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OCCIDENTAL PETROLEUM CORPORATION
To
THE BANK OF NEW YORK, Trustee
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INDENTURE
Dated as of January 20, 1999
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Subordinated Debt Securities
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OCCIDENTAL PETROLEUM CORPORATION
Reconciliation and tie between Trust Indenture Act of 1939 and Indenture
Trust Indenture
Act Section Indenture Section
(S) 310(a)(1).............................................. 608
(a)(2).............................................. 608
(a)(3).............................................. Not Applicable
(a)(4).............................................. Not Applicable
(a)(5).............................................. 608
(b)................................................. 608
610
(c)................................................. Not Applicable
(S) 311(a)................................................. 612
(b)................................................. 612
(c)................................................. Not Applicable
(S) 312(a)................................................. 701
702(a)
(b)................................................. 702(b)
(c)................................................. 702(b)
(S) 313(a)................................................. 704, 1009
(b)................................................. Not Applicable
(c)(1).............................................. 102
(c)(2).............................................. 102
(c)(3).............................................. Not Applicable
(d)................................................. Not Applicable
(e)................................................. 102
(f)................................................. Not Applicable
(S) 315(a)................................................. 601(a)
(b)................................................. 602
(c)................................................. 601(b)
(d)................................................. 601(c)
(d)(1).............................................. 601(c)(1)
(d)(2).............................................. 601(c)(2)
(d)(3).............................................. 601(c)(3)
(e)................................................. 514
(S) 316(a)................................................. 101
(a)(1)(A)........................................... 512
(a)(1)(B)........................................... 513
(a)(2).............................................. Not Applicable
(b)................................................. 508
(c)................................................. 104(f)
(S) 317(a)(1).............................................. 503
(a)(2).............................................. 504
(b)................................................. 1003
(S) 318(a)................................................. 107
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Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
TABLE OF CONTENTS
Page
----
Parties .................................................................... 1
Recitals of the Company .................................................... 1
ARTICLE ONE
Definitions and Other Provisions of General Application ................... 1
SECTION 101. Definitions............................................ 1
Act........................................................ 2
Affiliate.................................................. 2
Authorized Newspaper....................................... 2
Bearer Security............................................ 2
Board of Directors......................................... 2
Board Resolution........................................... 2
Business Day............................................... 2
Cedel S.A.................................................. 3
Commission................................................. 3
Company.................................................... 3
Company Request and Company Order.......................... 3
Corporate Trust Office..................................... 3
corporation................................................ 3
coupon..................................................... 3
Defaulted Interest......................................... 3
Depositary................................................. 3
Discount Security.......................................... 3
Dollar or $................................................ 3
Euro-Clear................................................. 3
Event of Default........................................... 4
Holder..................................................... 4
Indebtedness............................................... 4
Indenture.................................................. 4
interest................................................... 4
Interest Payment Date...................................... 4
Xxxxxxxx................................................... 0
Xxx-Xxxxxx Xxxxxx Holder................................... 4
Officers' Certificate...................................... 5
Opinion of Counsel......................................... 5
Outstanding................................................ 5
i
Paying Agent............................................... 6
Periodic Offering.......................................... 6
Person..................................................... 6
Place of Payment........................................... 6
Predecessor Security....................................... 6
principal.................................................. 6
Redemption Date............................................ 6
Redemption Price........................................... 6
Registered Security........................................ 7
Regular Record Date........................................ 7
Responsible Officer........................................ 7
Securities................................................. 7
Security Register and Security Registrar................... 7
Special Record Date........................................ 7
Stated Maturity............................................ 7
Subsidiary................................................. 7
Trustee.................................................... 7
Trust Indenture Act........................................ 7
United States.............................................. 8
Vice President............................................. 8
SECTION 102. Compliance Certificates and Opinions.......................... 8
SECTION 103. Form of Documents Delivered to Trustee........................ 8
SECTION 104. Acts of Holders............................................... 9
SECTION 105. Notices, Etc., to Trustee and Company......................... 11
SECTION 106. Notice to Holders; Waiver..................................... 11
SECTION 107. Conflict with Trust Indenture Act............................. 12
SECTION 108. Effect of Headings and Table of Contents...................... 12
SECTION 109. Successors and Assigns........................................ 12
SECTION 110. Separability Clause........................................... 12
SECTION 111. Benefits of Indenture......................................... 12
SECTION 112. Governing Law................................................. 13
SECTION 113. Legal Holidays................................................ 13
SECTION 114. Language of Notices, Etc...................................... 13
ARTICLE TWO
Security Form............................................................... 13
SECTION 201. Forms Generally............................................... 13
SECTION 202. Form of Trustee's Certificate of Authentication............... 14
SECTION 203. Securities in Global Form..................................... 14
ii
ARTICLE THREE
The Securities.............................................................. 15
SECTION 301. Title and Terms............................................... 15
SECTION 302. Denominations................................................. 18
SECTION 303. Execution, Authentication, Delivery and Dating................ 18
SECTION 304. Temporary Securities.......................................... 21
SECTION 305. Registration, Registration of Transfer and Exchange........... 22
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities and Coupons.. 26
SECTION 307. Payment of Interest; Interest Rights Preserved................ 27
SECTION 308. Persons Deemed Owners......................................... 29
SECTION 309. Cancellation.................................................. 29
SECTION 310. Computation of Interest....................................... 30
ARTICLE FOUR
Satisfaction and Discharge.................................................. 30
SECTION 401. Satisfaction and Discharge of Indenture....................... 30
SECTION 402. Application of Trust Money.................................... 32
ARTICLE FIVE
Remedies ................................................................... 32
SECTION 501. Events of Default............................................. 32
SECTION 502. Acceleration of Maturity; Rescission and Annulment............ 34
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee........................................ 35
SECTION 504. Trustee May File Proofs of Claim.............................. 35
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities or Coupons......................................... 36
SECTION 506. Application of Money Collected................................ 36
SECTION 507. Limitation on Suits........................................... 37
SECTION 508. Unconditional Right of Holders to Receive Principal
and Interest.................................................. 38
SECTION 509. Restoration of Rights and Remedies............................ 38
SECTION 510. Rights and Remedies Cumulative................................ 38
SECTION 511. Delay or Omission Not Waiver.................................. 38
SECTION 512. Control by Holders of Securities.............................. 39
SECTION 513. Waiver of Past Defaults....................................... 39
SECTION 514. Undertaking for Costs......................................... 39
SECTION 515. Waiver of Usury, Stay or Extension Laws....................... 40
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ARTICLE SIX
The Trustee................................................................. 40
SECTION 601. Certain Duties and Responsibilities........................... 40
SECTION 602. Notice of Defaults............................................ 41
SECTION 603. Certain Rights of Trustee..................................... 42
SECTION 604. Not Responsible for Recitals or Issuance of Securities........ 43
SECTION 605. May Hold Securities........................................... 43
SECTION 606. Money Held in Trust........................................... 43
SECTION 607. Compensation and Reimbursement................................ 43
SECTION 608. Corporate Trustee Required; Eligibility....................... 44
SECTION 609. Resignation and Removal; Appointment of Successor............. 44
SECTION 610. Acceptance of Appointment by Successor........................ 46
SECTION 611. Merger, Conversion, Consolidation or Succession to Business... 47
SECTION 612. Preferential Collection of Claims Against Company............. 47
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company........................... 47
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders..... 47
SECTION 702. Preservation of Information; Communications to Holders........ 48
SECTION 703. Reports by Trustee............................................ 48
SECTION 704. Reports by Company............................................ 48
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease........................ 49
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.......... 49
SECTION 802. Successor Corporation Substituted............................. 50
ARTICLE NINE
Supplemental Indentures..................................................... 50
SECTION 901. Supplemental Indentures Without Consent of Holders............ 50
SECTION 902. Supplemental Indentures with Consent of Holders............... 51
SECTION 903. Execution of Supplemental Indentures.......................... 52
SECTION 904. Effect of Supplemental Indentures............................. 53
SECTION 905. Conformity with Trust Indenture Act........................... 53
SECTION 906. Reference in Securities to Supplemental Indentures............ 53
iv
ARTICLE TEN
Covenants................................................................... 53
SECTION 1001. Payment of Principal and Interest............................ 53
SECTION 1002. Maintenance of Office or Agency.............................. 54
SECTION 1003. Money for Security Payments to Be Held in Trust.............. 55
SECTION 1004. Corporate Existence.......................................... 56
SECTION 1005. (Intentionally Omitted)...................................... 57
SECTION 1006. (Intentionally Omitted)...................................... 57
SECTION 1007. (Intentionally Omitted)...................................... 57
SECTION 1008. (Intentionally Omitted)...................................... 57
SECTION 1009. Statement by Officer as to Compliance; Notice of
Certain Events............................................... 57
SECTION 1010. Waiver of Certain Covenants.................................. 57
SECTION 1011. Additional Amounts........................................... 57
ARTICLE ELEVEN
Redemption of Securities.................................................... 58
SECTION 1101. Applicability of Article..................................... 58
SECTION 1102. Election to Redeem; Notice to Trustee........................ 58
SECTION 1103. Selection by Trustee of Securities to be Redeemed............ 59
SECTION 1104. Notice of Redemption......................................... 59
SECTION 1105. Deposit of Redemption Price.................................. 60
SECTION 1106. Securities Payable on Redemption Date........................ 60
SECTION 1107. Securities Redeemed in Part.................................. 61
ARTICLE TWELVE
Sinking Funds............................................................... 61
SECTION 1201. Applicability of Article..................................... 61
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities........ 62
SECTION 1203. Redemption of Securities for Sinking Fund.................... 62
ARTICLE THIRTEEN
Meetings of Holders of Securities........................................... 62
SECTION 1301. Purposes for Which Meetings May Be Called.................... 62
SECTION 1302. Call, Notice and Place of Meetings........................... 63
v
SECTION 1303. Persons Entitled to Vote at Meetings......................... 63
SECTION 1304. Quorum; Action............................................... 63
SECTION 1305. Determination of Voting Rights; Conduct and Adjournment
of Meetings.................................................. 64
SECTION 1306. Counting Votes and Recording Action of Meetings.............. 65
ARTICLE FOURTEEN
SUBORDINATION............................................................... 66
SECTION 1401. Securities Subordinate to Senior Indebtedness...... 66
SECTION 1402. Payment Over of Proceeds upon Dissolution, Etc..... 67
SECTION 1403. Prior Payment to Senior Indebtedness upon
Acceleration of Securities......................... 68
SECTION 1404. Default in Senior Indebtedness..................... 69
SECTION 1405. Payment Permitted if No Default.................... 69
SECTION 1406. Subrogation Rights of Holders of Senior
Indebtedness....................................... 69
SECTION 1407. Provision Solely to Define Relative Rights......... 70
SECTION 1408. Trustee to Effectuate Subordination................ 70
SECTION 1409. No Waiver of Subordination Provisions.............. 70
SECTION 1410. Notice to Trustee.................................. 71
SECTION 1411. Reliance on Judicial Order or Certificate of
Liquidating Agent.................................. 72
SECTION 1412. Trustee Not Fiduciary for Holders of Senior
Indebtedness....................................... 72
SECTION 1413. Rights of Trustee as Holder of Senior
Indebtedness; Preservation of Trustee's Rights..... 72
SECTION 1414. Article Fourteen Applicable to Paying Agents....... 73
TESTIMONIUM ...................................................................
SIGNATURE AND SEALS ...........................................................
ACKNOWLEDGMENTS ...............................................................
vi
INDENTURE, dated as of January 20, 1999, between Occidental Petroleum
Corporation, a corporation duly organized and existing under the laws of the
State of Delaware (herein called the "Company"), having its principal office at
00000 Xxxxxxxx Xxxxxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000, and The Bank of New
York, a New York banking corporation, as trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary to make the Securities, when executed by the Company
and authenticated and delivered hereunder and duly issued by the Company, the
valid obligations of the Company, and to make this Indenture a valid agreement
of the Company, in accordance with their and its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities or of one or more series
thereof and the coupons, if any, appertaining thereto, as follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles," with respect
to any computation required or permitted hereunder, shall mean such
accounting principles as are generally accepted in the United States of
America at the date of such computation; and
(4) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in that
Article.
"Act" when used with respect to any Holder has the meaning specified in
Section 104.
"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" means a newspaper, in the English language or in an
official language of the country of publication, customarily published on each
Business Day, whether or not published on Saturdays, Sundays or holidays, and of
general circulation in the place in connection with which the term is used or in
the financial community of such place. Whenever successive publications are
required to be made in an Authorized Newspaper, the successive publications may
be made in the same or in different Authorized Newspapers meeting the foregoing
requirements and, in each case, on any Business Day.
"Bearer Security" means any Security in the form established pursuant to
Section 201 which is payable to bearer.
"Board of Directors" means either the board of directors of the Company or
any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day," except as otherwise specified as contemplated by Section
301, when used with respect to any Place of Payment or any other particular
location referred to in this Indenture or in the Securities, means each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions in that Place of Payment or other location are authorized or
obligated by law or executive order to close.
"Cedel S.A." means Centrale de Livraison de Valeurs Mobilieres S.A.
2
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, as amended,
or, if at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor corporation or other Person shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation or other Person.
"Company Request" and "Company Order" mean, respectively, a written request
or order delivered to the Trustee and signed in the name of the Company by its
Chairman of the Board, its President or one of its Vice Presidents and by one of
its other Vice Presidents, its Treasurer, an Assistant Treasurer, its Secretary,
an Assistant Secretary, or, with respect to Sections 303, 304, 305 and 603, any
other employee of the Company named in an Officers' Certificate delivered to the
Trustee.
"Corporate Trust Office" means the office maintained by the Trustee at
which, at any particular time, its corporate trust business principally is
administered, which initially shall be 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000.
"corporation" includes corporations, associations, companies and business
trusts.
"coupon" means any interest coupon appertaining to a Bearer Security.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Securities of any series issuable
or issued in whole or in part in global form, the Person specified as
contemplated by Section 301 as the Depositary with respect to such series of
Securities, until a successor shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or include
such successor.
"Discount Security" means any Security which provides for an amount less
than the principal amount thereof to be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502.
"Dollar" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
"Euro-Clear" means the operator of the Euro-Clear System.
"Event of Default" has the meaning specified in Section 501.
3
"Holder," when used with respect to any Security, means, in the case of a
Registered Security, the Person in whose name the Security is registered in 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.
"Indebtedness," as applied to a Person, means, as of the date on which
Indebtedness is to be determined and without duplication (i) all obligations
represented by notes, bonds, debentures or similar evidences of indebtedness;
(ii) all indebtedness for borrowed money or for the deferred purchase price of
property or services other than, in the case of any such deferred purchase
price, on normal trade terms; (iii) all rental obligations as lessee under
leases which shall have been or should be, in accordance with generally accepted
accounting principles, recorded as capital leases; and (iv) all Indebtedness of
others for the payment of which such Person is responsible or liable as obligor
or guarantor.
"Indenture" means this instrument, as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, and shall
include the terms (but not defined terms established in an Officers'
Certificate) of one or more particular series of Securities established as
contemplated by Section 301.
"interest," when used with respect to a Discount Security which by its
terms bears interest only after Maturity, means interest payable after Maturity.
"Interest Payment Date," when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Maturity," when used with respect to any Security, means the date on which
the principal of such Security or an installment of principal or, in the case of
a Discount Security, the principal amount payable upon a declaration of
acceleration pursuant to Section 502, becomes due and payable, as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Non-United States Holder" means any person who, for Federal income tax
purposes, is any person other than (i) a citizen or resident of the United
States, (ii) a corporation or partnership created or organized in the United
States or under the laws of the United States or any state thereof, (iii) an
estate whose income is includable in gross income for United States federal
income tax purposes regardless of its source, or (iv) a trust whose
administration is subject to the primary supervision of a United States court
and which has one or more United States persons who have the authority to
control all substantial decisions of the trust.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, the President, a Vice President, the Treasurer or an Assistant Treasurer
of the Company, and by one of the other
4
Vice Presidents, the Treasurer, one of the other Assistant Treasurers, 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 be an
employee of or counsel for the Company, and who shall be reasonably satisfactory
to the Trustee.
"Outstanding," when used with respect to the Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by
the Company (if the Company shall act as its own Paying Agent) for the
Holders of such Securities and any coupons thereto appertaining; 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 which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to the Company and the Trustee that such Securities are held
by a bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder: (i) the
principal amount of a Discount Security that shall be deemed to be Outstanding
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 502; (ii) the principal amount of a Security denominated in
a foreign currency or currencies shall be the Dollar equivalent, determined on
the date of original issuance of such Security, of the principal amount (or, in
the case of a Discount Security, the Dollar equivalent, on the date of original
issuance of such Security, of the amount determined as provided in (i) above) of
such Security; and (iii) Securities owned by the Company or any other obligor
upon the Securities or any Affiliate of the Company or of such other obligor
shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right
5
so to act with respect to such Securities and that the pledgee is not the
Company or any other obligor upon the Securities or any Affiliate of the Company
or of such other obligor.
"Oxy Capital Trust" shall mean each of Oxy Capital Trust I, Oxy Capital
Trust II and Oxy Capital Trust III, each a Delaware business trust, or any other
similar trust, or any partnership or other entity affiliated with the Company
created for the purpose of issuing securities in connection with the issuance of
Securities under this Indenture.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or interest on any Securities on behalf of the Company.
"Periodic Offering" means an offering of Securities of a series from time
to time, the specific terms of which Securities, including, without limitation,
the rate or rates of interest, if any, thereon, the Stated Maturity or
Maturities thereof, the original issue date or dates thereof, the redemption
provisions, if any, and any other terms specified as contemplated by Section 301
with respect thereto, are to be determined by the Company, or one or more of the
Company's agents designated in an Officers' Certificate, upon the issuance of
such Securities.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Place of Payment," when used with respect to the Securities of any series,
means the place or places where, subject to the provisions of Section 1002, the
principal of and any interest on the Securities of that series are payable, as
specified as contemplated by Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen coupon
appertains, as the case may be.
"principal" of a debt security, except as otherwise specifically provided
in this Indenture, means the outstanding principal of the security plus the
premium, if any, of the security.
"Redemption Date," when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or 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.
6
"Registered Security" means any Security established pursuant to Section
201 which is registered in 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 for that
purpose as contemplated by Section 301.
"Responsible Officer" when used with respect to the Trustee, means any
officer in the corporate trust department of the Trustee or any other officer of
the Trustee customarily performing functions similar to those performed by any
such officer and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Senior Indebtedness" has the meaning specified in Section 1401.
"Special Record Date" for the payment of any Defaulted Interest on the
Registered Securities of any issue means a date fixed by the Trustee pursuant to
Section 307.
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security 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 a corporation, association, partnership or other
business entity more than 50% of the outstanding voting stock of which is owned,
directly or indirectly, by the Company or by one or more other Subsidiaries, or
by the Company and one or more other Subsidiaries. For the purposes of this
definition, "voting stock" means stock which ordinarily has voting power for the
election of directors or persons performing similar functions, whether at all
times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean
such successor Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended and
in force at the date as of which this instrument is qualified thereunder, except
as provided in Section 905.
7
"United States" means the United States of America, its territories, its
possessions (including the Commonwealth of Puerto Rico) and other areas subject
to its jurisdiction.
"Vice President," when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president."
SECTION 102. 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, upon the
request of the Trustee, 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 (excluding the Trustee's certificate of
disposition pursuant to Section 309 and the annual compliance certificate
pursuant to Section 1009) 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 103. 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.
8
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders may
be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent duly appointed in writing.
If Securities of a series are issuable as Bearer Securities, any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Holders of such series may,
alternatively, be embodied in and evidenced by the record of Holders of
Securities of such series voting in favor thereof, either in person or by
proxies duly appointed in writing, at any meeting of Holders of Securities of
such series duly called and held in accordance with the provisions of Article
Thirteen, or a combination of such instruments and any such record. Except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments or record or both are delivered to the Trustee
and, where it is hereby expressly required, to the Company. Such instrument or
instruments and any such record (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments and so voting at any such meeting. Proof of
execution of any such instrument or of a writing appointing any such agent, or
of the holding by any Person of a Security, shall be sufficient for any purpose
of this Indenture and (subject to Section 601) conclusive in favor of the
Trustee and the Company, if made in the manner provided in this Section. The
record of any meeting of Holders of Securities shall be proved in the manner
provided in Section 1306.
(b) The fact and date of the execution by any Person of any such instrument
or writing, or the authority of the Person executing the same, may be proved in
any reasonable manner which the Trustee deems sufficient.
(c) The principal amount and serial numbers of Registered Securities held
by any Person, and the date of holding the same, shall be proved by the Security
Register.
9
(d) The principal amount and serial numbers of Bearer Securities held 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 by any trust company, bank,
banker or other depositary, wherever situated, as depositary, 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 (1) another certificate or affidavit bearing a
later date issued in respect of the same Bearer Security is produced, (2) such
Bearer Security is produced to the Trustee by some other Person, (3) such Bearer
Security is surrendered in exchange for a Registered Security or (4) such Bearer
Security is no longer Outstanding. The principal amount and serial numbers of
Bearer Securities held by any Person, and the date of holding the same, may also
be proved in any other manner which the Trustee deems sufficient.
(e) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
(f) If the Company shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other Act, the Company may,
at its option, by or pursuant to an Officers' Certificate delivered to the
Trustee, fix in advance a record date for the determination of Holders entitled
to give such request, demand, authorization, direction, notice, consent, waiver
or other Act, but the Company shall have no obligation to do so. Any such
record date, if so fixed, may vary from that specified in Section 316(c) of the
Trust Indenture Act. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of record at the close of
business on such record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite percentage of Outstanding
Securities or Outstanding Securities of a series, as the case may be, have
authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other Act, and for that purpose the
Outstanding Securities or Outstanding Securities of the series, as the case may
be, shall be computed as of such record date; provided, that no such
authorization, agreement or consent by the Holders on the record date shall be
deemed effective, unless such request, demand, authorization, direction, notice,
consent, waiver or other Act shall become effective pursuant to the provisions
of Clause (a) of this Section 104 not later than six months after the record
date.
SECTION 105. Notices, Etc., to Trustee and Company.
10
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, Attention: Corporate
Trust Trustee Administration, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company
addressed to it, Attention: Treasurer, 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 106. Notice to Holders; Waiver.
Except as otherwise expressly provided herein, where this Indenture
provides for notice to Holders of Securities of any event,
(1) such notice shall be sufficiently given to Holders of Registered
Securities, if in writing and mailed, first-class postage prepaid, to each
Holder of a Registered Security affected by such event, at his address as
it appears in the Security Register, not later than the latest date, and
not earlier than the earliest date, prescribed for the giving of such
notice; and
(2) such notice shall be sufficiently given to Holders of Bearer
Securities, if published in an Authorized Newspaper in The City of New York
and in such other city or cities as may be specified in such Securities 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 for
the giving of such notice.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case, by reason of the suspension of regular mail service, or by reason
of any other cause, it shall be impracticable to give such notice to Holders of
Registered Securities by mail, then such notification as shall be made with the
approval of the Trustee shall constitute a sufficient notification for every
purpose hereunder. In any case 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
11
other Holders of Registered Securities or the sufficiency of any notice to
Holders of Bearer Securities given as provided herein.
In case, by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers, or by reason of any other cause, it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither the failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of any notice to Holders
of Registered Securities given as provided herein.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with the duties
imposed by operation of Trust Indenture Act Section 318(c), the imposed duties
shall control.
SECTION 108. 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 109. 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 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111. Benefits of Indenture.
Except as provided in the last paragraph of Section 401, nothing in this
Indenture or in the Securities, express or implied, shall give to any Person,
other than the parties hereto and their successors hereunder and the Holders of
Securities, any benefits or any legal or equitable right, remedy or claim under
this Indenture.
SECTION 112. Governing Law.
This Indenture and the Securities shall be governed by and construed in
accordance with the internal laws of the State of New York including, without
limitation, Section 5-1401 of the New York General Obligations Law.
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SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security or, in the case of any Security which is subject to
redemption or repurchase by the Company at the option of the Holder, the date
fixed for such redemption or repayment, shall not be a Business Day at any Place
of Payment, then, except as may otherwise be provided with respect to the
Securities of any series pursuant to Section 301, payment of interest or
principal need not be made at such Place of Payment on such date, but may be
made on the next succeeding Business Day at such Place of Payment, with the same
force and effect as if made on the Interest Payment Date or Redemption Date or
at the Stated Maturity or the date fixed for such redemption or repurchase, and
no interest shall accrue for the period from and after such Interest Payment
Date, Redemption Date or Stated Maturity or date for such redemption or
repurchase, as the case may be.
SECTION 114. Language of Notices, Etc.
Any request, demand, authorization, direction, notice, consent or waiver
required or permitted under this Indenture shall be in the English language,
except that any published notice may be in an official language of the country
of publication.
ARTICLE TWO
Security Form
SECTION 201. Forms Generally.
The Registered Securities, if any, of each series and the Bearer
Securities, if any, and the coupons, if any, appertaining thereto, of each
series shall be in such form (including global form) as shall be established by
delivery to the Trustee of an Officers' Certificate or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or as may, consistently herewith, be
determined by the officers executing such Securities or coupons, as evidenced by
their execution of the Securities or coupons. If the forms of the Securities or
coupons of any series are established by an Officers' Certificate, such
Officers' Certificate shall be delivered to the Trustee at or prior to the
delivery of the Company Order contemplated by Section 303 for the authentication
and delivery of such Securities or coupons.
Unless otherwise specified as contemplated by Section 301, Bearer
Securities shall have interest coupons attached.
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The definitive Securities and coupons, if any, shall be printed,
lithographed or engraved or produced by any combination of these methods or may
be produced in any other manner, provided, that such method is permitted by the
rules of any securities exchange on which such Securities may be listed, all as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
SECTION 202. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in substantially the
following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
The Bank of New York,
as Trustee
By:_________________________________
Authorized Signatory
SECTION 203. Securities in Global Form.
If Securities of a series are issuable in temporary or definitive global
form, as specified as contemplated by Section 301, then, notwithstanding Clause
(10) of Section 301 and the provisions of Section 302, any such Security shall
represent such of the Outstanding Securities of such series as shall be
specified therein and may provide that it shall represent the aggregate amount
of Outstanding Securities from time to time endorsed thereon and that the
aggregate amount of Outstanding Securities represented thereby may from time to
time be reduced to reflect exchanges. Any endorsement of a Security in global
form to reflect the amount, or any increase or decrease in the amount, of
Outstanding Securities represented thereby shall be made by the Trustee in such
manner, and upon instructions given by such Person or Persons, as shall be
specified therein or in the Company Order to be delivered to the Trustee
pursuant to Section 303 or Section 304. Subject to the provisions of Section
303 and, if applicable, Section 304, the Trustee shall deliver and redeliver any
Security in global form in the manner, and upon instructions given by the Person
or Persons, specified therein or in the applicable Company Order. If a Company
Order pursuant to Section 303 or 304 has been, or simultaneously is, delivered,
any instructions by the Company with respect to endorsement, or delivery or
redelivery, of a Security in global form shall be in writing, but need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply to any
Security represented by a Security in global form, if such Security was never
issued and sold by the Company, and the Company delivers to the Trustee the
Security in global form, together with written instructions (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
14
with regard to the reduction in the principal amount of Securities represented
thereby and the written statement contemplated by the last sentence of Section
303.
ARTICLE THREE
The Securities
SECTION 301. Title and Terms.
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture shall be unlimited.
The Securities may be issued in one or more series. There shall be
established in one or more Board Resolutions or pursuant to authority granted by
one or more Board Resolutions and, subject to Section 303, set forth, or
determined in the manner provided, in an Officers' Certificate, or established
in one or more indentures supplemental hereto:
(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 Xxxxxxx 000, 000, 000, 000 xx 0000 and, if the
Securities of such series are subject to redemption or repurchase by the
Company at the option of the Holders thereof, except for Securities of such
series authenticated and delivered upon any such repurchase or redemption
of any such Security in part, and except for any Securities which, pursuant
to Section 303, are deemed never to have been authenticated and delivered
hereunder);
(3) whether Securities of the series are to be issuable as Registered
Securities, Bearer Securities or both, whether any Securities of the series
may be represented initially by a Security in temporary or definitive
global form and, if so, the initial Depositary with respect to any such
temporary or definitive global Security, and, if other than as provided in
Section 304 or Section 305, as applicable, whether, and the circumstances
under which, beneficial owners of interests in any such temporary or
definitive global Security may exchange such interests for Securities of
such series of like tenor of any authorized form and denomination and the
Authorized Newspapers for publication of notices to holders of Bearer
Securities;
(4) the Person to whom any interest on any Registered Security of the
series shall be payable, if other than the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close
of business on the Regular Record Date for such interest, the manner in
which, and the Person to whom, any interest on any Bearer Security of the
15
series shall be payable, if otherwise than upon presentation and surrender
of the coupons appertaining thereto as they severally mature, and any
additional or different terms with respect to the payment of interest on
temporary or definitive global Securities;
(5) the date or dates on which the principal of the Securities of the
series is payable or the method of determination thereof;
(6) the rate or rates (which may be fixed or variable) at which the
Securities of the series shall bear interest, if any, or the method of
calculating such rate or rates, the date or dates from which any such
interest shall accrue, the Interest Payment Dates on which any such
interest shall be payable and the Regular Record Date for any interest
payable on any Registered Securities on any Interest Payment Date;
(7) the place or places where, subject to the provisions of Section
1002, the principal of and any interest on Securities of the series shall
be payable, any Registered Securities of the series may be surrendered for
registration of transfer, Securities of the series may be surrendered for
exchange and notices and demands to or upon the Company in respect of the
Securities of the series and this Indenture may be served;
(8) the period or periods within which, the price or prices at which
and the terms and conditions upon which, Securities of the series may be
redeemed, in whole or in part, at the option of the Company;
(9) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof, the conditions, if any,
giving rise to such obligation, and the period or periods within which, the
price or prices at which and the terms and conditions upon which,
Securities of the series shall be redeemed or purchased, in whole or in
part, pursuant to such obligation, and any provisions for the remarketing
of such Securities;
(10) the denominations in which any Registered Securities of the
series shall be issuable, if other than denominations of $1,000 and any
integral multiple thereof, and the denomination or denominations in which
any Bearer Securities of the series shall be issuable, if other than
denominations of $5,000 and $100,000;
(11) the currency or currencies, including composite currencies or
currency units, in which Securities of the series may be denominated or in
which payment of the principal of and any interest on the Securities of the
series shall be payable, if other than the currency of the United States of
America, and if so, whether the Securities of the series may be satisfied
and discharged other than as provided in Article Four;
(12) if the amounts of payments of principal of and any interest on
the Securities of the series are to be determined with reference to an
index, formula or other method, or
16
based on a coin or currency other than that in which the Securities are
stated to be payable, the manner in which such amounts shall be determined
and the calculation agent, if any, with respect thereto;
(13) if other than the principal amount thereof, the portion of the
principal amount of any Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 502;
(14) if the Company will pay additional amounts on any of the
Securities and coupons, if any, of the series to any Holder who is a Non-
United States Holder (including any modification in the definition of such
term), in respect of any tax, assessment or governmental charge withheld or
deducted, under what circumstances, and with what procedures and
documentation, the Company will pay such additional amounts, whether such
additional amounts will be treated as interest or principal pursuant to
this Indenture, and whether the Company will have the option to redeem such
Securities rather than pay additional amounts (and the terms of any such
option);
(15) if other than as defined in Section 101, the meaning of "Business
Day" when used with respect to any Securities of the series;
(16) if the Securities of the series may be issued or delivered
(whether upon original issuance or upon exchange of a temporary Security of
such series or otherwise), or any installment of principal or interest is
payable, only upon receipt of certain certificates or other documents or
satisfaction of other conditions in addition to those specified in this
Indenture, the forms and terms of such certificates, documents or
conditions;
(17) the right, if any, of the Company to defer payments of interest
by extending the interest payment periods by a period of time to be
determined by the Company, the Interest Payment Dates on which such
interest shall be payable and whether and under what circumstances
additional interest on amounts deferred shall be payable;
(18) any addition to, or modification or deletion of, any Event of
Default, covenant of the Company or other term or provision specified in
this Indenture with respect to Securities of the series;
(19) the terms, if other than those set forth in Article Fourteen, on
which the Securities of the series will be subordinate to other
Indebtedness of the Company; and
(20) any other terms of the series, whether or not consistent with the
other provisions of this Indenture.
All Securities of any one series and the coupons appertaining to any Bearer
Securities of such series shall be substantially identical, except as to
denomination, the rate or rates of interest, if any,
17
the Stated Maturity, the date from which interest, if any, shall accrue, the
other financial terms thereof and except as may otherwise be provided in or
pursuant to an Officers' Certificate pursuant to this Section 301 or in any
indenture supplemental hereto. All Securities of any one series need not be
issued at the same time and, unless otherwise provided, a series may be reopened
for issuances of additional Securities of such series.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution, a copy of any 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. With respect to Securities
of a series subject to a Periodic Offering, such Board Resolution or the
Officers' Certificate or supplemental indenture setting forth or establishing
the terms of such series may provide general terms for Securities of such series
and provide either that the specific terms of particular Securities of such
series shall be specified in a Company Order or that such terms shall be
determined by the Company, or one or more of the Company's agents designated in
an Officers' Certificate, in accordance with the Company Order as contemplated
by the first proviso of the third paragraph of Section 303.
SECTION 302. Denominations.
Unless otherwise provided as contemplated by Section 301 with respect to
any series of Securities, any Registered Securities of a series shall be
issuable in denominations of $1,000 and any integral multiple thereof and any
Bearer Securities of a series shall be issuable in denominations of $5,000 and
$100,000.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman
of the Board, its President, one of its Vice Presidents, its Treasurer, or one
of its Assistant Treasurers under its corporate seal (or a facsimile thereof)
reproduced thereon and attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Securities may be
manual or facsimile. Coupons shall bear the actual or facsimile signature of the
Treasurer or an Assistant Treasurer of the Company.
Securities and coupons, if any, 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.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver 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 such Company
18
Order, shall authenticate and deliver such Securities; provided, however, that,
with respect to Securities of a series subject to a Periodic Offering, (a) such
Company Order may be delivered by the Company to the Trustee prior to the
delivery to the Trustee of such Securities for authentication and delivery, (b)
the Trustee shall authenticate and deliver Securities of such series for
original issue from time to time, in an aggregate principal amount not exceeding
the aggregate principal amount established for such series, pursuant to a
Company Order or pursuant to such procedures acceptable to the Trustee as may be
specified from time to time by a Company Order, (c) the rate or rates of
interest, if any, the Stated Maturity or Maturities, the original issue date or
dates, the redemption provisions, if any, and any other terms of Securities of
such series shall be determined by a Company Order or pursuant to such
procedures and (d) if provided for in such procedures, such Company Order may
authorize authentication and delivery pursuant to oral or electronic
instructions from the Company, or the Company's duly authorized agent or agents
designated in an Officers' Certificate, which oral instructions shall be
promptly confirmed in writing; and provided, further, that, in connection with
its original issuance, no Bearer Security or coupon shall be mailed or otherwise
delivered to any Person who is not a Non-United States Holder or to any location
in the United States. Except as permitted by Section 306, the Trustee shall not
authenticate and deliver any Bearer Security, unless all appurtenant coupons for
interest then matured have been detached and cancelled.
In authenticating Securities, the form or terms of which have been
established in or pursuant to one or more Officers' Certificates as permitted by
Sections 201 and 301, and accepting the additional responsibilities under this
Indenture in relation to such Securities, the Trustee shall be entitled to
receive, and (subject to Section 601) shall be fully protected in relying upon,
an Opinion of Counsel stating:
(a) that the form and terms of such Securities, including any coupons,
have been duly authorized by the Company and established in conformity with
the provisions of this Indenture; and
(b) that such Securities, together with any coupons appertaining
thereto, 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
customary exceptions;
provided, however, that, with respect to Securities of a series subject to a
Periodic Offering, the Trustee shall be entitled to receive such Opinion of
Counsel only once, at or prior to the time of the first authentication of
Securities of such series, and that the Opinion of Counsel above may state:
(x) that the forms of such Securities have been, and the terms of such
Securities (when established in accordance with such procedures as may be
specified from time to time in a Company Order, all as contemplated by and
in accordance with a Board Resolution or an Officers' Certificate pursuant
to Section 301, as the case may be) will have been, duly
19
authorized by the Company and established in conformity with the provisions
of this Indenture; and
(y) that such Securities, together with the coupons, if any,
appertaining thereto, when (1) executed by the Company, (2) completed,
authenticated and delivered by the Trustee in accordance with this
Indenture and (3) 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 customary exceptions.
With respect to Securities of a series subject to a Periodic Offering, the
Trustee may conclusively rely, as to the authorization by the Company of any of
such Securities, the form and terms thereof and the legality, validity, binding
effect and enforceability thereof, upon the Opinion of Counsel and other
documents delivered pursuant to Sections 201 and 301 and this Section, as
applicable, at or prior to the time of the first authentication of Securities of
such series, unless and until it has received written notification that such
opinion or other documents have been superseded or revoked. In connection with
the authentication and delivery of Securities of a series subject to a Periodic
Offering, the Trustee shall be entitled to assume that the Company's
instructions to authenticate and deliver such Securities do not violate any
rules, regulations or orders of any governmental agency or commission having
jurisdiction over the Company.
Notwithstanding the provisions of Section 301 and of the preceding three
paragraphs, if all Securities of a series are subject to a Periodic Offering, it
shall not be necessary to deliver the Officers' Certificate otherwise required
pursuant to Section 301 at or prior to the time of authentication of each
Security of such series if such Officers' Certificate is delivered at or prior
to the authentication upon original issuance of the first Security of such
series to be issued.
Each Registered Security shall be dated the date of its authentication;
and, unless otherwise specified as contemplated by Section 301, each Bearer
Security (including a Bearer Security represented by a temporary global
Security) shall be dated as of the date of original issuance of the first
Security of such series to be issued.
The Trustee may appoint an authenticating agent acceptable to the Company
to authenticate Securities. Unless otherwise provided in the appointment, an
authenticating agent may authenticate Securities whenever the Trustee may do so.
Each reference in this Indenture to authentication by the Trustee includes
authentication by such agent.
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 the manual signature of one
of its authorized signatories, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder. Notwithstanding the foregoing, if any
Security shall have been duly
20
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 309, together with a written statement (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
stating that such Security has never been issued and sold by the Company, for
all purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company
may execute, and upon a Company Order the Trustee shall authenticate and
deliver, temporary Securities that are printed, lithographed, typewritten,
photocopied or otherwise produced, in any authorized denomination, substantially
of the tenor of the definitive Securities in lieu of which they are issued, in
registered form or, if authorized, in bearer form, with one or more coupons or
without coupons, and with such appropriate insertions, omissions, substitutions
and other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities. Such temporary Securities may
be in global form.
Except in the case of Securities represented by a temporary global Security
(which shall be exchanged in accordance with the provisions of the three
succeeding paragraphs), if temporary Securities for some or all of the
Securities of any series are issued, the Company will cause definitive
Securities representing such Securities to be prepared without unreasonable
delay. After the preparation of such definitive Securities, the temporary
Securities shall be exchangeable for such definitive Securities of like tenor
upon surrender of such temporary Securities at any office or agency of the
Company designated pursuant to Section 1002 in a Place of Payment for such
series for the purpose of exchanges of 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 the same series and of like tenor of authorized denominations; provided,
however, that no definitive Bearer Security shall be delivered in exchange for a
temporary Registered Security. Until so exchanged, the temporary Securities
shall in all respects be entitled to the same benefits under this Indenture as
definitive Securities.
Unless otherwise specified as contemplated by Section 301, if Bearer
Securities of any series are represented by a Security in temporary global form,
any such temporary global Security shall be delivered to the Depositary for the
benefit of Euro-clear or Cedel S.A., for credit to the respective accounts of
the beneficial owners of such Securities (or to such other accounts as they may
direct).
Without unnecessary delay, but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary global
Security (the "Exchange Date"), the Company shall deliver to the Trustee
definitive Securities of the same series, in aggregate principal amount equal to
the principal amount of such temporary global Security, executed by the Company.
On or
21
after the Exchange Date, such temporary global Security shall be surrendered by
the Depositary to the Trustee, as the Company's agent for such purpose, to be
exchanged, in whole or from time to time in part, for definitive Securities of
the same series and of like tenor without charge, and the Trustee shall
authenticate and deliver, in exchange for each portion of such temporary global
Security, an equal aggregate principal amount of definitive Securities of the
same series of authorized denominations and of like tenor as the portion of such
temporary global Security to be exchanged. The definitive Securities to be
delivered in exchange for any such temporary global Security shall be in
definitive bearer form or registered form, or shall be represented by a
definitive global Security, or any combination thereof, as specified as
contemplated by Section 301, and, if any combination thereof is so specified, as
requested by the beneficial owner thereof.
Unless otherwise specified in any such temporary global Security, the
interest of a beneficial owner of Securities of a series represented by such
temporary global Security shall be exchanged for definitive Securities of the
same series and of like tenor following the Exchange Date, when the account
holder instructs Euro-clear or Cedel S.A., as the case may be, to request such
exchange on his behalf and delivers to Euro-clear or Cedel S.A., as the case may
be, any certificate specified as contemplated by Section 301. Unless otherwise
specified in such temporary global Security, any such exchange 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 S.A.
Until exchanged in full as hereinabove provided, the temporary Securities
of any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of the same series and of like tenor
authenticated and delivered hereunder, except that, unless otherwise specified
as contemplated by Section 301, interest payable on a temporary global Security
representing a series of Bearer Securities on an Interest Payment Date for
Securities of such series occurring prior to the applicable Exchange Date shall
be payable to Euro-clear and Cedel S.A. on such Interest Payment Date, upon
delivery by Euro-clear and Cedel S.A. to the Trustee of any certificate
specified as contemplated by Section 301, for credit, without further interest
on or after such Interest Payment Date, to the respective accounts of the
Persons who are the beneficial owners of such temporary global Security on such
Interest Payment Date and who have each delivered to Euro-clear or Cedel S.A.,
as the case may be, any certificate specified as contemplated by Section 301.
SECTION 305. Registration, Registration of Transfer and Exchange.
(1) The Company shall cause to be kept, at one of its offices or agencies
maintained pursuant to Section 1002, a register for the Securities accessible to
the Trustee (the register maintained in such office or agency designated
pursuant to Section 1002 being herein sometimes collectively referred to as the
"Security Register"), in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Securities and of
transfers of Securities. The Trustee is hereby appointed "Security Registrar"
for the purpose of registering Securities and transfers of Securities as herein
provided.
22
(2) Upon surrender for registration of transfer of any Security at an
office or agency of the Company designated pursuant to Section 1002 for such
purpose in a Place of Payment, the Company shall execute, and the Trustee or a
duly appointed co-authenticating agent shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Registered
Securities of the same series and of any authorized denominations, of a like
aggregate principal amount and tenor.
(3) Notwithstanding any other provisions (other than the provisions set
forth in the seventh and eighth paragraphs) of this Section, a Security in
global form representing all or a portion of the Securities of a series may not
be transferred, except as a whole by the Depositary for such series to a nominee
of such Depositary, or by a nominee of such Depositary to such Depositary or
another nominee of such Depositary, or by such Depositary or any such nominee to
a successor Depositary for such series or a nominee of such successor
Depositary.
(4) At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series of any authorized
denominations and of a like aggregate principal amount, terms and tenor, upon
surrender of the Securities to be exchanged at any such office or agency.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive. Bearer Securities may not
be issued in exchange for Registered Securities.
(5) 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 and of a like aggregate principal amount, terms and tenor, 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 thereto
appertaining. If the Holder of a Bearer Security is unable to produce any such
unmatured coupon or coupons or matured coupon or coupons in default, such
exchange may be effected if the Bearer Securities are accompanied by payment, in
funds acceptable to the Company and the Trustee, in an amount equal to the face
amount of such missing coupon or coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there is
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such 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 1002, interest represented by coupons shall be payable only
upon presentation and surrender of those 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 any such office or agency in exchange
for a Registered Security of the same series and terms and like tenor after the
close of business at such office or agency on (i) any Regular Record Date and
before the opening of business at such office or agency on the 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
23
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, 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.
(6) Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee or a duly appointed authenticating agent shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
(7) If at any time the Depositary for the Securities of a series notifies
the Company that it is unwilling or unable to continue as Depositary for the
Securities of such series, or if such Depositary shall cease to be eligible to
act as such in respect of the Securities of such series, the Company shall
appoint a successor Depositary with respect to the Securities of such series. If
a successor Depositary for the Securities of such series is not appointed by the
Company within 90 days after the Company receives such notice, the Company will
execute, and the Trustee, upon receipt of a Company Order for the authentication
and delivery of definitive Securities of such series, will authenticate and
deliver, Securities of such series in definitive form, in an aggregate principal
amount equal to the principal amount of the Security or Securities in global
form representing such series, in exchange for such Security or Securities in
global form in accordance with the instructions, if any, of the Depositary.
(8) The Company may at any time and in its sole discretion determine that
the Securities of any series issued in the form of one or more global Securities
shall no longer be represented by such global Security or Securities. In such
event, or if an Event of Default with respect to the Securities of such series
shall have occurred and shall be continuing, the Company will execute, and the
Trustee, upon receipt of a Company Order for the authentication and delivery of
definitive Securities of such series, will authenticate and deliver Securities
of such series in definitive form, and in an aggregate principal amount equal to
the principal amount of the Security or Securities in global form representing
such series, in exchange for such Security or Securities in global form in
accordance with the instructions, if any, of the Depositary.
(9) Notwithstanding the foregoing, except as otherwise specified in the
preceding two paragraphs or as contemplated by Section 301, any definitive
global Security shall be exchangeable only as provided in this paragraph. If the
beneficial owners of interests in a definitive global Security are entitled to
exchange such interests for definitive Securities of such series and of like
principal amount and tenor but of another authorized form and denomination, as
specified as contemplated by Section 301, then, without unnecessary delay, but
in any event not later than the earliest date on which such interests may be so
exchanged, the Company shall deliver to the Trustee definitive Securities, in
aggregate principal amount equal to the principal amount of such definitive
global Security, executed by the Company. On or after the earliest date on which
such interests may be so exchanged, such definitive global Security shall be
surrendered by the Depositary with respect thereto
24
to the Trustee, as the Company's agent for such purpose, to be exchanged, in
whole or from time to time in part, for definitive Securities without charge,
and the Trustee shall authenticate and deliver, in exchange for each portion of
such definitive global Security, an equal aggregate principal amount of
definitive Securities of the same series of authorized denominations and of like
tenor as the portion of such definitive global Security to be exchanged, which,
unless the Securities of the series are not issuable both as Bearer Securities
and as Registered Securities, as specified as contemplated by Section 301, shall
be in the form of Bearer Securities or Registered Securities, or any combination
thereof, as shall be specified by the beneficial owner thereof; provided,
however, that notwithstanding the last paragraph of this Section 305, no such
exchanges may occur during a period beginning at the opening of business 15 days
before any selection of Securities of that series to be redeemed and ending on
the relevant Redemption Date; and provided, further, that in connection with its
original issuance, no Bearer Security or coupon delivered in exchange for a
portion of a definitive global Security shall be mailed or otherwise delivered
to any Person that is not a Non-United States Holder or to any location in the
United States. If a Registered Security is issued in exchange for any portion of
a definitive 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 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 definitive global Security is
payable in accordance with the provisions of this Indenture.
(10) Upon the exchange of a Security in global form for Securities in
definitive form, such Security in global form shall be cancelled by the Trustee.
All cancelled Securities and coupons held by the Trustee shall be disposed of by
the Trustee in accordance with its customary practice and a certificate of such
disposition delivered to the Company, unless the Company directs that such
cancelled Securities be returned to it. Registered Securities issued in exchange
for a Security in global form pursuant to this Section 305 shall be registered
in such names and in such authorized denominations as the Depositary for such
Security in global form, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall
deliver such Registered Securities to the persons in whose names such Securities
are so registered.
(11) All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
(12) Every Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee) be
duly endorsed, or be accompanied by a written instrument of transfer, in form
satisfactory to the Company and the Security Registrar, duly executed, by the
Holder thereof or his attorney duly authorized in writing.
25
(13) No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1107 not involving any transfer, other
than exchanges upon the Company's repurchase or redemption of any Securities in
part at the option of the Holders thereof not involving any transfer, and other
than exchanges of global Securities (or portions thereof) for Securities in
definitive form in accordance with Section 305.
The Company shall not be required (i) to issue, register the transfer of or
exchange Securities of any series during a period beginning at the opening of
business 15 days before any selection of Securities of that series to be
redeemed and ending (except as otherwise provided in the first proviso in the
ninth paragraph of this Section 305) at the close of business on (A) if
Securities of the series are issuable only as Registered Securities, the day of
the mailing of the relevant notice of redemption and (B) if Securities of the
series are issuable as Bearer Securities, the day of the first publication of
the relevant notice of redemption or, if Securities of the series are also
issuable as Registered Securities and there is no publication, the mailing of
the relevant notice of redemption, or (ii) to register the transfer of or
exchange any Registered Security 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 so selected for redemption,
except that such a Bearer Security may be exchanged for a Registered Security of
that series and like tenor, terms and principal amount, provided that such
Registered Security shall be simultaneously surrendered for redemption.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities and Coupons.
If any mutilated Security or a Security with a mutilated coupon
appertaining thereto is surrendered to the Trustee, the Company shall execute,
and the Trustee shall authenticate and deliver in exchange therefor, a new
Security of the same series of like tenor and principal amount and bearing a
number not contemporaneously outstanding, with coupons corresponding to the
coupons, if any, appertaining to the surrendered Security.
If there shall be delivered to the Company and the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security or coupon
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security or coupon has been acquired by a
bona fide purchaser, the Company shall execute, and upon its request the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security or in exchange for the Security to which a destroyed, lost or stolen
coupon appertains (with all appurtenant coupons not destroyed, lost or stolen),
a new Security of the same series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding, with coupons corresponding
to the coupons, if any, appertaining to such destroyed, lost or stolen Security
or to the Security to which such destroyed, lost or stolen coupon appertains.
26
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; provided,
however, that principal of and any interest on Bearer Securities shall, except
as otherwise provided in Section 1002, be payable only at an office or agency
located outside the United States and, unless otherwise specified as
contemplated by Section 301, 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 issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security or in exchange for a Security to which a
destroyed, lost or stolen coupon appertains, shall constitute 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 any such new
Security and coupons, if any, shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of that
issue and their coupons, if any, 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 307. Payment of Interest; Interest Rights Preserved.
Unless otherwise provided as contemplated by Section 301 with respect to
any series of Securities, interest 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 that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest. In case a Bearer Security of any series is surrendered in
exchange for a Registered Security of such series after the close of business
(at an office or agency in a Place of Payment for such series) on any Regular
Record Date and before the opening of business (at such office or agency) on the
next succeeding Interest Payment Date, such Bearer Security shall be surrendered
without the coupon relating to such Interest Payment Date, and interest will not
be payable on such Interest Payment Date 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.
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
27
been such Holder, and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Registered Security and the date of the proposed payment, and at
the same time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest,
which shall be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after the receipt by
the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date and, in the name
and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to
be mailed, first-class postage prepaid, to each Holder of Registered
Securities, at his address as it appears in the Security Register, not less
than 10 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
having been so mailed, such Defaulted Interest shall be paid to the Persons
in whose names the Securities (or their respective Predecessor Securities)
are registered at the close of business on such Special Record Date and
shall no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Registered Securities in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Registered Securities
may be listed, and upon such notice as may be required by such exchange,
if, after notice given by the Company to the Trustee of the proposed
payment pursuant to this Clause, such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 305, 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 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such
28
Registered Security is registered as the owner of such Registered Security for
the purpose of receiving payment of principal of and (except as otherwise
specified as contemplated by Section 301 and subject to Section 305 and Section
307) interest on such Registered Security and for all other purposes whatsoever,
whether or not such Registered Security be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by notice
to the contrary.
Title to any Bearer Security and any coupons appertaining thereto shall
pass by delivery. The Company, the Trustee and any agent of the Company or the
Trustee may treat the bearer of any Bearer Security and the bearer of any coupon
as the absolute owner of such Bearer Security or coupon, as the case may be, for
the purpose of receiving payment thereof or on account thereof and for all other
purposes whatsoever, whether or not such Bearer Security or coupon be overdue,
and neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to, or payments made on account of, beneficial ownership
interests of a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
SECTION 309. Cancellation.
All Securities and coupons surrendered for payment, redemption,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be delivered
to the Trustee. All Registered Securities and matured coupons so delivered
shall be promptly cancelled by the Trustee. All Bearer Securities and unmatured
coupons so delivered shall be held by the Trustee and, upon instruction by a
Company Order, shall be cancelled or held for reissuance. Bearer Securities and
unmatured coupons held for reissuance may be reissued only in replacement of
mutilated, lost, stolen or destroyed Bearer Securities of the same series and
like tenor and terms or the related coupons pursuant to Section 306. All Bearer
Securities and unmatured coupons held by the Trustee pending such cancellation
or reissuance shall be deemed to be delivered for cancellation for all purposes
of this Indenture and the Securities. The Company may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner whatsoever
(including Securities received by the Company in exchange or payment for other
securities of the Company), 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 so delivered shall be promptly cancelled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section, except as expressly permitted in the form
of Securities for any particular series or as permitted pursuant to the terms of
this Indenture. All cancelled Securities and coupons held by the Trustee may be
disposed of and certification of their disposition delivered to the Company,
unless by a Company Order the Company shall direct that such Securities be
returned to it. Any cancelled Securities not disposed of shall be returned to
the Company.
29
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for Securities
of any series, (i) interest on any Securities which bear interest at a fixed
rate shall be computed on the basis of a 360-day year of twelve 30-day months
and (ii) interest on any Securities which bear interest at a variable rate shall
be computed on the basis of the actual number of days in an interest period
divided by 360.
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture.
Except as otherwise specified as contemplated by Section 301, this
Indenture, upon a Company Request, shall cease to be of further effect as to all
Outstanding Securities or all Outstanding Securities of any series, as the case
may be (except as to (i) remaining rights of registration of transfer,
substitution and exchange of Securities or Securities of such series, as the
case may be, (ii) rights hereunder of Holders to receive payment of principal of
and interest on all Outstanding Securities or all Outstanding Securities of such
series, as the case may be, at the Stated Maturity thereof or, if any such
Securities have been or, pursuant to clause (1)(B)(ii) of this Section 401, are
to be called for redemption, at the applicable Redemption Date thereof and any
other rights of the Holders of all Outstanding Securities or all Outstanding
Securities of such series, as the case may be, as beneficiaries hereof with
respect to the amounts deposited with the Trustee under this Xxxxxxx 000, (xxx)
the rights and the obligations of the Company or the Trustee under Sections 304,
305, 306, 1002 and 1003 and the immunities of the Trustee hereunder and the
obligations of the Company to the Trustee under Section 607 and (iv) the
obligation, if any, of the Company to pay additional amounts in respect of any
such Securities as contemplated by Sections 301 and 1011, all of which shall
survive), and the Company shall be deemed to have paid and discharged its entire
indebtedness on all the Outstanding Securities or all Outstanding Securities of
such series, as the case may be, and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging satisfaction and discharge of the
Company's obligations under this Indenture, when
(1) either
(A) all Outstanding Securities or all Outstanding Securities of
such series, as the case may be, 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, whose
surrender is not required or has been waived as provided in Xxxxxxx
000, (xx) Securities or Securities of such series, as the case may be,
and coupons, if any, which have been destroyed, lost or stolen and
which have been replaced or paid as provided
30
in Section 306, (iii) coupons, if any, appertaining to Securities or
Securities of such series, as the case may be, called for redemption
and maturing after the relevant Redemption Date, whose surrender has
been waived as provided in Section 1106, and (iv) Securities or
Securities of such series, as the case may be, and coupons, if any,
for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to
the Company or discharged from such trust, as provided in Section
1003) have been delivered to the Trustee for cancellation; or
(B) the Company has irrevocably deposited or caused to be
deposited with the Trustee, under the terms of an irrevocable trust
agreement in form and substance satisfactory to the Trustee, as trust
funds in trust solely for the benefit of the Holders of all
Outstanding Securities, or the Holders of all Outstanding Securities
of such series, as the case may be, money or direct non-callable
obligations of, or non-callable obligations timely payments of which
are guaranteed by, the United States of America, for the payment of
which guarantee or obligation the full faith and credit of the United
States is pledged ("U.S. Government Obligations"), maturing as to
principal and interest in such amounts and at such times as are
sufficient, without consideration of any reinvestment of such
principal or interest, to pay and discharge at Stated Maturity or, in
the case of any such Securities which have been or, pursuant to clause
(ii) below, are to be called for redemption, on the relevant
Redemption Date, as the case may be, all principal of and interest on
all Outstanding Securities or all Outstanding Securities of such
series, as the case may be. Such irrevocable trust agreement shall
instruct the Trustee (i) to apply such money or the proceeds of said
U.S. Government Obligations to the payment of said principal of and
interest on the Securities or Securities of such series, as the case
may be; and (ii) if the Securities or Securities of such series, as
the case may be, are to be repaid at a Redemption Date and the Company
has not given notice of redemption pursuant to Section 1104 (including
where such Securities are not yet redeemable at the date of deposit)
to give notice of redemption on such Redemption Date pursuant to
Section 1104;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company with respect to the Securities or Securities of
such series, as the case may be; 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 with respect to the Securities or the Securities of such series,
as the case may be, and the payment or discharge of the entire indebtedness
on all Securities or Securities of such series, as the case may be, have
been complied with.
Notwithstanding any such satisfaction and discharge, the Company shall not
be discharged from any payment obligations in respect of the Securities or the
Securities of such series, as the case
31
may be, which are deemed not to be Outstanding under Clause (iii) of the
definition of "Outstanding" if such obligations continue to be valid obligations
of the Company under applicable law.
SECTION 402. Application of Trust Money.
All money and U.S. Government Obligations (or any other obligations
specified as contemplated by Section 301 with respect to any series of
Securities, the principal of or any interest on which is payable other than in
the currency of the United States of America) deposited with the Trustee
pursuant to the trust agreement referred to in Section 401 shall be held in
trust and applied by it, in accordance with the provisions of the Securities of
the series with respect to which such deposit is made, this Indenture and such
trust agreement, to the payment, either directly or through any Paying Agent
(other than the Company) as the Trustee may determine, of the principal and
interest amounts due at the Stated Maturity or the Redemption Date, as the case
may be, with respect to the Securities of such series to the Persons entitled
thereto.
All money and U.S. Government Obligations (or any other obligations
specified as contemplated by Section 301 with respect to any series of
Securities, the principal of or any interest on which is payable other than in
the currency of the United States of America) so deposited which remain
unclaimed for two years after payment to such Persons has become due and payable
shall be turned over to the Company in accordance with the provisions of Section
1003.
ARTICLE FIVE
Remedies
SECTION 501. Events of Default.
"Event of Default," wherever used herein, means, with respect to each
series of the Securities individually, 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):
(1) default in the payment of any installment of interest upon any
Security of such series when it becomes due and payable, and continuance of
such default for a period of 30 days; provided, however, that a valid
extension of an interest payment period by the Company in accordance with
the terms of the Securities of such series shall not constitute a default
in the payment of interest for this purpose; or
(2) default in the payment of the principal of any Security of such
series at its Maturity; or
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(3) default in the performance, or breach, of any covenant or warranty
of the Company in this Indenture (other than a covenant or warranty a
default in whose performance or whose breach is elsewhere in this Section
specifically dealt with or which has been expressly included in this
Indenture solely for the benefit of a series of Securities other than such
series), and continuance of such default or breach for a period of 90 days
after there has been given, by registered or certified mail, to the Company
by the Trustee or to the Company and the Trustee by the Holders of at least
25% in principal amount of the Outstanding Securities of such series a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default" hereunder;
or
(4) the entry of a decree or order by a court having jurisdiction in
the premises adjudging the Company a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjustment
or composition of or in respect of the Company under Federal bankruptcy law
or any other applicable Federal or State law, or appointing a receiver,
liquidator, assignee, trustee, sequestrator or other similar official of
the Company or of any substantial part of its property, or ordering the
winding up or liquidation of its affairs, and the continuance of any such
decree or order unstayed and in effect for a period of 60 consecutive days;
or
(5) the institution by the Company of proceedings to be adjudicated a
bankrupt or insolvent, or the consent by it to the institution of
bankruptcy or insolvency proceedings against it, or the filing by it of a
petition or answer or consent seeking reorganization or relief under
Federal bankruptcy law or any other applicable Federal or state law, or the
consent by it to the filing of such petition or to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator or similar official
of the Company or of any substantial part of its property, or the making by
it of an assignment for the benefit of creditors, or the admission by it in
writing of its inability to pay its debts generally as they become due, or
the taking of corporate action by the Company in furtherance of any such
action, or
(6) any other event designated as an "Event of Default" with respect
to Securities of that series.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the time
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 that series may declare the principal amount (or, if any of the
Securities of that series are Discount Securities, such portion of the principal
amount of such Securities as may be specified in the terms thereof) of and
accrued interest, if any, on all of the Securities of that series to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee
if given by Holders), and upon any such declaration such principal (or portion
thereof) and accrued interest, if any, shall become immediately due and payable.
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At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that 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
(A) all overdue installments of interest on all Securities of
such series;
(B) the principal of any Securities of such series which have
become due otherwise than by such declaration of acceleration and
interest thereon at the rate or rates prescribed therefor in such
Securities;
(C) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest at the rate or rates
prescribed therefor in such Securities or, if no such rate or rates is
prescribed therefor in such Securities, at the rate of interest borne
by such Securities; and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel and any other amount due the Trustee
under Section 607;
and
(2) all Events of Default with respect to Securities of such series,
other than the non-payment of the principal of and interest on Securities
of such series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if:
(1) default is made in the payment of any installment of interest on
any Security 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 any Security
at the Maturity thereof,
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the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and interest, with interest upon the overdue principal
and, to the extent that payment of such interest shall be legally enforceable,
upon overdue installments of interest from the date such interest was due, at
the rate or rates prescribed therefor in such Securities or, if no such rate or
rates is prescribed therefor in such Securities, at the rate of interest borne
by such Securities; 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 and any other amount due the Trustee under Section 607.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may, in its discretion, proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal 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 and
interest owing and unpaid in respect of the Securities and to file such
other papers or documents as may be necessary or advisable in order to have
the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel and any other amount due the Trustee under Section 607)
and of the Holders of Securities and coupons 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;
35
and any receiver, assignee, trustee, liquidator, sequestrator or other similar
official in any such judicial proceeding is hereby authorized by each Holder of
Securities and coupons to make such payments to the Trustee and, in the event
that the Trustee shall consent to the making of such payments directly to the
Holders of Securities and coupons, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
or coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or coupons or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder of a
Security or coupon in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities or
Coupons.
All rights of action and claims under this Indenture or the Securities or
coupons may be prosecuted and enforced by the Trustee without the possession of
any of the Securities or coupons or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery 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 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee, and,
in case of the distribution of such money on account of principal or interest,
upon presentation of the Securities or coupons, or both, as the case may be, and
the notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
First: To the payment of all amounts due the Trustee under Section
607;
Second: To holders of Senior Indebtedness as provided in Article
Fourteen;
Third: To the payment of the amounts then due and unpaid for
principal of and interest on the Securities and interest evidenced by
coupons 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 interest, respectively; and
Fourth: To the payment of the remainder, if any, to the Company.
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SECTION 507. Limitation on Suits.
No Holder of any Security of any series or any related coupons shall have
any right to institute any proceeding, judicial or otherwise, with respect to
this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other 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.
SECTION 508. Unconditional Right of Holders to Receive Principal and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Security or coupon shall have the right, which is absolute and unconditional,
subject to Article Fourteen, to receive payment of the principal of and (subject
to Section 307) interest on such Security or payment of such coupon on the
Stated Maturities or Maturities expressed in such Security or coupon (or, in the
case of redemption, on the Redemption Date or, in the case of redemption or
repurchase by the Company at the option of the Holder, on the date fixed for
such redemption or repurchase, as the case may be) and to institute suit for the
enforcement of any such payment and such rights shall not be impaired without
the consent of such Holder.
37
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder of a 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, subject to any determination in such proceeding, the Company, the Trustee
and the Holders of Securities and coupons shall be restored severally and
respectively to their former positions hereunder and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
SECTION 510. 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 306, 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 hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security or
coupon to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to 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 the Holders of Securities or coupons, as the case may be.
SECTION 512. Control by Holders of Securities.
The Holders of a majority in principal amount of the Outstanding Securities
of any series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee with respect to the Securities of
such series; provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
(2) the Trustee shall not have determined that the action so directed
would be unjustly prejudicial to the Holders not taking part in such
direction, and
38
(3) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series, by notice to the Trustee (and without
notice to any other Holder), may on behalf of the Holders of all the Securities
of such series and any related coupons waive any past default hereunder and its
consequences, except a default
(1) in the payment of the principal of or interest 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 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered 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 and
expenses, 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 any Security or coupon
for the enforcement of the payment of the principal of or interest on any
Security or the payment of any coupon on or after the Stated Maturity or
Maturities expressed in such Security or coupon (or, in the case of redemption,
on or after the Redemption Date or, in the case of redemption or repurchase by
the Company at the option of the Holder, on the date fixed for such redemption
or repurchase, as the case may be).
39
SECTION 515. Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time voluntarily (and that it will resist any effort to make it
do so involuntarily) insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture or the Securities; 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.
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; but in
the case of any such certificates or opinions which by any provision hereof
are specifically required to be furnished to the Trustee, the Trustee shall
be under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing with respect
to the Securities of any series, the Trustee shall exercise such of the rights
and powers vested in it by this Indenture with respect to the Securities of such
series, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
his 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:
40
(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
or omitted to be taken by it in good faith in accordance with the direction
of the Holders of a majority in principal amount of the Outstanding
Securities of any series relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Indenture with respect to the Securities of such series.
(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 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with respect
to the Securities of any series, the Trustee shall transmit, in the manner and
to the extent provided in Section 703(b), 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 interest on any Security of such series or in the payment of any sinking
fund installment with respect to any Security of such series, the Trustee shall
be protected in withholding such notice if and so long as the board of
directors, the executive committee or a trust committee of directors or
Responsible Officers of the Trustee in good faith determine that the withholding
of such notice is in the interest of the Holders of Securities of such series;
and provided, further, that, in the case of any default of the character
specified in Section 501(3), no such notice to Holders 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 603. Certain Rights of Trustee.
Except as otherwise provided in Section 601:
41
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note 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 Holders of Securities of any series or any related coupons
pursuant to this Indenture, unless such Holders 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, note 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 or omitted
by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture.
42
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, 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 or coupons. The Trustee
shall not be accountable for the use or application by the Company of Securities
or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Paying Agent, any Security Registrar or any other agent of
the Company, in its individual or any other capacity, may become the owner or
pledgee of Securities or coupons and, subject to Sections 608 and 612, 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 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(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, 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. The Company's payment obligations
pursuant to this Section 607 shall survive the discharge or other
termination of this Indenture or the resignation or removal of the Trustee.
43
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a lien prior to the Securities and any
coupons 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 or for the payment of particular coupons.
SECTION 608. 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, any State thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least $50,000,000, and subject to supervision or examination by Federal or
State authority. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, 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 the manner and with
the effect hereinafter specified in this Article. The Trustee shall comply with
Trust Indenture Act Sections 310(a)(5) and 310(b).
SECTION 609. 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 610.
(b) The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If 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 with respect to the Securities of such issue.
(c) The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the last sentence of Section
608 after written request therefor by the Company or by any Holder who has
been a bona fide Holder of a Security for at least six months (or such
shorter period as the Securities have been outstanding), or
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(2) the Trustee shall cease to be eligible under Section 608 and shall
fail to resign after written request therefor by the Company or by any such
Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company, by a Board Resolution, may remove the
Trustee with respect to all Securities, or (ii) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at least six months (or
such shorter period as the Securities have been outstanding) may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all Securities and
the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, with respect
to the Securities of one or more series, the Company, by a Board Resolution,
shall promptly appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all of
such series and that at any time there shall be only one Trustee with respect to
the Securities of any particular series). If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment, become the successor Trustee with respect to the Securities
of such series and supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders and accepted appointment in the
manner hereinafter provided, any Holder who has been a bona fide Holder of a
Security of such series for at least six months (or such shorter period as the
Securities have been outstanding) may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(f) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series in the manner
provided in Section 106. Each notice shall include the name of the successor
Trustee and the address of its Corporate Trust Office.
SECTION 610. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee appointed shall execute,
acknowledge and deliver to the
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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, subject nevertheless to its lien, if any, provided for in
Section 607.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto,
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees as co-trustees of
the same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and, upon the execution and delivery of such
supplemental indenture, the resignation or removal of the retiring Trustee shall
become effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates, subject, nevertheless, to its lien, if any,
provided for in Section 607.
(c) Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in
paragraph (a) or (b) of this Section.
(d) No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
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SECTION 611. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
SECTION 612. Preferential Collection of Claims Against Company.
The Trustee shall comply with Trust Indenture Act Section 311(a), excluding
any creditor relationship listed in Trust Indenture Act Section 311(b). A
Trustee who has resigned or been removed shall be subject to Trust Indenture Act
Section 311(a) to the extent indicated therein.
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee:
(a) semiannually, not later than June 30 and December 31 in each
year, 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 of its Paying Agents other than the Trustee, as to the names and
addresses of the Holders of Securities as of 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 the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
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SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of Securities (i) contained in
the most recent list furnished to the Trustee as provided in Section 701, (ii)
received by the Trustee in its capacity as Security Registrar and (iii) filed
with it within the two preceding years pursuant to Section 703(b)(2). The
Trustee may (i) destroy any list furnished to it as provided in Section 701 upon
receipt of a new list so furnished, (ii) destroy any information received by it
as Paying Agent (if so acting) hereunder upon delivering to itself as Trustee,
not earlier than August 15 or February 15, a list containing the names and
addresses of the Holders of Securities obtained from such information since the
delivery of the next previous list, if any, (iii) destroy any list delivered to
itself as Trustee which was compiled from information received by it as Paying
Agent (if so acting) hereunder upon the receipt of a new list so delivered, and
(iv) destroy not earlier than two years after filing, any information filed with
it pursuant to Section 703(b)(2).
(b) Holders may communicate pursuant to Trust Indenture Act Section 312(b)
with other Holders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Security Registrar, the Paying Agent
and any other person shall have the protection of Trust Indenture Act Section
312(c).
SECTION 703. Reports by Trustee.
(a) Within 60 days after May 15 of each year, commencing with the year
1998, the Trustee shall transmit to all Holders of Securities a brief report
dated as of such May 15 that complies with Trust Indenture Act Section 313(a),
if such report is required by such Section 313(a). The Trustee also shall
comply with Trust Indenture Act Sections 313(b) and (c).
(b) A copy of each such report shall, at the time of such transmission to
Holders of Securities, be filed by the Trustee with each stock exchange upon
which any Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee when any Securities are listed on any stock
exchange or of any delisting thereof.
SECTION 704. Reports by Company.
The Company shall:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Company may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934; or, if the Company is not required to file
information, documents or reports
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pursuant to either of said Sections, then it shall file with the Trustee
and the Commission, in accordance with rules and regulations prescribed
from time to time by the Commission, such of the supplementary 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, within 30 days after the filing thereof with the
Trustee, to the Holders of Securities, in the manner and to the extent
provided in Section 703(b) with respect to reports under Section 703(a),
copies or 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, Transfer or Lease
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other corporation
or convey, transfer or lease 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 that acquires by conveyance or transfer, or
which leases, the properties and assets of the Company substantially as an
entirety shall be a corporation or other Person organized and existing
under the laws of the United States of America, any State thereof 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 interest on all the Securities and any coupons appertaining thereto
and the performance of every covenant of this Indenture and the Securities
on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have happened and be continuing; and
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(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and such supplemental indenture comply with
this Article and that all conditions precedent herein provided for relating
to such transaction have been complied with.
SECTION 802. Successor Corporation Substituted.
Upon any consolidation with or merger by the Company into any other
corporation or any conveyance, transfer or lease of the properties and assets of
the Company substantially as an entirety to any Person in accordance with
Section 801, the successor corporation formed by such consolidation or into
which the Company is merged or the Person to which such conveyance, transfer or
lease is made shall succeed to, and be substituted for, and may exercise every
right and power of, the Company under this Indenture with the same effect as if
such successor corporation or other Person had been named as the Company herein,
and thereafter, except in the case of a lease to another Person, the predecessor
Person shall be relieved of all obligations and covenants under this Indenture,
the Securities and coupons.
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders of 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 Person to the Company and
the assumption by any such successor of the covenants of the Company herein
and in the Securities pursuant to Article Eight;
(2) to add to the covenants, agreements and obligations of the Company
for the benefit of the Holders of all of the Securities or any series
thereof, or to surrender any right or power herein conferred upon the
Company;
(3) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to principal, to
change or eliminate any restrictions (including restrictions relating to
payment in the United States) on the payment of principal of or any premium
or interest, if any, 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 the issuance of Securities in
uncertificated form; or
50
(4) to establish the form or terms of Securities of any series and
any related coupons, as permitted by Sections 201 and 301, respectively; or
(5) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 610(b); or
(6) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture; or
(7) to add to, change or eliminate any of the provisions of this
Indenture (which addition, change or elimination may apply to one or more
series of Securities), provided that any such addition, change or
elimination shall neither (A) apply to any Security of any series created
prior to the execution of such supplemental indenture and entitled to the
benefit of such provision nor (B) modify the rights of the Holder of any
such Security with respect to such provision; or
(8) to secure the Securities; or
(9) to make any other change that does not adversely affect the
rights of any Holder.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by 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 the Securities of such series and any related coupons under this
Indenture; provided, however, that no such supplemental indenture shall, without
the consent of the Holder of each Outstanding Security affected thereby:
(1) change the Stated Maturity of the principal of, or any
installment of principal or interest on, any such Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium
payable thereon, or reduce the amount of principal of any such Discount
Security that would be due and payable upon a declaration of acceleration
of maturity thereof pursuant to Section 502, or change the Place of Payment
where, or coin or currency in which, any principal of, or any installment
of interest on, any such Security is
51
payable, or impair the right to institute suit for the enforcement of any
such payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date or, in the case of Securities
which are subject to repurchase or redemption by the Company at the option
of the Holders, on or after the date fixed for such repurchase or
redemption);
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) with respect to the
Securities of such series provided for in this Indenture; or
(3) make any change in the terms of the subordination of the
Securities in a manner adverse to the Holders of any series of outstanding
Securities; or
(4) modify any of the provisions of this Section, Section 513 or
Section 1010, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby.
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 903. 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 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties, liabilities or immunities under this Indenture or
otherwise.
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SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
and of any coupons appertaining thereto shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any
interest on the Securities of that series in accordance with the terms of the
Securities, any coupons appertaining thereto and this Indenture. An installment
of principal or interest on the Securities shall be considered paid on the date
it is due if the Trustee or a Paying Agent (other than the Company or an
Affiliate of the Company) holds on that date funds (in the currency or
currencies of payment with respect to such Securities) designated for and
sufficient to pay such installment. Unless otherwise specified as contemplated
by Section 301 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. At the Company's option, payment of
principal or interest may be made by check or by transfer to an account
maintained by the payee (provided, in the case of Registered Securities, the
Trustee has received written payment instructions at least fifteen days prior to
any payment date) subject, in the case of Bearer Securities, to the provisions
of Section 1002.
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SECTION 1002. Maintenance of Office or Agency.
If Securities of a series are issuable only as Registered Securities, the
Company will maintain in each Place of Payment for such series an office or
agency where Securities of that series may be presented or surrendered for
payment, where Securities of that series may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served. If
Securities of a series are issuable as Bearer Securities, the Company will
maintain (A) in the Borough of Manhattan, The City of New York, an office or
agency where any Registered Securities of that series may be presented or
surrendered for payment, where any Registered Securities of that series may be
surrendered for registration of transfer, where Securities of that series may be
surrendered for exchange, where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served and
where Bearer Securities of that series and related coupons 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 that series which is located outside the
United States, an office or agency where Securities of that series and related
coupons may be presented and surrendered for payment (including payment of any
additional amounts payable on Securities of that series pursuant to Section
1011); provided, however, that, if the Securities of that series are listed on
The London Stock Exchange, the Luxembourg Stock Exchange or any other stock
exchange located outside the United States and such stock exchange shall so
require, the Company will maintain a Paying Agent for the Securities of that
series in London, Luxembourg or any other required city located outside the
United States, as the case may be, so long as the Securities of that series are
listed on such exchange; and (C) subject to any laws or regulations applicable
thereto, in a Place of Payment for that series which is located outside the
United States, an office or agency where any Registered Securities of that
series may be surrendered for registration of transfer, where Securities of that
series may be surrendered for exchange and where notices and demands to or upon
the Company in respect of the Securities of that series and this Indenture may
be served. The Company will give prompt written notice to the Trustee and the
Holders of the location, and 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 and surrenders
of Securities of that series may be made, and notices and demands may be made or
served, at the Corporate Trust Office of the Trustee, except that Bearer
Securities of that series and the related coupons may be presented and
surrendered for payment (including payment of any additional amounts payable on
Bearer Securities of that series pursuant to Section 1011) at the place
specified for that purpose as contemplated by Section 301 or, if no such place
is specified, at the main office of the Trustee in London, and the Company
hereby appoints the same as its agent to receive such respective presentations,
surrenders, notices and demands.
No payment of principal or interest on Bearer Securities shall be made at
any office or agency of the Company in the United States, by check mailed to any
address in the United States, by transfer to an account located in the United
States or upon presentation or surrender in the United States of
54
a Bearer Security or coupon for payment, even if the payment would be credited
to an account located outside the United States; provided, however, that, if the
Securities of a series are denominated and payable in Dollars, payment of
principal of and any interest on any such Bearer Security (including any
additional amounts payable on Securities of such series pursuant to Section
1011) shall be made at the office of the Company's Paying Agent in the Borough
of Manhattan, The City of New York, if (but only if) payment in Dollars of the
full amount of such principal, interest or additional amounts, as the case may
be, at all offices or agencies outside the United States maintained for the
purpose by the Company in accordance with this Indenture is illegal or
effectively precluded by exchange controls or other similar restrictions.
The Company may also from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in accordance with the requirements set forth above for Securities of any series
for such purposes. The Company will give prompt written notice to the Trustee
of any such designation or rescission and of any change in the location of any
such other office or agency.
Unless otherwise specified pursuant to Section 301 with respect to the
Securities of any series, the Trustee shall be a Paying Agent and Transfer Agent
for the Securities of such series (until replaced or removed by the Company in
accordance with this Indenture), and the office or agency of the Company
maintained in the Borough of Manhattan, The City of New York in respect of the
Securities of such series for the purposes contemplated by this Section 1002
shall be the Corporate Trust Office of the Trustee located in the Borough of
Manhattan, The City of New York.
SECTION 1003. Money for Security Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect
to any series of the Securities, it will, on or before each due date of the
principal of or interest on any of the Securities of that series, segregate and
hold in trust for the benefit of the Persons entitled thereto a sum sufficient
to pay the principal 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 any series of
the Securities, it will, on or prior to each due date of the principal of or
interest on any Securities of that series, deposit with a Paying Agent a sum
sufficient to pay the principal or interest so becoming due, such sum to be held
in trust for the benefit of the Persons entitled to such principal 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.
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The Company will cause each Paying Agent for any series of Securities
(other than the Trustee) to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of or
interest on 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
payment of principal or interest on the Securities of such series; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
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 or interest on any
Security of any series and remaining unclaimed for two years after such
principal or interest has become due and payable shall be paid to the Company on
Company Request, or (if then held by the Company) shall be discharged from such
trust; and the Holder of such Security or any coupon appertaining thereto shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense and direction of the Company cause to be published once, in an
Authorized Newspaper in each Place of Payment, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such publication, any unclaimed balance of such money
then remaining will be repaid to the Company.
SECTION 1004. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence, rights (charter and statutory) and franchises; provided, however,
that the Company shall not be required to preserve any such right or franchise
if the Board of Directors shall determine that the preservation thereof is no
longer desirable
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in the conduct of the business of the Company and that the loss thereof is not
disadvantageous in any material respect to the Holders.
SECTION 1005. (Intentionally Omitted).
SECTION 1006. (Intentionally Omitted).
SECTION 1007. (Intentionally Omitted).
SECTION 1008. (Intentionally Omitted).
SECTION 1009. Statement by Officer as to Compliance; Notice of Certain Events.
The Company will deliver to the Trustee, within 120 days after the end of
each fiscal year of the Company ending after the date hereof, a brief
certificate, signed by the principal executive officer, the principal financial
officer or the principal accounting officer of the Company, as to the signer's
knowledge of the Company's compliance with all conditions and covenants under
this Indenture. For purposes of this Section 1009, such compliance shall be
determined without regard to any period of grace or requirement of notice
provided under any of the provisions of this Indenture. The Company's fiscal
year ends on December 31 of each year. The Company will notify the Trustee in
the event that such fiscal year changes. The Company will deliver to the
Trustee, within 20 days after the occurrence thereof, notice of each
acceleration which, with giving of notice by the Trustee or Holders and the
lapse of time, would be an Event of Default within the meaning of Section
501(4).
SECTION 1010. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any covenant
or condition set forth in Section 1004 or 1011 with respect to the Securities of
any series, if before or after the time for such compliance the Holders of at
least a majority in principal amount of the Outstanding Securities of such
series shall, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such covenant or condition, but no
such waiver shall extend to or affect such covenant or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such
covenant or condition shall remain in full force and effect.
SECTION 1011. Additional Amounts.
If specified as contemplated by Section 301, the Securities of a series may
provide for the payment of additional amounts, and in such case, the Company
will pay to the Holder of any Security of such series or any coupon appertaining
thereto additional amounts as provided therein. Whenever in this Indenture
there is mentioned, in any context, the payment of the principal of or any
interest on, or in respect of, any Security of any series or payment of any
related coupon, such mention shall be deemed to include mention of the payment
of additional amounts provided for in this Section to the
57
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 that series of Securities (or if the Securities of that series will not bear
interest prior to Maturity, the first day on which a payment of principal is
made), and at least 10 days prior to each date of payment of principal and any
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 Paying Agent or Paying Agents, if other than the Trustee, with
an Officers' Certificate instructing the Trustee and such Paying Agent or Paying
Agents whether such payment of principal of and any interest on the Securities
of that series shall be made to Holders of Securities of that series or any
related coupons who are Non-United States Holders 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
required by the Securities of such series and 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.
ARTICLE ELEVEN
Redemption of Securities
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified as contemplated by Section 301 for Securities of any series) in
accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
In the event that the Company elects to redeem 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, of the principal amount of the Securities
to be redeemed and of any other information necessary to identify the Securities
of such series to be redeemed.
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SECTION 1103. Selection by Trustee of Securities to be Redeemed.
Unless otherwise specified as contemplated by Section 301 with respect to
any series of Securities, if less than all the Securities of any series with the
same issue date, interest rate, Stated Maturity and other terms are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series not previously called for redemption, by such method
as the Trustee shall deem fair and appropriate, which method may provide for the
selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof) of
the principal amount of Registered Securities of such series of a denomination
larger than the minimum authorized denomination for Securities of that series.
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
SECTION 1104. Notice of Redemption.
Unless otherwise specified as contemplated by Section 301 with respect to
any series of Securities, notice of redemption shall be given in the manner
provided in Section 106 to the Holders of Securities to be redeemed not less
than 30 nor more than 60 days prior to the Redemption Date.
All notices of redemption shall identify the Securities to be redeemed
(including, if applicable, the CUSIP number thereof) and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if fewer than all the Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Securities to be redeemed;
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security (or portion thereof) to be redeemed,
together with (if applicable) accrued and unpaid interest thereon and, if
applicable, that interest thereon will cease to accrue on and after said
date;
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(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, and
(6) that the redemption is for a sinking fund, if such is the case.
A notice of redemption published as contemplated by Section 106 need not
identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1105. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and, if accrued and unpaid
interest on the Securities (or portions thereof) to be redeemed is, pursuant to
the terms of this Indenture or such Securities, payable to the Persons entitled
to receive the Redemption Price thereof, accrued interest on, all the Securities
which are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest and the coupons for such
interest appertaining to any Bearer Securities so to be redeemed, except to the
extent provided below, shall be void. Upon surrender of any such Security for
redemption in accordance with said notice, together with all coupons, if any,
appertaining thereto maturing after the Redemption Date, such Security shall be
paid by the Company at the Redemption Price, together with accrued interest to
the Redemption Date; provided, however, that installments of interest on Bearer
Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable only at an office or agency located outside the United States (except as
otherwise provided in Section 1002) and, unless otherwise specified as
contemplated by Section 301, only upon presentation and surrender of coupons for
such interest; and provided, further, that, unless otherwise specified as
contemplated by Section 301, installments of interest on Registered Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Regular Record Dates
according to their terms and the provisions of Sections 305 and 307.
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If any Bearer Security surrendered for redemption shall not be accompanied
by all appurtenant coupons maturing after the Redemption Date, such Security may
be paid after deducting from the Redemption Price an amount equal to the face
amount of all such missing coupons, or the surrender of such missing coupon or
coupons may be waived by the Company and the Trustee if there be furnished to
them such security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Security shall
surrender to the Trustee or any Paying Agent any such missing coupon in respect
of which a deduction shall have been made from the Redemption Price, such Holder
shall be entitled to receive the amount so deducted; provided, however, that
interest represented by coupons shall be payable only at an office or agency
located outside the United States (except as otherwise provided in Section 1002)
and, unless otherwise specified as contemplated by Section 301, 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 shall, until paid, bear interest from the
Redemption Date at the rate prescribed therefor in the Security or, if no such
rate is so prescribed, at the rate of interest borne by the Security.
SECTION 1107. Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof
or his attorney duly authorized in writing), and the Company shall execute, and
the Trustee shall authenticate and deliver to the Holder of such Security
without service charge, a new Registered Security or Securities of the same
series and of like tenor, of any authorized denomination as requested by such
Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
ARTICLE TWELVE
Sinking Funds
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of a series, except as otherwise specified as
contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment," and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "optional sinking
fund payment." 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 1202. Each
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sinking fund payment shall be applied to the redemption of Securities of any
series as provided for by the terms of Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series with the
same issue date, interest rate, and Stated Maturity and other terms (other than
any previously called for redemption), together, in the case of any Bearer
Securities of such series with the same issue date, interest rate, Stated
Maturity and other terms, with all unmatured coupons appertaining thereto, and
(2) may apply as a credit Securities of a series with the same issue date,
interest rate, Stated Maturity and other terms 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 mandatory sinking fund payment with respect to the Securities of such series
with the same issue date, interest rate, Stated Maturity and other terms;
provided that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days (or such shorter period as shall be acceptable to the
Trustee) prior to each sinking fund payment date for any series of Securities,
the Company will deliver to the Trustee an Officers' Certificate specifying the
amount of the next ensuing sinking fund payment for that series pursuant to the
terms of that series, the portion thereof, if any, which is to be satisfied by
payment of cash and the portion thereof, if any, which is to be satisfied by
delivering and crediting Securities of that series pursuant to Section 1202, and
will also deliver to the Trustee any Securities to be so delivered. Not less
than 30 days before each such sinking fund payment date, the Trustee shall
select the Securities to be redeemed upon such sinking fund payment date in the
manner specified in Section 1103 and cause notice of the redemption thereof to
be given in the name of and at the expense of the Company in the manner provided
in Section 1104. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections
1106 and 1107.
ARTICLE THIRTEEN
Meetings of Holders of Securities
SECTION 1301. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of any 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,
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notice, consent, waiver or other action provided by this Indenture to be made,
given or taken by Holders of Securities of such series.
SECTION 1302. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of Securities of
any series for any purpose specified in Section 1301, to be held at such time
and at such place in the Borough of Manhattan, The City of New York, or in
London, as the Trustee shall determine or, with the approval of the Company, at
any other place. 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 106, 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 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 1301, by written request setting
forth in reasonable detail the action proposed to be taken at the meeting, and
the Trustee shall not have made the first publication of the notice of such
meeting within 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, or in such other place as shall be
determined and approved by the Company, for such meeting and may call such
meeting for such purposes by giving notice thereof as provided in Subsection (a)
of this Section.
SECTION 1303. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding Securities of
such series or (2) a Person appointed by an instrument in writing as proxy for a
Holder or Holders of one or more Outstanding Securities of such series by such
Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Persons
entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its counsel.
SECTION 1304. Quorum; Action.
The Persons entitled to vote a majority in 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 this
Indenture expressly provides may be given by the Holders of a specified
percentage, which is less than a majority, in principal amount of the
Outstanding Securities of a series, the Persons entitled to vote such lesser
percentage in principal amount of the Outstanding Securities of such series
shall
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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 any other
case, the meeting may be adjourned for a period 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 determined by the chairman of the meeting prior to the
adjournment of such adjourned meeting. Notice of the reconvening of any
adjourned meeting shall be given as provided in Section 1302(a), except that
such notice need be given only once not less than five days prior to the date on
which the meeting is scheduled to be reconvened. Notice of the reconvening of
an adjourned meeting shall state expressly 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 902, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is present,
as aforesaid, may be adopted by the affirmative vote of the Holders of a
majority in principal amount of the Outstanding Securities of that series;
provided, however, that, except as limited by the proviso to Section 902, 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 related coupons,
whether or not present or represented at the meeting.
SECTION 1305. 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 a 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 104 and the
appointment of any proxy shall be proved in the manner specified in Section 104
or by having the signature of the person executing the proxy witnessed or
guaranteed by any trust company, bank or banker authorized by Section 104 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 104 or other proof.
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(b) The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of Securities as provided in Section 1302(b), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall 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 of the Outstanding
Securities of such series held or represented by him; provided, however, that no
vote shall be cast or counted at any meeting in respect to 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 1302 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 1306. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed signatures of the Holders of Securities of such series or of their
representatives by proxy and the principal amounts and serial numbers of the
Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes, who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting, and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits, signed 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 1302 and, if
applicable, Section 1304. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company and another to the Trustee, to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
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ARTICLE FOURTEEN
SUBORDINATION
SECTION 1401. Securities Subordinate to Senior Indebtedness.
Unless otherwise specified as contemplated by Section 301, the Securities
shall be subordinated to Senior Indebtedness as set forth in this Article
Fourteen. The Company covenants and agrees, and each Holder of a Security of
any series by such Holder's acceptance thereof likewise covenants and agrees,
that, to the extent and in the manner hereinafter set forth in this Article
Fourteen, the indebtedness represented by the Securities of such series and the
payment of the principal amount, interest and such other amounts as provided for
in Section 301, if any, in respect of each and all of the Securities of such
series are hereby expressly made subordinate and subject in right of payment to
the prior payment in full of all Senior Indebtedness; provided, however, that no
provision of this Article Fourteen shall prevent the occurrence of any default
or Event of Default hereunder.
"Senior Indebtedness" means the principal of (and premium, if any) and
interest on (including interest accruing after the filing of a petition
initiating any proceeding pursuant to any Federal bankruptcy law or any other
applicable Federal or State law, but only to the extent allowed or permitted to
the holder of such Indebtedness of the Company against the bankruptcy or any
other insolvency estate of the Company in such proceeding) and other amounts due
on or in connection with any Indebtedness of the Company incurred, assumed or
guaranteed by the Company, whether outstanding on the date of the Indenture or
thereafter incurred, assumed or guaranteed and all renewals, extensions and
refundings of any such Indebtedness of the Company; provided, however, that the
following will not constitute Senior Indebtedness:
(a) any Indebtedness of the Company as to which, in the instrument creating
the same or evidencing the same or pursuant to which the same is outstanding, it
is expressly provided that such Indebtedness of the Company shall be
subordinated to or pari passu with the Securities;
(b) Indebtedness of the Company in respect of the Securities;
(c) any Indebtedness of the Company constituting trade accounts payable
arising in the ordinary course of business;
(d) any Indebtedness of the Company initially issued to any other Oxy
Capital Trust in connection with an issuance by such Oxy Capital Trust of
preferred securities or other securities similar to preferred securities; and
(e) any Indebtedness of the Company to any Subsidiary of the Company.
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SECTION 1402. Payment Over of Proceeds upon Dissolution, Etc.
Upon any distribution of assets of the Company in the event of:
(a) any insolvency or bankruptcy case or proceeding, or any receivership,
liquidation, reorganization or other similar case or proceeding in connection
therewith, relative to the Company or to its creditors, as such, or to its
assets, or
(b) any liquidation, dissolution or other winding up of the Company,
whether voluntary or involuntary and whether or not involving insolvency or
bankruptcy, or
(c) any assignment for the benefit of creditors or any other marshalling
of assets and liabilities of the Company,
then and in such event
(1) the holders of Senior Indebtedness shall be entitled to receive
payment in full of all amounts due or to become due on or in respect of all
Senior Indebtedness, or provision shall be made for such payment in cash,
before the Holders of the Securities of any series are entitled to receive
any payment on account of the principal amount, interest or such other
amounts as may be provided for in Section 301, if any, in respect of the
Securities of such series; and
(2) any payment or distribution of assets of the Company of any kind
or character, whether in cash, property or securities, by set-off or
otherwise, to which the Holders or the Trustee would be entitled but for
the provisions of this Article Fourteen, including any such payment or
distribution which may be payable or deliverable by reason of the payment
of any other Indebtedness of the Company being subordinated to the payment
of the Securities of such series, shall be paid by the liquidating trustee
or agent or other person making such payment or distribution, whether a
trustee in bankruptcy, a receiver or liquidating trustee or otherwise,
directly to the holders of Senior Indebtedness or their representative or
representatives or to the trustee or trustees under any indenture under
which any instruments evidencing any of such Senior Indebtedness may have
been issued, ratably according to the aggregate amounts remaining unpaid on
account of the principal of, and premium, if any, and interest on the
Senior Indebtedness held or represented by each, to the extent necessary to
make payment in full of all Senior Indebtedness remaining unpaid, after
giving effect to any concurrent payment or distribution to the holders of
such Senior Indebtedness.
In the event that, notwithstanding the foregoing provisions of this Section
1402, the Trustee or the Holder of any Security of any series shall receive any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, including any such payment or
distribution which may be payable or deliverable by reason of the payment of any
other Indebtedness of the Company being subordinated to the payment of the
Securities of such series,
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before all Senior Indebtedness is paid in full or payment thereof provided for,
and if such fact shall then have been made known to the Trustee as provided in
Section 1410, or, as the case may be, such Holder, then and in such event such
payment or distribution shall be paid over or delivered forthwith to the trustee
in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or
other person making payment or distribution of assets of the Company for
application to the payment of all Senior Indebtedness remaining unpaid, to the
extent necessary to pay all Senior Indebtedness in full, after giving effect to
any concurrent payment or distribution to or for the holders of Senior
Indebtedness.
For purposes of this Article Fourteen only, the words "cash, property or
securities," or any combination thereof, shall not be deemed to include shares
of capital stock of the Company as reorganized or readjusted, or securities of
the Company or any other corporation provided for by a plan of reorganization or
readjustment the payment of which is subordinated, at least to the extent
provided in this Article Fourteen with respect to the Securities, to the payment
of all Senior Indebtedness which may at the time be outstanding; provided,
however, that (i) Senior Indebtedness is assumed by the new corporation, if any,
resulting from any such reorganization or readjustment, and (ii) the rights of
the holders of the Senior Indebtedness are not, without the consent of such
holders, altered, in any manner adverse to such holders, by such reorganization
or readjustment.
The consolidation of the Company with, or the merger of the Company into,
another corporation or the liquidation or dissolution of the Company following
the conveyance or transfer of all or substantially all of its assets to another
person upon the terms and conditions set forth in Article VIII shall not be
deemed a dissolution, winding up, liquidation, reorganization, assignment for
the benefit of creditors or marshalling of assets and liabilities of the Company
for the purposes of this Section 1402 if the corporation formed by such
consolidation or into which the Company is merged or the person which acquires
by conveyance or transfer all or substantially all of the assets of the Company,
as the case may be, shall, as a part of such consolidation, merger, conveyance
or transfer, comply with the conditions set forth in Article VIII.
SECTION 1403. Prior Payment to Senior Indebtedness upon Acceleration of
Securities.
In the event that any Securities of any series are declared due and payable
before their Stated Maturity, then and in such event the holders of Senior
Indebtedness shall be entitled to receive payment in full of all amounts due or
to become due on or in respect of all Senior Indebtedness or provision shall be
made for such payment in cash, before the Holders of the Securities of such
series are entitled to receive any payment (including any payment which may be
payable by reason of the payment of any other indebtedness of the Company being
subordinated to the payment of the Securities of such series) by the Company on
account of the principal of (or premium, if any) or interest or other amounts on
Securities of such series or on account of the purchase or other acquisition of
Securities of such series.
In the event that, notwithstanding the foregoing, the Company shall make
any payment to the Trustee or the Holder of any Securities of any series
prohibited by the foregoing provisions of this Section 1403, and if such facts
then shall have been known or thereafter shall have been made known
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to the Trustee (as provided in Section 1410) or to such Holder, as the case may
be, pursuant to the terms of this Indenture, then and in such event such payment
shall be paid over and delivered forthwith to the Company by or on behalf of the
person holding such payment for the benefit of the holders of Senior
Indebtedness.
The provisions of this Section 1403 shall not apply to any payment with
respect to which Section 1402 would be applicable.
SECTION 1404. Default in Senior Indebtedness.
In the event and during the continuation of any default by the Company in
the payment of principal, premium, if any, interest or any other payment due on
any Senior Indebtedness of the Company, as the case may be, beyond any
applicable grace period with respect thereto, or in the event that the maturity
of any Senior Indebtedness of the Company has been accelerated because of a
default, then, in any such case, no payment shall be made by the Company with
respect to the principal (including redemption payments, if any) of, premium, if
any, or interest or other amounts on the Securities until such default is cured
or waived or ceases to exist or any such acceleration or demand for payment has
been rescinded.
SECTION 1405. Payment Permitted if No Default.
Nothing contained in this Article Fourteen or elsewhere in this Indenture
or in any of the Securities shall prevent (a) the Company, at any time except
during the pendency of any case, proceeding, dissolution, liquidation or other
winding up, assignment for the benefit of creditors or other marshalling of
assets and liabilities of the Company referred to in Section 1402 or under the
conditions described in Sections 1403 or 1404, from making payments at any time
of the principal amount, interest or such other amounts as may be provided for
in Section 301, if any, as the case may be, in respect of the Securities, or (b)
the application by the Trustee or the retention by any Holder of any money
deposited with it hereunder to the payment of or on account of the principal
amount, interest or such other amounts as may be provided for in Section 301, if
any, as the case may be, in respect of the Securities if the Trustee did not
have, at the time provided in the proviso to the first paragraph of Section
1410, notice that such payment would have been prohibited by the provisions of
this Article Fourteen.
SECTION 1406. Subrogation Rights of Holders of Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness, the Holders of
the Securities of any series shall be subrogated to the extent of the payments
or distributions made to the holders of such Senior Indebtedness pursuant to the
provisions of this Article Fourteen to the rights of the holders of such Senior
Indebtedness to receive payments or distributions of cash, property or
securities applicable to the Senior Indebtedness until the principal amount,
interest or such other amounts as provided for in Section 301, if any, as the
case may be, in respect of the Securities of such series shall be paid in full.
For purposes of such subrogation, no payments or distributions to the holders of
the
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Senior Indebtedness of any cash, property or securities to which the Holders
of the Securities of such series or the Trustee would be entitled except for the
provisions of this Article Fourteen, and no payments pursuant to the provisions
of this Article Fourteen to the Company or to the holders of Senior Indebtedness
by Holders of the Securities of such series or the Trustee, shall, as between
the Company, its creditors other than holders of Senior Indebtedness and the
Holders of the Securities of such series, be deemed to be a payment or
distribution by the Company to or on account of the Senior Indebtedness.
SECTION 1407. Provision Solely to Define Relative Rights.
The provisions of this Article Fourteen are and are intended solely for the
purpose of defining the relative rights of the Holders of the Securities of any
series, on one hand, and the holders of Senior Indebtedness, on the other hand.
Nothing contained in this Article Fourteen or elsewhere in this Indenture or in
the Securities of any series is intended to or shall:
(a) impair, as between the Company and the Holders of the Securities of
such series, the obligation of the Company, which is absolute and unconditional,
to pay to the Holders of the Securities of such series the principal amount,
interest or such other amounts as may be provided for in Section 301, if any, as
the case may be, in respect of the Securities of such series as and when the
same shall become due and payable in accordance with the terms of the Securities
of such series and this Indenture and which, subject to the rights under this
Article Fourteen of the holders of Senior Indebtedness, is intended to rank
equally with all other general obligations of the Company; or
(b) affect the relative rights against the Company of the Holders of the
Securities of such series and creditors of the Company other than holders of
Senior Indebtedness; or
(c) prevent the Trustee or the Holder of any Security of such series from
exercising all remedies otherwise permitted by applicable law upon default under
this Indenture, subject to the rights, if any, under this Article Fourteen of
the holders of Senior Indebtedness to receive cash, property or securities
otherwise payable or deliverable to the Trustee or such Holder.
SECTION 1408. Trustee to Effectuate Subordination.
Each Holder of a Security by such Holder's acceptance thereof authorizes
and directs the Trustee on such Holder's behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article Fourteen and appoints the Trustee such Holder's attorney-in-fact for any
and all such purposes.
SECTION 1409. No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by
70
any noncompliance by the Company with the terms, provisions and covenants of
this Indenture, regardless of any knowledge thereof any such holder may have or
be otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph, the
holders of Senior Indebtedness may, at any time and from time to time, without
the consent of, or notice to, the Trustee or the Holders of the Securities of
any series, without incurring responsibility to the Holders of the Securities of
such series and without impairing or releasing the subordination provided in
this Article Fourteen or the obligations hereunder of the Holders of the
Securities of such series to the holders of Senior Indebtedness, do any one or
more of the following: (i) change the manner, place or terms of payment or
extend the time of payment of, or renew or alter, Senior Indebtedness, or
otherwise amend or supplement in any manner Senior Indebtedness or any
instrument evidencing the same or any agreement under which Senior Indebtedness
is outstanding; (ii) sell, exchange, release or otherwise dispose of any
property pledged, mortgaged or otherwise securing Senior Indebtedness; (iii)
release any person liable in any manner for the collection of Senior
Indebtedness and (iv) exercise or refrain from exercising any rights against the
Company or any other person.
SECTION 1410. Notice to Trustee.
The Company shall give prompt written notice to the Trustee of any fact
known to the Company which would prohibit the making of any payment to or by the
Trustee in respect of the Securities of any series. Failure to give such notice
shall not affect the subordination of the Securities of such series to Senior
Indebtedness. Notwithstanding the provisions of this Article Fourteen or any
other provision of this Indenture, the Trustee shall not be charged with
knowledge of the existence of any facts which would prohibit the making of any
payment to or by the Trustee in respect of the Securities of such series, unless
and until the Trustee shall have received written notice thereof in accordance
with Section 105 from the Company or a holder of Senior Indebtedness or from any
trustee or agent therefor; and, prior to the receipt of any such written notice,
the Trustee, subject to the provisions of Section 601, shall be entitled in all
respects to assume that no such facts exist; provided, however, that if the
Trustee shall not have received, at least three Business Days prior to the date
upon which by the terms hereof any such money may become payable for any purpose
(including, without limitation, the payment of the principal amount, interest or
such other amounts as may be provided for in Section 301, if any, as the case
may be, in respect of any Security of such series), the notice with respect to
such money provided for in this Section 1410, then, anything herein contained to
the contrary notwithstanding, the Trustee shall have full power and authority to
receive such money and to apply the same to the purpose for which such money was
received and shall not be affected by any notice to the contrary which may be
received by it within three Business Days prior to such date.
Subject to the provisions of Section 601, the Trustee shall be entitled to
rely on the delivery to it of a written notice by a person representing himself
to be a holder of Senior Indebtedness (or a trustee or agent on behalf of such
holder) to establish that such notice has been given by a holder of Senior
Indebtedness (or a trustee or agent on behalf of any such holder). In the event
that the Trustee determines in good faith that further evidence is required with
respect to the right of any person as
71
a holder of Senior Indebtedness to participate in any payment or distribution
pursuant to this Article Fourteen, the Trustee may request such person to
furnish evidence to the reasonable satisfaction of the Trustee as to the amount
of Senior Indebtedness held by such person, the extent to which such person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such person under this Article Fourteen, and if such
evidence is not furnished, the Trustee may defer any payment which it may be
required to make for the benefit of such person pursuant to the terms of this
Indenture pending judicial determination as to the right of such person to
receive such payment.
SECTION 1411. Reliance on Judicial Order or Certificate of Liquidating
Agent.
Upon any payment or distribution of assets of the Company referred to in
this Article Fourteen, the Trustee, subject to the provisions of Section 601,
and the Holders of the Securities of any series shall be entitled to rely upon
any order or decree entered by any court of competent jurisdiction in which such
insolvency, bankruptcy, receivership, liquidation, reorganization, dissolution,
winding up or similar case or proceeding is pending, or a certificate of the
trustee in bankruptcy, liquidating trustee, custodian, receiver, assignee for
the benefit of creditors, agent or other person making such payment or
distribution, delivered to the Trustee or to the Holders of Securities of such
series, for the purpose of ascertaining the persons entitled to participate in
such payment or distribution, the holders of Senior Indebtedness and other
indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article Fourteen.
SECTION 1412. Trustee Not Fiduciary for Holders of Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the holders of
Senior Indebtedness and shall not be liable to any such holders if the Trustee
shall in good faith mistakenly pay over or distribute to Holders of Securities
or to the Company or to any other person cash, property or securities to which
any holders of Senior Indebtedness shall be entitled by virtue of this Article
Fourteen or otherwise. The Trustee shall not be charged with knowledge of the
existence of Senior Indebtedness or of any facts that would prohibit any payment
hereunder unless the Trustee shall have received notice in accordance with
Section 105. With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants or obligations as
are specifically set forth in this Article Fourteen and no implied covenants or
obligations with respect to holders of Senior Indebtedness shall be read into
this Indenture against the Trustee.
SECTION 1413. Rights of Trustee as Holder of Senior Indebtedness;
Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all the rights
set forth in this Article Fourteen with respect to any Senior Indebtedness which
may at any time be held by it, to the same
72
extent as any other holder of Senior Indebtedness, and nothing in this Indenture
shall deprive the Trustee of any of its rights as such holder.
Nothing in this Article Fourteen shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 607.
SECTION 1414. Article Fourteen Applicable to Paying Agents.
The term "Trustee" as used in this Article Fourteen shall (unless the
context otherwise requires) be construed as extending to and including the
Paying Agent within its meaning as fully for all intents and purposes as if the
Paying Agent were named in this Article Fourteen in addition to or in place of
the Trustee; provided, however, that Sections 1410 and 1412 shall not apply to
the Company or any Affiliate of the Company if it or such Affiliate acts as
Paying Agent.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
OCCIDENTAL PETROLEUM CORPORATION
By /s/ J.R. Xxxxxx
----------------------------------------
J.R. Xxxxxx, Vice President & Treasurer
[Seal]
Attest: /s/ X.X. Xxxxxx
-------------------
X.X. Xxxxxx
Assistant Secretary
THE BANK OF NEW YORK, Trustee
By /s/ X. X. Xxxxxx
----------------------------------------
Xxxxxx X. Xxxxxx
Assistant Vice President
[Seal]
Attest: /s/ Xxxxxxx Xxxxxxx
--------------------
Xxxxxxx Xxxxxxx
Vice President
State of California )
) ss:
County of Los Angeles )
On the 18th day of January, 1999, before me personally came J. R. Xxxxxx,
to me known, who, being by me duly sworn, did depose and say that he is a Vice
President & Treasurer of Occidental Petroleum Corporation, one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation; and that he signed his name thereto by like
authority.
/s/ Xxxxxxxxx Xxxxxxxxxx
------------------------
State of New York )
) ss.
County of New York )
On the 15th day of January, 1999, before me personally came X. X. Xxxxxx,
to me known, who, being by me duly sworn, did depose and say that he is an
Assistant Vice President of The Bank of New York, one of the corporations
described in and which executed the foregoing instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
/s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Xxxxxxx X. Xxxxxxx
Notary Public, State of New York
No. 01CA5027729
Qualified in Bronx County
Certificate Filed in New York County
Commission Expires May 16, 2000
