EXHIBIT 10.78
YORKSHIRE POWER FINANCE 2 LIMITED, AS ISSUER
AND
YORKSHIRE POWER GROUP LIMITED, AS GUARANTOR
AND
THE BANK OF NEW YORK, AS TRUSTEE,
PRINCIPAL PAYING AGENT, REGISTRAR AND TRANSFER AGENT
INDENTURE
DATED AS OF FEBRUARY 1, 2000
-----------------------------------------
DEBT SECURITIES
TABLE OF CONTENTS*
Page
RECITALS OF THE COMPANY........................................................1
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION............1
SECTION 101. Definitions.............................................1
SECTION 102. Compliance Certificates and Opinions....................9
SECTION 103. Form of Documents Delivered to Trustee.................10
SECTION 104. Acts of Holders........................................10
SECTION 105. Notices, Etc., to Trustee and Company..................13
SECTION 106. Notice to Holders; Waiver..............................13
SECTION 107. Conflict with Trust Indenture Act......................14
SECTION 108. Effect of Headings and Table of Contents...............15
SECTION 109. Successors and Assigns.................................15
SECTION 110. Separability Clause....................................15
SECTION 111. Benefits of Indenture..................................15
SECTION 112. Governing Law..........................................15
SECTION 113. Legal Holidays.........................................15
ARTICLE TWO SECURITY FORMS....................................................16
SECTION 201. Forms Generally........................................16
SECTION 202. Form of Trustee's Certificate of Authentication........16
SECTION 203. Form of Trustee's Certificate of Authentication
by an Authenticating Agent.............................17
SECTION 204. Form of Guarantee......................................17
ARTICLE THREE THE SECURITIES..................................................18
SECTION 301. Amount Unlimited; Issuable in Series...................18
SECTION 302. Denominations..........................................20
SECTION 303. Execution, Authentication, Delivery and Dating.........20
SECTION 304. Transfer Agent and Paying Agent........................22
SECTION 305. Temporary Securities...................................22
SECTION 306. Registration, Registration of Transfer and Exchange....23
SECTION 307. Mutilated, Destroyed, Lost and Stolen Securities.......24
SECTION 308. Payment of Interest; Interest Rights Reserved..........25
SECTION 309. Persons Deemed Owners..................................27
SECTION 310. Cancellation...........................................27
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*NOTE: THIS TABLE OF CONTENTS SHALL NOT, FOR ANY PURPOSE, BE
DEEMED TO BE A PART OF THE INDENTURE.
SECTION 311. Computation of Interest...............................27
SECTION 312. Global Securities.....................................28
ARTICLE FOUR SATISFACTION AND DISCHARGE.......................................28
SECTION 401. Satisfaction and Discharge of Indenture...............28
SECTION 402. Application of Trust Money............................30
SECTION 403. Satisfaction, Discharge and Defeasance of
Securities of any Series..............................31
ARTICLE FIVE REMEDIES.........................................................32
SECTION 501. Events of Default.....................................32
SECTION 502. Acceleration of Maturity; Rescission and Annulment....33
SECTION 503. Collection of Indebtedness and Suits for Enforcement
by Trustee............................................34
SECTION 504. Trustee May File Proofs of Claim......................35
SECTION 505. Trustee May Enforce Claims Without Possession
of Securities.........................................35
SECTION 506. Application of Money Collected........................36
SECTION 507. Limitation on Suits...................................36
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest.......................37
SECTION 509. Restoration of Rights and Remedies....................37
SECTION 510. Rights and Remedies Cumulative........................37
SECTION 511. Delay or Omission Not Waiver..........................38
SECTION 512. Control by Holders....................................38
SECTION 513. Waiver of Past Defaults...............................38
SECTION 514. Undertaking for Costs.................................39
ARTICLE SIX THE TRUSTEE.......................................................39
SECTION 601. Certain Duties and Responsibilities...................39
SECTION 602. Notice of Defaults....................................40
SECTION 603. Certain Rights of Trustee.............................41
SECTION 604. Not Responsible for Recitals or Issuance of
Securities............................................42
SECTION 605. May Hold Securities...................................42
SECTION 606. Money Held in Trust...................................42
SECTION 607. Compensation and Reimbursement........................42
SECTION 608. Disqualification; Conflicting Interests...............43
SECTION 609. Corporate Trustee Required; Eligibility...............43
SECTION 610. Resignation and Removal; Appointment of Successor
Trustee...............................................43
SECTION 611. Acceptance of Appointment by Successor................44
SECTION 612. Merger, Conversion, Consolidation or Succession to
Business..............................................45
SECTION 613. Preferential Collecting of Claims Against Company.....46
SECTION 614. Authenticating Agents.................................49
ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY...............51
SECTION 701. Company to Furnish Trustee Names and Addresses
of Holders............................................51
SECTION 702. Preservation of Information; Communications to
Holders...............................................51
SECTION 703. Certain Rights of Trustee.............................41
SECTION 704. Not Responsible for Recitals or Issuance of
Securities............................................42
ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE, SALE OR LEASE................54
SECTION 801. Company or Guarantor May Consolidate Etc., Only on
Certain Terms.........................................54
SECTION 802. Successor Corporation to be Substituted...............55
ARTICLE NINE SUPPLEMENTAL INDENTURES..........................................55
SECTION 901. Supplemental Indentures without Consent of Holders....55
SECTION 902. Supplemental Indentures with Consent of Holders.......56
SECTION 903. Execution of Supplemental Indentures..................57
SECTION 904. Effect of Supplemental Indentures.....................57
SECTION 905. Conformity with Trust Indenture Act...................58
SECTION 906. Reference in Securities to Supplemental Indentures....58
ARTICLE TEN COVENANTS.........................................................58
SECTION 1001. Payment of Principal, Premium, if any, and Interest...58
SECTION 1002. Maintenance of Office or Agency.......................58
SECTION 1003. Money for Securities Payments to Be Held in Trust.....59
SECTION 1004. Limitation on Liens...................................60
SECTION 1005. Limitation on Sale and Lease-Back Transactions........63
SECTION 1006. Statement by Officers as to Default...................63
SECTION 1007. Waiver of Certain Covenants...........................64
SECTION 1008. Further Assurances....................................64
SECTION 1009. Payment of Additional Amounts.........................64
SECTION 1010. Copies Available to Holders...........................66
ARTICLE ELEVEN REDEMPTION OF SECURITIES.......................................66
SECTION 1101. Applicability of Article..............................66
SECTION 1102. Election to Redeem; Notice to Trustee.................66
SECTION 1103. Selection by Trustee of Securities to be Redeemed.....66
SECTION 1104. Notice of Redemption..................................67
SECTION 1105. Deposit of Redemption Price...........................67
SECTION 1106. Securities Payable on Redemption Date.................68
SECTION 1107. Securities Redeemed in Part...........................68
SECTION 1108. Optional Redemption in the Event of Change
in Taxing Jurisdiction Tax Treatment..................69
ARTICLE TWELVE SINKING FUNDS..................................................69
SECTION 1201. Applicability of Article..............................69
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.70
SECTION 1203. Redemption of Securities for Sinking Fund.............70
ARTICLE THIRTEEN MEETINGS OF HOLDERS OF SECURITIES............................71
SECTION 1301. Purposes of Meetings..................................71
SECTION 1302. Place of Meetings.....................................71
SECTION 1303. Voting at Meetings....................................72
SECTION 1304. Voting Rights, Conduct and Adjournment................72
SECTION 1305. Revocation of Consent by Holders......................73
ARTICLE FOURTEEN GUARANTEE OF SECURITIES......................................73
SECTION 1401. Applicability of Article; Unconditional Guarantee.....73
SECTION 1402. Waiver of Notice and Demand...........................74
SECTION 1403. Guarantor Obligations Not Affected....................74
SECTION 1404. Execution of Guarantee................................75
SECTION 1405. Subrogation...........................................76
SECTION 1406. Independent Obligations...............................76
ARTICLE FIFTEEN MISCELLANEOUS.................................................76
SECTION 1501. Consent to Jurisdiction; Appointment of Agent
to Accept Service of Process; Etc.....................76
SECTION 1502. Counterparts..........................................78
INDENTURE, dated as of February 1, 2000, among YORKSHIRE POWER
FINANCE 2 LIMITED, a limited liability company organized under the laws of the
Cayman Islands, as issuer (the "Company"), having its registered office at P.O.
Box 309, Xxxxxx Town, Grand Cayman, Cayman Islands, British West Indies,
YORKSHIRE POWER GROUP LIMITED, a private limited company incorporated under the
laws of England and Wales, having its registered office at Wetherby Road,
Scarcroft, Leeds, England, as guarantor (the "Guarantor"), and THE BANK OF NEW
YORK, as trustee, principal paying agent, registrar and transfer agent (the
"Trustee").
RECITALS OF THE COMPANY AND THE GUARANTOR
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of certain of its
unsecured debentures, notes or other evidences of indebtedness (herein called
the "Securities") to be issued in one or more series as provided in this
Indenture.
All things necessary to make this Indenture a valid agreement
of the Company the Guarantor, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities, or of
series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions
For all purposes of this Indenture, all indentures
supplemental hereto and any document or instrument delivered pursuant to the
provisions hereof, except as otherwise expressly provided or unless the context
otherwise requires:
(1) the terms defined in this Article have the respective
meanings assigned to them in this Article and include the plural as
well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles in the United States 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 at the date of such computation; and
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(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. "Additional Amounts" has the meaning specified in
Section 1009.
"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.
"Attributable Debt" means, in respect of a Sale and Lease-Back
Transaction, as at the time of determination, the present value (discounted at
the rate borne by the applicable series of Securities) of the total obligations
of the lessee for rental payments during the remaining term of the lease
included in such Sale and Lease-Back Transaction (including any period for which
such lease has been extended).
"Authenticating Agent" means any Person authorized to
authenticate and deliver Securities on behalf of the Trustee pursuant to Section
614.
"Bearer Security" means any Security that 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 a
Director 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.
"Book-Entry Depositary" means, with respect to the Securities
of any series issuable or issued in whole or in part in the form of one or more
Global Securities, the Person designated as Book-Entry Depositary (or a nominee
thereof) by the Company pursuant to Section 301, and, if so provided pursuant to
Section 301 with respect to the Securities of a series, any successor to such
Person. If at any time there is more than one such Person, "Book-Entry
Depositary" shall mean, with respect to any series of Securities, the qualifying
entity which has been appointed with respect to the Securities of that series.
"Book-Entry Interests" means certificateless depositary
interests to be issued by the Book-Entry Depositary to DTC representing in the
aggregate a 100% beneficial interest in a Global Bearer Security.
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"Business Day", when used with respect to the Place of Payment
of the Securities of any series, means each day which is not a Saturday, a
Sunday or a day on which banking institutions in any Place of Payment for the
Securities of that series are authorized or obligated by law to remain closed.
"Commission" means the United States Securities and Exchange
Commission, as from time to time constituted, created under the Exchange Act,
or, if at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor company shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor company.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company by any Director and by any other
Director or the Treasurer, the Secretary, any Assistant Treasurer, any Assistant
Secretary or any other officer so authorized and delivered to the Trustee.
"Consolidated Net Tangible Assets" shall mean the total of all
assets (including revaluations thereof as a result of commercial appraisals,
price level restatement or otherwise) appearing on a consolidated balance sheet
of the Guarantor, net of applicable reserves and deductions, but excluding
goodwill, trade names, trademarks, patents, unamortized debt discount and all
other like intangible assets (which term shall not be construed to include such
revaluations), less the aggregate of the consolidated current liabilities of the
Guarantor appearing on such balance sheet.
"Corporate Trust Office" means the principal office of the
Trustee in The City of New York, at which at any particular time its corporate
trust business shall be administered, which at the date hereof is 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000.
"corporation" includes corporations, associations, companies,
limited liability companies, and business trusts.
"Debt" has the meaning specified in Section 1004.
"default" for purposes of Section 601 of this Indenture is
defined to mean an "Event of Default" as specified in Section 501 hereof, and
for purposes of Section 310(b) of the Trust Indenture Act, "default" shall mean
an "Event of Default" as specified in Section 501 hereof but exclusive of any
period of grace or requirement of notice.
"Defaulted Interest" has the meaning specified in Section 308.
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"Deposit Agreement" means any deposit agreement among the
Company, a Book-Entry Depositary and the holders and beneficial owners from time
to time of interests in the Book-Entry Interests.
"Director" means any member of the Board of Directors at the
time of determination.
"discharged" means, with respect to the Securities of any
series, the discharge of the entire indebtedness represented by, and obligations
of the Company under, the Securities of such series and the satisfaction of all
the obligations of the Company under this Indenture relating to the Securities
of such series, except (A) the rights of Holders of the Securities of such
series to receive, from the trust fund described in Section 403 hereof, payment
of the principal of, premium, if any, and interest, if any, on the Securities of
such series when such payments are due, (B) the Company's obligations with
respect to the Securities of such series with respect to registration, transfer,
exchange and maintenance of a Place of Payment and (C) the rights, powers,
trusts, duties, protections and immunities of the Trustee under this Indenture.
"Dollar" or "$" means a dollar or other equivalent unit in
such coin or currency of the United States as at the time shall be legal tender
for the payment of public and private debt in the United States.
"DTC" means The Depository Trust Company (or a nominee
thereof) or its successors.
"Eligible Jurisdiction" means the jurisdiction in which the
Issuer and the Guarantor are then incorporated.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the United States Securities Exchange Act
of 1934, as amended.
"Global Bearer Security" means a Bearer Security, evidencing
all or part of a series of Securities, issued to the Book-Entry Depositary for
such series.
"Global Registered Security" means a Registered Security,
evidencing all or part of a series of Securities, issued to the Book-Entry
Depository for such series.
"Global Security" means a Global Registered Security or a
Global Bearer Security.
"Gross-Up Taxes" has the meaning specified in Section 1009.
"Guarantee" means the guarantee set forth in Article Fourteen
by the Guarantor of any Security of any series authenticated and delivered
pursuant to this Indenture either (i) if specified, as contemplated by Section
301, to be applicable to Securities of such series and not endorsed on such
Securities pursuant to Article Fourteen hereof, or (ii) in all other cases,
endorsed on such Securities.
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"Guarantor" means the Person named as the "Guarantor" in the
first paragraph of this instrument, until a successor company shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Guarantor" shall mean such successor company.
"Holder" means, in the case of a Registered Security, the
Person in whose name a Security is registered in the Security Register and, in
the case of a Global Bearer Security, the Book-Entry Depositary therefor.
"Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by a Board Resolution and an
Officers' Certificate issued pursuant thereto or by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities established as
contemplated by Section 301.
"Indirect Participant" means a Person that holds an interest
in the Book-Entry interests through a Participant.
"Interest", when used with respect to an Original Issue
Discount Security which by its terms bears interest only after Maturity, means
interest payable after Maturity at the rate prescribed in such Original Issue
Discount Security.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
"Letter of Representations" means, with respect to the
Securities of any series, the letter of representations from the Company and the
Trustee to DTC with respect to the Securities of that series that are
represented by Global Registered Securities issued to DTC or the letter of
representations from the Company and the Book-Entry Depositary to DTC with
respect to the Securities of that series that are represented by Global Bearer
Securities issued to such Book-Entry Depositary.
"Lien" means any mortgage, lien, pledge, security interest or
other encumbrance; provided, however, that the term "Lien" shall not mean any
easements, rights-of-way, restrictions and other similar encumbrances and
encumbrances consisting of zoning restrictions, leases, subleases, licenses,
sublicenses, restrictions on the use of property or defects in title thereto.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption or otherwise.
"Officer's Certificate" means a certificate signed by any
Director or the Treasurer, the Secretary, any Assistant Treasurer, any Assistant
Secretary or any other officer of the Company so authorized and delivered to the
Trustee.
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"Opinion of Counsel" means a written opinion of counsel, who,
unless otherwise required by the Trust Indenture Act, may be an employee of, or
regular counsel for, the Company, or may be other counsel reasonably acceptable
to the Trustee.
"Optional Definitive Security Request" has the meaning
specified in Section 1009(e).
"Original Issue 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.
"Outstanding", when used with respect to Securities of any
series, means, as of the date of determination, all Securities of such series
theretofore authenticated and delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption money or U.S. Government Obligations or U.K. Government
Obligations, as applicable, in the necessary amount have 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; 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 the terms
hereof or thereof or in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to Section
306 of this Indenture, other than any such Securities in respect of
which there shall have been presented to the Trustee proof satisfactory
to it that such Securities are held by a bona fide purchaser in whose
hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, (a) the principal
amount of an Original Issue Discount Security that shall be deemed to be
outstanding for such purposes shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon a declaration
of acceleration of the Maturity thereof pursuant to Section 502, and (b)
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 a Responsible
Officer of the Trustee actually knows to be so owned shall be so disregarded.
Securities so owned as described in clause (b) above which have been pledged in
6
good faith may be regarded as Outstanding if the pledgee certifies to the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.
"Participant" means a Person that has an account with DTC.
"Paying Agent" means any Person authorized by the Company to
pay the principal of, premium, if any, or interest on any Securities on behalf
of the Company hereunder, including, without limitation, the Principal Paying
Agent.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Place of Payment", when used with respect to the Securities
of any series, means the place or places where the principal of, premium, if
any, and interest, if any, on the Securities of that series are payable as
specified in or 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 purpose 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 shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen security.
"Principal Paying Agent" means The Bank of New York until a
successor Principal Paying Agent shall have become such pursuant to the
applicable provisions of this Indenture and, thereafter, "Principal Paying
Agent" shall mean such successor Principal Paying Agent.
"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, exclusive of accrued and unpaid interest.
"Registered Security" means any Security that is payable to a
registered owner or registered assigns thereof as registered in the Security
Register.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified for that
purpose as contemplated by Section 301.
"Relevant Date" for any payment made with respect to the
Securities of any series means whichever is the later of (i) the date on which
the relevant payment first becomes due and (ii) if the full amount payable has
not been received in The City of New York by the Book-Entry Depositary or the
7
Trustee on or prior to such due date, the date on which, the full amount payable
having been so received, notice to that effect shall have been given to the
Holders in accordance with this Indenture.
"Responsible Officer", when used with respect to the Trustee,
means any officer within the Corporate Trust Office, including any vice
president, any managing director, the secretary, any assistant vice president,
any assistant secretary, or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above-designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Sale and Lease-Back Transaction" has the meaning specified in
Section 1005.
"Securities" has the meaning stated in the first recital of
this Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"Securities Act" means the United States Securities Act of
1933, as amended.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 306.
"Significant Subsidiary" means, at any particular time, any
Subsidiary whose gross assets or gross revenues (having regard to the
Guarantor's direct and/or indirect beneficial interest in the shares, or the
like, of that Subsidiary) represent at least 25% of the consolidated gross
assets or consolidated gross revenues, as the case may be, of the Guarantor.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 308.
"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 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 more than 50% of the
outstanding Voting Stock of which is owned, directly or indirectly, by the
Guarantor or by one or more other Subsidiaries, or by the Guarantor and one or
more other Subsidiaries.
"Taxing Jurisdiction" means (i) any supranational federation
to which the United Kingdom belongs or (ii) the jurisdiction (or any political
subdivision or taxing authority thereof) under the laws of which the Company or
the Guarantor is incorporated or in which the Company or the Guarantor is
managed and controlled or has a place of business.
"Transfer Agent" means any Person authorized by the Company to
effectuate the exchange or transfer of any Security on behalf of the Company
hereunder, including, initially pursuant to Section 304, The Bank of New York
and Banque Generale du Luxembourg S.A.
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"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 or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" means the United States Trust Indenture
Act of 1939 as in force at the date as of which this instrument was executed,
except as provided in Section 905.
"United Kingdom" means the United Kingdom of Great Britain and
Northern Ireland, its territories, its possessions and other areas subject to
its jurisdiction.
"United States" means the United States of America (including
the States and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction.
"U.K. Government Obligations" means direct obligations of or
guaranteed by the United Kingdom for the payment of which obligations or
guarantee the full faith and credit of the United Kingdom is pledged.
"U.S. Government Obligations" means direct obligations of the
United States for the payment of which its full faith and credit is pledged, or
obligations of a person controlled or supervised by and acting as an agency or
instrumentality of the United States and the payment of which is unconditionally
guaranteed by the United States, and shall also include a depository receipt
issued by a bank or trust company as custodian with respect to any such U.S.
Government obligation or a specific payment of interest on or principal of any
such U.S. Government Obligation held by such custodian for the account of a
holder of a depository receipt; provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the custodian in
respect of the U.S. Government obligation or the specific payment of interest on
or principal of the U.S. Government Obligation evidenced by such depository
receipt.
"Voting Stock" of any corporation means stock of the class or
classes having general voting power under ordinary circumstances to elect at
least a majority of the board of directors of such corporation (irrespective of
whether or not at the time stock of any other class or classes shall have or
might have voting power by reason of the happening of any contingency).
SECTION 102. Compliance Certificates and Opinions
Except as otherwise expressly provided by this Indenture, upon
any application or request by the Company to the Trustee to take any action
under any provision of this Indenture, the Company shall furnish to the Trustee
an 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
9
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 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.
Any certificate or opinion of an officer or Director may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer or Director 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, in so far as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers or Director or
Directors 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
10
(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 agents duly
appointed in writing, and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent 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 104.
Without limiting the generality of the foregoing, unless
otherwise established in or pursuant to a Board Resolution or set forth or
determined in an Officers' Certificate, or established in one or more indentures
supplemental hereto, a Holder, including a Book-Entry Depositary that is a
Holder of a Global Security, may make, give or take, by a proxy, or proxies,
duly appointed in writing, any request, demand, authorization, direction,
notice, consent, waiver other action provided in this Indenture to be made,
given or taken by Holders, and a Book-Entry Depositary that is a Holder of a
Global Security may provide its proxy or proxies to the beneficial owners of
interests in any such Global Security through such Book-Entry Depositary's
standing instructions and customary practices.
(b) The fact and date of the execution by any Person of any
such instrument, writing or proxy may be proved by the affidavit of a witness of
such execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument, writing or proxy acknowledged to him the
execution thereof.
Where such execution is by a signer acting in a capacity other
than his individual capacity, such certificate or affidavit shall also
constitute sufficient proof of his authority. The fact and date of the execution
of any such instrument, writing or proxy, or the authority of the Person
executing the same, may also be proved in any other manner which the Trustee
deems sufficient.
(c) The ownership of Registered Securities shall be proved by
the Security Register.
(d) 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.
(e) The principal or face amount and serial numbers of Bearer
Securities of any series held by any Person, and the date of holding the same,
11
may be proved by the production of such Bearer Securities or by a certificate
executed by the Book-Entry Depositary for such Bearer Securities.
(f) If the Company shall solicit from the Holders of
Securities of any series any request, demand, authorization, direction, notice,
consent, waiver or other Act, the Company may, at its option, by Board
Resolution, fix in advance a record date for purposes of determining identity of
Holders of Securities 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 shall be fixed at the Company's
discretion. If such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other Act may be sought or given before or
after the record date, but only the Holders of Securities of record at the close
of business on such record date shall be deemed to be Holders of Securities for
the purpose of determining whether Holders of the requisite proportion of
Securities of such series outstanding have authorized or agreed or consented to
such request, demand, authorization, direction, notice, consent, waiver or other
Act, and for that purpose the Securities of such series outstanding shall be
computed as of such record date.
With regard to any record date set pursuant to this
subsection, the Holders of outstanding Securities of the relevant series on such
record date (or their duly appointed agents), and only such Persons, shall be
entitled to take relevant action, whether or not such Holders remain Holders
after such record date. With regard to any action that may be taken hereunder
only by Holders of a requisite principal amount of Outstanding Securities of any
series (or their duly appointed agents) and for which a record date is set
pursuant to this subsection, the Company may, at its option, set an expiration
date after which no such action purported to be taken by any Holder shall be
effective hereunder unless taken on or prior to such expiration date by Holders
of the requisite principal amount of Outstanding Securities of such series on
such record date (or their duly appointed agents).
On or prior to any expiration date set pursuant to this
subsection, the Company may, on one or more occasions at its option, extend such
expiration date to any later date. Nothing in this subsection shall prevent any
Holder (or any duly appointed agent thereof) from taking, at any time, any
action contrary to or different from, any action previously taken, or purported
to have been taken, hereunder by such Holder, in which event the Company may set
a record date in respect thereof pursuant to this subsection. Notwithstanding
the foregoing or the Trust Indenture Act, the Company shall not set a record
date for, and the provisions of this paragraph shall not apply with respect to,
any action to be taken by Holders pursuant to Section 501, 502 or 512.
Upon receipt by the Trustee of written notice of any default
described in Section 501, any declaration of acceleration, or any rescission and
annulment of any such declaration, pursuant to Section 502 or any direction in
accordance with Section 512, a record date shall automatically and without any
other action by any Person be set for the purpose of determining the Holders of
Outstanding Securities of the series entitled to join in such notice,
declaration, rescission and annulment, or direction, as the case may be, which
record date shall be the close of business on the day the Trustee receives such
notice, declaration, rescission and annulment or direction, as the case may be.
12
The Holders of Outstanding Securities of such series on such record date (or
their duly appointed agent), and only such Persons, shall be entitled to join in
such notice, declaration, rescission and annulment, or direction, as the case
may be, whether or not such Holders remain Holders after such record date;
provided that, unless such notice, declaration, rescission and annulment, or
direction, as the case may be, shall have become effective by virtue of Holders
of the requisite principal amount of Outstanding Securities of such series on
such record date (or their duly appointed agents) having joined therein on or
prior to the 90th day after such record date, such notice of default,
declaration, rescission and annulment, or direction, as the case may be, given
or made by the Holders, as the case may be, shall automatically and without any
action by any Person be canceled and of no further effect. Nothing in this
paragraph shall prevent a Holder (or a duly appointed agent thereof) from
giving, before or after the expiration of such 90-day period, a notice of
default, a declaration of acceleration, a rescission and annulment of a
declaration of acceleration or a direction in accordance with Section 512,
contrary to or different from, or, after the expiration of such period,
identical to, a previously given notice, declaration, rescission and annulment,
or direction, as the case may be, that has been canceled pursuant to the proviso
to the preceding sentence, in which event a new record date in respect thereof
shall be set pursuant to this paragraph.
SECTION 105. Notices, Etc. to Trustee and Company
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 or the
Guarantor shall be sufficient for every purpose hereunder if made,
given, furnished or filed in writing to or with the Trustee at its
Corporate Trust Office, or
(2) the Company by the Trustee or 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 at the address of its
registered office, with a copy addressed to the Guarantor at the
address of its registered office, each as 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
Where this Indenture provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, (i) in the case of a Holder of Registered
Securities, at his address as it appears in the Security Register, and (ii) in
the case of a Holder of Global Bearer Securities, at the address provided in or
pursuant to the relevant Deposit Agreement of the relevant Book-Entry
Depositary, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders.
13
If Securities of any series are listed on the Luxembourg Stock
Exchange and the rules of such Stock Exchange so require, notice to Holders of
such Securities shall be published in a leading newspaper having general
circulation in Luxembourg.
If, by reason of the suspension of regular mail service or by
reason of any other cause, it shall be impracticable to give such notice by
mail, then such notification as shall be made at the direction of the Company in
a manner reasonably calculated, to the extent practicable under the
circumstances, to provide prompt notice shall constitute a sufficient
notification for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise
specified with respect to any Securities pursuant to Section 301, where this
Indenture provides for notice to Holders of Bearer Securities of any event and
the rules of any securities exchange on which such Bearer securities are listed
so require, such notice shall be sufficiently given to Holders of such Bearer
Securities if published in such newspaper or newspapers 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. Any such notice by publication shall
be deemed to have been given on the date of the first such publication. In
addition, notice to the Holder of any Global Bearer Security shall be given by
mail in the manner provided above.
If by reason of any 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 such notice with respect to other
Holders of Bearer Securities or the sufficiency of any notice to Holders of
Registered Securities given as provided herein.
Any request, demand, authorization, direction, notice,
consent, waiver or Act 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. 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.
SECTION 107. Conflict with Trust Indenture Act
If any provision hereof limits, qualifies or conflicts with
any provision of the Trust Indenture Act or another provision which is required
or deemed to be included in this Indenture by any of the provisions of the Trust
Indenture Act, the provision or requirement of the Trust Indenture Act shall
control. If any provision of this Indenture modifies or excludes any provision
14
of the Trust Indenture Act that may be so modified or excluded, such provision
of the Indenture Act shall be deemed to apply to this Indenture as so modified
or excluded, as the case may be.
SECTION 108. Effect of Headings and Table of Contents
The Article and Section headings herein and the Table of
Contents are for c6nvenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns
All covenants and agreements in this Indenture by the Company
or the Guarantor shall bind their respective successors and assigns, whether so
expressed or not.
SECTION 110. Separability Clause
In case any provision in this Indenture, in the Securities or
in any Guarantee 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
Nothing in this Indenture, in the Securities or in any
Guarantee, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder and the Holders, any benefit or any legal
or equitable right, remedy or claim under this Indenture.
SECTION 112. Governing Law
This Indenture, the Securities and any Guarantee shall be
governed by and construed in accordance with the laws of the State of New York.
SECTION 113. Legal Holidays
Unless otherwise specified in a supplemental indenture hereto
with respect to a series of Securities, in any case where any Interest Payment
Date, Redemption Date or Stated Maturity of any Security shall not be a Business
Day at any Place of Payment, then (notwithstanding any other provision of this
Indenture or of the Securities) payment of principal, premium, if any, or
interest, if any, 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, and no interest shall accrue for the period
from and after such Interest Payment Date, Redemption Date or Stated Maturity,
as the case may be.
15
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally
The Securities of each series shall be in substantially the
form appended to the supplemental indenture establishing such series, or in such
other form as shall be established by or pursuant to a Board Resolution (or
Officers' Certificate delivered pursuant thereto) or in each case with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture, a Board Resolution or one or more
indentures supplemental hereto, and may have such letters, numbers or other
marks of identification and such legends or endorsements placed thereon as may
be required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the Director or Directors executing such
Securities, as evidenced by the Director's or Directors' execution of the
securities. If the form of Securities of any series is established by action
taken pursuant to Board Resolution, a copy of an appropriate record of such
action shall be certified by an authorized Director or officer of the Company
and 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.
The Trustee's certificates of authentication shall be in
substantially the form set forth in this Article or in a Board Resolution (or
Officers' Certificate delivered pursuant thereto) or an indenture supplemental
hereto.
The definitive Securities shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner, all
as determined by the Director or Directors executing such Securities, as
evidenced by the Director's or Directors' execution of such Securities.
SECTION 202. Form of Trustee's Certificate of Authentication
This is one of the Securities of the series designated herein
and referred to in the within-mentioned Indenture.
Dated: ____________________________ as Trustee
By:___________________________________
Authorized Signatory
16
SECTION 203. Form of Trustee's Certificate of Authentication by an Authen-
ticating Agent
If at any time there shall be an Authenticating Agent
appointed with respect to any series of Securities, then the Trustee's
Certificate of Authentication by such Authentication Agent to be borne by the
Securities of each such series shall be substantially as follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein
and referred to in the within-mentioned Indenture.
Dated: __________________________ as Trustee
By: [NAME OF AUTHENTICATING AGENT]
Authenticating Agent
By:__________________________________
Authorized Signatory
SECTION 204. Form of Guarantee
FOR VALUE RECEIVED, YORKSHIRE POWER GROUP LIMITED, a private
limited company duly incorporated and existing under the laws of England and
Wales (the "Guarantor", which term includes any successor Person under the
Indenture referred to in the Security on which this notation is endorsed),
hereby fully and unconditionally guarantees to the Holder of the accompanying
Security issued by Yorkshire Power Finance 2 Limited (the "Company"), pursuant
to the terms of the Guarantee contained in Article Fourteen of the Indenture,
the due and punctual payment of the principal of, premium, if any, and interest,
if any, on this Security (and any Additional Amounts payable in respect
thereof), when and as the same shall become due and payable, whether at Stated
Maturity, by declaration of acceleration, call for redemption or otherwise, in
accordance with the terms of this Security and the Indenture. In case of the
failure of the Company punctually to pay any such principal, premium, if any, or
interest, if any, the Guarantor hereby agrees to cause any such payment to be
made punctually when and as the same shall become due and payable as if such
payment were made by the Company.
The obligations of the Guarantor to the Holders of the
Securities and to the Trustee pursuant to the Guarantee and the Indenture are
expressly set forth in Article Fourteen of the Indenture, and reference is
hereby made to such Article and Indenture for the precise terms of the
Guarantee.
17
THIS GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
The Guarantee shall not be valid or obligatory for any purpose
until the certificate of authentication on the Security upon which this notation
of the Guarantee is endorsed shall have been executed by the Trustee or an
authenticating agent under the Indenture by the manual signature of one of its
authorized officers.
YORKSHIRE POWER GROUP LIMITED
By:_______________________________
Authorized Signatory
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited: Issuable in Series
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There
shall be established in or pursuant to a Board Resolution and, 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, prior
to the issuance of Securities of any series, the terms of such series, which may
include the following:
(1) title of the Securities of the series (which shall
distinguish the Securities of such 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 Sections 305, 306, 307 or 906, and
except for any Securities which, pursuant to Section 303, are deemed
never to have been authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the
series shall be payable, if other than the bearer (in the case of a
Bearer Security) or the Person in whose name the Security (or one or
more Predecessor Securities) is registered at the close of business on
the Regular Record Date for such interest (in the case of a Registered
Security);
18
(4) the date or dates on which the principal of the Securities
of the series is payable;
(5) the rate or rates at which the Securities of the series
shall bear interest, if any, or the method by which such rate or rates
shall be determined, the date or dates from which such interest shall
accrue, the Interest Payment Dates on which such interest shall be
payable, the Regular Record Date for the interest payable on any
Interest Payment Date and the basis upon which interest shall be
calculated if other than that of a 360-day year of twelve 30-day
months;
(6) the place or places, if any, in addition to or in the
place of the Corporate Trust Office, where the principal of, premium,
if any, and interest, if any, on Securities of the series shall be
payable and (in the case of the Registered Securities) where such
Securities may be registered or transferred;
(7) 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;
(8) the obligation, if any, of the Company to redeem, repay or
purchase Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof, and the
period or periods within which, the price or prices at which, the
currency or currencies in which and the terms and conditions upon which
Securities of the series shall be redeemed, repaid or purchased, in
whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the series
shall be issuable;
(10) if other than the principal amount thereof, the portion
of the principal amount of Securities of the series which shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 502;
(11) if other than such coin or currency of the United States
as at the time of payment is legal tender for payment of public or
private debts, the coin or currency. including composite currencies
such as the European Currency Unit, in which payment of the principal
of, premium, if any, and interest, if any, on the Securities of the
series shall be payable;
(12) if the principal of, premium, if any, or interest, if
any, on the Securities of the series are to be payable, at the election
of the Company or a Holder thereof, in a coin or currency other than
that in which the Securities are stated to be payable, the currency or
currencies in which principal of or any premium or interest on such
Securities as to which such election is made shall be payable, the
period or periods within which, and the terms and conditions upon
which, such election may be made;
(13) if the amount of payments of principal of, premium, if
any, or interest, if any, on the Securities of the series may be
19
determined with reference to an index 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;
(14) any provisions permitted by this Indenture relating to
Events of Default or covenants of the Company or the Guarantor with
respect to such series of Securities;
(15) if the Securities of the series shall be issued in whole
or in part in the form of one or more Global Securities, (i) whether
beneficial owners of interests in any such Global Security or
Securities may exchange such interests for definitive Registered
Securities of such series of like tenor and of authorized form and
denomination and the circumstances under which any such changes may
occur, if other than in the manner provided in Section 306, and (ii)
the Book-Entry Depositary for such Global Security or Securities;
(16) if the Company ever wishes to issue definitive Bearer
Securities then all provisions relating to or governing such Bearer
Securities will be set forth in an indenture supplemental hereto;
(17) if Article Fourteen and the other provisions of this
Indenture relating to the Guarantee of the Securities are applicable to
such series; and
(18) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be provided in
or pursuant to the Board Resolution referred to above and set forth in the
Officers Certificate referred to above or in any indenture supplemental hereto
referred to above.
If any of the terms of the Securities of a series, including
the form of Security of such series, are established by action taken pursuant to
a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary or other authorized officer
or Director, and 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 series of Securities.
SECTION 302. Denominations
The Securities of each series shall be issuable in bearer form
or in registered form without coupons, except as otherwise expressly provided in
a supplemental indenture hereto, in such denominations as shall be specified as
contemplated by Section 301. In the absence of any such provisions with respect
to the Securities of any series, the Securities of such series shall be issuable
in denominations of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating
The Securities shall be executed on behalf of the Company by
any Director the Secretary or any other officer of the Company so authorized and
need not be attested. Definitive Registered Securities of any series may have
the Company's seal reproduced thereon which need not be attested. The Securities
20
of any series shall be executed by such additional Director or officer, if any,
as shall be specified pursuant to Section 301. The signature of any of these
officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signature of any
individual who was at any time the proper Director or officer of the Company
shall bind the Company, notwithstanding that such individual has ceased to hold
such office prior to the authentication and delivery of such Securities or did
not hold such office at the date of authentication 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
executed by the Company to the Trustee for authentication, together with a
Company Order for the authentication and delivery of such Securities, and the
Trustee in accordance with the Company Order shall authenticate and deliver such
Securities. If the form or terms of the Securities of the series have been
established in or pursuant to one or more Board Resolutions as permitted by
Sections 201 and 301, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive, and (subject to Section 601) shall be
fully protected in relying on, an Opinion of Counsel stating,
(a) if the form of such Securities has been established by or
pursuant to a Board Resolution as permitted by Section 201, that such
form has been established in conformity with the provisions of this
Indenture;
(b) if the terms of such Securities have been established by
or pursuant to Board Resolution as permitted by Section 301, that such
terms have been established in conformity with the provisions of this
Indenture; and
(c) that such Securities, when authenticated and delivered by
the Trustee and issued by the Company in the manner and subject to any
conditions specified in such opinion of Counsel, will constitute valid
and legally binding obligations of the Company, enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting the enforcement of creditors' rights and to general
principles of equity.
Notwithstanding the provisions of Section 301 and of the
preceding paragraph, if all Securities of a series are not to be originally
issued at one time, it shall not be necessary to deliver the Officers'
Certificate otherwise required pursuant to Section 301 or the Company Order and
Opinion of Counsel otherwise required pursuant to such preceding paragraph at or
prior to the time of authentication of each Security of such series if such
documents are delivered at or prior to the time of authentication upon original
issuance of the first Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security 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 or an Authenticating Agent by manual signature,
21
and such certificate upon any Security shall be conclusive evidence, and the
only evidence, that such Security has been duly authenticated and delivered
hereunder and is entitled to the benefits of this Indenture. Notwithstanding the
foregoing, if any Security shall have been 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 310 together
with a written statement (which 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. Transfer Agent and Paying Agent
For so long as Securities of a series are listed on the
Luxembourg Stock Exchange and such stock exchange shall so require, the Company
shall maintain a Paying Agent and Transfer Agent in Luxembourg.
The Company shall enter into an appropriate appointment letter
with any Registrar, Transfer Agent or Paying Agent not a party to this
Indenture, which shall implement the provisions of this Indenture that relate to
such Person. The Company shall notify the Trustee of the name and address of any
such Person. If the Company fails to maintain a Registrar or Paying Agent, the
Trustee shall act as such and shall be entitled to appropriate compensation
therefor pursuant to Section 607. The Company initially appoints the Trustee as
Registrar, Transfer Agent and Principal Paying Agent in The City of New York.
SECTION 305. Temporary Securities
Pending the preparation of a permanent Global Security or
definitive Securities of any series, the Company may execute, and upon Company
Order the Trustee or the Authenticating Agent shall authenticate, and deliver,
temporary Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued, in
registered form or, if authorized, in bearer form, and with such appropriate
insertions, omissions, substitutions and other variations as the officer or
officers executing such Securities may determine, as evidenced by their
execution of such Securities.
If temporary Securities of any series are issued, the Company
will cause definitive Securities of that series to be prepared without
unreasonable delay. After the preparation of definitive Securities of such
series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series upon surrender of the temporary Securities
of such series at the office or agency of the Company in a Place of Payment for
that series, without charge to the Holder except as provided in Section 306 in
connection with a transfer and except that a Person receiving definitive Bearer
Securities shall bear the cost of insurance, postage, transportation and the
like. Upon surrender for cancellation of any one or more temporary Securities of
any series the Company shall execute and the Trustee or the Authenticating Agent
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.
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Upon any exchange of a portion of a temporary Global Security
for a definitive Global Security for the individual Securities represented
thereby pursuant to this Section 305 or Section 306, the temporary Global
Security shall be endorsed by the Trustee to reflect the reduction of the
principal amount of such temporary Global Security, and such principal amount
shall be reduced for all purposes by the amount so exchanged and endorsed.
SECTION 306. Registration, Registration of Transfer and Exchange
The Company shall cause to be kept at the Corporate Trust
Office a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment 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 Registered Securities and of transfers of Registered Securities.
The Trustee is hereby appointed "Security Registrar" for the purpose of
registering Registered Securities and transfers of Registered Securities as
herein provided. The Company may have one or more coregistrars and the term
"Security Registrar" includes any co-registrar.
Upon surrender for registration of transfer of any Registered
Security of any series at the office or agency in a Place of Payment for that
series, the Company shall execute, and the Trustee or the 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, of any
authorized denominations and of a like aggregate principal amount and tenor.
At the option of the Holder, any Registered Security or
Registered Securities of any series, other than a Global Security, may be
exchanged for other Registered Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and tenor, upon surrender
of the Registered Securities to be exchanged at such office or agency. Whenever
any Securities are so surrendered for exchange, the Company shall execute, and
upon receipt of a Company Order the Trustee or the Authenticating Agent shall
authenticate and deliver, the Registered Securities which the Holder making the
exchange is entitled to receive. Bearer Securities may not be delivered by the
Trustee, the Authenticating Agent or the Security Registrar in exchange for
Registered Securities.
All Securities issued upon any registration of transfer or
exchange of Registered Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Registered Securities surrendered upon such registration of
transfer or exchange.
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.
Interests in a Global Security or Securities may be exchanged
for definitive Registered Securities of the same series in whole or in part only
under the circumstances provided in this Indenture, in an Officers' Certificate
(pursuant to a Board Resolution) or in an indenture supplemental hereto pursuant
23
to which Securities of that series are issued or in the Securities of that
series. In such event the Company will execute, and the Trustee or the
authenticating Agent, upon receipt of a Company Order for the authentication and
delivery of definitive Registered Securities of such series, will authenticate
and deliver such definitive Registered Securities. Any such definitive
Registered Securities so issued shall be registered in thee name of such Person
or Persons as the Book-Entry Depositary shall instruct the Trustee and the
Security Registrar in writing. The Trustee or the Security Registrar shall
deliver such definitive Registered Securities to the Persons in whose names such
definitive Registered Securities are so registered. Upon the exchange (i) in
whole of a Global Security or Securities for definitive Registered Securities in
equal aggregate principal amount, such Global Security or Securities shall be
delivered to the Trustee for cancellation or (ii) in part of a Global Security
or Securities for definitive Registered Securities, then the principal amount of
such Global Security or Securities shall be reduced by an endorsement on such
Global Security or Securities in an amount equal to the aggregate principal
amount of such definitive Registered Securities. Interests in a Global Security
or Securities may not be exchanged for definitive Bearer Securities.
Notwithstanding the foregoing, interests in a Global Security may not be
exchanged for definitive Registered Securities during the sixteen day period
immediately prior to and including each Interest Payment Date.
No service charge shall be made to the Holder 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 Sections 305, 906 or 1107 not
involving any transfer.
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 the day of the mailing of a notice of
redemption under Section 1103 and ending at the close of business on the day of
such mailing, (ii) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except the unredeemed portion of
any 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 the series (but only if and under the circumstances for
which the Securities of such series are issuable as Registered Securities),
provided that such Registered Security shall be immediately surrendered for
redemption with written instructions for payment consistent with the provisions
of this Indenture.
The provisions of this Section 306 are, with respect to any
Global Security, subject to Section 312 hereof.
SECTION 307. Mutilated, Destroyed, Lost and Stolen Securities
If any mutilated Security 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 and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
24
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
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 has been acquired by a bona fide
purchaser, the Company shall execute and upon its written request the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security
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.
Upon the issuance of any new Security under this Section 307,
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 307 in lieu of any destroyed, lost or stolen Security shall constitute
an original additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series duly issued
hereunder.
The provisions of this Section 307 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.
SECTION 308. Payment of Interest: Interest Rights Reserved
Interest on any Security which is payable, and is punctually
paid or duly provided for, on any Interest Payment Date shall be paid (in the
case of a Bearer Security) to the bearer thereof and (in the case of a
Registered Security) to the Person in whose name that Registered Security (or
one or more Predecessor Securities) is registered at the close of business on
the Regular Record Date for such interest.
Payment of interest, if any, in respect of any Registered
Security will be made by check mailed to the address of the Person entitled
thereto as such person's address appearing in the Security Register. Payment of
interest, if any, in respect of any Registered Security may also be made, in the
case of a Holder of at least U.S. $1,000,000 (or the equivalent thereof in other
currencies) aggregate principal amount of Registered Securities, and payment of
interest, if any, in respect of a Global Registered Security shall be made, by
wire transfer to an account denominated in the same currency as the relevant
Securities maintained by the Holder with a bank in the country in whose currency
the relevant Securities are denominated; provided that such Holder elects
payment by wire transfer by giving written notice to the Trustee or a Paying
Agent to such effect designating such account no later than 15 days immediately
preceding the relevant due date for payment (or such other date as the Trustee
may accept in its discretion.
25
Any interest on any 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, in the case of Registered
Securities, forthwith cease to be payable to the Holder thereof on the relevant
Regular Record Date by virtue of having been such Holder, and such Defaulted
Interest may be paid by the Company, at its election in each case, as provided
in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered 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 of
such series and the date of the proposed payment, and at the same time
the Company shall deposit with the Trustee an amount of money 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 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. Unless the Trustee is acting as the Security
Registrar, promptly after such Special Record Date, the Company shall
furnish the Trustee with a list, or shall make arrangements
satisfactory to the Trustee with respect thereto, of the names and
addresses of, and respective principal amounts of such Registered
Securities held by, the Holders appearing on the Security Register at
the close of business on such Special Record Date. 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
Securities of such series 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 of
such series (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 of any series or any Global Registered
Security 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.
Defaulted Interest on Bearer Securities shall be payable to
the bearer thereof at the time of payment of such Defaulted Interest by
the Company.
26
Subject to the foregoing provisions of this Section 308, 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 309. Persons Deemed Owners
Prior to due presentment of a Registered Security for
registration of transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name such Registered Security is
registered as the owner of such Registered Security for the purpose of receiving
payment of principal of; premium, if any, and (subject to Section 308) interest,
if any, 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. All such payments so made to any such person, or upon such
person's order, shall be valid, and, to the extent of the sums so paid,
effectual to satisfy and discharge the liability for monies payable upon any
such Security.
The Company, the Trustee and any agent of the Company or the
Trustee may treat the Book-Entry Depositary for a Global Bearer Security as the
absolute owner of such Global Bearer Security for the purpose of receiving
payment thereof or on account thereof and for all other purposes whatsoever,
whether or not such Global Bearer Security or coupon shall be overdue, and
neither the Company or the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
No holder of any beneficial interest in any Global Security
held on its behalf by a Book-Entry Depositary shall have any rights under this
Indenture with respect to such Global Security, and such Book-Entry Depositary
may be treated by the Company, the Trustee, and any agent of the Company or the
Trustee as the owner of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall impair, as between a Book-
Entry Depositary and such holders of beneficial interests, the operation of
customary practices governing the exercise of the rights of the Book-Entry
Depositary as holder of any Security.
SECTION 310. Cancellation
All Securities 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 and shall be promptly canceled by it. The Company may at any time
deliver to the Trustee for cancellation any Securities previously authenticated
and delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly canceled by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for any
Securities canceled as provided in this Section 310, except as expressly
permitted by this Indenture. All canceled Securities held by the Trustee shall
be disposed of as directed by a Company Order.
SECTION 311. Computation of Interest
27
Except as otherwise specified as contemplated by Section 301 for Securities of
any series, interest, if any, on the Securities of each series shall be computed
on the basis of a 360-day year of twelve 30-day months.
SECTION 312. Global Securities
If the Company shall establish pursuant to Section 301 that
the Securities of a particular series are to be issued in the form of a Global
Security, then the Company shall execute and the Trustee shall, in accordance
with Section 303, authenticate and deliver, a Global Security or Securities
which (i) shall represent, and shall be denominated in an aggregate amount equal
to the aggregate principal amount of; all of the Outstanding Securities of such
series, (ii) shall be in bearer form or, if in registered form, registered in
the name of the Book-Entry Depositary or its nominee, (iii) shall be delivered
by the Trustee to the Book-Entry Depositary or pursuant to the Book-Entry
Depositary's instruction and (iv) shall bear a legend substantially to the
following effect:
"This Security is a Global Security within the meaning of the
Indenture hereinafter referred to and if this Security is in bearer form, is
held by a Book-Entry Depositary or, if this Security is in registered form, is
registered in the name of a Book-Entry Depositary or a nominee of a Book-Entry
Depositary. This Security is exchangeable for Securities, if this Security is in
bearer form, held by, or if this Security is in registered form, registered in
the name of, a person other than the Book-Entry Depositary or its nominee only
in the limited circumstances described in the Indenture.
"Unless this Global Security is presented by an authorized
representative of the Book-Entry Depositary to the Company or its agent for
registration of transfer, if this Security is in registered form, exchange or
payment, and any definitive Registered Security is issued in the name or names
as directed in writing by the Book-Entry Depositary, ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL in as
much as the bearer or the registered owner hereof; as the case may be, the
Book-Entry Depositary, has an interest herein."
Unless and until definitive Registered Securities of a series
are issued in exchange for the Global Security of a series as permitted by this
Indenture, the Global Security of a series may be transferred, in whole but not
in part and in the manner provided in Section 306, only to another nominee of
the Book-Entry Depositary for such series, or to a successor Book-Entry
Depositary for such series selected or approved by the Company or to a nominee
of such successor Book-Entry Depositary.
No Security that is not a Global Bearer Security may be
payable to bearer (except as otherwise provided in an indenture supplemental
hereto or in an Officers' Certificate (pursuant to a Board Resolution) pursuant
to Section 301(16)).
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture
28
This Indenture shall upon Company Request cease to be of
further effect (except as to any surviving rights of registration of transfer or
exchange of Securities herein expressly provided for and rights to receive
payments of any principal, premium or interest in respect thereof and any right
to receive any Additional Amount as provided in Section 1009), and the Trustee
shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture, when
(1) either (A) all Securities theretofore authenticated and
delivered (other than (i) Securities which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section 307
and (ii) Securities for whose payment money has theretofore been
deposited in trust with the Trustee or any paying agent 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) all such Securities not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one year
under arrangements for the giving of notice of redemption by
the Trustee in the name, and at the expense, of the Company,
or
(iv) are deemed paid and discharged pursuant to
Section 403, as applicable.
and the Company, in the case of (i), (ii) or (iii) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for the purpose
an amount of (a) money in the currency or units of currency in which such
Securities are payable, or (b) U.S. Government Obligations or U.K. Government
Obligations, as applicable (denominated in the same currency or units of
currency in which such Securities are payable), which through the payment of
interest and principal in respect thereof in accordance with their terms will
provide not later than one day before the Stated Maturity or Redemption Date, as
the case may be, money in an amount, or (c) a combination of money or U.S.
Government Obligations or U.K. Government Obligations, as applicable, as
provided in (b) above, in each case, sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and interest, if any, to the
date of such deposit (in the case of Securities which have become due and
payable) or to the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other
sums payable hereunder by the Company; and
29
(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 have been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 607, the
obligations of the Trustee to any authenticating Agent under Section 614 and, if
money shall have been deposited with the Trustee pursuant to subclause (B) of
clause (1) of this Section 401 or if money or U.S. Government Obligations shall
have been deposited with or received by the Trustee pursuant to Section 403, the
obligations of the Trustee under Section 402 and the last paragraph of Section
1003 shall survive.
SECTION 402. Application of Trust Money
(a) Subject to the provisions of the last paragraph of Section
1003, all money or U.S. Government Obligations or U.K. Government Obligations
deposited with the Trustee pursuant to Sections 401 or 403, and all money
received by the Trustee in respect of U.S. government Obligations or U.K.
Government Obligations deposited with the Trustee pursuant to Sections 401 or
403, shall be held in trust and applied by it, in accordance with the provisions
of the Securities and this Indenture, to the payment, to the persons entitled
thereto, of the principal of, premium, if any, and interest, if any, on the
Securities for whose payment such money has been deposited with or received by
the Trustee or to make mandatory sinking fund payments or analogous payments as
provided by Sections 401 or 403.
(b) The Company shall pay and shall indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against U.S.
Government Obligations or U.K. Government Obligations deposited pursuant to
Sections 401 or 403 or the interest, premium, if any, and principal received in
respect of such obligations other than any payable by or on behalf of Holders.
(c) The Trustee shall deliver or pay to the Company from time
to time upon Company Request any U.S. Government Obligations or U.K. Government
Obligations or money held by it as provided in Sections 401 or 403 which, in the
opinion of a nationally recognized firm of independent certified public
accountants expressed in a written certification thereof delivered to the
Trustee, are then in excess of the amount thereof which then would have been
required to be deposited for the purpose for which such U.S. Government
Obligations or U.K. Government Obligations or money was deposited or received.
This provision shall not authorize the sale by the Trustee of any U.S.
Government Obligations or U.K. Government Obligations held under this Indenture.
(d) Any monies paid by the Company to the Trustee or any
Paying Agent, or held by the Company in trust, for the payment of the principal
of, premium, if any, or interest, if any, or Additional Amounts on any
Securities and remaining unclaimed at the end of two years after such principal,
premium, interest or Additional Amounts become due and payable will be repaid to
the Company, or released from the trust, upon its written request, and upon such
repayment or release all liability of the Company, the Trustee and such Paying
Agent with respect thereto will cease.
30
SECTION 403. Satisfaction, Discharge and Defeasance of Securities of any
Series
The Company, at its option, may elect (a) to be discharged
from any and all obligations in respect of the Securities of a series (except in
each case for the obligations to register the transfer or exchange of the
Securities of that series, replace stolen, lost or mutilated Securities of that
series, maintain paying agencies and hold moneys for payment in trust); or (b)
not to comply with any term, provision or condition set forth in Sections 801,
1004 and 1005 with respect to the Securities of any series, provided that the
following conditions shall have been satisfied:
The Company has irrevocably deposited or caused to be
deposited (except as provided in Section 607, 402(d) and the last paragraph of
Section 1003) with the Trustee (specifying that each deposit is pursuant to this
Section 403) as trust funds in trust, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of the Securities of such
series, (i) money or (ii) U.S. Government Obligations or U.K. Government
Obligations, as applicable, which through the payment of interest and principal
in respect thereof in accordance with their terms will provide money, or (iii) a
combination thereof, in each case, in an amount sufficient, in the opinion of a
nationally recognized firm of independent accountants, to pay and discharge the
principal of, premium, if any, and interest, if any (including any Additional
Amounts then known), if any, on the outstanding Securities of such series on the
dates such payments are due in accordance with the terms of the Securities of
such series, (or if the Company has designated a redemption date pursuant to the
final sentence of this paragraph, to and including the redemption date so
designated by the Company), and no Event of Default or event which with notice
or lapse of time would become an Event of Default (including by reason of such
deposit) with respect to the Securities of such series shall have occurred and
be continuing on the date of such deposit or, insofar as Section 501(7) is
concerned, at any time during the period ending on the 91st day after the date
of such deposit (it being understood that this condition shall not be satisfied
until the expiration of such period), and the Securities of such series will not
be delisted by any securities exchange on which they are traded as a result of
the deposit of trust funds in trust. To exercise any such option, the Company is
required to deliver to the Trustee: (i) an opinion of independent counsel of
recognized standing to the effect that (x) the Holders of the Securities of such
series will not recognize income, gain or loss for United States federal income
tax purposes as a result of such deposit, and will be subject to United States
federal income tax on the same amounts, in the same manner and at the same times
as would have been the case absent such deposit, which in the case of clause (a)
must be based on a change in law or a published ruling by the United States
Internal Revenue Service and (y) the deposit shall not result in the Company
being deemed to be an "investment company" required to be registered under the
Investment Company Act of 1940, as amended; (ii) an opinion of independent
counsel in the Eligible Jurisdiction of recognized standing, if applicable, to
the effect that (x) the Holders will not recognize income, gain or loss for tax
purposes of such Eligible Jurisdiction as a result of such deposit and will be
subject to income tax in such Eligible Jurisdiction on the same amounts, in the
same manner and at the same times as would have been the case absent such
deposit and (y) sums held by and profit (of an income or a capital nature)
realized by the Trustee and payments from the defeasance trust will be free and
exempt from any and all withholding and other income or capital taxes of
whatever nature imposed or levied by or on behalf of such Eligible Jurisdiction
or any political subdivision or any authority therein having power to tax
(except for any withholding taxes in respect of which the Company or the
31
Guarantor has paid Additional Amounts into the defeasance trust); and (iii) an
Officers' Certificate as to compliance with all conditions precedent provided
for in the Indenture relating to the satisfaction and discharge of the
Securities of such series. If the Company shall wish to deposit or cause to be
deposited money or U.S. Government Obligations or U.K. Government Obligations,
as applicable, to pay or discharge the principal, premium, if any and interest,
if any, (including any Additional Amounts then known), if any, on the
outstanding Securities of such series to and including a Redemption Date on
which all of the outstanding Securities of such series are to be redeemed, such
Redemption Date shall be irrevocably designated by a Board Resolution delivered
to the Trustee on or prior to the date of deposit of such money or U.S.
Government Obligations or U.K. Government Obligations, as applicable, and such
Board Resolution shall be accompanied by an irrevocable Company Request that the
Trustee give notice of such redemption in the name and at the expense of the
Company not less than 30 nor more than 60 days prior to such Redemption Date in
accordance with this Indenture.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default
"Event of Default", wherever used herein with respect to
Securities of any series, means any one of the following events:
(1) default in the payment of any interest or any Additional
Amounts upon any Security of that series when it becomes due and
payable and continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if
any, on) any Security of that series at its Maturity; or
(3) default in the payment of any installment of any sinking
fund provided with respect to such series, when and as due by the terms
of a Security of that series; or
(4) material default in the performance, or material breach,
of any covenant or obligation of the Company or the Guarantor in this
Indenture (other than a covenant a default in whose performance or
whose breach is elsewhere in this Section 501 specifically dealt with
or which has expressly been included in this Indenture solely for the
benefit of a series of Securities other than that series) and
continuance of such material default or breach for a period of 90 days
after there has been given, by registered or certified mail, to the
Company or the Guarantor by the Trustee or to the Company or the
Guarantor and the Trustee by the Holders of at least 25% in aggregate
principal amount of the Outstanding Securities of that series a written
notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default"
hereunder; or
(5) a default in the payment of the principal of any bond,
debenture, note or other evidence of indebtedness, in each case for
money borrowed, or in the payment of principal under any mortgage,
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indenture (including this Indenture) or instrument under which there
may be issued or by which there may be secured or evidenced any
indebtedness for money borrowed, of the Company, the Guarantor or any
Significant Subsidiary, which default for payment of principal is in an
aggregate principal amount exceeding U. S. $50,000,000 (or its
equivalent in any other currency or currencies) when such indebtedness
becomes due and payable (whether at maturity, upon redemption or
acceleration or otherwise), if such default shall continue unremedied
or unwaived for more than 30 Business Days and the time for payment of
such amount has not been expressly extended; provided, however, that,
subject to the provisions of Sections 601 and 602, the Trustee shall
not be deemed to have knowledge of such default unless either (A) a
Responsible Officer of the Trustee shall have actual knowledge of such
default or (B) the Trustee shall have received written notice thereof
from the Company or the Guarantor, from any Holder, from the holder of
any such indebtedness or from the trustee under any such mortgage,
indenture or other instrument; and provided, further, that if such
default under such indenture or instrument shall be remedied or cured
by the Company, the Guarantor or such Significant Subsidiary or waived
by the holders of such indebtedness, then the Event of Default
hereunder by reason thereof shall be deemed likewise to have been
remedied, cured or waived without further action upon the part of the
Trustee or any of the Holders; or
(6) any Guarantee shall be held in a judicial proceeding to be
unenforceable or invalid or shall cease for any reason to be in full
force and effect; or
(7) the failure of the Company, the Guarantor, or a
Significant Subsidiary generally to pay its debts as they become due,
or the admission in writing of its inability to pay its debts
generally, or the making of a general assignment for the benefit of its
creditors, or the institution of any proceeding by or against the
Company, the Guarantor or a Significant Subsidiary (other than any such
proceeding brought against the Company, the Guarantor or a Significant
Subsidiary that is dismissed within 180 days from the commencement
thereof) seeking to adjudicate it bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief or composition of it or its debts under any law
relating to bankruptcy, insolvency, reorganization, moratorium or
relief of debtors, or seeking the entry of an order for relief or
appointment of an administrator, receiver, trustee, intervenor or other
similar official for it or for any substantial part of its property, or
the taking of any action by the Company, the Guarantor or a Significant
Subsidiary to authorize any of the actions set forth in this
subparagraph (7); or
(8) any other Event of Default provided in the supplemental
indenture or provided in or pursuant to the Board Resolution under
which such series of Securities is issued or in the form of Security
for such 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, the Trustee or the
Holders of not less than 25% in aggregate principal amount of the Outstanding
Securities of that series may declare the principal amount (or, if any of the
Securities of that series are Original Issue Discount Securities, such portion
33
of the principal amount of such Securities as may be specified in the terms
thereof) of 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 amount (or specified
amount) shall become immediately due and payable.
At any time after such declaration of acceleration with
respect to Securities of any series has been made, but before a judgment or
decree for payment of money has been obtained by the Trustee as hereinafter in
this Article provided, if all Events of Default with respect to Securities of
that series have been cured or waived (other than the non-payment of principal
of the Securities which has become due solely by reason of such declaration of
acceleration) then such declaration of acceleration and its consequences shall
be automatically annulled and rescinded.
No such rescission shall affect any subsequent default or
impair any right consequent thereon.
For all purposes under this Indenture, if a portion of the
principal of any Original Issue Discount Securities shall have been accelerated
and declared due and payable pursuant to the provisions hereof, then, from and
after such declaration, unless such declaration has been rescinded and annulled,
the principal amount of such Original Issue Discount Securities shall be deemed,
for all purposes hereunder, to be such portion of the principal thereof as shall
be due and payable as a result of such acceleration, and payment of such portion
of the principal thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all other amounts
owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee
The Company covenants that if
(1) default is made in the payment of any interest on any
Security of a series when such interest becomes due and payable and
such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of,
premium, if any, on any Security of a series at the Stated Maturity
thereof,
the Company will, upon written demand of the Trustee, pay to it, for the benefit
of the Holders of such Securities of such series, the whole amount then due and
payable on such Securities of such series for principal of, premium, if any, and
interest, if any, and, to the extent that payment of such interest shall be
legally enforceable, interest on any overdue principal of, premium, if any, and
interest, at the rate or rates prescribed therefor in such Securities of such
series, and, in addition thereto, such further amount as shall be sufficient to
cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
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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 any 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.
SECTION 504. Trustee May File Proofs of Claim
In case of the pendency of any receivership, insolvency,
liquidation (other than a solvent liquidation), bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Company or any other obligor on the Securities or the property of the
Company or of such other obligor or the creditors of either or both of them, 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, premium, if any, 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 of the Holders allowed in
such judicial proceeding, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to
distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due 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 authorizes or consent to, accept or adopt on behalf of any Holder any
plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities
35
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities 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 any 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 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 with respect to the Securities of any
series, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal of, premium, if any, or
interest, if any, upon presentation of the Securities 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 to the Trustee under
Section 607;
SECOND: In case the principal and premium, if any, of the
Securities of such series in respect of which moneys have been collected shall
not have become and be then due and payable, to the payment of interest, if any,
on the Securities of such a series in default in the order of the maturity of
the installments of such interest, with interest (to the extent that such
interest has been collected by the Trustee and to the extent permitted by law)
upon the overdue installments of interest at the rate prescribed there for in
such Securities, such payments to be made ratably to the Persons entitled
thereto, without discrimination or preference;
THIRD: In case the principal or premium, if any, of the
Securities of such series in respect of which moneys have been collected shall
have become and shall be then due and payable, to the payment of the whole
amount then owing and unpaid on all the Securities of such series for principal,
premium, if any, and interest, if any, with interest upon the overdue principal
of premium, if any, and (to the extent that such interest has been collected by
the Trustee and to the extent permitted by law) upon overdue installments of
interest at the rate prescribed therefor in the Securities of such series; and
in case such moneys shall be insufficient to pay in full the whole amount so due
and unpaid upon the Securities of such series, then to the payment of such
principal and any premium and interest, without preference or priority of
principal over interest, or of interest over principal or premium, or of any
installment of interest over any other installment of interest, or of any
Security of such series over any other Security of such series, ratably to the
aggregate of such principal and any premium and accrued and unpaid interest; and
FOURTH: To the payment of the remainder, if any, to the
Company or any other Person lawfully entitled thereto.
SECTION 507. Limitation on Suits
36
No Holder of any Security of any series 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
indemnity satisfactory to the Trustee 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 of such 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 of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium
and Interest
Notwithstanding Section 507, the Holder of any Security shall
have the right, which is absolute and unconditional, to receive payment of the
principal of, premium, if any, or (subject to Section 307) interest, if any, on
such Security on the Stated Maturity or Maturities expressed in such Security
(or, in the case of redemption, on the Redemption Date) and to institute suit
for the enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Company, the Trustee and the Holders
shall continue as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative
37
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 306, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver
No delay or omission of the Trustee or of any Holder of any
Securities 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 may be exercised from time to
time, and as often as may be deemed expedient by the Trustee or by the Holders,
as the case may be.
SECTION 512. Control by Holders
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 may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) the Trustee shall not determine that the action so
directed would be prejudicial to Holders not taking part in such
action.
SECTION 513. Waiver of Past Defaults
The Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities of any series may on behalf of the Holders
of all the Securities of such series waive any past default hereunder with
respect to such series and its consequences, except a default
(1) in the payment of the principal of, premium, if any,
or interest, if any, on any Security of such series, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
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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 or omitted by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including reasonable attorneys'
fees, against any party litigant in such suit, having due regard to the merits
and good faith of the claims or defenses made by such party litigant in such
suit, but the provisions of this Section 514 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
for the enforcement of the payment of the principal of, premium, if any,
interest, if any, on any Security on or after the Stated Maturity or Maturities
expressed in such Security.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities
(a) Except during the continuance of a default with respect to
the Securities of any series,
(1) the Trustee undertakes to perform, such duties and only
such duties as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such certificates or opinions
which by any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall examine the same to determine whether
or not they conform to the requirements of this Indenture.
(b) In case a default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
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(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that
(1) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless the Trustee was
negligent in ascertaining the pertinent facts;
(2) no provision of this Indenture shall require the Trustee
to spend 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 repayment of such funds or
adequate indemnity against such risk or liability satisfactory to the
Trustee has not been assured to it; 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 not less than a majority in principal
amount of the outstanding Securities of any series, determined as
provided in Section 512, 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) 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 601.
SECTION 602. Notice of Defaults
(a) Within 90 days after the occurrence of any default
hereunder with respect to the Securities of any series, the Trustee shall
transmit by mail to all Holders of Securities of such series 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, premium, if any, or interest, if any, on any
Security of such series or in the payment of any sinking fund installment with
respect to Securities 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 a Responsible Officer of the
Trustee in good faith determines 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(4)
with respect to Securities of such series, no such notice to Holders shall be
given until at least 30 days after the occurrence thereof. For the purpose of
this Section 602, the term "default" means, with respect to Securities of any
Series, 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.
(b) If any installment of principal of or premium, if any,
interest on the Securities of a series, for which, pursuant to Section 301,
provision has been made for the Guarantee thereof by the Guarantor, is not paid
40
when due in accordance with Section 1001, then no later than 11:00 a.m. (New
York City time in the case of payments in US Dollars and London time in the case
of payments in Pounds Sterling) on the due date for such payment, the Trustee
shall notify the Guarantor of such nonpayment.
SECTION 603. Certain Rights of Trustee
Subject to the provisions of Section 601:
(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, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order or as
otherwise expressly provided herein 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 expend or risk
its own funds or to exercise, at the request or direction of any of the Holders,
any of the rights or powers vested in it by this Indenture pursuant to this
Indenture, unless such Holders shall have offered to the Trustee security or
indemnity satisfactory to the Trustee 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, other evidence of indebtedness 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
upon reasonable prior request and during normal business hours to examine the
books, records and premises of the Company, personally or by agent or attorney;
and
(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 shall not be liable for the actions or omissions of such
agents appointed and supervised by it with due care.
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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, shall be taken as the statements
of the Company, and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities. Neither the
Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities
The Trustee, any Authenticating Agent, 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 and, subject to
Sections 608 and 613, may otherwise deal with the Company or any Affiliate of
the Company with the same rights it would have if it were not Trustee,
Authenticating Agent, 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 such compen-
sation as is agreed upon in writing;
(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, which compensation, expenses and disbursements
shall be set forth in sufficient written detail to the satisfaction of
the Company), except any such expense, disbursement or advance as may
be attributable to its or their negligence or bad faith; and
(3) to indemnify the Trustee and its officers, directors and
employees for, and to hold it and them harmless against, any loss,
liability or expense incurred without negligence, bad faith, or willful
misconduct on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder,
including the costs and expenses of defending itself against any claim
or liability in connection with the exercise or performance of any of
its powers or duties hereunder. Obligations under this Section 607(3)
will survive the satisfaction and discharge of this Indenture pursuant
to Section 401 hereof.
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SECTION 608. Disqualification: Conflicting Interests
If the Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Indenture.
SECTION 609. Corporate Trustee Required: Eligibility
There shall at all times be a Trustee hereunder which shall be
eligible to act as trustee under the Trust Indenture Act and which shall have a
combined capital and surplus of at least U.S.$50,000,000. If the Trustee does
not have an office in The City of New York, the Trustee may appoint an agent in
The City of New York reasonably acceptable to the Company to conduct any
activities which the Trustee may be required under this Indenture to conduct in
The City of New York. If the Trustee does not have an office in The City of New
York or has not appointed an agent in The City of New York, the Trustee shall be
a participant in The Depository Trust Company and FAST distribution systems. If
such corporation publishes reports of condition at least annually, pursuant to
law or to the requirements of a United States federal, state, territorial or
District of Columbia supervising or examining authority, then for the purposes
of this Section 609, 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 609, the Trustee
shall resign immediately in the manner and with the effect hereinafter specified
in this Article.
SECTION 610. Resignation and Removal: Appointment of Successor Trustee
(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 in
accordance with the applicable requirements of Section 611.
(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 the instrument of acceptance by a successor Trustee required by
Section 611 shall not have been delivered to the Trustee within 10 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 series.
(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 Section 310(b) of
the Trust Indenture Act pursuant to Section 608 with respect to any
43
series of Securities 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
(2) the Trustee shall cease to be eligible under Section 609
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
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) and shall comply with
the applicable requirements of Section 611. If no successor Trustee with respect
to the Securities of any series shall have been so appointed by the Company and
accepted appointment in the manner required by Section 611, any Holder who has
been a bona fide Holder of a Security of such series for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the appointment of a successor Trustee 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
by mailing written notice of such event by first-class mail, postage prepaid, to
all Holders of Securities of such series as their names and addresses appear in
the Security Register. Each notice shall include the name of the successor
Trustee with respect to the Securities of such series and the address of its
Corporate Trust Office.
SECTION 611. 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 so
appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
44
transferring to such successor Trustee all the rights, powers and trusts of
retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder.
(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
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.
(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 611, as the case may be.
(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.
SECTION 612. 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 613. Preferential Collecting of Claims Against Company
(a) Subject to Subsection (b) of this Section 613, if the
Trustee shall be or shall become a creditor, directly or indirectly, secured or
unsecured, of the Company within three months prior to a default, as defined in
Subsection (c) of this Section 613, or subsequent to such a default, then,
unless and until such default shall be cured, the Trustee shall set apart and
hold in a special account for the benefit of the Trustee individually, the
Holders of the Securities and the holders of other indenture securities, as
defined in Subsection (c) of this Section 613:
(1) an amount equal to any and all reductions in the amount
due and owing upon any claim as such creditor in respect of principal
or interest effected after the beginning of such three months' period
and valid as against the Company and its other creditors, except any
such reduction resulting from the receipt or disposition of any
property described in paragraph (2) of this Subsection, or from the
exercise of any right of setoff which the Trustee could have exercised
if a petition in bankruptcy had been filed by or against the Company
upon the date of such default; and
(2) all property received by the Trustee in respect of any
claims as such creditor, whether as security therefor, or in
satisfaction or composition thereof, or otherwise, after the beginning
of such three months' period, or an amount equal to the proceeds of any
such property, if disposed of, subject, however, to the rights, if any,
of the Company and its other creditors in such property or such
proceeds.
Nothing herein contained, however, shall affect the right of
the Trustee:
(A) to retain for its own account (i) payments made on account
of any such claim by any Person (other than the Company) who is liable
thereon, and (ii) the proceeds of the bona fide sale of any such claim
by the Trustee to a third Person, and (iii) distributions made in cash,
securities or other property in respect of claims filed against the
Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal Bankruptcy Act or applicable
State law;
(B) to realize, for its own account, upon any property held by
it as security for any such claim, if such property was so held prior
to the beginning of such three months' period;
(C) to realize, for its own account, but only to extent of the
claim hereinafter mentioned, upon any property held by it as security
for any such claim, if such claim was created after the beginning of
such three months' period and such property was received as security
therefor simultaneously with the creation thereof, and if the Trustee
shall sustain the burden of proving that at the time such property was
so received the Trustee had no reasonable cause to believe that a
default, as defined in Subsection (c) of this Section 613, would occur
within three months; or
46
(D) to receive payment on any claim referred to in paragraph
(B) or (C), against the release of any property held as security for
such claim as provided in paragraph (B) or (C), as the case may be, to
the extent of the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property
substituted after the beginning of such three months' period for property held
as security at the time of such substitution shall, to the extent of the fair
value of the property released, have the same status as the property released,
and, to the extent that any claim referred to in any of such paragraphs is
created in renewal of or in substitution for or for the purpose of repaying or
refunding any pre-existing claim of the Trustee as such creditor, such claim
shall have the same status as such pre-existing claim.
If the Trustee shall be required to account for the funds and
property held in such special account, the proceeds thereof shall be apportioned
among the Trustee, the Holders and the holders of other indenture securities in
such manner that the Trustee, the Holders and the holders of other indenture
securities realize, as a result of payments from such special account and
payments of dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the Federal
Bankruptcy Act or applicable State law or winding up or administration pursuant
to the insolvency laws of the Cayman Islands or the United Kingdom, as
applicable, the same percentage of their respective claims, figured before
crediting to the claim of the Trustee anything on account of the receipt by it
from the Company of the funds and property in such special account and before
crediting to the respective claims of the Trustee and the Holders and the
holders of other indenture securities dividends on claims filed against the
Company in bankruptcy or receivership or in proceedings for reorganization
pursuant to the Federal Bankruptcy Act or applicable State law or winding up or
administration pursuant to the insolvency laws of the Cayman Islands or the
United Kingdom, as applicable, but after crediting thereon receipts on account
of the indebtedness represented by their respective claims from all sources
other than from such dividends and from the funds and property so held in such
special account. As used in this paragraph, with respect to any claim, the term
"dividends" shall include any distribution with respect to such claim, in
bankruptcy or receivership or proceedings for reorganization pursuant to the
Federal Bankruptcy Act or applicable State law or winding up or administration
pursuant to the insolvency laws of the Cayman Islands or the United Kingdom, as
applicable, whether such distribution is made in cash, securities or other
property, but shall not include any such distribution with respect to the
secured portion, if any, of such claim.
Any Trustee which has resigned or been removed after the
beginning of such three months' period shall be subject to the provisions of
this Subsection as though such resignation or removal had not occurred. If any
Trustee has resigned or been removed prior to the beginning of such three
months' period, it shall be subject to the provisions of this Subsection if and
only if the following conditions exist:
(i) the receipt of property or reduction of claim, which would
have given rise to the obligation to account, if such Trustee had
continued as Trustee, occurred after the beginning of such three
months' period; and
47
(ii) such receipt of property or reduction of claim occurred
within three months after such resignation or removal.
(b) There shall be excluded from the operation of Subsection
(a) of this Section 613 a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under
any indenture, or any security or securities having a maturity of one
year or more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court
of competent jurisdiction or by this Indenture, for the purpose of
preserving any property which shall at any time be subject to the lien
of this Indenture or of discharging tax liens or other prior liens or
encumbrances thereon, if notice of such advances and of the
circumstances surrounding the making thereof is given to the Holders at
the time and in the manner provided in this Indenture;
(3) disbursements made in the ordinary course of business in
the capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depository, or other similar
capacity;
(4) an indebtedness created as a result of services rendered
or premises rented, or an indebtedness created as a result of goods or
securities sold in a cash transaction, as defined in Subsection (c) of
this Section 613;
(5) the ownership of stock or of other securities of a
corporation organized under the provisions of Section 25 (a) of the
Federal Reserve Act, as amended, which is directly or indirectly a
creditor of the Company; and
(6) the acquisition, ownership, acceptance or negotiation of
any drafts, bills of exchange, acceptances or obligations which fall
within the classification of self-liquidating paper, as defined in
Subsection (c) of this Section 613.
(c) For the purposes of this Section 613 only:
(1) the term "default" means any failure to make payment in
full of the principal of or interest on any of the Securities or upon
the other indenture securities when and as such principal or interest
becomes due and payable;
(2) the term "other indenture securities" means securities
upon which the Company is an obligor (as defined in the Trust Indenture
Act) outstanding under any other indenture (i) under which the Trustee
is also trustee, (ii) which contains provisions substantially similar
to the provisions of this Section 613, and (iii) under which a default
exists at the time of the apportionment of the funds and property held
in such special account;
(3) the term "cash transaction" means any transaction in which
full payment for goods or securities sold is made within seven days
48
after delivery of the goods or securities in currency or in checks or
other orders drawn upon banks or bankers and payable upon demand;
(4) the term "self-liquidating paper" means any draft, xxxx of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase,
processing, manufacturing, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security
is received by the Trustee simultaneously with the creation of the
creditor relationship with the Company arising from the making,
drawing, negotiating or incurring of the draft, xxxx of exchange,
acceptance or obligation;
(5) the term "Company" means any obligor upon the Securities;
and
(6) the term "Federal Bankruptcy Act" means the Bankruptcy
Code or Title 11 of the United States Code.
SECTION 614. Authenticating Agents
From time to time the Trustee, with the prior written approval
of the Company, may appoint one or more Authenticating Agents with respect to
one or more series of Securities with power to act on the Trustee's behalf and
subject to its direction in the authentication and delivery of Securities of
such series or in connection with transfers and exchanges under Sections 304,
305, 306, and 1104 as fully to all intents and purposes as though the
Authenticating Agent had been expressly authorized by those Sections of this
Indenture to authenticate and deliver Securities of such series. For all
purposes of this Indenture, the authentication and delivery of Securities by an
Authenticating Agent pursuant to this Section 614 shall be deemed to be
authentication and delivery of such Securities "by the Trustee". Each such
Authenticating Agent shall be acceptable to the Company and shall at all times
be a corporation organized and doing business under the laws of the United
States, 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 U.S. $50,000,000 and subject to supervision or examination by
Federal, State or District of Columbia authority. If such corporation publishes
reports of condition at least annually pursuant to law or the requirements of
such authority, then for the purposes of this Section 614 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 an Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section 614, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section 614.
Any corporation into which any Authenticating Agent may be
merged or with which it may be consolidated, or any corporation resulting from,
any merger or consolidation or to which any Authenticating Agent shall be a
party, or any corporation succeeding to the corporate trust business of any
Authenticating Agent, shall be the successor of the Authenticating Agent
hereunder, if such successor corporation is otherwise eligible under this
49
Section 614, without the execution or filing of any paper or any further act on
the part of the parties hereto or the Authenticating Agent or such successor
corporation.
An Authenticating Agent may resign at any time by giving
written notice of resignation to the Trustee and to the Company. The Trustee may
at any time terminate the agency of any Authenticating Agent by giving written
notice of termination to such Authenticating Agent and to the Company. Upon
receiving such a notice of resignation or upon such a termination, or in case at
any time any Authenticating Agent shall cease to be eligible under this Section
614, the Trustee may appoint a successor Authenticating Agent with the prior
written approval of the Company and shall mail notice of such appointment to all
Holders of Securities of the series with respect to which such Authenticating
Agent will serve, as the names and addresses of such Holders appear on the
Security Register. Any successor Authenticating Agent, upon acceptance of its
appointment hereunder, shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named as
an Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section 614.
The Trustee agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section 614 as
may be agreed in a separate writing among the Company, the Trustee and such
Authenticating Agent, and the Trustee shall be entitled to be reimbursed for
such payments pursuant to Section 607.
If an appointment with respect to one or more series of
Securities is made pursuant to this Section 614, the Securities of such series
may have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternate certificate of authentication in the following
form:
This is one of the Securities of the series designated herein
referred to in the within mentioned Indenture.
Dated: _________________________________
As Trustee
{NAME OF AUTHENTICATING AGENT}
__________________________________
Authenticating Agent
By:
__________________________________
Authorized Signatory
50
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 with respect to the Registered Securities of each
series
(a) semi-annually, not later than 15 days after each Regular
Record Date, or, in the case of any series of Registered Securities on which
semiannual interest is not payable, not more than 15 days after such semi-annual
dates as may be specified by the Trustee, a list, in such form as the Trustee
may reasonably require, of the names and addresses of the Holders as of such
Regular Record Date or semi-annual date, 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;
provided, however, that if and so long as the Trustee is Security Registrar for
any series of Registered Securities, no such list shall be required to be
furnished with respect to any such series.
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 contained in the
most recent list furnished to the Trustee as provided in Section 701 and the
names and addresses of Holders received by the Trustee in its capacity as
Security Registrar.
(b) If three or more Holders (herein referred to as
"applicants") apply in writing to the Trustee, and furnish to the Trustee
reasonable proof that each such applicant has owned a Security for a period of
at least six months preceding the date of such application, and such application
states that the applicants desire to communicate with other Holders with respect
to their rights under this Indenture or under the Securities and is accompanied
by a copy of the form of proxy or other communication which such applicants
propose to transmit, then the Trustee shall, within five business days after the
receipt of such application, at its election, either
(i) afford such applicants access to the information
preserved at the time by the Trustee in accordance
with Section 702(a), or
(ii) inform such applicants as to the approximate number
of Holders whose names and addresses appears in the
information preserved at the time by the Trustee in
accordance with Section 702(a), and as to the
approximate cost of mailing to such Holders the form
of proxy or other communication, if any, specified in
such application.
51
If the Trustee shall elect not to afford such applicants
access to such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder whose name and address appear in the information
preserved at the time by the Trustee in accordance with Section 702(a) a copy of
the form of proxy or other communication which is specified in such request,
with reasonable promptness after a tender to the Trustee of the material to be
mailed and of payment, or provision for the payment, of the reasonable expenses
of mailing, unless within five days after such tender the Trustee shall mail to
such applicants and file with the Commission, together with a copy of the
material to be mailed, a written statement to the effect that, in the opinion of
the Trustee, such mailing would be contrary to the beat interest of the Holders
or would be in violation of applicable law. Such written statement shall specify
the basis of such opinion. If the Commission, after opportunity for a hearing
upon the objections specified in the written statement so filed, shall enter an
order refusing to sustain any of such objections or if, after the entry of an
order sustaining one or more of such objections, the Commission shall find,
after notice and opportunity for hearing, that all the objections so sustained
have been met and shall enter an order so declaring, the Trustee shall mail
copies of such material to all such Holders with reasonable promptness after the
entry of such order and the renewal of such tender; otherwise the Trustee shall
be relieved of any obligation or duty to the applicants respecting their
application.
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable, by reason of
the disclosure of any such information as to the names and addresses of the
Holders in accordance with Section 702(b), regardless of the source from which
such information was derived, and that the Trustee shall not be held accountable
by reason of mailing any material pursuant to a request made under Section
702(b).
SECTION 703. Reports by Trustee
(a) Within 60 days after July 1 of each year, commencing July
1, 2000, the Trustee shall transmit by mail to all Holders of Securities a brief
report dated as of such July 1, of such year with respect to any of the
following events which may have occurred within the previous 12 months (but if
no such event has occurred within such period no report need be transmitted):
(1) any change to its eligibility under Section 609 and
its qualifications under Section 608;
(2) the creation of or any material change to a relationship
specified in Section 608;
(3) the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the making
thereof) made by the Trustee (as such) which remain unpaid on the date
of such report, and for the reimbursement of which it claims or may
claim a lien or charge, prior to that of the Securities, on any
property or funds held or collected by it as Trustee, except that the
Trustee shall not be required (but may elect) to report such advances
52
if such advances so remaining unpaid aggregate not more than one-half
of one percentum of the principal amount of the Securities outstanding
on the date of such report;
(4) any change to the amount, interest rate and maturity date
of all other indebtedness owing by the Company (or by any other obligor
on the Securities) to the Trustee in its individual capacity, on the
date of such report, with a brief description of any property held as
collateral security therefor, except an indebtedness based upon a
creditor relationship arising in any manner described in Sections
613(b)(2), (3), (4) or (6);
(5) any change to the property and funds, if any, physically
in the possession of the Trustee as such on the date of such report;
(6) any additional issue of Securities which the Trustee has
not previously reported; and
(7) any action taken by the Trustee in the performance of its
duties hereunder a which it has not previously reported and which in
its opinion materially affects the Securities, except action in respect
of a default, notice of which, has been or is to be withheld by the
Trustee in accordance with Section 602.
(b) The Trustee shall transmit by mail to all Holders of
Securities a brief report with respect to the character and amount of any
advances (and if the Trustee elects so to state. the circumstances surrounding
the making thereof) made by the Trustee (as such) since the date of the last
report transmitted pursuant to Subsection (a) of this Section 703 (or if no such
report has yet been so transmitted, since the date of execution of this
instrument) for the reimbursement of which it claims or may claim a lien or
charge, prior to that of the Securities, on property or funds held or collected
by it as Trustee and which it has not previously reported pursuant to this
Subsection, except that the Trustee shall not be required (but may elect) to
report such advances if such advances remaining unpaid at any time aggregate
10% or less of the principal amount of the securities outstanding at such time,
such report to be transmitted within 90 days after such time.
(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each United States
national securities 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 United States national securities exchange.
SECTION 704. Reports
The Company and the Guarantor shall:
(1) file with the Trustee, within 30 days after the Guarantor
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 Guarantor
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
Guarantor is not required to file information, documents or reports
53
pursuant to either of said Sections and one or more series of the
Securities is listed on a United States national securities exchange,
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 Exchange Act in respect of a security listed and registered on a
United States national securities exchange as may be prescribed from
time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions and covenants
of this Indenture as may be required from time to time by such rules
and regulations; and
(3) transmit by mail to all Holders of Securities within 30
days after the filing thereof with the Trustee, such summaries of any
information, documents and reports required to be filed by the Company
pursuant to paragraphs (1) and (2) of this Section 704 as may be
required by rules and regulations prescribed from time to time by the
Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, SALE OR LEASE
SECTION 801. Company or Guarantor May Consolidate. Etc. Only on Certain
Terms
Nothing contained in this Indenture or in the Securities of
any series shall prevent the Company or the Guarantor from consolidating with or
merging into another corporation or corporations, or successive consolidations
or mergers or conveying, transferring, leasing or otherwise disposing of its
properties and assets substantially as an entirety to any person, provided that
(a) the successor entity expressly assumes all of the Company's applicable
obligations on the Securities or the Guarantor's applicable obligations under
the Guarantee, as the case may be, and (b) 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. In addition, each of the Company and the Guarantor may assign and
delegate all of its rights and obligations on the Securities of any series,
under this Indenture, on the Guarantee and all other documents, agreements and
instruments related thereto, as applicable, to any Person that owns all of the
ordinary shares of the Company or the Guarantor or to any Person that owns all
of the ordinary shares of a Person that owns all of the ordinary shares of the
Company or the Guarantor, and upon any such Person assuming such rights and
obligations the Company or the Guarantor shall be automatically released from
such obligations, provided that 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.
In the event that any such successor entity is organized under
the laws of or is managed or controlled or has a place of business in a
jurisdiction located outside of a Taxing Jurisdiction and withholding or
deduction is required by law for or on account of any present or future taxes,
54
duties, assessments or governmental charges of whatever nature imposed, levied,
collected, withheld or assessed by or within such jurisdiction or by or within
any political subdivision thereof or any authority therein or thereof having
power to tax, the successor entity shall pay to the relevant Holder of the
Securities of such series such Additional Amounts, under the same circumstances
and subject to the same limitations as are specified for in Section 1009 hereof,
but substituting for the applicable Taxing Jurisdiction in each place the name
of such jurisdiction. In addition, such successor entity shall be entitled to
effect an optional tax redemption under the same circumstances and subject to
the same limitations as are set forth in Section 1108 hereof, but substituting
for the applicable Taxing Jurisdiction in each place the name of the country
under the laws of which such successor entity is organized, managed and
controlled or has a place of business and substituting the date of such
succession for the date of original issuance of the Securities of such series.
SECTION 802. Successor Corporation to be Substituted
Upon any consolidation by the Company or the Guarantor with or
merger by the Company or the Guarantor into any other corporation or any
conveyance, transfer, lease or other disposition of the properties and assets of
the Company or the Guarantor substantially as an entirety in accordance with
Section 801, the successor corporation formed by such consolidation or into
which the Company or the Guarantor is merged or to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company or the Guarantor under this
Indenture with the same effect as if such successor corporation had been named
as the Company or the Guarantor herein, and thereafter the predecessor
corporation shall be relieved of all obligations and covenants under this
Indenture and the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures without Consent of Holders
Without the consent of any Holders, the Company, the Guarantor
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 company to the
Company or the Guarantor and the assumption by any such successor of
the covenants of the Company or the Guarantor herein and in the
Securities or any Guarantee;
(2) to add to the covenants of the Company or the Guarantor
for the benefit of the Holders of all or any series of Securities (and
if such covenants are to be for the benefit of less than all series of
Securities, stating that such covenants are expressly being included
solely for the benefit of such series) or to surrender any right or
power herein conferred upon the Company or the Guarantor;
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(3) to add any additional Events of Default (and if such
Events of Default are to be for the benefit of less than all series of
Securities, stating that such Events of Default are expressly being
included solely for the benefit of such series);
(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or facilitate
the issuance of Bearer Securities, registrable or not registrable as to
principal, and with or without interest coupons, or to facilitate the
issuance of Securities in uncertificated form, or to permit or
facilitate the issuance of extendible Securities;
(5) to change or eliminate any of the provisions of this
Indenture; provided that any such change or elimination shall become
effective only as to the Securities of any series created by such
supplemental indenture and Securities of any series subsequently
created to which such change or elimination is made applicable by the
subsequent supplemental indenture creating such series;
(6) to secure the Securities;
(7) to establish the form and terms of the Securities of any
series as permitted by Sections 201 and 301;
(8) 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 611(b);
(9) to provide for any rights of the Holders of Securities of
any series to require the repurchase of Securities of such series by
the Company; or
(10) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, to evidence the merger of the Company or the replacement of the
Trustee, or to make any other provisions with respect to matters or
questions arising under this Indenture; provided such action shall not
materially and adversely affect the interests of the Holders of
Securities of any series.
SECTION 902. Supplemental Indentures with Consent of Holders
With the consent of the Holders of a majority in aggregate
principal amount of the outstanding Securities of all series affected by such
supplemental indenture (voting as one class), by Act of said Holders delivered
to the Company and the Trustee, the Company, when authorized by or pursuant to a
Board Resolution, the Guarantor and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this indenture or
of modifying in any manner the rights of the Holders of Securities of such
series under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding Security
affected thereby,
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(1) change the Stated Maturity of the principal of, or any
installment of interest, if any, on, any Security, or reduce the
principal amount thereof or interest thereon (including Additional
Amounts) or any premium payable upon the redemption thereof, or reduce
the amount of the principal of an Original Issue Discount Security that
would be due and payable upon a declaration of acceleration of the
maturity thereof pursuant to Section 502, or change any Place of
Payment where, or the coin or currency in which, any Security or any
premium or the interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or
(2) reduce the percentage in principal amount of the
outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences provided for in this Indenture, or
(3) modify any of the provisions of this Section 902 or
Section 513, 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; provided, however, that this clause shall not be deemed to
require the consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in this Section
902, or the deletion of this proviso, in accordance with the
requirements of Sections 611(b) and 901(8).
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 902 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 or immunities under this Indenture or
otherwise.
SECTION 904. Effect of Supplemental Indentures
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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 shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act
Every supplemental indenture executed pursuant to this Article
shall, if so required by the Trust Indenture Act, 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. Premium, if any, 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,
premium, if any, and interest and Additional Amounts, if any, on the Securities
of that series in accordance with the terms of the Securities and this
Indenture. An installment of principal of or interest on the Securities of a
series shall be considered paid on the date it is due if the Trustee or Paying
Agent holds at 11:00 a.m. (New York City time in the case of payments in US
Dollars and London time in the case of payments in Pounds Sterling) on that date
money deposited by the Company in immediately available funds and designated
for, and sufficient to pay, the installment in full.
Neither the Company, the Guarantor, nor any agent of the
Company or the Guarantor will have any responsibility or liability for any
aspect relating to payments made or to be made by the Book-Entry Depositary to
DTC in respect of the Securities of a series or the Book-Entry Interests. None
of the Company, the Trustee, the Book-Entry Depositary or any agent of any of
the foregoing will have any responsibility or liability for any aspect relating
to payments made or to be made by DTC on account of a Participant's or Indirect
Participant's ownership of an interest in the Book-Entry Interests or for
maintaining, supervising or reviewing any records relating to a Participant's
interests in the Book-Entry Interests.
SECTION 1002. Maintenance of Office or Agency
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The Company will maintain (i) in the Borough of Manhattan, The
City of New York, an office or agency where Securities of any series may be
presented or surrendered for payment, and where notices and demands to or upon
the Company in respect of the Securities of such series and this Indenture may
be served and if definitive Registered Securities have been issued, an office or
agency of a Transfer Agent where Securities may be surrendered for registration
of transfer or exchange, and (ii) an office or agency of a Paying Agent where
the Securities may be paid in Luxembourg so long as the Securities are listed on
the Luxembourg Stock Exchange and the rules of such exchange so require. The
Company will give prompt written notice to the Trustee 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 or shall fall to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee, except that Bearer Securities of that series pursuant to Section 1001
may be presented at the place specified for the purpose pursuant to Section 301,
and the Company hereby appoints the Paying Agent as its agent to receive all
such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more
other offices or agencies (in or outside of such Place of Payment) where the
Securities of one or more series and any appurtenant coupons (subject to Section
1001) may be presented or surrendered for any or all of such purposes, and may
from time to time rescind such designations; provided, however that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in each Place of Payment for any
series of Securities for such purposes. The Company will give prompt written
notice to the Trustee of any such designation and any change in the location of
any such other office or agency. The Company will at all times maintain at least
one Paying Agent which is located outside the United Kingdom for each series of
Securities.
SECTION 1003. Money for Securities Payments to Be Held in Trust
If the Company shall at any time act as its own Paying Agent
with respect to any series of Securities, it will, on or before each due date of
the principal of, premium, if any, or interest, if any, 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, premium, if any, or
interest, if any, 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 Securities, it will, no later than 11:00 a.m. (New York City time
in the case of payments in US Dollars and London time in the case of payments in
Pounds Sterling) on or prior to each due date of the principal of, premium, if
any, or interest, if any, on any Securities of that series, deposit with a
Paying Agent a sum in immediately available funds sufficient to pay the
principal, premium, if any, or interest so becoming due, such sum to be held in
trust for the benefit of the Persons entitled to such principal, premium or
interest.
Any Paying Agent appointed pursuant to Section 304 herein
shall:
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(1) hold all sums held by it for the payment of the principal
of, premium, if any, or interest, if any, on Securities of that 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 that series) in the making of
any payment of principal of, premium, if any, or interest, if any, on
the Securities of that 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 the Company or by any Paying Agent
to the Trustee, the Company or such Paying Agent, as the case may be, 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, premium,
if any, or interest, if any, on any Security of any series and remaining
unclaimed for two years after such principal, premium, if any, 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 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.
SECTION 1004. Limitation on Liens
If this covenant shall be made applicable to the Securities of
a particular series as contemplated by Section 301 hereof, the Company and the
Guarantor shall not, and shall not cause or permit any Significant Subsidiary
to, issue, assume or guarantee or permit to exist any notes, bonds, debentures
or other similar evidences of indebtedness, in each case for money borrowed
("Debt"), secured by a Lien upon any property or assets (other than cash) of the
Company, the Guarantor or such Significant Subsidiary, as applicable, without
effectively providing that the outstanding Securities (together with, if the
Guarantor so determines, any other indebtedness or obligation then existing or
thereafter created ranking equally with such Securities) shall be secured
equally and ratably with (or prior to) such Debt so long as such Debt shall be
so secured. The foregoing restriction on Liens will not, however, apply to:
(a) Liens in existence on the date of original issue of such
Securities;
(b) (i) any Lien created or arising over any property which is
acquired, constructed or created by the Company, the Guarantor or any of its
Significant Subsidiaries, but only if (A) such Lien secures only principal
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amounts (not exceeding the cost of such acquisition, construction or creation)
raised for the purposes of such acquisition, construction or creation, together
with any costs, expenses, interest and fees incurred in relation thereto or a
guarantee given in respect thereof, (B) such Lien is created or arises on or
before 90 days after the completion of such acquisition, construction or
creation and (C) such Lien is confined solely to the property so acquired,
constructed or created; or (ii) any Lien to secure Debt of the Company, the
Guarantor or a Significant Subsidiary incurred in connection with a specifically
identifiable project where the Lien relates to and is confined to a property or
properties (including, without limitation, shares or other rights of ownership
in the entities which own such property or project) involved in such project and
acquired by the Company, the Guarantor or a Significant Subsidiary after the
date of original issue of the Securities of any series and the recourse of the
creditors in respect of such Debt is limited to any or all of such project and
property (including as aforesaid);
(c) any Lien securing amounts (in respect of, for the
avoidance of doubt, taxes, assessments or governmental charges or claims) that
are not more than 90 days overdue or otherwise being contested in good faith;
(d) (i) rights of financial institutions to offset credit
balances in connection with the operation of cash management programs
established for the benefit of the Company, the Guarantor or a Significant
Subsidiary or in connection with the issuance of letters of credit for the
benefit of the Company, the Guarantor and/or a Significant Subsidiary; (ii) any
Lien securing Debt of the Company, the Guarantor or a Significant Subsidiary
incurred in connection with the financing of accounts receivable; (iii) any Lien
incurred or deposits made in the ordinary course of business, including, but not
limited to, (A) any mechanics', materialmens', carriers', workmen's, vendors' or
other like Liens and (B) any Liens securing amounts in connection with workers'
compensation, unemployment insurance and other types of social security; (iv)
any Lien upon specific items of inventory or other goods and proceeds of the
Company, the Guarantor or a Significant Subsidiary securing obligations of the
Company, the Guarantor or a Significant Subsidiary in respect of bankers'
acceptances issued or created for the account of such person to facilitate the
purchase, shipment or storage of such inventory or other goods; (v) any Lien
incurred or deposits made securing the performance of tenders, bids, leases,
trade contracts (other than for borrowed money), statutory obligations, surety
bonds, appeal bonds, government contracts, performance bonds, return-of-money
bonds and other obligations of like nature incurred in the ordinary course of
business; (vi) any Lien created by the Company, the Guarantor or a Significant
Subsidiary under or in connection with or arising out of any pooling and
settlement agreements or pooling and settlement arrangements of the United
Kingdom electricity industry including, without limitation, the Pooling and
Settlement Agreement dated March 30, 1990, as amended, modified or supplemented
from time to time, or any transactions or arrangements entered into in
connection with hedging or management of risks relating to the electricity
industry in the United Kingdom; (vii) any Lien constituted by a right of set off
or right over a margin call account or any form of cash or cash collateral or
any similar arrangement for obligations incurred in respect of the hedging or
management of risks under transactions involving any currency or interest rate
swap, cap or collar arrangements, forward exchange transaction, option, warrant,
forward rate agreement, futures contract or other derivative instrument of any
kind; (viii) any Lien arising out of title retention or like provisions in
connection with the purchase of goods and equipment in the ordinary course of
business; and (ix) any Lien securing reimbursement obligations under letters of
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credit, guaranties and other forms of credit enhancement given in connection
with the purchase of goods and equipment in the ordinary course of business;
(e) Liens in favor of the Company, the Guarantor or a
Significant Subsidiary;
(f) (i) Liens on any property or assets acquired from a
corporation which is merged with or into the Company, the Guarantor or a
Significant Subsidiary, or any Liens on the property or assets of any
corporation or other entity existing at the time such corporation or other
entity becomes a Significant Subsidiary of the Guarantor and, in either such
case, is not created in anticipation of any such transaction (unless such Lien
is created to secure or provide for the payment of any part of the purchase
price of such corporation); (ii) any Lien on any property or assets existing at
the time of acquisition thereof and which is not created in anticipation of such
acquisition (unless such Lien was created to secure or provide for the payment
of any part of the purchase price of such property or assets); and (iii) any
Lien created or outstanding on or over any asset of any Person which becomes a
Significant Subsidiary on or after the date of the issuance of such Securities
when such Lien is created prior to the date on which such Person becomes a
Significant Subsidiary;
(g) (i) Liens required by any contract or statute in order to
permit the Company, the Guarantor or a Significant Subsidiary to perform any
contract or subcontract made by it with or at the request of a governmental
entity or any department, agency or instrumentality thereof, or to secure
partial, progress, advance or any other payments by the Company, the Guarantor
or a Significant Subsidiary to such governmental unit pursuant to the provisions
of any contract or statute; and (ii) any Lien securing industrial revenue,
development or similar bonds issued by or for the benefit of the Company, the
Guarantor or a Significant Subsidiary, provided that such industrial revenue,
development or similar bonds are nonrecourse to the Company, the Guarantor or
such Significant Subsidiary;
(h) (i) any Lien which arises pursuant to any order of
attachment, distraint or similar legal process arising in connection with court
proceedings and any Lien which secures the reimbursement obligation for any bond
obtained in connection with an appeal taken in any court proceeding, so long as
the execution or other enforcement of such Lien arising pursuant to such legal
process is effectively stayed and the claims secured thereby are being contested
in good faith and, if appropriate, by appropriate legal proceedings, or any Lien
in favor of a plaintiff or defendant in any action before a court or tribunal as
security for costs and/or other expenses; or (ii) any Lien arising by operation
of law or by order of a court or tribunal or any Lien arising by an agreement of
similar effect, including, without limitation, judgment liens; or
(i) any extension, renewal or replacement (or successive
extensions, renewals or replacements), as a whole or in part, of any Liens
referred to in the foregoing clauses, for amounts not exceeding the principal
amount of the Debt secured by the Lien so extended, renewed or replaced,
provided that such extension, renewal or replacement Lien is limited to all or a
part of the same property or assets that were covered by the Lien extended,
renewed or replaced (plus improvements on such property or assets).
Notwithstanding the foregoing, the Company, the Guarantor or a
Significant Subsidiary may create or permit to subsist Liens over any property
62
or assets, so long as the aggregate amount of Debt secured by all such Liens
(excluding therefrom the amount of Debt secured by Liens set forth in clauses
(a) through (i), inclusive, above) does not exceed 10% of Consolidated Net
Tangible Assets.
Nothing contained in this Indenture in any way restricts or
prevents the Company or any Subsidiary from incurring any Debt.
SECTION 1005. Limitation on Sale and Lease-Back Transactions
If this covenant shall be made applicable to the Securities of
a particular series as contemplated by Section 301 hereof, each of the Company
and the Guarantor covenants and agrees that so long as any Securities of such
series remains outstanding, each will not, and the Guarantor will not cause or
permit any Significant Subsidiary to, enter into any arrangement with any person
(other than the Company, the Guarantor or a Significant Subsidiary), providing
for the leasing by the Company, the Guarantor or a Significant Subsidiary of any
assets which have been or are to be sold or transferred by the Company, the
Guarantor or such Significant Subsidiary to such person (a "Sale and Lease-Back
Transaction") unless; (i) such transaction involves a lease for a temporary
period not to exceed three years; (ii) such transaction is between the Company,
the Guarantor or a Significant Subsidiary and an affiliate of the Guarantor;
(iii) the Company or the Guarantor would be entitled to incur Debt secured by a
Lien on the assets or property involved in such transaction at least equal in
amount to the Attributable Debt with respect to such Sale and Lease-Back
Transaction, without equally and ratably securing the Securities, pursuant to
the limitation on Liens described above other than pursuant to the penultimate
paragraph thereof; (iv) such transaction is entered into within 90 days after
the initial acquisition by the Company or the Guarantor of the property subject
to such transaction; (v) after giving effect thereto, the aggregate amount of
all Attributable Debt with respect to all such Sale and Lease-Back Transactions
does not exceed 10% of Consolidated Net Tangible Assets; or (vi) the Company,
the Guarantor or a Significant Subsidiary within the twelve months preceding the
sale or transfer or the twelve months following the sale or transfer, regardless
of whether such sale or transfer may have been made by the Company, the
Guarantor or such Significant Subsidiary, applies in the case of a sale or
transfer for cash, an amount equal to the net proceeds thereof and, in the case
of a sale or transfer otherwise than for cash, an amount equal to the fair value
of the assets so leased at the time of entering into such arrangement (as
determined by the Board of Directors of the Company, the Guarantor or such
Significant Subsidiary), (a) to the retirement of debt, incurred or assumed by
the Company, the Guarantor or a Significant Subsidiary, which by its terms
matures at, or is extendible or renewable at the option of the obligor to, a
date more than twelve months after the date of incurring, assuming or
guaranteeing such debt or (b) to investment in any assets of the Company, the
Guarantor or any Significant Subsidiary.
SECTION 1006. Statement by Officers as to Default
The Guarantor will deliver to the Trustee within 120 days
after the end of each fiscal year of the Guarantor a certificate from the
principal executive, financial or accounting officer of the Guarantor, stating
that in the course of the performance by such signer of his duties as an officer
of the Guarantor he would normally have knowledge of any default by the Company
or the Guarantor in the performance and observance of any of the covenants
63
contained in Sections 1001 to 1008, stating whether or not he has knowledge of
any such default without regard to any period of grace or requirement of notice
and, if so, specifying each such default of which such signer has knowledge and
the nature thereof.
SECTION 1007. Waiver of Certain Covenants
The Company or the Guarantor may omit in any particular
instance to comply with any term, provision or condition set forth in this
Indenture with respect to the Securities of any series if before the time for
such compliance the Holders of at least a majority in aggregate 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 term, provision or condition, provided that no such waiver shall without
the consent of each Holder (a) change the Stated Maturity upon which the
principal of, or the premium, if any, or the interest on the Securities is due
and payable, (b) reduce the principal amount thereof, the premium, if any,
thereon or the rate of interest thereon, (c) change any obligation of the
Company to pay Additional Amounts, (d) change any Place of Payment or the
currency in which the principal of the Securities or any premium or the interest
thereon is payable, (e) 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 (f) reduce the percentage in
principal amount of the outstanding Securities of any series, the consent of
whose Holders is required for any waiver of compliance with certain provisions
of the Indenture or certain defaults thereunder and their consequences provided
for in the Indenture. The Securities owned by the Company, the Guarantor or any
of its Affiliates shall be deemed not to be outstanding for, among other
purposes, consenting to any such waiver.
SECTION 1008. Further Assurances
The Company, the Guarantor and the Trustee shall execute and
deliver all such other documents, instruments and agreements and do all such
other acts and things as may be reasonably required to enable the Trustee to
exercise and enforce its rights under this Indenture and under the documents,
instruments and agreements required under this Indenture and to carry out the
intent of this Indenture.
SECTION 1009. Payment of Additional Amounts
Unless the Securities of a particular series otherwise
provide, all payments of principal and interest (including payments of discount
and premium, if any) with respect to the Securities of a particular series shall
be made free and clear of, and without withholding or deduction for or on
account of, any present or future taxes, duties, assessments or governmental
charges of whatever nature imposed, levied, collected, withheld or assessed by
or within a Taxing Jurisdiction or by or within any political subdivision
thereof or any authority therein or thereof having power to tax ("Gross-Up
Taxes"), unless such withholding or deduction is required by law. In the event
of any such withholding or deduction, the Company or the Guarantor, as the case
may be, shall pay to the Holder of such Securities such additional amounts in
respect of such withholding or deduction as are necessary so that such Holder
receives the amount that would have been due to such Holder in the absence of
such withholding or deduction ("Additional Amounts"), except that no such
Additional Amounts shall be payable:
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(a) to, or to a Person on behalf of, a Holder who is liable
for such Gross-Up Taxes with respect to the Securities or any Guarantee, by
reason of such Holder having some connection with the relevant Taxing
Jurisdiction (including being a citizen or resident or national of, or carrying
on a business or maintaining a permanent establishment in, or being physically
present in, such Taxing Jurisdiction) other than the mere holding of a Security
or the receipt of principal and interest (including payments of discount and
premium, if any) in respect thereof or in respect of the Guarantee; or
(b) to, or to a Person on behalf of, a Holder who presents a
Security (where presentation is required) for payment more than 30 days after
the Relevant Date except to the extent that such Holder would have been entitled
to such Additional Amounts on presenting such Security for payment on the last
day of such period of 30 days;
(c) to, or to a Person on behalf of, a Holder who presents a
Security (where presentation is required) in a Taxing Jurisdiction or, so long
as the Securities of such series are listed on the Luxembourg Stock Exchange, in
Luxembourg;
(d) to, or to a Person on behalf of, a Holder who would not be
liable or subject to the withholding or deduction by making a declaration of
non-residence or similar claim for exemption to the relevant tax authority; or
(e) to, or to a Person on behalf of, a Holder of a Registered
Security that is not a Global Security issued pursuant to the request of any
beneficial owner of interests in such Securities (an "Optional Definitive
Security Request") during the continuance of an Event of Default if such Holder
(or any predecessor Holder) was an owner requesting that such Registered
Securities be so issued.
Such Additional Amounts will also not be payable where, had
the beneficial owner of the Security (or any interest therein) been the Holder
of the Security, he would not have been entitled to payment of Additional
Amounts by reason of any one or more of clauses (a) through (e) above. If the
Company or the Guarantor, as applicable, shall determine that Additional Amounts
will not be payable for any of the foregoing reasons, the Company or the
Guarantor, as applicable, will inform such Holder promptly after making such
determination setting forth the reason(s) therefor.
Reference in this Indenture or any Securities to principal,
interest, discount or premium in respect of the Securities (or any payments
pursuant to any Guarantee) shall be deemed also to refer to any Additional
Amounts which may be payable as set forth in this Indenture or in the
Securities.
At least 10 Business Days prior to the first Interest Payment
Date (and at least 10 Business Days prior to each succeeding Interest Payment
Date if there has been any change with respect to the matters set forth in the
below-mentioned Officers' Certificate), the Company will furnish to the Trustee
and any Paying Agent an Officers' Certificate instructing the Trustee and any
Paying Agent whether payments of principal of, or premium, if any, or interest
on, the Securities due on such Interest Payment Date shall be without deduction
65
or withholding for or on account of any Gross-Up Taxes. If any such deduction or
withholding shall be required, prior to such Interest Payment Date the Company
will furnish the Trustee and any Paying Agent with an Officers' Certificate
which specifies the amount, if any, required to be withheld on such payment to
Holders and certifies that the Company shall pay such withholding or deduction.
The Company covenants to indemnify the Trustee and any Paying Agent for, and to
hold the Trustee and any Paying Agent harmless against, any loss, liability or
expense reasonably incurred without negligence, willful misconduct or bad faith
on its part, arising out of or in connection with actions taken or omitted by
the Trustee or any Paying Agent in reliance on any Officers' Certificate
furnished pursuant to this paragraph. Any Officers' Certificate required by this
Section 1009 to be provided to the Trustee and any Paying Agent shall be deemed
to be duly provided if telecopied to the Trustee and such Paying Agent.
The Company shall furnish to the Trustee the official receipts
(or a certified copy of the official receipts) evidencing payment of Gross-Up
Taxes. Copies of such receipts shall be made available to the Holders of the
Securities upon request.
SECTION 1010. Copies Available to Holders
Copies of this Indenture shall be available for inspection by
the Holders on a Business Day during normal business hours at the principal
office of the Company and at the Corporate Trust Office. In addition, if the
Securities of any 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, copies of this Indenture, the Deposit
Agreement, the Letter of Representations, the memorandum and articles of
association of the Company and the most recent publicly available annual report
of the Guarantor shall be made available for inspection by the Holders of such
Securities on a Business Day during normal business hours at the offices of the
paying agents and at the office of the listing agent required to be maintained
by such exchange for so long as the Securities of such series are outstanding
and are listed on such stock exchange.
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 in or contemplated by Section 301 for Securities of any
series) in accordance with this Article Eleven.
SECTION 1102. Election to Redeem: Notice to Trustee
The election of the Company to redeem any Securities shall be
authorized by a Board Resolution and evidenced by an Officers' Certificate. In
case of any redemption at the election of the Company of less than all the
Securities of any series, the Company shall, at least 45 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and of
the principal amount of Securities of such series to be redeemed. In the case of
any redemption of Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture, or pursuant to an election by the Company which is subject to a
condition specified in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction or condition.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed
If less than all the Securities of any series are to be
redeemed, the particular securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series not previously called for redemption, by such method
as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions equal to the minimum authorized
denomination for Securities of that series (or any integral multiple thereof) of
the principal amount of Securities of such series or of a denomination larger
than the minimum authorized denomination for Securities of that series.
Securities shall be excluded from eligibility for selection
for redemption if they are identified by certificate number in a written
statement signed by an authorized officer of the Company and delivered to the
Security Registrar at least 30 days prior to the Redemption Date as being owned
of record and beneficially by, and not pledged or hypothecated by either (a) the
Company or (b) an entity specifically identified in such written statement which
is an Affiliate of the Company.
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 in a supplemental indenture with
respect to a series of Securities, notice of redemption shall be given not less
than 30 days nor more than 60 days prior to the Redemption Date to each Holder
of Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all 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,
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(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after
said date,
(5) the place or places where such Securities 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.
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 Principal 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 (except
if the Redemption Date shall be an Interest Payment Date) accrued interest on,
all the Securities which are to be redeemed on that date (to the extent that
such amounts are not already on deposit at such time in accordance with the
provisions of Sections 401, 403 or 1007).
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 and unpaid interest) such Securities shall cease to bear interest. Upon
surrender of any such Security for redemption in accordance with said notice,
such Security shall be paid by the Company at the Redemption Price, together
with accrued and unpaid interest to the Redemption Date; provided, however, that
installments of interest 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, and in the case of Registered Securities, registered as
such at the close of business on the relevant Record Dates according to their
terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
SECTION 1107. Securities Redeemed in Part
Any Security (including any Global 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 upon written direction shall
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authenticate and deliver to the Holder of such Security without service charge,
a new Security or Securities of the same series, 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; provided, that if a Global Security is so surrendered, the new
Global Security shall be in a denomination equal to the unredeemed portion of
the principal of the Global Security so surrendered.
SECTION 1108. Optional Redemption in the Event of Chance in Taxing Jurisdic-
tion Tax Treatment
The Securities of any series may be redeemed at the election
of the Company, as a whole, but not in part, by the giving of notice as provided
in Section 1104, at a price equal to the outstanding principal amount thereof,
together with Additional Amounts, if any, and accrued interest, if any, to the
Redemption Date, if (a) the Company or the Guarantor satisfies the Trustee that
it has or will become obligated to pay Additional Amounts on the Securities of
such series, as a result of either (x) any change in, or amendment to, the laws
or regulations of a Taxing Jurisdiction, or any change in the application or
interpretation of such laws or regulations, which change or amendment becomes
effective (subject to Section 801) on or after the date of original issuance of
the Securities of such series, or (y) the issuance of definitive Registered
Securities as the result of (i) DTC having notified the Company and the
Book-Entry Depositary that it is unable or unwilling to continue to hold the
Book-Entry Interests or at any time ceases to be a "clearing agency" registered
as such under the Exchange Act and, in either case, a successor is not appointed
by the Company within 120 days, (ii) the Book-Entry Depositary having notified
the Company that it is unwilling or unable to continue as Book-Entry Depositary
with respect to the Global Securities of such series and a successor Book-Entry
Depositary is not appointed within 120 days or (iii) an Optional Definitive
Security Request and (b) such obligation cannot be avoided by the Company or the
Guarantor taking reasonable measures available to it; provided, however, that no
such notice of redemption shall be given earlier than 90 days prior to the
earliest date on which the Company or the Guarantor would be obligated to pay
such Additional Amounts were a payment in respect of the Securities then due.
Prior to the publication of any notice of redemption of such Securities pursuant
to this Indenture, the Company or the Guarantor will deliver to the Trustee an
Officers' Certificate stating that the obligation to pay such Additional Amounts
cannot be avoided by the Company or the Guarantor taking reasonable measures
available to it, and the Trustee shall accept such certificate as sufficient
evidence of the condition precedent set forth in clause (b) above, and such
certificate shall be conclusive and binding on the Holders of the Securities of
such series.
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.
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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 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
In lieu of making all or any part of any mandatory sinking
fund payment with respect to any series of Securities in cash, the Company may
at its option (a) deliver to the Trustee Securities of such series theretofore
purchased or otherwise acquired (except upon redemption pursuant to the
mandatory sinking fund) by the Company or receive credit for Securities of such
series (not previously so credited) theretofore purchased or otherwise acquired
(except as aforesaid) by the Company and delivered to the Trustee for
cancellation pursuant to Section 310, (b) receive credit for optional sinking
fund payments (not previously so credited) made pursuant to this Section 1202,
or (c) receive credit for Securities of such series (not previously so credited)
redeemed by the Company through any optional redemption provision contained in
the terms of such series. Securities so delivered or credited shall be received
or credited by the Trustee at the sinking fund Redemption Price specified in
such Securities.
SECTION 1203. Redemption of Securities for Sinking Fund
Not less than 30 days prior to each sinking fund payment date
for any series of Securities, the Company will deliver to the Trustee an
Officers' Certificate specifying (a) the amount of the next ensuing sinking fund
payment for that series pursuant to the terms of that series, (b) whether or not
the Company intends to exercise its right, if any, to make an optional sinking
fund payment with respect to such series on the next ensuing sinking fund
payment date and, if so, the amount of such optional sinking fund payment, and
(c) 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. Such written statement
shall be irrevocable and upon its receipt by the Trustee the Company shall
become unconditionally obligated to make all the cash payments or payments
therein referred to, if any, on or before the next succeeding sinking fund
payment date. Failure of the Company, on or before any such 30th day, to deliver
such written statement and Securities specified in this paragraph, if any, shall
not constitute a default but shall constitute, on and as of such date, the
irrevocable election of the Company (i) that the mandatory sinking fund payment
for such series due on the next succeeding sinking fund payment date shall be
paid entirely in cash without the option to deliver or credit Securities of such
series in respect therefor and (ii) that the Company will make no optional
sinking fund payment with respect to such series as provided in this Section
1203.
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
70
given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 1105, 1106 and 1107.
The Trustee shall not redeem or cause to be redeemed any
Security of a series with sinking fund moneys or mail any notice of redemption
of Securities of such series by operation of the sinking fund during the
continuance of a default in payment of interest with respect to Securities of
that series or an Event of Default with respect to the Securities of that series
except that, where the mailing of notice of redemption of any Securities shall
theretofore have been made, the Trustee shall redeem or cause to be redeemed
such Securities, provided that it shall have received from the Company a sum
sufficient for such redemption. Except as aforesaid, any moneys in the sinking
fund for such series at the time when any such default or Event of Default,
shall occur, and any moneys thereafter paid into the sinking fund, shall, during
the continuance of such default or Event of Default, be deemed to have been
collected under Article Five and held for the payment of all such Securities. In
case such Event of Default shall have been waived as provided in Section 513 or
the default or Event of Default cured on or before the 30th day preceding the
sinking fund payment date, such moneys shall thereafter be applied on the next
succeeding sinking fund payment date in accordance with this Section 1203 to the
redemption of such Securities.
ARTICLE THIRTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1301. Purposes of Meetings
A meeting of the Holders may be called at any time from time
to time pursuant to this Article Thirteen for any of the following purposes:
(1) to give any notice to the Company or to the Trustee, or to
consent to the waiving of any Default hereunder and its consequence, or
to take any other action authorized to be taken by Holders pursuant to
Article Nine hereof;
(2) to remove the Trustee and appoint a successor trustee
pursuant to Article Six hereof; or
(3) to consent to the execution of an indenture supplemental
hereto pursuant to Section 902 hereof.
SECTION 1302. Place of Meetings
(a) The Trustee may at any time (upon not less than 21 days'
notice) call a meeting of Holders to be held at such time and at such place in
the location determined by the Trustee pursuant to Section 1302 hereof. Notice
of every meeting of Holders, 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 mailed to each Holder and published in the manner contemplated by
Section 106 hereof.
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(b) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 25% in aggregate principal amount of the
Securities then outstanding, shall have requested the Trustee to call a meeting
of the Holders, 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 giving of the notice of such meeting within 20 days after receipt of such
request, then the Company or the Holders in the amount above specified may
determine the time (not less than 21 days after notice is given) and the place
in the location determined by the Company or the Holders pursuant to this
Section 1302 for such meeting and may call such meeting to take any action
authorized in Section 1301 hereof by giving notice thereof as provided in
Section 1302(a) hereof.
SECTION 1303. Voting at Meetings
To be entitled to vote at any meeting of Holders, a Person
shall be (i) a Holder or (ii) a Person appointed by an instrument in writing as
proxy for a Holder or Holders by such Holder or Holders. The only Persons who
shall be entitled to be present or to speak at any meeting of Holders shall be
the Persons so 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. Voting Rights, Conduct and Adjournment
(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 in regard to proof of the holding of Securities of a
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 of a series shall be proved in the manner specified in Article Two
hereof and the appointment of any proxy shall be proved in such manner as is
deemed appropriate by the Trustee or by having the signature of the person
executing the proxy witnessed or guaranteed by any bank, banker or trust company
customarily authorized to certify to the holding of a security such as a Global
Note.
(b) At any meeting of Holders, the representatives of Persons
holding or representing Securities of a series in an aggregate principal amount
sufficient under the appropriate provision of this Indenture to take action upon
the business for the transaction of which such meeting was called shall
constitute a quorum. Except as otherwise provided with respect to any required
aggregate principal amount of Securities of a series required for the taking of
any action pursuant to Article Nine hereof, in no event shall less than 75% of
the votes given by Persons holding or representing Securities of such series at
any meeting of Holders be sufficient to approve an action. Any meetings of
Holders duly called pursuant to Section 1303 hereof may be adjourned from time
to time by vote of the Holders (or proxies for the Holders) of a majority of the
Securities of a series represented at the meeting and entitled to vote, whether
or not a quorum shall be present; and the meeting may be held as so adjourned
without further notice. No action at a meeting of Holders shall be effective
72
unless approved by Persons holding or representing Securities of a series in the
aggregate principal amount required by the provision of this Indenture pursuant
to which such action is being taken.
(c) At any meeting of Holders, each Holder or proxy shall be
entitled to one vote for each $1,000 principal amount of outstanding Securities
of a series held or represented.
SECTION 1305. Revocation of Consent by Holders
At any time prior to (but not after) the evidencing to the
Trustee of the taking of any action at a meeting of Holders by the Holders of
the percentage in aggregate principal amount of the Securities specified in this
Indenture in connection with such action, any Holder of a Security the serial
number of which is included in the Securities the Holders of which have
consented to such action may, by filing written notice with the Trustee at its
principal Corporate Trust Office and upon proof of holding as provided herein,
revoke such consent so far as concerns such Securities. Except as aforesaid any
such consent given by the Holder of any Securities shall be conclusive and
binding upon such Holder and upon all future Holders and owners of such
Securities and of any Securities issued in exchange therefore, in lieu thereof
or upon transfer thereof, irrespective of whether or not any notation in regard
thereto is made upon such Securities. Any action taken by the Holders of the
percentage in aggregate principal amount of the Holders specified in this
Indenture in connection with such action shall be conclusively binding upon the
Company, the Trustee and the Holders of all the Securities.
ARTICLE FOURTEEN
GUARANTEE OF SECURITIES
SECTION 1401. Applicability of Article; Unconditional Guarantee
If, pursuant to Section 301, provision is made for the
Guarantee of the Securities of any series by the Guarantor, then the provisions
of this Article Fourteen, with such modifications thereto as may be specified
pursuant to Section 301 with respect to any Securities, shall apply to such
Securities. The Guarantor hereby fully and unconditionally guarantees to each
Holder of a Security of each series authenticated and delivered by the Trustee
the due and punctual payment of the principal of (including any amount due in
respect of original issue discount), premium, if any, and interest in respect of
such Security (and any Additional Amounts payable in respect thereof), and the
due and punctual payment of any sinking fund payments provided for pursuant to
terms of such Security, when and as the same shall become due and payable,
whether at the Stated Maturity, by declaration of acceleration, call for
redemption or otherwise, in accordance with the terms of such Security and of
this Indenture, regardless of any defense, right of set-off or counterclaim that
the Guarantor may have or assert, except, subject to the following paragraph,
the defense of payment. The Guarantor's obligation to make a payment under this
Article Fourteen may be satisfied by direct payment of the required amounts by
the Guarantor to the Holders or by causing the Company to pay such amounts to
the Holders.
To the extent permitted under applicable law, if any Holder or
the Trustee is required by a final non-appealable judgment of any court or
otherwise to return to either the Company or the Guarantor, or any custodian,
trustee, liquidator or other similar official acting in relation to the Company
73
or the Guarantor, any amount paid by either the Company or the Guarantor to such
Holder or the Trustee, any Guarantee, to the extent theretofore discharged,
shall be reinstated in full force and effect. To the extent permitted under
applicable law, the Guarantor further agrees that, as between the Guarantor, on
the one hand. and the Holders and the Trustee, on the other hand, (x) the
maturity of the obligations guaranteed hereby may be accelerated as provided in
Article Five for the purpose of any Guarantee, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
obligations guaranteed hereby, and (y) in the event of any acceleration of such
obligations as provided in Article Five, such obligations (whether or not due
and payable) shall forthwith become due and payable by the Guarantor for the
purpose of any Guarantee.
The Company agrees that the proceeds from the issuance of the
Securities of any series shall be loaned, directly or indirectly, to the
Guarantor or any wholly-owned Subsidiary and that any such loan shall be
evidenced by promissory notes. The Company agrees that any payment to the
Holders by the Guarantor under the Guarantee with respect to the Securities of
any series shall constitute an indirect payment by the Guarantor on, and shall
reduce the principal of and premium, if any, and interest on, such promissory
notes.
No past, present or future stockholder, officer, director,
employee or incorporator of the Guarantor shall have any personal liability
under the Guarantee set forth in this Section 1401 by reason of his or its
status as such stockholder, officer, director, employee or incorporator.
The Guarantee set forth in this Section 1401 shall not be
valid or become obligatory for any purpose with respect to a Security until the
certificate of authentication on such Security shall have been executed by or on
behalf of the Trustee by manual signature.
SECTION 1402. Waiver of Notice and Demand
The Guarantor hereby waives notice of acceptance of this
guarantee and of any liability to which it applies or may apply, presentment,
demand for payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first against the
Company, the Trustee or any other Person before proceeding against the
Guarantor, protest, notice of nonpayment, notice of dishonor, notice of
redemption and all other notices and demands.
SECTION 1403. Guarantor Obligations Not Affected
The obligations, covenants, agreements and duties of the
Guarantor under this Article Fourteen shall in no way be affected or impaired by
reason of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise,
of the performance or observance by the Company of any express or implied
agreement, covenant, term or condition relating to the Securities to be
performed or observed by the Company;
74
(b) the extension of time for the payment by the Company of
all or any portion of the interest on the Securities, the Redemption Price of
any other sums payable under the terms of the Securities or the extension of
time for the performance of any other obligation under, arising out of, or in
connection with, the Securities;
(c) any failure, omission, delay or lack of diligence on the
part of the Holders to enforce, assert or exercise any right, privilege, power
or remedy conferred on the Holders pursuant to the terms of the Securities, or
any action on the part of the Company granting indulgence or extension of any
kind;
(d) the voluntary or involuntary liquidation, dissolution,
receivership, insolvency, bankruptcy, assignment for the benefit of creditors,
reorganization, arrangement, composition or readjustment of debt of, or other
similar proceedings affecting, the Company or any of the assets of the Company;
(e) any invalidity of, or defect or deficiency in, the
Securities;
(f) the settlement or compromise of any obligation guaranteed
hereby or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor (other than,
subject to Section 1401, payment of the underlying obligation), it being the
intent of this Article Fourteen that the obligations of the Guarantor hereunder
shall be absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or obtain the
consent of, the Guarantor with respect to the happening of any of the foregoing.
SECTION 1404. Execution of Guarantee
To evidence its guarantee to the Holders specified in Section
1401, the Guarantor hereby agrees to execute the notation of the Guarantee in
substantially the form set forth in Section 204 to be endorsed on each Security
authenticated and delivered by the Trustee. The Guarantor hereby agrees that its
Guarantee set forth in Section 1401 shall remain in full force and effect
notwithstanding any failure to endorse on each Security a notation of such
Guarantee. Each such notation of the Guarantee shall be signed on behalf of the
Guarantor, by a director or officer, prior to the authentication of the Security
on which it is endorsed, and the delivery of such Security by the Trustee, after
the due authentication thereof by the Trustee hereunder, shall constitute due
delivery of the Guarantee on behalf of the Guarantor. Such signature upon the
notation of the Guarantee may be a manual or facsimile signature of any present,
past or future such director or officer and may be imprinted or otherwise
reproduced below the notation of the Guarantee, and in case any such director or
officer who shall have signed the notation of the Guarantee shall cease to be
such director or officer before the Security on which such notation is endorsed
shall have been authenticated and delivered by the Trustee or disposed of by the
Company, such Security nevertheless may be authenticated and delivered or
disposed of as though the person who signed the notation of the Guarantee had
not ceased to be such director or officer of the Guarantor.
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SECTION 1405. Subrogation
The Guarantor hereby waives all rights (if any) of subrogation
against the Company in respect of any amounts paid to the Holders by the
Guarantor under this Article Fourteen with respect to any series of Securities.
Furthermore, the Guarantor shall not (except to the extent required by mandatory
provisions of law) be entitled to enforce or exercise any rights which it may
acquire by way of any indemnity, reimbursement or other agreement, in all cases
as a result of payment under this Article Fourteen with respect to a series of
Securities if, at any time of such payment, any amounts are due and unpaid under
such series of Securities. If any amount shall be paid to the Guarantor in
violation of the preceding sentence, the Guarantor agrees to hold such amount in
trust for the Holders and to pay over such amount to the Holders.
SECTION 1406. Independent Obligations
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Company with respect to the Securities and
that the Guarantor shall be liable as principal and as debtor hereunder to make
payments pursuant to the terms of the Securities notwithstanding the occurrence
of any event referred to in subsections (a) through (g), inclusive, of Section
1403 hereof.
ARTICLE FIFTEEN
MISCELLANEOUS
SECTION 1501. Consent to Jurisdiction: Appointment of Agent to Accept
Service of Process: Etc.
(a) Each of the Company and the Guarantor irrevocably consents
and agrees, for the benefit of the Holders from time to time of the Securities
and the Trustee, that any civil legal action, suit or proceeding against it with
respect to its obligations, liabilities or any other matter arising out of or in
connection with this Indenture, the Securities or any Guarantee may be brought
in the Supreme Court of New York, New York County or the United States District
Court for the Southern District of New York and any appellate court from either
thereof and, until amounts due and to become due in respect of the Securities or
any Guarantee have been paid, hereby irrevocably consents and submits to the
non-exclusive jurisdiction of each such court in personam, generally and
unconditionally with respect to any legal action, suit or proceeding for itself
and in respect of its properties, assets and revenues and agrees to file such
consents with such authorities as may be required to irrevocably evidence such
agreement.
(b) Each of the Company and the Guarantor has irrevocably
designated, appointed, and empowered CT Corporation System, acting through its
office at 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as its designee,
appointee and agent to receive, accept and acknowledge for and on its behalf,
and its properties, assets and revenues, service of any and all legal process,
summonses, notices and documents which may be served in any legal action, suit
or proceeding brought against the Company or the Guarantor in any United States
or state court. If for any reason such designee, appointee and agent hereunder
shall cease to be available to act as such, each of the Company and the
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Guarantor agrees to designate a new designee, appointee and agent in the Borough
of Manhattan, The City of New York on the terms and for the purposes of this
Section 1501 satisfactory to the Trustee. Each of the Company and the Guarantor
further hereby irrevocably consents and agrees to the service of any and all
legal process, summonses, notices and documents in any legal action, suit or
proceeding against the Company or the Guarantor by serving a copy thereof upon
the relevant agent for service of process referred to in this Section 1501
(whether or not the appointment of such agent shall for any reason prove to be
ineffective or such agent shall accept or acknowledge such service) or by
mailing copies thereof by registered or certified air mail, postage prepaid, to
each of the Company or the Guarantor at its address specified in or designated
pursuant to this Indenture. Each of the Company and the Guarantor agrees that
the failure of any such designee, appointee and agent to give any notice of such
service to it shall not impair or affect in any way the validity of such service
or any judgment rendered in any action or proceeding based thereon. Nothing
herein shall in any way be deemed to limit the ability of the holders of the
Securities and the Trustee, to serve any such legal process, summons, notices
and documents in any other manner permitted by applicable law or to obtain
jurisdiction over the Company or the Guarantor or to bring legal actions, suits
or proceedings against the Company or the Guarantor in such other jurisdictions,
and in such manner, as may be permitted by applicable law. Each of the Company
and the Guarantor irrevocably and unconditionally waives, to the fullest extent
permitted by law, any objection which it may now or hereafter have to the laying
of venue of any of the aforesaid actions, suits or proceedings arising out of or
in connection with this Indenture brought in the Supreme Court of New York, New
York County or the United States District Court for the Southern District of New
York and any appellate court from either thereof and hereby further irrevocably
and unconditionally waives and agrees not to plead or claim in any such court
that any such action, suit or proceeding brought in any such court has been
brought in an inconvenient forum.
(c) To the extent that the Company or the Guarantor may in any
jurisdiction claim for itself or its assets immunity (to the extent such
immunity may now or hereafter exist, whether on the grounds of sovereign
immunity or otherwise) from suit, execution, attachment (whether in aid of
execution, before judgment or otherwise) or other legal process (whether through
service or notice or otherwise), and to the extent that in any such jurisdiction
there may be attributed to itself or its assets such immunity (whether or not
claimed), the Company and the Guarantor irrevocably agrees with respect to any
matter arising under the Indenture for the benefit of the Holders from time to
time of the Securities, not to claim, and irrevocably waives, such immunity to
the full extent permitted by the laws of such jurisdiction.
(d) If for the purpose of obtaining a judgment or order in any
court it is necessary to convert a sum due hereunder to the holder of any
Security from U.S. dollars into another currency, each of the Company and the
Guarantor agrees, and each holder by holding such Security will be deemed to
have agreed, to the fullest extent that they may effectively do so, that the
rate of exchange used shall be that at which in accordance with normal banking
procedures such Holder could purchase U.S. dollars with such other currency in
The City of New York on the Business Day preceding the day on which final
judgment is given.
(e) The obligations of the Company and the Guarantor in
respect of any sum payable by it to the holder of a Security shall,
notwithstanding any judgment or order in a currency (the "judgment currency")
other than U.S. dollars, be discharged only to the extent that on the Business
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Day following receipt by the Holder of such security of any sum, adjudged to be
so due in the judgment currency, the Holder of such Security may in accordance
with normal banking procedures purchase U.S. dollars with the judgment currency;
if the amount of U.S. dollars so purchased is less than the sum originally due
to the holder of such Security in the judgment currency (determined in the
manner set forth in the preceding paragraph), each of the Company and the
Guarantor agrees, as a separate obligation and notwithstanding any such
judgment, to indemnify the Holder of such Security against such loss, and if the
amount of the U.S. dollars so purchased exceeds the sum originally due to the
Holder of such Security, such Holder agrees to remit to the Company or the
Guarantor such excess, provided that such Holder shall have no obligation to
remit any such excess as long as the Company or the Guarantor shall have failed
to pay such Holder any obligations due and payable under such Security, in which
case such excess may be applied to such obligations of the Company or the
Guarantor under such Security in accordance with the terms thereof. The
foregoing indemnity shall constitute a separate and independent obligation of
the Company and the Guarantor and shall continue in full force and effect
notwithstanding any such judgment or order as aforesaid.
SECTION 1502. Counterparts
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed by their respective officers, directors or
signatories duly authorized thereto, all as of the day and year first above
written.
YORKSHIRE POWER FINANCE 2 LIMITED
By:____________________________
Authorized Signatory
YORKSHIRE POWER GROUP LIMITED
By:____________________________
Authorized Signatory
THE BANK OF NEW YORK, as Trustee,
Principal Paying Agent, Security
Registrar and Transfer Agent
By:____________________________
Title:
79
