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