------
which at any time shall have been deposited by the Company or on its behalf with
any Paying Agent for the purpose of paying interest on or the redemption or
repayment price of any convertible Securities and which shall not be required
for such purposes because of the conversion of such Securities, upon delivery to
such Paying Agent of evidence satisfactory to it of such conversion, after such
conversion, shall be repaid to the Company by such Paying Agent.
(1) All Securities surrendered for conversion shall, if applicable,
be delivered to the Trustee for cancellation and shall be cancelled and
destroyed by the Trustee as provided in Section 3.09.
------------
106
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the date first above written.
FORTUNE BRANDS, INC.
By: _______________________________
Name:
Title:
Attest:
THE CHASE MANHATTAN BANK,
Trustee
By: ________________________________
Name:
Title:
Attest:
107
