===============================================================================
AMERICAN STANDARD INC.
as Issuer
and AMERICAN STANDARD COMPANIES INC.
as Guarantor
to
[ ]
Trustee
INDENTURE
Dated as of , 1997
Subordinated Debt Securities
===============================================================================
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. Definitions ..................................................2
SECTION 1.02. Compliance Certificates and Opinions.........................16
SECTION 1.03. Form of Documents Delivered to Trustee.......................17
SECTION 1.04. Acts of Holders..............................................17
SECTION 1.05. Notices, etc., to Trustee and Issuer.........................20
SECTION 1.06. Notice to Holders: Waiver...................................20
SECTION 1.07. Counterparts; Effect of Headings and Table of Contents.......22
SECTION 1.08. Successors and Assigns.......................................22
SECTION 1.09. Severability Clause..........................................22
SECTION 1.10. Benefits of Indenture........................................22
SECTION 1.11. Governing Law ...............................................22
SECTION 1.12. Legal Holidays ..............................................22
SECTION 1.13. No Recourse Against Others...................................23
SECTION 1.14. Conflict with Trust Indenture Act............................23
ARTICLE II
SECURITIES FORMS
SECTION 2.01. Forms of Securities..........................................23
SECTION 2.02. Form of Trustee's Certificate of Authentication..............24
SECTION 2.03. Securities Issuable in Global Form...........................24
ARTICLE III
THE SECURITIES
SECTION 3.01. Amount Unlimited; Issuable in Series.........................26
SECTION 3.02. Denominations ...............................................30
SECTION 3.03. Execution, Authentication, Delivery and Dating...............30
SECTION 3.04. Temporary Securities.........................................33
SECTION 3.05. Registration, Registration of Transfer and Exchange..........37
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities.............41
i
SECTION 3.07. Payment of Interest; Interest Rights Preserved...............43
SECTION 3.08. Persons Deemed Owners........................................46
SECTION 3.09. Cancellation ................................................47
SECTION 3.10. Computation of Interest......................................47
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.01. Satisfaction and Discharge of Indenture......................47
SECTION 4.02. Application of Trust Funds...................................49
SECTION 4.03. Reinstatement ...............................................49
ARTICLE V
REMEDIES
SECTION 5.01. Events of Default............................................50
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment...........52
SECTION 5.03. Collection of Indebtedness and Suits for Enforcement
by Trustee..................................................54
SECTION 5.04. Trustee May File Proofs of Claim.............................55
SECTION 5.05. Trustee May Enforce Claims Without Possession of
Securities or Coupons.......................................56
SECTION 5.06. Application of Money Collected...............................56
SECTION 5.07. Limitation on Suits..........................................57
SECTION 5.08. Unconditional Right of Holders to Receive Principal,
Premium, if any, and Interest...............................58
SECTION 5.09. Restoration of Rights and Remedies...........................58
SECTION 5.10. Rights and Remedies Cumulative...............................58
SECTION 5.11. Delay or Omission Not Waiver.................................59
SECTION 5.12. Control by Holders of Securities.............................59
SECTION 5.13. Waiver of Past Defaults......................................59
SECTION 5.14. Waiver of Usury, Stay or Extension Laws......................60
SECTION 5.15. Undertaking for Costs........................................60
ARTICLE VI
THE TRUSTEE
SECTION 6.01. Notice of Defaults...........................................61
SECTION 6.02. Certain Rights of Trustee....................................61
SECTION 6.03. Not Responsible for Recitals or Issuance of Securities.......64
ii
SECTION 6.04. May Hold Securities..........................................64
SECTION 6.05. Money Held in Trust..........................................64
SECTION 6.06. Compensation and Reimbursement...............................64
SECTION 6.07. Corporate Trustee Required; Eligibility; Conflicting
Interests...................................................65
SECTION 6.08. Resignation and Removal; Appointment of Successor............66
SECTION 6.09. Acceptance of Appointment by Successor.......................68
SECTION 6.10. Merger, Conversion, Consolidation or Succession to Business..69
SECTION 6.11. Appointment of Authenticating Agent..........................70
SECTION 6.12. Certain Duties and Responsibilities of the Trustee...........71
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND ISSUER AND GUARANTOR
SECTION 7.01. Disclosure of Names and Addresses of Holders.................73
SECTION 7.02. Reports by Trustee...........................................73
SECTION 7.03. Reports by Issuer and Guarantor..............................74
SECTION 7.04. Issuer to Furnish Trustee Names and Addresses of Holders.....74
ARTICLE VIII
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 8.01. Consolidations and Mergers of Issuer or Guarantor and
Sales, Leases and Conveyances Permitted Subject to
Certain Conditions.........................................75
SECTION 8.02. Rights and Duties of Successor...............................76
SECTION 8.03. Officers' Certificate and Opinion of Counsel.................76
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without Consent of Holders...........77
SECTION 9.02. Supplemental Indentures with Consent of Holders..............79
SECTION 9.03. Execution of Supplemental Indentures.........................80
SECTION 9.04. Effect of Supplemental Indentures............................80
iii
SECTION 9.05. Conformity with Trust Indenture Act..........................81
SECTION 9.06. Reference in Securities to Supplemental Indentures...........81
ARTICLE X
COVENANTS
SECTION 10.01. Payment of Principal, Premium, if any; and Interest.........81
SECTION 10.02. Maintenance of Office or Agency.............................81
SECTION 10.03. Money for Securities Payments to Be Held in Trust...........83
SECTION 10.04. Existence ..................................................85
SECTION 10.05. Maintenance of Properties...................................85
SECTION 10.06. Insurance ..................................................86
SECTION 10.07. Payment of Taxes and Other Claims...........................86
SECTION 10.08. Statement as to Compliance..................................86
SECTION 10.09. Waiver of Certain Covenants.................................86
SECTION 10.10. Additional Amounts..........................................87
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.01. Applicability of Article....................................88
SECTION 11.02. Election to Redeem; Notice to Trustee.......................88
SECTION 11.03. Selection by Trustee of Securities to Be Redeemed...........89
SECTION 11.04. Notice of Redemption........................................89
SECTION 11.05. Deposit of Redemption Price.................................91
SECTION 11.06. Securities Payable on Redemption Date.......................91
SECTION 11.07. Securities Redeemed in Part.................................92
ARTICLE XII
SINKING FUNDS
SECTION 12.01. Applicability of Article....................................93
SECTION 12.02. Satisfaction of Sinking Fund Payments with Securities.......93
SECTION 12.03. Redemption of Securities for Sinking Fund...................94
iv
ARTICLE XIII
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 13.01. Applicability of Article....................................94
SECTION 13.02. Execution and Authentication of Guarantee...................95
SECTION 13.03. Repayment of Securities.....................................95
SECTION 13.04. Exercise of Option..........................................96
SECTION 13.05. When Securities Presented for Repayment Become Due
and Payable................................................97
SECTION 13.06. Securities Repaid in Part...................................98
ARTICLE XIV
SUBORDINATION OF SECURITIES
SECTION 14.01. Securities Subordinate to Senior and Senior
Subordinated Debt..........................................98
SECTION 14.02. Payment Over of Proceeds upon Dissolution, Etc..............99
SECTION 14.03. No Payment When Senior and Senior Subordinated
Debt in Default...........................................100
SECTION 14.04. Subrogation to Rights of Holders of Senior and Senior
Subordinated Debt.........................................102
SECTION 14.05. Provisions Solely to Define Relative Rights................102
SECTION 14.06. No Waiver of Subordination Provisions......................103
SECTION 14.07. Notice to Trustee..........................................103
SECTION 14.08. Reliance on Judicial Order or Certificate of Liquidating
Agent.....................................................104
SECTION 14.09. Rights of Trustee as a Holder of Senior and Senior
Subordinated Debt; Preservation of Trustee's Rights.......105
SECTION 14.10. Article Applicable to Paying Agents........................105
SECTION 14.11. Trustee Not Fiduciary for Holders of Senior and Senior
Subordinated Debt.........................................105
SECTION 14.12. No Suspension of Remedies..................................106
SECTION 14.13. Article Fourteen Not to Prevent Events of Default..........106
SECTION 14.14. Notices to Agent Bank......................................106
SECTION 14.15. Inapplicability of Article Fourteen to Certain Trustees
Monies and Certain Payments...............................107
v
ARTICLE XV
SUBORDINATED GUARANTEES
SECTION 15.01. Subordinated Guarantees....................................107
SECTION 15.02. Execution and Authentication of Guarantee..................109
SECTION 15.03. Agreement to Subordinate Guarantees........................109
SECTION 15.04. Payment Over of Proceeds Upon Dissolution, Etc.............110
SECTION 15.05. No Payment When Senior Debt in Default.....................111
SECTION 15.06. Notices by Guarantor.......................................113
SECTION 15.07. Subrogation of Securityholders and Guarantor...............113
SECTION 15.08. Relative Rights Under Subordinated Guarantees..............114
SECTION 15.09. Subordination May Not Be Impaired by Guarantor.............115
SECTION 15.10. Rights of Trustee and Paying Agent in Respect of
Subordinated Guarantees...................................115
SECTION 15.11. Trustee Not Fiduciary for the Holders of Senior Debt
of the Guarantor..........................................116
SECTION 15.12. Reliance on Judicial Order or Certificate of
Liquidating Agent.........................................116
SECTION 15.13. Rights of Trustee as a Holder of Senior and Senior
Subordinated Debt of the Guarantor; Preservation of
Trustee's Rights..........................................116
SECTION 15.14. Article Applicable to Paying Agents........................117
SECTION 15.15. Reliance by Holders of Senior and Senior Subordinated
Debt of the Guarantor on Subordination Provisions.........117
SECTION 15.16. Payment in Full............................................117
SECTION 15.17. No Suspension of Remedies..................................117
SECTION 15.18. Article Fifteen Not to Prevent Events of Default...........118
SECTION 15.19. Inapplicability of Article Fifteen to Certain Trust
Monies and Certain Payments...............................118
SECTION 15.20. Limitation of Guarantor's Liability........................118
SECTION 15.21. Payment Permitted If No Default............................118
SECTION 15.22. Trustee to Effectuate Subordination........................119
vi
ARTICLE XVI
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 16.01. Applicability of Article; Issuer's Option to Effect
Defeasance or Covenant Defeasance.........................119
SECTION 16.02. Defeasance and Discharge...................................119
SECTION 16.03. Covenant Defeasance........................................120
SECTION 16.04. Conditions to Defeasance or Covenant Defeasance............121
SECTION 16.05. Deposited Money and Government Obligations to Be Held
in Trust; Other Miscellaneous Provisions..................123
ARTICLE XVII
MEETINGS OF HOLDERS OF SECURITIES
SECTION 17.01. Purposes for Which Meetings May Be Called..................125
SECTION 17.02. Call, Notice and Place of Meetings.........................125
SECTION 17.03. Persons Entitled to Vote at Meetings.......................125
SECTION 17.04. Quorum; Action.............................................126
SECTION 17.05. Determination of Voting Rights; Conduct and Adjournment
of Meetings...............................................127
SECTION 17.06. Counting Votes and Recording Action of Meetings............128
ARTICLE XVIII
CONVERSION
SECTION 18.01. Conversion Privilege.......................................129
SECTION 18.02. Conversion Procedure.......................................129
SECTION 18.03. Taxes on Conversion........................................131
SECTION 18.04. Issuer Determination Final.................................131
SECTION 18.05. Trustee's and Conversion Agent's Disclaimer................131
SECTION 18.06. Issuer to Provide Conversion Securities....................131
SECTION 18.07. Cash Settlement Option.....................................132
SECTION 18.08. Adjustment in Conversion Rate for Change in Capital Stock..132
SECTION 18.09. Adjustment in Conversion Rate for Common Stock Issued
Below Market Price........................................133
SECTION 18.10. Adjustment for Other Distributions.........................136
SECTION 18.11. Voluntary Adjustment.......................................136
vii
SECTION 18.12. When Adjustment May Be Deferred............................136
SECTION 18.13. When No Adjustment Required................................137
SECTION 18.14. Notice of Adjustment.......................................137
SECTION 18.15. Notice of Certain Transactions.............................137
SECTION 18.16. Reorganization of the Issuer...............................138
SIGNATURES AND SEALS.......................................................139
EXHIBIT A - FORM OF REDEEMABLE OR NON-REDEEMABLE SECURITY...A-1
EXHIBIT B - FORMS OF CERTIFICATION..........................B-1
EXHIBIT C - FORM OF NOTATION OF GUARANTEE...................C-1
viii
AMERICAN STANDARD INC.
Reconciliation and tie between Trust Indenture Act of 1939 (the "Trust
Indenture Act" or "TIA") and Indenture, dated as of , 1997.
Trust Indenture Indenture
Act Section Section
ss. 310(a)(1)....................................... 607
(a)(2)................................... 607
(b)...................................... 607, 608
ss. 312(c) ....................................... 701
ss. 313(a) ....................................... 702
(c)...................................... 702
ss. 314(a) ......................................... 703
(a)(4)................................... 1009
(c)(1)................................... 102
(c)(2)................................... 102
(e)...................................... 102
ss. 315(b) ....................................... 601
ss. 316(a)(last sentence)........................... 101 ("Outstanding")
(a)(1)(A)................................ 502, 512
(a)(1)(B)................................ 513
(b)...................................... 508
ss. 317(a)(1)....................................... 503
(a)(2)................................... 504
ss. 318(a) ......................................... 111
(c)...................................... 111
-------------------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
Attention should also be directed to TIA Section 3.18(c), which provides
that the provisions of TIA Sections 3.10 to and including 317 of the Trust
Indenture Act are a part of and govern every qualified indenture, whether or not
physically contained therein.
INDENTURE, dated as of , 1997, between AMERICAN STANDARD INC., a Delaware
corporation (hereinafter called the "Issuer"), having its principal office at
Xxx Xxxxxxxxxx Xxxxxx, X.X. Xxx 0000, Xxxxxxxxxx, Xxx Xxxxxx 00000-0000, and
AMERICAN STANDARD COMPANIES INC., a Delaware corporation (hereinafter called the
"Guarantor"), having its principal office at Xxx Xxxxxxxxxx Xxxxxx, X.X. Xxx
0000, Xxxxxxxxxx, Xxx Xxxxxx 00000-0000 [ ], as Trustee hereunder (hereinafter
called the "Trustee"), having a [ ].
RECITALS OF THE ISSUER
The Issuer and the Guarantor deem it necessary to issue from time to time
for lawful purposes subordinated debt securities (hereinafter called the
"Securities") evidencing unsecured and senior indebtedness of the Issuer, fully
and unconditionally guaranteed (the "Guarantees") by the Guarantor, and have
duly authorized the execution and delivery of this Indenture to provide for the
issuance from time to time of the Securities, to be issued in one or more series
as provided in this Indenture.
This Indenture is subject to the provisions of the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act" or "TIA"), that are deemed to be
incorporated into this Indenture and shall, to the extent applicable, be
governed by such provisions.
All things necessary to make this Indenture a valid agreement of the Issuer
and the Guarantor, in accordance with its terms, have been done. Further, all
things necessary to make the Securities, when duly issued and executed by the
Issuer and authenticated and delivered hereunder, and the Guarantees, when duly
issued and executed by the Guarantor, the valid joint and several obligations of
the Issuer and the Guarantor, respectively, and to make this Indenture, a valid
and binding agreement of the Issuer and the Guarantor, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities, as follows:
2
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. Definitions. For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article, and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the TIA,
either directly or by reference therein, have the meanings assigned to
them therein, and the terms "cash transaction" and "self-liquidating
paper," as used in TIA Section 3.11, shall have the meanings assigned
to them in the rules of the Commission adopted under the TIA;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP; and
(4) the words "herein," "hereof "and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
"Act," when used with respect to any Holder, has the meaning specified in
Section 1.04.
"Additional Amounts" means any additional amounts which are required by a
Security or by or pursuant to a Board Resolution, under circumstances specified
therein, to be paid by the Issuer pursuant to Section 10.10 in respect of
certain taxes, duties, assessments or other governmental charges imposed on
certain holders and which are owing to such holders.
"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.
3
"Agent Bank" means the appropriate agent or agents from time to time under
any credit agreement, or any successor agent or agents thereto.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 6.11 hereof to act on behalf of the Trustee to authenticate
Securities.
"Authorized Newspaper" means a newspaper, printed in the English language
or in an official language of the country of publication, customarily published
on each Business Day, whether or not published on Saturdays, Sundays or
holidays, and of general circulation in each place in connection with which the
term is used or in the financial community of each such place. Whenever
successive publications are required to be made in Authorized Newspapers, the
successive publications may be made in the same or in different Authorized
Newspapers in the same city meeting the foregoing requirements and in each case
on any Business Day.
"Bank Debt" means the Senior Debt described in clause (i) of the definition
of "Senior Debt.".
"Bankruptcy Law" has the meaning specified in Section 5.01.
"Bearer Security" means any Security established pursuant to Section 3.01
which is payable to bearer.
"Board of Directors" means the board of directors of the Issuer or any
committee of that board duly authorized to act hereunder, as the case may be.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Issuer or the Guarantor, as the case may be, to
have been duly adopted by the Board of Directors and to be in full force and
effect on the date of such certification, and delivered to the Trustee.
"Business Day," when used with respect to any Place of Payment or any other
particular location referred to in this Indenture or in the Securities, means,
unless otherwise specified with respect to any Securities issued pursuant to
Section 3.01, any day, other than a Saturday or Sunday, that is not a day on
which banking institutions in that Place of Payment or particular location are
authorized or required by law, regulation or executive order to close.
4
"Capital Stock" of any Person means any and all shares, interests,
participations, rights to purchase, warrants, options or other equivalents
(however designated) of corporate stock or other equity of such Person.
"CEDEL" means Centrale de Livraison de Valueurs Mobilieres, S.A., or its
successor.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, or, if at
any time after execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties on such date.
"Common Stock" means the Common Stock, par value $.01 per share, of the
Issuer or any security into which the common stock may be converted.
"Consolidated Net Assets" means as of any particular time the aggregate
amount of assets (less applicable reserves and other properly deductible items)
after deducting therefrom all current liabilities except for (a) notes and loans
payable, (b) current maturities of long-term debt and (c) current maturities of
obligations under capital leases, all as set forth on the most recent
consolidated balance sheet of the Issuer and its consolidated Subsidiaries and
computed in accordance with GAAP.
"Conversion Agent" means an office or agency maintained by the Issuer where
Securities may be presented for conversion.
"Conversion Event" means the cessation of use of (i) a Foreign Currency
both by the government of the country which issued such currency and for the
settlement of transactions by a central bank or other public institutions of or
within the international banking community, (ii) the ECU both within the
European Monetary System and for the settlement of transactions by public
institutions of or within the European Communities or (iii) any currency unit
(or composite currency) other than the ECU for the purposes for which it was
established.
"Conversion Rate" means such number of shares or amount of securities or
other property for which $1,000 aggregate principal amount of Securities of any
series is convertible, initially as stated in the Board Resolution authorizing
5
the series as adjusted pursuant to the terms of this Indenture and the Board
Resolution.
"Conversion Right" has the meaning specified in Section 17.01.
"Corporate Trust Office" means the office of the Trustee at which, at any
particular time, its corporate trust business shall be administered, which
office at the date hereof is located at the address specified in the preamble
hereto.
"corporation" includes corporations, associations, companies and business
trusts.
"coupon" means any interest coupon appertaining to a Bearer Security.
"Custodian" has the meaning specified in Section 5.01.
"Defaulted Interest" has the meaning specified in Section 3.07.
"Dollar" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
"ECU" means the European Currency Unit as defined and revised from time to
time by the Council of the European Communities.
"Euroclear" means Xxxxxx Guaranty Trust Company of New York, Brussels
office, or its successor as operator of the Euroclear System.
"European Communities" means the European Economic Community, the European
Coal and Steel Community and the European Atomic Energy Community.
"European Monetary System" means the European Monetary System established
by the Resolution of December 5, 1978 of the Council of the European
Communities.
"Event of Default" has the meaning specified in Article Five.
"Facility" means the Amended and Restated Credit Agreement dated as of
January 31, 1997 among American Standard Companies, Inc., American Standard
Inc., The Chase Manhattan Bank and the lenders thereto.
6
"Foreign Currency" means any currency, currency unit or composite currency,
including, without limitation, the ECU issued by the government of one or more
countries other than the United States of America or by any recognized
confederation or association of such governments.
"GAAP" means, except as otherwise provided herein, generally accepted
accounting principles, as in effect from time to time, as used in the United
States applied on a consistent basis.
"Global Security" means a Security evidencing all or a part of a series of
Securities issued to and registered in the name of the depository for such
series, or its nominee, in accordance with Section 3.05, and bearing the legend
prescribed in Section 2.03.
"Government Obligations" means securities which are (i) direct obligations
of the United States of America or the government which issued the Foreign
Currency in which the Securities of a particular series are payable, for the
payment of which its full faith and credit is pledged or (ii) obligations of a
Person controlled or supervised by and acting as an agency or instrumentality of
the United States of America or such government which issued the Foreign
Currency in which the Securities of such series are payable, the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States of America or such other government, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such Government Obligation or a specific payment of interest on
or principal of any such Government Obligation held by such custodian for the
account of the holder of a depository receipt, provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the Government Obligation or the specific payment of
interest on or principal of the Government Obligation evidenced by such
depository receipt.
"Guarantee" shall have the meaning specified in 12.01.
"Guarantor" means American Standard Companies, Inc., a Delaware
corporation, and, subject to the provisions of Article Twelve, shall also
include its successors and assigns.
7
"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
Bearer Security, the bearer thereof and, when used with respect to any coupon,
shall mean the bearer thereof.
"Indebtedness" means, with respect to any Person, without duplication, (i)
any Obligation of such Person relating to any indebtedness of such Person (A)
for borrowed money (whether or not the recourse of the lender is to the whole of
the assets, of such person or only to a portion thereof), (B) evidenced by
notes, debentures or similar instruments (including purchase money obligations)
given in connection with the acquisition of any property or assets (other than
trade accounts payable for inventory or similar property acquired in the
ordinary course of business), including securities, for the payment of which
such Person is liable, directly or indirectly, or the payment of which is
secured by a lien, charge or encumbrance on property or assets of such Person,
(C) for goods, materials or services purchased in the ordinary course of
business (other than trade accounts payable arising in the ordinary course of
business), (D) with respect to letters of credit or bankers acceptances issued
for the account of such Person or performance, surety or similar bonds, (E) for
the payment of money relating to a Capitalized Lease Obligation or (F) under
interest rate swaps, caps or similar agreements and foreign exchange contracts,
currency swaps or similar agreements; (ii) any liability of others of the kind
described in the preceding clause (i), which such Person has guaranteed or which
is otherwise its legal liability; and (iii) any and all deferrals, renewals,
extensions and refunding of, or amendments, modifications or supplements to, any
liability of the kind described in any of the preceding clauses (i) or (ii).
"Indenture" means this instrument as originally executed or as it may be
supplemented or amended from time to time 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 3.01; provided, however, that, if at any time more than one Person is
acting as Trustee under this instrument, "Indenture" shall mean, with respect to
any one or more series of Securities for which such Person is Trustee, this
8
instrument as originally executed or as it may be supplemented or amended from
time to time by one or more indentures supplemental hereto entered into pursuant
to the applicable provisions hereof and shall include the terms of the or those
particular series of Securities for which such Person is Trustee established as
contemplated by Section 3.01, exclusive, however, of any provisions or terms
which relate solely to other series of Securities for which such Person is
Trustee, regardless of when such terms or provisions were adopted, and exclusive
of any provisions or terms adopted by means of one or more indentures
supplemental hereto executed and delivered after such Person had become such
Trustee but to which such Person, as such Trustee, was not a party.
"Indexed Security" means a Security the terms of which provide that the
principal amount thereof payable at Stated Maturity may be more or less than the
principal face amount thereof at original issuance.
"Interest," when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, shall mean interest
payable after Maturity.
"Interest Payment Date," when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Issuer" means the Person named as the "Issuer" in the first paragraph of
this Indenture until a successor shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Issuer" shall mean such
successor.
"Issuer Request" and "Issuer Order" mean, respectively, a written request
or order signed in the name of the Issuer by its Chairman of the Board, the
President or a Vice President, and by its Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary, of the Issuer, and delivered to the
Trustee.
"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, notice of redemption, notice of option to elect
repayment or otherwise.
"Obligation" of any Person with respect to any specified Indebtedness means
any obligation of such Person to pay principal, premium, interest (including
interest accruing on or after the filing of any petition in bankruptcy or for
reorganization relating to such Person, whether or not a claim for such
9
post-petition interest is allowed in such Proceeding), penalties, reimbursement
or indemnification amounts, fees, expenses or other amounts relating to such
Indebtedness.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board of Directors, the President or a Vice President and by the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary of the Issuer or
the Guarantor, as the case may be, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Issuer or the Guarantor, as the case may be, or who may be an employee
of or other counsel for the Issuer or the Guarantor, as the case may be, and who
shall be satisfactory to the Trustee and delivered to the Trustee.
"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 5.02.
"Outstanding," when used with respect to Securities, means, as of the date
of determination, all Securities 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 (including repayment at the option of the Holder) money in
the necessary amount has been theretofore deposited with the Trustee
or any Paying Agent (other than the Issuer) in trust or set aside and
segregated in trust by the Issuer (if the Issuer shall act as its own
Paying Agent) for the Holders of such Securities and any coupons
appertaining thereto; provided, however, 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;
(iii) Securities, except to the extent provided in Sections 15.02
and 15.03, with respect to which the Issuer has effected defeasance
and/or covenant defeasance as provided in Article Fourteen; and
(iv) Securities which have been paid pursuant to Section 3.06 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
10
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 Issuer.
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 or are present at
a meeting of Holders for quorum purposes, and for the purpose of making the
calculations required by TIA Section 3.13, (i) the principal amount of an
Original Issue Discount Security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for such
purpose shall be equal to the amount of principal thereof that would be (or
shall have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the maturity thereof
pursuant to Section 5.02, (ii) the principal amount of any Security denominated
in a Foreign Currency that may be counted in making such determination or
calculation and that shall be deemed Outstanding for such purpose shall be equal
to the Dollar equivalent, determined pursuant to Section 3.01 as of the date
such Security is originally issued by the Issuer, of the principal amount (or,
in the case of an Original Issue Discount Security, the Dollar equivalent as of
such date of original issuance of the amount determined as provided in clause
(i) above) of such Security, (iii) the principal amount of any Indexed Security
that may be counted in making such determination or calculation and that shall
be deemed outstanding for such purpose shall be equal to the principal face
amount of such Indexed Security at original issuance, unless otherwise provided
with respect to such Security pursuant to Section 3.01, and (iv) Securities
owned by the Issuer or any other obligor upon the Securities or any Affiliate of
the Issuer 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 making such calculation or in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which the
Trustee knows to be so owned shall be so disregarded. Securities owned as
provided in clause (iv) above which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Issuer or any other obligor upon the Securities or any
Affiliate of the Issuer or of such other obligor. In case of a dispute as to
11
such right, the advice of counsel shall be full protection in respect of any
decision made by the Trustee in accordance with such advice.
"Paying Agent" means any Person authorized by the Issuer to pay the
principal of (and premium, if any) or interest on any Securities or coupons on
behalf of the Issuer.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Place of Payment," when used with respect to the Securities of or within
any series, means the place or places where the principal of (and premium, if
any) and interest on such Securities are payable as specified as contemplated by
Sections 3.01 and 10.02 or the Corporate Trust Office of the Trustee.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.06 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen coupon
appertains.
"Preferred Stock" means, with respect to any Person, all capital stock
issued by such Person that are entitled to a preference or priority over any
other capital stock issued by such Person with respect to any distribution of
such Person's assets, whether by dividend or upon any voluntary or involuntary
liquidation, dissolution or winding up.
"Redemption Date," when used with respect to any Security to be redeemed,
in whole or in part, 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.
"Registered Security" shall mean any Security which is registered in the
Security Register.
12
"Regular Record Date" for the interest payable on any Interest Payment Date
on the Registered Securities of or within any series means the date specified
for that purpose as contemplated by Section 3.01, whether or not a Business Day.
"Repayment Date" means, when used with respect to any Security to be repaid
at the option of the Holder, the date fixed for such repayment by or pursuant to
this Indenture.
"Repayment Price" means, when used with respect to any Security to be
repaid at the option of the Holder, the price at which it is to be repaid by or
pursuant to this Indenture.
"Responsible Officer," when used with respect to the Trustee, means the
chairman or vice-chairman of the board of directors, the chairman or
vice-chairman of the executive committee of the board of directors, the
president, any vice president (whether or not designated by a number or a word
or words added before or after the title "vice president"), the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the controller
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 such officer's knowledge and familiarity with the
particular subject.
"Security" has the meaning stated in the first recital of this Indenture
and, more particularly, means any Security or Securities authenticated and
delivered under this Indenture; provided, however, that, if at any time there is
more than one Person acting as Trustee under this Indenture, "Securities" with
respect to the Indenture as to which such Person is Trustee shall have the
meaning stated in the first recital of this Indenture and shall more
particularly mean Securities authenticated and delivered under this Indenture,
exclusive, however, of Securities of any series as to which such Person is not
Trustee.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 3.05.
"Senior and Senior Subordinated Debt" of any Person means (i) the Senior
Debt of such Person, (ii) with the respect to the Issuer, the Senior
Subordinated Debt Securities, (iii) with respect to the Guarantor, the Senior
13
Subordinated Debt Guarantees, (iii) the 9 7/8% Senior Subordinated Notes or the
10 1/2% Subordinated Discount Debentures and (iv) any other indebtedness,
guarantee or obligation of the Issuer or the Guarantor, as applicable, that
would be Senior Debt; unless, in any case, it is provided that such
indebtedness, guarantee or obligation is not superior in right of payment to the
Securities or the Guarantees.
"Senior Debt" is defined as (i) indebtedness for money borrowed and all
obligations, whether direct or indirect, under guarantees, letters of credit,
foreign currency or interest rate swaps, foreign exchange contracts, caps,
collars, options, xxxxxx or other agreements or arrangements designed to protect
against fluctuations in currency values or interest rates, other extensions of
credit, expenses, fees, reimbursements, indemnities and all other amounts
(including interest at the contract rate accruing on or after the filing of any
petition in bankruptcy or reorganization relating to the Issuer or the
Guarantor, as applicable, whether or not a claim for post-filing interest is
allowed in such proceeding) owed by the Issuer or the Guarantor, as applicable,
in the documents relating to any Facilities and any refinancing or any
replacement facility, (ii) the principal of and premium, if any, and accrued and
unpaid interest (including interest at the contract rate accruing on or after
the filing of any petition in bankruptcy or for reorganization relating to the
Issuer or the Guarantor, as applicable, whether or not a claim for post-filing
interest is allowed in such proceeding), whether existing on the date hereof or
hereafter incurred, in respect of (A) indebtedness of the Issuer or the
Guarantor, as applicable, for money borrowed, (B) express written guarantees by
the Issuer or the Guarantor, as applicable, of indebtedness for money borrowed
by any other person, (C) indebtedness evidenced by notes, debentures, bonds, or
other instruments of indebtedness for the payment of which the Issuer or the
Guarantor, as applicable, is responsible or liable, by guarantees or otherwise,
(D) obligations of the Issuer or the Guarantor, as applicable, for the
reimbursement of any obligor on any letter of credit, banker's acceptance or
similar credit transaction, (E) obligations of the Issuer or the Guarantor, as
applicable under any agreement to lease, or any lease of, any real or personal
property which, in accordance with generally accepted accounting principles, is
classified upon the Issuer's or the Guarantor's, as applicable, consolidated
balance sheet as a liability, and (F) obligations of the Issuer or the
Guarantor, as applicable, under interest rate swaps, caps, collars, options and
similar arrangements and foreign currency xxxxxx entered into in respect of any
14
such indebtedness or obligation, and (iii) modifications, renewals, extensions,
replacements, refinancings, and refundings of any such indebtedness, obligations
or guarantees, unless, in the instrument creating or evidencing the same or
pursuant to which the same is outstanding, it is provided that such
indebtedness, obligations or guarantees, or such modifications, renewals,
extensions, replacements, refinancings, or refundings thereof, are not superior
in right of payment to the Securities or the Guarantees, as applicable;
provided, that Senior Debt will not be deemed to include (a) any obligation of
the Issuer or the Guarantor, as applicable, to any subsidiary (other than
obligations pledged pursuant to the Facilities as security for the obligations
of the Issuer thereunder), (b) any liability for Federal, state, local or other
taxes owed or owing by the Issuer or the Guarantor, as applicable, (c) any
accounts payable or other liability to trade creditors arising in the ordinary
course of business, (d) the 9 7/8% Senior Subordinated Notes or the 10 1/2%
Subordinated Discount Debentures, and (e) any Series of Securities or Guarantees
issued under this Indenture. If any Bank Debt is disallowed, avoided or
subordinated pursuant to the provisions of Section 548 of the U.S. Bankruptcy
Code or any applicable state fraudulent conveyance law, such Bank Debt will
still constitute Senior Debt.
"Senior Subordinated Debt Guarantees" shall mean the guarantees by the
Guarantor on the Senior Subordinated Debt Securities.
"Senior Subordinated Debt Securities" shall mean any series of debt
securities issued under the Indenture dated as of _________ among the Issuer,
the Guarantor and [ ], as trustee, relating to Senior Subordinated Debt
Securities.
"Significant Subsidiary" means any Subsidiary which is a "significant
subsidiary" (as defined in Article I, Rule 1-02 of Regulation S-X, promulgated
under the Securities Act of 1933) of the Issuer.
"Special Record Date" for the payment of any Defaulted Interest on the
Registered Securities of or within any series means a date fixed by the Trustee
pursuant to Section 3.07.
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security or a coupon representing such installment of interest as the
15
fixed date on which the principal of such Security or such installment of
principal or interest is due and payable.
"Stock Trading Day" means each day on which the securities exchange or
quotation system which is used to determine the market price is open for trading
or quotation.
"Subsidiary" means a Person (other than an individual), a majority of the
outstanding voting stock, partnership interests, membership interests or other
equity interest, as the case may be, of which is owned or controlled, directly
or indirectly, by the Issuer or by one or more other Subsidiaries of the Issuer.
For the purposes of this definition, "voting stock" means stock having voting
power for the election of directors, trustees or managers, as the case may be,
whether at all times or only so long as no senior class of stock has such voting
power by reason of any contingency.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939, as
amended and as in force at the date as of which this Indenture was executed,
except as provided in Section 9.05.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this Indenture 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; provided, however, that if
at any time there is more than one such Person, "Trustee" as used with respect
to the Securities of any series shall mean only the Trustee with respect to
Securities of that series.
"United States" means, unless otherwise specified with respect to any
Securities pursuant to Section 3.01, the United States of America (including the
states and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
"United States Person" means, unless otherwise specified with respect to
any Securities pursuant to Section 3.01, an individual who is a citizen or
resident of the United States, a corporation, partnership or other entity
created or organized in or under the laws of the United States or an estate or
trust the income of which is subject to United States Federal income taxation
regardless of its source.
16
"Yield to Maturity" means the yield to maturity, computed at the time of
issuance of a Security (or, if applicable, at the most recent redetermination of
interest on such Security) and as set forth in such Security in accordance with
generally accepted United States bond yield computation principles.
"9 7/8% Senior Subordinated Notes" means the 9 7/8% Senior Subordinated
Notes of the Guarantor.
"10 1/2% Subordinated Discount Debentures" means the 10 1/2% Subordinated
Debentures of the Guarantor due in installments from 2003 to 2005.
SECTION 1.02. Compliance Certificates and Opinions. Upon any application or
request by the Issuer to the Trustee to take any action under any provision of
this Indenture, the Issuer of the Guarantor, as the case may be, shall furnish
to the Trustee an Officers' Certificate stating that all conditions precedent,
if any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (including certificates delivered
pursuant to Section 10.08) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such condition or covenant 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 condition or covenant
has been complied with; and
17
(4) a statement as to whether or not, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.03. Form of Documents Delivered to Trustee. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an officer of the Issuer may be based,
insofar as it relates to legal matters, upon an Opinion of Counsel, or a
certificate or representations by counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the opinion, certificate or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such Opinion of Counsel or certificate or
representations may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Issuer stating that the information as to such factual matters is in the
possession of the Issuer, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.04. Acts of Holders. (a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders of the Outstanding Securities of all series or one
or more series, as the case may be, 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. If Securities of a series are issuable
as Bearer Securities, any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders of Securities of such series may, alternatively, be embodied in and
evidenced by the record of Holders of Securities of such series voting in favor
18
thereof, either in person or by proxies duly appointed in writing, at any
meeting of Holders of Securities of such series duly called and held in
accordance with the provisions of Article Fifteen, or a combination of such
instruments and any such record. Except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments or record
or both are received by the Trustee and, where it is hereby expressly required,
by the Issuer. Such instrument or instruments and any such record (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Holders signing such instrument or instruments or so voting
at any such meeting. Proof of execution of any such instrument or of a writing
appointing any such agent, or of the holding by any Person of a Security, shall
be sufficient for any purpose of this Indenture and conclusive in favor of the
Trustee and the Issuer and any agent of the Trustee or the Issuer, if made in
the manner provided in this Section. The record of any meeting of Holders of
Securities shall be proved in the manner provided in Section 16.06.
(b) The fact and date of the execution by any Person of any such instrument
or writing 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
or writing 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 or writing,
or the authority of the Person executing the same, may also be proved in any
other reasonable manner which the Trustee deems sufficient.
(c) The ownership of Registered Securities shall be proved by the Security
Register. As to any matter relating to beneficial ownership interests in any
Global Security, the appropriate depository's records shall be dispositive for
purposes of this Indenture.
(d) The ownership of Bearer Securities may be proved by the production of
such Bearer Securities or by a certificate executed, as depository, by any trust
company, bank, banker or other depository, wherever situated, if such
certificate shall be deemed by the Trustee to be satisfactory, showing that at
the date therein mentioned such Person had on deposit with such depository, or
19
exhibited to it, the Bearer Securities therein described; or such facts may be
proved by the certificate or affidavit of the Person holding such Bearer
Securities, if such certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee, the Issuer and the Guarantor may assume that such
ownership of any Bearer Security continues until (1) another certificate or
affidavit bearing a later date issued in respect of the same Bearer Security is
produced, or (2) such Bearer Security is produced to the Trustee by some other
Person, or (3) such Bearer Security is surrendered in exchange for a Registered
Security, or (4) such Bearer Security is no longer Outstanding. The ownership of
Bearer Securities may also be proved in any other manner which the Trustee deems
sufficient.
(e) If the Issuer or the Guarantor shall solicit from the Holders of
Registered Securities any request, demand, authorization, direction, notice,
consent, waiver or other Act, the Issuer may, at its option, in or pursuant to a
Board Resolution, fix in advance a record date for the determination of Holders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Issuer shall have no obligation to do so.
Notwithstanding TIA Section 3.16(c), such record date shall be the record date
specified in or pursuant to such Board Resolution, which shall be a date not
earlier than the date 30 days prior to the first solicitation of Holders
generally in connection therewith and not later than the date such solicitation
is completed. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of record at the close of
business on such record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of Outstanding
Securities have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for that
purpose the Outstanding Securities shall be computed as of such record date;
provided that no such authorization, agreement or consent by the Holders on such
record date shall be deemed effective unless it shall become effective pursuant
to the provisions of this Indenture not later than eleven months after the
record date.
(f) 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, any Security
20
Registrar, any Paying Agent, any Authenticating Agent or the Issuer in reliance
thereon, whether or not notation of such action is made upon such Security.
SECTION 1.05. Notices, etc., to Trustee and Issuer. 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 Issuer 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 Issuer or the Guarantor 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 Issuer or the Guarantor addressed to it at the address of its
principal office specified in the first paragraph of this Indenture or at
any other address previously furnished in writing to the Trustee by the
Issuer or the Guarantor, Attention: Chief Financial Officer; or
(3) either the Trustee or the Issuer and the Guarantor, by the other
party, shall be sufficient for every purpose hereunder if given by
facsimile transmission, receipt confirmed by telephone followed by an
original copy delivered by guaranteed overnight courier; if to the Trustee
at facsimile number [ ]; and if to the Issuer at facsimile number
(000) 000-0000.
SECTION 1.06. Notice to Holders: Waiver. Where this Indenture provides for
notice of any event to Holders of Registered Securities by the Issuer, the
Guarantor or the Trustee, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each such Holder affected by such event, at his address as
it appears in the Security Register, not later than the latest date, if any, and
not earlier than the earliest date, if any, prescribed for the giving of such
notice. In any case where notice to Holders of Registered Securities is given by
mail, neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder shall affect the sufficiency of such notice
21
with respect to other Holders of Registered Securities or the sufficiency of any
notice to Holders of Bearer Securities given as provided herein. Any notice
mailed to a Holder in the manner herein prescribed shall be conclusively deemed
to have been received by such Holder, whether or not such Holder actually
receives such notice.
If by reason of the suspension of or irregularities in regular mail service
or by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification to Holders of Registered Securities as shall be
made with the approval of the Trustee shall constitute a sufficient notification
to such Holders for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise specified with
respect to any Securities pursuant to Section 3.01, where this Indenture
provides for notice to Holders of Bearer Securities of any event, such notice
shall be sufficiently given if published in an Authorized Newspaper in The City
of New York and in such other city or cities as may be specified in such
Securities on a Business Day, such publication to be not later than the latest
date, if any, and not earlier than the earliest date, if any, prescribed for the
giving of such notice. Any such notice shall be deemed to have been given on the
date of such publication or, if published more than once, on the date of the
first such publication.
If by reason of the suspension of publication of any Authorized Newspaper
or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither the failure to give notice by
publication to any particular Holder 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 or waiver
required or permitted under this Indenture shall be in the English language,
except that any published notice may be in an official language of the country
of publication.
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.
22
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 1.07. Counterparts; Effect of Headings and Table of Contents. This
Indenture 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 Indenture. The Article and Section
headings herein and the Table of Contents are for convenience only and shall not
affect the construction hereof.
SECTION 1.08. Successors and Assigns. All covenants and agreements in this
Indenture by the Issuer and the Guarantor shall bind their respective successors
and assigns, whether so expressed or not.
SECTION 1.09. Severability Clause. In case any provision in this Indenture
or in any Security or coupon shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 1.10. Benefits of Indenture. Nothing in this Indenture or in the
Securities or coupons, express or implied, shall give to any Person, other than
the parties hereto, any Security Registrar, any Paying Agent, any Authenticating
Agent and their successors hereunder and the Holders any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 1.11. Governing Law. This Indenture and the Securities and coupons
shall be governed by and construed in accordance with the law of the State of
New York. This Indenture is subject to the provisions of the TIA that are
required to be part of this Indenture and shall, to the extent applicable, be
governed by such provisions.
SECTION 1.12. Legal Holidays. In any case where any Interest Payment Date,
Redemption Date, Repayment Date, sinking fund payment date, Stated Maturity or
Maturity of any Security or the last date on which a Holder has the right to
exchange a Security shall not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or any Security or coupon
other than a provision in the Securities of any series which specifically states
that such provision shall apply in lieu hereof), payment of interest or
principal (and premium, if any) or exchange of such security need not be made at
23
such Place of Payment on such date, but (except as otherwise provided in the
supplemental indenture with respect to such Security) 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, Redemption Date, Repayment Date or
sinking fund payment date, or at the Stated Maturity or Maturity, or on such
last day for exchange, provided that no interest shall accrue on the amount so
payable for the period from and after such Interest Payment Date, Redemption
Date, Repayment Date, sinking fund payment date, Stated Maturity or Maturity, as
the case may be.
SECTION 1.13. No Recourse Against Others. No recourse under or upon any
obligation, covenant or agreement contained in this Indenture, or in any
Security, or because of any indebtedness evidenced thereby, shall be had against
any past, present or future stockholder, employee, officer, director,
incorporator, limited or general partner, as such, of the Issuer or of any
successor, either directly or through the Issuer or any successor, under any
rule of law, statute or constitutional provision or by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of the
Securities by the Holders and as part of the consideration for the issue of the
Securities.
SECTION 1.14. Conflict with Trust Indenture Act. If any provision hereof
limits, qualifies or conflicts with another provision hereof which is required
or deemed to be included in this Indenture by any of the provisions of the Trust
Indenture Act, such required provision shall control. If any provision of this
Indenture modifies or excludes any provision of the Trust Indenture Act that may
be so modified or excluded, the latter provision shall be deemed to apply to
this Indenture as so modified or to be excluded, as the case may be.
ARTICLE II
SECURITIES FORMS
SECTION 2.01. Forms of Securities. The Registered Securities, if any, of
each series and the Bearer Securities, if any, of each series and related
coupons shall be substantially in the form of Exhibit A hereto or in such other
form as shall be established in one or more indentures supplemental hereto or
approved from time to time by or pursuant to a Board Resolution in accordance
24
with Section 3.01, shall have such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture or any indenture supplemental hereto, and may have such letters,
numbers or other marks of identification or designation and such legends or
endorsements placed thereon as the Issuer may deem appropriate and as are not
inconsistent with the provisions of this Indenture, or as may be required to
comply with any law or with any rule or regulation made pursuant thereto or with
any rule or regulation of any stock exchange on which the Securities may be
listed, or to conform to usage.
Unless otherwise specified as contemplated by Section 3.01, Bearer
Securities shall have interest coupons attached.
The definitive Securities and coupons shall be printed, lithographed or
engraved or produced by any combination of these methods on a steel engraved
border or steel engraved borders or mechanically reproduced on safety paper or
may be produced in any other manner, all as determined by the officers executing
such Securities or coupons, as evidenced by their execution of such Securities
or coupons.
SECTION 2.02. Form of Trustee's Certificate of Authentication. Subject to
Section 6.11, the Trustee's certificate of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
[ ]
as Trustee
Dated: ______________ By:
Authorized Signatory
SECTION 2.03. Securities Issuable in Global Form. If Securities of or
within a series are issuable in the form of one or more Global Securities, then,
notwithstanding clause (10) of Section 3.01 and the provisions of Section 3.02,
any such Global Security or Securities may provide that it or they shall
represent the aggregate amount of all Outstanding Securities of such series (or
such lesser amount as is permitted by the terms thereof) from time to time
endorsed thereon and may also provide that the aggregate amount of Outstanding
Securities of such series represented thereby may from time to time be increased
25
or decreased to reflect exchanges. Any endorsement of any Global Security to
reflect the amount, or any increase or decrease in the amount, or changes in the
rights of Holders thereof, of Outstanding Securities represented thereby shall
be made by the Trustee in such manner or by such Person or Persons as shall be
specified therein or in the Issuer Order to be delivered to the Trustee pursuant
to Section 3.03 or 3.04. Subject to the provisions of Section 3.03 and, if
applicable, Section 3.04, the Trustee shall deliver and redeliver any Global
Security in permanent global form in the manner and upon instructions given by
the Person or Persons specified therein or in the applicable Issuer Order. If an
Issuer Order pursuant to Section 3.03 or 3.04 has been, or simultaneously is,
delivered, any instructions by the Issuer with respect to endorsement or
delivery or redelivery of a Global Security shall be in writing but need not
comply with Section 1.02 and need not be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 3.03 shall apply to any
Security represented by a Global Security if such Security was never issued and
sold by the Issuer and the Issuer delivers to the Trustee the Global Security
together with written instructions (which need not comply with Section 1.02 and
need not be accompanied by an Opinion of Counsel) with regard to the reduction
in the principal amount of Securities represented thereby, together with the
written statement contemplated by the last sentence of Section 3.03.
Notwithstanding the provisions of Section 3.07, unless otherwise specified
as contemplated by Section 3.01, payment of principal of and any premium, if
any, and interest on any Global Security in permanent global form shall be made
to the registered Holder thereof.
Notwithstanding the provisions of Section 3.08 and except as provided in
the preceding paragraph, the Issuer, the Trustee and any agent of the Issuer and
the Trustee shall treat as the Holder of such principal amount of Outstanding
Securities represented by a permanent Global Security (i) in the case of a
permanent Global Security in registered form, the Holder of such permanent
Global Security in registered form, or (ii) in the case of a permanent Global
Security in bearer form, Euroclear or CEDEL.
Any Global Security authenticated and delivered hereunder shall bear a
legend in substantially the following form:
26
"This Security is a Global Security within the meaning set forth in the
Indenture hereinafter referred to and is registered in the name of a
Depository or a nominee of a Depository. This Security is exchangeable
for Securities registered in the name of a person other than the
Depository or its nominee only in the limited circumstances described
in the Indenture, and may not be transferred except as a whole by the
Depository to a nominee of the Depository or by a nominee of the
Depository to the Depository or another nominee of the Depository or by
the Depository or its nominee to a successor Depository or its
nominee."
ARTICLE III
THE SECURITIES
SECTION 3.01. Amount Unlimited; Issuable in Series. The aggregate principal
amount of Securities which may be authenticated and delivered under this
Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in one or more Board Resolutions or pursuant to authority granted by
one or more Board Resolutions and, subject to Section 3.03, set forth in an
Officers' Certificate, or established in one or more indentures supplemental
hereto, prior to the issuance of Securities of any series:
(1) The title of the Securities of the series (which shall distinguish
the Securities of such series from all other series of Securities);
(2) Any limit upon the aggregate principal amount of the Securities of
the series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 3.04, 3.05, 3.06, 9.06, 11.07 or 14.05);
(3) The price (expressed as a percentage of the principal amount
thereof) at which such Securities will be issued and, if other than the
principal amount thereof, the portion of the principal amount thereof
payable upon declaration of acceleration of the maturity thereof;
27
(4) The date or dates, or the method for determining such date or
dates, on which the principal of such Securities will be payable;
(5) The rate or rates (which may be fixed or variable), or the method
by which such rate or rates shall be determined, at which such Securities
will bear interest, if any;
(6) The date or dates, or the method for determining such date or
dates, from which any such interest will accrue, the dates on which any
such interest will be payable, the record dates for such interest payment
dates, or the method by which such dates shall be determined, the persons
to whom such interest shall be payable, and the basis upon which interest
shall be calculated if other than that of a 360-day year of twelve 30-day
months;
(7) The place or places where the principal of (and premium, if any)
and interest, if any, on such Securities will be payable, where such
Securities may be surrendered for registration of transfer or exchange and
where notices or demands to or upon the Issuer in respect of such
Securities and this Indenture may be served;
(8) The period or periods, if any, within which the price or prices at
which and the other terms and conditions upon which such Securities may,
pursuant to any optional or mandatory redemption provisions, be redeemed,
as a whole or in part, at the option of the Issuer;
(9) The obligation, if any, of the Issuer to redeem, repay or purchase
such Securities pursuant to any sinking fund or analogous provision or at
the option of a holder thereof, and the period or periods within which, the
price or prices at which and the other terms and conditions upon which such
Securities will be redeemed, repaid or purchased, as a whole or in part,
pursuant to such obligation;
(10) The denominations in which any Securities will be issuable, if
other than denominations of U.S.$1,000 and any integral multiple thereof;
(11) If other than Dollars, the currency or currencies in which such
Securities are denominated and payable, which may be a foreign currency or
units of two or more foreign currencies or a composite currency or
28
currencies, the manner of determining the equivalent thereof in Dollars for
purposes of the definition of "Outstanding" in Section 1.01, and the terms
and conditions relating thereto;
(12) Whether the amount of payments of principal of (and premium, if
any, including any amount due upon redemption, if any) or interest, if any,
on such Securities may be determined with reference to an index, formula or
other method (which index, formula or method may, but need not be, based on
the yield on or trading price of other securities, including United States
Treasury securities or on a currency, currencies, currency unit or units,
or composite currency or currencies) and the manner in which such amounts
shall be determined;
(13) Whether the principal of (and premium, if any) or interest on the
Securities of the series are to be payable, at the election of the Issuer
or a holder thereof, in a currency or currencies, currency unit or units or
composite currency or currencies other than that in which such Securities
are denominated or stated to be payable, the period or periods within
which, and the terms and conditions upon which, such election may be made,
and the time and manner of, and identity of the exchange rate agent with
responsibility for, determining the exchange rate between the currency or
currencies, currency unit or units or composite currency or currencies in
which such Securities are denominated or stated to be payable and the
currency or currencies, currency unit or units or composite currency or
currencies in which such Securities are to be so payable;
(14) Provisions, if any, granting special rights to the holders of
Securities of the series upon the occurrence of such events as may be
specified;
(15) Any deletions from, modifications of or additions to the Events
of Default or covenants of the Issuer with respect to Securities of the
series, whether or not such Events of Default or covenants are consistent
with the Events of Default or covenants set forth herein;
(16) Whether and under what circumstances the Issuer will pay any
additional amounts on such Securities in respect of any tax, assessment or
governmental charge and, if so, whether the Issuer will have the option to
redeem such Securities in lieu of making such payment;
29
(17) Whether Securities of the series are to be issuable as Registered
Securities, Bearer Securities (with or without coupons) or both, any
restrictions applicable to the offer, sale or delivery of Bearer Securities
and the terms upon which Bearer Securities of the series may be exchanged
for Registered Securities of the series and vice versa (if permitted by
applicable laws and regulations), whether any Securities of the series are
to be issuable initially in temporary global form and whether any
Securities of the series are to be issuable in permanent global form with
or without coupons and, if so, whether beneficial owners of interests in
any such permanent global Security may exchange such interests for
Securities of such series and of like tenor of any authorized form and
denomination and the circumstances under which any such exchanges may
occur, if other than in the manner provided in the Indenture, and, if
Registered Securities of the series are to be issuable as a Global
Security, the identity of the depository for such series;
(18) The date as of which any Bearer Securities of the series and any
temporary Global Security representing outstanding Securities of the series
shall be dated if other than the date of original issuance of the first
Security of the series to be issued;
(19) The Person to whom any interest on any Registered Security of the
series shall be payable, if other than the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close
of business on the Regular Record Date for such interest, the manner in
which, or the Person to whom, any interest on any Bearer Security of the
series shall be payable, if otherwise than upon presentation and surrender
of the coupons appertaining thereto as they severally mature, and the
extent to which, or the manner in which, any interest payable on a
temporary Global Security on an Interest Payment Date will be paid if other
than in the manner provided herein;
(20) Whether such Securities will be issued in certificated or book
entry form;
(21) The applicability, if any, of the defeasance and covenant
defeasance provisions of Article Fifteen hereof to the Securities of the
series;
30
(22) The terms and conditions, if any, under which the Securities may
be converted or exchanged into other securities of the Issuer or any other
Person;
(23) If the Securities of such series are to be issuable in definitive
form (whether upon original issue or upon exchange of a temporary Security
of such series) only upon receipt of certain certificates or other
documents or satisfaction of other conditions, then the form and/or terms
of such certificates, documents or conditions; and
(24) Any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and the coupons appertaining to any Bearer
Securities of such series shall be substantially identical except, in the case
of Registered Securities, as to denomination and except as may otherwise be
provided in or pursuant to such Board Resolution (subject to Section 3.03) and
set forth in such Officers' Certificate or in any such indenture supplemental
hereto. All Securities of any one series need not be issued at the same time
and, unless otherwise provided, a series may be reopened, without the consent of
the Holders, for issuances of additional Securities of such series.
If any of the terms of the Securities of any series are established by
action taken pursuant to one or more Board Resolutions, a copy of an appropriate
record of such action(s) shall be certified by the Secretary or an Assistant
Secretary of the Issuer and delivered to the Trustee at or prior to the delivery
of the Officers' Certificate setting forth the terms of the Securities of such
series.
SECTION 3.02. Denominations. The Securities of each series shall be
issuable in such denominations as shall be specified as contemplated by Section
3.01. With respect to Securities of any series denominated in Dollars, in the
absence of any such provisions with respect to the Securities of any series, the
Securities of such series, other than Global Securities (which may be of any
denomination), shall be issuable in denominations of $1,000 and any integral
multiple thereof.
SECTION 3.03. Execution, Authentication, Delivery and Dating. The
Securities and any coupons appertaining thereto shall be executed on behalf of
the Issuer by its Chairman of the Board, its President or one of its Vice
Presidents, under its corporate seal reproduced thereon, and attested by its
31
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities and coupons may be manual or facsimile signatures of
the present or any future such authorized officer and may be imprinted or
otherwise reproduced on the Securities.
Securities or coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Issuer shall bind
the Issuer, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities or coupons.
At any time and from time to time after the execution and delivery of this
Indenture, the Issuer may deliver Securities of any series, together with any
coupon appertaining thereto, executed by the Issuer to the Trustee for
authentication, together with an Issuer Order for the authentication and
delivery of such Securities, and the Trustee in accordance with the Issuer Order
shall authenticate and deliver such Securities; provided, however, that, in
connection with its original issuance, no Bearer Security shall be mailed or
otherwise delivered to any location in the United States; and provided further
that, unless otherwise specified with respect to any series of Securities
pursuant to Section 3.01, a Bearer Security may be delivered in connection with
its original issuance only if the Person entitled to receive such Bearer
Security shall have furnished a certificate to Euroclear or CEDEL, as the case
may be, in the form set forth in Exhibit B-1 to this Indenture or such other
certificate as may be specified with respect to any series of Securities
pursuant to Section 3.01, dated no earlier than 15 days prior to the earlier of
the date on which such Bearer Security is delivered and the date on which any
temporary Security first becomes exchangeable for such Bearer Security in
accordance with the terms of such temporary Security and this Indenture. If any
Security shall be represented by a permanent global Bearer Security, then, for
purposes of this Section and Section 3.04, the notation of a beneficial owner's
interest therein upon original issuance of such Security or upon exchange of a
portion of a temporary Global Security shall be deemed to be delivery in
connection with its original issuance of such beneficial owner's interest in
such permanent Global Security. Except as permitted by Section 3.06, the Trustee
shall not authenticate and deliver any Bearer Security unless all appurtenant
coupons for interest then matured have been detached and canceled.
32
If all the Securities of any series are not to be issued at one time and if
the Board Resolution or supplemental indenture establishing such series shall so
permit, such Issuer Order may set forth procedures acceptable to the Trustee for
the issuance of such Securities and determining the terms of particular
Securities of such series, such as interest rate or formula, maturity date, date
of issuance and date from which interest shall accrue. 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 TIA Section 3.15(a) through 3.15(d)) shall be fully protected in
relying upon, (i) an Opinion of Counsel stating that
(a) the form or forms of such Securities and any coupons have been
established in conformity with the provisions of this Indenture;
(b) the terms of such Securities and any coupons have been established
in conformity with the provisions of this Indenture; and
(c) such Securities, together with any coupons appertaining thereto,
when completed by appropriate insertions and executed and delivered by the
Issuer to the Trustee for authentication in accordance with this Indenture,
authenticated and delivered by the Trustee in accordance with this
Indenture and issued by the Issuer in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute legal,
valid and legally binding obligations of the Issuer, enforceable in
accordance with their terms, subject to applicable bankruptcy, insolvency,
fraudulent transfer, reorganization and other similar laws of general
applicability relating to or affecting the enforcement of creditors' rights
generally and to general equitable principles; and
(ii) an Officers' Certificate stating that all conditions
precedent provided for in this Indenture relating to the issuance of
the Securities have been complied with and that, to the best of the
knowledge of the signers of such certificate, that no Event of Default
with respect to any of the Securities shall have occurred and be
continuing.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
33
pursuant to this Indenture will affect the Trustee's own rights, duties,
obligations or immunities under the Securities and this Indenture or otherwise
in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.01 and of the preceding
paragraph, if all the Securities of any series are not to be issued at one time,
it shall not be necessary to deliver an Officers' Certificate otherwise required
pursuant to Section 3.01 or an Issuer Order, or an Opinion of Counsel or an
Officers' Certificate otherwise required pursuant to the preceding paragraph at
the time of issuance of each Security of such series, but such order, opinion
and certificates, with appropriate modifications to cover such future issuances,
shall be delivered at or before the time of issuance of the first Security of
such series.
Each Registered Security shall be dated the date of its authentication and
each Bearer Security shall be dated as of the date specified as contemplated by
Section 3.01.
No Security or coupon shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Security
or Security to which such coupon appertains a certificate of authentication
substantially in the form provided for herein duly executed by the Trustee by
manual signature of an authorized signatory, 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
(including a Global Security) shall have been authenticated and delivered
hereunder but never issued and sold by the Issuer, and the Issuer shall deliver
such Security to the Trustee for cancellation as provided in Section 3.09
together with a written statement (which need not comply with Section 1.02 and
need not be accompanied by an Opinion of Counsel) stating that such Security has
never been issued and sold by the Issuer, 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 3.04. Temporary Securities. (a) Pending the preparation of
definitive Securities of any series, the Issuer may execute, and upon Issuer
Order the Trustee 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
34
in lieu of which they are issued, in registered form, or, if authorized, in
bearer form with one or more coupons or without coupons, and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as conclusively evidenced by
their execution of such Securities. In the case of Securities of any series,
such temporary Securities may be in global form.
Except in the case of temporary Global Securities (which shall be exchanged
as otherwise provided herein or as otherwise provided in or pursuant to a Board
Resolution), if temporary Securities of any series are issued, the Issuer 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 Issuer in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities of any series (accompanied by any non-matured
coupons appertaining thereto), the Issuer shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of the same series of authorized denominations; provided,
however, that no definitive Bearer Security shall be delivered in exchange for a
temporary Registered Security; and provided further that a definitive Bearer
Security shall be delivered in exchange for a temporary Bearer Security only in
compliance with the conditions set forth in Section 3.03. Until so exchanged,
the temporary Securities of any series shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities of such series.
(b) Unless otherwise provided in or pursuant to a Board Resolution, the
following provisions of this Section 3.04(b) shall govern the exchange of
temporary Securities other than through the facilities of The Depository Trust
Company. If any such temporary Security is issued in global form, then such
temporary Global Security shall, unless otherwise provided therein, be delivered
to the London office of a depository or common depository (the "Common
Depository"), for the benefit of Euroclear and CEDEL, for credit to the
respective accounts of the beneficial owners of such Securities (or to such
other accounts as they may direct).
35
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary Global
Security (the "Exchange Date"), the Issuer shall deliver to the Trustee
definitive Securities, in aggregate principal amount equal to the principal
amount of such temporary Global Security, executed by the Issuer. On or after
the Exchange Date, such temporary Global Security shall be surrendered by the
Common Depository to the Trustee, as the Issuer's agent for such purpose, to be
exchanged, in whole or from time to time in part, for definitive Securities
without charge, and the Trustee shall authenticate and deliver, in exchange for
each portion of such temporary Global Security, an equal aggregate principal
amount of definitive Securities of the same series of authorized denominations
and of like tenor as the portion of such temporary Global Security to be
exchanged. The definitive Securities to be delivered in exchange for any such
temporary Global Security shall be in bearer form, registered form, permanent
global bearer form or permanent global registered form, or any combination
thereof, as specified as contemplated by Section 3.01, and, if any combination
thereof is so specified, as requested by the beneficial owner thereof; provided,
however, that, unless otherwise specified in such temporary Global Security,
upon such presentation by the Common Depository, such temporary Global Security
is accompanied by a certificate dated the Exchange Date or a subsequent date and
signed by Euroclear as to the portion of such temporary Global Security held for
its account then to be exchanged and a certificate dated the Exchange Date or a
subsequent date and signed by CEDEL as to the portion of such temporary Global
Security held for its account then to be exchanged, each in the form set forth
in Exhibit B-2 to this Indenture or in such other form as may be established
pursuant to Section 3.01; and provided further that definitive Bearer Securities
shall be delivered in exchange for a portion of a temporary Global Security only
in compliance with the requirements of Section 3.03.
Unless otherwise specified in such temporary Global Security, the interest
of a beneficial owner of Securities of a series in a temporary Global Security
shall be exchanged for definitive Securities of the same series and of like
tenor following the Exchange Date when the account holder instructs Euroclear or
CEDEL, as the case may be, to request such exchange on his behalf and delivers
to Euroclear or CEDEL, as the case may be, a certificate in the form set forth
36
in Exhibit B-1 to this Indenture (or in such other form as may be established
pursuant to Section 3.01), dated no earlier than 15 days prior to the Exchange
Date, copies of which certificate shall be available from the offices of
Euroclear and CEDEL, the Trustee, any Authenticating Agent appointed for such
series of Securities and each Paying Agent. Unless otherwise specified in such
temporary Global Security, any such exchange shall be made free of charge to the
beneficial owners of such temporary Global Security, except that a Person
receiving definitive Securities must bear the cost of insurance, postage,
transportation and the like unless such Person takes delivery of such definitive
Securities in person at the offices of Euroclear or CEDEL. Definitive Securities
in bearer form to be delivered in exchange for any portion of a temporary Global
Security shall be delivered only outside the United States.
Until exchanged in full as hereinabove provided, the temporary Securities
of any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of the same series and of like tenor
authenticated and delivered hereunder, except that, unless otherwise specified
as contemplated by Section 3.01, interest payable on a temporary Global Security
on an Interest Payment Date for Securities of such series occurring prior to the
applicable Exchange Date shall be payable to Euroclear and CEDEL on such
Interest Payment Date upon delivery by Euroclear and CEDEL to the Trustee of a
certificate or certificates in the form set forth in Exhibit B-2 to this
Indenture (or in such other forms as may be established pursuant to Section
3.01), for credit without further interest on or after such Interest Payment
Date to the respective accounts of Persons who are the beneficial owners of such
temporary Global Security on such Interest Payment Date and who have each
delivered to Euroclear or CEDEL, as the case may be, a certificate dated no
earlier than 15 days prior to the Interest Payment Date occurring prior to such
Exchange Date in the form set forth as Exhibit B-1 to this Indenture (or in such
other forms as may be established pursuant to Section 3.01). Notwithstanding
anything to the contrary herein contained, the certifications made pursuant to
this paragraph shall satisfy the certification requirements of the preceding two
paragraphs of this Section 3.04(b) and of the third paragraph of Section 3.03 of
this Indenture and the interests of the Persons who are the beneficial owners of
the temporary Global Security with respect to which such certification was made
will be exchanged for definitive Securities of the same series and of like tenor
on the Exchange Date or the date of certification if such date occurs after the
Exchange Date, without further act or deed by such beneficial owners. Except as
otherwise provided in this paragraph, no payments of principal or interest owing
with respect to a beneficial interest in a temporary Global Security will be
37
made unless and until such interest in such temporary Global Security shall have
been exchanged for an interest in a definitive Security. Any interest so
received by Euroclear and CEDEL and not paid as herein provided shall be
returned to the Trustee prior to the expiration of two years after such Interest
Payment Date in order to be repaid to the Issuer.
SECTION 3.05. Registration, Registration of Transfer and Exchange. The
Issuer shall cause to be kept at the Corporate Trust Office of the Trustee or in
any office or agency of the Issuer in a Place of Payment a register for each
series of Securities (the registers maintained in such office or in any such
office or agency of the Issuer in a Place of Payment being herein sometimes
referred to collectively as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Issuer shall provide for the
registration of Registered Securities and of transfers of Registered Securities.
The Security Register shall be in written form or any other form capable of
being converted into written form within a reasonable time. The Trustee, at its
Corporate Trust Office, is hereby initially appointed "Security Registrar" for
the purpose of registering Registered Securities and transfers of Registered
Securities on such Security Register as herein provided. In the event that the
Trustee shall cease to be Security Registrar, it shall have the right to examine
the Security Register at all reasonable times.
Subject to the provisions of this Section 3.05, upon surrender for
registration of transfer of any Registered Security of any series at any office
or agency of the Issuer in a Place of Payment for that series, the Issuer shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Registered Securities of
the same series, of any authorized denominations and of a like aggregate
principal amount, bearing a number not contemporaneously outstanding, and
containing identical terms and provisions.
Subject to the provisions of this Section 3.05, at the option of the
Holder, Registered Securities of any series may be exchanged for other
Registered Securities of the same series, of any authorized denomination or
denominations and of a like aggregate principal amount, containing identical
terms and provisions, upon surrender of the Registered Securities to be
exchanged at any such office or agency. Whenever any such Registered Securities
are so surrendered for exchange, the Issuer shall execute, and the Trustee shall
authenticate and deliver, the Registered Securities which the Holder making the
exchange is entitled to receive. Unless otherwise specified with respect to any
38
series of Securities as contemplated by Section 3.01, Bearer Securities may not
be issued in exchange for Registered Securities.
If (but only if) permitted by the applicable Board Resolution and (subject
to Section 3.03) set forth in the applicable Officers' Certificate, or in any
indenture supplemental hereto, delivered as contemplated by Section 3.01, at the
option of the Holder, Bearer Securities of any series may be exchanged for
Registered Securities of the same series of any authorized denominations and of
a like aggregate principal amount and tenor, upon surrender of the Bearer
Securities to be exchanged at any such office or agency, with all unmatured
coupons and all matured coupons in default thereto appertaining. If the Holder
of a Bearer Security is unable to produce any such unmatured coupon or coupons
or matured coupon or coupons in default, any such permitted exchange may be
effected if the Bearer Securities are accompanied by payment in funds acceptable
to the Issuer in an amount equal to the face amount of such missing coupon or
coupons, or the surrender of such missing coupon or coupons may be waived by the
Issuer and the Trustee if there is furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to any Paying Agent any
such missing coupon in respect of which such a payment shall have been made,
such Holder shall be entitled to receive the amount of such payment; provided,
however, that, except as otherwise provided in Section 11.06, interest
represented by coupons shall be payable only upon presentation and surrender of
those coupons at an office or agency located outside the United States.
Notwithstanding the foregoing, in case a Bearer Security of any series is
surrendered at any such office or agency in a permitted exchange for a
Registered Security of the same series and like tenor after the close of
business at such office or agency on (i) any Regular Record Date and before the
opening of business at such office or agency on the relevant Interest Payment
Date, or (ii) any Special Record Date and before the opening of business at such
office or agency on the related proposed date for payment of Defaulted Interest,
such Bearer Security shall be surrendered without the coupon relating to such
Interest Payment Date or proposed date for payment, as the case may be, and
interest or Defaulted Interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in
respect of the Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such coupon when due in accordance
with the provisions of this Indenture. Whenever any Securities are so
39
surrendered for exchange, the Issuer shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 3.01, any permanent Global Security shall be
exchangeable only as provided in this paragraph. If the depository for any
permanent Global Security is The Depository Trust Company ("DTC"), then, unless
the terms of such Global Security expressly permit such Global Security to be
exchanged in whole or in part for definitive Securities, a Global Security may
be transferred, in whole but not in part, only to a nominee of DTC, or by a
nominee of DTC to DTC, or to a successor to DTC for such Global Security
selected or approved by the Issuer or to a nominee of such successor to DTC. If
at any time DTC notifies the Issuer that it is unwilling or unable to continue
as depository for the applicable Global Security or Securities or if at any time
DTC ceases to be a clearing agency registered under the Securities Exchange Act
of 1934 if so required by applicable law or regulation, the Issuer shall appoint
a successor depository with respect to such Global Security or Securities. If
(x) a successor depository for such Global Security or Securities is not
appointed by the Issuer within 90 days after the Issuer receives such notice or
becomes aware of such unwillingness, inability or ineligibility, (y) an Event of
Default has occurred and is continuing and the beneficial owners representing a
majority in principal amount of the applicable series of Securities represented
by such Global Security or Securities advise DTC to cease acting as depository
for such Global Security or Securities or (z) the Issuer, in its sole
discretion, determines at any time that all Outstanding Securities (but not less
than all) of any series issued or issuable in the form of one or more Global
Securities shall no longer be represented by such Global Security or Securities,
then the Issuer shall execute, and the Trustee shall authenticate and deliver
definitive Securities of like series, rank, tenor and terms in definitive form
in an aggregate principal amount equal to the principal amount of such Global
40
Security or Securities. If any beneficial owner of an interest in a permanent
global Security is otherwise entitled to exchange such interest for Securities
of such series and of like tenor and principal amount of another authorized form
and denomination, as specified as contemplated by Section 3.01 and provided that
any applicable notice provided in the permanent Global Security shall have been
given, then without unnecessary delay but in any event not later than the
earliest date on which such interest may be so exchanged, the Issuer shall
execute, and the Trustee shall authenticate and deliver definitive Securities in
aggregate principal amount equal to the principal amount of such beneficial
owner's interest in such permanent Global Security. On or after the earliest
date on which such interests may be so exchanged, such permanent Global Security
shall be surrendered for exchange by DTC or such other depository as shall be
specified in the Issuer Order with respect thereto to the Trustee, as the
Issuer's agent for such purpose; provided, however, that no such exchanges may
occur during a period beginning at the opening of business 15 days before any
selection of Securities to be redeemed and ending on the relevant Redemption
Date if the Security for which exchange is requested may be among those selected
for redemption; and provided further that no Bearer Security delivered in
exchange for a portion of a permanent Global Security shall be mailed or
otherwise delivered to any location in the United States. If a Registered
Security is issued in exchange for any portion of a permanent Global Security
after the close of business at the office or agency where such exchange occurs
on (i) any Regular Record Date and before the opening of business at such office
or agency on the relevant Interest Payment Date, or (ii) any Special Record Date
and the opening of business at such office or agency on the related proposed
date for payment of Defaulted Interest, interest or Defaulted Interest, as the
case may be, will not be payable on such Interest Payment Date or proposed date
for payment, as the case may be, in respect of such Registered Security, but
will be payable on such Interest Payment Date or proposed date for payment, as
the case may be, only to the Person to whom interest in respect of such portion
of such permanent Global Security is payable in accordance with the provisions
of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Issuer, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange or redemption shall (if so required by the Issuer or
the Security Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Issuer and the Security
Registrar, duly executed by the Holder thereof or his attorney duly authorized
in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Issuer 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
41
exchanges pursuant to Section 3.04, 9.06, 11.07 or 14.05 not involving any
transfer.
The Issuer or the Trustee, as applicable, shall not be required (i) to
issue, register the transfer of or exchange any Security if such Security may be
among those selected for redemption during a period beginning at the opening of
business 15 days before selection of the Securities to be redeemed under Section
11.03 and ending at the close of business on (A) if such Securities are issuable
only as Registered Securities, the day of the mailing of the relevant notice of
redemption and (B) if such Securities are issuable as Bearer Securities, the day
of the first publication of the relevant notice of redemption or, if such
Securities are also issuable as Registered Securities and there is no
publication, the mailing of the relevant notice of redemption, or (ii) to
register the transfer of or exchange any Registered Security so selected for
redemption in whole or in part, except, in the case of any Registered Security
to be redeemed in part, the portion thereof not to be redeemed, or (iii) to
exchange any Bearer Security so selected for redemption except that such a
Bearer Security may be exchanged for a Registered Security of that series and
like tenor, provided that such Registered Security shall be simultaneously
surrendered for redemption, or (iv) to issue, register the transfer of or
exchange any Security which has been surrendered for repayment at the option of
the Holder, except the portion, if any, of such Security not to be so repaid.
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities. If any
mutilated Security or a Security with a mutilated coupon appertaining to it is
surrendered to the Trustee or the Issuer, together with, in proper cases, such
security or indemnity as may be required by the Issuer or the Trustee to save
each of them or any agent of either of them harmless, the Issuer shall execute
and the Trustee shall authenticate and deliver in exchange therefor a new
Security of the same series and principal amount, containing identical terms and
provisions and bearing a number not contemporaneously outstanding, with coupons
corresponding to the coupons, if any, appertaining to the surrendered Security.
If there shall be delivered to the Issuer and to the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security or
coupon, and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
42
notice to the Issuer or the Trustee that such Security or coupon has been
acquired by a bona fide purchaser, the Issuer shall execute and upon its request
the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost
or stolen Security or in exchange for the Security to which a destroyed, lost or
stolen coupon appertains (with all appurtenant coupons not destroyed, lost or
stolen), a new Security of the same series and principal amount, containing
identical terms and provisions and bearing a number not contemporaneously
outstanding, with coupons corresponding to the coupons, if any, appertaining to
such destroyed, lost or stolen Security or to the Security to which such
destroyed, lost or stolen coupon appertains.
Notwithstanding the provisions of the previous two paragraphs, in case any
such mutilated, destroyed, lost or stolen Security or coupon has become or is
about to become due and payable, the Issuer in its discretion may, instead of
issuing a new Security, with coupons corresponding to the coupons, if any,
appertaining to such destroyed, lost or stolen Security or to the Security to
which such destroyed, lost or stolen coupon appertains, pay such Security or
coupon; provided, however, that payment of principal of (and premium, if any),
and any interest on, Bearer Securities shall, except as otherwise provided in
Section 11.06, be payable only at an office or agency located outside the United
States and, unless otherwise specified as contemplated by Section 3.01, any
interest on Bearer Securities shall be payable only upon presentation and
surrender of the coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Issuer may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series with its coupons, if any, issued pursuant
to this Section in lieu of any destroyed, lost or stolen Security, or in
exchange for a Security to which a destroyed, lost or stolen coupon appertains,
shall constitute an original additional contractual obligation of the Issuer,
whether or not the destroyed, lost or stolen Security and its coupons, if any,
or the destroyed, lost or stolen coupon shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series and their
coupons, if any, duly issued hereunder.
43
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons.
SECTION 3.07. Payment of Interest; Interest Rights Preserved. Except as
otherwise specified with respect to a series of Securities in accordance with
the provisions of Section 3.01, interest on any Registered Security that is
payable, and is punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest at the office or agency of the Issuer maintained
for such purpose pursuant to Section 10.02; provided, however, that each
installment of interest on any Registered Security may at the Issuer's option be
paid by (i) mailing a check for such interest, payable to or upon the written
order of the Person entitled thereto pursuant to Section 3.08, to the address of
such Person as it appears on the Security Register or (ii) transfer to an
account maintained by the payee located inside the United States.
Unless otherwise provided as contemplated by Section 3.01 with respect to
the Securities of any series, payment of interest may be made, in the case of a
Bearer Security, by transfer to an account maintained by the payee with a bank
located outside the United States.
Unless otherwise provided as contemplated by Section 3.01, every permanent
global Security will provide that interest, if any, payable on any Interest
Payment Date will be paid to DTC, Euroclear and/or CEDEL, as the case may be,
with respect to that portion of such permanent global Security held for its
account by Cede & Co. or the Common Depository, as the case may be, for the
purpose of permitting such party to credit the interest received by it in
respect of such permanent global Security to the accounts of the beneficial
owners thereof.
In case a Bearer Security of any series is surrendered in exchange for a
Registered Security of such series after the close of business (at an office or
agency in a Place of Payment for such series) on any Regular Record Date and
before the opening of business (at such office or agency) on the next succeeding
Interest Payment Date, such Bearer Security shall be surrendered without the
coupon relating to such Interest Payment Date and interest will not be payable
44
on such Interest Payment Date in respect of the Registered Security issued in
exchange for such Bearer Security, but will be payable only to the Holder of
such coupon when due in accordance with the provisions of this Indenture.
Except as otherwise specified with respect to a series of Securities in
accordance with the provisions of Section 3.01, any interest on any Registered
Security of any series that is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date (herein called "Defaulted Interest")
shall forthwith cease to be payable to the registered Holder thereof on the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Issuer, at its election in each case, as
provided in clause (1) or (2) below:
(1) The Issuer 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 Issuer 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 (which shall not be less than 20 days after such notice is
received by the Trustee), and at the same time the Issuer shall
deposit with the Trustee an amount of money in the currency or
currencies, currency unit or units or composite currency or currencies
in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 3.01 for the Securities of
such series) equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit on or prior to the date
of the proposed payment, such money when deposited to be held in trust
for the benefit of the Persons entitled to such Defaulted Interest as
in this clause provided. Thereupon the Trustee shall fix a Special
Record Date for the payment of such Defaulted Interest which shall be
not more than 15 days and not less than 10 days prior to the date of
the proposed payment and not less than 10 days after the receipt by
the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Issuer of such Special Record Date and, in the
name and at the expense of the Issuer, shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record
Date therefor to be mailed, first-class postage prepaid, to each
Holder of Registered Securities of such series at his address as it
appears in the Security Register not less than 10 days prior to such
45
Special Record Date. The Trustee may, in its discretion, in the name
and at the expense of the Issuer, cause a similar notice to be
published at least once in an Authorized Newspaper in each Place of
Payment, but such publications shall not be a condition precedent to
the establishment of such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date
therefor having been mailed as aforesaid, such Defaulted Interest
shall be paid to the Persons in whose names the Registered Securities
of such series (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and
shall no longer be payable pursuant to the following clause (2). In
case a Bearer Security of any series is surrendered at the office or
agency in a Place of Payment for such series in exchange for a
Registered Security of such series after the close of business at such
office or agency on any Special Record Date and before the opening of
business at such office or agency on the related proposed date for
payment of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such proposed date of
payment and Defaulted Interest will not be payable on such proposed
date of payment in respect of the Registered Security issued in
exchange for such Bearer Security, but will be payable only to the
Holder of such coupon when due in accordance with the provisions of
this Indenture.
(2) The Issuer may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Issuer to the Trustee
of the proposed payment pursuant to this clause, such manner of
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 3.05, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
46
SECTION 3.08. Persons Deemed Owners. Prior to due presentment of a
Registered Security for registration of transfer, the Issuer, the Trustee and
any agent of the Issuer or the Trustee may treat the Person in whose name such
Registered Security is registered as the owner of such Security for the purpose
of receiving payment of principal of (and premium, if any), and (subject to
Sections 3.05 and 3.07) interest on, such Registered Security and for all other
purposes whatsoever, whether or not such Registered Security be overdue, and
neither the Issuer, the Trustee nor any agent of the Issuer 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
sum or sums so paid, effectual to satisfy and discharge the liability for money
payable upon any such Security.
Title to any Bearer Security and any coupons appertaining thereto shall
pass by delivery. The Issuer, the Trustee and any agent of the Issuer or the
Trustee may treat the Holder of any Bearer Security and the Holder of any coupon
as the absolute owner of such Security or coupon for the purpose of receiving
payment thereof or on account thereof and for all other purposes whatsoever,
whether or not such Security or coupon be overdue, and neither the Issuer, the
Trustee nor any agent of the Issuer 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 depository shall have any rights under this Indenture with respect
to such Global Security and such depository shall be treated by the Issuer, the
Trustee, and any agent of the Issuer or the Trustee as the owner of such Global
Security for all purposes whatsoever. None of the Issuer, the Trustee, any
Paying Agent or the Security Registrar will have any responsibility or liability
for any aspect of the records relating to or payments made on account of
beneficial ownership interests of a Global Security or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
Notwithstanding the foregoing, with respect to any Global Security, nothing
herein shall prevent the Issuer, the Trustee, or any agent of the Issuer or the
Trustee, from giving effect to any written certification, proxy or other
authorization furnished by any depository, as a Holder, with respect to such
Global Security or impair, as between such depository and owners of beneficial
47
interests in such Global Security, the operation of customary practices
governing the exercise of the rights of such depository (or its nominee) as
Holder of such Global Security.
SECTION 3.09. Cancellation. All Securities and coupons surrendered for
payment, redemption, repayment at the option of the Holder, 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 any such Securities and coupons and Securities and coupons surrendered
directly to the Trustee for any such purpose shall be promptly cancelled by it.
The Issuer may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Issuer may
have acquired in any manner whatsoever, and may deliver to the Trustee (or to
any other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Issuer has not issued and sold, and
all Securities so delivered shall be promptly cancelled by the Trustee. If the
Issuer shall so acquire any of the Securities, however, such acquisition shall
not operate as a redemption or satisfaction of the indebtedness represented by
such Securities unless and until the same are surrendered to the Trustee for
cancellation. No Securities shall be authenticated in lieu of or in exchange for
any Securities cancelled as provided in this Section, except as expressly
permitted by this Indenture. Cancelled Securities and coupons held by the
Trustee shall be destroyed by the Trustee and the Trustee shall deliver a
certificate of such destruction to the Issuer, unless the Trustee is otherwise
directed by an Issuer Order.
SECTION 3.10. Computation of Interest. Except as otherwise specified as
contemplated by Section 3.01 with respect to Securities of any series, interest
on the Securities of each series shall be computed on the basis of a 360-day
year consisting of twelve 30-day months.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.01. Satisfaction and Discharge of Indenture. This Indenture shall
upon Issuer Request cease to be of further effect with respect to any series of
Securities and any related Guarantees specified in such Issuer Request (except
as to any surviving rights of registration of transfer or exchange of Securities
of such series herein expressly provided for), and the Trustee, upon receipt of
48
an Issuer Order, and at the expense of the Issuer, shall execute instruments in
form and substance satisfactory to the Trustee, the Issuer and the Guarantor
acknowledging satisfaction and discharge of this Indenture as to such series
when
(1) either
(A) all Securities of such series theretofore authenticated and
delivered and all coupons, if any, appertaining thereto (other than
(i) coupons appertaining to Bearer Securities surrendered for exchange
for Registered Securities and maturing after such exchange, whose
surrender is not required or has been waived as provided in Section
3.05, (ii) Securities and coupons of such series which have been
destroyed, lost or stolen and which have been replaced or paid as
provided in Section 3.06, (iii) coupons appertaining to Securities
called for redemption and maturing after the relevant Redemption Date,
whose surrender has been waived as provided in Section 11.06, and (iv)
Securities and coupons of such series for whose payment money has
theretofore been deposited in trust or segregated and held in trust by
the Issuer and thereafter repaid to the Issuer or discharged from such
trust, as provided in Section 10.03) have been delivered to the
Trustee for cancellation; or
(B) all Securities of such series and, in the case of (i) or (ii)
below, any coupons appertaining thereto not theretofore delivered to
the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) if redeemable at the option of the Issuer, are to be
called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Issuer,
and the Issuer, in the case of (i), (ii) or (iii) above, has
irrevocably (except as provided in the second proviso to Section 4.03)
deposited or caused to be deposited with the Trustee as trust funds in
trust for the purpose an amount in the currency or currencies,
currency unit or units or composite currency or currencies in which
the Securities of such series are payable, sufficient to pay and
49
discharge the entire indebtedness on such Securities and such coupons
not theretofore delivered to the Trustee for cancellation, for
principal (and premium, if any) and interest 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 Issuer has paid or caused to be paid all other sums payable
hereunder by the Issuer; and
(3) the Issuer 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 as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Issuer to the Trustee and any predecessor Trustee under
Section 6.06, the obligations of the Issuer to any Authenticating Agent under
Section 6.11 and, if money shall have been deposited with and held by the
Trustee pursuant to subclause (B) of clause (1) of this Section, the obligations
of the Trustee under Section 4.02 and the last paragraph of Section 10.03 shall
survive.
Notwithstanding the reference to premium under subclause (B) of clause (1)
of this Section, the Issuer shall not be required to deposit pursuant thereto
any premium that would be payable on the Securities of such series only upon
acceleration of the Maturity thereof pursuant to Section 5.02.
SECTION 4.02. Application of Trust Funds. Subject to the provisions of the
last paragraph of Section 10.03, all money deposited with the Trustee pursuant
to Section 4.01 shall be held in trust and applied by it, in accordance with the
provisions of the Securities, the coupons and this Indenture, to the payment,
either directly or through any Paying Agent (including the Issuer acting as its
own Paying Agent) as the Trustee may determine, to the Persons entitled thereto,
of the principal (and premium, if any), and any interest for whose payment such
money has been deposited with or received by the Trustee, but such money need
not be segregated from other funds except to the extent required by law.
SECTION 4.03. Reinstatement. If the Trustee or the Paying Agent is unable
to apply any money in accordance with this Article Four by reason of any order
or judgment of any court or governmental authority enjoining, restraining or
50
otherwise prohibiting such application, the Issuer's obligations under this
Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to this Article Four until such time as the
Trustee or Paying Agent is permitted to apply all money held in trust with
respect to the Securities; provided, however, that if the Issuer makes any
payment of principal of or any premium or interest on any Securities following
the reinstatement of its obligations, the Issuer shall be subrogated to the
rights of the Holders of the Securities to receive such payment from the money
so held by the Trustee or Paying Agent in trust; provided further that, if the
Issuer's obligations are revived and reinstated as herein provided, the Trustee
or Paying Agent shall, upon Issuer Request, discharge from trust and pay to the
Issuer all funds (together with the earnings thereon, if any) previously
deposited therewith pursuant to Section 4.02 and thereupon the Issuer, the
Trustee, any Paying Agent and the holders of the Securities of such series shall
be restored severally and respectively to their former positions hereunder as if
no satisfaction and discharge had been effected.
ARTICLE V
REMEDIES
SECTION 5.01. Events of Default. "Event of Default," wherever used herein
with respect to any particular series of Securities, means any one of the
following events (whatever the reason for such Event of Default and whether or
not it shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(1) default in the payment of any interest on any Security of that
series or of any coupon appertaining thereto, when such interest or coupon
becomes due and payable, and continuance of such default for a period of 30
days (whether or not payment is prohibited by Articles XII or XIV); or
(2) default in the payment of the principal of (or premium, if any,
on) any Security of that series when it becomes due and payable at its
Maturity (whether or not payment is prohibited by Articles XII or XIV); or
51
(3) default in the deposit of any sinking fund payment, when and as
due by the terms of any Security of that series; or
(4) default in the performance, or breach, of any covenant or warranty
of the Issuer in this Indenture with respect to any Security of that series
(other than a covenant or warranty a default in whose performance or whose
breach is elsewhere in this Section specifically dealt with), and
continuance of such default or breach for a period of 60 days after there
has been given, by registered or certified mail, to the Issuer and the
Guarantor by the Trustee or to the Issuer, the Guarantor and the Trustee by
the Holders of at least 25% in 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) default under any bond, debenture, note, mortgage, indenture or
instrument under which there may be issued or by which there may be secured
or evidenced any indebtedness for money borrowed by the Issuer or the
Guarantor (or by any Subsidiary, the repayment of which the Issuer or the
Guarantor has guaranteed or for which the Issuer or the Guarantor is
directly responsible or liable as obligor or guarantor), having an
aggregate principal amount outstanding of at least $20,000,000, whether
such indebtedness now exists or shall hereafter be created, which default
shall have resulted in such indebtedness becoming or being declared due and
payable prior to the date on which it would otherwise have become due and
payable, without such indebtedness having been discharged, or such
acceleration having been rescinded or annulled, within a period of 10 days
after there shall have been given, by registered or certified mail, to the
Issuer and the Guarantor by the Trustee or to the Issuer, the Guarantor and
the Trustee by the Holders of at least 10% in principal amount of the
Outstanding Securities of that series a written notice specifying such
default and requiring the Issuer to cause such indebtedness to be
discharged or cause such acceleration to be rescinded or annulled and
stating that such notice is a "Notice of Default" hereunder; or
(6) the Issuer or the Guarantor or any Significant Subsidiary pursuant
to or within the meaning of any Bankruptcy Law:
52
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it in an
involuntary case,
(C) consents to the appointment of a Custodian of it or for all
or substantially all of its property, or
(D) makes a general assignment for the benefit of its creditors;
or
(7) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against the Issuer or the Guarantor or any
Significant Subsidiary in an involuntary case,
(B) appoints a Custodian of the Issuer or the Guarantor or any
Significant Subsidiary or for all or substantially all of either of
its property, or
(C) orders the liquidation of the Issuer or the Guarantor or any
Significant Subsidiary, and the order or decree remains unstayed and
in effect for 90 days; or
(8) any other Event of Default provided with respect to Securities of
that series.
As used in this Section 5.01, the term "Bankruptcy Law" means title 11, U.S.
Code or any similar Federal or state law for the relief of debtors and the term
"Custodian" means any receiver, trustee, assignee, liquidator or other similar
official under any Bankruptcy Law.
SECTION 5.02. 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 (other than an Event of Default specified
in Section 5.01(6) or (7)), then and in every such case the Trustee or the
Holders of not less than 25% in principal amount of the Outstanding Securities
of that series may declare the principal amount (or, if Securities of that
Series are Original Issue Discount Securities or Indexed Securities, such
portion of the principal as may be specified in the terms thereof) on all the
Securities of that series to be due and payable immediately, by a notice in
53
writing to the Issuer (and to the Trustee if given by the Holders), and upon any
such declaration such principal or specified portion thereof, if any, shall
become immediately due and payable. If an Event of Default specified in Section
5.01(6) or (7) with respect to Securities of any series at the time Outstanding
occurs and is continuing, then, and in every such case, the principal amount
(or, if any Securities of that series are Original Discount Securities or
Indexed Securities, such portion of the principal amount as may be specified in
the terms thereof) of, if any, on all of the Securities of that series shall
become and be immediately due and payable without any declaration or other
action on the part of the Trustee or any holder.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Issuer and the
Trustee, may rescind and annul such declaration of acceleration and its
consequences if:
(1) the Issuer or the Guarantor has paid or deposited with the Trustee
a sum sufficient to pay in the currency, currency unit or composite
currency in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 3.01 for the Securities of such
series):
(A) all overdue installments of interest on all Outstanding
Securities of that series and any related coupons,
(B) the principal of (and premium, if any, on) any Outstanding
Securities of that series which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate or rates
borne by or provided for in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest at the rate or rates
borne by or provided for in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
54
(2) all Events of Default with respect to Securities of that series,
other than the nonpayment of the principal of (or premium, if any) or
interest on Securities of that series which have become due solely by such
declaration of acceleration, have been cured or waived as provided in
Section 5.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 5.03. Collection of Indebtedness and Suits for Enforcement by
Trustee. The Issuer and the Guarantor covenant that if:
(1) default is made in the payment of any installment of interest on
any Security of any series and any related coupon when such interest
becomes due and payable and such default continues for a period of 30 days,
or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security of any series at its Maturity,
then the Issuer or the Guarantor will, upon demand of the Trustee, pay to the
Trustee, for the benefit of the Holders of such Securities of such series and
coupons, the whole amount then due and payable on such Securities and coupons
for principal (and premium, if any) and interest, with interest upon any overdue
principal (and premium, if any) and, to the extent that payment of such interest
shall be legally enforceable, upon any overdue installments of interest at the
rate or rates borne by or provided for in such Securities, and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Issuer or the Guarantor fails to pay such amounts forthwith upon
such demand, the Trustee, in its own name and as trustee of an express trust,
may institute a judicial proceeding for the collection of the sums so due and
unpaid, and may prosecute such proceeding to judgment or final decree, and may
enforce the same against the Issuer or any other obligor upon such Securities of
such series and collect the moneys adjudged or decreed to be payable in the
55
manner provided by law out of the property of the Issuer or any other obligor
upon such Securities of such series, wherever situated.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series and any
related coupons by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid of
the exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 5.04. Trustee May File Proofs of Claim. In case of the pendency of
any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Issuer or any other obligor upon the Securities or the property of the
Issuer or of such other obligor or their creditors, the Trustee (irrespective of
whether the principal of the Securities of any series shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand on the Issuer or other obligor
for the payment of overdue principal, premium, if any, 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, or such lesser
amount as may be provided for in the Securities of such series, of
principal (and 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 of Securities of such series and coupons to make such payments to
the Trustee, and in the event that the Trustee shall consent to the making of
56
such payments directly to the Holders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee and any predecessor Trustee, their agents and counsel, and any other
amounts due the Trustee or any predecessor Trustee under Section 6.06.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
or coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or coupons or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder of a
Security or coupon in any such proceeding; provided, however, that the Trustee
may, on behalf of the Holders, vote for the election of a trustee in bankruptcy
or similar official and may be a member of the creditors' committee.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party) the Trustee shall be held to represent all the Holders
of the Securities, and it shall not be necessary to make any Holders of the
Securities parties to any such proceedings.
SECTION 5.05. Trustee May Enforce Claims Without Possession of Securities
or Coupons. All rights of action and claims under this Indenture or any of the
Securities or coupons may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or coupons or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the Securities and
coupons in respect of which such judgment has been recovered.
SECTION 5.06. Application of Money Collected. Any money collected by the
Trustee pursuant to this Article shall be applied in the following order, at the
date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal (or premium, if any) or interest, upon
presentation of the Securities or coupons, or both, as the case may be, and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
57
FIRST: To the payment of costs and expenses of collection, including
all sums paid or advanced by the Trustee hereunder and the reasonable
compensation, expenses and disbursements of the Trustee, its agents and
counsel all other amounts due the Trustee and any predecessor Trustee under
Section 6.06;
SECOND: To the payment of the amounts then due and unpaid upon the
Securities and coupons for principal (and premium, if any) and interest, in
respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
aggregate amounts due and payable on such Securities and coupons for
principal (and premium, if any) and interest, respectively; and
THIRD: To the payment of the remainder, if any, to the Issuer or the
Guarantor, as the case may be.
SECTION 5.07. Limitation on Suits. No Holder of any Security of any series
or any related coupon 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
reasonably 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;
58
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 5.08. Unconditional Right of Holders to Receive Principal, Premium,
if any, and Interest. Notwithstanding any other provision in this Indenture, the
Holder of any Security or coupon shall have the right which is absolute and
unconditional to receive payment of the principal of (and premium, if any) and
(subject to Sections 3.05 and 3.07) interest on such Security or payment of such
coupon on the respective due dates expressed in such Security or coupon (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 5.09. Restoration of Rights and Remedies. If the Trustee or any
Holder of a Security or coupon has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, the Issuer, the Trustee and the
Holders of Securities and coupons shall, subject to any determination in such
proceeding, be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.
SECTION 5.10. Rights and Remedies Cumulative. Except as otherwise provided
with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Securities or coupons in the last paragraph of Section 3.06, no right or
remedy herein conferred upon or reserved to the Trustee or to the Holders of
Securities or coupons is intended to be exclusive of any other right or remedy,
and every right and remedy shall, to the extent permitted by law, be cumulative
and in addition to every other right and remedy given hereunder or now or
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.
59
SECTION 5.11. Delay or Omission Not Waiver. No delay or omission of the
Trustee or of any Holder of any Security or coupon to exercise any right or
remedy accruing upon any Event of Default shall impair any such right or remedy
or constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders of Securities or coupons, as the
case may be.
SECTION 5.12. Control by Holders of Securities. The Holders of not less
than 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 need not take any action which might involve it in
personal liability or be unduly prejudicial to the Holders of Securities of
such series not joining therein, it being understood that (subject to
Section 6.02) the Trustee shall have no duty to ascertain whether or not
such actions or forbearance are unduly prejudicial to such Holders.
Nothing in this Indenture shall impair the right of the Trustee in its
discretion to take any action deemed proper by the Trustee and which is not
inconsistent with such direction by Holders.
SECTION 5.13. Waiver of Past Defaults. The Holders of not less than a
majority in principal amount of the Outstanding Securities of any series may on
behalf of the Holders of all the Securities of such series and any related
coupons waive any past default hereunder with respect to such series and its
consequences, except a default
60
(1) in the payment of the principal of (or premium, if any) or
interest on any Security of such series or any related coupons, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent thereon.
SECTION 5.14. Waiver of Usury, Stay or Extension Laws. The Issuer covenants
(to the extent that it may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any usury, stay or extension law wherever enacted, now or at any
time hereafter in force, which may affect the covenants or the performance of
this Indenture; and the Issuer (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
SECTION 5.15. 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; but the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Securities of any series, or to any suit instituted by any Holder
for the enforcement of the payment of the principal of (or premium, if any) or
61
interest on any Security on or after the respective Stated Maturities expressed
in such Security (or, in the case of redemption, on or after the Redemption
Date).
ARTICLE VI
THE TRUSTEE
SECTION 6.01. Notice of Defaults. Within 90 days after the occurrence of
any default hereunder with respect to the Securities of any series, the Trustee
shall transmit in the manner and to the extent provided in TIA Section 3.13(c),
notice of such default hereunder known to the Trustee, unless such default shall
have been cured or waived; provided, however, that, except in the case of a
default in the payment of the principal of (or premium, if any) or interest on
any Security of such series, or in the payment of any sinking fund installment
with respect to the Securities of such series, the Trustee shall be protected in
withholding such notice if and so long as Responsible Officers of the Trustee in
good faith determine that the withholding of such notice is in the interests of
the Holders of the Securities and coupons of such series; and provided further
that in the case of any default or breach of the character specified in Section
5.01(4) with respect to the Securities and coupons of such series, no such
notice to Holders shall be given until at least 60 days after the occurrence
thereof. For the purpose of this Section, the term "default" means any event
which is, or after notice or lapse of time or both would become, an Event of
Default with respect to the Securities of such series.
SECTION 6.02. Certain Rights of Trustee. Subject to the provisions of TIA
Section 3.15(a) through 3.15(d):
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate,
certificate, statement, instrument, Opinion of Counsel, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, coupon
or other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(2) any request or direction of the Issuer mentioned herein shall be
sufficiently evidenced by an Issuer Request or Issuer Order (other than
delivery of any Security, together with any coupons appertaining thereto,
to the Trustee for authentication and delivery pursuant to Section 3.03
which shall be sufficiently evidenced as provided therein) and any
62
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(3) 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;
(4) before the Trustee acts or refrains from acting, 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;
(5) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders of Securities of any series or any related coupons
pursuant to this Indenture, unless such Holders shall have offered to the
Trustee security or indemnity reasonably satisfactory to the Trustee
against the costs, expenses and liabilities which might be incurred by it
in compliance with such request or direction;
(6) 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, coupon or other paper or document, unless requested
in writing so to do by the Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities of any series; provided
that, if the payment within a reasonable time to the Trustee of the costs,
expenses or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured to
the Trustee by the security afforded to it by the terms of this Indenture,
the Trustee may require reasonable indemnity against such expenses or
liabilities as a condition to proceeding; the reasonable expenses of every
63
such examination shall be paid by the Holders or, if paid by the Trustee,
shall be repaid by the Holders upon demand. The Trustee, in its discretion,
may make such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Issuer, relevant to the facts or matters that
are the subject of its inquiry, personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder;
(8) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and reasonably believed by it to be authorized
or within the discretion or rights or powers conferred upon it by this
Indenture;
(9) the Trustee shall not be liable for any action taken or omitted by
it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Indenture;
(10) the Trustee shall not be required to give any bond or surety in
respect of the performance of its powers and duties hereunder;
(11) the permissive rights of the Trustee to do things enumerated in
this Indenture shall not be construed as a duty and the Trustee shall not
be answerable for other than its negligence or willful misconduct; and
(12) except for (i) a default under Sections 5.01.(1) or (2) hereof,
or (ii) any other event of which the Trustee has "actual knowledge" and
which event, with the giving of notice or the passage of time or both,
would constitute an Event of Default under this Indenture, the Trustee
shall not be deemed to have notice of any default or Event of Default
unless specifically notified in writing of such event by the Issuer or the
Holders of not less than 25% in aggregate principal amount of the
Securities then outstanding; as used herein, the term "actual knowledge"
means the actual fact or statement of knowing, without any duty to make any
investigation with regard thereto.
64
The Trustee shall not be required to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
Except during the continuance of an Event of Default, the Trustee
undertakes to perform 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.
SECTION 6.03. Not Responsible for Recitals or Issuance of Securities. The
recitals contained herein and in the Securities, except the Trustee's
certificate of authentication, and in any coupons shall be taken as the
statements of the Issuer, 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 or coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder. Neither the Trustee nor any
Authenticating Agent shall be accountable for the use or application by the
Issuer of Securities or the proceeds thereof.
SECTION 6.04. May Hold Securities. The Trustee, any Paying Agent, Security
Registrar, Authenticating Agent or any other agent of the Issuer, in its
individual or any other capacity, may become the owner or pledgee of Securities
and coupons and, subject to TIA Sections 3.10(b) and 311, may otherwise deal
with the Issuer with the same rights it would have if it were not Trustee,
Paying Agent, Security Registrar, Authenticating Agent or such other agent.
SECTION 6.05. 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 Issuer.
SECTION 6.06. Compensation and Reimbursement. The Issuer agrees:
(1) to pay to the Trustee from time to time, and the Trustee shall be
entitled to, reasonable compensation for all services rendered by it
65
hereunder (which compensation shall not be limited by any provision of law
in regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse each
of the Trustee and any predecessor 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 reasonable expenses and disbursements of
its agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or willful misconduct; and
(3) to indemnify each of the Trustee and any predecessor Trustee for,
and to hold it harmless against, any loss, liability or expense incurred
without negligence 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 or
investigating any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
When the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 5.01(6) or Section 5.01(7), the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or state bankruptcy, insolvency or
other similar law.
As security for the performance of the obligations of the Issuer under this
Section, the Trustee shall have a lien prior to the Securities upon all property
and funds held or collected by the Trustee as such, except funds held in trust
for the payment of principal of (or premium, if any) or interest on particular
Securities or any coupons.
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 6.07. Corporate Trustee Required; Eligibility; Conflicting
Interests. There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under TIA Section 3.10(a)(1) and shall have a
combined capital and surplus of at least $50,000,000. If such corporation
publishes reports of condition at least annually, pursuant to law or the
requirements of Federal, state, territorial or District of Columbia supervising
66
or examining authority, then for the purposes of this Section, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article. Neither the Issuer
nor any Person directly or indirectly controlling, controlled by, or under
common control with the Issuer shall serve as Trustee.
SECTION 6.08. Resignation and Removal; Appointment of Successor. (a) No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 6.09.
(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 Issuer. If an
instrument of acceptance by a successor Trustee shall not have been delivered to
the Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(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
Issuer.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of TIA
Section 3.10(b) after written request therefor by the Issuer or by any
Holder of a Security who has been a bona fide Holder of a Security for at
least six months, or
(2) the Trustee shall cease to be eligible under Section 6.07 and
shall fail to resign after written request therefor by the Issuer or by any
Holder of a Security who has been a bona fide Holder of a Security for at
least six months, 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
67
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Issuer by or pursuant to a Board Resolution may
remove the Trustee and appoint a successor Trustee with respect to all
Securities, or (ii) subject to TIA Section 3.15(e), any Holder of a Security 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 Issuer, by or pursuant to a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series). If, within one year after
such resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Issuer and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment, become the successor Trustee with respect to the Securities
of such series and to that extent supersede the successor Trustee appointed by
the Issuer. If no successor Trustee with respect to the Securities of any series
shall have been so appointed by the Issuer or the Holders of Securities and
accepted appointment in the manner hereinafter provided, any Holder of a
Security 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 Securities of such series.
(f) The Issuer shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series in the manner
provided for notices to the Holders of Securities in Section 1.06. Each notice
68
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 6.09. 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 Issuer and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on request of the Issuer or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee, and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder, subject nevertheless to its claim, if any, provided for in
Section 6.06.
(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 Issuer, 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,
pursuant to Article Nine hereof, 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
69
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 Issuer 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 Issuer 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 6.09, 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 6.10. 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 of the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities or coupons 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 or coupons so authenticated with
the same effect as if such successor Trustee had itself authenticated such
Securities or coupons. In case any Securities or coupons shall not have been
authenticated by such predecessor Trustee, any such successor Trustee may
authenticate and deliver such Securities or coupons, in either its own name or
that of its predecessor Trustee, with the full force and effect which this
Indenture provides for the certificate of authentication of the Trustee.
70
SECTION 6.11. Appointment of Authenticating Agent. At any time when any of
the Securities remain Outstanding, the Trustee may appoint an Authenticating
Agent or Agents with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series issued upon exchange, registration of transfer or partial redemption or
repayment thereof, and Securities so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for all purposes as
if authenticated by the Trustee hereunder. Any such appointment shall be
evidenced by an instrument in writing signed by a Responsible Officer of the
Trustee, a copy of which instrument shall be promptly furnished to the Issuer.
Wherever reference is made in this Indenture to the authentication and delivery
of Securities by the Trustee or the Trustee's certificate of authentication,
such reference shall be deemed to include authentication and delivery on behalf
of the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Issuer and shall at all times be
a bank or trust company or corporation organized and doing business and in good
standing under the laws of the United States of America or of any state or the
District of Columbia, authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus of not less than $50,000,000 and subject
to supervision or examination by Federal or state authorities. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or the requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. In case at any
time an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or further act
on the part of the Trustee or the Authenticating Agent.
71
An Authenticating Agent for any series of Securities may at any time resign
by giving written notice of resignation to the Trustee for such series and to
the Issuer. The Trustee for any series of Securities may at any time terminate
the agency of an Authenticating Agent by giving written notice of termination to
such Authenticating Agent and to the Issuer. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee for such series may appoint a successor
Authenticating Agent which shall be acceptable to the Issuer and shall give
notice of such appointment to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve in the manner set forth in
Section 1.06. 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 herein. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Issuer agrees to pay to each Authenticating Agent from time to time
reasonable compensation including reimbursement of its reasonable expenses for
its services under this Section.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to or in lieu of the Trustee's certificate of authentication, an
alternate certificate of authentication substantially in the following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
[ ]
as Trustee
Dated: ______________ By:_______________________________
as Authorized Signatory
Dated: ______________ By:_______________________________
Authorized Signatory
SECTION 6.12. Certain Duties and Responsibilities of the Trustee. (a) With
respect to the Securities of any series, except during the continuance of an
Event of Default with respect to the Securities of such series:
72
(1) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture, and no implied covenants
or obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; but in
the case of any such certificates or opinions which by any provision hereof
are specifically required to be furnished to the Trustee, the Trustee shall
be under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture, but shall not be under any
duty to verify the contents or accuracy thereof.
(b) In case an Event of Default with respect to the Securities of any
series has occurred and is continuing, the Trustee shall, with respect to
Securities of such series, exercise such of the rights and powers vested in it
by this Indenture, and use the same degree of care and skill in their exercise,
as a prudent man would exercise or use under the circumstances in the conduct of
his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that:
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction
of the Holders of a majority in principal amount of the Outstanding
Securities of any series relating to the time, method and place of
73
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; and
(4) no provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(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
6.12.
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND ISSUER AND GUARANTOR
SECTION 7.01. Disclosure of Names and Addresses of Holders. Every Holder of
Securities or coupons, by receiving and holding the same, agrees with the Issuer
and Guarantor and the Trustee that neither the Issuer nor the Trustee nor any
Authenticating Agent nor any Paying Agent nor any Security Registrar shall be
held accountable by reason of the disclosure of any information as to the names
and addresses of the Holders of Securities in accordance with TIA Section 3.12,
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 TIA Section 3.12(b).
SECTION 7.02. Reports by Trustee. The Trustee shall transmit to Holders
such reports concerning the Trustee and its actions under this Indenture as may
be required by TIA Section 3.13 at the times and in the manner provided by the
TIA, which shall initially be not less than every twelve months commencing on [
] and may be dated as of a date up to 75 days prior to such transmission. A copy
of each such report shall, at the time of such transmission to Holders, be filed
by the Trustee with each stock exchange, if any, upon which any Securities are
74
listed, with the Commission and with the Issuer. The Issuer will notify the
Trustee when any Securities are listed on any stock exchange.
SECTION 7.03. Reports by Issuer and Guarantor. The Issuer and the Guarantor
will:
(1) file with the Trustee, within 15 days after the Issuer and the
Guarantor are 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 Issuer and 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
Issuer or the Guarantor are not required to file information, documents or
reports pursuant to either of such Sections, then it will file with the
Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the supplementary
and periodic information, documents and reports which may be required
pursuant to Section 13 of the Securities Exchange Act of 1934 in respect of
a security listed and registered on a national securities exchange as may
be prescribed from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Issuer and the Guarantor 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 the Holders of Securities, within 30 days
after the filing thereof with the Trustee, in the manner and to the extent
provided in TIA Section 313(c), such summaries of any information,
documents and reports required to be filed by the Issuer and the Guarantor
pursuant to paragraphs (1) and (2) of this Section as may be required by
rules and regulations prescribed from time to time by the Commission.
SECTION 7.04. Issuer to Furnish Trustee Names and Addresses of Holders. The
Issuer will furnish or cause to be furnished to the Trustee:
75
(a) semiannually, not later than 15 days after the Regular Record Date
for interest for each series of Securities, a list, in such form as the
Trustee may reasonably require, of the names and addresses of the Holders
of Registered Securities of such series as of such Regular Record Date, or
if there is no Regular Record Date for interest for such series of
Securities, semiannually, upon such dates as are set forth in the Board
Resolution or indenture supplemental hereto authorizing such series, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Issuer of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished,
provided, however, that, so long as the Trustee is the Security Registrar, no
such list shall be required to be furnished.
ARTICLE VIII
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 8.01. Consolidations and Mergers of Issuer or Guarantor and Sales,
Leases and Conveyances Permitted Subject to Certain Conditions. Each of the
Issuer and the Guarantor may consolidate with, or sell, lease or convey all or
substantially all of its assets to, or merge with or into any other Person,
provided that in any such case, (1) either the Issuer or the Guarantor, as the
case may be, shall be the continuing Person, or the successor Person shall be a
corporation or partnership organized and existing under the laws of the United
States or a State thereof and such successor Person shall expressly assume the
due and punctual payment of the principal of (and premium, if any) and any
interest on all of the Securities, according to their tenor, or expressly assume
the obligations under the Guarantees, according to their tenor, as the case may
be, and the due and punctual performance and observance of all of the covenants
and conditions of this Indenture to be performed by the Issuer or the Guarantor
by supplemental indenture, complying with Article Nine hereof, satisfactory to
the Trustee, executed and delivered to the Trustee by such Person and (2)
immediately after giving effect to such transaction and treating any
indebtedness which becomes an obligation of the Issuer, the Guarantor or any
76
Subsidiary as a result thereof as having been incurred by the Issuer, the
Guarantor or such Subsidiary at the time of such transaction, no Event of
Default, and no event which, after notice or the lapse of time, or both, would
become an Event of Default, shall have occurred and be continuing.
SECTION 8.02. Rights and Duties of Successor. In case of any such
consolidation, merger, sale, lease or conveyance and upon any such assumption by
the successor Person, such successor Person shall succeed to and be substituted
for the Issuer or the Guarantor, with the same effect as if it had been named
herein as the party of the first part, and the predecessor Person, except in the
event of a lease, shall be relieved of any further obligation under this
Indenture and the Securities. Such successor Person thereupon may cause to be
signed, and may issue either in its own name or in the name of the Issuer or the
Guarantor, any or all of the Securities or the Guarantees, as the case may be,
issuable hereunder which theretofore shall not have been signed by the Issuer or
the Guarantor and delivered to the Trustee; and, upon the order of such
successor Person, instead of the Issuer or the Guarantor, and subject to all the
terms, conditions and limitations in this Indenture prescribed, the Trustee
shall authenticate and shall deliver any Securities which previously shall have
been signed and delivered by the officers of the Issuer to the Trustee for
authentication, and any Securities or Guarantees which such successor Person
thereafter shall cause to be signed and delivered to the Trustee for that
purpose. All the Securities and Guarantees so issued shall in all respects have
the same legal rank and benefit under this Indenture as the Securities and
Guarantees theretofore or thereafter issued in accordance with the terms of this
Indenture as though all of such Securities had been issued at the date of the
execution hereof.
In case of any such consolidation, merger, sale, lease or conveyance, such
changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
SECTION 8.03. Officers' Certificate and Opinion of Counsel. Any
consolidation, merger, sale, lease or conveyance permitted under Section 8.01 is
also subject to the condition that the Trustee receive an Officers' Certificate
and an Opinion of Counsel to the effect that any such consolidation, merger,
sale, lease or conveyance, and the assumption by any successor Person, complies
with the provisions of this Article and that all conditions precedent herein
provided for relating to such transaction have been complied with.
77
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without Consent of Holders. Without
the consent of any Holders of Securities or coupons, the Issuer and the
Guarantor, when authorized by or pursuant to a Board Resolution, and the
Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to the Trustee, for any of
the following purposes:
(1) to evidence the succession of another Person to the Issuer or the
Guarantor, as the case may be, and the assumption by any such successor of
the covenants of the Issuer or the Guarantor, as the case may be, contained
herein and in the Securities; or
(2) to add to the covenants of the Issuer and 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 Issuer or the Guarantor; or
(3) to add any additional Events of Default for the benefit of the
Holders of all or any series of Securities (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); provided, however, that in respect of any such
additional Events of Default such supplemental indenture may provide for a
particular period of grace after default (which period may be shorter or
longer than that allowed in the case of other defaults) or may provide for
an immediate enforcement upon such default or may limit the remedies
available to the Trustee upon such default or may limit the right of the
Holders of a majority in aggregate principal amount of that or those series
of Securities to which such additional Events of Default apply to waive
such default; or
(4) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to principal, to
change or eliminate any restrictions on the payment of principal of or
premium, if any, or interest on Bearer Securities, to permit Bearer
78
Securities to be issued in exchange for Registered Securities, to permit
Bearer Securities to be issued in exchange for Bearer Securities of other
authorized denominations or to permit or facilitate the issuance of
Securities in uncertificated form, provided that any such action shall not
adversely affect the interests of the Holders of Securities of any series
or any related coupons in any material respect; or
(5) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only
when there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the benefit
of such provision; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series and any
related coupons as permitted by Sections 2.01 and 3.01; or
(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; or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not be inconsistent with
the provisions of this Indenture, provided such provisions shall not
adversely affect the interests of the Holders of Securities of any series
or any related coupons in any material respect; or
(10) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Sections 4.01, 15.02 and
79
15.03; provided that any such action shall not adversely affect the
interests of the Holders of Securities of such series and any related
coupons or any other series of Securities in any material respect.
SECTION 9.02. Supplemental Indentures with Consent of Holders. With the
consent of the Holders of not less than a majority in principal amount of all
Outstanding Securities affected by such supplemental indenture, by Act of said
Holders delivered to the Issuer, the Guarantor and the Trustee, the Issuer and
the Guarantor, when authorized by or pursuant to a Board Resolution, and the
Trustee may enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Indenture or of modifying in any manner the rights of
the Holders of Securities and any related coupons under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security affected thereby:
(1) change the Stated Maturity of the principal of (or premium, if
any, on) or any installment of principal of or interest on, any Security;
or reduce the principal amount thereof or the rate or amount of interest
thereon, 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 5.02 or the amount thereof provable in
bankruptcy pursuant to Section 5.04, or change any Place of Payment where,
or the currency or currencies, currency unit or units or composite currency
or currencies 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 or repayment at the option of the Holder, on or after the
Redemption Date or the Repayment Date, as the case may be), 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 with respect to such series (or compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or reduce the requirements of
Section 17.04 for quorum or voting, or
80
(3) modify any of the provisions of this Section, Section 5.13 or
Section 10.09, except to increase the required percentage to effect such
action 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 9.02
and Section 10.09, or the deletion of this proviso, in accordance with the
requirements of Sections 6.09(b) and 9.01(1).
It shall not be necessary for any Act of Holders under this Section 9.02 to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
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.
SECTION 9.03. Execution of Supplemental Indentures. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modification thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
SECTION 9.04. Effect of Supplemental Indentures. Upon the execution of any
supplemental indenture under this Article, this Indenture shall be modified in
accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder and of any coupon appertaining
thereto shall be bound thereby.
81
SECTION 9.05. Conformity with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article shall conform to the requirements of
the Trust Indenture Act as then in effect.
SECTION 9.06. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall, if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Issuer shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Trustee and the Issuer, to any such supplemental indenture may be prepared and
executed by the Issuer and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
ARTICLE X
COVENANTS
SECTION 10.01. Payment of Principal, Premium, if any; and Interest. The
Issuer covenants and agrees for the benefit of the Holders of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest on the Securities of that series in accordance with the
terms of such series of Securities, any coupons appertaining thereto and this
Indenture. Unless otherwise specified as contemplated by Section 3.01 with
respect to any series of Securities, any interest due on Bearer Securities on or
before Maturity shall be payable only upon presentation and surrender of the
several coupons for such interest installments as are evidenced thereby as they
severally mature. Unless otherwise specified with respect to Securities of any
series pursuant to Section 3.01, at the option of the Issuer, all payments of
principal may be paid by check to the registered Holder of the Registered
Security or other person entitled thereto against surrender of such Security.
SECTION 10.02. Maintenance of Office or Agency. If Securities of a series
are issuable only as Registered Securities, the Issuer shall maintain in each
Place of Payment for any series of Securities an office or agency where
Securities of that series may be presented or surrendered for payment, where
Securities of that series may be surrendered for registration of transfer or
82
exchange and where notices and demands to or upon the Issuer in respect of the
Securities of that series and this Indenture may be served. If Securities of a
series are issuable as Bearer Securities, the Issuer will maintain: (A) in the
Borough of Manhattan, The City of New York, an office or agency where any
Registered Securities of that series may be presented or surrendered for
payment, where any Registered Securities of that series may be surrendered for
registration of transfer, where Securities of that series may be surrendered for
exchange, where notices and demands to or upon the Issuer in respect of the
Securities of that series and this Indenture may be served and where Bearer
Securities of that series and related coupons may be presented or surrendered
for payment in the circumstances described in the following paragraph (and not
otherwise); (B) subject to any laws or regulations applicable thereto, in a
Place of Payment for that series which is located outside the United States, an
office or agency where Securities of that series and related coupons may be
presented and surrendered for payment; provided, however, that if the Securities
of that series are listed on any stock exchange located outside the United
States and such stock exchange shall so require, the Issuer will maintain a
Paying Agent for the Securities of that series in any required city located
outside the United States, as the case may be, so long as the Securities of that
series are listed on such exchange; and (C) subject to any laws or regulations
applicable thereto, in a Place of Payment for that series located outside the
United States an office or agency where any Registered Securities of that series
may be surrendered for registration of transfer, where Securities of that series
may be surrendered for exchange and where notices and demands to or upon the
Issuer in respect of the Securities of that series and this Indenture may be
served. The Issuer will give prompt written notice to the Trustee of the
location, and any change in the location, of each such office or agency. If at
any time the Issuer shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, except that Bearer Securities of that series and the
related coupons may be presented and surrendered for payment at the offices
specified in the Security, in London, England, and the Issuer hereby appoints
the same as its agent to receive such respective presentations, surrenders,
notices and demands, and the Issuer hereby appoints the Trustee its agent to
receive all such presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 3.01, no payment of principal, premium or interest on Bearer Securities
shall be made at any office or agency of the Issuer in the United States or by
83
check mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States; provided, however, that, if
the Securities of a series are payable in Dollars, payment of principal of and
any premium and interest on any Bearer Security shall be made at the office of
the Issuer's Paying Agent in the Borough of Manhattan, The City of New York, if
(but only if) payment in Dollars of the full amount of such principal, premium,
or interest, as the case may be, at all offices or agencies outside the United
States maintained for the purpose by the Issuer in accordance with this
Indenture, is illegal or effectively precluded by exchange controls or other
similar restrictions.
The Issuer may from time to time designate one or more other offices or
agencies where the Securities of one or more series may be presented or
surrendered for any or all 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 Issuer of its obligation to maintain an office
or agency in accordance with the requirements set forth above for Securities of
any series for such purposes. The Issuer will give prompt written notice to the
Trustee of any such designation or rescission and of any change in the location
of any such other office or agency. Unless otherwise specified with respect to
any Securities pursuant to Section 3.01 with respect to a series of Securities,
the Issuer hereby designates as a Place of Payment for each series of Securities
the office or agency of the Issuer in the Borough of Manhattan, The City of New
York, and initially appoints the Trustee's agent with its Corporate Trust Office
as Paying Agent in such city and as its agent to receive all such presentations,
surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 3.01, if and so long as the Securities of any series (i) are denominated
in a Foreign Currency or (ii) may be payable in a Foreign Currency, or so long
as it is required under any other provision of the Indenture, then the Issuer
will maintain with respect to each such series of Securities, or as so required,
at least one exchange rate agent.
SECTION 10.03. Money for Securities Payments to Be Held in Trust. If the
Issuer or the Guarantor shall at any time act as its own Paying Agent with
respect to any series of any Securities and any related coupons, it will, on or
before each due date of the principal of (and premium, if any), or interest on
any of the Securities of that series, segregate and hold in trust for the
84
benefit of the Persons entitled thereto a sum in the currency or currencies,
currency unit or units or composite currency or currencies in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 3.01 for the Securities of such series) sufficient to pay the principal
(and premium, if any) or interest so becoming due until such sums shall be paid
to such Persons or otherwise disposed of as herein provided, and will promptly
notify the Trustee of its action or failure so to act.
Whenever the Issuer shall have one or more Paying Agents for any series of
Securities and any related coupons, it will, on or before each due date of the
principal of (and premium, if any), or interest on any Securities of that
series, deposit with a Paying Agent a sum (in the currency or currencies,
currency unit or units or composite currency or currencies described in the
preceding paragraph) sufficient to pay the principal (and premium, if any) or
interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium, if any, or interest and (unless
such Paying Agent is the Trustee) the Issuer will promptly notify the Trustee of
its action or failure so to act.
The Issuer will cause each Paying Agent for any series of Securities other
than the Trustee to execute and deliver to the Trustee an instrument in which
such Paying Agent shall agree with the Trustee, subject to the provisions of
this Section, that such Paying Agent will
(1) hold all sums held by it for the payment of principal of (and
premium, if any) or interest on Securities 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 Issuer (or any other
obligor upon the Securities) in the making of any such payment of principal
(and premium, if any) or interest 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 Issuer may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Issuer
85
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Issuer, the Guarantor 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
Issuer, the Guarantor or such Paying Agent; and, upon such payment by any Paying
Agent to the Trustee, such Paying Agent shall be released from all further
liability with respect to such sums.
Except as otherwise provided in the Securities of any series, any money
deposited with the Trustee or any Paying Agent, or then held by the Issuer or
the Guarantor, in trust for the payment of the principal of (and premium, if
any) or interest on any Security of any series and remaining unclaimed for two
years after such principal (and premium, if any) or interest has become due and
payable shall be paid to the Issuer upon Issuer Request or (if then held by the
Issuer or the Guarantor) shall be discharged from such trust; and the Holder of
such Security shall thereafter, as an unsecured general creditor, look only to
the Issuer for payment of such principal of (and premium, if any) or interest on
any Security, without interest thereon, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the Issuer
as trustee thereof, shall thereupon cease; provided, however, that the Trustee
or such Paying Agent, before being required to make any such repayment, may at
the expense of the Issuer cause to be published once, in an Authorized
Newspaper, notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid
to the Issuer.
SECTION 10.04. Existence. Subject to Article Eight, each of the Issuer and
the Guarantor will do or cause to be done all things necessary to preserve and
keep in full force and effect its existence, all material rights and material
franchises; provided, however, that neither the Issuer nor the Guarantor shall
be required to preserve any such right or franchise if its Board of Directors
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Issuer or the Guarantor, as the case may be.
SECTION 10.05. Maintenance of Properties. Each of the Issuer and the
Guarantor will cause all of its material properties used or useful in the
conduct of its business or the business of any Subsidiary to be maintained and
kept in good condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals,
86
replacements, betterments and improvements thereof, all as in the judgment of
the Issuer or the Guarantor, as the case may be, may be necessary so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times; provided, however, that the Guarantor, the Issuer and
their Subsidiaries shall not be prevented from selling or otherwise disposing of
their properties for value in the ordinary course of business.
SECTION 10.06. Insurance. Each of the Issuer and the Guarantor will cause
each of its and its Subsidiaries' insurable properties to be insured against
loss or damage in an amount at least equal to their then full insurable value
with insurers of recognized responsibility.
SECTION 10.07. Payment of Taxes and Other Claims. Each of the Issuer and
the Guarantor will pay or discharge or cause to be paid or discharged, before
the same shall become delinquent, (1) all taxes, assessments and governmental
charges levied or imposed upon it or any Subsidiary or upon the income, profits
or property of the Issuer or any Subsidiary, and (2) all lawful claims for
labor, materials and supplies which, if unpaid, might by law become a lien upon
the property of the Issuer, the Guarantor or any Subsidiary; provided, however,
that neither the Issuer nor the Guarantor shall be required to pay or discharge
or cause to be paid or discharged any such tax, assessment, charge or claim
whose amount, applicability or validity is being contested in good faith by
appropriate proceedings.
SECTION 10.08. Statement as to Compliance. The Issuer and the Guarantor
will deliver to the Trustee, within 120 days after the end of each fiscal year,
a brief certificate from the principal executive officer, principal financial
officer or principal accounting officer of the Issuer and the Guarantor as to
his or her knowledge of the Issuer's and the Guarantor's compliance with all
conditions and covenants under this Indenture and, in the event of any
noncompliance, specifying such noncompliance and the nature and status thereof.
For purposes of this Section 10.08, such compliance shall be determined without
regard to any period of grace or requirement of notice under this Indenture.
SECTION 10.09. Waiver of Certain Covenants. The Issuer and the Guarantor
may omit in any particular instance to comply with any term, provision or
condition set forth in Sections 10.04 to 10.08, inclusive, if before or after
the time for such compliance the Holders of at least a majority in principal
amount of all outstanding Securities of such series, by Act of such Holders,
87
either waive such compliance in such instance or generally waive compliance with
such covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Issuer and the Guarantor
and the duties of the Trustee in respect of any such term, provision or
condition shall remain in full force and effect.
SECTION 10.10. Additional Amounts. If any Securities of a series provide
for the payment of Additional Amounts, the Issuer will pay to the holder of any
Security of such series or any coupon appertaining thereto Additional Amounts as
may be specified as contemplated by Section 3.01. Whenever in this Indenture
there is mentioned, in any context, the payment of the principal of or any
premium or interest on, or in respect of, any Security of any series or payment
of any related coupon or the net proceeds received on the sale or exchange of
any Security of any series, such mention shall be deemed to include mention of
the payment of Additional Amounts provided by the terms of such series
established pursuant to Section 3.01 to the extent that, in such context,
Additional Amounts are, were or would be payable in respect thereof pursuant to
such terms; and express mention of the payment of Additional Amounts (if
applicable) in any provisions hereof shall not be construed as excluding
Additional Amounts in those provisions hereof where such express mention is not
made.
Except as otherwise specified as contemplated by Section 3.01, if the
Securities of a series provide for the payment of Additional Amounts, at least
10 days prior to the first Interest Payment Date with respect to that series of
Securities (or if the Securities of that series will not bear interest prior to
Maturity, the first day on which a payment of principal and any premium is
made), and at least 10 days prior to each date of payment of principal and any
premium or interest if there has been any change with respect to the matters set
forth in the below mentioned Officers' Certificate, the Issuer will furnish the
Trustee and the Issuer's principal Paying Agent or Paying Agents, if other than
the Trustee, with an Officers' Certificate instructing the Trustee and such
Paying Agent or Paying Agents whether such payment of principal of and any
premium or interest on the Securities of that series shall be made to Holders of
88
Securities of that series or any related coupons who are not United States
Persons without withholding for or on account of any tax, assessment or other
governmental charge described in the Securities of the series. If any such
withholding shall be required, then such Officers' Certificate shall specify by
country the amount, if any, required to be withheld on such payments to such
Holders of Securities of that series or related coupons and the Issuer will pay
to the Trustee or such Paying Agent the Additional Amounts required by the terms
of such Securities. If the Trustee or any Paying Agent, as the case may be,
shall not so receive the above mentioned certificate, then the Trustee or such
Paying Agent shall be entitled (i) to assume that no such withholding or
deduction is required with respect to any payment of principal or interest with
respect to any Securities of a series or related coupons until it shall have
received a certificate advising otherwise and (ii) to make all payments of
principal and interest with respect to the Securities of a series or related
coupons without withholding or deductions until otherwise advised. The Issuer
covenants to indemnify the Trustee and any Paying Agent for, and to hold them
harmless against, any loss, liability or expense reasonably incurred without
negligence or bad faith on their part arising out of or in connection with
actions taken or omitted by any of them or in reliance on any Officers'
Certificate furnished pursuant to this Section or in reliance on the Issuer's
not furnishing such an Officers' Certificate.
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.01. Applicability of Article. Securities of any series which are
redeemable before their Stated Maturity shall be redeemable in accordance with
their terms and (except as otherwise specified as contemplated by Section 3.01
for Securities of any series) in accordance with this Article.
SECTION 11.02. Election to Redeem; Notice to Trustee. The election of the
Issuer to redeem any Securities shall be evidenced by or pursuant to a Board
Resolution. In case of any redemption at the election of the Issuer of less than
all of the Securities of any series, the Issuer shall, at least 45 days prior to
the giving of the notice of redemption in Section 11.04 (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
89
restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Issuer shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
SECTION 11.03. Selection by Trustee of Securities to Be Redeemed. If less
than all the Securities of any series issued on the same day with the same terms
are to be redeemed, the particular Securities to be redeemed shall be selected
not more than 60 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series issued on such date with the same terms
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 of a denomination larger than the minimum authorized denomination
for Securities of that series.
The Trustee shall promptly notify the Issuer and the Security Registrar (if
other than itself) 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 Security redeemed or to be redeemed only in part, to the portion of
the principal amount of such Security which has been or is to be redeemed.
SECTION 11.04. Notice of Redemption. Notice of redemption shall be given in
the manner provided in Section 1.06, not less than 30 days nor more than 60 days
prior to the Redemption Date, unless a shorter period is specified by the terms
of such series established pursuant to Section 3.01, to each Holder of
Securities to be redeemed, but failure to give such notice in the manner herein
provided to the Holder of any Security designated for redemption as a whole or
in part, or any defect in the notice to any such Holder, shall not affect the
validity of the proceedings for the redemption of any other such Security or
portion thereof.
Any notice that is mailed to the Holders of Registered Securities in the
manner herein provided shall be conclusively presumed to have been duly given,
whether or not the Holder receives the notice.
90
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price, accrued interest to the Redemption Date
payable as provided in Section 11.06, if any,
(3) if less than all Outstanding Securities of any series are to be
redeemed, the identification (and, in the case of partial redemption, the
principal amount) of the particular Security or Securities to be redeemed,
(4) in case any Security is to be redeemed in part only, the notice
which relates to such Security shall state that on and after the Redemption
Date, upon surrender of such Security, the holder will receive, without a
charge, a new Security or Securities of authorized denominations for the
principal amount thereof remaining unredeemed,
(5) that on the Redemption Date the Redemption Price and accrued
interest to the Redemption Date payable as provided in Section 11.06, if
any, will become due and payable upon each such Security, or the portion
thereof, to be redeemed and, if applicable, that interest thereon shall
cease to accrue on and after said date,
(6) the Place or Places of Payment where such Securities, together in
the case of Bearer Securities with all coupons appertaining thereto, if
any, maturing after the Redemption Date, are to be surrendered for payment
of the Redemption Price and accrued interest, if any,
(7) that the redemption is for a sinking fund, if such is the case,
(8) that, unless otherwise specified in such notice, Bearer Securities
of any series, if any, surrendered for redemption must be accompanied by
all coupons maturing subsequent to the date fixed for redemption or the
amount of any such missing coupon or coupons will be deducted from the
Redemption Price, unless security or indemnity satisfactory to the Issuer,
the Trustee for such series and any Paying Agent is furnished,
(9) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such
91
Bearer Securities may be exchanged for Registered Securities not subject to
redemption on this Redemption Date pursuant to Section 3.05 or otherwise,
the last date, as determined by the Issuer, on which such exchanges may be
made, and
(10) the CUSIP number of such Security, if any.
Notice of redemption of Securities to be redeemed at the election of the
Issuer shall be given by the Issuer or, at the Issuer's request, by the Trustee
in the name and at the expense of the Issuer.
SECTION 11.05. Deposit of Redemption Price. On or prior to any Redemption
Date, the Issuer shall deposit with the Trustee or with a Paying Agent (or, if
the Issuer is acting as its own Paying Agent, which it may not do in the case of
a sinking fund payment under Article Thirteen segregate and hold in trust as
provided in Section 10.03) an amount of money in the currency or currencies,
currency unit or units or composite currency or currencies in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 3.01 for the Securities of such series) sufficient to pay on the
Redemption Date the Redemption Price of, and (except if the Redemption Date
shall be an Interest Payment Date) accrued interest on, all the Securities or
portions thereof which are to be redeemed on that date.
SECTION 11.06. 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 in the currency or currencies, currency unit or units or composite
currency or currencies in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 3.01 for the Securities of
such series) (together with accrued interest, if any, to the Redemption Date),
and from and after such date (unless the Issuer shall default in the payment of
the Redemption Price and accrued interest) such Securities shall, if the same
were interest-bearing, cease to bear interest and the coupons for such interest
appertaining to any Bearer Securities so to be redeemed, except to the extent
provided below, shall be void. Upon surrender of any such Security for
redemption in accordance with said notice, together with all coupons, if any,
appertaining thereto maturing after the Redemption Date, such Security shall be
paid by the Issuer at the Redemption Price, together with accrued interest, if
any, to the Redemption Date; provided, however, that installments of interest on
Bearer Securities whose Stated Maturity is on or prior to the Redemption Date
shall be payable only at an office or agency located outside the United States
92
(except as otherwise provided in Section 10.02) and, unless otherwise specified
as contemplated by Section 3.01, only upon presentation and surrender of coupons
for such interest; and provided further that installments of interest on
Registered Securities whose Stated Maturity is on or prior to the Redemption
Date shall be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section
3.07.
If any Bearer Security surrendered for redemption shall not be accompanied
by all appurtenant coupons maturing after the Redemption Date, such Security may
be paid after deducting from the Redemption Price an amount equal to the face
amount of all such missing coupons, or the surrender of such missing coupon or
coupons may be waived by the Issuer and the Trustee if there be furnished to
them such security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Security shall surrender
to the Trustee or any Paying Agent any such missing coupon in respect of which a
deduction shall have been made from the Redemption Price, such Holder shall be
entitled to receive the amount so deducted; provided, however, that interest
represented by coupons shall be payable only at an office or agency located
outside the United States (except as otherwise provided in Section 10.02) and,
unless otherwise specified as contemplated by Section 3.01, only upon
presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium, if any) shall, until paid,
bear interest from the Redemption Date at the rate borne by the Security.
SECTION 11.07. Securities Redeemed in Part. Any Registered Security which
is to be redeemed only in part (pursuant to the provisions of this Article or of
Article Thirteen) shall be surrendered at a Place of Payment therefor (with, if
the Issuer or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Issuer and the Trustee duly
executed by, the Holder thereof or his attorney duly authorized in writing) and
the Issuer shall execute and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge a new Security or Securities of
93
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. If a Global Security is so
surrendered, the Issuer shall execute and the Trustee shall authenticate and
deliver to the depository, without service charge, a new Global Security in a
denomination equal to and in exchange for the unredeemed portion of the
principal of the Global Security so surrendered.
ARTICLE XII
SINKING FUNDS
SECTION 12.01. 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 3.01 for
Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment," and any payment in excess of such minimum amount provided for by the
terms of such Securities of any series is herein referred to as an "optional
sinking fund payment." If provided for by the terms of any Securities of any
series, the cash amount of any mandatory sinking fund payment may be subject to
reduction as provided in Section 13.02. 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 12.02. Satisfaction of Sinking Fund Payments with Securities. The
Issuer may, in satisfaction of all or any part of any mandatory sinking fund
payment with respect to the Securities of a series, (1) deliver Outstanding
Securities of such series (other than any previously called for redemption)
together in the case of any Bearer Securities of such series with all unmatured
coupons appertaining thereto and (2) apply as a credit Securities of such series
which have been redeemed either at the election of the Issuer pursuant to the
terms of such Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Securities, as provided for
by the terms of such Securities, or which have otherwise been acquired by the
Issuer; provided that such Securities so delivered or applied as a credit have
94
not been previously so credited. Such Securities shall be received and credited
for such purpose by the Trustee at the applicable Redemption Price specified in
such Securities for redemption through operation of the sinking fund and the
amount of such mandatory sinking fund payment shall be reduced accordingly.
SECTION 12.03. Redemption of Securities for Sinking Fund. Not less than 60
days prior to each sinking fund payment date for Securities of any series, the
Issuer will deliver to the Trustee an Officers' Certificate specifying the
amount of the next ensuing mandatory sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash in the currency or currencies, currency unit or
units or composite currency or currencies in which the Securities of such series
are payable (except as otherwise specified pursuant to Section 3.01 for the
Securities of such series) and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities of that series pursuant to
Section 13.02, and the optional amount, if any, to be added in cash to the next
ensuing mandatory sinking fund payment, and will also deliver to the Trustee any
Securities to be so delivered and credited. If such Officers' Certificate shall
specify an optional amount to be added in cash to the next ensuing mandatory
sinking fund payment, the Issuer shall thereupon be obligated to pay the amount
therein specified. 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 11.03 and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Issuer in the manner provided in Section 11.04. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 11.06 and 11.07.
ARTICLE XIII
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 13.01. Applicability of Article. Repayment of Securities of any
series before their Stated Maturity at the option of Holders thereof shall be
made in accordance with the terms of such Securities, if any, and (except as
otherwise specified by the terms of such series established pursuant to Section
3.01) in accordance with this Article.
95
SECTION 13.02. Execution and Authentication of Guarantee. To further
evidence the Guarantee set forth in this Section 13.02, the Guarantor and the
Company hereby agree that a notation relating to such Guarantee substantially in
the form of Exhibit B shall be endorsed on each Subordinated Debt Security
authenticated and delivered by the Trustee and executed on behalf of the
Guarantor by its Chairman of the Board, its President or one of its Vice
Presidents, under its corporate seal reproduced thereon and attested by its
Secretary or one of its Assistant Secretaries. The signature of any such officer
on the Subordinated Debt Securities may be manual or facsimile.
A Guarantee bearing the manual or facsimile signature of individuals who
were at any time the proper officers of the Guarantor shall bind the Guarantor,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of the Subordinated Debt
Securities on which such Guarantee is endorsed or did not hold such offices at
the date of such Guarantee.
The delivery of any Subordinated Debt Security by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the Guarantee
endorsed thereon on behalf of the Guarantor. The Guarantor hereby agrees that
the Guarantee set forth in Section 15.01 shall remain in full force and effect
notwithstanding any failure to endorse a Guarantee on any Subordinated Debt
Security.
SECTION 13.03. Repayment of Securities. Securities of any series subject to
repayment in whole or in part at the option of the Holders thereof will, unless
otherwise provided in the terms of such Securities, be repaid at a price equal
to the principal amount thereof, together with interest, if any, thereon accrued
to the Repayment Date specified in or pursuant to the terms of such Securities.
The Issuer covenants that on or prior to the Repayment Date it will deposit with
the Trustee or with a Paying Agent (or, if the Issuer is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 10.03) an
amount of money in the currency or currencies, currency unit or units or
composite currency or currencies in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 3.01 for the
Securities of such series) sufficient to pay the principal (or, if so provided
by the terms of the Securities of any series, a percentage of the principal) of,
and (except if the Repayment Date shall be an Interest Payment Date) accrued
interest on, all the Securities or portions thereof, as the case may be, to be
repaid on such date.
96
SECTION 13.04. Exercise of Option. Securities of any series subject to
repayment at the option of the Holders thereof will contain an "Option to Elect
Repayment" form on the reverse of such Securities. In order for any Security to
be repaid at the option of the Holder, the Trustee must receive at the Place of
Payment therefor specified in the terms of such Security (or at such other place
or places of which the Issuer shall from time to time notify the Holders of such
Securities) not earlier than 60 days nor later than 30 days prior to the
Repayment Date (1) the Security so providing for such repayment together with
the "Option to Elect Repayment" form on the reverse thereof duly completed by
the Holder (or by the Holder's attorney duly authorized in writing) or (2) a
telegram, telex, facsimile transmission or a letter from a member of a national
securities exchange, or the National Association of Securities Dealers, Inc.
("NASD"), or a commercial bank or trust company in the United States setting
forth the name of the Holder of the Security, the principal amount of the
Security, the principal amount of the Security to be repaid, the CUSIP number,
if any, or a description of the tenor and terms of the Security, a statement
that the option to elect repayment is being exercised thereby and a guarantee
that the Security to be repaid, together with the duly completed form entitled
"Option to Elect Repayment" on the reverse of the Security, will be received by
the Trustee not later than the fifth Business Day after the date of such
telegram, telex, facsimile transmission or letter; provided, however, that such
telegram, telex, facsimile transmission or letter shall only be effective if
such Security and form duly completed are received by the Trustee by such fifth
Business Day. If less than the entire principal amount of such Security is to be
repaid in accordance with the terms of such Security, the principal amount of
such Security to be repaid, in increments of the minimum denomination for
Securities of such series, and the denomination or denominations of the Security
or Securities to be issued to the Holder for the portion of the principal amount
of such Security surrendered that is not to be repaid, must be specified. The
principal amount of any Security providing for repayment at the option of the
Holder thereof may not be repaid in part if, following such repayment, the
unpaid principal amount of such Security would be less than the minimum
authorized denomination of Securities of the series of which such Security to be
repaid is a part. Except as otherwise may be provided by the terms of any
Security providing for repayment at the option of the Holder thereof, exercise
of the repayment option by the Holder shall be irrevocable unless waived by the
Issuer.
97
SECTION 13.05. When Securities Presented for Repayment Become Due and
Payable. If Securities of any series providing for repayment at the option of
the Holders thereof shall have been surrendered as provided in this Article and
as provided by or pursuant to the terms of such Securities, such Securities or
the portions thereof, as the case may be, to be repaid shall become due and
payable and shall be paid by the Issuer on the Repayment Date therein specified,
and on and after such Repayment Date (unless the Issuer shall default in the
payment of such Securities on such Repayment Date) such Securities shall, if the
same were interest-bearing, cease to bear interest and the coupons for such
interest appertaining to any Bearer Securities so to be repaid, except to the
extent provided below, shall be void. Upon surrender of any such Security for
repayment in accordance with such provisions, together with all coupons, if any,
appertaining thereto maturing after the Repayment Date, the principal amount of
such Security so to be repaid shall be paid by the Issuer, together with accrued
interest, if any, to the Repayment Date; provided, however, that coupons whose
Stated Maturity is on or prior to the Repayment Date shall be payable only at an
office or agency located outside the United States (except as otherwise provided
in Section 10.02) and, unless otherwise specified pursuant to Section 3.01, only
upon presentation and surrender of such coupons; and provided further that, in
the case of Registered Securities, installments of interest, if any, whose
Stated Maturity is on or prior to the Repayment Date shall be payable (but
without interest thereon, unless the Issuer shall default in the payment
thereof) to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 3.07.
If any Bearer Security surrendered for repayment shall not be accompanied
by all appurtenant coupons maturing after the Repayment Date, such Security may
be paid after deducting from the amount payable therefor as provided in Section
14.02 an amount equal to the face amount of all such missing coupons, or the
surrender of such missing coupon or coupons may be waived by the Issuer and the
Trustee if there be furnished to them such security or indemnity as they may
require to save each of them and any Paying Agent harmless. If thereafter the
Holder of such Security shall surrender to the Trustee or any Paying Agent any
such missing coupon in respect of which a deduction shall have been made as
provided in the preceding sentence, such Holder shall be entitled to receive the
98
amount so deducted; provided, however, that interest represented by coupons
shall be payable only at an office or agency located outside the United States
(except as otherwise provided in Section 10.02) and, unless otherwise specified
as contemplated by Section 3.01, only upon presentation and surrender of those
coupons.
If the principal amount of any Security surrendered for repayment shall not
be so repaid upon surrender thereof, such principal amount (together with
interest, if any, thereon accrued to such Repayment Date) shall, until paid,
bear interest from the Repayment Date at the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) set forth in such
Security.
SECTION 13.06. Securities Repaid in Part. Upon surrender of any Registered
Security which is to be repaid in part only, the Issuer shall execute and the
Trustee shall authenticate and deliver to the Holder of such Security, without
service charge and at the expense of the Issuer, a new Registered Security or
Securities of the same series, of any authorized denomination specified by the
Holder, in an aggregate principal amount equal to and in exchange for the
portion of the principal of such Security so surrendered which is not to be
repaid.
ARTICLE XIV
SUBORDINATION OF SECURITIES
SECTION 14.01. Securities Subordinate to Senior and Senior Subordinated
Debt. The Issuer covenants and agrees, and each Holder of a Security of any
series or of any coupon appertaining thereto, by his acceptance thereof,
likewise covenants and agrees, that, to the extent and in the manner hereinafter
set forth in this Article (subject to the provisions of Article Five and Article
Seventeen), the indebtedness represented by the Securities and the coupons, if
any, appertaining thereto and the payment of the principal of (and premium, if
any, on) and interest on each and all of the Securities and coupons, if any,
appertaining thereto are hereby expressly made subordinate and subject in right
of payment as provided in this Article to the prior payment in full of all
Senior and Senior Subordinated Debt of the Issuer; but the Securities and the
coupons, if any, appertaining thereto, the Indebtedness represented thereby and
the payment of the principal of (and premium, if any) and interest on the
Securities and coupons, if any, appertaining thereto in all respects shall rank
equally with, or prior to, all existing and future unsecured indebtedness
99
(including, without limitation, indebtedness) of the Issuer that is not Senior
and Senior Subordinated Debt of the Issuer.
SECTION 14.02. Payment Over of Proceeds upon Dissolution, Etc In the event
of (a) any insolvency or bankruptcy case or proceeding, or any receivership,
liquidation, reorganization or other similar case or proceeding in connection
therewith, relative to the Issuer or to its creditors, as such, or to its
assets, or (b) any liquidation, dissolution or other winding up of the Issuer,
whether voluntary or involuntary and whether or not involving insolvency or
bankruptcy, or (c) any assignment for the benefit of creditors or any other
marshalling of assets and liabilities of the Issuer, then and in any such event
the holders of Senior and Senior Subordinated Debt of the Issuer shall be
entitled to receive payment in full of all amounts due or to become due on or in
respect of all Senior and Senior Subordinated Debt of the Issuer, or provision
shall be made for such payment in cash, before the Holders of the Securities and
the coupons, if any, appertaining thereto are entitled to receive any payment or
distribution of any kind or character on account of principal of (or premium, if
any, on) or interest on the Securities and any coupons appertaining thereto, and
to that end the holders of Senior and Senior Subordinated Debt of the Issuer
shall be entitled to receive, for application to the payment thereof, any
payment or distribution of any kind or character, whether in cash, property or
securities, including any such payment or distribution which may be payable or
deliverable by reason of the payment of any other indebtedness of the Issuer
being subordinated to the payment of the Securities, which may be payable or
deliverable in respect of the Securities and the coupons, if any, appertaining
thereto in any such case, proceeding, dissolution, liquidation or other winding
up or event.
In the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or the Holder of any Security or of any coupon appertaining
thereto shall have received any payment or distribution of assets of the Issuer
of any kind or character, whether in cash, property or securities, including any
such payment or distribution which may be payable or deliverable by reason of
the payment of any other indebtedness of the Issuer being subordinated to the
payment of the Securities and any coupons appertaining thereto, before all
Senior and Senior Subordinated Debt of the Issuer are paid in full or payment
thereof provided for, then and in such event such payment or distribution shall
be held for the benefit of and, upon receipt by the Trustee of the notice set
forth in Section 15.09, shall be paid over or delivered forthwith to the trustee
in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or
100
other Person making payment or distribution of assets of the Issuer for
application to the payment of all Senior and Senior Subordinated Debt of the
Issuer remaining unpaid, to the extent necessary to pay all Senior and Senior
Subordinated Debt of the Issuer in full, after giving effect to any concurrent
payment or distribution to or for the holders of Senior and Senior Subordinated
Debt of the Issuer.
For purposes of this Article only, the words "cash, property or securities"
shall not be deemed to include shares of stock of the Issuer as reorganized or
readjusted, or securities of the Issuer as reorganized or readjusted, or
securities of the Issuer or any other corporation provided for by a plan of
reorganization or readjustment which are subordinated in right of payment to all
Senior and Senior Subordinated Debt of the Issuer which may at the time be
outstanding to substantially the same extent as, or to a greater extent than,
the Securities are so subordinated as provided in this Article. The
consolidation of the Issuer with, or the merger of the Issuer into, another
Person or the liquidation or dissolution of the Issuer following the conveyance
or transfer of its properties and assets substantially as an entirety to another
Person upon the terms and conditions, if any, set forth in an Officer's
Certificate or supplemental indenture creating any series of Securities shall
not be deemed a dissolution, winding up, liquidation, reorganization, assignment
for the benefit of creditors or marshalling of assets and liabilities of the
Issuer for the purposes of this Section if the surviving Person, as part of such
consolidation, merger, conveyance or transfer, complies with the conditions, if
any, set forth in such Officer's Certificate or supplemental indenture.
SECTION 14.03. No Payment When Senior and Senior Subordinated Debt in
Default. If (a) in the event and during the continuation of any default in the
payment of principal of (or premium, if any) or interest on any Senior and
Senior Subordinated Debt of the Issuer beyond any applicable grace period with
respect thereto (a "payment event of default"), or in the event that any event
of default (other than a payment event of default) with respect to any Senior
and Senior Subordinated Debt of the Issuer shall have occurred and be continuing
and shall have resulted in such Senior and Senior Subordinated Debt of the
Issuer becoming or being declared due and payable prior to the date on which it
would otherwise have become due and payable, or (b) in the event that any event
of default (other than a payment event of default) with respect to any Senior
and Senior Subordinated Debt of the Issuer shall have occurred and be continuing
101
permitting the holders of such Senior and Senior Subordinated Debt of the Issuer
(or a trustee on behalf of the holders thereof) to declare such Senior and
Senior Subordinated Debt of the Issuer due and payable prior to the date on
which it would otherwise have become and payable, then no payment, direct and
indirect (including any payment which may be payable by reason of the payment of
any other indebtedness of the Issuer being subordinated to the payment of the
Securities), shall be made by the Issuer on account of principal of (or premium,
if any) or interest on the Securities or on account of the purchase or
redemption or other acquisition of Securities or coupons appertaining thereto
(x) in case of any payment or nonpayment event of default specified in (a),
unless and until (A) such event of default shall have been cured or waived or
shall have ceased to exist or such acceleration shall have been rescinded or
annulled or (B) the Senior and Senior Subordinated Debt of the Issuer in respect
of which such declaration of acceleration has occurred is discharged, (y) in
case of any nonpayment event of default specified in (b), from the earlier of
the dates the Issuer and the Trustee receive written notice of such event of
default from an Agent Bank or any other representative of a holder of Senior and
Senior Subordinated Debt of the Issuer until the earlier of (A) 180 days after
such date and (B) the date, if any, on which the Senior and Senior Subordinated
Debt of the Issuer to which such default relates are discharged or such default
is waived by the holders of such Senior and Senior Subordinated Debt of the
Issuer or otherwise cured (provided that further written notice relating to the
same or any other nonpayment event of default specified in (b) above with
respect to the same Senior and Senior Subordinated Debt of the Issuer received
by the Issuer or the Trustee within 12 months after such receipt shall not be
effective for purposes of this clause (y)) or (z) in case of any payment or
nonpayment event of default specified in clause (a) or (b), as long as any
judicial proceeding is pending with respect to such event.
In the event that, notwithstanding the foregoing, the Issuer shall make any
payment to the Trustee or the Holder of any Security prohibited by the foregoing
provisions of this Section, then and in such event such payment shall be held
for the benefit of and, upon receipt by the Trustee of the notice set forth in
Section 13.09, shall be paid over and delivered forthwith to the appropriate
Agent Bank or other representative of such Senior and Senior Subordinated Debt
of the Issuer, provided that in the event there are no outstanding Senior and
Senior Subordinated Debt of the Issuer under any credit agreement, such payment
shall be paid over and delivered to the Issuer, in each case for the benefit of
102
the holders of Senior and Senior Subordinated Debt of the Issuer, and to the
extent of any such payment over the rights and remedies of the Trustee and the
Holders of Securities and coupons, and the obligations of the Issuer and the
Guarantor, if any, shall be reinstated in full force and effect as if such
payment by the Issuer to the Trustee or such Holders had never been made.
The provisions of this Section shall not apply to any payment with respect
to which Section 14.02 (without giving effect to the exclusion from the
applicability) of said Section contained in the first sentence of the last
paragraph thereof) would be applicable.
SECTION 14.04. Subrogation to Rights of Holders of Senior and Senior
Subordinated Debt. Subject to the payment in full of all Senior and Senior
Subordinated Debt of the Issuer, the Holders of the Securities and coupons, if
any, appertaining thereto shall be subrogated (equally and ratably with the
holders of all indebtedness of the Issuer which by its express terms is
subordinated to Senior and Senior Subordinated Debt of the Issuer to the same
extent as the Securities are subordinated and is entitled to like rights of
subrogation) to the rights of the holders of such Senior and Senior Subordinated
Debt of the Issuer to receive payments and distributions of cash, property and
securities applicable to the Senior and Senior Subordinated Debt of the Issuer
until the principal of (and premium, if any, on) and interest on the Securities
and coupons, if any, appertaining thereto shall be paid in full. For purposes of
such subrogation, no payments or distributions to the holders of Senior and
Senior Subordinated Debt of the Issuer of any cash, property or securities to
which the Holders of the Securities or the Trustee would be entitled except for
the provisions of this Article, and no payments over pursuant to the provisions
of this Article to the holders of Senior and Senior Subordinated Debt of the
Issuer by Holders of the Securities and coupons or the Trustee, shall, as among
the Issuer, it creditors other than holders of Senior and Senior Subordinated
Debt of the Issuer and the Holders of the Securities, be deemed to be a payment
or distribution by the Issuer to or on account of the Senior and Senior
Subordinated Debt of the Issuer.
SECTION 14.05. Provisions Solely to Define Relative Rights. The provisions
of this Article are and are intended solely for the purpose of defining the
relative rights of the Holders of the Securities and coupons on the one hand and
the holders of Senior and Senior Subordinated Debt of the Issuer on the other
hand. Nothing contained in this Article or elsewhere in this Indenture or in the
103
Securities is intended to or shall (a) impair, as among the Issuer, its
creditors and the Holders of the Securities and coupons, if any, appertaining
thereto, the obligation of the Issuer, which is absolute and unconditional, to
pay to the Holders of the Securities and coupons, if any, appertaining thereto
the principal of (and premium, if any, on) and interest on the Securities as and
when the same shall become due and payable in accordance with their terms or
impair, as among the Guarantor, its creditors and the Holders of the Securities
and coupons, if any, appertaining thereto, the obligations of the Guarantor
under any Guarantees, which are also absolute and unconditional; (b) affect the
relative rights against the Issuer of the Holders of the Securities and coupons
and creditor of the Issuer other than the holders of Senior and Senior
Subordinated Debt of the Issuer or affect the relative rights against the
Guarantor of the Holders of the Securities and coupons; or (c) prevent the
Trustee or the Holder of any Security or any coupon from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture, subject
to the rights, if any, under this Article, of the holders of Senior and Senior
Subordinated Debt of the Issuer (i) in any case, proceeding, dissolution,
liquidation or other winding up, assignment for the benefit of creditors or
other marshalling of assets and liabilities of the Issuer referred to in Section
15.02, to receive, pursuant to and in accordance with such Section, cash,
property and securities otherwise payable or deliverable to the Trustee or such
Holder, or (ii) under the conditions specified in Section 15.03, to prevent any
payment prohibited by such Section.
SECTION 14.06. No Waiver of Subordination Provisions. No right of any
present or future holder of any Senior and Senior Subordinated Debt of the
Issuer to enforce subordination as herein provided shall at any time in any way
be prejudiced or impaired by any act or failure to act on the part of the Issuer
or by any act or failure to act, in good faith, by any such holder, or by any
non-compliance by the Issuer with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder may have or be
otherwise charged with.
SECTION 14.07. Notice to Trustee. (a) The Issuer shall give prompt written
notice to the Trustee and the Agent Bank of any fact known to the Issuer which
would prohibit the making of any payment to or by the Trustee in respect of the
Securities pursuant to the provisions of this Article. Notwithstanding the
provisions of this Article or any other provision of this Indenture, the Trustee
shall not be charged with knowledge of the existence of any facts which would
104
prohibit the making of any payment to or by the Trustee in respect of the
Securities pursuant to the provisions of this Article, unless and until the
Trustee shall have received written notice thereof from the Issuer, the
appropriate Agent Bank or a holder of Senior and Senior Subordinated Debt of the
Issuer or from any trustee therefor, and, prior to the receipt of any such
written notice, the Trustee, subject to the provisions of TIA Sections 315(a)
through 315(d), shall be entitled in all respects to assume that no such facts
exist; provided, however, that, if the Trustee shall not have received the
notice provided for in this Section at least three Business Days prior to the
date upon which by the terms hereof any money may become payable for any purpose
(including, without limitation, the payment of the principal of (and premium, if
any, on) or interest on any Security), then, anything herein contained to the
contrary notwithstanding, the Trustee shall have full power and authority to
receive such money and to apply the same to the purpose for which such money was
received and shall not be affected by any notice to the contrary which may be
received by it within three Business Days prior to such date.
(b) Subject to the provisions of TIA Sections 315(a) through 315(d), the
Trustee shall be entitled to rely on the delivery to it of a written notice by a
Person representing himself to be a holder of Senior and Senior Subordinated
Debt of the Issuer (or a trustee therefor) to establish that such notice has
been given by a holder of Senior and Senior Subordinated Debt of the Issuer (or
a trustee therefor). In the event that the Trustee determines in good faith that
further evidence is required with respect to the right of any Person as a holder
of Senior and Senior Subordinated Debt of the Issuer to participate in any
payment or distribution pursuant to this Article, the Trustee may request such
Person to furnish evidence to the reasonable satisfaction of the Trustee as to
the amount of Senior and Senior Subordinated Debt of the Issuer held by such
Person, the extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
Person under this Article, and if such evidence is not furnished, the Trustee
and any Agent Bank may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment.
SECTION 14.08. Reliance on Judicial Order or Certificate of Liquidating
Agent. Upon any payment or distribution of assets of the Issuer referred to in
this Article, the Trustee, subject to the provisions of TIA Sections 315(a)
through 315(d), and the Holders of the Securities and the coupons, if any,
105
appertaining thereto, shall be entitled to rely upon any order or decree entered
by any court of competent jurisdiction in which such insolvency, bankruptcy,
receivership, liquidation, reorganization, dissolution, winding up or similar
case or proceeding is pending, or a certificate of the trustee in bankruptcy,
receiver, liquidating trustee, custodian, assignee for the benefit of creditors,
agent or other Person making such payment or distribution, delivered to the
Trustee or to the Holders of Securities, and the coupons, if any, appertaining
thereto, for the purpose of ascertaining the Persons entitled to participate in
such payment or distribution, the holders of Senior and Senior Subordinated Debt
of the Issuer and other indebtedness of the Issuer, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article.
SECTION 14.09. Rights of Trustee as a Holder of Senior and Senior
Subordinated Debt; Preservation of Trustee's Rights. The Trustee in its
individual capacity shall be entitled to all the rights set forth in this
Article with respect to any Senior and Senior Subordinated Debt of the Issuer
which may at any time be held by it, to the same extent as any other holder of
Senior and Senior Subordinated Debt of the Issuer, and nothing in this Indenture
shall deprive the Trustee of any of its rights as such holder.
Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 6.06.
SECTION 14.10. Article Applicable to Paying Agents. In case at any time any
Paying Agent other than the Trustee shall have been appointed by the Issuer and
be then acting hereunder, the term "Trustee" as used in this Article shall in
such case (unless the context otherwise requires) be construed as extending to
and including such Paying Agent within its meaning as fully for all intents and
purposes as if such Paying Agent were named in this Article in addition to or in
place of the Trustee; provided, however, that Section 15.11 shall not apply to
the Issuer or any Affiliates of the Issuer if it or such Affiliate acts as
Paying Agent.
SECTION 14.11. Trustee Not Fiduciary for Holders of Senior and Senior
Subordinated Debt. The Trustee shall not be deemed to owe any fiduciary duty to
the holders of Senior and Senior Subordinated Debt of the Issuer and shall not
106
be liable to any such holders if it shall in good faith mistakenly pay over or
distribute to Holders of Securities or coupons or to any other Person cash,
property or securities to which any holders of Senior and Senior Subordinated
Debt of the Issuer shall be entitled by virtue of this Article or otherwise.
SECTION 14.12. No Suspension of Remedies. Nothing contained in this Article
Fourteen shall limit the right of the Trustee or the Holders of Securities to
take any action to accelerate the maturity of the Securities pursuant to Article
Six or to pursue any rights or remedies hereunder or under applicable law,
except as provided in Article Six.
SECTION 14.13. Article Fourteen Not to Prevent Events of Default. The
failure to make payment pursuant to the Securities or the coupons, if any,
appertaining thereto, by reason of any provision in this Article Fourteen shall
not be construed as preventing the occurrence of a Default or an Event of
Default.
SECTION 14.14. Notices to Agent Bank. Any notice or communication by the
Issuer or the Trustee to any Agent Bank is duly given if in writing and mailed
by first-class mail, postage prepaid, or delivered in person or by telex,
telecopies or overnight air courier guaranteeing next day delivery to such Agent
Bank at the address set forth in the applicable Facility, or if no such address
is so specified in such Facility, at its principal office in New York, New York,
or if none, at its principal executive office. Any Agent Bank by notice to the
Issuer and the Trustee pursuant to Section 1.05 may designate additional or
different addresses for subsequent notices or communications. All notices and
communications to any Agent Bank shall be deemed to have been duly given: at the
time delivered by hand, if personally delivered; five Business Days after being
deposited in the mail, postage prepaid, if mailed; when answered back, if
telexed; when receipt acknowledged, if telecopied; and the next Business Day
after timely delivery to the courier, if sent by overnight air courier
guaranteeing next day delivery.
If a notice or communication is given in the manner provided above within
the time prescribed, it is duly given, whether or not the Agent Bank receives
it. Notwithstanding any provisions of this Indenture to the contrary, the
Trustee shall xxxx no liability to any Agent Bank based on or arising from the
failure to receive any notice required by or relating to this Indenture or the
Securities.
107
SECTION 14.15. Inapplicability of Article Fourteen to Certain Trustees
Monies and Certain Payments. The subordination of the Securities of any series
and the coupons, if any, appertaining thereto provided by this Article Fourteen
is expressly made subject to the provisions of Section 4.02 and the provisions
of defeasance or covenant defeasance in Article Sixteen and, anything herein to
the contrary notwithstanding, the provisions of this Article Fourteen shall not
apply to any money, U.S. Government Obligations or proceeds thereof held in
trust by the Trustee pursuant to Article Four or Article Sixteen. Anything
herein to the contrary notwithstanding, the provisions of this Article Fourteen
shall not apply to any payments (including, without limitation, any deposits) by
the Guarantor in respect of its Guarantor Obligations.
ARTICLE XV
SUBORDINATED GUARANTEES
SECTION 15.01. Subordinated Guarantees. If Securities of or within a series
are specified, as contemplated by Section 4.01, to be guaranteed by the
Guarantor, then the Guarantor hereby fully and unconditionally guarantees to
each Holder of any such Security which is authenticated and delivered by the
Trustee and to each Holder of any coupon appertaining to any such Security, and
to the Trustee on behalf of each such Holder, the due and punctual payment of
the principal of (and premium, if any, on) and interest (including, in case of
default), interest on principal and, to the extent permitted by applicable law,
on overdue interest and including any additional interest required to be paid
according to the terms of any such Security or any coupon appertaining thereto),
if any, on each such Security, and the due and punctual payment of any sinking
fund payment (or analogous obligation), if any, provided for with respect to any
such Security, when and as the same shall become and payable, whether at Stated
Maturity, upon redemption, upon acceleration, upon tender for repayment at the
option of any Holder or otherwise, according to the terms thereof and of this
Indenture, including, without limitation, the payment of any Additional Amounts,
if any, provided for with respect to any such Security as described under
Section 10.10 hereof (the "Guarantor Debt"). In case of the failure of the
Issuer or any successor thereto punctually to pay any such principal, premium,
interest or sinking fund payment, the Guarantor hereby agrees to cause any such
108
payment to be made punctually when and as the same shall become due and payable,
whether at Stated Maturity, upon redemption, upon declaration of acceleration,
upon tender for repayment at the option of any Holder or otherwise, as if such
payment were made by the Issuer.
The Guarantor hereby agrees that its Guarantor Debt hereunder shall be as
if it were principal debtor and not merely surety and shall be absolute and
unconditional, irrespective of the identity of the Issuer, the validity,
regularity or enforceability of any such Security or coupon appertaining thereto
or this Indenture, the absence of any action to enforce the same, any waiver or
consent by the Holder of any such Security or coupon appertaining thereto with
respect to any provisions thereof, the recovery of any judgment against the
Issuer or any action to enforce the same, or any other circumstance which might
otherwise constitute a legal or equitable discharge or defense of a guarantor.
The Guarantor hereby waives diligence, presentment, demand of payment, filing of
claims with a court in the event of insolvency or bankruptcy of the Issuer, any
right to require a proceeding first against the Issuer, protest, notice and all
demands whatsoever and covenants that its Guarantees will not be discharged
except by complete performance of its obligations contained in any such Security
or coupon appertaining thereto and in this Guarantee.
If the Trustee or the Holder of any Security or any coupon appertaining
thereto is required by any court or otherwise to return to the Issuer or the
Guarantor, or any custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official acting in relation to the Issuer or the
Guarantor, any amount paid to the Trustee or such Holder in respect of a
Security or any coupons appertaining thereto, the Guarantee, to the extent
theretofore discharged, shall be reinstated in full force and effect. The
Guarantor further agrees, to the fullest extent that it may lawfully do so,
that, as between the Guarantor, on the one hand, and the Holders and the
Trustee, on the other hand, the maturity of the obligations guaranteed hereby
may be accelerated as provided in Article Five hereof for the purposes of this
Guarantee, notwithstanding any stay, injunction or other prohibition extant
under any applicable bankruptcy law preventing such acceleration in respect of
the obligations guaranteed hereby.
The Guarantor shall be subrogated to all rights of the Holders of the
Securities of a series (and of any coupons appertaining thereto) against the
Issuer in respect of any amounts paid by the Guarantor on account of such
Securities or any coupons appertaining thereto or this Indenture; provided,
109
however, that the Guarantor shall not be entitled to enforce or to receive any
payments arising out of, or based upon, such right of subrogation until the
principal of (and premium, if any, on) and interest, if any, on all Securities
of such series shall have been indefeasibly paid in full.
SECTION 15.02. Execution and Authentication of Guarantee. To evidence its
Guarantees with respect to Securities of or within any series that are
specified, as contemplated by Section 3.01, to be guaranteed by the Guarantor,
the Guarantor hereby agrees to execute the Guarantees in the form of Exhibit B
or such other form as shall be established in one or more indentures
supplemental hereto or approved from time to time by or pursuant to a Board
Resolution, to be endorsed on each Security of such series authenticated and
delivered by the Trustee. Each such Guarantee shall be executed on behalf of the
Guarantor by its Chairman of the Board, or its Vice Chairman of the Board, or
its President, or one of its Executive Vice Presidents or Vice Presidents, or by
its Treasurer or one of its Assistant Treasurers and attested by its Secretary
or one of its Assistant Secretaries. The signature of any of these officers on
the Guarantees may be manual or facsimile.
Guarantees bearing the manual or facsimile signatures of the individuals
who were the proper officers of the Guarantor shall bind the Guarantor,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of the Securities upon which
such Guarantees are endorsed or did not hold such offices at the date of such
Securities.
The delivery of any Securities by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Guarantees endorsed
thereon on behalf of the Guarantor. The Guarantor hereby agrees that its
Guarantees set forth in this Article shall remain in full force and effect
notwithstanding any failure to endorse on each security a notation of such
Guarantee.
SECTION 15.03. Agreement to Subordinate Guarantees. The Guarantor covenants
and agrees, and each Holder of a Security or of any coupon appertaining thereto,
by his acceptance thereof, likewise covenants and agrees, that, to the extent
and in the manner hereinafter set forth in this Article Fifteen (subject to the
provisions of Article Four and Article Sixteen), the Guarantor Debt are hereby
expressly made subordinate and subject in right of payment to the prior payment
in full of all Senior and Senior Subordinated Debt of the Guarantor; but the
110
Guarantor Debt in all respects shall rank equally with, or prior to, all
existing and future unsecured indebtedness (including, without limitation,
Indebtedness) of the Guarantor that is not Senior and Senior Subordinated Debt
of the Guarantor.
SECTION 15.04. Payment Over of Proceeds Upon Dissolution, Etc In the event
of (a) any insolvency or bankruptcy case of proceeding, or any receivership,
liquidation, reorganization or other similar case or proceeding in connection
therewith, relative to the Guarantor or to its creditors, as such, or to its
assets, or (b) any liquidation, dissolution or other winding up of the
Guarantor, whether voluntary or involuntary and whether nor not involving
insolvency or bankruptcy, or (c) any assignment for the benefit of creditors or
any other marshalling of assets and liabilities of the Guarantor, then and in
any such event the holders of Senior and Senior Subordinated Debt of the
Guarantor shall first be entitled to receive payment in full of all amounts due
or to become due on or in respect to all such Senior and Senior Subordinated
Debt, or provision shall be made for such payment in cash or cash equivalents,
before the Holders of the Securities are entitled to receive any payment on
account of principal of (or premium, if any) or interest on the Securities or
any other Guarantor Debt of the Guarantor, and to that end the holders of Senior
and Senior Subordinated Debt of the Guarantor shall be entitled to receive, for
application to the payment thereof, any payment or distribution of any kind or
character, whether in cash, property or securities, including any such payment
or distribution which may be payable or deliverable by reason of the payment of
any other indebtedness of the Guarantor being subordinated to the payment of the
Guarantor Debt, which may be payable or deliverable in respect of the Guarantor
Debt in any such case, proceeding, dissolution, liquidation or other winding up
or event.
In the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or the Holder of any Security shall have received any
payment or distribution of assets of the Guarantor of any kind or character,
whether in cash, property or securities, including any such payment or
distribution which may be payable or deliverable by reason of the payment of any
other indebtedness of the Guarantor being subordinated to the payment of the
Guarantor Debt, before all Senior and Senior Subordinated Debt of the Guarantor
are paid in full or payment thereof provided for, then and in such event such
payment or distribution shall be held for the benefit of and, upon receipt by
the Trustee of the notice set forth in Section 14.11, shall be held for the
benefit of and, upon receipt by the Trustee of the notice set forth in Section
111
14.11 paid over or delivered forthwith to the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee, agent or other Person making payment
or distribution of assets of the Guarantor for application to the payment of all
Senior and Senior Subordinated Debt remaining unpaid, to the extent necessary to
pay all Senior and Senior Subordinated Debt of the Guarantor in full, after
giving effect to any concurrent payment or distribution to or for the holders of
Senior and Senior Subordinated Debt of the Guarantor.
For purposes of this Article only, the words "cash, property or securities"
shall not be deemed to include shares of stock of the Guarantor as reorganized
or readjusted, or securities of the Guarantor as reorganized or readjusted, or
securities of the Guarantor or any other corporation provided for by a plan of
reorganization or readjustment which are subordinated in right of payment to all
Senior and Senior Subordinated Debt of the Guarantor which may at the time be
outstanding to substantially the same extent as, or to a greater extent than,
the Guarantor Debt are so subordinated as provided in this Article. The
consolidation of the Guarantor with, or the merger of the Guarantor into,
another Person or the liquidation or dissolution of the Guarantor following the
conveyance or transfer of its properties and assets substantially as an entirety
to another Person upon the terms and conditions, if any, set forth in any
Officers' Certificate or supplemental indenture creating any series of
Securities shall not be deemed a dissolution, winding up, liquidation,
reorganization, assignment for the benefit of creditors or marshalling of assets
and liabilities of the Guarantor for the purposes of this Section if the
surviving Person, as part of such consolidation, merger, conveyance or transfer,
complies with the conditions, if any, set forth in the Officers' Certificate or
supplemental indenture.
SECTION 15.05. No Payment When Senior Debt in Default. If (a) in the event
and during the continuation of any default in the payment of principal of (or
premium, if any) or interest on any Senior Debt of the Guarantor beyond any
applicable grace period with respect thereto (a "payment event of default") or
in the event that any event of default (other than a payment event of default)
with respect to any Senior Debt of the Guarantor shall have occurred and be
continuing and shall have resulted in such Senior and Senior Subordinated Debt
of the Guarantor becoming or being declared due and payable, or (b) in the event
that any event of default (other than a payment event of default) with respect
112
to any Bank Debt of the Guarantor shall have occurred and be continuing
permitting the holders of such Bank Debt of the Guarantor (or a trustee on
behalf of the holders thereof) to declare such Senior and Senior Subordinated
Debt of the Guarantor due and payable, then no payment, direct or indirect
(including any payment which may be payable by reason of the payment of any
other indebtedness of the Guarantor being subordinated to the payment of the
Guarantees), shall be made by the Guarantor on account of principal of (or
premium, if any) or interest on the Securities or on account of the purchase or
redemption or other acquisition of Securities or coupons appertaining thereto
(x) in case of any payment or nonpayment event of default specified in (a),
unless and until (A) such event of default shall have been cured or waived or
shall have ceased to exist or such acceleration shall have been rescinded or
annulled or (B) the Senior Debt of the Guarantor in respect of which such
declaration of acceleration has occurred is discharged, (y) in case of any
nonpayment event of default specified in (b), from the earlier of the dates the
Guarantor and the Trustee receive written notice of such event of default from
an Agent Bank or representative of a holder of Bank Senior Debt of the Guarantor
until the earlier of (A) 180 days after such date and (B) the date, if any, on
which the Bank Senior Debt of the Guarantor to which such default relates are
discharged or such default is waived by the holders of such Bank Senior Debt of
the Guarantor or otherwise cured provided, however, that if any notice of
payment within such 360-day period is given by or on behalf of any holders of
Bank Senior Debt (other than the Bank Debt), only the representative with
respect to the Bank Debt may give the other Payment Notice during such 360-day
period. No event of default which had occurred and was continuing on the date of
receipt by the Company of a Payment Notice and was known to any holder of
specified Senior Debt or its representative with respect to which the first
Payment Notice was given may be made the basis for the delivery of a second
Payment Notice from such representative whether or not within any consecutive
360-day period, unless such event of default shall have been cued or waived for
a period of not less than 90 consecutive days.
In the event that, notwithstanding the foregoing, the Guarantor shall make
any payment to the Trustee or the Holder of any Security prohibited by the
foregoing provisions of this Section, then and in such event such payment shall
be held for the benefit of and, upon receipt by the Trustee of the notice set
forth in Section 15.11, shall be paid over and delivered forthwith to Guarantor,
in each case for the benefit of the holders of Senior and Senior Subordinated
Debt of the Guarantor, and to the extent of any such payment over the rights and
113
remedies of the Trustee and the Holders of Securities and coupons, and the
obligations of the Issuer and the Guarantor, shall be reinstated in full force
and effect as if such payment by the Guarantor to the Trustee or such Holders
had never been made.
The provisions of this Section shall not apply to any payment with respect
to which Section 14.03 (without giving effect to the exclusion from the
applicability of said Section contained in the first sentence of the last
paragraph thereof) would be applicable.
SECTION 15.06. Notices by Guarantor. The Guarantor shall, or the Issuer on
the Guarantor's behalf shall, promptly notify the Trustee in writing of any
facts known to the Issuer or the Guarantor, as the case may be, that would cause
any payment or distribution made by the Guarantor to violate this Article
Fifteen, but failure to give such notice shall not affect the subordination
contained herein to any Senior and Senior Subordinated Debt of the Guarantor
provided in this Article Fifteen.
SECTION 15.07. Subrogation of Securityholders and Guarantor. Subject to the
payment in full of all Senior Debt of the Guarantor, the Holders of the
Securities and the coupons, if any, appertaining thereto shall be subrogated
(equally and ratably with the holders of all indebtedness of the Guarantor which
by its terms is subordinated to Senior Debt of the Guarantor to the same extent
as the Guarantees are subordinated and is entitled to like rights of
subrogation) to the rights of holders of such Senior Debt of the Guarantor to
receive payments and distributions of cash, property and securities applicable
to such Senior and Senior Subordinated Debt of the Guarantor until the principal
of (and premium, if any, on) and interest on the Securities and coupons, if any,
appertaining thereto shall be paid in full. For purposes of such subrogation, no
payments or distributions to the holders of Senior and Senior Subordinated Debt
of the Guarantor of any cash, property or securities to which the Holders of the
Securities or the Trustee would be entitled except for the subordination
provisions of this Article, and no payments over pursuant to the provisions of
this Article to the holders of Senior and Senior Subordinated Debt of the
Guarantor by Holders of the Securities and coupons or the Trustee, shall, as
among the Guarantor, its creditors other than holders of Senior and Senior
114
Subordinated Debt of the Guarantor and the Holders of such Senior Debt, be
deemed to be a payment or distribution by the Guarantor to or on account of the
Senior and Senior Subordinated Debt of the Guarantor.
Until the Securities and coupons, if any, appertaining thereto are
indefeasibly paid in full, the Guarantor shall not exercise any rights that it
may acquire by way of subrogation under this Article Fifteen, by any payment
made hereunder or otherwise, including the right to ask, demand, xxx for, take
or receive from the Issuer such subrogation rights. If any amount shall be paid
to the Guarantor on account of such subrogation rights in violation of the
preceding sentence, such amount shall be held in trust for the benefit of the
Trustee and the Holders of such Securities and coupons, if any, appertaining
thereto and shall forthwith be paid to the Trustee to be credited and applied in
accordance with the terms hereof.
SECTION 15.08. Relative Rights Under Subordinated Guarantees. The
subordination provisions of this Article Fifteen are intended solely for the
purpose of defining the relative rights of the Trustee, the Holders of
Securities and coupons, if any, appertaining thereto and holders of Senior and
Senior Subordinated Debt with respect to the Guarantor. Nothing in this Article
Fourteen is intended to or shall:
(i) impair, as among the Guarantor, its creditors other than holders
of its Senior and Senior Subordinated Debt and the Trustee and the Holders
of Securities and coupons, if any, appertaining thereto, the obligations of
the Guarantor, which are absolute and unconditional, to pay its Guarantor
Debt as and when the same shall be due and payable in accordance with their
terms or impair, as among the Issuer, its creditors and the Holders of the
Securities and coupons, if any, appertaining thereto, the obligation of the
Issuer, which also is absolute and unconditional, to pay to the Holders of
the Securities and coupons, if any, appertaining thereto the principal of
(and premium, if any) and interest on the Securities as and when the same
shall become due and payable in accordance with their terms;
(ii) affect the relative rights against the Guarantor of the Holders
of Securities and coupons, if any, appertaining thereto and creditors of
the Guarantor other than holders of Senior and Senior Subordinated Debt of
the Guarantor; or
(iii) prevent the Trustee or any Holder of a Security or any coupon
from exercising all remedies otherwise permitted by applicable law upon
default under this Indenture, subject to the express limitation in Article
115
Five and to the rights, if any, under this Article Fifteen of the holders
of Senior and Senior Subordinated Debt of the Guarantor.
SECTION 15.09. Subordination May Not Be Impaired by Guarantor. No right of
any present or future of any holder of Senior and Senior Subordinated Debt of
the Guarantor to enforce the subordination of the Guarantor Debt evidenced
hereby shall be impaired by any act or failure to act on the part of the
Guarantor or by any act or failure to act in good faith by any such holder, or
by any non-compliance by the Guarantor with the terms, provisions and covenants
of this Indenture, regardless of any knowledge thereof any such holder may have
or be otherwise charged with.
SECTION 15.10. Rights of Trustee and Paying Agent in Respect of
Subordinated Guarantees. The Trustees or Paying Agent may continue to make
payments on the Securities until it receives written notice of facts that would
cause the payment of principal of (and premium, if any), or interest (including
accreted interest) on the Securities to violate this Article Fifteen. Only the
Guarantor, a representative or a trustee under an indenture or other agreement
pursuant to which Senior and Senior Subordinated Debt of the Guarantor were
issued, or a holder of an issue of Senior and Senior Subordinated Debt of the
Guarantor that has no representative may give the notice. Prior to three
Business Days after receipt by a Responsible Officer of the Trustee or the
Paying Agent of such notice, the Trustee or the Paying Agent, as the case may
be, shall be entitled in all respects to assume that no such facts exist. In any
case, the Trustee shall have no responsibility to the holders of Senior and
Senior Subordinated Debt of the Guarantor for payments made to Holders of
Securities and any coupons appertaining thereto by the Guarantor or any Paying
Agent unless such payments are made at the direction of the Trustee. The
provisions of this Section 15.11 shall control any conflicting provisions of
this Indenture regarding payments by the Guarantor.
To the extent provided herein, payment and distributions which are
prohibited by Sections 16.04 an 16.05 hereof will be held by the Trustee for the
benefit of the holders of Senior and Senior Subordinated Debt of the Guarantor.
The Trustee shall not be under any duty or obligation to take under this Article
Fifteen any action at the request or for the benefit of holders of Senior and
116
Senior Subordinated Debt of the Guarantor which, in the Trustee's opinion, shall
be likely to involve it in any expense or liability, if there are reasonable
grounds for believing that a repayment of such expense or liability is not
reasonably assured to it, unless one or more holders of Senior and Senior
Subordinated Debt of the Guarantor shall, as often as may be required by the
Trustee, furnish indemnity satisfactory to the Trustee against such expense or
liability.
SECTION 15.11. Trustee Not Fiduciary for the Holders of Senior Debt of the
Guarantor The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior and Senior Subordinated Debt of the Guarantor and shall not be
liable to any such holders if it in good faith mistakenly pay over or deliver to
Holders of Securities or coupons, the Issuer or any other person moneys or
assets to which any holder of Senior and Senior Subordinated Debt of the
Guarantor shall be entitled by virtue of this Article or otherwise.
SECTION 15.12. Reliance on Judicial Order or Certificate of Liquidating
Agent. Upon any payment or distribution referred to in this Article, the
Trustee, subject to the provisions of TIA Section 315(a) through 315(d), the
Holders of the Securities and the coupons, if any, appertaining thereto and the
Guarantor shall be entitled to rely upon any order or decree entered by any
court of competent jurisdiction in which any such insolvency, bankruptcy,
receivership, liquidation, reorganization, dissolution, winding up or similar
case or proceeding is pending, or a certificate of the trustee in bankruptcy,
receiver, liquidating trustee, custodian, assignee for the benefit of creditors,
agent or other Person making such payment or distribution, delivered to the
Trustee or to the Holders of the Securities and the coupons, if any,
appertaining thereto, for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of Senior and Senior
Subordinated Debt of the Guarantor, any other Indebtedness of the Guarantor, the
amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article.
SECTION 15.13. Rights of Trustee as a Holder of Senior and Senior
Subordinated Debt of the Guarantor; Preservation of Trustee's Rights. The
Trustee in its in individual capacity shall be entitled to all the rights set
forth in this Article with respect to any Senior and Senior Subordinated Debt of
the Guarantor which may at any time be held by it, to the same extent as any
117
other holder of Senior and Senior Subordinated Debt of the Guarantor, and
nothing in this Indenture shall deprive the Trustee of any of its rights as such
holder. Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 7.06.
SECTION 15.14. Article Applicable to Paying Agents. In case at any time any
Paying Agent other than the Trustee shall have been appointed by the Issuer and
be then acting hereunder, the term "Trustee" as used in this Article shall in
such case (unless the context otherwise requires) be construed as extending to
and including such Paying Agent within its meaning as fully for all intents and
purposes as if such Paying Agent were named in this Article in addition to or in
place of the Trustee; provided, however, that Section 16.14 shall not apply to
the Issuer, the Guarantor or any of their Affiliates if the Issuer, the
Guarantor or such Affiliate acts as Paying Agent.
SECTION 15.15. Reliance by Holders of Senior and Senior Subordinated Debt
of the Guarantor on Subordination Provisions. Each Holder of a Security or
coupon by accepting such Security or coupon acknowledges and agrees that the
subordination provisions of this Article Fifteen are, and are intended to be, an
inducement and a consideration to each holder of any Senior and Senior
Subordinated Debt of the Guarantor, whether such Senior and Senior Subordinated
Debt of the Guarantor were created or acquired before or after the issuance of
the Securities, to acquire and continue to hold, or to continue to hold, such
Senior and Senior Subordinated Debt of the Guarantor and such holder of Senior
and Senior Subordinated Debt of the Guarantor shall be deemed conclusively to
have relied on such subordination provisions in acquiring and continuing to
hold, or in continuing to hold, such Senior and Senior Subordinated Debt of the
Guarantor. The provisions of Article Sixteen are intended to be for the benefit
of, and shall be enforceable directly by, the holders of Senior and Senior
Subordinated Debt of the Guarantor.
SECTION 15.16. Payment in Full. For purposes of this Indenture, payment in
full by the Guarantor of any guarantee of obligations of the Issuer under any
Facility shall mean payment in full of such Senior and Senior Subordinated Debt
of the Guarantor in cash or cash equivalents, termination or replacement of all
letters of credit issued thereunder and termination of all commitments
thereunder.
SECTION 15.17. No Suspension of Remedies. Except as set forth in Article
Six, nothing contained in this Article Fifteen shall limit the right of the
Trustee or the Holders of Securities to take any action to accelerate the
118
maturity of the Securities pursuant to Article Five or to pursue any rights or
remedies hereunder or under applicable law.
SECTION 15.18. Article Fifteen Not to Prevent Events of Default. The
failure to make payment pursuant to the Guarantees by reason of any provision in
this Article Fifteen shall not be construed as preventing the occurrence of a
Default or an Event of Default.
SECTION 15.19. Inapplicability of Article Fifteen to Certain Trust Monies
and Certain Payments. The subordination of the Guarantor Debt of the Guarantor
provided by this Article Fifteen is expressly made subject to the provisions for
defeasance or covenant defeasance in Article Sixteen and, anything herein to the
contrary notwithstanding, with respect to any Guarantor, the subordination
provisions of this Article Fourteen shall not apply to money, U.S. Government
Obligations or proceeds thereof held in trust by the Trustee pursuant to Article
Four or Article Sixteen. Anything herein to the contrary notwithstanding, with
respect to the Guarantor, the subordination provisions of this Article Fourteen
shall not apply to any payment on (including, without limitation, any deposit
with respect to the payment of) the Securities or any coupons by the Issuer.
SECTION 15.20. Limitation of Guarantor's Liability. The Guarantor, and by
its acceptance of a Security each Holder, hereby confirms that it is the
intention of all such parties that in no event shall any obligations of
Guarantor under the Guarantees constitute or result in a fraudulent transfer or
conveyance for purposes of, or result in a violation of, any United States
federal, or applicable United States state, fraudulent transfer or conveyance or
similar law. To effectuate the foregoing intention, in the event that the
obligations of Guarantor, if any, in respect of the Securities of any series
would, but for this sentence, constitute or result in such a fraudulent transfer
or conveyance or violation, then the liability of the Guarantor under its
Guarantees in respect of the Securities of such series shall be reduced to the
extent necessary to eliminate such fraudulent transfer or conveyance or
violation under the applicable fraudulent transfer or conveyance or similar law.
SECTION 15.21. Payment Permitted If No Default. Nothing contained in this
Article or elsewhere in this Indenture or in any of the Securities shall prevent
the Issuer, at any time except during the pendency of any case, proceeding,
dissolution, liquidation or other winding up, assignment for the benefit of
119
creditors or other marshalling of assets and liabilities of the Issuer referred
to in Section 15.02 or under the conditions described in Section 15.03, from
making payments at any time of principal of (and premium, if any, on) or
interest on the Securities and the coupons appertaining thereto or from making
the deposits contemplated by Section 4.01 or Section 17.04 hereof.
SECTION 15.22. Trustee to Effectuate Subordination. Each Holder of a
Security or coupon by his acceptance thereof authorizes and directs the Trustee
on his behalf to take such action as may be necessary or appropriate to
effectuate the subordination provided in this Article and appoints the Trustee
his attorney-in-fact for any and all such purposes.
ARTICLE XVI
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 16.01. Applicability of Article; Issuer's Option to Effect
Defeasance or Covenant Defeasance. If, pursuant to Section 3.01, provision is
made for either or both of (a) defeasance of the Securities of or within a
series under Section 14.02 or (b) covenant defeasance of the Securities of or
within a series under Section 14.03, then the provisions of such Section or
Sections, as the case may be, together with the other provisions of this Article
(with such modifications thereto as may be specified pursuant to Section 3.01
with respect to any Securities), shall be applicable to such Securities and any
coupons appertaining thereto, and the Issuer may at its option by Board
Resolution, at any time, with respect to such Securities and any coupons
appertaining thereto, elect to have Section 14.02 (if applicable) or Section
14.03 (if applicable) be applied to such Outstanding Securities and any coupons
appertaining thereto upon compliance with the conditions set forth below in this
Article.
SECTION 16.02. Defeasance and Discharge. Upon the Issuer's exercise of the
above option applicable to this Section with respect to any Securities of or
within a series, the Issuer shall be deemed to have been discharged from its
obligations with respect to such Outstanding Securities and any coupons
appertaining thereto on the date the conditions set forth in Section 14.04 are
satisfied (hereinafter, "defeasance"). For this purpose, such defeasance means
that the Issuer shall be deemed to have paid and discharged the entire
120
indebtedness represented by such Outstanding Securities and any coupons
appertaining thereto, which shall thereafter be deemed to be "Outstanding" only
for the purposes of Section 14.05 and the other Sections of this Indenture
referred to in clauses (A) and (B) below, and to have satisfied all of its other
obligations under such Securities and any coupons appertaining thereto and this
Indenture insofar as such Securities and any coupons appertaining thereto are
concerned (and the Trustee, at the expense of the Issuer, shall execute proper
instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (A) the rights of
Holders of such Outstanding Securities and any coupons appertaining thereto to
receive, solely from the trust fund described in Section 14.04 and as more fully
set forth in such Section, payments in respect of the principal of (and premium,
if any) and interest, if any, on such Securities and any coupons appertaining
thereto when such payments are due, (B) the Issuer's obligations with respect to
such Securities under Sections 3.05, 3.06, 10.02 and 10.03 and with respect to
the payment of Additional Amounts, if any, on such Securities as contemplated by
Section 10.10, (C) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and (D) this Article. Subject to compliance with this Article
Sixteen, the Issuer may exercise its option under this Section notwithstanding
the prior exercise of its option under Section 14.03 with respect to such
Securities and any coupons appertaining thereto.
SECTION 16.03. Covenant Defeasance. Upon the Issuer's exercise of the above
option applicable to this Section with respect to any Securities of or within a
series, the Issuer shall be released from its obligations under Sections 10.04
to 10.08, inclusive, and, if specified pursuant to Section 3.01, its obligations
under any other covenant contained herein or in any indenture supplemental
hereto, with respect to such Outstanding Securities and any coupons appertaining
thereto on and after the date the conditions set forth in Section 14.04 are
satisfied (hereinafter, "covenant defeasance"), and such Securities and any
coupons appertaining thereto shall thereafter be deemed to be not "Outstanding"
for the purposes of any direction, waiver, consent or declaration or Act of
Holders (and the consequences of any thereof) in connection with Sections 10.04
to 10.08, inclusive, or such other covenant, but shall continue to be deemed
"Outstanding" for all other purposes hereunder. For this purpose, such covenant
defeasance means that, with respect to such Outstanding Securities and any
coupons appertaining thereto, the Issuer may omit to comply with and shall have
121
no liability in respect of any term, condition or limitation set forth in any
such Section or such other covenant, whether directly or indirectly, by reason
of any reference elsewhere herein to any such Section or such other covenant or
by reason of reference in any such Section or such other covenant to any other
provision herein or in any other document and such omission to comply shall not
constitute a default or an Event of Default under Section 5.01(4) or 5.01(8) or
otherwise, as the case may be, but, except as specified above, the remainder of
this Indenture and such Securities and any coupons appertaining thereto shall be
unaffected thereby.
SECTION 16.04. Conditions to Defeasance or Covenant Defeasance. The
following shall be the conditions to application of Section 14.02 or Section
14.03 to any Outstanding Securities of or within a series and any coupons
appertaining thereto:
(a) The Issuer shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 6.07 who shall agree to comply with the provisions of this
Article Sixteen applicable to it) as trust funds in trust for the purpose
of making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Securities and any
coupons appertaining thereto, (1) an amount in such currency, currencies or
currency unit in which such Securities and any coupons appertaining thereto
are then specified as payable at Stated Maturity, or (2) Government
Obligations applicable to such Securities and coupons appertaining thereto
(determined on the basis of the currency, currencies or currency unit in
which such Securities and coupons appertaining thereto are then specified
as payable at Stated Maturity) which through the scheduled payment of
principal and interest in respect thereof in accordance with their terms
will provide, not later than the due date of any payment of principal of
(and premium, if any) and interest, if any, on such Securities and any
coupons appertaining thereto, money in an amount, or (3) a combination
thereof, in any case, in an amount, sufficient, without consideration of
any reinvestment of such principal and interest, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee (or other qualifying
trustee) to pay and discharge, (i) the principal of (and premium, if any)
122
and interest, if any, on such Outstanding Securities and any coupons
appertaining thereto on the Stated Maturity of such principal or
installment of principal or interest and (ii) any mandatory sinking fund
payments or analogous payments applicable to such Outstanding Securities
and any coupons appertaining thereto on the day on which such payments are
due and payable in accordance with the terms of this Indenture and of such
Securities and any coupons appertaining thereto.
(b) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument to which the Issuer is a party
or by which it is bound.
(c) No Event of Default or event which with notice or lapse of time or
both would become an Event of Default with respect to such Securities and
any coupons appertaining thereto shall have occurred and be continuing on
the date of such deposit or, insofar as Sections 5.01(6) and 5.01(7) are
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
deemed satisfied until the expiration of such period).
(d) In the case of an election under Section 14.02, the Issuer shall
have delivered to the Trustee an Opinion of Counsel stating that (i) the
Issuer has received from, or there has been published by, the Internal
Revenue Service a ruling, or (ii) since the date of execution of this
Indenture, there has been a change in the applicable Federal income tax
law, in either case to the effect that, and based thereon such opinion
shall confirm that, the Holders of such Outstanding Securities and any
coupons appertaining thereto will not recognize income, gain or loss for
Federal income tax purposes as a result of such defeasance and will be
subject to Federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such defeasance had not
occurred.
(e) In the case of an election under Section 14.03, the Issuer shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of such Outstanding Securities and any coupons appertaining thereto
will not recognize income, gain or loss for Federal income tax purposes as
123
a result of such covenant defeasance and will be subject to Federal income
tax on the same amounts, in the same manner and at the same times as would
have been the case if such covenant defeasance had not occurred.
(f) The Issuer shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance under Section 14.02 or the covenant defeasance
under Section 14.03 (as the case may be) have been complied with and an
Opinion of Counsel to the effect that either (i) as a result of a deposit
pursuant to subsection (a) above and the related exercise of the Issuer's
option under Section 14.02 or Section 14.03 (as the case may be),
registration is not required under the Investment Company Act of 1940, as
amended, by the Issuer, with respect to the trust funds representing such
deposit or by the Trustee for such trust funds or (ii) all necessary
registrations under said Act have been effected. (g) Notwithstanding any
other provisions of this Section, such defeasance or covenant defeasance
shall be effected in compliance with any additional or substitute terms,
conditions or limitations which may be imposed on the Issuer in connection
therewith pursuant to Section 3.01.
SECTION 16.05. Deposited Money and Government Obligations to Be Held in
Trust; Other Miscellaneous Provisions. Subject to the provisions of the last
paragraph of Section 10.03, all money and Government Obligations (or other
property as may be provided pursuant to Section 3.01) (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee, collectively
for purposes of this Section 16.05, the "Trustee") pursuant to Section 16.04 in
respect of any Outstanding Securities of any series and any coupons appertaining
thereto shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and any coupons appertaining thereto and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Issuer acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities and any coupons appertaining
thereto of all sums due and to become due thereon in respect of principal (and
premium, if any) and interest, but such money need not be segregated from other
funds except to the extent required by law.
124
Unless otherwise specified with respect to any Security pursuant to Section
3.01, if, after a deposit referred to in Section 14.04(a) has been made, (a) the
Holder of a Security in respect of which such deposit was made is entitled to,
and does, elect pursuant to Section 3.01 or the terms of such Security to
receive payment in a currency or currency unit other than that in which the
deposit pursuant to Section 14.04(a) has been made in respect of such Security,
or (b) a Conversion Event occurs in respect of the currency or currency unit in
which the deposit pursuant to Section 14.04(a) has been made, the indebtedness
represented by such Security and any coupons appertaining thereto shall be
deemed to have been, and will be, fully discharged and satisfied through the
payment of the principal of (and premium, if any), and interest, if any, on such
Security as the same becomes due out of the proceeds yielded by converting (from
time to time as specified below in the case of any such election) the amount or
other property deposited in respect of such Security into the currency or
currency unit in which such Security becomes payable as a result of such
election or Conversion Event based on the applicable market exchange rate for
such currency or currency unit in effect on the second Business Day prior to
each payment date, except, with respect to a Conversion Event, for such currency
or currency unit in effect (as nearly as feasible) at the time of the Conversion
Event.
The Issuer shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the Government Obligations deposited
pursuant to Section 14.04 or the principal and interest received in respect
thereof other than any such tax, fee or other charge which by law is for the
account of the Holders of such Outstanding Securities and any coupons
appertaining thereto.
Anything in this Article to the contrary notwithstanding, subject to
Section 6.06, the Trustee shall deliver or pay to the Issuer from time to time
upon Issuer Request any money or Government Obligations (or other property and
any proceeds therefrom) held by it as provided in Section 14.04 which, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect a defeasance or covenant defeasance, as applicable, in accordance with
this Article.
125
ARTICLE XVII
MEETINGS OF HOLDERS OF SECURITIES
SECTION 17.01. Purposes for Which Meetings May Be Called. A meeting of
Holders of Securities of any series may be called at any time and from time to
time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series.
SECTION 17.02. Call, Notice and Place of Meetings. (a) The Trustee may at
any time call a meeting of Holders of Securities of any series for any purpose
specified in Section 15.01, to be held at such time and at such place as the
Trustee shall determine. Notice of every meeting of Holders of Securities of any
series, setting forth the time and the place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be given, in the
manner provided in Section 1.06, not less than 20 nor more than 180 days prior
to the date fixed for the meeting.
(b) In case at any time the Issuer, pursuant to a Board Resolution, or the
Holders of at least 25% in principal amount of the Outstanding Securities of any
series shall have requested the Trustee to call a meeting of the Holders of
Securities of such series for any purpose specified in Section 15.01, by written
request setting forth in reasonable detail the action proposed to be taken at
the meeting, and the Trustee shall not have made the first publication of the
notice of such meeting within 20 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as provided herein, then the
Issuer or the Holders of Securities of such series in the amount above
specified, as the case may be, may determine the time and the place for such
meeting and may call such meeting for such purposes by giving notice thereof as
provided in subsection (a) of this Section.
SECTION 17.03. Persons Entitled to Vote at Meetings. To be entitled to vote
at any meeting of Holders of Securities of any series, a Person shall be (1) a
Holder of one or more Outstanding Securities of such series, or (2) a Person
appointed by an instrument in writing as proxy for a Holder or Holders of one or
126
more Outstanding Securities of such series by such Holder or Holders. The only
Persons who shall be entitled to be present or to speak at any meeting of
Holders of Securities of any series shall be the Persons entitled to vote at
such meeting and their counsel, any representatives of the Trustee and its
counsel and any representatives of the Issuer and its counsel.
SECTION 17.04. Quorum; Action. The Persons entitled to vote a majority in
principal amount of the Outstanding Securities of a series shall constitute a
quorum for a meeting of Holders of Securities of such series; provided, however,
that if any action is to be taken at such meeting with respect to a consent or
waiver which this Indenture expressly provides may be given by the Holders of
not less than a specified percentage in principal amount of the Outstanding
Securities of a series, the Persons entitled to vote such specified percentage
in principal amount of the Outstanding Securities of such series shall
constitute a quorum. In the absence of a quorum within 30 minutes after the time
appointed for any such meeting, the meeting shall, if convened at the request of
Holders of Securities of such series, be dissolved. In any other case the
meeting may be adjourned for a period of not less than 10 days as determined by
the chairman of the meeting prior to the adjournment of such meeting. In the
absence of a quorum at the reconvening of any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10
days; at the reconvening of any meeting adjourned or further adjourned for lack
of a quorum, the persons entitled to vote 25% in aggregate principal amount of
the then Outstanding Securities shall constitute a quorum for the taking of any
action set forth in the notice of the original meeting. Notice of the
reconvening of any adjourned meeting shall be given as provided in Section
15.02(a), except that such notice need be given only once not less than five
days prior to the date on which the meeting is scheduled to be reconvened.
Except as limited by the proviso to Section 9.02, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted by the affirmative vote of the persons entitled to
vote a majority in aggregate principal amount of the Outstanding Securities
represented at such meeting; provided, however, that, except as limited by the
proviso to Section 9.02, any resolution with respect to any request, demand,
authorization, direction, notice, consent, waiver or other action which this
Indenture expressly provides may be made, given or taken by the Holders of a
specified percentage, which is less than a majority, in principal amount of the
Outstanding Securities of a series may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid by the
127
affirmative vote of the Holders of such specified percentage in principal amount
of the Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related coupons,
whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section 17.04, if any
action is to be taken at a meeting of Holders of Securities of any series with
respect to any request, demand, authorization, direction, notice, consent,
waiver or other action that this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage in principal amount of all
Outstanding Securities affected thereby, or of the Holders of such series and
one or more additional series:
(i) there shall be no minimum quorum requirement for such meeting; and
(ii) the principal amount of the Outstanding Securities of such series
that vote in favor of such request, demand, authorization, direction,
notice, consent, waiver or other action shall be taken into account in
determining whether such request, demand, authorization, direction, notice,
consent, waiver or other action has been made, given or taken under this
Indenture.
SECTION 17.05. Determination of Voting Rights; Conduct and Adjournment of
Meetings. (a) Notwithstanding any provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities of a series in regard to proof of the holding of
Securities of such series and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall deem appropriate.
Except as otherwise permitted or required by any such regulations, the holding
of Securities shall be proved in the manner specified in Section 1.04 and the
appointment of any proxy shall be proved in the manner specified in Section 1.04
or by having the signature of the Person executing the proxy witnessed or
guaranteed by any trust company, bank or banker authorized by Section 1.04 to
128
certify to the holding of Bearer Securities. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 1.04 or other proof.
(b) The Trustee shall, by an instrument in writing appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the Issuer
or by Holders of Securities as provided in Section 15.02(b), in which case the
Issuer or the Holders of Securities of the series calling the meeting, as the
case may be, shall in like manner appoint a temporary chairman. A permanent
chairman and a permanent secretary of the meeting shall be elected by vote of
the Persons entitled to vote a majority in principal amount of the Outstanding
Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy shall
be entitled to one vote for each $1,000 principal amount of the Outstanding
Securities of such series held or represented by him; provided, however, that no
vote shall be cast or counted at any meeting in respect of any Security
challenged as not Outstanding and ruled by the chairman of the meeting to be not
Outstanding. The chairman of the meeting shall have no right to vote, except as
a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called pursuant
to Section 15.02 at which a quorum is present may be adjourned from time to time
by Persons entitled to vote a majority in principal amount of the Outstanding
Securities of such series represented at the meeting, and the meeting may be
held as so adjourned without further notice.
SECTION 17.06. Counting Votes and Recording Action of Meetings. The vote
upon any resolution submitted to any meeting of Holders of Securities of any
series shall be by written ballots on which shall be subscribed the signatures
of the Holders of Securities of such series or of their representatives by proxy
and the principal amounts and serial numbers of the Outstanding Securities of
such series held or represented by them. The permanent chairman of the meeting
shall appoint two inspectors of votes who shall count all votes cast at the
meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in duplicate of all
votes cast at the meeting. A record, at least in duplicate, of the proceedings
129
of each meeting of Holders of Securities of any Series shall be prepared by the
secretary of the meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken thereat and
affidavits by one or more persons having knowledge of the fact, setting forth a
copy of the notice of the meeting and showing that said notice was given as
provided in Section 15.02 and, if applicable, Section 15.04. Each copy shall be
signed and verified by the affidavits of the permanent chairman and secretary of
the meeting and one such copy shall be delivered to the Issuer and another to
the Trustee to be preserved by the Trustee, the latter to have attached thereto
the ballots voted at the meeting. Any record so signed and verified shall be
conclusive evidence of the matters therein stated.
ARTICLE XVIII
CONVERSION
SECTION 18.01. Conversion Privilege. If the Board Resolution establishing
the terms of a series of securities so provides, Securities of any series may be
convertible into Common Stock or other securities (a "Conversion Right"). The
Board Resolution may establish, among other things, the terms of securities of
the Issuer or any other Person into which Securities of any series are
convertible, the Conversion Rate, provisions for adjustments to the Conversion
Rate and limitations upon exercise of the Conversion Right. Unless the Board
Resolution otherwise provides: (i) the provisions of Sections 18.02 through
18.08 shall apply to any Securities having a Conversion Right and (ii) the
provisions of Sections 18.09 through 18.16 shall apply to any Securities having
a Conversion Right for Common Stock.
A Holder may convert a portion of a Security if the portion is $1,000 or
integral multiples thereof. Provisions of this Indenture that apply to the
conversion of the aggregate principal amount of a Security also apply to
conversion of a portion of it.
SECTION 18.02. Conversion Procedure. To convert a Security a Holder must
satisfy all requirements in the Securities or the Board Resolution and (i)
complete and manually sign the conversion notice (the "Conversion Notice")
provided for in the Board Resolution or the Security (or completely and manually
sign a facsimile thereof) and deliver such notice to the Conversion Agent or any
other office or agency maintained for such purpose, (ii) surrender the Security
to the Conversion Agent or at such other office or agency by physical delivery,
130
(iii) if required, furnish appropriate endorsements and transfer documents, and
(iv) if required, pay all transfer or similar taxes. The date on which such
notice shall have been received by and the Security shall have been so
surrendered to the Conversion Agent is the "Conversion Date." Such conversion
notice shall be irrevocable and may not be withdrawn by a Holder for any reason.
The Issuer will complete settlement of any conversion of Securities not
later than the fifth business day following the Conversion Date in respect of
the cash portion elected to be delivered in lieu of shares and not later than
the seventh business day following the Conversion Date in respect of the portion
to be settled in Common Stock or other securities.
If a Registered Security is converted between the record date for the
payment of interest and the next succeeding interest payment date, such Security
must be accompanied by funds equal to the interest payable on such succeeding
interest payment date on the principal amount so converted (unless such Security
shall have been called for redemption during such period, in which case no such
payment shall be required). A Registered Security converted on an interest
payment date need not be accompanied by any payment, and the interest on the
principal amount of the Security being converted will be paid on such interest
payment date to the Holder of such Security on the immediately preceding record
date. A Bearer Security presented for conversion must be accompanied by all
unmatured coupons. Subject to the aforesaid right of the Holder to receive
interest, no payment or adjustment will be made on conversion for interest
accrued on the converted Security or for interest, dividends or other
distributions payable on any security issued on conversion.
If a Holder converts more than one Security at the same time, the number of
full shares or other Securities issuable or cash payable upon the conversion
shall be based on the total principal amount of the Securities converted.
Upon surrender of a Security that is converted in part the Security
Registrar shall authenticate for the Holder a new Security equal in principal
amount to the unconverted portion of the Security surrendered; except that if a
Global Security is so surrendered the Security Registrar shall authenticate and
deliver to the Depositary a new Global Security in a denomination equal to and
in exchange for the unconverted portion of the principal of the Global Security
so surrendered.
131
If the last day on which a Security may be converted is a Legal Holiday in
a place where a Conversion Agent is located, the Security may be surrendered to
that Conversion Agent on the next succeeding Business Day.
SECTION 18.03. Taxes on Conversion. If a Holder of a Security exercises a
Conversion Right, the Issuer shall pay any documentary, stamp or similar issue
or transfer tax due on the issue of shares of Common Stock upon the conversion.
However, the Holder shall pay any such tax which is due because securities or
other property are issued in a name other than the Holder's name. Nothing herein
shall preclude any income tax or other withholding required by law or
regulations.
SECTION 18.04. Issuer Determination Final. Any determination that the Board
of Directors makes pursuant to this Article Eighteen is conclusive, absent
manifest error.
SECTION 18.05. Trustee's and Conversion Agent's Disclaimer. The Trustee
(and each Conversion Agent other than the Issuer) has no duty to determine when
or if an adjustment under this Article Eighteen or any Board Resolution should
be made, how it should be made or calculated or what it should be. The Trustee
(and each Conversion Agent other than the Issuer) makes no representation as to
the validity or value of any securities or assets issued upon conversion of
Securities. The Trustee (and each Conversion Agent other than the Issuer) shall
not be responsible for the Issuer's failure to comply with this Article Eighteen
or any provision of a Board Resolution relating to a Conversion Right.
SECTION 18.06. Issuer to Provide Conversion Securities. The Issuer shall
reserve out of its authorized but unissued capital stock or its capital stock
held in treasury sufficient shares to permit the conversion of all of the
Securities convertible into any capital stock of the Issuer.
All shares of capital stock of any person which may be issued upon
conversion of the Securities shall be validly issued, fully paid and
non-assessable. All debt securities or other instruments of any person which may
be issued upon conversion of securities shall be duly authorized and legal,
valid and binding obligations of such person.
The Issuer will comply with all securities laws regulating the offer and
delivery of securities upon conversion of Securities.
132
SECTION 18.07. Cash Settlement Option. If the Board Resolution so provides,
the Issuer may elect to satisfy, in whole or in part, a Conversion Right of
Securities convertible into Capital Stock of any person by the delivery of cash.
The amount of cash to be delivered shall be equal to the Market Price (as
defined below) on the last Stock Trading Day preceding the applicable Conversion
Date of a share of such Capital Stock multiplied by the number of shares of such
Capital Stock in respect of which the Issuer elects to deliver cash. If the
Issuer elects to satisfy, in whole or in part, a Conversion Right by the
delivery of shares of such Capital Stock, no fractional shares will be
delivered. Instead, the Issuer will pay cash based on the Market Price for such
fractional share of such Capital Stock.
The "Market Price" of the Common Stock or any other Capital Stock into
which Securities may be converted pursuant to a Board Resolution or this Article
Eighteen on any Stock Trading Day means the weighted average per share sale
price for all sales of the Common Stock or such other Capital Stock on such
Stock Trading Day (or, if the information necessary to calculate such weighted
average per share sale price is not reported, the average of the high and low
sale prices, or if no sales are reported, the average of the bid and ask prices
or, if more than one in either case, the average of the average bid and average
ask prices), as reported in the composite transactions for the New York Stock
Exchange or, if the Common Stock or such other Capital Stock is not listed or
admitted to trading on such exchange, as reported in the composite transactions
for the principal national or regional United States securities exchange on
which the Common Stock or such other Capital Stock is listed or admitted to
trading or, if the Common Stock or such other Capital Stock is not listed or
admitted to trading on a United States national or regional securities exchange,
as reported by NASDAQ or by the National Quotation Bureau Incorporated. In the
absence of such quotations, the Issuer shall be entitled to determine the Market
Price on the basis of such quotations as it considers appropriate.
SECTION 18.08. Adjustment in Conversion Rate for Change in Capital Stock.
If the Issuer:
(1) pays a dividend or makes a distribution on its Common Stock in
shares of its Common Stock;
(2) subdivides its outstanding shares of Common Stock into a greater
number of shares;
133
(3) combines its outstanding shares of Common Stock into a smaller
number of shares;
(4) pays a dividend or makes a distribution on its Common Stock in
shares of its Capital Stock other than Common Stock; or
(5) issues by reclassification of its Common Stock any shares of its
capital stock,
then the conversion privilege and the Conversion Rate in effect immediately
prior to such action shall be adjusted so that the Holder of a Security
thereafter converted may receive the number of shares of Capital Stock of the
Issuer (or, at the Issuer's option, an equivalent amount in cash) which he would
have owned immediately following such action if he had converted the Security
immediately prior to such action.
The adjustment shall become effective immediately after the record date in
the case of a dividend or distribution and immediately after the effective date
in the case of a subdivision, combination or reclassification.
If after an adjustment a Holder of a Security may, upon conversion, receive
shares of two or more classes of Capital Stock of the Issuer, the Board of
Directors of the Issuer shall determine the allocation of the adjusted
Conversion Rate between or among the classes of Capital Stock. After such
allocation, the conversion privilege and the Conversion Rate of each class of
Capital Stock shall thereafter be subject to adjustment on terms comparable to
those applicable to Common Stock in this Article.
SECTION 18.09. Adjustment in Conversion Rate for Common Stock Issued Below
Market Price. If the Issuer issues to all holders of Common Stock rights,
options or warrants to subscribe for or purchase shares of Common Stock, or any
securities convertible into or exchangeable for shares of Common Stock, or
rights, options or warrants to subscribe for or purchase such convertible or
exchangeable securities at a Price Per Share (as defined and determined
according to the formula given below) lower than the current Market Price on the
date of such issuance, the Conversion Rate shall be adjusted in accordance with
the following formula:
AC = CC x O + N O + (N x R)
M
134
where:
AC = the adjusted Conversion Rate.
CC = the then current Conversion Rate.
O = the number of shares outstanding immediately prior to such issuance.
N = the "Number of Shares," which (i) in the case of rights, options or
warrants to subscribe for or purchase shares of Common Stock or of
securities convertible into or exchangeable for shares of Common Stock, is
the maximum number of shares of Common Stock initially issuable upon
exercise, conversion or exchange thereof; and (ii) in the case of rights,
options or warrants to subscribe for or purchase convertible or
exchangeable securities, is the maximum number of shares of Common Stock
initially issuable upon the conversion or exchange of the convertible or
exchangeable securities issuable upon the exercise of such rights, options
or warrants.
R = the proceeds received or receivable by the Issuer, which (i) in the case
of rights, options or warrants to subscribe for or purchase shares of
Common Stock or of securities convertible into or exchangeable for shares
of Common Stock, is the total amount per share received or receivable by
the Issuer in consideration for the sale and issuance of such rights,
options, warrants or convertible or exchangeable securities, plus the
minimum aggregate amount of additional consideration, other than the
convertible or exchangeable securities, payable to the Issuer upon
exercise, conversion or exchange thereof; and (ii) in the case of rights,
options or warrants to subscribe for or purchase convertible or
exchangeable securities, is the total amount per share received or
receivable by the Issuer in consideration for the sale and issuance of such
rights, options or warrants, plus the minimum aggregate consideration
payable to the Issuer upon the exercise thereof, plus the minimum aggregate
amount of additional consideration, other than the convertible or
exchangeable securities, payable upon the conversion or exchange of the
convertible or exchangeable securities; provided, that in each case the
proceeds received or receivable by the Issuer shall be deemed to be the
amount of gross cash proceeds without deducting therefrom any compensation
135
paid or discount allowed in the sale, underwriting or purchase thereof by
underwriters or dealers or others performing similar services or any
expenses incurred in connection therewith.
M = the current Market Price per share of Common Stock on the date of issue
of the rights, option or warrants to subscribe for or purchase shares of
Common Stock or the securities convertible into or exchangeable for shares
of Common Stock or the rights, options or warrants to subscribe for or
purchase convertible or exchangeable securities.
"Price Per Share" shall be defined and determined according to the
following formula:
P = R
N
where:
P = Price Per Share
and R and N have the meanings assigned above.
If the Issuer shall issue rights, options, warrants or convertible or
exchangeable securities for a consideration consisting, in whole or in part, of
property other than cash the amount of such consideration shall be determined in
good faith by the Board of Directors whose determination shall be conclusive and
evidenced by a resolution of the Board of Directors filed with the Trustee.
The adjustment shall be made successively whenever any such additional
rights, options, warrants or convertible or exchangeable securities are issued,
and shall become effective immediately after the date of issue of such shares,
rights, options, warrants or convertible or exchangeable securities.
To the extent that such rights, options or warrants expire unexercised or
to the extent any convertible or exchangeable securities are redeemed by the
Issuer or otherwise cease to be convertible or exchangeable into shares of
Common Stock, the Conversion Rate shall be readjusted to the Conversion Rate
which would then be in effect had the adjustment made upon the date of issuance
of such rights, options, warrants or convertible or exchangeable securities been
made upon the basis of the issuance of rights, options or warrants to subscribe
for or purchase only the number of shares of Common Stock as to which such
136
rights, options or warrants were actually exercised and the number of shares of
Common Stock were actually issued upon the conversion or exchange of the
convertible or exchangeable securities.
SECTION 18.10. Adjustment for Other Distributions. If the Issuer
distributes to all holders of its Common Stock any of its assets or debt
securities or any rights or warrants to purchase assets or debt securities of
the Issuer, the Conversion Rate shall be adjusted in accordance with the
following formula:
AC = CC x (O x M)
(O x M) - F
where:
AC = the adjusted Conversion Rate.
CC = the then current Conversion Rate.
O = the number of shares of Common Stock outstanding on the record date
mentioned below.
M = the current Market Price per share of Common Stock on the record date
mentioned below.
F = the fair market value on the record date of the assets, securities,
rights or warrants distributed. The Board of Directors of the Issuer shall
determine the fair market value.
The adjustment shall become effective immediately after the record date for
the determination of stockholders entitled to receive the distribution.
This Section does not apply to cash dividends or distributions or to
reclassifications or distributions referred to in Section 16.08. Also, this
Section does not apply to shares issued below Market Price referred to in
Section 16.09.
SECTION 18.11. Voluntary Adjustment. The Issuer at any time may increase
the Conversion Rate, temporarily or otherwise, by any amount but in no event
shall such Conversion Rate result in the issuance of Common Stock at a price
less than the par value of the Common Stock at the time such increase is made.
SECTION 18.12. When Adjustment May Be Deferred. No adjustment in the
Conversion Rate need be made unless the adjustment would require a change of at
least 1% in the Conversion Rate. Any adjustments that are not made due to the
137
immediately preceding sentence shall be carried forward and taken into account
in any subsequent adjustment; provided, that any adjustment carried forward
shall be deferred not in excess of three years, whereupon any adjustment to the
Conversion Rate will be effected.
All calculations under this Article Eighteen shall be made to the nearest
cent or to the nearest 1/100th of a share, as the case may be.
SECTION 18.13. When No Adjustment Required. Except as set forth in Section
18.09, no adjustment in the Conversion Rate shall be made because the Issuer
issues, in exchange for cash, property or services, shares of Common Stock, or
any securities convertible into shares of Common Stock, or securities carrying
the right to purchase shares of Common Stock or such convertible securities.
No adjustment in the Conversion Rate need be made for rights to purchase or
the sale of Common Stock pursuant to a Issuer plan providing for reinvestment of
dividends or interest.
No adjustment in the Conversion Rate need be made for a change in the par
value of the Common Stock.
No adjustment need be made for a transaction referred to in Section 18.08,
18.09 or 18.10 if Holders of Securities are to participate in the transaction on
a basis and with notice that the Board of Directors determines to be fair and
appropriate in light of the basis and notice on which holders of Common Stock
participate in the transaction.
SECTION 18.14. Notice of Adjustment. Whenever the Conversion Rate is
adjusted, the Issuer shall promptly mail to Holders of Securities affected a
notice of the adjustment. The Issuer shall file with the Trustee an Officers'
Certificate or a certificate from the Issuer's independent public accountants
(which shall include the statements required by Section 1.02) stating the facts
requiring the adjustment and the manner of computing it. The certificate shall
be conclusive evidence that the adjustment is correct, absent manifest error.
SECTION 18.15. Notice of Certain Transactions. If:
138
(1) the Issuer proposes to take any action that would require an
adjustment in the Conversion Rate,
(2) the Issuer proposes to take any action that would require a
supplemental indenture pursuant to Section 18.16, or
(3) there is a proposed liquidation or dissolution of the Issuer,
the Issuer shall mail to Holders of Securities of any affected series a notice
stating the proposed record date for a dividend or distribution or the proposed
effective date of a subdivision, combination, reclassification, consolidation,
merger, transfer, lease, liquidation or dissolution. The Issuer shall mail the
notice at least 15 days before such date. Failure to mail the notice or any
defect in it shall not affect the validity of the transaction.
SECTION 18.16. Reorganization of the Issuer. If the Issuer is a party to a
transaction subject to Section 8.01 or a merger which reclassifies, exchanges,
or changes its outstanding Common Stock, the successor corporation (if other
than the Issuer) shall enter into a supplemental indenture which shall provide
that the Holder of a Security may convert it into the kind and amount of
securities, cash or other assets which he would have owned immediately after the
consolidation, merger, transfer or lease if he had converted the Security
immediately before the effective date of the transaction. The supplemental
indenture shall provide for adjustment which shall be as nearly equivalent as
may be practical to the adjustments provided for in this Article. The successor
Issuer shall mail to Holder of Securities of any affected series a notice
briefly describing the supplemental indenture.
If this Section applies, Sections 18.08, 18.09 and 18.10 do not apply.
139
SIGNATURES AND SEALS
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed all as of the day and year first above written.
AMERICAN STANDARD INC.
By:
------------------------
Name:
Title:
Attest:
-------------------
Title:
AMERICAN STANDARD COMPANIES INC.
By:
------------------------
Name:
Title:
Attest:
-------------------
Title:
[ ],
as Trustee
By:
------------------------
Name:
Title:
Attest:
-------------------
Title:
EXHIBIT A
FORM OF REDEEMABLE OR NON-REDEEMABLE SENIOR SECURITY
[Face of Security]
[If the Holder of this Security (as indicated below) is The Depository Trust
Company ("DTC") or a nominee of DTC, this Security is a Global Security and the
following two legends apply:
Unless this Security is presented by an authorized representative of The
Depository Trust Company ("DTC"), 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx to the
issuer or its agent for registration of transfer, exchange or payment, and such
Security issued is registered in the name of CEDE & CO., or such other name as
requested by an authorized representative of DTC, ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL, since the
registered owner hereof, CEDE & CO., has an interest herein.
Unless and until this Security is exchanged in whole or in part for Securities
in certificated form, this Security may not be transferred except as a whole by
DTC to a nominee thereof or by a nominee thereof to DTC or another nominee of
DTC or by DTC or any such nominee to a successor of DTC or a nominee of such
successor.]
[If this Security is an Original Issue Discount Security, insert -- FOR PURPOSES
XX XXXXXXX 0000 XXXXXXX 0000 XX XXX XXXXXX XXXXXX INTERNAL REVENUE CODE, THE
ISSUE PRICE OF THIS SECURITY IS , THE AMOUNT OF ORIGINAL ISSUE DISCOUNT ON THIS
SECURITY IS , THE ISSUE DATE IS , 19 AND THE YIELD TO MATURITY IS
%. [THE METHOD USED TO DETERMINE THE AMOUNT OF ORIGINAL ISSUE DISCOUNT
APPLICABLE TO THE SHORT ACCRUAL PERIOD OF , 19 TO , 19 ,
IS % OF THE PRINCIPAL AMOUNT OF THIS SECURITY.]
AMERICAN STANDARD INC.
[Designation of Series]
No. _______ $_________
AMERICAN STANDARD INC., a Delaware corporation (herein referred to as the
"Issuer," which term includes any successor Person under the Indenture referred
to on the reverse hereof), for value received, hereby promises to pay to
A-1
______________________________ or registered assigns the principal sum of
_______ Dollars on _____________________ (the "Stated Maturity Date") [or insert
date fixed for earlier redemption (the "Redemption Date," and together with the
Stated Maturity Date with respect to principal repayable on such date, the
"Maturity Date.")]
[If the Security is to bear interest prior to Maturity, insert -- and to pay
interest thereon from ______________ or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, semi-annually on
__________ and _________ in each year (each, an "Interest Payment Date"),
commencing __________, at the rate of __% per annum, until the principal hereof
is paid or duly provided for. The interest so payable, and punctually paid or
duly provided for, on any Interest Payment Date will, as provided in such
Indenture, be paid to the Holder in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, which shall be the ________ or ______ (whether or
not a Business Day), as the case may be, next preceding such Interest Payment
Date [at the office or agency of the Issuer maintained for such purpose;
provided, however, that such interest may be paid, at the Issuer's option, by
mailing a check to such Holder at its registered address or by transfer of funds
to an account maintained by such Holder within the United States]. Any such
interest not so punctually paid or duly provided for shall forthwith cease to be
payable to the Holder on such Regular Record Date, and may be paid to the Holder
in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities of this series not less than 10 days prior to
such Special Record Date, or may be paid at any time in any other lawful manner
not inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in the Indenture. Interest will be
computed on the basis of a 360-day year of twelve 30-day months.]
[If the Security is not to bear interest prior to Maturity, insert -- The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at the
[Stated] Maturity Date and in such case the overdue principal of this Security
shall bear interest at the rate of % per annum (to the extent that the payment
A-2
of such interest shall be legally enforceable), which shall accrue from the date
of such default in payment to the date payment of such principal has been made
or duly provided for. Interest on any overdue principal shall be payable on
demand. Any such interest on any overdue principal that is not so paid on demand
shall bear interest at the rate of % per annum (to the extent that the payment
of such interest shall be legally enforceable), which shall accrue from the date
of such demand for payment to the date payment of such interest has been made or
duly provided for, and such interest shall also be payable on demand.]
The principal of this Security payable on the Stated Maturity Date [or the
principal of, premium, if any, and, if the Redemption Date is not an Interest
Payment Date, interest on this Security payable on the Redemption Date] will be
paid against presentation of this Security at the office or agency of the Issuer
maintained for that purpose in ___________________, in such coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest payable on this Security on any Interest Payment Date and on the
[Stated] Maturity Date [or Redemption Date, as the case may be,] will include
interest accrued from and including the next preceding Interest Payment Date in
respect of which interest has been paid or duly provided for (or from and
including ____________, if no interest has been paid on this Security) to but
excluding such Interest Payment Date or the [Stated] Maturity Date [or
Redemption Date, as the case may be.] If any Interest Payment Date or the
[Stated] Maturity Date or [Redemption Date] falls on a day that is not a
Business Day, as defined below, principal, premium, if any, and/or interest
payable with respect to such Interest Payment Date or [Stated] Maturity Date [or
Redemption Date, as the case may be,] will be paid on the next succeeding
Business Day with the same force and effect as if it were paid on the date such
payment was due, and no interest shall accrue on the amount so payable for the
period from and after such Interest Payment Date or [Stated] Maturity Date [or
Redemption Date, as the case may be.] "Business Day" means any day, other than a
Saturday or Sunday, on which banks in __________________ are not required or
authorized by law or executive order to close.
[If this Security is a Global Security, insert -- All payments of principal,
premium, if any, and interest in respect of this Security will be made by the
Issuer in immediately available funds.]
A-3
Reference is hereby made to the further provisions of this Security set forth on
the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless the Certificate of Authentication hereon has been executed by the Trustee
by manual signature of one of its authorized signatories, this Security shall
not be entitled to any benefit under the Indenture, or be valid or obligatory
for any purpose.
A-4
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly executed
under its facsimile corporate seal.
Dated: ______________ AMERICAN STANDARD INC.
By:
--------------------------
By:
--------------------------
Attest:
-----------------------
Secretary
A-5
[Reverse of Security]
AMERICAN STANDARD INC.
This Security is one of a duly authorized issue of securities of the Issuer
(herein called the "Securities"), issued and to be issued in one or more series
under an Indenture, dated as of [ ], 1997 (herein called the "Indenture")
between the Issuer and [ ], as Trustee (herein called the "Trustee," which term
includes any successor trustee under the Indenture with respect to the series of
which this Security is a part), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Issuer,
the Trustee and the Holders of the Securities, and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is one
of the duly authorized series of Securities designated on the face hereof
(collectively, the "Securities"), [if applicable, insert -- and the aggregate
principal amount of the Securities to be issued under such series is limited to
$______ (except for Securities authenticated and delivered upon transfer of, or
in exchange for, or in lieu of other Securities).] All terms used in this
Security which are defined in the Indenture shall have the meanings assigned to
them in the Indenture.
If an Event of Default, as defined in the Indenture, shall occur and be
continuing, the principal of the Securities of this series may be declared due
and payable in the manner and with the effect provided in the Indenture.
[If applicable, insert -- The Securities may not be redeemed prior to the Stated
Maturity Date.]
[If applicable, insert -- The Securities are subject to redemption [ (l) (If
applicable, insert -- on _________ in any year commencing with the year ____ and
ending with the year ____ through operation of the sinking fund for this series
at a Redemption Price equal to 100% of the principal amount, and (2) ] [If
applicable, insert -- at any time [on or after ___________], as a whole or in
part, at the election of the Issuer, at the following Redemption Prices
(expressed as percentages of the principal amount):
If redeemed on or before _______, __% and if redeemed during the 12-month period
beginning _______ of the years indicated at the Redemption Prices indicated
below.
A-6
Year Redemption Price Year Redemption Price
and thereafter at a Redemption Price equal to __% of the principal amount,
together in the case of any such redemption [If applicable, insert -- (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date; provided, however, that installments of interest on this
Security whose Stated Maturity is on or prior to such Redemption Date will be
payable to the Holder of this Security, or one or more Predecessor Securities,
of record at the close of business on the relevant Record Dates referred to on
the face hereof, all as provided in the Indenture.]
[If applicable, insert -- The Securities are subject to redemption (1) on
_______ in any year commencing with the year ____ and ending with the year ____
through operation of the sinking fund for this series at the Redemption Prices
for redemption through operation of the sinking fund (expressed as percentages
of the principal amount) set forth in the table below, and (2) at any time [on
or after _______], as a whole or in part, at the election of the Issuer, at the
Redemption Prices for redemption otherwise than through operation of the sinking
fund (expressed as percentages of the principal amount) set forth in the table
below: If redeemed during the 12-month period beginning ________ of the years
indicated,
Redemption Price for Redemption Price for
Redemption Through Redemption Otherwise
Operation of the Than Through Operation
Year Sinking Fund of the Sinking Fund
and thereafter at a Redemption Price equal to ____% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date;
provided, however, that installments of interest on this Security whose Stated
Maturity is on or prior to such Redemption Date will be payable to the Holder of
this Security, or one or more Predecessor Securities, of record at the close of
business on the relevant Record Dates referred to on the face hereof, all as
provided in the Indenture.]
A-7
[If applicable, insert -- Notwithstanding the foregoing, the Issuer may not,
prior to _______, redeem any Securities as contemplated by [Clause (2) of] the
preceding paragraph as a part of, or in anticipation of, any refunding operation
by the application, directly or indirectly, of moneys borrowed having an
interest cost to the Issuer (calculated in accordance with generally accepted
financial practice) of less than __% per annum.]
[If applicable, insert -- The sinking fund for the Securities provides for the
redemption on _______ in each year, beginning with the year ____ and ending with
the year ____, of [not less than] $_______] [("mandatory sinking fund") and not
more than $_______] aggregate principal amount of the Securities. [The
Securities acquired or redeemed by the Issuer otherwise than through [mandatory]
sinking fund payments may be credited against subsequent [mandatory] sinking
fund payments otherwise required to be made in the [describe order] order in
which they become due.]]
Notice of redemption will be given by mail to Holders of Securities, not less
than 30 nor more than 60 days prior to the Redemption Date, all as provided in
the Indenture.
In the event of redemption of this Security in part only, a new Security or
Securities for the unredeemed portion hereof shall be issued in the name of the
Holder hereof upon the cancellation hereof.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Securities under the Indenture at
any time by the Issuer and the Trustee with the consent of the Holders of not
less than a majority of the aggregate principal amount of all Securities issued
under the Indenture at the time Outstanding and affected thereby. The Indenture
also contains provisions permitting the Holders of not less than a majority of
the aggregate principal amount of the Outstanding Securities, on behalf of the
Holders of all such Securities, to waive compliance by the Issuer with certain
provisions of the Indenture. Furthermore, provisions in the Indenture permit the
Holders of not less than a majority of the aggregate principal amount, in
certain instances, of the Outstanding Securities of any series to waive, on
behalf of all of the Holders of Securities of such series, certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Security shall be conclusive and binding upon such Holder and
A-8
upon all future Holders of this Security and other Securities issued upon the
registration of transfer hereof or in exchange hereafter or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security or of the
Indenture shall alter or impair the obligation of the Issuer, which is absolute
and unconditional, to pay the principal of (and premium, if any) and interest on
this Security at the times, places and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations therein [and
herein] set forth, the transfer of this Security is registrable in the Security
Register of the Issuer upon surrender of this Security for registration of
transfer at the office or agency of the Issuer in any place where the principal
of (and premium, if any) and interest on this Security are payable, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Issuer and the Security Registrar duly executed by, the
Holder hereof or by his attorney duly authorized in writing, and thereupon one
or more new Securities, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
As provided in the Indenture and subject to certain limitations therein [and
herein] set forth, this Security is exchangeable for a like aggregate principal
amount of Securities of different authorized denominations but otherwise having
the same terms and conditions, as requested by the Holder hereof surrendering
the same.
The Securities of this series are issuable only in registered form [without
coupons] in denominations of $_______ and any integral multiple thereof.
No service charge shall be made for any such registration of transfer or
exchange, but the Issuer may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the
Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all
A-9
purposes, whether or not this Security be overdue, and neither the Issuer, the
Trustee nor any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of or premium, if any,
or the interest on this Security, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture or any indenture
supplemental thereto, against any past, present or future stockholder, employee,
officer, director, incorporator, limited or general partner, as such, of the or
of any successor, either directly or through the Issuer or any successor,
whether by virtue of any constitution, statute or rule of law or by the
enforcement of any assessment or penalty or otherwise, all such liability being,
by the acceptance hereof and as part of the consideration for the issue hereof,
expressly waived and released.
The Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made
and to be performed entirely in such State.
A-10
EXHIBIT B
FORMS OF CERTIFICATION
B-1
EXHIBIT B-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, as of the date hereof, and except as set forth
below, the above-captioned Securities held by you for our account (i) are owned
by person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of which
is subject to United States Federal income taxation regardless of its source
("United States person(s)"), (ii) are owned by United States person(s) that are
(a) foreign branches of United States financial institutions (financial
institutions, as defined in United States Treasury Regulations Section
1.165-12(c)(1)(v) are herein referred to as "financial institutions") purchasing
for their own account or for resale, or (b) United States person(s) who acquired
the Securities through foreign branches of United States financial institutions
and who hold the Securities through such United States financial institutions on
the date hereof (and in either case (a) or (b), each such United States
financial institution hereby agrees, on its own behalf or through its agent,
that you may advise AMERICAN STANDARD INC. or its agent that such financial
institution will comply with the requirements of Section 165(j)(3)(A), (B) or
(C) of the United States Internal Revenue Code of 1986, as amended, and the
regulations thereunder), or (iii) are owned by United States or foreign
financial institution(s) for purposes of resale during the restricted period (as
defined in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)),
and, in addition, if the owner is a United States or foreign financial
institution described in clause (iii) above (whether or not also described in
clause (i) or (ii)), this is to further certify that such financial institution
has not acquired the Securities for purposes of resale directly or indirectly to
a United States person or to a person within the United States or its
possessions.
B-2
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the date
on which you intend to submit your certification relating to the above-captioned
Securities held by you for our account in accordance with your Operating
Procedures if any applicable statement herein is not correct on such date, and
in the absence of any such notification it may be assumed that this
certification applies as of such date.
This certificate excepts and does not relate to [U.S.$] of such interest in
the above-captioned Securities in respect of which we are not able to certify
and as to which we understand an exchange for an interest in a permanent Global
Security or an exchange for and delivery of definitive Securities (or, if
relevant, collection of any interest) cannot be made until we do so certify.
We understand that this certificate may be required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: ________, ____
[To be dated no earlier than the 15th day prior to (i) the Exchange Date or (ii)
the relevant Interest Payment Date occurring prior to the Exchange Date, as
applicable]
[Name of Person Making Certification]
------------------------------------
(Authorized Signature)
Name:
Title:
B-3
EXHIBIT B-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL S.A. IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL SECURITY OR TO
OBTAIN INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, based solely on written certifications that we
have received in writing, by tested telex or by electronic transmission from
each of the persons appearing in our records as persons entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
in the form attached hereto, as of the date hereof, [U.S.$] principal amount of
the above-captioned Securities (i) is owned by person(s) that are not citizens
or residents of the United States, domestic partnerships, domestic corporations
or any estate or trust the income of which is subject to United States Federal
income taxation regardless of its source ("United States person(s)"), (ii) is
owned by United States person(s) that are (a) foreign branches of United States
financial institutions (financial institutions, as defined in U.S. Treasury
Regulations Section 1.165-12(c)(1)(v) are herein referred to as "financial
institutions") purchasing for their own account or for resale, or (b) United
States person(s) who acquired the Securities through foreign branches of United
States financial institutions and who hold the Securities through such United
States financial institutions on the date hereof (and in either case (a) or (b),
each such financial institution has agreed, on its own behalf or through its
agent, that we may advise American Standard Inc. or its agent that such
financial institution will comply with the requirements of Section 165(j)(3)(A),
(B) or (C) of the Internal Revenue Code of 1986, as amended, and the regulations
thereunder), or (iii) is owned by United States or foreign financial
institution(s) for purposes of resale during the restricted period (as defined
in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and, to
the further effect, that financial institutions described in clause (iii) above
(whether or not also described in clause (i) or (ii)) have certified that they
B-4
have not acquired the Securities for purposes of resale directly or indirectly
to a United States person or to a person within the United States or its
possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "Possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We further certify that (i) we are not making available herewith for
exchange (or, if relevant, collection of any interest) any portion of the
temporary Global Security representing the above-captioned Securities excepted
in the above-referenced certificates of Member Organizations and (ii) as of the
date hereof we have not received any notification from any of our Member
Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted herewith for
exchange (or, if relevant, collection of any interest) are no longer true and
cannot be relied upon as of the date hereof.
We understand that this certification is required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: _______ ____
[To be dated no earlier than the Exchange Date or the relevant Interest Payment
Date occurring prior to the Exchange Date, as applicable]
[Xxxxxx Guaranty Trust Company of New York,
Brussels Office,] as Operator of the
Euroclear System [CEDEL S.A.]
By:_______________________________________
X-0
XXXXXXX X
XXXX XX XXXXXXXX XX SECURITY
RELATING TO AMERICAN STANDARD COMPANIES INC.
The Guarantor has unconditionally guaranteed, to the extent set forth in
the Indenture and subject to the provisions in the Indenture, the due and
punctual payment and performance of the obligations of the Company in connection
with the Indenture and each Series of Securities issued thereunder. In case of
the failure of the Company punctually to perform or make any such payment, the
Guarantor hereby agrees to cause such payment and performance to be made
punctually.
The obligations of the Guarantor to the Holders and to the Trustee pursuant
to the Guarantee and the Indenture are expressly set forth in Article Twelve of
the Indenture and reference is hereby made to the Indenture for the precise
terms of the Guarantee. Capitalized terms used and not defined herein have the
meanings ascribed thereto in the Indenture.
AMERICAN STANDARD COMPANIES INC.
By:______________________________
Name:_____________________
Title:____________________
Attest:
By:______________________________
Name:_____________________
Title:____________________
C-1
