EXHIBIT 4.2
THE AES CORPORATION
as the Company
and
THE FIRST NATIONAL BANK OF CHICAGO
as Trustee
----------------------------------
Subordinated Indenture
Dated as of July 1, 1996
----------------------------------
TABLE OF CONTENTS(*)
(*) Note: The Table of Contents shall not for any purposes be deemed
to be a part of the Indenture.
Page
----
RECITALS OF THE COMPANY
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions................................................ 1
SECTION 1.2 Other Definitions.......................................... 7
SECTION 1.3 Incorporation by Reference of Trust Indenture Act.......... 7
SECTION 1.4 Rules of Construction...................................... 8
ARTICLE 2
THE SECURITIES
SECTION 2.1 Form and Dating............................................ 8
SECTION 2.2 Execution and Authentication............................... 8
SECTION 2.3 Amount Unlimited; Issuable in Series....................... 10
SECTION 2.4 Denomination and Date of Securities; Payments of Interest.. 14
SECTION 2.5 Registrar and Paying Agent; Agents Generally............... 14
SECTION 2.6 Paying Agent to Hold Money in Trust........................ 15
SECTION 2.7 Transfer and Exchange...................................... 16
SECTION 2.8 Replacement Securities..................................... 19
SECTION 2.9 Outstanding Securities..................................... 20
SECTION 2.10 Temporary Securities....................................... 21
SECTION 2.11 Cancellation............................................... 21
SECTION 2.12 CUSIP Numbers.............................................. 22
SECTION 2.13 Defaulted Interest......................................... 22
SECTION 2.14 Series May Include Tranches................................ 22
ARTICLE 3
REDEMPTION
SECTION 3.1 Applicability of Article................................... 23
SECTION 3.2 Notice of Redemption; Partial Redemptions.................. 23
SECTION 3.3 Payment of Securities Called for Redemption................ 25
SECTION 3.4 Exclusion of Certain Securities from Eligibility for
Selection for Redemption................................... 26
SECTION 3.5 Mandatory and Optional Sinking Funds....................... 27
ARTICLE 4
COVENANTS
SECTION 4.1 Payment of Securities...................................... 30
SECTION 4.2 Maintenance of Office or Agency............................ 31
SECTION 4.3 Securityholders' Lists..................................... 32
SECTION 4.4 Certificate to Trustee..................................... 32
SECTION 4.5 Reports by the Company..................................... 33
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.1 When Company May Merge, Etc................................ 33
SECTION 5.2 Successor Substituted...................................... 34
ARTICLE 6
DEFAULT AND REMEDIES
SECTION 6.1 Events of Default........................................... 34
SECTION 6.2 Acceleration................................................ 35
SECTION 6.3 Other Remedies.............................................. 37
SECTION 6.4 Waiver of Past Defaults..................................... 37
SECTION 6.5 Control by Majority......................................... 38
SECTION 6.6 Limitation on Suits......................................... 38
SECTION 6.7 Rights of Holders to Receive Payment........................ 39
SECTION 6.8 Collection Suit by Trustee.................................. 39
SECTION 6.9 Trustee May File Proofs of Claim............................ 39
SECTION 6.10 Application of Proceeds..................................... 40
SECTION 6.11 Restoration of Rights and Remedies.......................... 41
SECTION 6.12 Undertaking for Costs....................................... 41
SECTION 6.13 Rights and Remedies Cumulative.............................. 42
SECTION 6.14 Delay or Omission Not Waiver................................ 42
ARTICLE 7
TRUSTEE
SECTION 7.1 General.................................................... 42
SECTION 7.2 Certain Rights of Trustee.................................. 42
SECTION 7.3 Individual Rights of Trustee............................... 44
SECTION 7.4 Trustee's Disclaimer....................................... 45
SECTION 7.5 Notice of Default.......................................... 45
SECTION 7.6 Reports by Trustee to Holders.............................. 46
SECTION 7.7 Compensation and Indemnity................................. 46
SECTION 7.8 Replacement of Trustee..................................... 47
SECTION 7.9 Successor Trustee by Merger, Etc........................... 48
SECTION 7.10 Eligibility................................................ 49
SECTION 7.11 Money Held in Trust........................................ 49
ARTICLE 8
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS.
SECTION 8.1 Satisfaction and Discharge of Indenture.................... 49
SECTION 8.2 Application by Trustee of Funds Deposited for Payment of
Securities................................................. 50
SECTION 8.3 Repayment of Moneys Held by Paying Agent................... 51
SECTION 8.4 Return of Moneys Held by Trustee and Paying Agent Unclaimed
for Two Years.............................................. 51
SECTION 8.5 Defeanance and Discharge of Indenture...................... 52
SECTION 8.6 Defeasance of Certain Obligations.......................... 53
SECTION 8.7 Reinstatement.............................................. 55
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.1 Without Consent of Holders................................. 55
SECTION 9.2 With Consent of Holders.................................... 56
SECTION 9.3 Revocation and Effect of Consent........................... 57
SECTION 9.4 Notation on or Exchange of Securities...................... 58
SECTION 9.5 Trustee to Sign Amendments, Etc............................ 58
SECTION 9.6 Conformity with Trust Indenture Act........................ 59
ARTICLE 10
MISCELLANEOUS
SECTION 10.1 Trust Indenture Act of 1939................................ 59
SECTION 10.2 Notices.................................................... 59
SECTION 10.3 Certificate and Opinion as to Conditions Precedent......... 61
SECTION 10.4 Statements Required in Certificate or Opinion.............. 61
SECTION 10.5 Evidence of Ownership...................................... 61
SECTION 10.6 Rules by Trustee, Paying Agent or Registrar................ 62
SECTION 10.7 Payment Date Other Than a Business Day..................... 62
SECTION 10.8 Governing Law.............................................. 63
SECTION 10.9 No Adverse Interpretation of Other Agreements.............. 63
SECTION 10.10 Successors................................................. 63
SECTION 10.11 Duplicate Originals........................................ 63
SECTION 10.12 Separability............................................... 63
SECTION 10.13 Table of Contents, Headings, Etc........................... 63
SECTION 10.14 Incorporators, Stockholders, Officers and Directors of
Company Exempt from Individual Liability................... 63
SECTION 10.15 Judgment Currency.......................................... 64
ARTICLE 11
SUBORDINATION OF SECURITIES
SECTION 11.1 Agreement to Subordinate................................... 64
SECTION 11.2 Payments to Securityholders................................ 65
SECTION 11.3 Subrogation of Securities.................................. 67
SECTION 11.4 Authorization by Securityholders........................... 68
SECTION 11.5 Notice to Trustee.......................................... 68
SECTION 11.6 Trustee's Relation to Senior Debt.......................... 70
SECTION 11.7 No Impairment of Subordination............................. 70
SIGNATURES
INDENTURE, dated as of July 1, 1996, between The AES
Corporation., a Delaware corporation, as the Company, and The First National
Bank of Chicago, a national association, as Trustee.
RECITALS OF THE COMPANY
WHEREAS, the Company has duly authorized the issue from time to
time of its debentures, notes or other evidences of indebtedness to be issued
in one or more series (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, among other things, for the authentication,
delivery and administration thereof, the Company has duly authorized the
execution and delivery of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid
indenture and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the
Securities by the holders thereof, the Company and the Trustee mutually
covenant and agree for the equal and proportionate benefit of the respective
holders from time to time of the Securities or of any and all series thereof
and of the coupons, if any, appertaining thereto as follows:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions.
"Affiliate" of any Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such Person. For the purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling", "controlled
by" and "under common control with") when used with respect to any Person
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of such Person, whether through
the ownership of voting securities, by contract or otherwise.
"Agent" means any Registrar, Paying Agent, transfer agent or
Authenticating Agent.
"Authorized Newspaper" means a newspaper (which, in the case of
The City of New York, will, if practicable, be The Wall Street Journal
(Eastern Edition) and in the case of London, will, if practicable, be the
Financial Times (London Edition) and 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 and of general circulation in The City of New
York or London, as applicable. If it shall be impractical in the opinion of
the Trustee to make any publication of any notice required hereby in an
Authorized Newspaper, any publication or other notice in lieu thereof which is
made or given with the approval of the Trustee shall constitute a sufficient
publication of such notice.
"Bank Credit Agreement" means the Credit Agreement dated as of
May 20, 1996 among the Company, the Banks named on the signature pages thereof
and Xxxxxx Guaranty Trust Company of New York, as such Agreement has been and
may be amended, restated, supplemented or otherwise modified from time to
time, and includes any agreement extending the maturity of, or restructuring
(including, but not limited to, the inclusion of additional borrowers
thereunder that are Subsidiaries of the Company and whose obligations are
guaranteed by the Company thereunder) all or any portion of, the Debt under
such Agreement or any successor agreements and includes any agreement with one
or more banks or other lending institutions refinancing all or any portion of
the Debt under such Agreement or any successor agreements.
"Board Resolution" means one or more resolutions of the board
of directors of the Company or any authorized committee thereof, certified by
the secretary or an assistant secretary to have been duly adopted and to be in
full force and effect on the date of certification, and delivered to the
Trustee.
"Business Day" means any day, other than a Saturday or Sunday,
that is neither a legal holiday nor a day on which banking institutions are
authorized or required by law or regulation to close in The City of New York,
with respect to any Security the interest on which is based on the offered
quotations in the interbank Eurodollar market for dollar deposits in London,
or with respect to Securities denominated in a specified currency other than
United States dollars, in the principal financial center of the country of the
specified currency.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act or, if at any
time after the execution of this instrument such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act,
then the body performing such duties at such time.
"Company" means the party named as such in the first paragraph
of this Indenture until a successor replaces it pursuant to Article 5 of this
Indenture and thereafter means the successor.
"Corporate Trust Office" means the office of the Trustee at which
the corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date of this Indenture,
located at 00 Xxxx Xxxxxx, 0xx Xxxxx, Window 2, Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration.
"Default" means any Event of Default as defined in Section 6.1
and any event that is, or after notice or passage of time or both would be, an
Event of Default.
"Depositary" means, with respect to the Securities of any
series issuable or issued in the form of one or more Registered Global
Securities, the Person designated as Depositary by the Company pursuant to
Section 2.3 until a successor Depositary shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Depositary"
shall mean or include each Person who is then a Depositary hereunder, and
if at any time there is more than one such Person, "Depositary" as used
with respect to the Securities of any such series shall mean the Depositary
with respect to the Registered Global Securities of that series.
"Designated Senior Debt" means (i) Debt under the Bank Credit
Agreement and (ii) Debt constituting Senior Debt which, at the time of its
determination, (A) has an aggregate principal amount of at least $30 million
and (B) is specifically designated in the instrument evidencing such Senior
Debt as "Designated Senior Debt" by the Company.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"GAAP" means generally accepted accounting principles in the U.S.
as in effect as of the Closing Date applied on a basis consistent with the
principles, methods, prodedures and practices employed in the preparation of the
Company's audited financial statements, including, without limitation, those set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as is approved by a significant segment of the
accounting profession.
"Holder" or "Securityholder" means the registered holder of any
Security with respect to Registered Securities and the bearer of any
Unregistered Security or any coupon appertaining thereto, as the case may be.
"Indenture" means this Indenture as originally executed and
delivered or as it may be amended or supplemented from time to time by one
or more indentures supplemental to this Indenture entered into pursuant to
the applicable provisions of this Indenture and shall include the forms and
terms of the Securities of each series established as contemplated pursuant
to Sections 2.1 and 2.3.
"Officer" means, with respect to the Company, the chairman of
the board of directors, the president or chief executive officer, any vice
president, the chief financial officer, the treasurer or any assistant
treasurer, or the secretary or any assistant secretary.
"Officers' Certificate" means a certificate signed in the name
of the Company (i) by the chairman of the board of directors, the president or
chief executive officer or a vice president and (ii) by the chief financial
officer, the treasurer or any assistant treasurer, or the secretary or any
assistant secretary, complying with Section 10.4 and delivered to the Trustee.
Each such certificate shall comply with Section 314 of the Trust Indenture Act
and include (except as otherwise expressly provided in this Indenture) the
statements provided in Section 10.4.
"Opinion of Counsel" means a written opinion signed by legal
counsel, who may be an employee of or counsel to the Company, satisfactory to
the Trustee and complying with Section 10.4. Each such opinion shall comply
with Section 314 of the Trust Indenture Act and include the statements
provided in Section 10.4, if and to the extent required thereby.
"original issue date" of any Security (or portion thereof)
means the earlier of (a) the date of authentication of such Security or (b)
the date of any Security (or portion thereof) for which such Security was
issued (directly or indirectly) on registration of transfer, exchange or
substitution.
"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 6.2.
"Periodic Offering" means an offering of Securities of a series
from time to time, the specific terms of which Securities, including, without
limitation, the rate or rates of interest, if any, thereon, the stated
maturity or maturities thereof and the redemption provisions, if any, with
respect thereto, are to be determined by the Company or its agents upon the
issuance of such Securities.
"Person" means an individual, a corporation, a partnership, a
limited liability company, an association, a trust or any other entity or
organization, including a government or political subdivision or an agency or
instrumentality thereof.
"Principal" of a Security means the principal amount of, and,
unless the context indicates otherwise, includes any premium payable on, the
Security.
"Registered Global Security" means a Security evidencing all or
a part of a series of Registered Securities, issued to the Depositary for such
series in accordance with Section 2.2, and bearing the legend prescribed in
Section 2.2.
"Registered Security" means any Security registered on the
Security Register (as defined in Section 2.5).
"Responsible Officer" means, when used with respect to the
Trustee, any senior trust officer, any vice president, any trust officer, any
assistant trust officer, or any other officer or assistant officer of the
Trustee customarily performing functions similar to those performed by the
persons who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of his knowledge of and familiarity
with the particular subject.
"Securities" means any of the securities, as defined in the
first paragraph of the recitals hereof, that are authenticated and delivered
under this Indenture and, unless the context indicates otherwise, shall
include any coupon appertaining thereto.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Debt" means the principal of (and premium, if any) and
interest on all Debt of the Company whether created, incurred or assumed before,
on or after the date of the issuance of the Securities; provided that Senior
Debt shall not include (i) the Company's 9 3/4% Senior Subordinated Notes Due
2002 which rank pari passu to the Securities, (ii) the Company's 6 1/2%
Convertible Subordinated Debentures Due 2002 which rank junior to the
Securities, (iii) Debt of the Company to any Affiliate, (iv) any other Debt of
the Company which by the terms of the instrument creating or evidencing the same
are specifically designated as not being senior in right of payment to the
Securities and (v) redeemable stock of the Company.
"Subsidiary" means, with respect to any Person, any
corporation, association or other business entity of which a majority of
the capital stock or other ownership interests having ordinary voting power
to elect a majority of the board of directors or other persons performing
similar functions are at the time directly or indirectly owned by such
Person.
"Trustee" means the party named as such in the first paragraph
of this Indenture until a successor replaces it in accordance with the
provisions of Article 7 and thereafter means such successor.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended (15 U.S. Code Section Section 77aaa-77bbbb), as it may be amended
from time to time.
"Unregistered Security" means any Security other than a
Registered Security.
"U.S. Government Obligations" means securities that are (i)
direct obligations of the United States of America for the payment of which
its full faith and credit is pledged or (ii) obligations of an agency or
instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States of America, and shall also include a depository receipt issued by a
bank or trust company as custodian with respect to any such U.S. Government
Obligation or a specific payment of interest on or principal of any such U.S.
Government Obligation held by such custodian for the account of the holder of
a depository receipt; provided that (except as required by law) such custodian
is not authorized to make any deduction from the amount payable to the holder
of such depository receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific payment of interest
on or principal of the U.S. Government Obligation evidenced by such depository
receipt.
"Yield to Maturity" means, as the context may require, the
yield to maturity (i) on a series of Securities or (ii) if the Securities of a
series are issuable from time to time, on a Security of such series,
calculated at the time of issuance of such series in the case of clause (i) or
at the time of issuance of such Security of such series in the case of clause
(ii), or, if applicable, at the most recent redetermination of interest on
such series or on such Security, and calculated in accordance with the constant
interest method or such other accepted financial practice as is specified in
the terms of such Security.
SECTION 1.2 Other Definitions. Each of the following
terms is defined in the section set forth opposite such term:
Term Section
---- -------
Authenticating Agent 2.2
cash transaction 7.3
Dollars 4.2
Event of Default 6.1
Judgment Currency 10.15
mandatory sinking fund payment 3.5
optional sinking fund payment 3.5
Paying Agent 2.5
Payment Blockage Period 11.2
record date 2.4
Registrar 2.5
Required Currency 10.15
Security Register 2.5
self-liquidating paper 7.3
sinking fund payment date 3.5
tranche 2.14
SECTION 1.3 Incorporation by Reference of Trust Indenture
Act. Whenever this Indenture refers to a provision of the Trust Indenture
Act, the provision is incorporated by reference in and made a part of this
Indenture. The following terms used in this Indenture that are defined by the
Trust Indenture Act have the following meanings:
"indenture securities" means the Securities;
"indenture security holder" means a Holder or a Securityholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee; and
"obligor" on the indenture securities means the Company or any
other obligor on the Securities.
All other terms used in this Indenture that are defined by the
Trust Indenture Act, defined by reference in the Trust Indenture Act to
another statute or defined by a rule of the Commission and not otherwise
defined herein have the meanings assigned to them therein.
SECTION 1.4 Rules of Construction. Unless the context
otherwise requires:
(i) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(ii) words in the singular include the plural, and words in
the plural include the singular;
(iii) "herein," "hereof" and other words of similar import
refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision;
(iv) all references to Sections or Articles refer to Sections
or Articles of this Indenture unless otherwise indicated; and
(v) use of masculine, feminine or neuter pronouns should not
be deemed a limitation, and the use of any such pronouns should be
construed to include, where appropriate, the other pronouns.
ARTICLE 2
THE SECURITIES
SECTION 2.1 Form and Dating. The Securities of each
series shall be substantially in such form or forms (not inconsistent with
this Indenture) as shall be established by or pursuant to one or more Board
Resolutions or in one or more indentures supplemental hereto, in each case
with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture and may have
imprinted or otherwise reproduced thereon such legend or legends or
endorsements, not inconsistent with the provisions of this Indenture, as may
be required to comply with any law, or with any rules of any securities
exchange or usage, all as may be determined by the officers executing such
Securities as evidenced by their execution of the Securities. Unless
otherwise so established, Unregistered Securities shall have coupons attached.
SECTION 2.2 Execution and Authentication. Two Officers
shall execute the Securities (other than coupons) for the Company by facsimile
or manual signature in the name and on behalf of the Company. The seal of the
Company, if any, shall be reproduced on the Securities. If an Officer whose
signature is on a Security no longer holds that office at the time the
Security is authenticated, the Security shall nevertheless be valid.
The Trustee, at the expense of the Company, may appoint an
authenticating agent (the "Authenticating Agent") to authenticate Securities
(other than coupons). The Authenticating Agent may authenticate Securities
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such Authenticating
Agent.
A Security (other than coupons) shall not be valid until the
Trustee or Authenticating Agent manually signs the certificate of
authentication on the Security. The signature shall be conclusive evidence
that the Security has been authenticated under this Indenture.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series
having attached thereto appropriate coupons, if any, executed by the Company
to the Trustee for authentication together with the applicable documents
referred to below in this Section, and the Trustee shall thereupon
authenticate and deliver such Securities to or upon the written order of the
Company. In authenticating any Securities of a series, the Trustee shall be
entitled to receive prior to the first authentication of any Securities of
such series, and (subject to Article 7) shall be fully protected in relying
upon, unless and until such documents have been superseded or revoked:
(1) any Board Resolution and/or executed supplemental
indenture referred to in Sections 2.1 and 2.3 by or pursuant to which
the forms and terms of the Securities of that series were established;
(2) an Officers' Certificate setting forth the form or forms
and terms of the Securities, stating that the form or forms and terms
of the Securities of such series have been, or will be when
established in accordance with such procedures as shall be referred
to therein, established in compliance with this Indenture; and
(3) an Opinion of Counsel substantially to the effect that the
form or forms and terms of the Securities of such series have been,
or will be when established in accordance with such procedures as
shall be referred to therein, established in compliance with this
Indenture and that the supplemental indenture, to the extent
applicable, and Securities have been duly authorized and, if executed
and authenticated in accordance with the provisions of the Indenture
and delivered to and duly paid for by the purchasers thereof on the
date of such opinion, would be entitled to the benefits of the
Indenture and would be valid and binding obligations of the Company,
enforceable against the Company in accordance with their respective
terms, subject to bankruptcy, insolvency, reorganization,
receivership, moratorium and other similar laws affecting creditors'
rights generally, general principles of equity, and such other
matters as shall be specified therein.
If the Company shall establish pursuant to Section 2.3 that the
Securities of a series or a portion thereof are to be issued in the form of
one or more Registered Global Securities, then the Company shall execute and
the Trustee shall authenticate and deliver one or more Registered Global
Securities that (i) shall represent and shall be denominated in an amount
equal to the aggregate principal amount of all of the Securities of such
series issued in such form and not yet cancelled, (ii) shall be registered in
the name of the Depositary for such Registered Global Security or Securities
or the nominee of such Depositary, (iii) shall be delivered by the Trustee to
such Depositary or its custodian or pursuant to such Depositary's instructions
and (iv) shall bear a legend substantially to the following effect: "Unless
and until it is exchanged in whole or in part for Securities in definitive
registered form, this Security may not be transferred except as a whole by the
Depositary to the nominee of the Depositary or by a nominee of the Depositary
to the Depositary or another nominee of the Depositary or by the Depositary or
any such nominee to a successor Depositary or a nominee of such successor
Depositary."
SECTION 2.3 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 and shall be
subordinated to the Senior Debt pursuant to the provisions of Article 11
hereof. There shall be established in or pursuant to Board Resolution or one
or more indentures supplemental hereto, prior to the initial issuance of
Securities of any series, subject to the last sentence of this Section 2.3,
(1) the designation of the Securities of the series, which
shall distinguish the Securities of the series from the Securities of
all other series;
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered
under this Indenture and any limitation on the ability of the Company
to increase such aggregate principal amount after the initial
issuance of the Securities of that series (except for Securities
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, or upon redemption of, other Securities
of the series pursuant hereto);
(3) the date or dates on which the principal of the Securities
of the series is payable (which date or dates may be fixed or
extendible);
(4) the rate or rates (which may be fixed or variable) per
annum at which the Securities of the series shall bear interest, if
any, the date or dates from which such interest shall accrue, on
which such interest shall be payable and (in the case of Registered
Securities) on which a record shall be taken for the determination of
Holders to whom interest is payable and/or the method by which such
rate or rates or date or dates shall be determined;
(5) if other than as provided in Section 4.2, the place or
places where the principal of and any interest on Securities of the
series shall be payable, any Registered Securities of the series may
be surrendered for exchange, notices, demands to or upon the Company
in respect of the Securities of the series and this Indenture may be
served and notice to Holders may be published;
(6) the right, if any, of the Company to redeem Securities of
the series, in whole or in part, at its option and the period or
periods within which, the price or prices at which and any terms and
conditions upon which Securities of the series may be so redeemed,
pursuant to any sinking fund or otherwise;
(7) the obligation, if any, of the Company to redeem, purchase
or repay Securities of the series pursuant to any mandatory
redemption, sinking fund or analogous provisions or at the option of
a Holder thereof and the price or prices at which and the period or
periods within which and any of the terms and conditions upon which
Securities of the series shall be redeemed, purchased or repaid, in
whole or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the series
shall be issuable;
(9) if other than the 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;
(10) if other than the coin or currency in which the Securities
of the series are denominated, the coin or currency in which payment
of the principal of or interest on the Securities of the series shall
be payable or if the amount of payments of Principal of and/or
interest on the Securities of the series may be determined with
reference to an index based on a coin or currency other than that in
which the Securities of the series are denominated, the manner in
which such amounts shall be determined;
(11) if other than the currency of the United States of
America, the currency or currencies, including composite currencies,
in which payment of the Principal of and interest on the Securities
of the series shall be payable, and the manner in which any such
currencies shall be valued against other currencies in which any
other Securities shall be payable;
(12) whether the Securities of the series or any portion thereof
will be issuable as Registered Securities (and if so, whether such
Securities will be issuable as Registered Global Securities) or
Unregistered Securities (with or without coupons), or any combination
of the foregoing, any restrictions applicable to the offer, sale or
delivery of Unregistered Securities or the payment of interest
thereon and, if other than as provided herein, the terms upon which
Unregistered Securities of any series may be exchanged for Registered
Securities of such series and vice versa;
(13) whether and under what circumstances the Company will pay
additional amounts on the Securities of the series held by a person
who is not a U.S. person in respect of any tax, assessment or
governmental charge withheld or deducted and, if so, whether the
Company will have the option to redeem such Securities rather than
pay such additional amounts;
(14) if the Securities of the series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
the form and terms of such certificates, documents or conditions;
(15) any trustees, depositaries, authenticating or paying
agents, transfer agents or the registrar or any other agents with
respect to the Securities of the series;
(16) provisions, if any, for the defeasance of the Securities of
the series (including provisions permitting defeasance of less than
all Securities of the series), which provisions may be in addition
to, in substitution for, or in modification of (or any combination of
the foregoing) the provisions of Article 8;
(17) if the Securities of the series are issuable in whole or in
part as one or more Registered Global Securities, the identity of the
Depositary for such Registered Global Security or Securities;
(18) any other events of default or covenants with respect to
the Securities of the series; and
(19) any other terms of the Securities of the series (which
terms shall not be inconsistent with the provisions of this
Indenture).
All Securities of any one series and coupons, if any,
appertaining thereto shall be substantially identical, except in the case of
Registered Securities as to date and denomination, except in the case of any
Periodic Offering and except as may otherwise be provided by or pursuant to
the Board Resolution referred to above or as set forth in any such indenture
supplemental hereto. All Securities of any one series need not be issued at
the same time and may be issued from time to time, consistent with the terms of
this Indenture, if so provided by or pursuant to such Board Resolution or in
any such indenture supplemental hereto and any forms and terms of Securities
to be issued from time to time may be completed and established from time to
time prior to the issuance thereof by procedures described in such Board
Resolution or supplemental indenture.
SECTION 2.4 Denomination and Date of Securities; Payments
of Interest. The Securities of each series shall be issuable as Registered
Securities or Unregistered Securities in denominations established as
contemplated by Section 2.3 or, if not so established with respect to
Securities of any series, in denominations of $1,000 and any integral multiple
thereof. The Securities of each series shall be numbered, lettered or
otherwise distinguished in such manner or in accordance with such plan as the
Officers of the Company executing the same may determine, as evidenced by
their execution thereof.
Each Security shall be dated the date of its authentication.
The Securities of each series shall bear interest, if any, from the date, and
such interest and shall be payable on the dates, established as
contemplated by Section 2.3.
The person in whose name any Registered Security of any series
is registered at the close of business on any record date applicable to a
particular series with respect to any interest payment date for such series
shall be entitled to receive the interest, if any, payable on such interest
payment date notwithstanding any transfer or exchange of such Registered
Security subsequent to the record date and prior to such interest payment
date, except if and to the extent the Company shall default in the payment of
the interest due on such interest payment date for such series, in which case
the provisions of Section 2.13 shall apply. The term "record date" as used
with respect to any interest payment date (except a date for payment of
defaulted interest) for the Securities of any series shall mean the date
specified as such in the terms of the Registered Securities of such series
established as contemplated by Section 2.3, or, if no such date is so
established, the fifteenth day next preceding such interest payment date,
whether or not such record date is a Business Day.
SECTION 2.5 Registrar and Paying Agent; Agents Generally.
The Company shall maintain an office or agency where Securities may be
presented for registration, registration of transfer or for exchange (the
"Registrar") and an office or agency where Securities may be presented for
payment (the "Paying Agent"), which shall be in the Borough of Manhattan, The
City of New York. The Company shall cause the Registrar to keep a register of
the Registered Securities and of their registration, transfer and exchange
(the "Security Register"). The Company may have one or more additional
Paying Agents or transfer agents with respect to any series.
The Company shall enter into an appropriate agency agreement
with any Agent not a party to this Indenture. The agreement shall implement
the provisions of this Indenture and the Trust Indenture Act that relate to
such Agent. The Company shall give prompt written notice to the Trustee of
the name and address of any Agent and any change in the name or address of an
Agent. If the Company fails to maintain a Registrar or Paying Agent, the
Trustee shall act as such. The Company may remove any Agent upon written
notice to such Agent and the Trustee; provided that no such removal shall
become effective until (i) the acceptance of an appointment by a successor
Agent to such Agent as evidenced by an appropriate agency agreement entered
into by the Company and such successor Agent and delivered to the Trustee or
(ii) notification to the Trustee that the Trustee shall serve as such Agent
until the appointment of a successor Agent in accordance with clause (i) of
this proviso. The Company or any affiliate of the Company may act as Paying
Agent or Registrar; provided that neither the Company nor an affiliate of the
Company shall act as Paying Agent in connection with the defeasance of the
Securities or the discharge of this Indenture under Article 8.
The Company initially appoints the Trustee as Registrar, Paying
Agent and Authenticating Agent. If, at any time, the Trustee is not the
Registrar, the Registrar shall make available to the Trustee ten days prior to
each interest payment date and at such other times as the Trustee may
reasonably request the names and addresses of the Holders as they appear in
the Security Register.
SECTION 2.6 Paying Agent to Hold Money in Trust. Not later than
10:00 a.m. New York City time on each due date of any Principal or interest on
any Securities, the Company shall deposit with the Paying Agent money in
immediately available funds sufficient to pay such Principal or interest. The
Company shall require each Paying Agent other than the Trustee to agree in
writing that such Paying Agent shall hold in trust for the benefit of the
Holders of such Securities or the Trustee all money held by the Paying Agent for
the payment of Principal of and interest on such Securities and shall promptly
notify the Trustee of any default by the Company in making any such payment. The
Company at any time may require a Paying Agent to pay all money held by it to
the Trustee and account for any funds disbursed, and the Trustee may at any time
during the continuance of any payment default, upon written request to a Paying
Agent, require such Paying Agent to pay all money held by it to the Trustee and
to account for any funds disbursed. Upon doing so, the Paying Agent shall have
no further liability for the money so paid over to the Trustee. If the Company
or any affiliate of the Company acts as Paying Agent, it will, on or before each
due date of any Principal of or interest on any Securities, segregate and hold
in a separate trust fund for the benefit of the Holders thereof a sum of money
sufficient to pay such Principal or interest so becoming due until such sum of
money shall be paid to such Holders or otherwise disposed of as provided in this
Indenture, and will promptly notify the Trustee in writing or failure to act as
required by this Section.
SECTION 2.7 Transfer and Exchange. Unregistered
Securities (except for any temporary global Unregistered Securities) and
coupons (except for coupons attached to any temporary global Unregistered
Securities) shall be transferable by delivery.
At the option of the Holder thereof, Registered Securities of
any series (other than a Registered Global Security, except as set forth
below) may be exchanged for a Registered Security or Registered Securities of
such series and tenor having authorized denominations and an equal aggregate
principal amount, upon surrender of such Registered Securities to be exchanged
at the agency of the Company that shall be maintained for such purpose in
accordance with Section 2.5 and upon payment, if the Company shall so require,
of the charges hereinafter provided. If the Securities of any series are
issued in both registered and unregistered form, except as otherwise
established pursuant to Section 2.3, at the option of the Holder thereof,
Unregistered Securities of any series may be exchanged for Registered
Securities of such series and tenor having authorized denominations and an
equal aggregate principal amount, upon surrender of such Unregistered
Securities to be exchanged at the agency of the Company that shall be
maintained for such purpose in accordance with Section 4.2, with, in the case
of Unregistered Securities that have coupons attached, all unmatured coupons
and all matured coupons in default thereto appertaining, and upon payment, if
the Company shall so require, of the charges hereinafter provided. At the
option of the Holder thereof, if Unregistered Securities of any series,
maturity date, interest rate and original issue date are issued in more than
one authorized denomination, except as otherwise established pursuant to
Section 2.3, such Unregistered Securities may be exchanged for Unregistered
Securities of such series and tenor having authorized denominations and an
equal aggregate principal amount, upon surrender of such Unregistered
Securities to be exchanged at the agency of the Company that shall be
maintained for such purpose in accordance with Section 4.2, with, in the case
of Unregistered Securities that have coupons attached, all unmatured coupons
and all matured coupons in default thereto appertaining, and upon payment, if
the Company shall so require, of the charges hereinafter provided. Registered
Securities of any series may not be exchanged for Unregistered Securities of
such series. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
All Registered Securities presented for registration of
transfer, exchange, redemption or payment shall be duly endorsed by, or be
accompanied by a written instrument or instruments of transfer in form
satisfactory to the Company and the Trustee duly executed by, the holder or
his attorney duly authorized in writing.
The Company may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with
any exchange or registration of transfer of Securities. No service charge
shall be made for any such transaction.
Notwithstanding any other provision of this Section 2.7, unless
and until it is exchanged in whole or in part for Securities in definitive
registered form, a Registered Global Security representing all or a portion of
the Securities of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such Depositary or by
such Depositary or any such nominee to a successor Depositary for such series
or a nominee of such successor Depositary.
If at any time the Depositary for any Registered Global
Securities of any series notifies the Company that it is unwilling or unable
to continue as Depositary for such Registered Global Securities or if at any
time the Depositary for such Registered Global Securities shall no longer be
eligible under applicable law, the Company shall appoint a successor
Depositary eligible under applicable law with respect to such Registered
Global Securities. If a successor Depositary eligible under applicable law
for such Registered Global Securities is not appointed by the Company within
90 days after the Company receives such notice or becomes aware of such
ineligibility, the Company will execute, and the Trustee, upon receipt of the
Company's order for the authentication and delivery of definitive Registered
Securities of such series and tenor, will authenticate and deliver Registered
Securities of such series and tenor, in any authorized denominations, in an
aggregate principal amount equal to the principal amount of such Registered
Global Securities, in exchange for such Registered Global Securities.
The Company may at any time and in its sole discretion
determine that any Registered Global Securities of any series shall no longer
be maintained in global form. In such event the Company will execute, and the
Trustee, upon receipt of the Company's order for the authentication and
delivery of definitive Registered Securities of such series and tenor, will
authenticate and deliver, Registered Securities of such series and tenor in
any authorized denominations, in an aggregate principal amount equal to the
principal amount of such Registered Global Securities, in exchange for such
Registered Global Securities.
Any time the Registered Securities of any series are not in the
form of Registered Global Securities pursuant to the preceding two paragraphs,
the Company agrees to supply the Trustee with a reasonable supply of
certificated Registered Securities without the legend required by Section 2.2
and the Trustee agrees to hold such Registered Securities in safekeeping until
authenticated and delivered pursuant to the terms of this Indenture.
If established by the Company pursuant to Section 2.3 with
respect to any Registered Global Security, the Depositary for such Registered
Global Security may surrender such Registered Global Security in exchange in
whole or in part for Registered Securities of the same series and tenor in
definitive registered form on such terms as are acceptable to the Company and
such Depositary. Thereupon, the Company shall execute, and the Trustee shall
authenticate and deliver, without service charge,
(i) to the Person specified by such Depositary new Registered
Securities of the same series and tenor, of any authorized
denominations as requested by such Person, in an aggregate principal
amount equal to and in exchange for such Person's beneficial interest
in the Registered Global Security; and
(ii) to such Depositary a new Registered Global Security in a
denomination equal to the difference, if any, between the principal
amount of the surrendered Registered Global Security and the
aggregate principal amount of Registered Securities authenticated and
delivered pursuant to clause (i) above.
Registered Securities issued in exchange for a Registered
Global Security pursuant to this Section 2.7 shall be registered in such names
and in such authorized denominations as the Depositary for such Registered
Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee or an agent of the
Company or the Trustee. The Trustee or such agent shall deliver such
Securities to or as directed by the Persons in whose names such Securities are
so registered.
All Securities issued upon any transfer or exchange of
Securities shall be valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such transfer or exchange.
Notwithstanding anything herein or in the forms or terms of any
Securities to the contrary, none of the Company, the Trustee or any agent of
the Company or the Trustee shall be required to exchange any Unregistered
Security for a Registered Security if such exchange would result in adverse
Federal income tax consequences to the Company (such as, for example, the
inability of the Company to deduct from its income, as computed for Federal
income tax purposes, the interest payable on the Unregistered Securities)
under then applicable United States Federal income tax laws. The Trustee and
any such agent shall be entitled to rely on an Officers' Certificate or an
Opinion of Counsel in determining such result.
The Registrar shall not be required (i) to issue, authenticate,
register the transfer of or exchange Securities of any series for a period of
15 days before a selection of such Securities to be redeemed or (ii) to
register the transfer of or exchange any Security selected for redemption in
whole or in part.
SECTION 2.8 Replacement Securities. If a defaced or
mutilated Security of any series is surrendered to the Trustee or if a Holder
claims that its Security of any series has been lost, destroyed or wrongfully
taken, the Company shall issue and the Trustee shall authenticate a
replacement Security of such series and tenor and principal amount bearing a
number not contemporaneously outstanding. If required by the Trustee or the
Company, an indemnity bond must be furnished that is sufficient in the
judgment of both the Trustee and the Company to protect the Company, the
Trustee and any Agent from any loss that any of them may suffer if a Security
is replaced. The Company may charge such Holder for its expenses and the
expenses of the Trustee (including without limitation attorneys' fees and
expenses) in replacing a Security. In case any such mutilated, defaced, lost,
destroyed or wrongfully taken Security has become or is about to become due
and payable, the Company in its discretion may pay such Security instead of
issuing a new Security in replacement thereof.
Every replacement Security is an additional obligation of the
Company and shall be entitled to the benefits of this Indenture.
To the extent permitted by law, the foregoing provisions of
this Section are exclusive with respect to the replacement or payment of
mutilated, destroyed, lost or wrongfully taken Securities.
SECTION 2.9 Outstanding Securities. Securities
outstanding at any time are all Securities that have been authenticated by the
Trustee except for those cancelled by it, those delivered to it for
cancellation and those described in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.8, it ceases to
be outstanding unless and until the Trustee and the Company receive proof
satisfactory to them that the replaced Security is held by a holder in due
course.
If the Paying Agent (other than the Company or an affiliate of
the Company) holds on the maturity date or any redemption date or date for
repurchase of the Securities money sufficient to pay Securities payable or to
be redeemed or repurchased on that date, then on and after that date such
Securities cease to be outstanding and interest on them shall cease to accrue.
A Security does not cease to be outstanding because the Company
or one of its affiliates holds such Security, provided, however, that, in
determining whether the Holders of the requisite principal amount of the
outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Securities owned by the
Company or any affiliate of the Company 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 as to which a Responsible Officer
of the Trustee has received written notice to be so owned shall be so
disregarded. Any Securities so owned which are pledged by the Company, or by
any affiliate of the Company, as security for loans or other obligations,
otherwise than to another such affiliate of the Company, shall be deemed to be
outstanding, if the pledgee is entitled pursuant to the terms of its pledge
agreement and is free to exercise in its or his discretion the right to vote
such securities, uncontrolled by the Company or by any such affiliate.
SECTION 2.10 Temporary Securities. Until definitive
Securities of any series are ready for delivery, the Company may prepare and
the Trustee shall authenticate temporary Securities of such series. Temporary
Securities of any series shall be substantially in the form of definitive
Securities of such series but may have insertions, substitutions, omissions
and other variations determined to be appropriate by the Officers executing
the temporary Securities, as evidenced by their execution of such temporary
Securities. If temporary Securities of any series are issued, the Company
will cause definitive Securities of such series to be prepared without
unreasonable delay. After the preparation of definitive Securities of any
series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series and tenor upon surrender of such
temporary Securities at the office or agency of the Company designated for
such purpose pursuant to Section 4.2, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities of any
series the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive
Securities of such series and tenor and authorized denominations. Until so
exchanged, the temporary Securities of any series shall be entitled to the
same benefits under this Indenture as definitive Securities of such series.
SECTION 2.11 Cancellation. The Company at any time may
deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in
any manner whatsoever, and may deliver to the Trustee for cancellation any
Securities previously authenticated hereunder which the Company has not issued
and sold. The Registrar, any transfer agent and the Paying Agent shall
forward to the Trustee any Securities surrendered to them for transfer,
exchange or payment. The Trustee shall cancel and destroy all Securities
surrendered for transfer, exchange, payment or cancellation and shall deliver
a certificate of destruction to the Company. The Company may not issue new
Securities to replace Securities it has paid in full or delivered to the
Trustee for cancellation.
SECTION 2.12 CUSIP Numbers. The Company in issuing the
Securities may use "CUSIP" and "CINS" numbers (if then generally in use), and
the Trustee shall use CUSIP numbers or CINS numbers, as the case may be, in
notices of redemption or exchange as a convenience to Holders and no
representation shall be made as to the correctness of such numbers either as
printed on the Securities or as contained in any notice of redemption or
exchange.
SECTION 2.13 Defaulted Interest. If the Company
defaults in a payment of interest on the Securities, it shall pay, or shall
deposit with the Paying Agent money in immediately available funds sufficient
to pay, the defaulted interest plus (to the extent lawful) any interest
payable on the defaulted interest (as may be specified in the terms thereof,
established pursuant to Section 2.3) to the Persons who are Holders on a
subsequent special record date, which shall mean the 15th day next preceding
the date fixed by the Company for the payment of defaulted interest, whether
or not such day is a Business Day. At least 15 days before such special
record date, the Company shall mail to each Holder and to the Trustee a notice
that states the special record date, the payment date and the amount of
defaulted interest to be paid.
SECTION 2.14 Series May Include Tranches. A series of
Securities may include one or more tranches (each a "tranche") of Securities,
including Securities issued in a Periodic Offering. The Securities of
different tranches may have one or more different terms, including
authentication dates and public offering prices, but all the Securities within
each such tranche shall have identical terms, including authentication date
and public offering price. Notwithstanding any other provision of this
Indenture, with respect to Sections 2.2 (other than the fourth paragraph
thereof) through 2.4, 2.7, 2.8, 2.10, 3.1 through 3.5, 4.2, 6.1 through 6.14,
8.1 through 8.7 and 9.2, if any series of Securities includes more than one
tranche, all provisions of such sections applicable to any series of
Securities shall be deemed equally applicable to each tranche of any series
of Securities in the same manner as though originally designated a series
unless otherwise provided with respect to such series or tranche pursuant to
Section 2.3. In particular, and without limiting the scope of the next
preceding sentence, any of the provisions of such sections which provide for
or permit action to be taken with respect to a series of Securities shall also
be deemed to provide for and permit such action to be taken instead only with
respect to Securities of one or more tranches within that series (and such
provisions shall be deemed satisfied thereby), even if no comparable action is
taken with respect to Securities in the remaining tranches of that series.
ARTICLE 3
REDEMPTION
SECTION 3.1 Applicability of Article. The provisions of
this Article shall be applicable to the Securities of any series which are
redeemable before their maturity or to any sinking fund for the retirement of
Securities of a series except as otherwise specified as contemplated by
Section 2.3 for Securities of such series.
SECTION 3.2 Notice of Redemption; Partial Redemptions.
Notice of redemption to the Holders of Registered Securities of any series to
be redeemed as a whole or in part at the option of the Company shall be given
by mailing notice of such redemption by first class mail, postage prepaid, at
least 30 days and not more than 60 days prior to the date fixed for redemption
to such Holders of Registered Securities of such series at their last
addresses as they shall appear upon the registry books. Notice of
redemption to the Holders of Unregistered Securities of any series to be
redeemed as a whole or in part who have filed their names and addresses
with the Trustee pursuant to Section 313(c)(2) of the Trust Indenture Act,
shall be given by mailing notice of such redemption, by first class mail,
postage prepaid, at least 30 days and not more than 60 days prior to the
date fixed for redemption, to such Holders at such addresses as were so
furnished to the Trustee (and, in the case of any such notice given by the
Company, the Trustee shall make such information available to the Company
for such purpose). Notice of redemption to all other Holders of
Unregistered Securities of any series to be redeemed as a whole or in part
shall be published in an Authorized Newspaper in The City of New York or
with respect to any Security the interest on which is based on the offered
quotations in the interbank Eurodollar market for dollar deposits in an
Authorized Newspaper in London, in each case, once in each of three
successive calendar weeks, the first publication to be not less than 30
days nor more than 60 days prior to the date fixed for redemption. Any
notice which is mailed or published in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the Holder
receives the notice. Failure to give notice by mail, or any defect in the
notice to the Holder of any Security of a series designated for redemption
as a whole or in part shall not affect the validity of the proceedings for
the redemption of any other Security of such series.
The notice of redemption to each such Holder shall specify the
principal amount of each Security of such series held by such Holder to be
redeemed, the CUSIP numbers of the Securities to be redeemed, the date fixed
for redemption, the redemption price, the place or places of payment, that
payment will be made upon presentation and surrender of such Securities and,
in the case of Securities with coupons attached thereto, of all coupons
appertaining thereto maturing after the date fixed for redemption, that such
redemption is pursuant to the mandatory or optional sinking fund, or both, if
such be the case, that interest accrued to the date fixed for redemption will
be paid as specified in such notice and that on and after said date interest
thereon or on the portions thereof to be redeemed will cease to accrue. In
case any Security of a series is to be redeemed in part only, the notice of
redemption shall state the portion of the principal amount thereof to be
redeemed and shall state that on and after the date fixed for redemption, upon
surrender of such Security, a new Security or Securities of such series and
tenor in principal amount equal to the unredeemed portion thereof will be
issued.
The notice of redemption of Securities of any series to be
redeemed at the option of the Company shall be given by the Company or, at the
Company's request, by the Trustee in the name and at the expense of the
Company.
On or before 10:00 a.m. New York City time on the redemption
date specified in the notice of redemption given as provided in this Section,
the Company will deposit with the Trustee or with one or more Paying Agents
(or, if the Company is acting as its own Paying Agent, set aside, segregate
and hold in trust as provided in Section 2.6) an amount of money sufficient to
redeem on the redemption date all the Securities of such series so called for
redemption at the appropriate redemption price, together with accrued interest
to the date fixed for redemption. If all of the outstanding Securities of a
series are to be redeemed, the Company will deliver to the Trustee at least 10
days prior to the last date on which notice of redemption may be given to
Holders pursuant to the first paragraph of this Section 3.2 (or such shorter
period as shall be acceptable to the Trustee) an Officers' Certificate stating
that all such Securities are to be redeemed. If less than all the outstanding
Securities of a series are to be redeemed, the Company will deliver to the
Trustee at least 15 days prior to the last date on which notice of redemption
may be given to Holders pursuant to the first paragraph of this Section 3.2
(or such shorter period as shall be acceptable to the Trustee) an Officers'
Certificate stating the aggregate principal amount of such Securities to be
redeemed. In case of a redemption at the election of the Company prior to the
expiration of any restriction on such redemption, the Company shall deliver to
the Trustee, prior to the giving of any notice of redemption to Holders
pursuant to this Section, an Officers' Certificate stating that such
redemption is not prohibited by such restriction.
If less than all the Securities of a series are to be redeemed,
the Trustee shall select, pro rata, by lot or in such manner as it shall deem
appropriate and fair, Securities of such series to be redeemed in whole or in
part. Securities may be redeemed in part in multiples equal to the minimum
authorized denomination for Securities of such series or any multiple thereof.
The Trustee shall promptly notify the Company in writing of the Securities of
such series selected for redemption and, in the case of any Securities of such
series selected for partial redemption, the principal amount thereof to be
redeemed. For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall
relate, in the case of any Security redeemed or to be redeemed only in part,
to the portion of the principal amount of such Security which has been or is
to be redeemed.
SECTION 3.3 Payment of Securities Called for Redemption.
If notice of redemption has been given as above provided, the Securities or
portions of Securities specified in such notice shall become due and payable
on the date and at the place stated in such notice at the applicable
redemption price, together with interest accrued to the date fixed for
redemption, and on and after such date (unless the Company shall default in
the payment of such Securities at the redemption price, together with interest
accrued to such date) interest on the Securities or portions of Securities so
called for redemption shall cease to accrue, and the unmatured coupons, if
any, appertaining thereto shall be void and, except as provided in Sections
7.11 and 8.2, such Securities shall cease from and after the date fixed for
redemption to be entitled to any benefit under this Indenture, and the Holders
thereof shall have no right in respect of such Securities except the right to
receive the redemption price thereof and unpaid interest to the date fixed for
redemption. On presentation and surrender of such Securities at a place of
payment specified in said notice, together with all coupons, if any,
appertaining thereto maturing after the date fixed for redemption, said
Securities or the specified portions thereof shall be paid and redeemed by the
Company at the applicable redemption price, together with interest accrued
thereon to the date fixed for redemption; provided that payment of interest
becoming due on or prior to the date fixed for redemption shall be payable in
the case of Securities with coupons attached thereto, to the Holders of the
coupons for such interest upon surrender thereof, and in the case of
Registered Securities, to the Holders of such Registered Securities registered
as such on the relevant record date subject to the terms and provisions of
Sections 2.4 and 2.13 hereof.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest or Yield to Maturity (in the case of an Original Issue Discount
Security) borne by such Security.
If any Security with coupons attached thereto is surrendered
for redemption and is not accompanied by all appurtenant coupons maturing
after the date fixed for redemption, the surrender of such missing coupon or
coupons may be waived by the Company and the Trustee, if there be furnished to
each of them such security or indemnity as they may require to save and hold
each of them harmless.
Upon presentation of any Security of any series redeemed in
part only, the Company shall execute and the Trustee shall authenticate and
deliver to or on the order of the Holder thereof, at the expense of the
Company, a new Security or Securities of such series and tenor (with any
unmatured coupons attached), of authorized denominations, in principal amount
equal to the unredeemed portion of the Security so presented.
SECTION 3.4 Exclusion of Certain Securities from
Eligibility for Selection for Redemption. Securities shall be excluded from
eligibility for selection for redemption if they are identified by
registration and certificate number in a written statement signed by an
authorized Officer of the Company and delivered to the Trustee at least 40
days prior to the last date on which notice of redemption may be given as
being owned of record and beneficially by, and not pledged or hypothecated by,
either (a) the Company or (b) an entity specifically identified in such
written statement as directly or indirectly controlling or controlled by or
under direct or indirect common control with the Company.
SECTION 3.5 Mandatory and Optional Sinking Funds. 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 the Securities of any series is herein referred to as an "optional
sinking fund payment". The date on which a sinking fund payment is to be made
is herein referred to as the "sinking fund payment date".
In lieu of making all or any part of any mandatory sinking fund
payment with respect to any series of Securities in cash, the Company may at
its option (a) deliver to the Trustee Securities of such series theretofore
purchased or otherwise acquired (except through a mandatory sinking fund
payment) by the Company or receive credit for Securities of such series (not
previously so credited) theretofore purchased or otherwise acquired (except as
aforesaid) by the Company and delivered to the Trustee for cancellation
pursuant to Section 2.11, (b) receive credit for optional sinking fund
payments (not previously so credited) made pursuant to this Section, or (c)
receive credit for Securities of such series (not previously so credited)
redeemed by the Company through any optional sinking fund payment. Securities
so delivered or credited shall be received or credited by the Trustee at the
sinking fund redemption price specified in such Securities.
On or before the sixtieth day next preceding each sinking fund
payment date for any series, or such shorter period as shall be acceptable to
the Trustee, the Company will deliver to the Trustee an Officers' Certificate
(a) specifying the portion of the mandatory sinking fund payment to be
satisfied by payment of cash and the portion to be satisfied by credit of
specified Securities of such series and the basis for such credit, (b) stating
that none of the specified Securities of such series has theretofore been so
credited, (c) stating that no defaults in the payment of interest or Events of
Default with respect to such series have occurred (which have not been waived
or cured) and are continuing and (d) stating whether or not the Company
intends to exercise its right to make an optional sinking fund payment with
respect to such series and, if so, specifying the amount of such optional
sinking fund payment which the Company intends to pay on or before the next
succeeding sinking fund payment date. Any Securities of such series to be
credited and required to be delivered to the Trustee in order for the Company
to be entitled to credit therefor as aforesaid which have not theretofore been
delivered to the Trustee shall be delivered for cancellation pursuant to
Section 2.11 to the Trustee with such Officers' Certificate (or reasonably
promptly thereafter if acceptable to the Trustee). Such Officers' Certificate
shall be irrevocable and upon its receipt by the Trustee the Company shall
become unconditionally obligated to make all the cash payments or delivery of
securities therein referred to, if any, on or before the next succeeding
sinking fund payment date. Failure of the Company, on or before any such
sixtieth day, to deliver such Officer's Certificate and Securities specified
in this paragraph, if any, shall not constitute a default but shall
constitute, on and as of such date, the irrevocable election of the Company
(i) that the mandatory sinking fund payment for such series due on the next
succeeding sinking fund payment date shall be paid entirely in cash without
the option to deliver or credit Securities of such series in respect thereof
and (ii) that the Company will make no optional sinking fund payment with
respect to such series as provided in this Section.
If the sinking fund payment or payments (mandatory or optional
or both) to be made in cash on the next succeeding sinking fund payment date
plus any unused balance of any preceding sinking fund payments made in cash
shall exceed $50,000 (or a lesser sum if the Company shall so request with
respect to the Securities of any series), such cash shall be applied on the
next succeeding sinking fund payment date to the redemption of Securities of
such series at the sinking fund redemption price thereof together with accrued
interest thereon to the date fixed for redemption. If such amount shall be
$50,000 (or such lesser sum) or less and the Company makes no such request
then it shall be carried over until a sum in excess of $50,000 (or such lesser
sum) is available. The Trustee shall select, in the manner provided in
Section 3.2, for redemption on such sinking fund payment date a sufficient
principal amount of Securities of such series to absorb said cash, as
nearly as may be, and shall (if requested in writing by the Company) inform
the Company of the serial numbers of the Securities of such series (or
portions thereof) so selected. Securities shall be excluded from
eligibility for redemption under this Section if they are identified by
registration and certificate number in an Officers' Certificate delivered
to the Trustee at least 60 days prior to the sinking fund payment date as
being owned of record and beneficially by, and not pledged or hypothecated
by, either (a) the Company or (b) an entity specifically identified in such
Officers' Certificate as directly or indirectly controlling or controlled
by or under direct or indirect common control with the Company. The
Trustee, in the name and at the expense of the Company (or the Company, if
it shall so request the Trustee in writing) shall cause notice of
redemption of the Securities of such series to be given in substantially
the manner provided in Section 3.2 (and with the effect provided in Section
3.3) for the redemption of Securities of such series in part at the option
of the Company. The amount of any sinking fund payments not so applied or
allocated to the redemption of Securities of such series shall be added to
the next cash sinking fund payment for such series and, together with such
payment, shall be applied in accordance with the provisions of this
Section. Any and all sinking fund moneys held on the stated maturity date
of the Securities of any particular series (or earlier, if such maturity is
accelerated), which are not held for the payment or redemption of
particular Securities of such series shall be applied, together with other
moneys, if necessary, sufficient for the purpose, to the payment of the
Principal of, and interest on, the Securities of such series at maturity.
On or before 10:00 a.m. New York City time on each sinking fund
payment date, the Company shall pay to the Trustee in cash or shall otherwise
provide for the payment of all interest accrued to the date fixed for
redemption on Securities to be redeemed on the next following sinking fund
payment date.
The Trustee shall not redeem or cause to be redeemed any
Securities of a series with sinking fund moneys or mail any notice of
redemption of Securities of such series by operation of the sinking fund
during the continuance of a Default in payment of interest on such Securities
or of any Event of Default except that, where the mailing of notice of
redemption of any Securities shall theretofore have been made, the Trustee
shall redeem or cause to be redeemed such Securities, provided that it shall
have received from the Company a sum sufficient for such redemption. Except
as aforesaid, any moneys in the sinking fund for such series at the time when
any such Default or Event of Default shall occur, and any moneys thereafter
paid into the sinking fund, shall, during the continuance of such default or
Event of Default, be deemed to have been collected under Article 6 and held
for the payment of all such Securities. In case such Event of Default shall
have been waived as provided in Section 6.4 or the Default cured on or before
the sixtieth day preceding the sinking fund payment date in any year, such
moneys shall thereafter be applied on the next succeeding sinking fund payment
date in accordance with this Section to the redemption of such Securities.
ARTICLE 4
COVENANTS
SECTION 4.1 Payment of Securities. The Company shall pay
the Principal of and interest on the Securities on the dates and in the manner
provided in the Securities and this Indenture. The interest on Securities
with coupons attached (together with any additional amounts payable pursuant
to the terms of such Securities) shall be payable only upon presentation and
surrender of the several coupons for such interest installments as are
evidenced thereby as they severally mature. The interest on any temporary
Unregistered Securities (together with any additional amounts payable pursuant
to the terms of such Securities) shall be paid, as to the installments of
interest evidenced by coupons attached thereto, if any, only upon presentation
and surrender thereof, and, as to the other installments of interest, if any,
only upon presentation of such Unregistered Securities for notation thereon of
the payment of such interest. The interest on Registered Securities (together
with any additional amounts payable pursuant to the terms of such Securities)
shall be payable only to the Holders thereof and at the option of the Company
may be paid by mailing checks for such interest payable to or upon the written
order of such Holders at their last addresses as they appear on the Security
Register of the Company.
Notwithstanding any provisions of this Indenture and the
Securities of any series to the contrary, if the Company and a Holder of any
Registered Security so agree, payments of interest on, and any portion of the
Principal of, such Holder's Registered Security (other than interest payable
at maturity or on any redemption or repayment date or the final payment of
Principal on such Security) shall be made by the Paying Agent, upon receipt
from the Company of immediately available funds by 11:00 A.M., New York City
time (or such other time as may be agreed to between the Company and the
Paying Agent), directly to the Holder of such Security (by Federal funds wire
transfer or otherwise) if the Holder has delivered written instructions to the
Trustee 15 days prior to such payment date requesting that such payment will
be so made and designating the bank account to which such payments shall be so
made and in the case of payments of Principal, surrenders the same to the
Trustee in exchange for a Security or Securities aggregating the same
principal amount as the unredeemed principal amount of the Securities
surrendered. The Trustee shall be entitled to rely on the last instruction
delivered by the Holder pursuant to this Section 4.1 unless a new instruction
is delivered 15 days prior to a payment date. The Company will indemnify and
hold each of the Trustee and any Paying Agent harmless against any loss,
liability or expense (including attorneys' fees) resulting from any act or
omission to act on the part of the Company or any such Holder in connection
with any such agreement or from making any payment in accordance with any such
agreement.
The Company shall pay interest on overdue Principal, and
interest on overdue installments of interest, to the extent lawful, at the
rate per annum specified in the Securities.
SECTION 4.2 Maintenance of Office or Agency. The Company will
maintain in the Borough of Manhattan, The City of New York, an office or agency
where Securities may be surrendered for registration of transfer or exchange or
for presentation for payment and where notices and demands to or upon the
Company in respect of the Securities and this Indenture may be served. The
Company hereby initially designates the Corporate Trust Office of the Trustee,
located in the Borough of Manhattan, The City of New York, as such office or
agency of the Company. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
address of the Trustee set forth in Section 10.2.
The Company will maintain one or more agencies in a city or
cities located outside the United States (including any city in which such an
agency is required to be maintained under the rules of any stock exchange on
which the Securities of any series are listed) where the Unregistered
Securities, if any, of each series and coupons, if any, appertaining thereto may
be presented for payment. No payment on any Unregistered Security or coupon will
be made upon presentation of such Unregistered Security or coupon at an agency
of the Company within the United States nor will any payment be made by transfer
to an account in, or by mail to an address in, the United States unless,
pursuant to applicable United States laws and regulations then in effect, such
payment can be made without adverse tax consequences to the Company.
Notwithstanding the foregoing, if full payment in United States Dollars
("Dollars") at each agency maintained by the Company outside the United States
for payment on such Unregistered Securities or coupons appertaining thereto is
illegal or effectively precluded by exchange controls or other similar
restrictions, payments in Dollars of Unregistered Securities of any series and
coupons appertaining thereto which are payable in Dollars may be made at an
agency of the Company maintained in the Borough of Manhattan, The City of New
York.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of any series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided that no such designation or rescission shall in any
manner relieve the Company of its obligation to maintain an office or agency in
the Borough of Manhattan, The City of New York for such purposes. The Company
will give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or agency.
SECTION 4.3 Securityholders' Lists. The Company will
furnish or cause to be furnished to the Trustee a list in such form as the
Trustee may reasonably require of the names and addresses of the holders of
the Securities pursuant to Section 312 of the Trust Indenture Act of 1939 (a)
semi-annually not more than 15 days after each record date for the payment of
semi-annual interest on the Securities, as hereinabove specified, as of such
record date, and (b) at such other times as the Trustee may request in
writing, within thirty days after receipt by the Company of any such request
as of a date not more than 15 days prior to the time such information is
furnished.
SECTION 4.4 Certificate to Trustee. The Company will
furnish to the Trustee annually, on or before a date not more than four months
after the end of its fiscal year (which, on the date hereof, is a calendar
year), a brief certificate (which need not contain the statements required by
Section 10.4) from its principal executive, financial or accounting officer as
to his or her knowledge of the compliance of the Company with all conditions
and covenants under this Indenture (such compliance to be determined without
regard to any period of grace or requirement of notice provided under this
Indenture) which certificate shall comply with the requirements of the Trust
Indenture Act.
SECTION 4.5 Reports by the Company. The Company
covenants to file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports
and of the information, documents, and other reports which the Company may be
required to file with the Commission pursuant to Section 13 or Section 15(d)
of the Exchange Act.
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.1 When Company May Merge, Etc. The Company shall not
consolidate with, merge with or into, or sell, convey, transfer, lease or
otherwise dispose of all or substantially all of its property and assets (as an
entirety or substantially as an entirety in one transaction or a series of
related transactions) to, any Person (other than a consolidation with or merger
with or into a Subsidiary or a sale, conveyance, transfer, lease or other
disposition to a Subsidiary) or permit any Person to merge with or into the
Company unless either (x) the Company shall be the continuing Person or (y) the
Person (if other than the Company) formed by such consolidation or into which
the Company is merged or to which properties and assets of the Company shall be
a corporation organized and validly existing under the laws of the United States
of America or any jurisdiction thereof and shall expressly assume, by a
supplemental indenture, executed and delivered to the Trustee, all of the
obligations of the Company on all of the Securities and under this Indenture and
the Company shall have delivered to the Trustee (A) an Opinion of Counsel
stating that such consolidation, merger or transfer and such supplemental
indenture complies with this provision and that all conditions precedent
provided for herein relating to such transaction have been complied with and
that such supplemental indenture constitutes the legal, valid and binding
obligation of the Company or such successor enforceable against such entity in
accordance with its terms, subject to customary exceptions and (B) an Officers'
Certificate to the effect that immediately after giving effect to such
transaction, no Default shall have occurred and be continuing.
SECTION 5.2 Successor Substituted. Upon any consolidation
or merger, or any sale, conveyance, transfer, lease or other disposition of
all or substantially all of the property and assets of the Company in
accordance with Section 5.1 of this Indenture, the successor Person formed
by such consolidation or into which the Company is merged or to which
such sale, conveyance, transfer, lease or other disposition is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein.
ARTICLE 6
DEFAULT AND REMEDIES
SECTION 6.1 Events of Default. An "Event of Default"
shall occur with respect to the Securities of any series if:
(a) the Company defaults in the payment of the Principal of
any Security of such series when the same becomes due and payable at
maturity, upon acceleration, redemption or mandatory repurchase,
including as a sinking fund installment, or otherwise;
(b) the Company defaults in the payment of interest on any
Security of such series when the same becomes due and payable, and
such default continues for a period of 30 days;
(c) the Company defaults in the performance of or breaches any
other covenant or agreement of the Company in this Indenture with
respect to any Security of such series or in the Securities of such
series and such default or breach continues for a period of 30
consecutive days after written notice to the Company by the Trustee
or to the Company and the Trustee by the Holders of 25% or more in
aggregate principal amount of the Securities of all series affected
thereby;
(d) a court having jurisdiction in the premises shall enter a
decree or order 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, custodian, trustee, sequestrator (or similar
official) of the Company or for any substantial part of its property
or ordering the winding up or liquidation of its affairs, and such
decree or order shall remain unstayed and in effect for a period of
60 consecutive days;
(e) the Company (A) commences a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or consents to the entry of an order for relief
in an involuntary case under any such law, (B) consents to the
appointment of or taking possession by a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official of the
Company or for all or substantially all of the property and assets of
the Company or (C) effects any general assignment for the benefit of
creditors; or
(f) any other Event of Default established pursuant to Section
2.3 with respect to the Securities of such series occurs.
SECTION 6.2 Acceleration. (a) If an Event of Default other than
as described in clauses (d) or (e) of Section 6.1 with respect to the Securities
of any series then outstanding occurs and is continuing, then, and in each and
every such case, except for any series of Securities the principal of which
shall have already become due and payable, either the Trustee or the Holders of
not less than 25% in aggregate principal amount of the Securities of any such
affected series then outstanding hereunder (each such series treated as a
separate class) by notice in writing to the Company (and to the Trustee if given
by Securityholders), may declare the entire principal (or, if the Securities of
any such series are Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms of such series established
pursuant to Section 2.3) of all Securities of such affected series, and the
interest accrued thereon, if any, to be due and payable immediately, and upon
any such declaration the same shall become immediately due and payable.
(b) If an Event of Default described in clause (d) or (e) of
Section 6.1 occurs and is continuing, then the principal amount (or, if any
Securities are Original Issue Discount Securities, such portion of the principal
as may be specified in the terms thereof established pursuant to Section 2.3) of
all the Securities then outstanding and interest accrued thereon, if any, shall
be and become immediately due and payable, subject to the prior payment in full
of all Senior Debt, without any notice or other action by any Holder or the
Trustee, to the full extent permitted by applicable law.
The foregoing provisions, however, are subject to the condition
that if, at any time after the principal (or, if the Securities are Original
Issue Discount Securities, such portion of the principal as may be specified
in the terms thereof established pursuant to Section 2.3) of the Securities of
any series (or of all the Securities, as the case may be) shall have been so
declared due and payable, and before any judgment or decree for the payment of
the moneys due shall have been obtained or entered as hereinafter provided,
the Company shall pay or shall deposit with the Trustee a sum sufficient to
pay all matured installments of interest upon all the Securities of each such
series (or of all the Securities, as the case may be) and the principal of any
and all Securities of each such series (or of all the Securities, as the case
may be) which shall have become due otherwise than by acceleration (with
interest upon such principal and, to the extent that payment of such interest
is enforceable under applicable law, on overdue installments of interest, at
the same rate as the rate of interest or Yield to Maturity (in the case of
Original Issue Discount Securities) specified in the Securities of each such
series to the date of such payment or deposit) and such amount as shall be
sufficient to cover all amounts owing the Trustee under Section 7.7, and if
any and all Events of Default under the Indenture, other than the non-payment
of the principal of Securities which shall have become due by acceleration,
shall have been cured, waived or otherwise remedied as provided herein,
then and in every such case the Holders of a majority in aggregate
principal amount of all the then outstanding Securities of all such series
that have been accelerated (voting as a single class), by written notice to
the Company and to the Trustee, may waive all defaults with respect to all
such series (or with respect to all the Securities, as the case may be) and
rescind and annul such declaration and its consequences, but no such waiver
or rescission and annulment shall extend to or shall affect any subsequent
default or shall impair any right consequent thereon.
For all purposes under this Indenture, if a portion of the
principal of any Original Issue Discount Securities shall have been
accelerated and declared due and payable pursuant to the provisions hereof,
then, from and after such declaration, unless such declaration has been
rescinded and annulled, the principal amount of such Original Issue Discount
Securities shall be deemed, for all purposes hereunder, to be such portion of
the principal thereof as shall be due and payable as a result of such
acceleration, and payment of such portion of the principal thereof as shall be
due and payable as a result of such acceleration, together with interest, if
any, thereon and all other amounts owing thereunder, shall constitute payment
in full of such Original Issue Discount Securities.
SECTION 6.3 Other Remedies. If a payment default or an
Event of Default with respect to the Securities of any series occurs and is
continuing, the Trustee may pursue, in its own name or as trustee of an
express trust, any available remedy by proceeding at law or in equity to
collect the payment of principal of and interest on the Securities of such
series or to enforce the performance of any provision of the Securities of
such series or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Securities or does not produce any of them in the
proceeding.
SECTION 6.4 Waiver of Past Defaults. Subject to Sections
6.2, 6.7 and 9.2, the Holders of at least a majority in principal amount (or,
if the Securities are Original Issue Discount Securities, such portion of the
principal as is then accelerable under Section 6.2) of the outstanding
Securities of all series affected (voting as a single class), by notice to the
Trustee, may waive an existing Default or Event of Default with respect to the
Securities of such series and its consequences, except a Default in the
payment of Principal of or interest on any Security as specified in clauses
(a) or (b) of Section 6.1 or in respect of a covenant or provision of this
Indenture which cannot be modified or amended without the consent of the
Holder of each outstanding Security affected. Upon any such waiver, such
Default shall cease to exist, and any Event of Default with respect to the
Securities of such series arising therefrom shall be deemed to have been
cured, for every purpose of this Indenture; but no such waiver shall extend
to any subsequent or other Default or Event of Default or impair any right
consequent thereto.
SECTION 6.5 Control by Majority. Subject to Sections 7.1
and 7.2(v), the Holders of at least a majority in aggregate principal amount
(or, if any Securities are Original Issue Discount Securities, such portion of
the principal as is then accelerable under Section 6.2) of the outstanding
Securities of all series affected (voting as a single class) may 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 by this Indenture; provided, that the
Trustee may refuse to follow any direction that conflicts with law or this
Indenture, that may involve the Trustee in personal liability or that the
Trustee determines in good faith may be unduly prejudicial to the rights of
Holders not joining in the giving of such direction; and provided further,
that the Trustee may take any other action it deems proper that is not
inconsistent with any directions received from Holders of Securities
pursuant to this Section 6.5.
SECTION 6.6 Limitation on Suits. No Holder of any
Security of any series may institute any proceeding, judicial or otherwise,
with respect to this Indenture or the Securities of such series, or for the
appointment of a receiver or trustee, or for any other remedy hereunder,
unless:
(i) such Holder has previously given to the Trustee written
notice of a continuing Event of Default with respect to the
Securities of such series;
(ii) the Holders of at least 25% in aggregate principal amount
of outstanding Securities of all such series affected 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;
(iii) such Holder or Holders have offered to the Trustee
indemnity reasonably satisfactory to the Trustee against any costs,
liabilities or expenses to be incurred in compliance with such
request;
(iv) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(v) during such 60-day period, the Holders of a majority in
aggregate principal amount of the outstanding Securities of all such
affected series have not given the Trustee a direction that is
inconsistent with such written request.
A Holder may not use this Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over such other Holder.
SECTION 6.7 Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder
of a Security to receive payment of Principal of or interest, if any, on such
Holder's Security on or after the respective due dates expressed on such
Security, or to bring suit for the enforcement of any such payment on or after
such respective dates, shall not be impaired or affected without the consent
of such Holder.
SECTION 6.8 Collection Suit by Trustee. If an Event of
Default with respect to the Securities of any series in payment of Principal
or interest specified in clause (a) or (b) of Section 6.1 occurs and is
continuing, the Trustee may recover judgment in its own name and as trustee of
an express trust against the Company for the whole amount (or such portion
thereof as specified in the terms established pursuant to Section 2.3 of
Original Issue Discount Securities) of Principal of, and accrued interest
remaining unpaid on, together with interest on overdue Principal of, and, to
the extent that payment of such interest is lawful, interest on overdue
installments of interest on, the Securities of such series, in each case at
the rate or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in such Securities, and such further amount as shall be
sufficient to cover all amounts owing the Trustee under Section 7.7.
SECTION 6.9 Trustee May File Proofs of Claim. The
Trustee may file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including
any claim for amounts due the Trustee under Section 7.7) and the Holders
allowed in any judicial proceedings relative to the Company (or any other
obligor on the Securities), its creditors or its property and shall be
entitled and empowered to collect and receive any moneys, securities or other
property payable or deliverable upon conversion or exchange of the Securities
or upon any such claims and to distribute the same, and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar
official in any such judicial proceeding is hereby authorized by each Holder
to make such payments to the Trustee and, in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to pay to the
Trustee any amount due to it under Section 7.7. Nothing herein contained
shall be deemed to empower the Trustee to authorize or consent to, or
accept or adopt on behalf of any Holder, any plan of reorganization,
arrangement, adjustment or composition affecting the Securities or the
rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 6.10 Application of Proceeds. Any moneys collected
by the Trustee pursuant to this Article in respect of the Securities
of any series shall be applied in the following order at the date or dates
fixed by the Trustee and, in case of the distribution of such moneys on
account of Principal or interest, upon presentation of the several Securities
and coupons appertaining to such Securities in respect of which moneys have
been collected and noting thereon the payment, or issuing Securities of such
series and tenor in reduced principal amounts in exchange for the presented
Securities of such series and tenor if only partially paid, or upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 7.7 applicable to the Securities of such series in respect of
which moneys have been collected;
SECOND: In case the principal of the Securities of such series
in respect of which moneys have been collected shall not have become
and be then due and payable, to the payment of interest on the
Securities of such series in default in the order of the maturity of
the installments of such interest, with interest (to the extent that
such interest has been collected by the Trustee) upon the overdue
installments of interest at the same rate as the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities)
specified in such Securities, such payments to be made ratably to the
persons entitled thereto, without discrimination or preference;
THIRD: In case the principal of the Securities of such series
in respect of which moneys have been collected shall have become and
shall be then due and payable, to the payment of the whole amount
then owing and unpaid upon all the Securities of such series for
Principal and interest, with interest upon the overdue Principal, and
(to the extent that such interest has been collected by the Trustee)
upon overdue installments of interest at the same rate as the rate of
interest or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in the Securities of such series; and in case
such moneys shall be insufficient to pay in full the whole amount so
due and unpaid upon the Securities of such series, then to the
payment of such Principal and interest or Yield to Maturity, without
preference or priority of Principal over interest or Yield to
Maturity, or of interest or Yield to Maturity over Principal, or of
any installment of interest over any other installment of interest,
or of any Security of such series over any other Security of such
series, ratably to the aggregate of such Principal and accrued and
unpaid interest or Yield to Maturity; and
FOURTH: To the payment of the remainder, if any, to the
Company or any other person lawfully entitled thereto.
SECTION 6.11 Restoration of Rights and Remedies. If the
Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then, and in every such case, subject to any determination in
such proceeding, the Company, the Trustee and the Holders shall be restored to
their former positions hereunder and thereafter all rights and remedies of the
Company, Trustee and the Holders shall continue as though no such proceeding
had been instituted.
SECTION 6.12 Undertaking for Costs. 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, in
either case in respect to the Securities of any series, a court may require
any party litigant in such suit (other than the Trustee) to file an
undertaking to pay the costs of the suit, and the court may assess reasonable
costs, including reasonable attorneys' fees, against any party litigant
(other than the Trustee) in the suit having due regard to the merits and
good faith of the claims or defenses made by the party litigant. This
Section 6.12 does not apply to a suit by a Holder pursuant to Section 6.7
or a suit by Holders of more than 10% in principal amount of the
outstanding Securities of such series.
SECTION 6.13 Rights and Remedies Cumulative. Except as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or wrongfully taken Securities in Section 2.8, no right or
remedy herein conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at
law or in equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 6.14 Delay or Omission Not Waiver. No delay or
omission of the Trustee or of any Holder to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article 6 or by law to the Trustee or to
the Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
ARTICLE 7
TRUSTEE
SECTION 7.1 General. The duties and responsibilities of
the Trustee shall be as provided by the Trust Indenture Act and as set forth
herein. Notwithstanding the foregoing, 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, unless it receives indemnity
satisfactory to it against any loss, liability or expense. 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 Article 7.
SECTION 7.2 Certain Rights of Trustee. Subject to Trust
Indenture Act Sections 315(a) through (d):
(i) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, Officers'
Certificate, Opinion of Counsel (or both), statement, instrument,
opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper person or persons. The Trustee need not
investigate any fact or matter stated in the document, but the
Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit;
(ii) before the Trustee acts or refrains from acting, it may
require an Officers' Certificate and/or an Opinion of Counsel, which
shall conform to Section 10.4. The Trustee shall not be liable for
any action it takes or omits to take in good faith in reliance on
such certificate or opinion. Subject to Sections 7.1 and 7.2,
whenever in the administration of the trusts of this Indenture the
Trustee shall deem it necessary or desirable that a matter be proved
or established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be
herein specifically prescribed) may, in the absence of negligence or
bad faith on the part of the Trustee, be deemed to be conclusively
proved and established by an Officers' Certificate delivered to the
Trustee, and such certificate, in the absence of negligence or bad
faith on the part of the Trustee, shall be full warrant to the
Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof;
(iii) the Trustee may act through its attorneys and agents not
regularly in its employ and shall not be responsible for the
misconduct or negligence of any agent or attorney appointed with due
care;
(iv) any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by an Officers'
Certificate (unless other evidence in respect thereof be herein
specifically prescribed); and any Board Resolution may be evidenced
to the Trustee by a copy thereof certified by the Secretary or an
Assistant Secretary of the Company;
(v) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the
request, order or direction of any of the Holders, unless such
Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities that might be
incurred by it in compliance with such request or direction;
(vi) the Trustee shall not be liable for any action it takes
or omits to take in good faith that it believes to be authorized or
within its rights or powers or for any action it takes or omits to
take in accordance with the direction of the Holders in accordance
with Section 6.5 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;
(vii) 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; and
(viii) prior to the occurrence of an Event of Default hereunder
and after the curing or waiving of all Events of Default, the Trustee
shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, Officers'
Certificate, Opinion of Counsel, Board Resolution, statement,
instrument, opinion, report, notice, request, consent, order,
approval, appraisal, bond, debenture, note, coupon, security, or
other paper or document unless requested in writing so to do by
the Holders of not less than a majority in aggregate principal
amount of the Securities of all series affected then outstanding;
provided that, if the payment within a reasonable time to the
Trustee of the costs, expenses or liabilities likely to be
incurred by it in the making of such investigation is, in the
opinion of the Trustee, not reasonably assured to the Trustee by
the security afforded to it by the terms of this Indenture, the
Trustee may require reasonable indemnity against such expenses or
liabilities as a condition to proceeding.
SECTION 7.3 Individual Rights of Trustee. The Trustee,
in its individual or any other capacity, may become the owner or pledgee of
Securities and may otherwise deal with the Company or its Affiliates with the
same rights it would have if it were not the Trustee. Any Agent may do the
same with like rights. However, the Trustee is subject to Trust Indenture Act
Sections 310(b) and 311. For purposes of Trust Indenture Act Section
311(b)(4) and (6), the following terms shall mean:
(a) "cash transaction" means any transaction in which full
payment for goods or securities sold is made within seven days after delivery
of the goods or securities in currency or in checks or other orders drawn upon
banks or bankers and payable upon demand; and
(b) "self-liquidating paper" means any draft, xxxx of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase, processing,
manufacturing, shipment, storage or sale of goods, wares or merchandise and
which is secured by documents evidencing title to, possession of, or a lien
upon, the goods, wares or merchandise or the receivables or proceeds arising
from the sale of the goods, wares or merchandise previously constituting the
security, provided the security is received by the Trustee simultaneously with
the creation of the creditor relationship with the Company arising from the
making, drawing, negotiating or incurring of the draft, xxxx of exchange,
acceptance or obligation.
SECTION 7.4 Trustee's Disclaimer. The recitals contained
herein and in the Securities (except the Trustee's certificate of
authentication) shall be taken as statements of the Company and not of the
Trustee and the Trustee assumes no responsibility for the correctness of the
same. Neither the Trustee nor any of its agents (i) makes any representation
as to the validity or adequacy of this Indenture or the Securities and (ii)
shall be accountable for the Company's use or application of the proceeds from
the Securities.
SECTION 7.5 Notice of Default. If any Default with
respect to the Securities of any series occurs and is continuing and if such
Default is known to the actual knowledge of a Responsible Officer with the
Corporate Trust Department of the Trustee, the Trustee shall give to each
Holder of Securities of such series notice of such Default within 90 days
after it occurs (i) if any Unregistered Securities of such series are then
outstanding, to the Holders thereof, by publication at least once in an
Authorized Newspaper in the Borough of Manhattan, The City of New York and at
least once in an Authorized Newspaper in London and (ii) to all Holders of
Securities of such series in the manner and to the extent provided in Section
313(c) of the Trust Indenture Act, unless such Default shall have been cured
or waived before the mailing or publication of such notice; provided, however,
that, except in the case of a Default in the payment of the Principal of or
interest on any Security, the Trustee shall be protected in withholding such
notice if the Trustee in good faith determines that the withholding of such
notice is in the interests of the Holders.
SECTION 7.6 Reports by Trustee to Holders. Within 60
days after each May 15, beginning with May 15, 1996, the Trustee shall mail to
each Holder as and to the extent provided in Trust Indenture Act Section
313(c) a brief report dated as of such May 15, if required by Trust Indenture
Act Section 313(a).
SECTION 7.7 Compensation and Indemnity. The Company
shall pay to the Trustee such compensation as shall be agreed upon in writing
from time to time for its services. The compensation of the Trustee shall not
be limited by any law on compensation of a Trustee of an express trust. The
Company shall reimburse the Trustee upon request for all reasonable
out-of-pocket expenses, disbursements and advances incurred or made by the
Trustee. Such expenses shall include the reasonable compensation and expenses
of the Trustee's agents, counsel and other persons not regularly in its
employ.
The Company shall indemnify the Trustee for, and hold it
harmless against, any loss or liability or expense incurred by it without
negligence or bad faith on its part arising out of or in connection with the
acceptance or administration of this Indenture and the Securities or the
issuance of the Securities or of any series thereof or the trusts hereunder
and the performance of duties under this Indenture and the Securities,
including the costs and expenses of defending itself against or
investigating any claim or liability and of complying with any process
served upon it or any of its officers in connection with the exercise or
performance of any of its powers or duties under this Indenture and the
Securities.
To secure the Company's payment obligations in this Section
7.7, the Trustee shall have a lien prior to the Securities on all money or
property held or collected by the Trustee, in its capacity as Trustee, except
money or property held in trust to pay Principal of, and interest on
particular Securities.
The obligations of the Company under this Section to compensate
and indemnify the Trustee and each predecessor Trustee and to pay or reimburse
the Trustee and each predecessor Trustee for expenses, disbursements and
advances shall constitute additional indebtedness hereunder and shall survive
the satisfaction and discharge of this Indenture or the rejection or
termination of this Indenture under bankruptcy law. Such additional
indebtedness shall be a senior claim to that of the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the benefit of the Holders of particular Securities or coupons,
and the Securities are hereby subordinated to such senior claim. If the
Trustee renders services and incurs expenses following an Event of Default
under Section 6.1(d) or Section 6.1(e) hereof, the parties hereto and the
holders by their acceptance of the Securities hereby agree that such expenses
are intended to constitute expenses of administration under any bankruptcy
law.
SECTION 7.8 Replacement of Trustee. A resignation or
removal of the Trustee as Trustee with respect to the Securities of any series
and appointment of a successor Trustee as Trustee with respect to the
Securities of any series shall become effective only upon the successor
Trustee's acceptance of appointment as provided in this Section 7.8.
The Trustee may resign as Trustee with respect to the
Securities of any series at any time by so notifying the Company in writing.
The Holders of a majority in principal amount of the outstanding Securities of
any series may remove the Trustee as Trustee with respect to the Securities
of such series by so notifying the Trustee in writing and may appoint a
successor Trustee with respect thereto with the consent of the Company. The
Company may remove the Trustee as Trustee with respect to the Securities of
any series if: (i) the Trustee is no longer eligible under Section 7.10 of
this Indenture; (ii) the Trustee is adjudged a bankrupt or insolvent; (iii) a
receiver or other public officer takes charge of the Trustee or its property;
or (iv) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed as Trustee with respect to
the Securities of any series, or if a vacancy exists in the office of Trustee
with respect to the Securities of any series for any reason, the Company shall
promptly appoint a successor Trustee with respect thereto. Within one year
after the successor Trustee takes office, the Holders of a majority in
principal amount of the outstanding Securities of such series may appoint a
successor Trustee in respect of such Securities to replace the successor
Trustee appointed by the Company. If the successor Trustee with respect to
the Securities of any series does not deliver its written acceptance required
by the next succeeding paragraph of this Section 7.8 within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or
the Holders of a majority in principal amount of the outstanding Securities of
such series may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect thereto.
A successor Trustee with respect to the Securities of any
series shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. Immediately after the delivery of such written
acceptance, subject to the lien provided for in Section 7.7, (i) the retiring
Trustee shall transfer all property held by it as Trustee in respect of the
Securities of such series to the successor Trustee, (ii) the resignation or
removal of the retiring Trustee in respect of the Securities of such series
shall become effective and (iii) the successor Trustee shall have all the
rights, powers and duties of the Trustee in respect of the Securities of such
series under this Indenture. A successor Trustee shall mail notice of its
succession to each Holder of Securities of such series.
Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts
referred to in the preceding paragraph.
The Company shall give notice of any resignation and any
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee in respect of the Securities of such series
to all Holders of Securities of such series. Each notice shall include the
name of the successor Trustee and the address of its Corporate Trust Office.
Notwithstanding replacement of the Trustee with respect to the
Securities of any series pursuant to this Section 7.8, the Company's
obligations under Section 7.7 shall continue for the benefit of the retiring
Trustee.
SECTION 7.9 Successor Trustee by Merger, Etc. If the
Trustee consolidates with, merges or converts into, or transfers all or
substantially all of its corporate trust business to, another corporation or
national banking association, the resulting, surviving or transferee
corporation or national banking association without any further act shall be
the successor Trustee with the same effect as if the successor Trustee had
been named as the Trustee herein.
SECTION 7.10 Eligibility. This Indenture shall always
have a Trustee who satisfies the requirements of Trust Indenture Act Section
310(a). The Trustee shall have a combined capital and surplus of at least
$25,000,000 as set forth in its most recent published annual report of
condition.
SECTION 7.11 Money Held in Trust. The Trustee shall not
be liable for interest on any money received by it except as the Trustee may
agree in writing with the Company. Money held in trust by the Trustee need
not be segregated from other funds except to the extent required by law and
except for money held in trust under Article 8 of this Indenture.
ARTICLE 8
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS.
SECTION 8.1 Satisfaction and Discharge of Indenture. If
at any time (a) the Company shall have paid or caused to be paid the principal
of and interest on all the Securities of any series outstanding hereunder
(other than Securities of such series which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section 2.8) as and
when the same shall have become due and payable, or (b) the Company shall have
delivered to the Trustee for cancellation all securities of any series
theretofore authenticated (other than any Securities of such series which
shall have been destroyed, lost or stolen and which shall have been replaced
or paid as provided in Section 2.8) or (c) (i) all the securities of such
series not theretofore delivered to the Trustee for cancellation shall have
become due and payable, or are by their terms to become due and payable within
one year or are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption, and (ii)
the Company shall have irrevocably deposited or caused to be deposited with
the Trustee as trust funds the entire amount in cash (other than moneys
repaid by the Trustee or any paying agent to the Company in accordance with
Section 8.4) or U.S. Government Obligations, maturing as to principal and
interest in such amounts and at such times as will insure the availability
of cash sufficient to pay at maturity or upon redemption all Securities of
such series (other than any Securities of such series which shall have been
destroyed, lost or stolen and which shall have been replaced or paid as
provided in Section 2.8) not theretofore delivered to the Trustee for
cancellation, including principal and interest due or to become due on or
prior to such date of maturity as the case may be, and if, in any such
case, the Company shall also pay or cause to be paid all other sums payable
hereunder by the Company with respect to Securities of such series, then
this Indenture shall cease to be of further effect with respect to
Securities of such series (except as to (i) rights of registration of
transfer and exchange of securities of such series, and the Company's right
of optional redemption, if any, (ii) substitution of mutilated, defaced,
destroyed, lost or stolen Securities, (iii) rights of holders to receive
payments of principal thereof and interest thereon, upon the original
stated due dates therefor (but not upon acceleration) and remaining rights
of the holders to receive mandatory sinking fund payments, if any, (iv) the
rights, obligations and immunities of the Trustee hereunder and (v) the
rights of the Securityholders of such series as beneficiaries hereof with
respect to the property so deposited with the Trustee payable to all or any
of them), and the Trustee, on demand of the Company accompanied by an
Officers' Certificate and an Opinion of Counsel and at the cost and expense
of the Company, shall execute proper instruments acknowledging such
satisfaction of and discharging this Indenture with respect to such series;
provided, that the rights of Holders of the Securities to receive amounts
in respect of principal of and interest on the Securities held by them
shall not be delayed longer than required by then-applicable mandatory
rules or policies of any securities exchange upon which the Securities are
listed. The Company agrees to reimburse the Trustee for any costs or
expenses thereafter reasonably and properly incurred and to compensate the
Trustee for any services thereafter reasonably and properly rendered by the
Trustee in connection with this Indenture or the Securities of such series.
SECTION 8.2 Application by Trustee of Funds Deposited for
Payment of Securities. Subject to Section 8.4 and to the subordination
provisions of Article 11 hereof, all moneys deposited with the Trustee
pursuant to Section 8.1 shall be held in trust and applied by it to the
payment, either directly or through any paying agent (including the Company
acting as its own paying agent), to the Holders of the particular Securities
of such series for the payment or redemption of which such moneys have been
deposited with the Trustee, of all sums due and to become due thereon for
principal and interest; but such money need not be segregated from other funds
except to the extent required by law.
SECTION 8.3 Repayment of Moneys Held by Paying Agent. In
connection with the satisfaction and discharge of this Indenture with respect
to Securities of any series, all moneys then held by any paying agent under
the provisions of this Indenture with respect to such series of Securities
shall, upon demand of the Company, be repaid to it or paid to the Trustee and
thereupon such paying agent shall be released from all further liability with
respect to such moneys.
SECTION 8.4 Return of Moneys Held by Trustee and Paying
Agent Unclaimed for Two Years. Any moneys deposited with or paid to the
Trustee or any paying agent for the payment of the principal of or interest on
any Security of any series and not applied but remaining unclaimed for two
years after the date upon which such principal or interest shall have become
due and payable, shall, upon the written request of the Company and unless
otherwise required by mandatory provisions of applicable escheat or abandoned
or unclaimed property law, be repaid to the Company by the Trustee for such
series or such paying agent, and the Holder of the Security of such series
shall, unless otherwise required by mandatory provisions of applicable escheat
or abandoned or unclaimed property laws, thereafter look only to the Company
for any payment which such Holder may be entitled to collect, and all
liability of the Trustee or any paying agent with respect to such moneys shall
thereupon cease.
SECTION 8.5 Defeasance and Discharge of Indenture. The
Company shall be deemed to have paid and shall be discharged from any and all
obligations in respect of the Securities of any series, on the 123rd day after
the deposit referred to in clause (A) hereof has been made, and the provisions
of this Indenture shall no longer be in effect with respect to the Securities
of such series (and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging the same), except as to: (a) rights of
registration of transfer and exchange, and the Company's right of optional
redemption, (b) substitution of apparently mutilated, defaced, destroyed, lost
or stolen Securities, (c) rights of holders to receive payments of principal
thereof and interest thereon, upon the original stated due dates therefor (but
not upon acceleration), (d) the rights, obligations and immunities of the
Trustee hereunder and (e) the rights of the Securityholders of such series as
beneficiaries hereof with respect to the property so deposited with the
Trustee payable to all or any of them; provided that the following conditions
shall have been satisfied:
(A) with reference to this provision the Company has deposited or
caused to be irrevocably deposited with the Trustee (or another trustee
satisfying the requirements of Sections 7.8 and 7.10) 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, (i) money
in an amount, or (ii) U.S. Government Obligations which through the
payment of interest and principal in respect thereof in accordance with
their terms will provide not later than one day before the due date of
any payment referred to in subclause (x) or (y) of this clause (A)
money in an amount, or (iii) 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 without consideration of the
reinvestment of such interest and after payment of all federal, state
and local taxes or other charges and assessments in respect thereof
payable by the Trustee (x) the principal of, premium, if any, and each
installment of interest on the outstanding Securities of such series on
the due dates thereof and (y) 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 Securities of such series and the Indenture with respect to
the Securities of such series;
(B) the Company has delivered to the Trustee (i) either (x) an
Opinion of Counsel to the effect that Holders of Securities of such
series will not recognize income, gain or loss for federal income tax
purposes as a result of the Company's exercise of its option under this
Section 8.5 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,
which Opinion of Counsel must be based upon a ruling of the Internal
Revenue Service to the same effect or a change in applicable federal
income tax law or related treasury regulations after the date of this
Indenture or (y) a ruling directed to the Trustee received from the
Internal Revenue Service to the same effect as the aforementioned
Opinion of Counsel and (ii) an Opinion of Counsel to the effect that
the creation of the defeasance trust does not violate the Investment
Company Act of 1940 and after the passage of 123 days following the
deposit, the trust fund will not be subject to the effect of Section
547 of the U.S. Bankruptcy Code or Section 15 of the New York Debtor
and Creditor Law;
(C) immediately after giving effect to such deposit on a pro
forma basis, no Event of Default, or event that after the giving of
notice or lapse of time or both would become an Event of Default,
shall have occurred and be continuing on the date of such deposit or
during the period ending on the 123rd day after the date of such
deposit, and such deposit shall not result in a breach or violation
of, or constitute a default under, any other agreement or instrument
to which the Company is a party or by which the Company is bound;
(D) the Company is not prohibited from making payments in
respect of the Securities by Article 11 hereof; and
(E) if at such time the Securities of such series are listed
on a national securities exchange, the Company has delivered to the
Trustee an Opinion of Counsel to the effect that the Securities of
such series will not be delisted as a result of such deposit,
defeasance and discharge.
SECTION 8.6 Defeasance of Certain Obligations. The
Company may omit to comply with any term, provision or condition set forth in,
and this Indenture will no longer be in effect with respect to, any covenant
in Article 4 or Section 5.1 established pursuant to Section 2.3 in any
indenture supplemental hereto and clause (c) (with respect to any covenants in
Article 4 or Section 5.1 established pursuant to Section 2.3 in any indenture
supplemental hereto) and clause (f) of Section 6.1 shall be deemed not to be
an Event of Default, and the provisions of Article 11 shall not apply with
respect to the Securities of any series, if
(A) with reference to this Section 8.6, the Company has
deposited or caused to be irrevocably deposited with the Trustee (or
another trustee satisfying the requirements of Section 7.8) 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 Indenture with respect to the Securities of such
series, (i) money in an amount or (ii) U.S. Government Obligations
which through the payment of interest and principal in respect
thereof in accordance with their terms will provide not later than
one day before the due dates thereof or earlier redemption
(irrevocably provided for under agreements satisfactory to the
Trustee), as the case may be, of any payment referred to in subclause
(x) or (y) of this clause (A) money in an amount, or (iii) 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 without consideration of the reinvestment of such interest
and after payment of all federal, state and local taxes or other
charges and assessments in respect thereof payable by the Trustee (x)
the principal of, premium, if any, and each installment of interest
on the outstanding Securities on the due date thereof or earlier
redemption (irrevocably provided for under arrangements satisfactory
to the Trustee), as the case may be, and (y) any mandatory sinking
fund payments or analogous payments applicable to the Securities of
such series and the Indenture with respect to the Securities of such
series on the day on which such payments are due and payable in
accordance with the terms of the Indenture and of Securities of such
series and the Indenture with respect to the Securities of such
series;
(B) the Company has delivered to the Trustee (i) an Opinion of
Counsel to the effect that Holders of Securities of such series will
not recognize income, gain or loss for federal income tax purposes as
a result of the Company's exercise of its option under this Section
8.6 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 (ii) an Opinion
of Counsel to the effect that the creation of the defeasance trust
does not violate the Investment Company Act of 1940 and after the
passage of 123 days following the deposit, the trust fund will not be
subject to the effect of Section 547 of the U.S. Bankruptcy Code or
Section 15 of the New York Debtor and Creditor Law;
(C) immediately after giving effect to such deposit on a pro
forma basis, no Event of Default, or event that after the giving of
notice or lapse of time or both would become an Event of Default,
shall have occurred and be continuing on the date of such deposit or
during the period ending on the 123rd day after the date of such
deposit, and such deposit shall not result in a breach or violation
of, or constitute a default under, any other agreement or instrument
to which the Company is a party or by which the Company is bound;
(D) the Company is not prohibited from making payments in
respect of the Securities by Article 11 hereof; and
(E) if at such time the Securities of such series are listed
on a national securities exchange, the Company has delivered to the
Trustee an Opinion of Counsel to the effect that the Securities of
such series will not be delisted as a result of such deposit,
defeasance and discharge.
SECTION 8.7 Reinstatement. If the Trustee or paying
agent is unable to apply any monies or U.S. Government Obligations in
accordance with Article 8 by reason of any legal proceeding or by reason of
any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Company's
obligations under this Indenture and the Securities shall be revived and
reinstated as though no deposit had occurred pursuant to this Article until
such time as the Trustee or paying agent is permitted to apply all such monies
or U.S. Government Obligations in accordance with Article 8; provided,
however, that if the Company has made any payment of principal of or interest
on any Securities because of the reinstatement of its obligations, the Company
shall be subrogated to the rights of the Holders of such Securities to receive
such payment from the monies or U.S. Government Obligations held by the
Trustee or paying agent.
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.1 Without Consent of Holders. The Company and
the Trustee may amend or supplement this Indenture or the Securities of any
series without notice to or the consent of any Holder:
(1) to cure any ambiguity, defect or inconsistency in this
Indenture; provided that such amendments or supplements shall not
materially and adversely affect the interests of the Holders;
(2) to comply with Article 5;
(3) to comply with any requirements of the Commission in
connection with the qualification of this Indenture under the Trust
Indenture Act;
(4) to evidence and provide for the acceptance of appointment
hereunder with respect to the Securities of any or all series by a
successor Trustee;
(5) to establish the form or forms or terms of Securities of
any series or of the coupons appertaining to such Securities as
permitted by Section 2.3;
(6) to provide for uncertificated or Unregistered Securities
and to make all appropriate changes for such purpose; and
(7) to make any change that does not materially and adversely
affect the rights of any Holder.
SECTION 9.2 With Consent of Holders. Subject to Sections
6.4 and 6.7, without prior notice to any Holders, the Company and the Trustee
may amend this Indenture and the Securities of any series with the written
consent of the Holders of a majority in principal amount of the outstanding
Securities of all series affected by such supplemental indenture (all such
series voting as one class), and the Holders of a majority in principal amount
of the outstanding Securities of all series affected thereby (all such series
voting as one class) by written notice to the Trustee may waive future
compliance by the Company with any provision of this Indenture or the
Securities of such series.
Notwithstanding the provisions of this Section 9.2, without the
consent of each Holder affected thereby, an amendment or waiver, including a
waiver pursuant to Section 6.4, may not:
(i) change the stated maturity of the Principal of, or any
sinking fund obligation or any installment of interest on, such
Holder's Security;
(ii) reduce the Principal amount thereof or the rate of interest
thereon (including any amount in respect of original issue discount);
(iii) reduce the above stated percentage of outstanding
Securities the consent of whose holders is necessary to modify or amend
the Indenture with respect to the Securities of the relevant series;
and
(iv) reduce the percentage in principal amount of outstanding
Securities of the relevant series the consent of whose Holders is
required for any such supplemental indenture, for any waiver of
compliance with certain provisions of this Indenture or certain
Defaults and their consequences provided for in this Indenture.
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 Holders of Securities of such
series with respect to such covenant or provision, shall be deemed not to
affect the rights under this Indenture of the Holders of Securities of any
other series or of the coupons appertaining to such Securities.
It shall not be necessary for the consent of any Holder under
this Section 9.2 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section 9.2
becomes effective, the Company shall give to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. The Company
will mail supplemental indentures to Holders upon request. Any failure of the
Company to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture or
waiver.
SECTION 9.3 Revocation and Effect of Consent. Until an
amendment or waiver becomes effective, a consent to it by a Holder is a
continuing consent by the Holder and every subsequent Holder of a Security or
portion of a Security that evidences the same debt as the Security of the
consenting Holder, even if notation of the consent is not made on any
Security. However, any such Holder or subsequent Holder may revoke the
consent as to its Security or portion of its Security. Such revocation shall
be effective only if the Trustee receives the notice of revocation before the
date the amendment, supplement or waiver becomes effective. An amendment,
supplement or waiver shall become effective with respect to any Securities
affected thereby on receipt by the Trustee of written consents from the
requisite Holders of outstanding Securities affected thereby.
The Company may, but shall not be obligated to, fix a record
date (which may be not less than five nor more than 60 days prior to the
solicitation of consents) for the purpose of determining the Holders of the
Securities of any series affected entitled to consent to any amendment,
supplement or waiver. If a record date is fixed, then, notwithstanding the
immediately preceding paragraph, those Persons who were such Holders at such
record date (or their duly designated proxies) and only those Persons shall be
entitled to consent to such amendment, supplement or waiver or to revoke any
consent previously given, whether or not such Persons continue to be such
Holders after such record date. No such consent shall be valid or effective
for more than 90 days after such record date.
After an amendment, supplement or waiver becomes effective with
respect to the Securities of any series affected thereby, it shall bind every
Holder of such Securities unless it is of the type described in any of clauses
(i) through (iv) of Section 9.2. In case of an amendment or waiver of the
type described in clauses (i) through (iv) of Section 9.2, the amendment or
waiver shall bind each such Holder who has consented to it and every
subsequent Holder of a Security that evidences the same indebtedness as the
Security of the consenting Holder.
SECTION 9.4 Notation on or Exchange of Securities. If an
amendment, supplement or waiver changes the terms of any Security, the Trustee
may require the Holder thereof to deliver it to the Trustee. The Trustee may
place an appropriate notation on the Security about the changed terms and
return it to the Holder and the Trustee may place an appropriate notation on
any Security of such series thereafter authenticated. Alternatively, if the
Company or the Trustee so determines, the Company in exchange for the Security
shall issue and the Trustee shall authenticate a new Security of the same
series and tenor that reflects the changed terms.
SECTION 9.5 Trustee to Sign Amendments, Etc. The Trustee
shall be entitled to receive, and shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of any amendment, supplement or
waiver authorized pursuant to this Article 9 is authorized or permitted by
this Indenture, stating that all requisite consents have been obtained or that
no consents are required and stating that such supplemental indenture
constitutes the legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, subject to
customary exceptions. Subject to the preceding sentence, the Trustee shall
sign such amendment, supplement or waiver if the same does not adversely
affect the rights of the Trustee. The Trustee may, but shall not be
obligated to, execute any such amendment, supplement or waiver that affects
the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
SECTION 9.6 Conformity with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article 9 shall conform to
the requirements of the Trust Indenture Act as then in effect.
ARTICLE 10
MISCELLANEOUS
SECTION 10.1 Trust Indenture Act of 1939. This Indenture
shall incorporate and be governed by the provisions of the Trust Indenture Act
that are required to be part of and to govern indentures qualified under the
Trust Indenture Act.
SECTION 10.2 Notices. Any notice or communication shall
be sufficiently given if written and (a) if delivered in person when received
or (b) if mailed by first class mail 5 days after mailing, or (c) as between
the Company and the Trustee if sent by facsimile transmission, when
transmission is confirmed, in each case addressed as follows:
if to the Company:
The AES Corporation
0000 Xxxxx 00xx Xxxxxx
Xxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: General Counsel
if to the Trustee:
The First National Bank of Chicago
Corporate Trust Services Division
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xx 00000-0000
Telecopy: (000) 000-0000
Attention: Corporate Trust Administration
The Company or the Trustee by written notice to the other may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication shall be sufficiently given to
Holders of any Unregistered Securities, by publication at least once in an
Authorized Newspaper in The City of New York, or with respect to any Security
the interest on which is based on the offered quotations in the interbank
Eurodollar market for dollar deposits at least once in an Authorized Newspaper
in London, and by mailing to the Holders thereof who have filed their names
and addresses with the Trustee pursuant to Section 313(c)(2) of the Trust
Indenture Act at such addresses as were so furnished to the Trustee and to
Holders of Registered Securities by mailing to such Holders at their addresses
as they shall appear on the Security Register. Notice mailed shall be
sufficiently given if so mailed within the time prescribed. Copies of any
such communication or notice to a Holder shall also be mailed to the Trustee
and each Agent at the same time.
Failure to mail a notice or communication to a Holder or any
defect in it shall not affect its sufficiency with respect to other Holders.
Except as otherwise provided in this Indenture, if a notice or communication
is mailed in the manner provided in this Section 10.2, it is duly given,
whether or not the addressee receives it.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee,
but such filing shall not be a condition precedent to the validity of any
action taken in reliance upon such waiver.
In case it shall be impracticable to give notice as herein
contemplated, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose
hereunder.
SECTION 10.3 Certificate and Opinion as to Conditions
Precedent. Upon any request or application by the Company to the Trustee to
take any action under this Indenture, the Company shall furnish to the
Trustee:
(i) an Officers' Certificate stating that, in the opinion of
the signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with;
and
(ii) an Opinion of Counsel stating that, in the opinion of
such counsel, all such conditions precedent have been complied with.
SECTION 10.4 Statements Required in Certificate or
Opinion. Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(i) a statement that each person signing such certificate or
opinion has read such covenant or condition and the definitions
herein relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statement or opinion
contained in such certificate or opinion is based;
(iii) a statement that, in the opinion of each such person, 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
(iv) a statement as to whether or not, in the opinion of each
such person, such condition or covenant has been complied with;
provided, however, that, with respect to matters of fact, an Opinion
of Counsel may rely on an Officers' Certificate or certificates of
public officials.
SECTION 10.5 Evidence of Ownership. The Company, the Trustee
and any agent of the Company or the Trustee may deem and treat the Holder of
any Unregistered Security and the Holder of any coupon as the absolute owner
of such Unregistered Security or coupon (whether or not such Unregistered
Security or coupon shall be overdue) for the purpose of receiving payment
thereof or on account thereof and for all other purposes, and neither the
Company, the Trustee, nor any agent of the Company or the Trustee shall
be affected by any notice to the contrary. The fact of the holding by any
Holder of an Unregistered Security, and the identifying number of such
Security and the date of his holding the same, may be proved by the production
of such Security or by a certificate executed by any trust company, bank,
banker or recognized securities dealer wherever situated satisfactory to the
Trustee, if such certificate shall be deemed by the Trustee to be
satisfactory. Each such certificate shall be dated and shall state that on
the date thereof a Security bearing a specified identifying number was
deposited with or exhibited to such trust company, bank, banker or
recognized securities dealer by the person named in such certificate. Any
such certificate may be issued in respect of one or more Unregistered
Securities specified therein. The holding by the person named in any such
certificate of any Unregistered Securities specified therein shall be
presumed to continue for a period of one year from the date of such
certificate unless at the time of any determination of such holding (1)
another certificate bearing a later date issued in respect of the same
Securities shall be produced or (2) the Security specified in such
certificate shall be produced by some other Person, or (3) the Security
specified in such certificate shall have ceased to be outstanding. Subject
to Article 7, the fact and date of the execution of any such instrument and
the amount and numbers of Securities held by the Person so executing such
instrument may also be proven in accordance with such reasonable rules and
regulations as may be prescribed by the Trustee or in any other manner
which the Trustee may deem sufficient.
The Company, the Trustee and any agent of the Company or the
Trustee may deem and treat the person in whose name any Registered Security
shall be registered upon the Security Register for such series as the absolute
owner of such Registered Security (whether or not such Registered Security
shall be overdue and notwithstanding any notation of ownership or other
writing thereon) for the purpose of receiving payment of or on account of the
Principal of and, subject to the provisions of this Indenture, interest on
such Registered Security and for all other purposes; and neither the Company
nor the Trustee nor any agent of the Company or the Trustee shall be affected
by any notice to the contrary.
SECTION 10.6 Rules by Trustee, Paying Agent or Registrar.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Paying Agent or Registrar may make reasonable rules for its
functions.
SECTION 10.7 Payment Date Other Than a Business Day. If
any date for payment of Principal or interest on any Security shall not be a
Business Day at any place of payment, then payment of Principal of or interest
on such Security, as the case may be, need not be made on such date, but may
be made on the next succeeding Business Day at any place of payment with the
same force and effect as if made on such date and no interest shall accrue in
respect of such payment for the period from and after such date.
SECTION 10.8 Governing Law. The laws of the State of New
York shall govern this Indenture and the Securities.
SECTION 10.9 No Adverse Interpretation of Other
Agreements. This Indenture may not be used to interpret another indenture or
loan or debt agreement of the Company or any Subsidiary of the Company. Any
such indenture or agreement may not be used to interpret this Indenture.
SECTION 10.10 Successors. All agreements of the Company in
this Indenture and the Securities shall bind its successors. All agreements
of the Trustee in this Indenture shall bind its successors.
SECTION 10.11 Duplicate Originals. The parties may sign
any number of copies of this Indenture. Each signed copy shall be an
original, but all of them together represent the same agreement.
SECTION 10.12 Separability. In case any provision in this
Indenture or in the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 10.13 Table of Contents, Headings, Etc. The Table
of Contents and headings of the Articles and Sections of this Indenture have
been inserted for convenience of reference only, are not to be considered a
part hereof and shall in no way modify or restrict any of the terms and
provisions hereof.
SECTION 10.14 Incorporators, Stockholders, Officers and
Directors of Company Exempt from Individual Liability. No recourse under or
upon any obligation, covenant or agreement contained in this Indenture or any
indenture supplemental hereto, or in any Security or any coupons appertaining
thereto, or because of any indebtedness evidenced thereby, shall be had
against any incorporator, as such or against any past, present or future
stockholder, officer, director or employee, as such, of the Company or of any
successor, either directly or through the Company or any successor, under any
rule of law, statute or constitutional provision or by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of the
Securities and the coupons appertaining thereto by the holders thereof and as
part of the consideration for the issue of the Securities and the coupons
appertaining thereto.
SECTION 10.15 Judgment Currency. The Company agrees, to
the fullest extent that it may effectively do so under applicable law, that
(a) if for the purpose of obtaining judgment in any court it is necessary to
convert the sum due in respect of the Principal of or interest on the
Securities of any series (the "Required Currency") into a currency in which a
judgment will be rendered (the "Judgment Currency"), the rate of exchange used
shall be the rate at which in accordance with normal banking procedures the
Trustee could purchase in The City of New York the Required Currency with the
Judgment Currency on the day on which final unappealable judgment is entered,
unless such day is not a Business Day, then, to the extent permitted by
applicable law, the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the Trustee could purchase in The
City of New York the Required Currency with the Judgment Currency on the
Business Day preceding the day on which final unappealable judgment is entered
and (b) its obligations under this Indenture to make payments in the Required
Currency (i) shall not be discharged or satisfied by any tender, or any
recovery pursuant to any judgment (whether or not entered in accordance with
subsection (a)), in any currency other than the Required Currency, except to
the extent that such tender or recovery shall result in the actual receipt, by
the payee, of the full amount of the Required Currency expressed to be payable
in respect of such payments, (ii) shall be enforceable as an alternative or
additional cause of action for the purpose of recovering in the Required
Currency the amount, if any, by which such actual receipt shall fall short of
the full amount of the Required Currency so expressed to be payable and (iii)
shall not be affected by judgment being obtained for any other sum due under
this Indenture.
ARTICLE 11
SUBORDINATION OF SECURITIES
SECTION 11.1 Agreement to Subordinate. The Company covenants
and agrees, and each Holder of Securities issued hereunder by his acceptance
thereof likewise covenants and agrees, that all Securities shall be issued
subject to the provisions of this Article; and each person holding any
Security, whether upon original issue or upon transfer, assignment or exchange
thereof accepts and agrees that the Principal of and interest on all
Securities issued hereunder shall, to the extent and in the manner herein set
forth, be subordinated and subject in right to the prior payment in full of
all Senior Debt.
SECTION 11.2 Payments to Securityholders. No payments on account
of Principal of, Change of Control purchase price, or interest on the Securities
shall be made if at the time of such payment or immediately after giving effect
thereto there shall exist a default in any payment with respect to any Senior
Debt, and such event of default shall not have been cured or waived or shall not
have ceased to exist. In addition, during the continuance of any other event of
default (other than a payment default) with respect to Designated Senior Debt
pursuant to which the maturity thereof may be accelerated, from and after the
date of receipt by the Trustee of written notice from the holders of such
Designated Senior Debt or from an agent of such holders, no payments on account
of Principal or interest in respect of the Securities may be made by the Company
for a period ("Payment Blockage Period") commencing on the date of delivery of
such notice and ending 179 days thereafter (unless such Payment Blockage Period
shall be terminated by written notice to the Trustee from the holders of such
Designated Senior Debt or from an agent of such holders, or such event of
default has been cured or waived or has ceased to exist). Only one Payment
Blockage Period may be commenced with respect to the Securities during any
period of 360 consecutive days. No event of default which existed or was
continuing on the date of the commencement of any Payment Blockage Period with
respect to the Designated Senior Debt initiating such Payment Blockage Period
shall be or be made the basis for the commencement of any subsequent Payment
Blockage Period by the holders of such Designated Senior Debt, unless such event
of default shall have been cured or waived for a period of not less than 90
consecutive days.
Upon any payment or distribution of assets of the Company of
any kind or character, whether in cash, property or securities, to creditors
upon any liquidation, dissolution, winding up, receivership, reorganization,
assignment for the benefit of creditors, marshalling of assets and liabilities
or any bankruptcy, insolvency or similar proceedings of the Company, all
amounts due or to become due upon all Senior Debt shall first be paid in full,
in cash or cash equivalents, or payment thereof provided for in accordance
with its terms, before any payment is made on account of the Principal of or
interest on the indebtedness evidenced by the Securities, and upon any such
liquidation, dissolution, winding up, receivership, reorganization,
assignment, marshalling or proceeding, any payment or distribution of assets
of the Company of any kind or character, whether in cash, property or
securities, to which the Holders of the Securities or the Trustee under this
Indenture would be entitled, except for the provisions hereof, shall be paid
by the Company or by any receiver, trustee in bankruptcy, liquidating trustee,
agent or other Person making such payment or distribution, or by the Holders
of the Securities or by the Trustee under this Indenture if received by them
or it, directly to the holders of Senior Debt (pro rata to such holders on the
basis of the respective amounts of Senior Debt held by such holders) or their
respective representatives, or to the trustee or trustees under any indenture
pursuant to which any instruments evidencing any of such Senior Debt may have
been issued, as their respective interests may appear, to the extent necessary
to pay all Senior Debt in full (including, without limitation, except to the
extent, if any, prohibited by mandatory provisions of law, post-petition
interest, in any such proceedings), after giving effect to any concurrent
payment or distribution to or for the holders of Senior Debt, before any
payment or distribution is made to the holders of the indebtedness evidenced
by the Securities or to the Trustee under this Indenture.
In the event that, notwithstanding the foregoing, any payment
or distribution of assets of the Company of any kind or character, whether in
cash, property or securities, prohibited by the foregoing, shall be received
by the Trustee under this Indenture or the holders of the Securities before
all Senior Debt is paid in full or provision is made for such payment in
accordance with its terms, such payment or distribution shall be held in trust
for the benefit of and shall be paid over or delivered to the holders of such
Senior Debt or their respective representatives, or to the trustee or trustees
under any indenture pursuant to which any instruments evidencing any of such
Senior Debt may have been issued, as their respective interests may appear,
for application to the payment of all Senior Debt remaining unpaid until all
such Senior Debt shall have been paid in full in accordance with its terms,
after giving effect to any concurrent payment or distribution to or for the
holders of such Senior Debt.
For purposes of this Article, the words, "cash, property or
securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other
corporation provided for by a plan of arrangement, reorganization or
readjustment, the payment of which is subordinated (at least to the extent
provided in this Article with respect to the Securities) to the payment of all
Senior Debt which may at the time be outstanding; provided, that (i) the
Senior Debt is assumed by the new corporation, if any, resulting from any such
arrangement, reorganization or readjustment, and (ii) the rights of the
holders of the Senior Debt are not, without the consent of such holders,
altered by such arrangement, reorganization or readjustment. The
consolidation of the Company with, or the merger of the Company into, another
corporation or the liquidation or dissolution of the Company following the
conveyance or transfer of its property as an entirety, or substantially as an
entirety, to another corporation upon the terms and conditions provided in
Article 5 shall not be deemed a dissolution, winding-up, liquidation or
reorganization for the purposes of this Section if such other corporation
shall, as a part of such consolidation, merger, conveyance or transfer, comply
with the conditions stated in Article 5. Nothing in this Section shall apply
to claims of, or payments to, the Trustee under or pursuant to Article 7,
except as provided therein. This Section shall be subject to the further
provisions of Section 11.5.
SECTION 11.3 Subrogation of Securities. Subject to the
payment in full of all Senior Debt, the holders of the Securities shall be
subrogated to the rights of the holders of Senior Debt to receive payments or
distributions of cash, property or securities of the Company applicable to the
Senior Debt until the principal of and interest on the Securities shall be
paid in full; and, for the purposes of such subrogation, no payments or
distributions to the holders of the Senior Debt of any cash, property or
securities to which the holders of the Securities or the Trustee on their
behalf would be entitled except for the provisions of this Article, and no
payment over pursuant to the provisions of this Article to the holders of
Senior Debt by holders of the Securities or the Trustee on their behalf shall,
as between the Company, its creditors other than holders of Senior Debt and
the holders of the Securities, be deemed to be a payment by the Company to or
on account of the Senior Debt; and no payments or distributions of cash,
property or securities to or for the benefit of the Securityholders pursuant
to the subrogation provision of this Article, which would otherwise have been
paid to the holders of Senior Debt shall be deemed to be a payment by the
Company to or for the account of the Securities. It is understood that the
provisions of this Article are and are intended solely for the purpose of
defining the relative rights of the holders of the Securities, on the one
hand, and the holders of the Senior Debt, on the other hand.
Nothing contained in this Article or elsewhere in this
Indenture or in the Securities is intended to or shall impair, as between the
Company, its creditors other than the holders of Senior Debt, and the holders
of the Securities, the obligation of the Company, which is absolute and
unconditional, to pay to the holders of the Securities the principal of and
interest on the Securities as and when the same shall become due and payable
in accordance with their terms, or is intended to or shall affect the relative
rights of the holders of the Securities and creditors of the Company other
than the holders of the Senior Debt, nor shall anything herein or therein
prevent the holder of any Security or the Trustee on his behalf from
exercising all remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under this Article of the
holders of Senior Debt in respect of cash, property or securities of the
Company received upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Company
referred to in this Article, the Trustee, subject to the provisions of
Sections 7.1 and 7.2, and the holders of the Securities shall be entitled to
rely upon any order or decree made by any court of competent jurisdiction in
which such liquidation, dissolution, winding up, receivership, reorganization,
assignment or marshalling proceedings are pending, or a certificate of the
receiver, trustee in bankruptcy, liquidating trustee, agent or other person
making such payment or distribution, delivered to the Trustee or to the
holders of the Securities, for the purpose of ascertaining the persons
entitled to participate in such distribution, the holders of the Senior Debt
and other indebtedness of the Company, the amount thereof or payable thereon,
the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article.
SECTION 11.4 Authorization by Securityholders. Each
holder of a Security by his acceptance thereof authorizes the Trustee in his
behalf to take such action as may be necessary or appropriate to effectuate
the subordination provided in this Article and appoints the Trustee his
attorney-in-fact for any and all such purposes.
SECTION 11.5 Notice to Trustee. The Company shall give
prompt written notice to the Trustee and to any paying agent of any fact known
to the Company which would prohibit the making of any payment of moneys to or
by the Trustee or any paying agent in respect of the Securities pursuant to
the provisions of this Article. Regardless of anything to the contrary
contained in this Article or elsewhere in this Indenture, the Trustee shall
not be charged with knowledge of the existence of any Senior Debt or of any
default or event of default with respect to any Senior Debt or of any other
facts which would prohibit the making of any payment of moneys to or by the
Trustee, unless and until the Trustee shall have received notice in writing
at its principal Corporate Trust Office to that effect signed by an officer of
the Company, or by a holder or agent of a holder of Senior Debt who shall have
been certified by the Company or otherwise established to the reasonable
satisfaction of the Trustee to be such holder or agent, or by the trustee
under any indenture pursuant to which Senior Debt shall be outstanding, and,
prior to the receipt of any such written notice, the Trustee shall, subject to
Sections 7.1 and 7.2, be entitled to assume that no such facts exist; provided
that if on a date at least three Business Days prior to the date upon which by
the terms hereof any such moneys shall become payable for any purpose
(including, without limitation, the payment of the principal of, or interest
on any Security) the Trustee shall not have received with respect to such
moneys the notice provided for in this Section, then, regardless of anything
herein to the contrary, the Trustee shall have full power and authority to
receive such moneys and to apply the same to the purpose for which they were
received, and shall not be affected by any notice to the contrary which may be
received by it on or after such prior date.
Regardless of anything to the contrary herein, nothing shall
prevent (a) any payment by the Company or the Trustee to the Securityholders
of amounts in connection with a redemption of Securities if (i) notice of such
redemption has been given pursuant to Article 3 prior to the receipt by the
Trustee of written notice as aforesaid, and (ii) such notice of redemption is
given not earlier than 60 days before the redemption date, or (b) any payment
by the Trustee to the Securityholders of amounts deposited with it pursuant to
Section 8.1.
The Trustee shall be entitled to rely on the delivery to it of
a written notice by a person representing himself to be a holder of Senior
Debt (or a trustee on behalf of such holder) to establish that such notice has
been given by a holder of Senior Debt or a trustee on behalf of any such
holder. In the event that the Trustee determines in good faith that further
evidence is required with respect to the right of any person as a holder of
Senior Debt to participate in any payment or distribution pursuant to this
Article, the Trustee may request such person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Debt held by
such person, the extent to which such person is entitled to participate in
such payment or distribution and any other facts pertinent to the rights of
such person under this Article, and if such evidence is not furnished the
Trustee may defer any payment to such person pending judicial determination as
to the right of such person to receive such payment.
SECTION 11.6 Trustee's Relation to Senior Debt. The
Trustee and any agent of the Company or the Trustee shall be entitled to all
the rights set forth in this Article with respect to any Senior Debt which may
at any time be held by it in its individual or any other capacity to the same
extent as any other holder of Senior Debt and nothing in this Indenture shall
deprive the Trustee or any such agent, of any of its rights as such holder.
Nothing in this Article shall apply to claims of, or payments to, the Trustee
under or pursuant to Section 7.7.
With respect to the holders of Senior Debt, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article, and no implied covenants or
obligations with respect to the holders of Senior Debt shall be read into this
Indenture against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Debt and, subject to the provisions of
Sections 7.1 and 7.2, the Trustee shall not be liable to any holder of Senior
Debt if it shall pay over or deliver to holders of Securities, the Company or
any other person moneys or assets to which any holder of Senior Debt shall be
entitled by virtue of this Article or otherwise.
SECTION 11.7 No Impairment of Subordination. No right of
any present or future holder of any Senior Debt to enforce subordination as
herein provided shall at any time in any way be prejudiced or impaired by any
act or failure to act on the part of the Company or by any act or failure to
act, in good faith, by any such holder, or by any noncompliance by the Company
with the terms, provisions and covenants of this Indenture, regardless of any
knowledge thereof which any such holder may have or otherwise be charged with.
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, all as of the date first written above.
(SEAL) THE AES CORPORATION
Attest: as the Company
/s/ Xxxxxxx X. Xxxxxxx
-----------------------------
By: /s/ Xxxxx X. Xxxxx
--------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President & Chief
Financial Officer
(SEAL) THE FIRST NATIONAL BANK OF CHICAGO,
Attest: as Trustee
/s/
-----------------------------
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
STATE OF Virginia )
-------------- )
COUNTY OF Arlington )
-------------- )
BEFORE ME, the undersigned authority, on this __ day of
____________, 1996, personally appeared Xxxxx X. Xxxxx, VP & CFO of The AES
Corporation, a Delaware corporation, known to me (or proved to me by
introduction upon the oath of a person known to me) to be the person and
officer whose name is subscribed to the foregoing instrument, and acknowledged
to me that he/she executed the same as the act of such corporation for the
purposes and consideration herein expressed and in the capacity therein
stated.
GIVEN UNDER MY HAND AND SEAL THIS ____ DAY OF JUNE, 1995.
(SEAL)
/s/ Xxxxxxx X. Xxxxxxx
---------------------------------
NOTARY PUBLIC, STATE OF VIRGINIA
Print Name: Xxxxxxx X. Xxxxxxx
Commission Expires: May 31, 0000
XXXXX XX XXXXXXXX )
)
COUNTY OF XXXX )
BEFORE ME, the undersigned authority, on this 27th day of
June, 1996, personally appeared Xxxxxxx X. Xxxxxxx, Vice President of
The First National Bank of Chicago, a national association, known to me
(or proved to me by introduction upon the oath of a person known to me) to
be the person and officer whose name is subscribed to the foregoing
instrument, and acknowledged to me that he/she executed the same as the act
of such trust for the purposes and consideration herein expressed and in
the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL THIS 27TH DAY OF JUNE, 1996.
(SEAL)
/s/ Xxxxxx Xxxxxx
---------------------------------
NOTARY PUBLIC, STATE OF NEW YORK
Print Name:_____________________
Commission Expires:_____________
